Wednesday, December 06, 2006

Do They Get Their Money Back?

Recently, like a week ago, I heard on the radio that the FDA is going to lift their near 20 year ban on silicone-gel breast implants. Seems that in all that time nobody was ever really able to prove conclusively that anyone's getting sick was directly attributable to the prosthesis, and I assume not in a "shadow of doubt" way that you would have to prove it in court. It would seem likely that at this point even if there really was strong, but not conclusive evidence they would have left the ban in place.

I mean, you've already put them out of the boob business, so why take chances.

Interestingly, when many of these cases did go to court, both as individual and as class action suits it was in civil court. So there wasn't a "shadow of doubt" rule in place there either, but rather a preponderance of the evidence. I guess not so surprisingly many, many people managed to convince a jury that various illnesses were in fact directly attributable to the prosthesis.

So, my question is: now that the federal government is on record as saying that we must have been over-excited or something, can Dow have their money back?

Really, it seems that in a lot of cases where science is being weighed by a jury that we have made a tremendous mistake structurally. Having a panel of disinterested lay-people judge competing arguments about esoteric science is just stupid. First off, one would assume that in almost all cases there is a predisposition for the jury to give the suffering person the money regardless of the evidence. Second, there just isn't time to bring people without the specialized knowledge up to speed on some niche specialty. Something that probably requires post-graduate work to master, and in many cases I would wager something more than average high school competency to comprehend.

More than that though is that in the end it likely isn't about the science at all. It is a sales job. Whichever attorney or expert sells their theory better wins. There isn't a whole lot of room for "truth" between the competitive sales pitches. Don't even get me started about a case in which the truth is someplace in between the complainant and the respondent.

On top of the sales angle is the profit motive. The complaining attorneys need not care that they are right, they just really have to want to win. Experts need not actually have proof of what they are trying to sell, they just need a good pitch, and it is in their financial best interest to be effective, as an effective expert can expect future gigs. Nobody wants to hire someone who is right, but can't win.

Is it possible there should be a pretrial process for scientific issues which are going to be open to interpretation? Something the attorneys and judge participate in that includes recognized experts in the field and peer review. No experts hired by either side, but people there to speak for the truth, on the government dime, who are all irrefutable experts in the eyes of their peers. The scientific arguments would be made in this pretrial environment and then the judge would prepare an unbiased finding of fact which either side could decide to present to the jury or not. This way, there can still be litigation if the sides disagree, especially in the case where the actual scientific finding is murky. But at least we wouldn't be depending on the jury to arbitrate a scientific finding.

Something such as the jury's findings that silicone breast implants make people sick. Someone with a specialty would have to prove it, and I don't mean in a courtroom, I mean in a lab or a clinic.

I guess even the panel of experts could be wrong. Science sometimes blind alleys over what seems to be a good idea at the time. But at least in that case we would be able to have some confidence that they were supposed to be right in the first place. Looking back, I don't think anyone could make an argument that the jurors in the Dow cases carried any expectation with them that they would make the correct scientific conclusion. That we repeatedly put people in this position and repeatedly rely on these decisions to determine the fate of an individual or a company is embarrassing.

Though I don't think anyone that got the money at the time is embarrassed. The story I heard on the radio didn't include any interviews with complainants, attorneys, or experts from the winning side of the cases. Next slow news day someone at Frontline ought to look up those people and have them account for themselves. They all made quite a bit of money suing these people and asserting that their product was the cause of many terrible things. In the view that there really is no credible evidence, at the very least they ought to be made to account for themselves.

I know what they would say though: "nobody proved the implants didn't make the people sick."

But that's not really how our system is supposed to work is it?

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