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Chemist in the Courtroom

Robert D. Athey, Jr.

Scientists Have 'Big Cases,' Too

On one case I was involved from beginning to end: a lawsuit involving the alleged theft of a trade secret. The technical director for a paint company called one day to ask if I could help interpret some infrared spectra (used in quantitative analysis of organic formulations).

I went to visit him, and he introduced me to the company's lawyer, a rather famous Los Angeles attorney. The lawyer and I worked together for about 10 months. I had to deal with so much paperwork (cubic yards of it) that I hired my mother-in-law (a retired Clerk of Courts) to help sort, file and enter into the computer information involved in the case.

The suit alleged that a person back East had illegally obtained the formulation for a valuable unique paint formulation. In the paper search, we found a copy of the actual stolen batch card. However, a key component of the formulation was not listed on the card, as the amount used needed to be adjusted for each batch.

The impostor paint, which turned up in Boston, looked like the L.A. paint when applied but did not have the long life or maintenance advantage of the original. Even so, it was making a ton of money for the recipe thief.

The formulation was unique. There were five essential ingredients, and their proportions were critical. That the Boston firm's recipe matched in all five components to the third significant figure was a smoking gun.

One of my assignments was to get spectroscopic comparisons of all competing products. I was surprised to find that one company's formulation matched the infrared spectrum of the L.A. formulation but had completely different components (except one) and did not quite have the physical property performance the L.A. product had. One can imagine their chemists trying formulations until they got an IR match and thinking they had it. Until I saw those two spectra, I'd have bet any amount that no two different paint formulations would have the same spectra. So much for science.

In many cases, the trial is the anticlimax for the expert, and the handling of expert testimony can sometimes surprise the logical scientist. In this case, probability predicted that our client's formulation could not be reproduced to the third significant figure by chance but once in 1015 times—several billion times less likely than winning the California lottery. The judge would not allow that argument, as there is a California Supreme Court ruling prohibiting statistically based predictions as evidence! Nevertheless he immediately found for our side, and my client ended up owning two more companies.

Overall, I'm impressed by the potential for scientists to perform service in disputes and the amount a scientist can learn from involvement in these cases. The consulting scientist can find remunerative employment as an expert for the law, in preparation for and in the courtroom—and be entertained in the process.

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