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Scott Mann[*]
Do lawyers need to improve their understanding of scientific method to effectively defend victims of corporate crime?
The increasing globalisation of corporations has reduced the power of nation states to tax and control corporate activities. Neo-liberal government policies have increased corporate profit and power at the expense of reduced power for trade unions, reduced corporate taxation and regulation and increased unemployment and privatisation. Financial deregulation has undermined governments’ capacity for independent action, leaving them at the mercy of chaotic money markets, and wealthy international investors. Unemployment and national debt absorb an increasing proportion of declining state revenues in social security benefits and interest payments.[1]
These developments, along with mergers and takeovers, have delivered an increasing proportion of the productive wealth of the world into the hands of a few hundred private corporations, committed to short-term profit maximisation, at a time when the advance of scientific knowledge has rendered the production and application of new knowledge increasingly costly. In many areas, further progress depends on substantial investment in sophisticated technology. So corporations come to monopolise access to such science and technology. Even where no such substantial investment is required, big corporations have restricted access to the fruits of such knowledge through ‘buying out’ the ideas of others and pressuring governments to strictly enforce extended patent laws. And scientific knowledge is increasingly acquired, controlled, suppressed, distorted and applied in the service of the highest rate of short-term profitability.
Corporations have always had to pay some regard to public opinion, but their principle response has been to develop a burgeoning ‘public relations industry’ where social scientific research methods and theories, together with electronic communications technology, are devoted to misinformation and control.
The major pharmaceutical corporations hide behind a cloak of scientific objectivity with their PR staff never tiring of assuring us that hugely inflated monopoly drug prices (and denial of access to the poor) are necessitated by the high costs of research. What they do not tell us is how many of their products have been stolen from poor indigenous peoples or that they have always spent twice as much on advertising as on researching their products; that ‘the vast majority of promotional material submitted for consideration by the US FDA is false or misleading’, with only 3% of new drugs introduced between 1981 and 1988, for example, making ‘an important potential contribution to existing therapies’.[2]
Increasingly, governments have neither the money nor the resolution to oversee good quality, long-term testing of medical products. They have come to rely on the manufacturers own testing and reporting. This has typically involved trials by researchers financed by the companies in question and bound by contract not to reveal results unfavourable to their corporate employers.
The past record of private medical research includes numerous cases of inadequate testing, forgery, fabrication and suppression of results and misinformation to public authorities on the part of pharmaceutical corporations, leading to avoidable illness, addiction and death on a large scale. Such products as DES, Mer29, Clioquinol, Oraflex, Selacryn, Thalidomide, the minor tranquilisers, the Dalkon shield, Dow Corning breast implants and many more have exacted a terrible toll.[3]
Today, ethics committees monitor trials by university researchers and doctors. But they cannot ensure disclosure of unfavourable results and they have failed to prevent continuing abuses, including mistreatment of research subjects and recipients of medical treatment.[4]
The corporations still exert massive financial pressure on doctors to prescribe expensive new drugs. And such products are approved and prescribed on the basis of evidence that they achieve desirable outcomes in the short term without reference to longer term effects — including prolongation of life.[5] In the 1980s, in the USA, for example, on the basis of brief clinical trials, the drug flecainide, and others like it, were widely prescribed to settle irregular heartbeats, but were later found to cause cardiac arrest in the longer term, killing an estimated 50,000 patients.[6]
The ‘biotech revolution’, particularly in relation to GE foods, represents a huge step backwards in terms of effective public oversight and regulation, compared to ‘traditional’ pharmaceuticals. As John Verrall points out, ‘in a therapeutic situation, [around] 4% of the population [may be] taking a drug, on average for about ten days, under supervision … With GE food … billions of people [are] eating or drinking it for a lifetime with no supervision at all. Yet the conditions by which we’re judging GE foods are more lax than for any drug.’[7] Thanks to lobbying by the corporations concerned, government regulation is virtually non-existent, with no long-term human trials to test the safety of GE foods and typically brief animal trials conducted by the companies that made the products in question.
Meanwhile, biotech corporations plot ever more effective control of desperate farmers around the world through crop patents, increasingly interdependent products, terminator seeds and restrictive contracts. Their GE products pollute surrounding farmland and spread out into wider ecosystems.
On the medical side of GE, we can see how awareness of increased genetic susceptibility of certain individuals to disease or disability could allow for further appropriate tests and interventions. But we must set against this the invasive nature of currently available tests, the limited potential for effective remedial action in some cases, and the interest of corporate power in using such information against the public, subjecting individuals to toxic treatments and blaming them for their own — environmentally generated — illnesses.
It is quite probable that we are soon due for a range of — expensive — new genetic testing kits, designed to identify those supposedly more vulnerable to particular forms of cancer (and other illnesses), and correspondingly expensive prophylactic drugs — for lifetime consumption by such people, to ‘reduce’ their increased risks. In fact, what such individuals are at greater risk from are the toxins pumped into every part of the environment by unscrupulous corporations, including those that will be marketing these new tests and drugs. Far from representing the ‘breakthrough’ against disease suggested by the companies concerned, this could really be about increasing fear and anxiety in the community as a means of extracting more money through the sale of more untested and potentially dangerous drugs, about increased discrimination and insurance problems, and about deflecting attention from the preventable and known environmental causes of illness in the service of maximising corporate profits.
All around us the accumulating products of science in the service of corporate profit — in the form of poisoned food, air, water and drugs, along with increasing social chaos, instability, inequality and unemployment, erode the health and well-being of the population. In particular, they erode the health of the working class, with clear social class gradients apparent in relation to all deaths due to disease in all of the industrialised societies for which there is public data.
The Industry Commission has estimated between 650 and 2200 Australian workers dying of occupational cancers each year, with the majority of their cancers resulting from exposure to hazardous materials. Increased rates of breast cancer around toxic waste dumps point to the causative role of synthetic organic chemicals produced by the big chemical corporations.
In Australia, tobacco is still the primary cause of premature and preventable death. Alcohol is responsible for thousands of deaths each year and high levels of disease, violence and social disruption. Research points to the importance of red meat, animal fat and total calorie intake in the etiology of cancers in affluent societies. Motor vehicles kill and injure through accidents and air pollution. And preventable ‘medical errors’ — particularly in hospitals — probably kill more people than road accidents and AIDS in the USA and Australia.[8]
But these problems are the results of decades of mass marketing of cigarettes and alcohol, meat and junk food, cars and trucks, at the expense of healthier alternatives. They are the results of the application of scientific research to achieving cigarette addiction and high junk food consumption at an early age, and of the maintenance of addiction in later life through the stresses of poverty, insecurity and unemployment.
They are the results of massive release of organochloride compounds into the environment by Monsanto and other chemical corporations, long after the high toxicity of such compounds and their long-term accumulation in animal fats were well known.[9] They are the results of the accelerated disintegration of the public health system and corporatisation of medicine, with more public money for expensive new drugs and procedures of questionable efficacy, less for effective non-drug therapies and prevention programs for the mass of the population.[10]
Already a new generation of mobile phones is on the way, generating higher electromagnetic fields, before any definitive verdict on the safety of the existing generation. Their use amongst particularly vulnerable young children continues to increase, encouraged by the manufacturers.
Modern transportation technology has facilitated corporate exploitation of vulnerable third world populations, while increasing pollution through exhaust emissions, oil spills, and cast-off packaging. Modern computing and communications technology have made possible the rapid electronic funds transfers that leave democratic governments at the mercy of wealthy international speculators. Expanding money markets absorb funds that could finance fixed capital formation and useful job creation, without which governments, consumers and businesses are forced ever deeper into debt in order to maintain an ever more unstable system.
The richest and most powerful lawyers run the corporations in question, represent them in legislatures and executive bodies, or act as their hired guns, doing whatever is necessary inside and outside the courts to protect the profits of their corporate masters.
Corporate lawyers have developed diverse and ingenious ‘techniques for raising and investing capital, avoiding accountability and disclosure, concentrating power within the upper echelons of corporate structures’, minimising tax and regulation, undermining union power and membership and ‘limiting liability from the earliest stages of corporate chartering to recent maneuvers of voluntary bankruptcy’.[11] With economic rationalist dictated privatisations of recent decades, they have taken the lead in orchestrating the sell-off of valuable state resources to the private sector for much less than their true value.
They have manipulated scientific evidence and suborned scientific witnesses to support their wealthy clients’ interests. They have exploited the scientific limitations of lawyers and the legal system, and pushed the law to its limits and beyond in denying any redress to the victims of corporate wrongdoing.[12]
Corporate trade lawyers have formulated and lobbied for the charters of the WTO within the new GATT, of NAFTA and the MAI, and, most recently of the General Agreement on Trade in Services, which allow companies to bypass the democratically elected legislative and executive powers, the open and accountable judicial and administrative procedures of nation states, and take their complaints directly to closed and secret ‘dispute resolution tribunals’ overseas. ‘They can take their complaints about health and safety and environmental protection laws — re-named by clever lawyers as ‘non-tariff trade barriers’ to closed and secret panels, with no independent appeal, forcing governments either to repeal the laws or pay perpetual trade fines to the winning corporations and countries’.[13]
The relationship of these ‘power lawyers’ to scientific knowledge and scientific research is nicely illustrated by reference to the Council for Tobacco Research (CTR). For decades lawyers worked together with industry scientists to vet all scientific research reports into tobacco safety, organising wide publicity for any such reports that minimised the health hazards, while attempting to suppress all the rest. In a CTR ‘special projects’ section, directed by industry lawyers, data considered harmful to tobacco interests was protected from public disclosure through claims of ‘attorney-client privilege’. And when public attention finally focused on these developments in the years after 1984, industry lawyers argued vigorously that all records concerning this ‘special projects’ section were protected from disclosure by this privilege.
All of this means that it is increasingly important for socially responsible lawyers to achieve a basic understanding of scientific method and scientific theory. For it falls to them to address the obfuscations and lies of the power lawyers, to trace the true causal relations between corporate decision making, technology and declining public health and welfare; to carry on the struggle through providing informed advice to victims and others, including ethics committees, carrying forward effective litigation and working towards appropriate law reform.
Such reform has to include stringent new public health and safety laws supported by very heavy criminal penalties for top corporate executive offenders, aiming to properly protect the public from the sorts of dangers considered earlier. And when deterrence fails, there must be provision for public takeover of corrupt corporations.
In the absence of proper protection of workers through insurance and the criminal legal system (with sanctions proportional to community risk), the civil law remains a major arena of class struggle. Torts text books — and judges — still maintain that ‘common sense’ is all that is required to establish whether or not a particular act or omission of the defendent has caused damage to the plaintiff in any particular case. But in many cases, particularly those involving corporate activities, this is obviously nonsense.
Establishing, for example, the long-term health effects of above ground electrical cables or mobile phones, of consumption of genetically modified foods or new drugs, depends on experiments, trials and simulations, all integrally involving logical reasoning processes that go some way beyond ‘common sense’. Where relevant data already exists, a knowledge of scientific research methods is required to make sense of this material.
The standard of proof in such tort cases makes reference to the ‘balance of probabilities’. An understanding of probability and statistical theory is crucial for understanding many of the testing procedures involved in establishing the existence of causal relationships in the natural and social worlds. Yet few lawyers know very much about scientific method, probability and statistics.
In many cases, the harm inflicted by ruthless pursuit of corporate profit registers in an increasing percentage of cases of some illness in a large population. It is sometimes possible to establish the percentage involved, without being able to trace the actual pathway of — mechanical — causation in particular individuals. While causing many cases of a particular illness, for example, the corporations in question might cause less than 50% of all cases — meaning a less than 50% chance of causation in any particular case. That a corporation should escape liability in such a situation — as now happens — is ludicrous.
If 15%, lets say 3000 people, of population A, exposed to chemical X, succumb to cancer Y, while only 10% of population B, not exposed to X, but otherwise identical, succumb, then it is true that there is a less than 50% chance that the cancer of any particular individual sufferer in A was caused by X. Reference to appropriate observations of the two ‘matched’ populations (even with properly statistically significant results) fails to prove causation ‘on the balance of probabilities’. But if executives of company Z were responsible for such exposure, despite their having prior access to similar information from earlier studies, then they are knowingly responsible for killing or seriously damaging 1000 people. And while there is a greater than 50% chance that any individual victim considered in isolation contracted their cancer from something other than X, if we consider two victims together, there is only 2/3 x 2/3 = 4/9 chance that both got it from something else, or a greater than 50% (5/9) chance that one got it from X.
We could say that for any pair of two victims there is a greater than 50% chance that one of them got their cancer from X, therefore the company should pay each victim half of what they would have paid with direct ‘individual’ proof of causation. Or we could say that the company caused a third of all cases in population A so they should pay each victim a third of what they would have paid with such direct proof. But if we ask anyone other than a lawyer or a corporate executive if they think it right or just that the company should, instead, get off scot-free, they will quite rightly express horror and disgust.
The development of ‘market-share liability’ in the case of Sindell v Abbott Laboratories 26 Cal 3d 588; 607 P 2d 924; 163 Cal Rptr 132 (1980) in the USA represents significant progress in this area. This case involved the widespread damage caused by the synthetic hormone diethylstilbestrol (DES), marketed worldwide to pregnant women between 1940 and 1971 to prevent miscarriage.[14] There was no doubt about the negligence of the manufacturers who had failed to carry out basic tests of the material, and ignored the damning results of other tests (which showed that it actually caused miscarriages as well as cancers). The problem for the plaintiffs lay, not in proving that their injuries were caused by DES, but in ascertaining which of the around 200 manufacturers had made the DES which caused their particular injuries.
In a remarkably sensible and enlightened judgment, the Supreme Court of California held that each manufacturer ‘be held liable for the proportion of the judgment represented by its share of the market unless it [demonstrated] that it could not have made the product that caused [the] plaintiff’s injuries’.[15] It is only a comparatively small logical step from such market-share liability to a general principle of liability in proportion to increased percentage effect produced in relevant populations. Such a step has not yet been taken. Hopefully, developing awareness amongst responsible lawyers of the true nature of causal relations — and the scientific means for establishing their existence — will accelerate the process.
There are a number of reasons why responsible lawyers cannot rely only on expert scientific testimony in these sorts of cases. Poorer clients will never be able to afford the sorts of scientific representation available to wealthy corporate clients. Just because an expert is well informed in a particular area, this does not mean that they can guide judge and jury through the chain of reasoning that supports their ‘opinion’. And experts can be mistaken — for a whole range of reasons. Lawyers need to understand — in broad terms — what such experts are saying, to be able to appropriately interrogate them, to analyse and criticise the assumptions and inferences behind their ‘opinions’, and to keep judge and jury abreast of what is really going on.
Above all, there is the problem of loss of scientific objectivity in a world of market forces run wild. Once upon a time, perhaps, scientists provided a model of objectivity, as disinterested seekers after the truth. By contrast, lawyers have always been seen as partisan and one-sided in their arguments. They owe a duty to the court, but their first duty is to the client who is paying their salary.
In fact, there has always been someone paying the scientist too. In times gone by this has frequently been the state. And plenty of lies and crimes have been perpetrated in the name of the ‘public good’. The big difference today is that it is almost always a private company that is supporting the scientific researcher, a company committed to maximising short-term profits, rather than to any idea of the public good.
This in no way necessitates lying and cheating on the part of such employees in their research or their public statements. But we must not underestimate the power of the employment contract or research funding in a time of widespread unemployment to — even unconsciously — influence the behaviour of a scientific expert witness in a court room situation — or out of it.
In the United States, judges have responded to a perceived problem of ‘unreliable’ expert testimony by attempting to create more effective rules for the admissibility of expert scientific testimony by reference to ‘philosophy of science’ type criteria. In Daubert v Merril Dow Pharmaceuticals Inc [1993] USSC 99; 61 USLW 4805 (1993) the US Supreme Court rejected the earlier Frye Rule that required that the ‘major premise’ — the scientific technique or theory used by the expert witness — must have ‘gained general acceptance’ and not merely be ‘experimental’ in nature (at 4808 ). Instead they advocated as the criterion of admissibility of scientific testimony that it be ‘not only relevant but reliable’. According to the majority opinion, ‘reliable’ means ‘derived by the scientific method’ and ‘supported by appropriate validation’. The court made it clear that the intent of this ruling was to make the judge the ‘gatekeeper’ to determine the admissibility of scientific testimony in a case. As a result of Daubert, judges in the US have increasingly relied on their own panels of independent scientific experts to guide them in making such decisions.[16]
But there is now the question of the real ‘objectivity’ of such scientific advisors, of the mechanism for selecting them, and the likelihood that their alleged neutrality is quite spurious. This is of crucial significance when we consider the potential power of the judge to prevent any kind of expert testimony on behalf of the victim of corporate crime.
In Australia, the Uniform Evidence Act allows opinion based on specialised knowledge deriving from a person’s training, study or experience, leaving specialised knowledge undefined. Under the common law it is accepted that expert opinion must derive from a ‘field of expertise’ but as Odgers points out, ‘Australian law has never clearly resolved the test for a “field of expertise”’.[17] ‘There are authorities which appear to adopt a test of “general acceptance” in the relevant scientific discipline, authorities which require a court to make an assessment of “reliability” and authorities which adopt both tests.’[18] It remains to be seen which direction Australian courts go in the future.
All of this means that the onus remains on the legal representatives of victims of corporate greed and violence to take a very active role in the expert defence of their clients’ interests; to prevent bias, bribery and untruth from winning the day through their own mastery of the crucial scientific issues, vigorous critical interrogation of expert witnesses for the other side, appropriate selection and use of their own witnesses and ongoing scientific education of judge and jury.
[*] Scott Mann teaches law at the University of Western Sydney.email: s.mann@uws.edu.au©2001 Scott Mann (text)©2001 John Lynch (cartoon)
[1] See for example, Goldsmith, Edward and Mander, Jerry, The Case against the Global Economy, Earthscan, London, 2001; Rowbotham, Michael and Carpenter, Jon, Goodbye America, Charlbury, 2000.
[2] Chetley, Andrew, Problem Drugs, Stirling Books, Old Noarlunga, 1996, p.8.
[3] See for example, Faust, Beatrice, Benzo Junkie, Penguin Books, 1993; Chetley, Andrew, above, ref 2.
[4] See for example, Milburn, Marj, Informed Choice of Medical Services; Is the Law Just? Ashgate, 2001.
[5] Moynihan, Ray, Too Much Medicine, ABS Books, 1998, ch 3.
[6] Moynihan, Ray, above, ref 5, p.57.
[7] Bremner, Moyra, Genetic Engineering and You, Harper Collins, 1999, p.22.
[8] Milburn, Marj, above, ref 4, pp.46-7.
[9] Goldsmith, Edward and Mander, Jerry, above, ref 1, p.93.
[10] Milburn, Marj, above, ref 4.
[11] Nader, Ralph and Smith, Wesley. J., No Contest, Random House, 1996, p.xxiv.
[12] See for example Nader, Ralph and Smith, Wesley. J, above, ref 11.
[13] See for example Nader, Ralph and Smith, Wesley. J, above, ref 11, pp.xxv-xxvi.
[14] Handsley, Elizabeth, ‘Market Share Liability and the Nature of Causation in Tort’, (1994) Torts Law Journal 24.
[15] Handsley, Elizabeth, above, ref 14.
[16] Walton, Douglas, Appeal to Expert Opinion, The Penn State Press, 1997.
[17] Odgers, Stephen, Uniform Evidence Law, Federation Press, 1995, pp.126-9.
[18] Odgers, Stephen, above, ref 17.
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