Quackery And Junk Science: What It Is, Why It Matters, And How To Spot It

• Published date: 09 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury
• Law Firm: Drew Eckl & Farnham, LLP
• Author: Ms Melody C. Kiella

"I know it is common to speak of the 'good old days' of snake oil and soothing syrup as though they were gone forever. The amazing fact is that to a very great extent those good old days, so-called, are still with us." - Commissioner George P. Larrick, Food and Drug Administration, 1955.

Quackery has been around since civilized society began. The term "quack" is often used to describe a person who misrepresents the physical condition of his patient, the reasonableness or efficacy of his "medical" treatment, or his education, training, and skill in diagnosing and treating the medical condition at issue. (Quackery in California, 11 Stan. L. Rev. 265, 267 (1959)). Similarly, a device, drug, or treatment may be deemed a "quack" remedy when it is detrimental to one's health or has no proven value for treating or curing the condition at issue. (Id. at 296, n. 4). While "quack" conjures up images of shady peddlers and salesmen, spotting a quack is not always as easy as you may think. "Many common treatments exist in that disconcertingly large, messy grey zone between overt quackery and proven, uncontroversial medicine." (P. Ingraham, Pseudo-Quackery in the Treatment of Pain (2021)). Oftentimes, pseudo-quackery is recommended to patients under the guise of a "promising" or "up-and-coming" treatment in a manner that leads patients to believe the treatment is already proven to work. (Id.) The idea of a "promising" treatment is sold by smooth and persuasive talkers who tout their "significant experience" and offer those desperate for relief (and a little sympathy) a dose of hope and reassurance that their pain will miraculously disappear. (W. H. Gordon, M.D., Why People Go To Quacks (1966), p. 45); J. H. Young, Ph.D., Why Quackery Persists (2001)).

1.Quackery Then and Now.

Quackery "began when the first knave met the first fool." (A Historian's View of Quackery in 1974 (2016)). Colonial America was certainly a breeding ground for quackery. (Id.) Nicholas Knopp, who immigrated from England in 1630, concocted the "cure to scurvy" that was really just water "of no worth nor value" sold at a very high price to the gullible. (Id.; The Myths and Mysteries and Hunt for Nicholas Knapp (2017)). Throughout the 1800's, German immigrant William Radam sold "Microbe Killer" which, according to Radam and the glass bottle it came in, cured all diseases. (Id.) However, like Knopp's "snake oil" concoction, Microbe Killer was nothing more than a diluted solution of sulfuric acid and red wine that, when taken in large quantities, was actually poisonous. (Id.) Despite the advancements and regulation in medicine, quackery is still prevalent and looks strikingly similar to the "cures" sold by Knopp and Radam.

Today, quackery looks like the "Miracle Mineral Solution" (really just industrial-strength bleach) marketed as a cure for HIV, malaria, and COVID-19 and the patently false promise made by Theranos regarding the ability of its "technology" to perform 240 blood diagnostic tests with only one single drop of blood. The reason for this? Just as it was in Colonial America, "there is a great deal of money to be made making false medical claims to people desperate for relief or a cure." (Quackery Then and Now, www.sciencebasedmedicine.com). As long as there is a monetary incentive, the push for "quack" medicines, treatments, and devices will continue into the future.

B.Quackery Leads to Junk Science in the Courtroom.

While quackery involves misrepresentations as to the patient's condition and/or the effectiveness of recommended treatment, "junk science" refers to the use of "scientific" evidence or testimony that is the result of questionable methodologies used to reach unsupported conclusions. (Gutheil & Bursztajn, Attorney Abuses of Daubert Hearings: Junk Science, Junk Law, or Just Plain Obstruction?, 33 J. Am. Acad. Psychiatry L. 1150 (2005); N. Prefontaine, Talcum Powder and Expert Power:Admissibility Standards of Scientific Testimony, 59 Jurimetrics 341, 351 (2019)). Naturally, quack medicine and treatment leads to junk science in the courtroom, oftentimes in the form of unsupported causation opinions and unsupported conclusions as to the condition of the plaintiff, the "necessary" treatment, and the efficacy of such treatment. At its core, the battle over junk science in the courtroom "is ultimately intended to prevent fraud on society and the legal system" as there "is hardly anything, not palpably absurd on its face, that cannot be proven by some so-called experts." (Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir. 1986); D. Thornburg, Junk Science - The Lawyer's Ethical Responsibilities, 25 Fordham Urb. L.J., 449, 452 (1998); H.P. Sorett, Junk Science in the States: The Battle Lines, Atl. Legal Found. (2000), at p. 31)).

Any discussion regarding "junk science" naturally involves the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579...