But even this approach is subject to flaws and is not of much value in assessing new or emerging scientific methods or concepts. One can imagine the immediate future when much toxic tort litigation will be challenged by genetic analysis of individual predisposition to cancer or birth defects or other serious ailments treasured by trial lawyers. Unfortunately, this is an ever evolving concept and subject to the usual disputes between scientific factions and among individual experts with a point of view and all too often, a pecuniary interest in the outcome. Even a court-appointed panel of experts may have difficulty addressing the validity of a study underwritten by the company making an allegedly defective product or by its trade association. Or a course of medical treatment at variance with current practice guidelines that may be undertaken because of lower cost or the results of new research or unique experience with a disease.
Causation is tough enough to prove, especially when one is dealing with a serious illness.
Often statistical studies must be invoked and the epidemiology just doesn't stand up to scientific scrutiny. The old belief in the common sense of jurors, even if they are sympathetic to plaintiffs with a sad story, appears strained. The real difficulty arises when each side offers a reasonable albeit opposite interpretation of the available and reliable scientific evidence. Then the resolution is too often a manifestation of the expert's personality or decorum on the stand and the relative skill of the lawyers in cross-examination. While this may be an integral part of our system of civil justice, no one should confuse it with a search for the truth.