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By Root 389 0

town where a big industrial plant owned by a wealthy corporation has been dumping potentially toxic waste products. Is the cancer cluster due to the potentially toxic waste, or is it due to random chance? Ask a lawyer and his clients hoping for a large cash settlement from the corporation, and they will give you an unambiguous answer: cluster = cause = cash. Ask a scientist with no stake in the outcome and you will get a rather different answer: cluster = or ≠ cause. It all depends. Additional studies must be conducted. Are there other towns and cities with similar correlations between the chemical waste product and the same type of cancer cluster? Are there epidemiological studies connecting these chemicals to that cancer? Is there a plausible chemical or biological mechanism linking that chemical to that cancer? The answers to such questions, usually in the negative, often come long after juries have granted plaintiffs large awards, or after corporations grow weary and financially drained fighting such suits and opt to settle out of court.

A similar problem was seen in the silicon breast implant scare of the late 1980s and early 1990s. I distinctly recall the advertisements placed in the Los Angeles Times by legal firms, alerting any women with silicon breast implants that they might be entitled to a significant financial award if they exhibit any of the symptoms listed in the ad, which was a laundry list of aches and pains connected to a variety of autoimmune and connective tissue diseases (as well as the vagaries of everyday life). A hotline was also established: 1/800-RUPTURE. Women responded . . . in droves, and the litigant attorneys paraded their clients in front of the courthouse with placards that read WE ARE THE EVIDENCE. In 1991, one of these women, Mariann Hopkins, was awarded $7.3 million after a jury determined that her ruptured silicone breast implant caused a connective tissue disease. Within weeks, 137 lawsuits were filed against the manufacturer, Dow Corning. The next year another woman, Pamela Jean Johnson, won $25 million after a jury linked to her implants connective tissue disease, autoimmune responses, chronic fatigue, muscle pain, joint pain, headaches, and dizziness, even though the scientists who testified for the defense said her symptoms amounted to nothing more than “a bad flu.” By the end of 1994, an unbelievable 19,092 individual lawsuits had been filed against Dow Corning, shortly after which the company filed for bankruptcy.

In the end, the confirmation bias won out and Dow Corning had to pay $4.25 billion to settle tens of thousands of claims. The only problem was, there is no connection between silicone breast implants and any of the diseases linked to them in these trials. After multiple independent studies by reputable scientific institutions in no way connected to either the corporation or any of the litigants, the Journal of the American Medical Association, the New England Journal of Medicine, the Journal of the National Cancer Institute, the National Academy of Science, and other medical organizations declared that this was a case of ‘junk science” in the courtroom. Dr. Marcia Angell, the executive editor of the New England Journal of Medicine, explained that this was nothing more than a chance overlap between two populations: 1 percent of American women have silicone breast implants, 1 percent of American women have autoimmune or degenerative tissue diseases. With millions of women in each of these categories, by chance tens of thousands will have both implants and disease, even though there is no causal connection. That’s all there is to it.

Why, then, in this age of modern science, was this not clear to judges and juries? Because Bacon’s idols of the marketplace dictate that scientists and lawyers speak two different languages that represent dramatically different ways of thinking. The law is adversarial. Lawyers are pitted against one another. There will be a winner and a loser. Evidence is to be marshaled and winnowed to best support your side in order to defeat your