The High Price of the Lawsuit Lottery

0 Comments | Insight on the News, Feb 15, 1999 | by Suzanne Fields

You leave the movie with tears in your eyes, listening to the echo of parents describing the children they've lost to leukemia. Their lament pierces the heart with cries and whispers of outrage.

You also leave the movie cheering the courage of a single lawyer who lost everything in trying to establish the guilt of two rich corporations responsible for polluting water with a carcinogen these children drank.

And you leave the movie filled with deep anger at the rich and greedy who grow fat at the expense of the environment and our children.

The movie, A Civil Action, is based on a true story taken from a best-selling book by Jonathan Harr. It stars John Travolta as the lawyer who pushes the audience to believe that the chemical trichloroethylene, or TCE, in the water the eight children drank in Woburn, Mass., killed them.

But the emotions this movie manipulates are just that, manipulated emotions. The movie appeals to sentiment, not sense, elevating feeling over evidence. In the rush to place blame, the lawyer insinuates rather than documents, citing a cause-and-effect connection between TCE and leukemia which is not validated by any data.

We crave closure in art -- poetic justice, if not legal justice -- and that's fine in fiction. But when a story is based on real life rather than artistic development, a lie takes on the life of truth. (Plato knew what he was talking about when he said he didn't want poets in his ideal state.) At best, TCE is only a "probable" carcinogen.

So we can blame the writers and movie directors for misleading us on this one, even though they developed their theme around a true story about a lawyer who became imbued with his own self-righteousness and confused fact with fiction. He started with the intent to make big bucks and went broke in the process.

But many lawyers get rich on bad science. You could look at those who sued the manufacturers of breast implants. A panel of four scientists appointed by a federal judge who oversees breast-implant litigation in the federal courts recently concluded there is no reason to believe that breast implants cause disease of any kind. More than 20 studies support that conclusion.

But that's after four manufacturers shelled out $4.25 billion in claims and Dow Corning ultimately went bankrupt. That's also after seven years have passed since the Food and Drug Administration banned implants for lack of research and no woman who suffered the tragedy of breast cancer could get the implants unless she participated in clinical research.

Lawyers knew they could draw on public sentiment in Massachusetts to demonize the corporations as made up of rich, greedy men who took pleasure in making money exploiting the vanity of women who imagined that with the help of a little plastic they could look like Marilyn Monroe, or at least more like Marilyn Monroe. Allegations over hurt, pain and suffering based on superficial anecdotes brought huge sums of money to lawyers and plaintiffs even though there was no conclusive evidence to prove what caused the hurt, pain and suffering. There certainly was no disease. The implants had been on the market for 30 years, had been implanted in at least 1 million women and polls indicated that more than 90 percent of the women were comfortable with them.

Marcia Angell, author of Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case, cites other victims of bad law and bad science, including all those worried women who believed the worst and ran to doctors to have their breast implants removed.

With evidence no longer necessary to collect damages in this Alice in Wonderland scenario of "conviction first, evidence later" many other manufacturers who use silicone in medical devices were scared off. They didn't think it was worth the risk of litigation for them to continue making penile implants, finger joints, heart valves, pacemaker wires, dialysis tubing and hydrocephalus shunts for infants. Some of them already faced mass litigation. Suppliers of other raw materials became frightened of being sued, too.

Research scientists in controversial fields also fell victim to litigation fever. Who wants to do scientific experiments if you can be hauled into court, harassed with subpoenas and threatened with the loss of clinical confidentiality?

Lawyers who rely on scientific witnesses for their testimony increasingly choose experts who have minimal scientific credentials but who are skillful at winning over juries, persuading them through a consummate performance rather than expertise or knowledge. These "experts" are rehearsed by the lawyers, know what's expected of them and earn high fees in advance. It would make more sense to nominate them for an Academy Award than make them responsible for helping to win a damage award.

"What we saw in the breast-implant story was an almost willful disdain for the evidence" writes Angell. "People were making their decisions on the basis of opinion, political positions and financial incentives."