It is usual in civil litigation for the losing side to say they have settled because they could not afford to fight on, even though they would have won. Such claims are usually greeted with a healthy scepticism by the public, but Dow Corning's $3.2bn (2bn pounds) settlement of the breast implant litigation really was done on that basis.
The case was an alarming victory for so-called "junk science" - a mish-mash of speculative theories and poor statistics - and for US plaintiff tort litigators.
Lawyers are used to having to combat junk science on a case-by-case basis, but now two organisations of scientists have been formed to combat what is seen as a growing menace to the civil justice system.
At first sight it seems impossible that anyone would pay billions of dollars to get shot of a case. But bear in mind that there were 170,000 plaintiffs, the maximum award for an individual will be $150,000 and many will receive only a token $750. The only ones who really made any money out of the case were the plaintiffs' lawyers, whose 25 per cent contingency fee comes to $800m.
This settlement was driven by commercial logic on both sides. The insurers of Dow Corning had to ac-cept that the way the US court system is structured, with juries deciding issues of liability and levels of damages, meant there would have been yet more $25m verdicts for individual plaintiffs and that the bill for defending each of the 170,000 cases individually would have come to more than the $3.2bn settlement.
It was the converse side of the settlement that was so worrying. With each successive report on breast im-plants the weight of evidence (never strong) was collapsing. Less than two weeks after the settlement, for example, the UK's Medical Devices Agency reported there was no pattern of harm in these cases.
Junk science has been able to flourish because there is great public faith in it. The public believe that its proponents in general are incorruptible. Public pronouncements by scientists can create a lot of press coverage, often leading to anxiety and uncertainty, which results in people consulting their lawyers.
Another reason is that science is not immutable. Areas of knowledge are expanding all the time. Martyn Day, a leading UK plaintiffs' lawyer, admits this. He says he had to withdraw the recent electro-magnetic syndrome (EMS) claims - that overhead power cables caused illness - because the scientific evidence was not strong enough to support them. But he hopes to re-issue proceedings after a big study is completed later this year.
There is also a problem of honesty among expert witnesses. Experts have long been known as being either "plaintiff experts" or "defence experts". The courts recently reproved an expert who said he saw nothing wrong in pulling the wool over the other side's eyes.
But in the breast implant cases in the US at least one plaintiff expert witness has made more than $1m from testifying - far more than he could have expected to earn from practising medicine, says Joseph Price, of the Minneapolis law firm, Faegre & Benson.
Combating junk science is important, because, as Chris Hodges, a partner of UK law firm Cameron McKenna, points out, "the tentacles of junk science spread far wider than the courtroom". Public fears can force politicians to take public policy decisions unsupported by evidence.
Although the impact of junk science on medical negligence law has been the most significant, other areas, such as environmental law, have also been badly affected. In England, British Nuclear Fuels spent years and millions of pounds fighting allegations that the Sellafield nuclear reactor in Cumbria caused leukaemia. The electro-magnetic syndrome cases also fall into this category.
John Meltzer, a product liability litigator at the UK international law firm Lovell White Durrant, says that litigation based on junk science is going to have limited success in this country, because judges are more dispassionate than juries.
Nonetheless, he has been following the growth of junk science closely. He was the first of several lawyers to recommend Science on Trial by Marcia Angell, as the best introduction to this area. The book includes a look at the problems of presenting scientific evidence to non-scientists.
In the UK, leading environmental lawyer Paul Bowden, of Freshfields, the international firm, attacked the EMS claim for causing "heightened public anxiety, destroying the value of houses for two or three years, and then the case is withdrawn for lack of evidence."
Mr Bowden and Mr Hodges are critical of the English Legal Aid Board for not commissioning independent research before granting aid for the EMS cases. Mr Hodges thinks junk science may not survive the coming of conditional fees to replace legal aid.
The Legal Aid Board grants a limited certificate in these cases to fund independent expert opinions on the merits of the cases. It was after limited legal aid was obtained that the EMS litigation was withdrawn. The second point is that plaintiff lawyers are already getting cases into the US wherever possible.
Mr Day, who led the EMS cases, says: "Junk science is the views of an expert with whom you don't agree. These cases are on the scientific edge, and your case goes up and down with the science.
"There is no way a judge in this country could be persuaded by junk science, but at no point in Sellafield or EMS did the defence apply to strike us out."
He says Gulf War Syndrome is a good example of a case where the science is developing, and the establishment view being challenged by new research.
Although, according to Mr Day, there are no more than 10 class (group) actions at any one time, scientists are so concerned about the spread of junk science that two groups have been formed to combat it.
In the US, The Advancement of Sound Science Coalition is made up of scientists and former public policy advisers. It runs a website at www.junkscience.com, attempting to balance science and technology horror stories.
The second group, the European Science and Environment Forum, has just published a book, What Risk?: Science, Politics and Public Health, edited by Roger Bate. It analyses risk factors and the science and pseudo-science that has gone into several health concerns, such as passive smoking, dioxins and pesticides.
As litigation gets more sophisticated, and the actual writ may be only a minor part of a much wider campaign against a company, it is clear that lawyers need to understand the wider issues of junk science to protect their clients properly.
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