Example 6

Copyright 1986 The Christian Science Publishing Society

The Christian Science Monitor

July 30, 1986, Wednesday

Letting laymen rule on toxic waste.

By Brook Larmer, Staff writer of The Christian Science Monitor

Imagine that you've just been summoned for jury duty.

You know little about science. You know nothing about the effects of toxic waste. And you've never heard of the suit filed by eight families in Woburn, a blue-collar, industrial community 12 miles north of Boston. The judge explains that the families accused two companies - W. R. Grace Company and a subsidiary of Beatrice Foods Company - of contaminating two area wells and causing the leukemia-related deaths of six Woburn residents. Thanks to your ignorance, the judge decides you are an ideal choice for juror.

It's a scenario that six ordinary citizens went through five months ago, before they began hearing hour upon hour of complex, often contradictory scientific testimony in the first round of the toxic-waste trial. And it's renewed a debate on a broad legal question: Should uninformed jurors decide cases that test the frontiers of science and technology?

The issue is especially critical in cases that also break legal ground, as the Woburn case could in its second and third phases.

On Monday, after a week of deliberation, the jurors finally settled round one: They decided that W. R. Grace had ''substantially contributed to the contamination'' of two area wells; Beatrice Foods was not found responsible for any contamination.

In the trial's second phase, which begins on Sept. 15, the families' chief lawyer, Jan R. Schlichtmann, will try to convince the same jurors that there is a direct, causal link between the chemicals in the water supply and the illnesses at issue. Most scientific experts don't believe such a connection can be made.

But if his potentially ground-breaking argument is successful, observers agree, it will trigger a flood of similar personal-injury cases. Across the nation, people with grievances will start demanding that companies be held legally and financially responsible for the human cost of toxic waste. The threat of suits at even a fraction of the 850 toxic-waste sites on the Environmental Protection Agency's Superfund cleanup list is sending tremors through the already-shaken chemical and malpractice-insurance industries.

As opposing sides present their complicated arguments, the humble jurors in the marble-walled courtroom here will be asked to take sides in a scientific controversy.

''Everybody is a little scared by the unpredictability of the court settlement,'' says Yale University's Jan Stolwick, a leading expert on hazardous-waste problems.

Even if scientific proof of the link were presented, would a jury of laymen recognize it? Probably not, most observers agree.

But Sanford Lewis, legal counsel for the National Campaign Against Toxic Hazards, says the purpose of the Woburn case is to demonstrate justice - not proof. Indeed, unlike criminal cases, in which guilt must be proved ''beyond a reasonable doubt,'' civil cases must show only that guilt is ''more likely than not.''

In cases like this, Lewis says, the law can't wait for science, justice can't wait for proof. Companies need to be held responsible for their negligent dumping of wastes.

But many scientists are concerned that the jury will value style over substance. ''The jury will be judging according to how the case is presented and what they understand, and not necessarily on the scientific evidence,'' says Robert Miller, chief of the epidemiological branch at the National Cancer Institute.

According to Yale's Dr. Stolwick, that leaves the door open to the ''selective presentation of data'' and ''subtle biases'' in the scientific research. ''I wish there were a better way,'' he says.

For two decades, engineer Arthur Kantrowitz has been trying to create a forum for decision making that would reduce the public's uncertainty about technical matters. His idea: a ''science court,'' where opposing experts direct their arguments on controversial issues at each other and a panel of scientific judges, rather than to uninformed laymen. Detractors argue that on controversial issues, scientists are liable to disagree even more than laymen.

Despite support from three US presidents (Ford, Carter, Reagan) and a significant segment of the scientific community, a formal science court has not been convened.