Angell, Marcia. "Trial by Science," New York Times, 9 December 1998, p. A29.

 

Angell, Marcia. "Trial by Science," New York Times, 9 December 1998, p. A29.

BOSTON. It's official. A panel of four scientists appointed by the judge who oversees all breast
implant litigation in the Federal courts announced last week that the scientific evidence so far has
failed to link breast implants with immune disorders.

That did not surprise scientist familiar with the issue. Implants sometimes leak or rupture,
causing scarring in the breast, but there never was any credible evidence that silicone breast
implants cause disease in the rest of the body. Yet over the past decade, litigation based on the
possibility that breast implants cause immune disorders has dwarfed even asbestos lawsuits in the
number of claimants and the amount awarded in damages.

Yes, there have been plenty of reports of women with breast implants who became ill. But it is
necessary to figure out if the connection is coincidental. About a million American women have
breast implants. A similar number of women in the general population are known to have some
type of immune disorder, like rheumatoid arthritis or lupus. If we assume that there are 100
million adult women in the United States then by coincidence alone about 10,000 of them will
have both breast implants and an immune disorder.

To find out whether the claimed connection was more than coincidental, a score of epidemiologic
studies compared women with breast implants to women without implants. Not one has shown
that women with implants are more likely to get sick than other women.

So why the disconnect between science and the justice system? One problem is the way experts
are used in courts. Product liability cases often involve disputes over matters of biological fact,
like whether breast implants cause disease. Experts are hired by lawyers on both sides to present
their opinions. But they are not required to cite scientific evidence - a vague reference to their
own "experience" or "unpublished research" will often do - and they are virtually certain to try to
buttress the claims of the lawyers who hired them, no matter how far-fetched.

Juries rely heavily on expert testimony in these cases. Federal judges are supposed to screen out
testimony that is not reliable and relevant before it is admitted into court. But judges are not
trained to evaluate scientific testimony and tend to allow the airing of unsubstantiated opinions
rather than risk excluding well-founded opinions.

That is why the appointment of a panel of scientists by Judge Sam C. Pointer Jr., who oversees
breast implant cases in Federal courts, was so important. The four panelists were experts in fields
related to silicone and immune disorders. Since they were hired by the court instead of by
opposing lawyers, they had no stake in the outcome. Most important, they studied all the relevant
published research and questioned expert witnesses chosen by both sides.

The implications of the report will reach beyond the breast implant controversy. Courts trying
technical cases have become a hotbed of Junk science, and the inconsistent and capricious jury
verdicts that result often have more to do with the theatrical talents of the lawyers and expert
witnesses than with the facts.
As class-action lawsuits become increasingly common, Judge Pointer's appointment of a
dispassionate panel of experts to evaluate the strength of the scientific evidence is a model more
courts should follow.

- - - - - - - - - Marcia Angell, the executive editor of The New England Journal of Medicine, is
the author of "Science on Trial," about breast implant cases.