Reversed Ruling Could Allow Junk Science to Complicate Litigation

Posted: May 23, 2018

In July 2017, a three-judge panel reversed a ruling barring testimony and dismissal of cases in a suit in which the drug isotretinoin, more well-known as Accutane, allegedly has caused plaintiffs to suffer from inflammatory bowel disease (IBD). The original ruling prevented testimony from patients who based their claims on so-called junk science, which is a refuted theory or theories not subjected to peer review or the entirety of the scientific method.

Reversing the ruling could reopen a precedent that junk science evidence is admissible in court, which may allow several thousand cases nationwide to run through the judicial system based on refuted scientific theories.

The post-World War II America has seen the rise of complex scientific issues, which have challenged both the federal and the state legal systems in criminal and even civil litigation. For instance, the validity of biological causation and forensic science has significantly tested the competency of both judges and counsel.

Furthermore, the admissibility of junk science as evidence in law courts is still a subject of heated debate in the corridors of justice. The ability of judges to fact-find and distinguish between good science and junk “science” in complex science litigation has also been questioned. Below is a rundown of the ways in which junk science has made litigation more complex, as well as the problems it brings to attorneys representing litigants.

Junk Science in Forensic Reports

fbi and cia agents discussing laptop contents

When junk forensic science finds its way into litigation, the result is usually wrongful conviction. Nonetheless, it is not uncommon in the United States. In fact, much of the forensic science that courts in the United States rely on to convict people turns out

For instance, when it comes to microscopic hair analysis, The FBI established that 26 out of 28 analysts overstated the possibility of matches for a period of over 20 years. By March 2015, The FBI had already reviewed 268 cases, 96% of which had been influenced by erroneous testimonies by microscopic hair analysts against defendants. Some of these cases had ended up in death penalties. It’s a challenge for attorneys to successfully defend clients against evidence coming from a body like FBI, even if the evidence could be based on junk science.

Another junk science that has significantly affected litigation in the US is the bite mark analysis. Although it is not a singularly reliable piece of evidence, bite mark analysis has been used to convicts about 25 innocent people who would later be exonerated and many others who have not. This is despite the fact it has been found that forensic dentists cannot establish whether a given injury is a human bite mark with any consistency.

Subjectivity in Junk Science & Litigation

Subjectivity is one of the main challenges associated with junk science. When an opinion or a hypothesis that has not been peer-reviewed, scientifically tested, and proven to be factual is introduced in a case as evidence, it means a court will be giving room for subjectivity. Such evidence, no matter how rational it may sound or appear, could be lacking in merit.

The problem is that even if the judge presiding over a given scientific case has no technical knowledge on the issue at hand, he or she still has the constitutional mandate to fact-find and determine the case based on the evidence. In such a case, it may be difficult for the court to objectively analyze the evidence and fairly determine its value during trial.

Science Still Has a Role in Litigation

Junk science has enormous potential to complicate both criminal and civil litigation. Unfounded opinions and theories admitted as evidence in courts have led to a multiplicity of challenges that counsel and judges have to contend with.

In the past, junk science such as microscopic hair analysis has led to wrongful convictions of innocent people even in cases involving capital offenses. Junk science can also negatively affect attorney’s performance. For instance, attorneys have to find counter-evidence to deconstruct the falsehoods perpetuated through junk science. The problem is that such evidence may not be available, and lawyers may end up losing cases unfairly.