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Historical Keynote
Addresses
New England Journal
Editor Contrasts Legal and Medical Paradigms for AES Meeting
Sees Positive Trend in
Greater Reliance on Expert Panels
“Justice cannot fly in the face
of truth,” contends Marcia Angell, Executive Editor
of the New England Journal of Medicine, who spoke on the topic of “Two
Cultures: Scientists and Lawyers” at the recent meeting of the
American Epidemiological Society (AES), held at the Mayo Clinic in
Rochester, Minnesota. Like many others, she worries about some of the
features that characterize the current toxic tort system in the United
States (i.e. exorbitant contingency fees, hired partisans posing as
experts, and juries faced with complex issues who vote with their
hearts).
Two Different Approaches
But there is more to her concern
than this. “Lawyers and judges think differently than doctors do,”
said Angell, the author of a recent book about the silicone breast
implant controversy. “It begins in fifth grade when some smart kids
focus on English and History and other smart kids focus on Math and
Science. These differences are accentuated during training so that by
the time they become adults, they are quite different creatures
upstairs,” she says.
Where scientists see important
questions—for example, do breast implants cause disease?—lawyers see
the causal question as only a trivial building block. They may be more
interested in establishing failure to warn or malice, Angell told the
Epi Monitor.
What solutions can improve the
condition of the toxic tort system? “Maybe judges cannot resolve
everything through the adversarial process when it comes to scientific
disputes, and maybe they need neutral panels of experts. This
represents a brand-new way of thinking for judges, who tend to think
they can do everything,” says Angell.
Judges Convene Their Own
Panels
The new way of thinking is
emerging in the aftermath of the landmark Daubert vs. Merrell Dow
decision, which required judges to determine the relevance of
scientific evidence being admitted in court, and not to accept
everything as equally valid. Faced with this challenge of sorting out
sound vs. junk science, some district judges are turning to neutral
panels of experts to give them assistance. Angell cited District Judge
Robert Jones from Oregon who convened such a panel
and last December threw out plaintiff cases in the breast implant
controversy. Other well known judges who have undertaken to avail
themselves of these panels are Sam Pointer in Alabama
and Jack Weinstein in New York.
Published April 1997
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