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Driving Junk Science From the Courts : GALILEO’S REVENGE: Junk Science in the Courtroom, <i> by Peter W. Huber,</i> Basic Books, $22.95, 304 pages

SPECIAL TO THE TIMES

A lawyer recently asked if I knew “why researchers had begun using lawyers instead of laboratory rats?” Why? “Because there are so many of them, they are predictable and there are some things rats just won’t do.”

Rats, for instance, would not risk the public health by accusing the whooping cough vaccine of causing brain damage after 30 years of epidemiological studies have shown it to be safe. Lawyers did.

Unscrupulous lawyers are a cliche, and everybody hates them, especially other lawyers.

Peter W. Huber is an anti-lawyer lawyer, and his “Galileo’s Revenge,” ostensibly about schlock science, is really an attack on a trendy school of legal theory that, Huber argues, allows lawyers to twist bad science to their will.

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Huber presents a lively history of how courts have tried to come to grips with sophisticated medicine and technology. We learn that expert witnesses originally testified on behalf of the court itself until, in the early 20th Century, they began to be hired and paid by the contesting parties.

The caliber of an expert was defined in 1923 in Frye v. the United States. The Frye rule, which said that an expert was someone whose testimony was founded on theories, methods and procedures “generally accepted” as valid among other scientists in the same field, dominated the American courtroom for 50 years.

But even this expert testimony wasn’t always believed. In 1942, for example, a woman filed a paternity suit against Charlie Chaplin. Experts testified that blood tests showed Chaplin could not have been the father of her child, but the court ruled that he was and ordered him to pay support.

Since the mid-'70s, Huber tells us, the Frye rule has been largely set aside. Under the new theory of “liability science,” anyone is an expert--including fringe scientists.

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“Galileo’s Revenge” is full of horror stories of junk science testimony that has been accepted in courts, destroying careers and distorting the market place. Charlatans masquerading as modern Galileos--misunderstood geniuses who see wonders where no one else can--have bamboozled juries, leaving the public the big loser.

Remember the aggressive Audi--a car reputed to be so computerized that from time to time it went crazy and accelerated suddenly, causing death and injury? What started out as a few complaints went national on “60 Minutes” in 1986. After that, it was all downhill for Audi. No evidence of a mechanical defect was ever found, but sales declined drastically. After three years--too late--the NHTSA concluded that the drivers probably had their feet on the wrong pedals.

Or take Bendectin. Developed by Merrell laboratories, the drug alleviated severe morning sickness. Like thalidomide, it was used in the first trimester of pregnancy. Then in 1980, a Florida mother sued Merrell, asserting that her son, born with malformed arms, was a victim of the teratological effects of Bendectin.

Other law suits followed, but no connection was found between the drug and birth defects. Nevertheless, Merrell took it off the market. Like Audi, Merrell was eventually vindicated, but today there are no medications available for morning sickness.

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“Nauseated?” says a chemist. “See your lawyer.”

Huber is very convincing when he describes the histories and techniques of the lawyers who exploited these cases. Their “experts” scrupulously avoid using all scientific evidence such as quantifiable data, controlled tests or publication in peer-reviewed journals.

He is less convincing when he discusses other products, for instance, the Dalkon Shield, an intrauterine birth control device that turned out to be an incubator for bacteria.

Huber maintains that the sexual revolution increased the number of some women’s sex partners and that the shields became wicks for venereal diseases. But he does not explain that with another kind of birth control, including other IUDs, these women would have been less likely to develop the pelvic inflammatory diseases that left them sterile.

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It is too bad that Huber does not dwell on instances where products--like asbestos, like the Dalkon Shield--have been truly injurious, and the courts a venue for justice. All issues are not black and white.

It is also too bad that he never suggests that a citizenry--jurors, judges and lawyers--better educated in science might not be so easily duped by frauds.

Pleading for a return to Frye standards, or even court-appointed experts, Huber argues that “the rule of law is a completely empty promise if key facts are infinitely plastic, and if there is no external and immutable reality.”

I don’t see how anyone can disagree with that.

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Next: Jonathan Kirsch reviews “From the Ground Up: The Business of Building in the Age of Money,” by Douglas Frantz (Henry Holt).


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