JUNK SCHOLARSHIP IN SEARCH OF JUNK SCIENCE

by: William F. Gallagher

Peter Huber, widely regarded as the nation's "top guru" on "tort reform," published in 1991 Galileo's Revenge: Junk Science in the Courtroom. In Galileo's Retort: Peter Huber's Junk Scholarship, 42 Am. Univ. Law Rev. 1637 (Summer 1993) Kenneth J. Chesebro exhaustively reviews Huber's book and concludes:

In 90 pages of exegesis Chesebro examines Huber's dubious use of facts, the endless repetition of anecdotal horror stories, and conclusory assertions without empirical substantiation. The factual distortions are mind boggling. They would likely trigger Rule 11 sanctions if done in federal court. Indeed, they would embarrass a high school senior.

Huber is an engineering PhD who served as an instructor at the Massachusetts Institute of Technology, graduated summa cum laude from Harvard Law School, and clerked on the United State Supreme Court for Justice O'Connor. He is a senior fellow at the Manhattan Institute for Policy Research. The fellowship pays well. As senior fellow, Huber is one of three professional employees of the Judicial Studies Program slated to split 500,000 in 1993 in salaries and benefits.

Vice President Dan Quayle excoriated lawyers for allegedly burdening the American economy with $80 billion a year in direct costs, and more than $300 billion a year in indirect costs. Mr. Quayle derived his estimates from a single source: Huber's 1988 book, Liability : The Legal Revolution and its Consequences. Mr. Chesebro quotes Professor Mark Galanter, who observed with reference to Quayle's $80 million and $300 million figures, that Peter Huber "made them up."

Central to Huber's entire argument is the factual assertion that "junk science verdicts, once rare, are now common." Huber cites no facts, no statistics, no hard evidence and no authorities for this proposition. He does not even attempt to build an empirical case of his own to demonstrate the significance of the problem. Not only are there no studies that support Huber's view, but a recent report by the Carnegie Commission on Science, Technology, and Government concluded that, as for the allegations that "junk science" is flooding the courtroom, "many of the concerns are greatly exaggerated" and "it does not appear that the federal courts are being inundated with fringe science." Id. at 1653.

Unable to cite any statistical measures to prove that junk science verdicts are "common," Huber devotes the middle seven chapters of Galileo's Revenge to loose case studies of supposed junk science.

For example, Huber assails what he calls the "cancer-by-pothole" theory of causation, - the notion that cancer can be caused by some sort of physical trauma. Huber highlights forty cases as examples of "cancer-by-pothole." However, in ten of these forty cases juries and judges did exactly what Huber thinks they ought to do in every case - they rejected the plaintiff's claims. That leaves 30 cases. The difficulty with the remaining 30 cases is their timeworn status. With the exception of 3 cases, every case that Huber mocks as a exemplary of pseudo science running riot in our modern age predates the 1974 Mayo Clinic study that Huber himself cites as a definitive on whether cancer can be induced, spread or accelerated by trauma. George R. Monkman, et al, Trauma and Oncogenesis, 49 Mayo Clinic Proc. 157 (1974). Of the three remaining cases, none dealt with "cancer-by-pothole." Rather, they all dealt with the spread of malignant tumors as a result of trauma, a conclusion that the Mayo Clinic experts agreed with.

Huber's treatment of the cerebral palsy cases would embarrass even a first year law student. He argues that obstetric malpractice accounts for a negligible number of cerebral palsy cases, and consequently most suits brought by plaintiffs that allege medical malpractice as the cause of infant cerebral palsy are frivolous, and efforts to reduce cerebral palsy by improving obstetrical care are nothing more than a cruel and expensive hoax. Huber asserts that most cerebral palsy babies are doomed long before an obstetrician comes near them. His argument relies most heavily on an article appearing in 1986 in the New England Journal of Medicine, Karin B. Nelson and Jonas H. Ellenberg, Antecedents of Cerebral Palsy: Multivariate Analysis of Risk, 315 New Eng. J. Med. 81 (1986). Huber claims that this study brings to a definitive end the century long debate over the causes of cerebral palsy.

However, Huber fails to inform the reader that the editors of the New England Journal of Medicine, in the very issue that published the Nelson and Ellenberg article, noted significant analytical flaws in the article. In an unusual step, the editors paired the publication of the Nelson and Ellenberg study, which they obviously regarded as provocative, with their own critique of the article's underlying analytical premise. The author of the editorial, Dr. Nigel Paneth, of Columbia University College of Physicians and Surgeons, stated concern that the methods used by Nelson and Ellenberg could have obscured the asphyxia. Birth and the Origins of Cerebral Palsy, 315 New Eng. J. Med. 124, 125 (1986). Dr. Paneth criticized Nelson and Ellenberg's study for confounding prediction with cause: the fact that certain pre-birth conditions unrelated to delivery may predict cerebral palsy does not mean that physicians cannot overcome these problems through state of the art birth procedures that can ensure a healthy baby. Thus, failure to use these procedures may constitute a proximate cause of cerebral palsy.

Moreover, Huber fails to acknowledge that one of the co-authors of the Nelson and Ellenberg study essentially recanted her conclusion two years later. See, Karen B. Nelson, What Proportion of Cerebral Palsy is Related to Birth Asphyxia? 112 J. Pediatrics 572, 573 (1988). Huber's failure to even apprise the reader of either Dr. Paneth's editorial or Nelson's disavowal of her earlier study is incomprehensible. If he did it in a Connecticut court, he would probably end up before the grievance committee. Huber can hardly claim inadvertence. He was well aware of both the editorial criticism and the Nelson recantation because he cited both sources earlier in his chapter as background on the problem of cerebral palsy.

Huber's criticism of the $5.1 million award for spermicide caused birth defects in Wells v. Ortho Pharmaceutical Corp., 615 F.Supp. 262 (N.D. Ga. 1985), affirmed, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986) is even a worse example of junk scholarship. He presents the case as a dramatic example of junk science at work, where a credulous jury is persuaded to render a "spectacular verdict" based on a single, tentative medical study, after which the authors of that study react in horror, confessing that the study was unsupported, inadequate, and should have been left unpublished.

An examination of the Wells case reveals flagrant errors. First, contrary to Huber's efforts to imply that the Wells case illustrates a bamboozled, runaway jury resulting in a spectacular $5.1 million verdict, the parties in that case in fact waived their right to jury. It was decided by a federal district court judge who issued a 28 page opinion analyzing all the evidence and specifically concluding that the plaintiffs presented competent and credible medical and scientific evidence.

Second, Huber suggests that the award was handed out largely on the strength of a single study. Twenty-one studies were submitted into evidence, 10 by the plaintiff and 11 by the defendant. The district judge indicated that he was favorably impressed by four of the studies cited by the plaintiff's expert, but that he did not need to consider them as substantive evidence.

Third, Huber claimed that all of the "several authors" of one study later repudiated their conclusions. This is not true. The study had nine authors. Two authors expressed misgivings about the study. Three other authors sharply criticized one author who had criticized the study. This author had testified as a paid expert for the defendant in the Wells case, and was criticized by his colleagues for being an advocate rather than a scientist. Huber cannot claim that he inadvertently overlooked the rejoinder written by these three authors. Their joint letter appears on the same page of the same medical journal as the criticisms quoted by Huber. One "repudiating" author, Dr. Richard Watkins, was found by the district court judge as "not credible." The judge further noted that it was "perplexing that a physician would risk his professional reputation by signing his name to a study about which he had serious reservations," as Watkins claimed he did at the time of the study, and finding it suspicious that Watkins had waited four years, until he was a paid expert witness in court, to express these misgivings. Wells v. Ortho Pharmaceutical Corp., supra, 615 F.Supp. at 282.

Chesebro concludes (Id. at 1722):

"A lie can be halfway round the world before the truth has got its boots on." In the case of Galileo's Revenge, the massive promotion of the book and its author by the Manhattan Institute have fast outrun the flaws in the book and have long obscured the lack of merit in its analysis. Unlike the typical nonfiction book on policy issues that legitimately succeeds with a core synthesis of careful research and reporting of facts, the prominence of Galileo's Revenge springs chiefly from the perceived scholarly credentials of its author and the marketing of both the author and the book by the Manhattan Institute. The analysis in the book itself is mostly smoke and mirrors. Although best-selling books on policy issues in the legal arena and elsewhere often draw their share of critics who dispute the premises, logic, and conclusions of the arguments made, there are few cases in which readers who take the care to check the details are led to doubt the fundamental integrity of the book or of the author. Galileo's Revenge is one of these unfortunate cases . . . (footnote omitted).