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Epi Wit & Wisdom Articles
Epidemiology in the Courtroom
In the early 1970’s, Ward
Stephenson a pioneering Texas lawyer used the epidemiologic research
done by Dr. Irving Selikoff and colleagues to prove that his client’s
asbestosis and mesothelioma was caused by a 33-year exposure to
Johns-Manville’s asbestos products. The landmark case of Borel v.
Fibreboard Paper Products Corporation et al. marked the beginning of a
new role for epidemiology, one that is increasing in importance in the
courtroom today. (1) According to Christoffel and Teret, a
computerized search of judicial opinions in each of the years 1970 to
1973 showed the words “epidemiology,” “epidemiological” or
“epidemiologist” appearing three or fewer times. (2) By 1990, there
had been a 30-fold increase in opinions mentioning epidemiology.
“Toxic torts,” as this area of
law is known, is responsible for ushering epidemiology into the
courtroom. Traditionally, the concerns of tort law (governing when one
party must pay compensation for harm caused to another) are with
injuries for which the cause and effect association is evident (e.g.,
a fall on a slippery floor) and for which eyewitness testimony or a
physician’s opinion is sufficient to establish causation. In toxic
tort litigation (encompassing complex disputes arising out of
exposures to toxic substances, e.g., dioxin, Agent Orange, low- level
radiation, asbestos and certain pharmaceuticals), the plaintiff
attempts to prove that some activity or product of the defendant
produces injury or disease. Unlike traditional tort cases, the causal
relationship between the exposure and the disease is not readily
evident and it is the role of epidemiology to provide a causal
explanation. While this role is one that epidemiologists are
comfortable with professionally, it may create quixotic results when
subjected to courtroom scrutiny.
Where Epidemiology and the
Legal System Diverge
The outcomes of these cases
often leave the epidemiologic and scientific community puzzled because
the results seem irreconcilable with what is “known” about a given
cause and effect relationship. The problem is that epidemiology and
the legal system operate from completely different premises.
Epidemiol-ogists see their research as pieces of evidence in a search
for “truth” that is always subject to change.
The legal system’s function is
to resolve disputes fairly and finally. In other words, if one
considers scientific research to be a “movie,” the epidemiologist is
concerned with every twist of the plot, while the legal process
operates to “freeze” a frame. Both professions may be dissatisfied
with the results: the epidemiologist sees distortion and an incomplete
picture; the lawyer is frustrated with the perpetual stream of
probabilistic answers. Bear in mind that epidemiology deals with
categories of risks rather than individual biological causation. Then
consider that the courts want answers in terms of individuals—Did this
defendant harm this specific plaintiff? The result is often lack of
communication and misunderstanding on both sides.
Future columns will explore
legal issues of interest to epidemiologists and will give you an
inside look at what happens when epidemiology enters the courtroom. We
will explore such issues as the impact of protective orders,
scientific vs. legal causation, scientific vs. legal standards of
proof, and the epidemiologist as expert witness. Impatient readers are
referred to the chapter on legal cases in EpiSource which covers some
of these topics and many others.
References
1. 493 F. 2d 1076 (1973)
2. Epidemiology and the Law:
Courts and Confidence Intervals, American Journal of Public Health,
81:1661-1666, Dec. 1991.
Published March 1992 v
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