Tuesday, August 23, 2005
Changing The Premises, Part 10: Doctors, Lawyers, And Indian Chiefs
“Here, Sir, the People govern.”—Alexander Hamilton
You can always count on an “expert” to tell you to keep your hands off the subject of his “expertise.” S. David Young’s book The Rule Of Experts is most eloquent on this point, and on the consequences of allowing the “experts” to have their way.
Expertise, as such, is unobjectionable. It’s a component of a division-of-labor economy, wherein the road to prosperity involves becoming a specialist at something and bending the greater part of one’s efforts toward it. Your Curmudgeon commands some expertise himself, and prefers that, when it’s relevant, it should be accorded due respect.
Our problems begin when we nominate experts in the field of right and wrong.
Not long ago, your Curmudgeon ranted about the wound to justice inflicted by jurists and legislators themselves, as they try to cover all of human activity with legal dos and don’ts. With regard to the verdict handed down against Merck for its drug Vioxx, posts by Megan McArdle and Stephen Bainbridge, two persons who can claim some expertise of their own, have him wondering if the wound has become mortal.
From Miss McArdle:
I’m an MBA and I write about business and economics for a living. I’m not sure I’m qualified to sit on a securities case--and if I’m not, your average HR assistant sure as hell isn’t. There is a limit to the amount of technical information the human brain can absorb, even when that information isn’t as mind-numbingly boring as securities law or double-blind study design.
The jury system was designed in an era of generalists, before even the invention of forensic evidence. Juries were generally being asked to rule on things they understood well--theft, infidelity, property rights, murder. Now they’re being asked to rule on things far outside of their experience (and in some cases, outside of their cognitive ability). Base motives are nothing new to the jury system; it was Samuel Johnson, I believe, who noted that “Wretches have hanged that jurors might dine”. But the harder it is for jurors to comprehend the evidence before them, the more likely they are to fall back on unsalutary urges in rendering their verdict.
From Professor Bainbridge:
Unfortunately, if the WSJ($)’s reporting is to be believed, the jurors basically didn’t understand - and, indeed, didn’t even try to understand - the science:
Merck argued that Vioxx couldn’t have caused Mr. Ernst’s death because, according to his death certificate, he died of an arrhythmia or irregular heartbeat, not a heart attack. While scientific evidence suggests Vioxx can promote blood clots leading to a heart attack, no data have linked the drug with arrhythmias.Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.”
At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck’s lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands.
But why are such “issues” in their hands at all?
The jury system is the people’s bastion against the arrogance of power. Because only a jury may hand down a sentence of punishment or civil penalty, it stands as a last-ditch defense against any enactment of any legislature. A jury can refuse to enforce any law whatsoever if it deems that to be the course of justice.
To govern is to use force: to compel, prohibit, and expropriate under the threat of forcibly imposed punishment. But only a jury can execute that threat, and only private citizens can sit on a jury. No executive, no legislator, and no judge can seize that power from the sovereign jury, spreading the knowledge of which is the point of the Fully Informed Jury Initiative. Here, Sir, the People govern.
Yet McArdle and Bainbridge raise an incontestable point about the expertise deficit of the typical jury when presented with matters such as the Vioxx controversy. One cannot expect the average layman to reach sound conclusions about hypertechnical matters outside his personal experience. (To make matters worse, it’s routine for trial lawyers to “challenge off” a juror candidate precisely because he has expertise in the subject under controversy.) All he can do is listen to competing “experts,” and then choose which of those two groups of Hessians looks better, sounds better, and stands up better under hostile questioning.
Is this the way trials on which the rights to life, liberty, and property depend are supposed to work?
Time was, a case such as the Merck / Vioxx case would have depended entirely on two criteria: informed consent and assumption of risk. If the jury could be persuaded that Merck had denied vital information about Vioxx to Robert Ernst, the decedent in whose name the plaintiff filed suit, or that Ernst had not freely and consciously accepted the drug into his body, then the decision would go to the plaintiff. Contrariwise, if the jury concluded that Merck had given Ernst all the relevant information about the drug, and that Ernst’s decision to take it was sane and uncoerced, then the decision would go to the defendant. No other consideration would be allowed to matter.
Let that thought sink in for a moment: Whether or not the Vioxx he took had actually caused Ernst’s death would not have been relevant.
The current state of affairs in our courts is unmanageable precisely because technical considerations have been allowed to matter. Robert Ernst, no matter what he was told or what agreements he made with Merck, could not possibly assume the risk for the use of Vioxx onto himself. Courts have dismissed with prejudice the whole idea of assumption of risk. It interferes with the hunt for deep pockets to be plumbed for the loot with which to assuage “social ills.”
But assumption of risk is a fundamental principle of a free society. Unless one is capable, with appropriate precautions, of assuming onto himself the risk for a risky activity, he will find it increasingly difficult to engage in such activities—and there are one hell of a lot of such activities that we’d all miss dearly were they to disappear.
The destruction of the assumption-of-risk principle has complicated the lives of the vendors of innumerable services, medicine being only the best known. The exploding cost of liability insurance is gradually forcing doctors out of the most difficult specialties; even a single judgment against a surgeon or an obstetrician can force him completely out of his field. Needless to say, the Merck suit is an example of the pressure on pharmacology.
But your Curmudgeon is here to discuss jury trials. The disappearance of fundamental principles such as assumption of risk leaves lesser guidelines to stand in their place. Those lesser rules are characterized by narrow domains of application and large numbers of exceptions around the margins. When promoted to stand in place of the great, broad, clear principles on which Anglo-American law is based, they transform a legal contest such as the Vioxx suit into a popularity contest between two teams of lawyers and their hired-gun “experts.”
Worse yet, they induce bright, clear-headed persons to ruminate about whether juries can be “trusted” with such cases.
Once one demands “expertise” as a criterion for anything, one has created an infinite regress. Who decides whose expertise is sufficient? By what process or criteria? And how shall we select him? For a trust vacuum demands to be filled by something...yet there’s no human quality that can entirely plug the void left when trust is gone.
- We can’t trust “ordinary people” to choose their own medications; that should be left to doctors.
- We can’t trust “ordinary people” to deal with legal matters themselves, whether as contracting parties or jurors; that should be left to lawyers and other experts.
- We can’t trust “ordinary people” to protect themselves from predators; that should be left to the police.
- We can’t trust “ordinary people” to assume the risks for their risky activities onto their own shoulders; that would put ninety percent of our tort lawyers out of work.
The instability of a judicial system whose founding principles of right and wrong have been shattered and cast away should be utterly obvious by now. What’s only just becoming obvious is how easily even highly thoughtful people will advocate further steps into the abyss: first by allowing judges to tell jurors that they may not vote “against the law;” then by displacing jurors from their sovereignty and putting “experts” in their place; then...what?
Shortly before his incarceration for stalking and extortion, Sol Wachtler, at that time the Chief Judge of the New York State Court of Appeals, argued strenuously for the removal of the jury from its place in the judicial system. Wachtler was adamant that trials ought to be decided solely by “experts”...such as himself.
Verbum sat sapienti.
