Litigation Life

Abstract

In recent decades, large-scale product liability litigation, so-called `mass torts', have become increasingly visible on the US legal and political landscape. Invariably, mass tort litigation incorporates a range of specialist scientific knowledges. Drawing upon fairly conventional images of law and science, most judges and legal commentators attribute the apparent difficulties encountered in addressing the refractory issues involved with scientific evidence in mass torts to uncertainties, jury incomprehension, partisan scientists and the distortion of evidence caused by the adversarial legal system (`sociologies of error'). Adopting a more symmetrical social constructivist approach to scientific evidence, this paper endeavours to account for some of the complexities in the litigation surrounding the anti-nausea drug Bendectin. Rather than interpret the Bendectin litigation as an instance of the judges eventually valuing the scientific evidence properly, and thus resolving the controversy (the truth winning out), this paper explores the manner in which lawyers, scientists and judges together `negotiated' a series of cases and judgments which privileged epidemiology as a means of `resolving' a recurrent socio-legal `problem'