Book Review

Phantom Risk: Scientific Inference and the Law

N Engl J Med 1994; 330:443February 10, 1994

Article

Phantom Risk: Scientific Inference and the Law
Edited by Kenneth R. Foster, David E. Bernstein, and Peter W. Huber. 457 pp. Cambridge, Mass., MIT Press, 1993. $39.95. ISBN: 0-262-06156-2

This book's goal is to provide lay readers with a discussion of “two intersecting themes: the problems of assessing subtle environmental or occupational risks, and the havoc this creates in the courtroom.” In two introductory chapters, the editors give an overview of the scientific and legal perspectives on this issue. Various contributors then consider specific instances of phantom risks, defined as “cause-and-effect relationships whose very existence is unproven and perhaps unprovable.”

The phantoms come in three varieties: hazards that may not exist at all (e.g., cancer caused by magnetic fields), real risks to which the public has overreacted (e.g., polychlorinated biphenyls in the environment), and questionable medical theories (e.g., multiple chemical sensitivity syndrome). The chapters are grouped into three parts -- one for each variety of phantom -- and at the end of each part the editors attempt to put the science into a legal context. Phantom Risk closes with eight specific recommendations on how to improve the screening and evaluation of scientific evidence on health risks.

The book is an ambitious undertaking, perhaps overambitious. It is generally well written and very readable, but its real goal seems more a debunking of spurious legal claims than a dispassionate discussion of law and science, and in this regard it falls short.

Each contributor attempts to give a detailed “state of the science” report on a specific topic, such as the relation between miscarriages and video-display terminals. But none of the chapters, and none of the discussions of the legal context, outline or explain the kinds of arguments presented by plaintiffs' experts during litigation. As a defense lawyer, I agree with the premise of this book that most, if not all, the claims that it reports are scientifically unfounded, but I also know that these claims can be made to sound quite plausible.

If the relevant chapter from the book were introduced into evidence, a plaintiff probably would counter with comparable citations to other authorities (albeit probably somewhat questionable and off the point). As an example, for video-display terminals I am reasonably certain that plaintiffs would make much of the fact (reported in the book) that Sweden has adopted standards for emissions from such terminals. They would argue that unless the Swedish government has gone totally daft, the risk may not be phantom after all. I suspect a close examination of the basis for the Swedish decision would show it to be very conservative and of little relevance to tort litigation, but Phantom Risk does not undertake such an examination. Nor could it for each of the 15 topics it addresses.

The book's treatment of legal issues is less comprehensive than its scientific chapters, but it does paint a fairly accurate picture of the kind of “toxic tort” litigation that often occurs. Most of the editors' closing recommendations for reform are timely, though reducing financial incentives for speculative litigation raises a host of issues well beyond the interface of law and science.

Whether or not it succeeds at debunking such tort claims, the book is a wonderful resource on the details of science in several areas of great interest to the law. The Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. makes the book especially valuable. In this case, which involved birth defects allegedly caused by a drug for morning sickness, Bendectin (pyridoxine), the Court made it clear that federal trial judges are to serve as gatekeepers who must conduct a preliminary review of scientific evidence to ensure its validity, reliability, and relevance. Phantom Risk should serve as an excellent source book for lawyers and scientists seeking to provide the courts with the kind of information they will need to live up to the Supreme Court's mandate in Daubert.

Bert Black, J.D.
Weinberg and Green, Baltimore, MD 21201