Last month I won an important case in the United States Court of Appeals for the First Circuit. The case, called Milward v. Acuity Special Products, represents a noteworthy example of legal decision makers refusing to buy the product of manufactured doubt that corporations routinely try to sell to judges and juries. In Part II, I’ll tell you about the case, but first I want to lay some ground work to provide context.
Part I – The Inherent Uncertainty of Science, Our Natural Craving for Certainty,
and What That Means for Corporate Accountability
Corporations, and the lawyers and scientists who work for them, have become masterful manipulators of science. Time and again, corporate experts and advocates convince judges, juries, and regulatory agencies that there is a lack of certainty regarding the toxicity of a product or chemical. Then, they convince those same decision makers to forestall any accountability for the corporate poisoning of people and the planet until science produces absolute “proof.” Of course, that day never comes, because science is not about absolutes. Very few scientific “facts” have been proven to a certainty. Indeed, even Sir Isaac Newton’s long-established principles about how the world works turned out to be “wrong,” once modern physicists developed quantum theory and relativity. In other words, there are ALWAYS uncertainties in science, and corporations have learned how to exploit that uncertainty to huge advantage.
Big Tobacco provides the best-known example of an industry manufacturing doubt. Even today, tobacco companies still deny many of the harmful effects of smoking, 60 years after studies originally showed that people who smoke are much more likely to get cancer. The tobacco companies were the originators of the concept of manufacturing doubt to avoid accountability, and they are masters of the technique. But, since the late 1980s, other industries have developed their own well-developed expertise in using the same tactics.
Corporations manufacture doubt in several contexts, but the most common marketplace for the peddling of uncertainty is in the courtroom. I am a toxic tort lawyer. That means that I represent people who have gotten sick following exposures to poisonous chemicals, and people whose homes or land has been contaminated by pollution. I sue corporations, trying to hold them accountable for the harms that they cause in the course of making profits while selling chemicals.
In virtually all of my clients’ lawsuits, the corporate lawyers’ first line of defense is to try and convince the judge to throw out the case before it ever even gets to a jury, on the basis that the opinions of the expert witnesses I have hired are nothing more than “junk science.” They make this argument no matter how well-credentialed the scientist is, and regardless of the strength of the data that supports the scientist’s conclusions. Nonetheless, corporations often persuade judges that even the best scientists in the world are performing “junk science” when they provide their opinions in a courtroom in support of someone who claims to have been poisoned by chemicals.
How do corporations convince judges that good scientists are doing junk science? By manufacturing, highlighting, and exploiting doubt.
You see, most of us – including most judges — crave certainty about any fact that is going to provide the basis for an important decision. This is a natural, human response. If we’re not SURE that a company did something wrong that caused another person’s problem, most of us are not naturally inclined to order that company to pay a lot of money. So, to the extent we have doubts about whether the chemical really caused the injury, we usually won’t want to make the company pay for it.
But, in the context of toxic tort lawsuits, there are two important problems with this natural craving for certainty in decision making. The first one is technical, but still critical. It’s called the burden of proof. In a civil lawsuit, the plaintiff is the person who files the lawsuit, claiming that the defendant has injured him or her. The burden is on the plaintiff to convince the jury that this really happened. But, in a civil case, under the law, how certain must the jury be in order to find for the plaintiff? The answer may surprise you. The plaintiff’s burden is just to show that, more likely than not, the chemical contributed to her injury. This burden is much different from the prosecution’s burden of proof in a criminal case. As you probably know, in that context the prosecutor must convince a jury beyond a reasonable doubt of the guilt of the criminal defendant.
“More likely than not” is a standard that allows decision makers to have a lot of doubt about causation while still finding for the plaintiff. You can conceptualize this in a number of different ways. Picture the scales of justice in your mind. Let’s say that the plaintiffs have provided the jury a stack of evidence, plus a feather. Meanwhile, the defendants have provided a stack of evidence that is exactly as “big,” or convincing, except the defendants didn’t add the feather on top. In that circumstance, the law REQUIRES the jury to find for the plaintiff. Another way to think about it is this: if the jury is 51 percent convinced that the plaintiff is right, then the law requires the jury to find for the plaintiff. On the flip side, even if the jury has 49 percent doubt, the law says the plaintiff should win.
Obviously, this legal standard of “more likely than not” in a civil lawsuit is greatly in tension with our natural craving for certainty. We don’t WANT to find for the plaintiff if we’re only 51 percent sure. Indeed, most people don’t want to find for the plaintiff even if they are 80 percent sure that the plaintiff is right. But, to the extent that judges or juries require civil plaintiffs to prove their case “to a certainty,” or “beyond a reasonable doubt,” those legal decision makers are violating the law.
The second problem with our natural tendency to crave 100 percent certainty is that science can never give it to us. But just because science cannot prove something with absolute certainty does not mean that scientists know nothing. Scientists can and do reach well-reasoned inferences and conclusions based on sets of data that can be interpreted in more than one way. Reasonable scientists can and do disagree about such inferences and conclusions all the time. And it should not be up to judges to substitute their own judgment for the judgment of scientists whose conclusions fall within the range of opinions about which reasonable scientists can disagree. Judges are not scientists, have not been trained in science, and often fail to understand the processes by which scientists reach conclusions.
Unfortunately, because judges crave certainty just as much jurors do, most judges are all too willing to throw out the opinions of an expert when the judge determines that there is too much uncertainty about whether the expert is correct. As a result, judges will often strike the testimony of the plaintiffs’ expert in a toxic tort case, even when the record clearly shows that the expert’s opinions fall within the range where reasonable experts can disagree. This is not correct as a matter of law, but that often makes no difference. Corporate doubt production has had a huge impact on toxic tort law. Because corporations are so skilled at persuading judges that even good science is “junk,” it is very difficult for plaintiffs’ cases to survive even long enough for the jury to hear the evidence. Of course, if the plaintiffs’ case does make it that far, chemical companies spin up the doubt machine into an even higher gear for the benefit of the jury.
For these reasons, holding a chemical company accountable for poisoning people and the planet is very hard to do. Many plaintiffs try, but all too few succeed. The corporate doubt machine creates roadblocks at every turn.
But sometimes, the legal decision makers manage to see through the façade. Every now and again, despite the best efforts of companies to crank up the doubt machine, judges, juries, or government agencies will look past allegations of uncertainty to understand that the scientific evidence truly does tend to show that this chemical causes that disease.
In Part II, I will proudly tell you about how, on behalf of one of my clients, I recently managed to persuade a court of appeals to ignore the corporate doubt machine.