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Epi Wit & Wisdom Articles
NY Times Editorial Critical of
Tort Lawyers Who Disregard Epidemiological Evidence
[Ed. Reprinted below is a March
24, 1985 New York Times editorial of interest to all who gather
epidemiologic evidence.]
The Cause and Defect of
Orangemail
The case of the morning sickness
drug Bendectin shows how the American legal system has twisted itself
into a contradiction on cases involving science and health. There are
more and bigger such cases ahead and unless something is done, there
will be more contortions.
Bendectin Example
A Federal jury in Cincinnati
decided last week that Bendectin is not the cause of birth defects.
That accords with the best available scientific evidence. But consider
how narrowly, and at what cost, the legal system cranked out the same
verdict.
From more than 20
epidemiological studies, the Food and Drug Administration believes
Bendectin is safe. There’s no evidence that it increases the natural
rate of birth defects. But personal injury lawyers have another
calculus to work with: a jury’s heart will go out to individual
suffering, particularly a deformed child and its parents.
The first Bendectin case brought
against the drug’s maker, Merrell-Dow, perfectly reflected the juror’s
torment. They ruled that the child’s injuries were not caused by the
drug, but awarded the parents $20,000 for medical expenses anyway. The
company won on retrial. In the second case, a jury awarded $750,000
but was reversed by the judge.
Despite these results, each
trial stimulated a flood of new claims. The company offered to set up
a $120 million fund to pay all present and future claimants. To settle
after or in anticipation of losses is reasonable. But the costs of
justice have become absurdly excessive when defendants feel compelled
to settle after they have won.
Yet some of the plaintiffs’
lawyers wanted even more than $120 million. They got the settlement
overturned and went back to court. Now District Judge Carl Rubin in
Cincinnati took the unusual step of separating the issues. First, the
jury was to decide if Bendectin was a cause of birth defects, and only
if so, what the liability and damages should be. He also ruled that
the damaged children be kept out of the jury’s sight. The jury
concluded Bendectin was not a cause of birth defects.
The System
Personal injury lawyers work for
a contingency fee, taking a sizable share of any damages but getting
nothing if the case is lost. That’s the only way many plaintiffs can
get their cases brought. But it encourages lawyers to make multiple
claims: extra cases need little extra preparation, yet each promises
the same high premium fee as the first.
Both with Bendectin and Agent
Orange, the herbicide used in Vietnam, the available scientific
evidence speaks formidably against a causative link to injuries. Still
in both cases hundreds of attorneys were prepared to sue, presumably
believing that in the juror’s mind a parade of pitiful injuries would
outweigh the abstract evidence of epidemiology.
Orangemail
The costs of fighting such a
mass of suits drives the defendant toward settlement. The makers of
Agent Orange, or their insurers, paid $180 million rather than face
interminable litigation-orange-mailed by the threat of the law’s costs
and of juries’ preference for compassion over dispassion. Merrell-Dow
would have paid $120 million in orangemail had not the opposing
lawyers tried to shake it down still harder.
Even in cases where a substance
clearly causes injury, like asbestos, lawyers end up with a
disproportionate share of the damages. Who ultimately bears this cost?
Consumers do, since manufacturers, faced with higher liability
insurance, mark up their products or, as in the case of certain
vaccines, simply cease production.
Neither plaintiffs nor
defendants have cause for happiness with such a system. Its defects
are significant because other cases waiting in the wings, involving
toxic dumps and industrial chemicals, are likely to raise similar
problems.
Powerful remedies are open to
the judges who oversee such cases. Sharply reducing fees, as Judge
Weinstein did with Agent Orange, restores attorneys’ risk to the level
that justifies their high contingency fees. Making causation and
damages separate issues, as Judge Rubin did with Bendectin, helps
juries separate science from sentiment. By following these creative
examples, judges can save the legal system from the contortions in
which tort lawyers have tied it.
Published May 1985 v
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