Junk Science, Junk Justice

Minutes

Vice-president Larry Millstein called the 2,238th meeting to order at 8:15 pm April 25, 2008 in the Powell Auditorium of the Cosmos Club. The minutes of the 2,237th meeting were read and approved despite an embarrassing lapse on the part of the recording secretary about the meeting count.

Mr. Millstein introduced the speaker of the evening, Robert Shaffer of the Library of Congress. Ms. Shaffer spoke on “Junk Science, Junk Justice.”

Ms. Shaffer started by discussing how she got interested in this topic. Joel Klein, formerly of Washington, DC, was appointed chancellor of the public schools of New York. He was not an educator in the usual sense. He established three goals for high school graduates: they should be able to fill out an easy tax form, they should be able to vote with some understanding of the issues, and they should be able to serve on a jury. Ms. Shaffer thought the jury duty was an interesting challenge; the subject matter in trials is often very complex. She wondered where science should come in in regard to trials. She said she usually does not even understand the science she reads in the newspaper. Also, the average person does not know the difference between a bacterium and a virus and the average mother does not know the age of children at which one should use Tylenol instead of aspirin.

In civil law, in the last 60 years or so, about 80% of cases involved science. An important factor is the test the court uses to determine admission of new, novel science. In the Frye case, in 1922, a five part standard was established: 1) Has the scientific theory or technique been tested empirically, and if it has, is it therefore derived from the science; 2) has it been peer reviewed and published; 3) what is the error rate; 4) what are the qualifications and stature of the experts; and 5) (the Frye rule) what is the general acceptance among professionals and practitioners. The 54 different jurisdictions in the U.S. have very different patterns of application of this five part test, although they generally use the five part test.

In the early 1990's, sentiment was strong for tort reform. Many were contending that tort risk was seriously harming the economy, causing fiber mills and steel mills to close, for example. A new court was started in the early 1990's to review litigation based on vaccines. This court, in early 2000, established a new test of admissibility called “plausibility”: whether there is a biologically plausible mechanism by which an alleged effect could occur. This has produced great concern about a flood of new litigation based only on plausibility. There was a case last winter in which the vaccine court granted relief based on the plausibility that mercury in vaccines could awaken a dormant nerve disease and cause autism in a young girl.

This is a substantial change in the landscape. At the same time, there have been a number of highly publicized cases where flaws in the science used in courts have been revealed. There has been a great politicization of science and a great privatization of science, so research may have monetary and other motives. She also mentioned a “halo effect,” a reluctance to look for faults in science and to just assume the best. Communities are not necessarily local any more. Best friends may not be physical neighbors.

On the positive side, we do have much more access to expertise. We have much better ability to crunch data. We have better ability to build on the best prior science.

What should be our legal policy regarding admissibility of science? Should we rely on the old rules? Are there new social factors that should change our position?

Science has now debunked fingerprinting and ballistics (not completely). Courts have accepted homeopathic medicine, computer simulation, brain mapping, DNA mapping, and forensic pathology.

The Koran says when there is a scientific evidence question, there should be a trial by the person’s professional peers. This is quite different from our tradition, which says jurors should be reasonable men (now including women) from the community.

There are science courts, expert jurors, precertified experts, and even private courts. One of the best known, in Williamsburg, Virginia, is Courtroom 21. People rent space and a judge and use the sophisticated technology such as holography to have their disputes settled. This takes decisions out of the courts.

Another development is the Adverse Event Database, a program of the United Nations designed to discover adverse effects of drugs. This database has focused attention on the potential risks of vaccines.

Ms. Shaffer invited discussion. She thought we were good enough to discuss this subject even though we have difficulty counting our meetings.

One person suggested the whole situation would be much different if there were less litigation. Ms. Shaffer pointed out that even in countries where they have far less litigation, like Japan, there is still, in their legal literature, great debate on admissibility issues.

There was discussion about lie detection. The result of the Frye case, actually, was that lie detector results have not been admissible as evidence. Lie detectors have generally been acknowledged as having about a 10% false positive rate. Now there are claims based on MRI (magnetic resonance imaging) that it is possible to know with certainty whether a person is lying.

The United States only joined the Adverse Effects Database recently. There were reasons not to join. The objectivity of the system is in doubt. There are many reasons people might not want to report cases. For example, nurses in some places can lose their licenses if they are involved with several adverse reactions.

Concern was expressed about trying to take too much risk out of the medical system. Low tolerance for risk results in risky drugs not being available and long delays in approval of safe drugs. Ms. Shaffer pointed out that better science education of citizens would enable them to better decide which risks to take.

Finally, another commenter observed that certainty is far from a universal hallmark of science. In fact, uncertainty is one of the driving forces of science. On the question of global warming, for example, many would like to say that certainty has been achieved, but there are scientists asking questions and challenging popular positions.

After the talk, Mr. Millstein presented a plaque to Ms. Shaffer commemorating the occasion. He made the parking announcement. He encouraged contributions and support.

The 2008 Joseph Henry Lecture was announced by Eugenie Mielczarek. The speaker, Abul Hassam, won the prestigious, munificent Grainger Challenge Prize for developing an inexpensive, effective arsenic filter for drinking water. Mr. Hassam’s colleagues at George Mason University chipped in to raise the $10,000 fee to nominate him for the Grainger.

Finally, at 9:50 pm, Mr. Millstein adjourned the 2,238 meeting th to the social hour.

Attendance: 54
The weather: Mild
The temperature: 15°C
Respectfully submitted,

Ronald O. Hietala,
Recording secretary