Lawyers are often accused of botching the science, but if anything, it looks to me like the lawyers for Merck litigated their way around the science in Vioxx, the heart drug prescribed to 20 million Americans, and subsequently pulled from the market after further studies concluded that it increased the risk of heart attacks and strokes.  That led to 45,000 lawsuits.  But Merck just settled them all for the cheap price of $4.58 billion.  Merck appealed every case it lost.  It pushed the patient lawyers hard and made them look sleazy, identifying some plaintiffs who hadn't taken the drug when they got sick, had plenty of other health problems, and so on.  It won most of its trials, and sold the juries on the quality of the warnings that accompanied the drugs.  God knows how much it cost, but would you have bought Merck stock when the clinical study was released?  You should have.

EPA, on the other hand, wasn't going to let the science get in the way of its efforts to extend zero tolerance to Cryptosordium in drinking waters.  Perhaps mindful of the beating the agency took when it permitted minimal levels of arsenic to stay in reservoirs, in its latest national rule on water quality, EPA totally banned this other, little known toxin.  Some city water suppliers screamed that the rule wasn't based on the "best available science," as required by the statute.  But how is an appellate court supposed to figure that out?  The D C Circuit just assured itself that the agency had explained why it relied on the science it did use in developing the ban.

I don't claim to know the science any better than the lawyers involved with either dispute (indeed, I assure you that I know it worse).  But I think that perhaps the difficulties of these sorts of scientific inquiries don't undo the value of more traditional sorts of lawyering - like hard litigation or fully reasoned rulemaking.

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