There has been a flurry of legal actions against manufacturers of homeopathic products (mostly) in the US. Many of these cases seem to settle out of court which means that we hardly hear about them. Of those that go to court, most are being won by the plaintiffs, but unfortunately some are also lost.
The recent case of Allen v. Hyland’s, Inc. is such an incidence. The US lawyer Robert G Knaier has analysed this case in detail and recently published a paper about it. The article is fascinating and well worth reading in full.
Here I take the liberty to show you a (shorted) section of Knaier’s paper where he asks what went wrong:
… How did a jury decide that Hyland’s did not misrepresent the efficacy of its products? Surely, the court’s instruction that Hyland’s would be liable only if the plaintiffs proved homeopathy “cannot work” contributed to the result. So long as defense experts were able to propose ways that homeopathy might work, the jury was left with the difficult decision—for laypersons, in any event—of rejecting that testimony.
But should the jury ever have been put in the position of having to make that choice? Should the defense experts ever have been allowed to testify? Had the court in Allen granted the plaintiffs’ motions to exclude those experts, the case likely would have ended with a settlement. Without the ability to put on evidence supporting its products, Hyland’s may very well have recognized that it had no realistic chance of prevailing at trial. But the court denied those motions.
In this respect, the court erred. There can be little doubt that expert testimony in support of the efficacy of homeopathy fails tests of admissibility. Consider the Federal Rules of Evidence and the factors that courts should evaluate under Daubert and its progeny. Is testimony that homeopathy is effective “the product of reliable principles and methods”?
In other words, does it have a “reliable foundation”? Is “the reasoning or methodology underlying [it] . . . scientifically valid”? As explained above, homeopathy’s core principles—provings, like cures like, and the law of minimum dose—are based on little more than Samuel Hahnemann’s late eighteenth-century speculations. They were not developed through, nor have they been validated by, controlled scientific studies… the principles and efficacy of homeopathy have been “tested” and “subjected to peer review and publication” — but they have consistently failed those tests and the scrutiny of that review process… Indeed, the FDA has stated that it simply is “not aware of scientific evidence to support homeopathy as effective.”
Thus, homeopathy’s “rate of error” is known, and far from gaining “general acceptance” in the scientific and medical community, it has gained near-universal condemnation. The defense of homeopathy, in some respects, presents a classic example of “unjustifiably extrapolat[ing] from an accepted premise to an unfounded conclusion.” Advocates extrapolate from the efficacy of vaccines that similia similibus currentur has a sound scientific basis, and from the concept of hormesis that providing ultralow doses is well-founded methodology. But as one contemporary skeptic has explained, unlike homeopathic remedies, vaccines actually “contain measurable numbers of antigen molecules,” and “act by well-understood scientific mechanisms”; and hormesis, even in the limited circumstances in which it appears to operate, “describes a response to a low dose, not to no dose.” As Martin Gardner noted many decades ago, the defense of homeopathy thus begins with plausible-sounding principles, and then “exaggerate[s] them to the point of absurdity.” In other words, it impermissibly extrapolates to “unfounded conclusion[s].”
Finally, the defense of homeopathy glaringly fails to “account for obvious alternative explanations.” Do people who take homeopathic remedies sometimes feel better? Of course they do. But studies of homeopathy have overwhelmingly concluded that the reason for this is not that homeopathy is actually efficacious, but rather because it is “the ideal placebo.” It is cheap. It has no side effects (unless, as discussed below, it is adulterated). And practitioners spend substantial time with their “patients,” thus encouraging psychosomatic effects.
In the end, advocates of homeopathy may have little to stand on other than that many people—including some “experts” who would gladly be paid to testify—inexplicably seem to believe that it works. But this will not do. That homeopathy has many believers does not validate it as a scientifically sound “field of expertise,” or color it, against nearly 200 years of evidence to the contrary, as one “known to reach reliable results for the type of opinion the expert would give.” As our Supreme Court perhaps most saliently observed, “general acceptance” of a principle cannot “help show that an expert’s testimony is reliable where the discipline itself lacks reliability.” As the Court explained, general acceptance of “principles of astrology or necromancy,” for example, would not transform those subjects into appropriately reliable subjects of expert testimony. The Court could easily have added homeopathy to that list.
Thus, in allowing the jury to receive testimony about the principles of homeopathy—not as a matter of historic curiosity, but as a matter of scientific validity—the Allen court arguably abdicated its gatekeeping responsibility to screen out unreliable expert testimony. By permitting “experts” to testify in favor of a field the bases of which defy basic principles of biology, chemistry, and physics — indeed, in some respects “basic logical principles” — the “integrity and fairness of the trial process” was compromised.
END OF QUOTE
I fully agree with Knaier. Allowing the ‘flat earth society’ to present to a court their views about the shape of our planet, while instructing the jury that they must accept them as ‘evidence’ (unless the plaintiff can prove it to be untrue) cannot be the right way forward. In fact, it is a method of preventing progress. Following this logic, I cannot imagine the proponents of any absurdity – however ridiculous – to not be victorious in court.
Knaier’s ultimate conclusion is, I think correct: “Trial courts have robust power and clear responsibility to preclude litigants from introducing irrelevant and unreliable evidence in support of purportedly scientific claims… To the extent that courts continue abdicating their evidentiary gatekeeping role in this way, they may contribute to a waste of time and resources, financial harm to consumers, and risks to public health. But to the extent that litigants and courts strengthen their spines in this regard, take seriously the dangers of unfounded expert testimony, and make genuine efforts to seek and grant its exclusion, they might contribute to the health and well-being of both the courts and those who turn to them for help.”