We are now viewing a reassessment of the qualifications for, and the role of, the “expert” witness in our court system. Society and the courts appear to have finally had their fill of “junk science”, poor testimony and unqualified experts providing evidence. Judges have now begun to appoint independent experts and technical advisors to review the merits of the issues and advise the court regarding the relevance and reliability of the information being presented. In addition an “expert’s ” credentials are being subject to greater scrutiny.
Hopefully, the advent of “junk” science has reached its zenith. The public and the ethical medical industry in the United States have been “suckered” all too long by poor science and poor law. It is fair however, to observe that “you can’t be suckered unless you allow yourself to be suckered.” The point is that we have all paid a high price for this behavior. Medical devices and pharmaceuticals have long been the favorite targets of litigations often on the basis of only flimsy claims. From the Burton Experience this chain of events seems to have started in the early 1970s, in the contrived effort to justify the need for medical device legislation. At that time the high failure rate of cardiac pacemakers was seized upon as the reason to regulate all medical devices. The fact that the United States’ technology in this area was the best in the world at that time and that patients receiving the device had little chance of survival without it was not a consideration. When the Medical Device Amendments reflecting the influence of Senator Paul Rogers (Florida) were passed the Congress made clear that the intent of the legislation was not to “regulate the practice of medicine” (readers of this material also need also be aware that when the United States government first issued social security numbers and cards they were specifically stated to be “not for the purpose of identification”).
This “modus operandi” of creating or skewing “science” to justify the passage of legislation has led to the creation of a great deal of “funny science” as well as considerable amounts of legislation created on the basis of self-interest.
Open season on the device and pharmaceutical industry has been evidenced by the bankruptcy of Dow Chemical as a result of a myriad of silicone breast implant cases (in 1998 Dow Corning settled about 1,700 suits; the cost?..$3.2 billion). The same phenomenon has caused the expenditure of millions of dollars in senseless litigation based upon the informed consent issues relating to pedicle screw spinal implants. Since 1993 7,000 plaintiffs have filed suits in regard to pedicle screw implants. The list of abuse is long, but distinguished, and includes issues such as intra-uterine devices, brain cancer from cellular phones, murderous rages resulting from ingestion of the sleep medication halcion, and even the supposed toxicity of phthalate plastic in children’s toys. How much has been drained from our medical care system because of fallacious “science”being represented to the court by “expert witnesses”? How long can we tolerate a tort system representing torts which have run amuck?
One needs only to view the successful litigation against McDonalds by a woman who, as a car passenger, spilled coffee held between her legs while the vehicle was stationary to appreciate the reasons why our courtrooms are clogged with frivolous lawsuits. Has taking
responsibility in our society been totally replaced by an entitlement to compensation for any unpleasantness in life?
Today’s “high-tech” world has not been matched with high-tech judges and juries. Judges and juries have been given the unenviable task of being elected to be modern versions of the Greek philosopher Diogenes (circa 300 BC) searching for a “honest man.” They are given the challenge of sorting out a myriad of information being provided by persuasive lawyers and “experts” and then often deciding the issues on emotions and passions, rather than on scientific facts.
In the 1933 Daubert v. Merrell-Dow Pharmaceuticals case the Supreme Court in the United States began treading the needle of integrity by requiring that scientific testimony rest on a reliable foundation and must be relevant to the issues under consideration. Only recently however has the court begun to use the services of unbiased consultants and panels a means of guiding the court in better determining the merit of medical and technical claims.
As efforts continue in the attempt to bring integrity into the courtroom there have also been well intentioned, but misguided, proposals to allow only “mainstream” thinking into the court’s deliberations. The requirement that testimony be based on a “litmus test” of being “mainstream” is a potentially disastrous folly.
For over two thousand years in medicine the “mainstream” of thinking was Galen of Pergamun’s textbook of medicine. Not only was it “mainstream” it was generally agreed, until the Renaissance in the 13th century, that there existed nothing else worth knowing. When the Galenic period ended the “golden age of medicine” began. The renaissance in medical thinking has continued to the present day. Are we now to return to a Jurassic Park? Did Einstein’s equation E=MC2 represent “mainstream” thinking?
On the other hand “good” science often receives short shrift and thus but little exposure. This is due, in some cases, to deliberate efforts to confuse or obfuscate information. The effect on the population’s health of smoking cigarettes represents a good example of this phenomenon. For 35 year the tobacco industry in the United States maintained (at times under oath) that smoking was not addictive and not clearly associated with the health hazards of cancer, heart disease, emphysema and other disabilities. A great deal of effort to undermine good scientific studies demonstrating this connection was made. In October, 1999 the tobacco industry finally admitted that these connections were true and that this had been known for quite some time. On July 14, 2000 a Florida, United States, jury meted out a stunning $144.8 billion punitive award to the tobacco industry based on the jury’s anger with what they perceived as “lies and misrepresentation.”
The case of tobacco is not unique. Other examples of similar serious public health problems which have been accorded only minimal attention are:
The adverse effects of radioactive substances (i.e. thorium dioxide
used for myelography in the 1920-30s producing malignant tumors of the nervous system).
The adverse effects of toxic chemicals (i.e. iophendylate [pantopaque® and myodil®]) used routinely for myelography in approximately 28 million patients from the 1940-80s.
The potentially adverse effects of toxic chemicals (i.e. ethylene glycol [depo-medrol®, depo-medrone®, methylprednisolone suspension]) presently being used in routine epidural steroid injections.
The adverse effects of toxic aerosol substances (i.e. dioxins, defoliants such as agent orange, etc.) is also on the list but is just beginning to receive meaningful attention.
In the area of spine care the providing of good information is particularly hindered by the inherent difficulties obtained in attempting to objectively measure the anatomic, pathologic and physiologic aspects of the normal, as well as, the diseased spine and its associated neurologic structures. This reality makes it a challenging task which is easily thwarted. The level of difficulty in obtaining tangible information regarding the spine is particularly great when it is compared to organ systems such as the heart or eye where the difference between normal and abnormal can be accurately determined by many objectively measured parameters.
There is nothing inherently wrong with the presentation of “mainstream” thinking. The problem exists when only “mainstream” information is permitted in the courtroom. In addition to the challenge of determining what is “mainstream” the prohibition of other points of view excludes credible “expert” witnesses from providing other important and meaningful information. Credible consultants should always be given the attention, respect and consideration of the court and the jury.
Clearly tort reform is needed to address these concerns. This Report contains many suggestions which relate to improving the system. One of the giant steps forward will be that of placing some degrees of financial responsibility on those who bring, and then lose, court cases. Even though, as it is clear, the “good guys” don’t always win in court.