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Newsgroups: bit.listserv.biosph-l
Date:         Sat, 25 Jul 1992 14:28:00 PDT
Reply-To:     Marianne Dugan <MDUGAN@OREGON.BITNET>
From:         Marianne Dugan <MDUGAN@OREGON.BITNET>
Subject:      phantom risk

>             ~Yet no strong scientific evidence ever developed that
>        the substances caused the injuries in question" say the
>        editors of a forthcoming book on the subject of science and
>        law.

I'm a law student, and this issue was discussed in one of my
classes--I can't remember if it was Torts or Evidence.  It got me
thinking about it.  I have a question, as a non-scientist
discussing this with scientists (I respect the writer of the
article's caveat about not being able to respond to discussion,
but is anyone else willing?):  What exactly constitutes "
strong" as used in the phrase "strong scientific evidence"?  I
believe (please correct me if I'm wrong) that science never "
proves" anything.  Neither do lawyers in the courtroom.  The
question is whether the "proof" is sufficient to convince a
jury (or a judge in a non-jury trial) "beyond a reasonable doubt"
(criminal cases) or by a "preponderance" of the evidence (civil
cases).  In other words, if studies show that statistically more
women who use VDTs have children with birth defects than women
who don't use VDTs, and there are no other factors which
differentiate the two groups, then a jury can decide that's "
proof" enough.  In a criminal trial, of course, the state has a
much higher burden -- for instance, in getting a jury to decide
the state has "proved" that because an accused rapist's sperm is
the same type as found in the victim's body, the accused is
guilty.

In this respect, I really don't think science and litigation are
that antithetical in their bases.  Each requires making the leap
from what is really circumstantial evidence -- that is (according
to Black's Law Dictionary), "secondary facts by which a principal
fact may be rationally inferred" -- to "proof."  We all make that
leap of faith when we use toothpaste to protect our teeth, eat
low-cholesterol food, and wear seatbelts to save our lives.  Of
course, it's not really a leap of "faith," is it?  It's (to use
Black's terminology again) "rational" inference.

So, although I agree that much unfounded litigation is probably
brought, I think that if the manufacturer really feels the
evidence is skimpy, it should come forward with expert testimony
that explains, in layman's terms, why the link is too weak to
support a guilty verdict.  I realize jury's are emotionally moved
by injured plaintiffs, but I think they're also persuadable if
the explanation is good enough.  After all, it is the plaintiff
who bears the burden of convincing the jury of the defendant's
guilt, and the jury is reminded of that repeatedly.  If the jury
comes back for the plaintiff(s) and the manufacturer thinks they
were screwed, then ask for a "judgment notwithstanding the
verdict" -- that is, no rational jury could have found the proof
convincing.

This is not all to say that I think the "system" is infallible,
and I realize that all this litigation costs money; however, if a
manufacturer really believes there is no link, it shouldn't go
spending money on a settlement, but should instead try to refute
the claim.  Remember also the manufacturer can ask for sanctions
and attorney fees if the claim is totally groundless.

>             Because of the rise in litigation, pharmaceutical and
>        other companies avoid developing some kinds of drugs...

Like the morning sickness drug?  What "kinds" of drugs are being
avoided -- those that do not really save life or limb but are "
optional"?  Maybe this is not a bad result.  The pharmaceutical
industry is the most profitable industry in the world (I
believe I read that recently -- though perhaps it was "one of the
most profitable"?  Any info out there on that point?), and anyone
who keeps abreast of current events knows that the FDA does not
have the resources to properly test drugs before they're
marketed.  So perhaps the best prevention is self-control by the
companies due to fears of litigation.  I mean, the only reason I
can see that the fear of litigation would prevent development of
a drug is if preliminary tests do show a correlation with birth
defects or other hazards.  In which case it is probably a wise
choice not to develop the drug.

>             "By 'phantom risk' we mean cause-and-effect
>        relationships whose existence is unproven and in the view of
>        most scientists is unprovable," says Foster.

Just to sum up the point of this reply and the sincere question I
started with -- Isn't everything scientifically "unprovable"?  In
otherwords, when the original writer says "Phantom risk isn't pelvic
inflammatory disease from the Dalkon Shield" -- why not?  What
constitutes "proven" in scientific risk analysis?

----------------------------------------------------------------
Marianne Dugan  mdugan@oregon.uoregon.edu
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU