Science, law, and the IBM case.

Abstract

M any scientists in the United States may not have noticed, but there's a war on about the role of their subject in the law. Scientists are often called on to serve as expert witnesses in cases ranging in scope from product liability to tort actions brought against manufacturers or polluters. Some environmentalists and members of the plaintiff's bar believe that the deck has become stacked to favor defendants, because trial judges more frequently find reasons for disallowing than allowing the presentation of expert scientific testimony to juries. Taking the other side are advocates for tort reform, who are critical of the economic impact of outsized jury awards and often refer to the scientific studies offered by plaintiffs to convince those juries as “junk science.” Well, there certainly are some examples of the latter. The cases involving the prescription drug Bendectin, which led to a well-known 1993 Supreme Court decision that gave federal trial judges criteria for evaluating expert testimony ( Daubert v. Merrell Dow Pharmaceuticals, Inc. ), attracted some bad studies. So, famously, did the breast implant cases. On the other hand, plaintiffs have sometimes produced careful and responsible testimony that has been essential in resolving serious challenges to environmental quality and public health. Each side in this fight, in other words, has some weapons to turn on the other, and that guarantees it a long run. Lawyers and scientists often explore one another's domains with a certain perplexed curiosity, in an effort to understand what differentiates the search for truth from the search for justice. When science enters the courtroom, a scientist might wonder whether the benefits it generates in the interest of justice make it worth the trouble of entering an adversarial proceeding. The attorney might ask, more often than not, whether the science will play a useful role in reaching a sound outcome. Those are among the many questions in this relationship. ![Figure][1] CREDIT: JOE SUTLIFF A recent case illuminates these and opens others. As described in Science (14 May 2004, p. [937][2]), a group of workers at the International Business Machines Corporation (IBM) brought suit against the company, claiming that their medical problems had resulted from workplace exposures to chemicals used in computer chip manufacture. Their attorneys tried to introduce studies by two epidemiologists who analyzed IBM mortality data for all employees that had been made available through discovery. The data revealed elevated mortality rates for some cancers. Judge Robert Baines of the California Superior Court refused to admit these findings, calling them irrelevant and prejudicial, thus combining a scientific judgment with a legal one. A protective order had been issued requiring those involved in the litigation not to use the IBM data outside the legal proceedings. The two epidemiologists had submitted a paper with their findings to a journal, but in a letter to their attorney, an IBM lawyer had called attention to the protective order and stated “IBM expressly reserves all of its rights to take any appropriate action.” That killed one effort, but, encouraged by a legal opinion that their results were in the public domain, the epidemiologists tried again. Then the journal's publisher, Elsevier, decided against publication, whereupon a dozen other authors withdrew their own papers in protest (see the letter from IBM, p. [340][3]) Statements by the players in this case raise some interesting questions. IBM's attorney Robert Weber suggested that the testimony was flawed because it was “litigation-generated.” Is that so bad? Good research spawned by lawsuits has resolved some high-profile past cases. Judge Baines said the findings were irrelevant because no link between the mortality data and the workplace conditions was established. Epidemiologists for the defense might have made that argument more convincingly, but the judge took that issue right off the table. Finally, there's the well-worn claim by Weber that the epidemiological study is “junk science.” Could be, but it appears that we'll never know. Science works to correct its own mistakes; had this study been published, it could have been evaluated by other epidemiologists interested in this or similar health risks. The decisions to disallow the testimony and to shield the work behind a gag order may have served the cause of justice, but the scientific community and the public have been prevented from reaching their own conclusions about an important matter. Indeed, in view of IBM's scornful view of the study's quality, one wonders why they tried so hard to keep it out of sight. [1]: pending:yes [2]: /lookup/doi/10.1126/science.304.5673.937 [3]: /lookup/doi/10.1126/science.305.5682.340c