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Mobile Register
December 25, 1996

Civil injustice: problems of evidence

Second of three editorials

In tort law, one view of liability follows common sense: If your negligence causes injury to another, then you're liable for the damages. A competing view holds that negligence isn't always necessary; merely causing an injury might be sufficient for liability.

Disturbing trends in recent lawsuits imply a third view: To be held liable, you needn't have even caused the injuries in question. Consider three recent issues.

TWA Flight 800. Lawyers have filed at least 21 lawsuits against TWA and Boeing Corp., seeking about $1 billion in damages for families of people who died when the 747 exploded off Long Island last July. The Washington Post reports one odd thing about these suits: They "provide a precise chronology of the crash and allege in detail that the disaster was the apparent result of mechanical failure" based on "speculation by hired experts and published news reports."

But these "experts" aren't investigators from the National Transportation Safety Board, the federal agency responsible for determining the cause of the crash. They are hired guns who have no access to the NTSB's evidence — which thus far supports no conclusion about the cause of the explosion.

Digital's keyboards. A federal court recently ordered Digital Equipment Corp., which manufactures computer keyboards, to pay $5.3 million in damages to a woman suffering from carpal tunnel syndrome. She claimed that the malady was caused by typing — and she happened to be typing on a Digital keyboard.

Here again the causal issue gets short shrift. Does typing cause repetitive motion injuries? No one really knows. A few typists suffer from it, but most do not. For that matter, does repetitive motion alone cause these injuries, or are they perhaps the result of underlying health problems? Again, the evidence isn't sufficient to say, one way or the other.

Silicone implants. Some women with silicone breast implants developed inflammatory disease when the implants leaked or ruptured. Many of them sued Dow Corning Corp., which manufactured the implants. In 1994, a federal judge in Alabama approved a $4.23 billion global settlement, and Dow Corning soon filed for bankruptcy.

A central and obvious question is this: Does silicone cause the symptoms that these women experienced? A 1994 study by the Mayo Clinic found "no association" between implants and connective-tissue disease. A 1995 Harvard study "did not find an association" between implants and disease.

Critics charged that these studies included too few women. So, this year, Harvard researchers evaluated 10,830 women with implants and found a "small but statistically insignificant increased risk" of disease.

Last week, a federal judge in Oregon ruled that the plaintiffs' causal claims in 70 cases are scientifically invalid — a sign that the tide may be turning.

These three cases illustrate an exaltation of the irrational. What caused the TWA explosion? What causes carpal tunnel syndrome? What caused the diseases of plaintiffs in the Corning case? The plaintiffs' lawyers don't know. More to the point, they don't care. They are guided no by any rational principle of liability but by greed. That is the core cause of this nation's growing mania for litigation.

Next: The dilemma of race.

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