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Detox for Torts (Part II) - September 2003

The Networker
I. Editor's Note: Old Europe Is At It Again Carolyn Raffensperger
II. Detox for Torts: How to Bring Justice Back to the Tort System - Part II Carolyn Raffensperger and Nancy Myers
  I. Editor's Note - Old Europe Is At It Again TOP
By Carolyn Raffensperger Old Europe is at it again. Challenging the U.S.'s "pollute first and ask questions later" approach to toxic chemicals, the European Union is close to establishing a policy that requires testing of all chemicals. This policy is known as REACH -- Registration, Evaluation and Authorization of Chemicals. If finalized this fall, manufacturers will have to complete testing of chemicals by 2012. Much ado has been made about the cost of testing. The Bush administration has lined up solidly in opposition to requiring companies to test their products before unleashing them on an unsuspecting public (Sept. 9, 2003 Wall Street Journal).But the European approach could actually solve a thorny problem in the US courts. The problem is that when a company hasn't tested its chemical, it is extremely difficult for an injured person to get justice through the courts.

As discussed in the last Networker, chemical companies are strongly motivated by the fear of liability and so practice a government-condoned policy of "don't ask, don't tell." If a company hasn't bothered to test a chemical and someone is injured, there is no science to bring before the court so justice can be done. Consequently, the courts do not function well in the judicial area called toxic torts.

A tort is a kind of lawsuit in which it is asserted that the defendant had a duty and breached that duty. An injury resulted from that breach for which the court can provide a remedy.

Legal scholar Margaret Berger and philosopher Carl Cranor have urged that the United States adopt a program similar to REACH as a way to solve this problem. The logic is that if a company has not tested its chemical, it has breached a duty for which it can be sued, particularly if someone has been, or may have been, injured. In the absence of testing, an injured plaintiff should not be required to produce the science -- that's the company's responsibility. If the company has tested the chemical, then the standard court tort process can take place and the jury can decide if the chemical caused the plaintiff's injury.

This Networker publishes the second half of a SEHN white paper on the courts. In this half we continue to describe the systemic problems found in the courts and then outline several visionary ways of ensuring that we have a court system that can address the technologies and chemical lawsuits of the 21st century.

Download the entire white paper in MS Word format.



  II. Detox for Torts: How to Bring Justice Back to the Tort System - Part II TOP
By Carolyn Raffensperger and Nancy Myers

Protective Orders Deny Right To Know Few tort cases run the full course of a trial. Many are adjudicated in summary judgments or settled before a verdict is reached. In many of these cases, protective orders are issued, which seal from public scrutiny parts or all of the pretrial proceedings and sometimes evidence presented in trial. Judges issue these orders with the agreement of all parties. They are designed to balance the liberal right of discovery afforded under modern court proceedings--that is, plaintiffs and defendants have wide latitude in compelling all relevant information to be produced in pretrial discovery.Defendants often insist on secrecy as a condition of the settlement, and plaintiffs and judges usually consent. Often, plaintiffs agree to orders that put a lock on information damaging to the defendant in exchange for a substantial settlement.

Some cases involve a massive volume of documents. It is common in these circumstances for the judge to issue a blanket or umbrella protective order that seals all documents. These may be challenged document by document, by the opposing party. However, a lawyer making a similar case in the future has no access to documents that remain sealed.

Protective orders may serve all parties in a case. Lawyers for plaintiffs have a duty to get the best possible settlement for their clients, and this often means accepting protective orders that keep them or their clients from revealing evidence damaging to the defendant. When protective orders are used indiscriminately, however, the larger public suffers. Others who might have been harmed, or may be in the future, have no access to this important information.

For example, protective orders were issued in a number of cases involving sexual abuse of children by priests. Victims agreed to keep silent and the abuse continued. Each new case had to be built from the ground up. The larger patterns of abuse did not emerge until victims began to speak out.

Matters that affect public health, the environment, and the public good are different from narrow cases of personal injury or wrong. The real losers are other victims who are not parties to the case in which a protective order was issued. Protective orders may interfere with the court's power to prevent further wrongdoing. They raise barriers to justice for plaintiffs in related cases by making pertinent evidence unavailable to them. Protective orders do not protect the public.

Are Court-appointed Experts the Answer? The 1993 Supreme Court Daubert ruling encouraged judges to sift evidence and experts in order to prevent questionable scientific testimony from being presented to juries. This has given new impetus to a practice used only rarely in the past--the appointment of experts to advise judges directly, especially in highly technical cases. The laudable intent of the mandate is to keep bad science from juries, streamline trials, and settle out of court more cases in which the science is clear.

The Supreme Court in General Electric Company v. Joiner (1997), which clarified Daubert, encouraged judges to use independent scientists to help evaluate the methods and credibility of the trial lawyers' scientific witnesses. Justice Stephen Breyer, in his Joiner concurrence, quoted from the New England Journal of Medicine's amici brief: "[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority . . . to appoint experts. . . . Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science."

In 1998 AAAS began a $1.2 million project to identify qualified scientific experts and serve as a clearinghouse for judges in need of scientific and technical expertise. To date, AAAS has provided referrals in 8 cases, most of which settled before trial. Litigants pay the expenses of the court-appointed experts. The Private Adjudication Center at Duke University also provides experts to courts. Over the past 20 years, science experts have been used by judges in various cases ranging from abortion rights, patenting, and genetic engineering to, perhaps most famously, silicone breast implants.

The court-appointed science expert system reflects the notion that science is neutral, and that the facts can be found if left to trained, rational experts and not muddied by the messy, adversarial legal process. As Sheila Jasanoff points out, however, "Scientific claims, especially those that are implicated in legal controversies, are highly contested, contingent on particular localized circumstances, and freighted with buried presumptions about the social world in which they are deployed." One reason these claims are contested is that often the science is emerging and still uncertain. The lawsuit may be one of the first public indications of trouble. Little peer-reviewed literature or research in the area may be available. Available evidence may be based on good science yet still be inconclusive and conflicting.

Most, if not all, toxic torts fall into Jasanoff's contested area. A court-appointed expert is more likely to be versed in current theory, not emerging science that contradicts it. The scientist is naturally reluctant to pronounce "proof" in a controversial area. And if "proof" is based on the fulfillment of certain criteria, it may be impossible to pronounce proof, even though there is more than a hint of causation. This builds in an error of bias toward defendants in toxic tort cases.

The breast-implant case is an example. In 1996 US District Court Judge Sam C. Pointer, Jr., appointed four science masters to evaluate the science behind the claims of systemic illness resulting from silicone breast implants. The independent panel reported in 1998 that it could find no scientific evidence that breast implants caused immune system illnesses. Their testimony was videotaped and is admissible in future implant litigation brought before the federal court. But little is known about immune system function and disruption following exposure to silicone. The experts demonstrated that there was an absence of evidence but they did not prove or disprove causation. Here is what the panel actually said in its summary:

The evaluation of immunologic responses to silicone breast implants in humans faces significant challenges. There are large numbers of diverse immunologic responses that may be evoked in humans, whether the subjects are healthy or ill, for which the biological meaning and clinical interpretation is uncertain. Furthermore, many of the studies available for analysis are methodologically inadequate with ill-defined or inappropriate comparison subjects, unorthodox data analyses, and the potential for systematic biases in laboratory methods. . . . Not surprisingly, inconsistent results in studies purporting to evaluate the same immunologic parameter are common.

Another reason that science experts are a dicey proposition is that impartial scientists are almost impossible to find, as science is increasingly dominated by corporate financing. The New England Journal of Medicine (which advocated court-appointed experts) has changed its conflict-of-interest policy to permit reviewers of drugs to have received up to $10,000 a year from the company in question. The reason the journal gave was that not enough conflict-free scientists could be found. It will be just as hard to find independent court experts.

Finally, permitting a scientist to advise the judge, particularly in pretrial Daubert hearings, undermines the fundamentally democratic function of the jury. Even Justice Breyer, while championing the use of court-appointed experts, has wondered whether they might "improperly intrude on the proper function of the jury." The Association of Trial Lawyers of America goes a step further in its opposition to court-appointed experts, arguing that the large body of evidence demonstrates that judges and juries are fully capable of winnowing bad science from good science. This is even truer when the court must sort through scientific uncertainties and the buried presumptions about the social world in which a technology or chemical is deployed.

Money and Judges "Judicial candidates should not be political candidates in the traditional sense," declares the bipartisan Constitution Project. "Political candidates are expected to represent the interests of a geographically defined group of people. They are expected to be partisan and favor a political party and certain interest groups. As a qualification for election, voters expect them to declare in advance their positions on controversial public policy issues. . . . Judges do not, or at least they should not, do any of these things. They do not represent constituents. They represent the law. Their decisions must be based upon an informed and good faith interpretation of the law and the Constitution, not popular opinion or special interests."

Nevertheless, politics plays an important role in the judicial system. If judges are appointed, as they are on the federal level and in a few states, those with the power to appoint are strongly tempted to favor judges who reflect their own ideology. Single-party control of the White House and Congress all but guarantees, for example, that federal judges appointed during that period will have a certain point of view.

But electing judges makes room for a different kind of influence, the power of money. In the 42 states that elect judges, money is pouring into these campaigns. Special-interest money in judicial elections exceeded $45 million nationally in 2000--a 61 percent increase in just two years. The money is coming from business interests and is closely linked to litmus tests of judicial candidates' views.

For example, in Louisiana, a business alliance has helped to seat at least three pro-business judges on the state supreme court since 1994. As a result, a state with egregious environmental problems no longer has an impartial court willing to hold corporate polluters accountable, as several recent rulings have demonstrated.

Financing for judicial campaigns may introduce serious conflicts of interest. Judges who have been elected with corporate money are deciding environmental and health cases that challenge the same corporate interests.

A Rapid Shift Just 12 years ago, an article in the Pennsylvania Law Review ("Risks, Courts, and Agencies," 1990), asked whether US society maintained an optimal balance of public risk and safety and concluded that it did. In tort law, according to the article, plaintiffs faced an access problem, but once into the legal system they fared rather well. It was also hard for the public to get access to regulatory agencies, which thought about risk in technical ways and probably did not do enough to regulate risks, but federal judges were available as a corrective.

Things are vastly different now, according to legal scholar Carl Cranor. Not only are regulatory agencies losing control of risk management; but tort law in the last decade has also erected many hurdles to plaintiffs. Moreover, it operates in the postmarket context, where science is easily subjected to doubt, and this favors the status quo.

Genuine Tort Reform Moves are already underway to correct some of the abuses that contribute to this imbalance of justice. Others will require deeper, systemic changes. Here are the outlines of some possible solutions and issues for vigorous public debate:

Sunshine In The Courts - Limit Protective Orders.

Some states, Florida and Texas, for example, have passed sunshine laws that prohibit protective orders from concealing documents that relate to public health and safety.

End Litmus Tests For Judges; Curb Financial Influence.

In August 2002, North Carolina introduced the Judicial Campaign Reform Act, which mandates using public money to pay for appellate and supreme court races in that state. Illinois, Ohio, Texas, and Wisconsin may also initiate judicial campaign finance reform. Minnesota has barred judicial candidates from announcing their views on disputed legal and political issues, but the U.S. Supreme Court, by a 5­4 vote, found that such a prohibition violated the First Amendment.

The American Bar Association has appointed a blue-ribbon commission to "identify a better way for states to conduct judicial elections." Alfred P. Carlton Jr., incoming president of the ABA, said, "We must defuse the escalating partisan battle over America's courts. Millions of dollars are being spent to 'control' courts in some states much the same way political parties control legislative and executive branches of government." Carlton went on to say, "The challenge is to find a way for states that want to continue to elect judges to allow judicial candidates to freely express themselves on political issues in a way that does not compromise their impartiality once they are on the bench."

Correct Abuses And Misapprehensions Of Science.

In the spring of 2002, the American Law Institute met to consider a draft of its restatement of the law of torts, which is being revised. Lawyers and judges use ALI's restatements as a synthesis of the current state of the law. The recent draft contained several misinterpretations of science having to do with the treatment of proof of causation in toxic substances cases. The errors, which stemmed from actual court rulings, would have given judges yet another set of unjustified or arbitrary standards with which to evaluate certain kinds of evidence. For the first time in the ALI's history, however, scientists who were aware of the draft pointed out the errors. The draft was rewritten after the ALI reporters met with scientists selected by the Panel on Science, Technology and Law of the National Academy of Sciences.

This kind of participation by scientists was not a normal part of the legal process, but it must become so. The scientific and legal communities must work together for justice and the public good. While this may be the intent behind appointing science experts to advise judges, the effect of that practice has been to undermine the role of juries.

Base Toxic Tort System On Due Care.

The court system has tied itself in knots by asking the wrong kind of question in toxic torts. Professor George Annas phrases that question this way: "What scientific evidence should a woman who believes she has been injured by breast implants be permitted to present in court?" According to Annas, the better question would be, "What evidence of safety should corporations be required to present in a public forum before they are permitted to put their product on the market?"

Legal scholar Margaret Berger argues that it is time to create a new toxic tort that would condition culpability on the "failure to develop and disseminate significant data." Berger says, "In order to minimize risk in the face of uncertain knowledge, the law ought to concentrate on developing the required standard of care regarding a corporation's duty to keep itself reasonably informed about the risks of its products. If a corporation fails to exercise the appropriate level of due care, it should be held liable to those put at risk by its action."

Agent Orange, asbestos, the Dalkon Shield, thalidomide, tobacco -- in each case, according to Berger, companies failed to test their products initially, failed to report problems as they emerged, and failed to do research to investigate those problems. As Berger notes, a system that encourages a "don't ask, don't tell" policy decouples liability from moral responsibility and thus threatens the basic underpinning of corrective justice.

Some might argue that current regulations, which require premarket testing for drugs and chemicals deemed potential hazards, are sufficient. Unfortunately, the regulations have loopholes that the tort system, by placing the burden of proof on the plaintiff, fails to close. The largest loopholes are for chemicals, especially those that came on the market before the 1976 Toxic Substances Control Act. (Chemicals developed after 1976 are reported to EPA, which may require premarket testing.) In 1984, the National Research Council looked at a random sample of 100 of the 3,000 chemicals produced each year in quantities exceeding one million pounds and concluded that 78 percent lacked "minimal toxicity information." In 1997, Environmental Defense showed that minimal toxicity information was still lacking for 71 percent of these "high volume" chemicals.

The question should be why these chemicals are in widespread use if they have not been tested, and appropriate tests do not exist. The judicial system widens this loophole by requiring those who have been injured to produce evidence from nonexistent information. And even when regulations require premarket testing, that's not always sufficient incentive for manufacturers to insure their products are safe, as the Dalkon Shield case shows. Since the burden of proof is heavily skewed toward plaintiffs, manufacturers have less incentive to test thoroughly. Lack of data is actually protective of defendants in these circumstances. They are better off not knowing the risk posed by their products. If they test and litigation begins, they will have to turn over testing results during discovery.

A new toxic tort that shifts the burden to the producer of a chemical or drug would drive innovative science, restore the basic moral underpinnings to the law, and help protect the public from harm. A corporation ought to exercise a responsible level of due care and be held liable to those who have been put in harm's way by its action without regard to the actual harm. As Berger says, a corporation should be culpable if it has acted without taking into account the interests of those who will be affected by its conduct.

References George J. Annas, "Burden of proof: Judging science and protecting public health in (and out of) the courtroom," American Journal of Public Health, April 1999.

George J. Annas, "Scientific evidence in the courtroom: The death of the Frye rule," The New England Journal of Medicine,vol. 330, no. 14:1018-1021, April 7, 1994.

Sharon Begley, "'Junk science' ban also keeps jurors from sound evidence," Wall Street Journal, June 27, 2003.

Margaret A. Berger, "Upsetting the balance between adverse interests: the impact of the Supreme Court's trilogy on expert testimony in toxic tort litigation," Law and Contemporary Problems, vol. 64, nos. 2&3, Spring/Summer 2001. (Available at

Stephen Breyer, "The interdependence of science and law," Science, vol. 280, 24 April, 1998.

Carl F. Cranor and David A. Eastmond, "Scientific ignorance and reliable patterns of evidence in toxic tort causation: Is there a need for liability reform?" Law and Contemporary Problems, Vol. 64, no. 4, Autumn 2001. (Available at

Carl F. Cranor, John G. Fischer, and David A. Eastmond, "Judicial boundary drawing and the need for context-sensitive science in toxic torts after Daubert v. Merrell Dow Pharmaceuticals, Inc.," The Virginia Environmental Law Journal, vol. 16, no. 1, 1996.

Bette Hileman, "Daubert rules challenge courts," Chemical and Engineering News, vol. 81, #27 (July 7, 2003)

Ira H. Leesfield and Mark A. Sylvester, "Admissibility of expert testimony: What's next?" Trial, December 2000.

For full text of Daubert and a report on its impact on science (Daubert: The Most Influential Supreme Court Ruling You've Never Heard of") see the Tellus Institute's Project on Scientific Knowledge and Public Policy at

For a sample of differences between law and science, see the transcript of a January 2003 discussion between writers of the American Law Institute's Third Restatement of the Law on Torts and a committee of the National Academy of Sciences at

See also: Carolyn Raffensperger's articles on science in the courts published in Journal of the Environmental Law Institute in 2002: "When the law of tort causes harm," Jan./Feb; "Protective orders and the right-to-know," Mar./Apr.; "Toxic tort system fails the basic test," May/June; "Campaign finance reform and the courts," Sept./Oct.; and "A lawyer's legacy haunts environment," Nov./Dec. Please see: Science In The Courts