Abstract of "The Case for the Establishment of a Code of Ethics to Govern the Frivolous Use of Forensic Biomechanical Testimony to Resolve Legal Issues Involving Alleged Work-Related Musculoskeletal Disorders"

Abstract

Our legal system is broken—especially as it applies to the railroad industry, governed by the now-outdated Federal Employers Liability Act of 1908. Nation-wide, frivolous law suits are filed by the thousands on behalf of plaintiffs claiming alleged work disorders (WMSDs), and they are winning these law suits on a regular basis. Moreover, the general public is funding these settlements because defendants simply pass the costs and losses along to their clients. Much of the reason for plaintiffs' victories in the courtroom can be attributed to unethical “junk science.” Expert witnesses are knowingly and unethically giving false testimony on issues related to medical causation, and juries are being influenced by such testimony because of misleading presumptions of guilt, unless innocence can be proven. In turn, these presumptions are derived from rather convincing “default settings” that are not challenged effectively, either in depositions or at trial. Contributing to this dilemma is the conspicuous absence of a code of ethics to govern the frivolous use of forensic biomechanical testimony to resolve legal issues involving alleged WMSDs. Despite the impact of Daubert v. Merrell Dow Pharmaceuticals, which was supposed to alleviate these concerns, there is no policy in place to effectively govern the admission and use of scientific evidence—especially biomedical/biomechanical evidence—in settling disputes involving WMSDs. Experts are not being held to strict scientific standards; judges and juries tend naturally to “lean” in favor of plaintiffs (the “David-and-Goliath” syndrome); and the scientific community, through its professional organizations, is not doing a good job of policing the legal community in order to force it to disallow unsubstantiated conjecture and illegitimate fact-based opinions. No doubt some of these law suits are indeed legitimate, and the verdicts are justified and proper. But to deal with those that are not, this paper makes the case for why a code of ethics governing litigation-based biomechanical testimony is long overdue. Discussed are the following: the differences between medical differential diagnosis with presumed cause, and hard scientific evidence proving actual cause; using non sequiturs (including circular reasoning) to arrive at conclusions that do not follow directly from the reasoning that leads up to them; unsubstantiated allegations based on pure conjecture (including bias and the skewed use of biostatistics); several deceptive, misinformed, and misguided “default settings” that are routinely considered to be axiomatic and lead to self-fulling prophecies; a flagrant disregard and abuse of scientific logic and critical thinking (including pitfalls that derive from the famous adages, se non e vero, e ben trovato, circulus in probando, post hoc ergo propter hoc; and petition principii; contradictory observations, wherein precisely opposite outcomes can seemingly be reconciled by the same prevailing theory of causation; failure to account for confounding variables; the “guilty-unless-proven-innocent” syndrome (including proving negatives); the difference between “correlation” and “causation” (as it concerns epidemiological evidence); the difference between “discomfort” and “disease” (as it concerns ergonomic evidence); the straw-that-broke-the-camel's-back argument; and the “DQ(define and quantify) principle” in science.