Just a couple of weeks ago, respected science writers, Alex Berezow and Hank Campbell wrote an interesting column in which they questioned the legitimacy of a recent string of verdicts regarding Johnson & Johnson talcum powder products and their alleged link to ovarian cancer. It’s a topic that we may have covered once, twice , three times , or even four times.
If there is one area where our articles fall short and Berezow’s and Campbell’s excel it is assessing the scientific merit of the case. Berezow and Campbell make compelling arguments that the threat posed by Johnson & Johnson talcum powder products may be exaggerated and the supporting scientific research methodologically unreliable. They also point out that despite the scientifically unconvincing evidence, 3 separate juries found Johnson & Johnson liable and issued awards ranging between $50 million and $70 million to women suffering from ovarian cancer who had used Johnson & Johnson products.
Had Berezow and Campbell stopped there, their work would have been a great public service and done much to clarify the controversy surround Johnson & Johnson talcum powder products. Unfortunately, from their solid scientific argument, they made a foray into law with disastrous results. Based upon the talcum powder jury awards, the legal antics of John Edwards in birth defect cases from 20 years ago, and the settlement between Pacific Gas & Electric Co. (PG&E) and Hinkley, CA residents, Berezow and Campbell conclude that juries of every day citizens are simply incapable of understanding the science in these cases. As a result, they suggest that we are in need of medical malpractice reform, where these cases are decided by expert juries with the requisite education to understand the science involved.
Berezow and Campbell make a dangerous call to action with an incomplete understanding of the law or the cultural ramifications of their suggestion. Replacing citizen juries with expert juries is undemocratic and a threat to the rights of each and every American. To do so because juries sometimes make bad decision, based upon “junk science” is particularly foolish.
How Berezow and Campbell Get the Law Wrong
The first clue that the authors have a shaky grasp of how the law works is when they called for their expert jury reform to be implemented under the aegis of medical malpractice reform. Of their 3 examples, only the John Edwards’ cerebral palsy cases were tried under this area of the law.
The PG&E case of Erin Brockovich fame is a red herring argument, since that litigation wasn’t decided by a jury, but by arbitrators. The two sides agreed to arbitrate the dispute, which arose from contaminated drinking water in the town of Hinkley, CA.
The PG&E case of Erin Brockovich fame is a red herring argument, since that litigation wasn't decided by a jury, but by arbitrators.
Presumably, the arbitrator had the skills necessary to understand the science involved in the case. Even if they couldn’t, the authors’ preference for expert juries wouldn’t come into play, because the cases were resolved outside of the court system. Any reform that mandated expert juries in such cases would serve as a blow to both the court system and the arbitration process. For the former, it would undermine one of our most fundamental rights as citizens, to have matters of fact decided by our peers, while it would render arbitration a mere duplicate of the civil court system, making it a redundant venue to resolve disputes.
To put things more bluntly, the PG&E/Hinkley dispute is a terrible example for those who think we need expert juries. Presumably, both sides agreed on the arbitrator. This arbitrator looked at the science and awarded compensation to Hinkely residents. If the arbitrator didn’t understand the science, which would be the only argument for having an expert decide, then PG&E screwed up in consenting to the arbitrator. I understand that Berezow and Campbell would like to see cases decided on a more scientifically solid basis, but there is no system in the world that can save someone from poorly picking an arbitrator, if that’s what occurred.
Also, Berezow and Campbell attempt to highlight the problems with the Hinkley arbitrator’s awards with an epidemiological study, which tens years after the conclusion of the case showed that their was no increase in the rate of cancer in Hinkley. The problem with this line of argument is that juries, arbitrators, or anyone involved in a legal case can only proceed with the evidence as it is shown at the time. In the Hinkley case, an arbitrator ruled that it was more likely than not, based upon the facts known at the time, that the heavy metal pollution caused by PG&E was the cause of the cancer’s in the community. Evidence that surfaces later is immaterial.
The courts deal with humans and human understanding is almost always incomplete. Part of this is that issues need to be resolved on human time scales. When people are injured and the cause of the injury isn’t clear, justice still demands that a decision be reached. It would be unconscionable to tell sick or dying people that the science isn’t really settled in their case, so they’ll have to wait 10, 20, or even 30 years for the question to be resolved. Instead, we present the evidence that exists, both sides get to vigorously expose problems with that evidence, and reasonable, every day people render a verdict.
It would be unconscionable to tell sick or dying people that the science isn't really settled in their case, so they'll have to wait 10, 20, or even 30 years for the question to be resolved.
Berezow and Campbell also mistake the area of the law governing the Johnson & Johnson talcum powder litigation. They call for medical malpractice reform in an area of the law that is governed by products liability law. This isn’t just legal nit-picking, the rules and applicable laws are quite different from one another.
The case against Johnson & Jonhson is based upon a legal concept known as failure to warn. Under this doctrine, if a manufacturer has reason to believe that their product may have negative consequences, they have an obligation to warn consumers. This empowers consumers to make informed decisions. It also relieves manufacturers from most of the potential liability that arises from disclosed harmful effects. This is why every drug commercial you see on television has a long list of side effects, some of which even include death.
Had Johnson & Johnson slapped an adequate warning label on their talcum powder products 40 years ago, when they first go wind that their may be an issue, they would have absolutely no liability today. It may seem silly to scientists that a company should put a warning on a product when the science behind its potential dangers isn’t firmly established. After all, it may turn out there there is absolutely nothing harmful about talcum powder.
Of course, the opposite end of the spectrum can be seen in American tobacco companies and their decades of trying to manufacture doubt about the dangers of their products. While the government mandated warning labels on cigarettes, the industry, fearful of adverse verdicts, based on real science, continued to try and manufacture evidence to the contrary for many years.
All of this is to say that there is no set in stone guideline about how much evidence of harm there has to be before companies warn their customers. I would venture that a good portion of the verdicts that we’ve seen in Johnson & Johnson talcum powder cases comes from the fact that the company was aware that their may have been an issue as far back as the 1970s.
I would venture that a good portion of the verdicts that we've seen in Johnson & Johnson talcum powder cases comes from the fact that the company was aware that their may have been an issue as far back as the 1970s.
Seen in this light, the amount of the jury verdicts reflects as much the desires of juries to send a message that companies should fully address concerns about the dangers of their products, as it is their understanding of the science behind liability.
At it’s most basic level, having juries decide these important matters is the most direct incorporation of democracy into our system of government. On a practical level, this allows average citizens to be the ultimate arbiters of how we expect people and businesses to behave in our community.
Without putting words in their mouth, if I were to take a message away from the talcum powder juries in the cases so far, it would be, “Hey, if you own a company and there is evidence your product could hurt people, either do the necessary research to find out if it does, or warn people about any potential hazards and let them decide.” This isn’t an unreasonable assertion, even if the evidence used to establish the link between talcum powder and ovarian cancer is questionable. Whether or not Johnson & Johnson is liable in this case, they’re certainly not blameless.
From a scientific point of view, this creates a problem. Certainly, the research that first suggested the problem 40 years ago was not conclusive and the results may have been erroneous. Scientists have the luxury of patience. They can wait for more data and better research to better decide that question. The law has to deal with events and facts as the are known at that specific time.
A great example of this principle are the John Edwards’ cerebral palsy cases from the 1980s. We can see how a question could be decided correctly according to the law, but poorly from a scientific perspective. Most of Edwards’ biggest victories were tied to interpreting fetal heart rate monitor results to establish a connection between delayed medical intervention in deliveries and cerebral palsy. We now know this link to be non-existent, but it wasn’t a completely unreasonable argument to make in the 1980s and 1990s.
Doctors began using fetal heart rate monitors widely in the 1970s and 1980s. One of the original hypotheses was that a large number of cerebral palsy cases were the result of an oxygen deficiency during delivery. It then stands to reason that if there were anomalous readings on the fetal heart rate monitor and that the child was born with cerebral palsy that a connection might exist. It wasn’t John Edwards who first put forth the connection, but the expectations of the scientific community.
There was a problem, a proposed solution, and the real-world observations would decided whether it was true or not. However, a scientific hypothesis sounds an awful lot like a marketing claim.
At this point we can see a very large divergence between the law and science. That fetal heart rate monitors could prevent cerebral palsy was a perfectly legitimate scientific hypothesis. There was a problem, a proposed solution, and the real-world observations would decided whether it was true or not. However, a scientific hypothesis sounds an awful lot like a marketing claim. If doctors shared this hypothesis with patients, informing them that fetal heart rate monitors might be able to detect fetal distress and therefore reduce the chances of complications like cerebral palsy, then their scientific hypothesis crosses the line into a marketing claim.
Marketing claims are made by companies all the time. Unless they considered “mere puffery” (e.g. new and improved formula, cleans 50% faster, etc.), these claims are the basis for which many people by goods and services. As such, they are expected to be true. So if a doctor says that they use a certain piece of equipment for a particular reason, if that equipment isn’t up to the job, the doctor can be held liable for the consequences.
Based upon this expectation, from scientists themselves, along with some well-documented theatrics on the part of John Edwards, North Carolina juries were convinced to award large amounts of a compensation to many parents of children born with cerebral palsy.
How this happens is that the threshold to hold something true is much lower in a civil case than it is in the scientific community. For a jury to be able to conclude that A caused B, there only has to be a preponderance of the evidence. Put A and B on a scale and if it tips every so slightly in A’s direction than that’s the answer. One the other hand scientific consensus not only requires strong evidence tipping the scales all the way in one direction, but data that also removes objections on the other side of the ledger.
Let’s apply this to a simple type of accident we see every day in car accident law. Two vehicles come to a stop sign, there’s a miscommunication and one car strikes the other. Both drivers accuse the other driver of being the one who caused the accident. Assuming that there are no witnesses, which there usually aren’t, what we are left with is the testimony of the two drivers and the physical evidence that we can gather based on the conditions of the vehicle.
The threshold to hold something true is much lower in a civil case than it is in the scientific community.
If we were to look at such a scenario scientifically, instead of legally, there would likely be too much doubt to determine liability with enough certitude for a scientific explanation to be valid. In fact, the vast majority of personal injury cases would be impossible to resolve if the standard of proof was as high as what scientists demand. Millions of people who are able to obtain compensation under the current system would be left out in the cold.
Such a system would greatly favor wrong-doers, so long as their negligent behavior didn’t account for all of the blame in an incident. The reason we don’t have a system like this is that while it’s far more scientific and rational, it would be a disaster for imperfect, irrational being likes people.
Further it’s not as is if the manipulation of science is a one-way street. Tobacco companies were able to fund their own science for decades in an effort to mislead the public and undermine the damages claims of smokers. In fact, a system that elevates science to such a degree as to preclude “junk science verdicts” is a system that can more easily be manipulated by large interests better able to fund their own research. Instead of providing an outlet that does its best to level the playing field between the weak and the powerful, our civil justice system would be transformed into a technocratic cudgel, wielded by the powerful, beating back the desires for justice of the least fortunate among us.
Perhaps the most important obstacle to expert juries is that (in federal courts, at least) they are blatantly unconstitutional:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Short of constitutional amendment, the 7th Amendment of the U.S. Constitution guarantees us the right to a jury trial. While one could make an argument that expert juries may be permissible on the state level, there’s no getting around the 7th Amendment in federal court. While some would argue that the Constitution isn’t specific as to the composition of the jury, we have common law tradition dating back hundreds of years that juries are comprised of ordinary citizens.
Even if Berezow and Campbell did get the expert juries they are calling for, it would simply result in a venue shift from state court to federal court, since most products liability cases involve companies and customers from different states. The result would be delays for victims a Pyrrhic victory for the expert jury camp.
Expert Juries Are a Dangerous Idea for Justice
For the author’s proposed reforms to have the impact they were looking for, they wouldn’t just apply to medical malpractice, but to conceivably any area of the law where scientific or technical information is crucial to determining questions of fact. As a result, our system of justice would be profoundly changed and fundamentally perverted. There would be a strong incentive for defendants to introduce ancillary technical information, just to disqualify a lay jury, so that they could have a more favorable “expert jury.”
More simply put, we have trials so that we don't have shoot-outs.
While not unique to the authors of this piece, misunderstanding the most basic functions of our justice system, criminal or civil, is a problem that places us all in danger. At its core, our justice system is a means of relieving the social pressure that comes when a person or group is wronged by another. More simply put, we have trials so that we don’t have shoot-outs.
Part of what makes jury verdicts the social pressure release valve of our system of government is that whatever decision is reached, right or wrong, it is reached by people chosen from the plaintiff’s community. It is the one area of our government where the experts defer to the common people.
In calling for expert juries, Berezow and Campbell adopt a common misconception about courts. Many people look at large jury verdicts and see gullible juries and courts that cannot defend themselves. Nothing could be further from the truth.
The best defense courts have against unfounded lawsuits is the motion for summary judgement. Most of the ridiculous lawsuits that we see, such as the Virginia lawyer who sued a dry cleaner for tens of thousands of dollars are dismissed before they even get started due to a lack of evidence.
In cases that rely on science and the testimony of experts, defendants are free to make a Daubert Challenge.
In cases that rely on science and the testimony of experts, defendants are free to make a Daubert Challenge. This is a legal procedure that assesses the suitability and relevance of an expert witnesses testimony, methods, and findings.
To understand how this works, let’s suppose that I wake up on the frosty side of the bed one day and decide that I’m going to be an expert witness. I’ve written a fair bit about drunk driving accidents and I’d like to put that knowledge to use at trial. I put out some feelers online and an attorney hires me as their expert toxicology witness (this would never happen, attorneys vet expert witnesses). My role at the trial is to use the toxicology reports from the hospital after to accident, to bolster that plaintiff’s claim that someone was drunk at the time of the accident.
The defense will no doubt conduct an investigation into my background and discover that my education is in the humanities and I have absolutely no training in microbiology. They’ll file a motion for a Daubert Challenge and the judge will use the following criteria, found in Rule 702 of the Federal Rules of Evidence:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Going down the list, I have no scientific or technical training. My specialized knowledge consists of little more than reading a few articles written for laymen. My testimony could be based on facts or data, not that I would be qualified to interpret it. Methods? I don’t need no stinking methods. As for my reliability to apply all of this to the case, I write about the law for a living. My ability to opine about blood alcohol content is as a layman, not an expert.
After going through the challenge, the court would bar my testimony, chastise the attorney who hired me, and put a quick and unceremonious end to my new career as a toxicology expert witness. I’ll have to go back to hoping for a case that hinges on an expert interpretation of 1920’s American ex-patriot literature.
Not to digress into silliness, but the courts aren’t defenseless. If the plaintiff’s experts in the Johnson & Johnson talcum powder case were allowed, then the judge had good reason to rule in such a manner. Berezow and Campbell are so worried about juries being hoodwinked by faulty science, they missed that the judge allowed potentially flawed research into the trial in the first place.
In our system, the judge is the real gatekeeper. Had Berezow and Campbell called for better scientific and technical training for judges in these types of cases, I would wholeheartedly support their efforts. It’s not just products liability cases based upon scientific claims that desperately need this kind of judicial expertise, but also cases involving information technology, environmental science, and a whole host of other technical areas where judges are asked to become experts at a moment’s notice.
Had Berezow and Campbell called for better scientific and technical training for judges in these types of cases, I would wholeheartedly support their efforts.
The last protection for defendants is their own legal representation. Reading an account of most large jury awards, one would think that a plaintiff’s attorney was free to stand in front of the jury and talk until they had convinced them to order the defendant to pay an exorbitant amount of money in damages. The truth is that the defendants, through their attorneys are free to question and challenge every bit of evidence. In some ways, they have the easier job. A defendant for the most part doesn’t have to prove a thing, they merely have to discredit the plaintiff’s evidence.
There are few things in science where the truth is amazingly complicated and lies are simple, which is why the ultimate triers of fact still have to be ordinary citizens. This isn’t to say that phenomena such as black holes or quantum mechanics aren’t complex, but there are dozens of scientists out there who do a fantastic job of making the processes at work accessible to laymen. If the general public can follow along with explanations in these cases, it seems silly that they can’t be made to understand an epidemiological argument.
As both a practical and a philosophical matter, expert juries aren’t going to work. Practically speaking, experts are just as likely to be hoodwinked as the average citizen.
First, expert juries can’t really fix this problem. If as studies seem to show, talcum powder exposure increases the likelihood of users contracting cancer by 33% (at most), then an expert jury would have to deny compensation in every single case, because the preponderance of the evidence would hold that any individual cancer is unlikely to be caused by such exposure. For every 4 cancers, we would only expect 1 to be the result of talcum powder exposure.
Suppose though that the study showed a 101% increase. In that instance, slightly more than half of all ovarian cancers in talcum powder users would be the result of talcum powder use and every woman would be compensated, since a preponderance of the evidence would say that talcum powder caused the cancer.
However, in many instances the range would fall somewhere in the middle. In these cases, the judgement of an expert is no more valid than that of a layman. Decisions have to be made about where to place the emphasis, the studies showing a greater effect or ones showing a lesser effect.
While it may seem like juries get things wrong all the time, as Berezow and Campbell suggest they have in the Johnson & Johnson talcum powder cases, such observations are merely an example of confirmation bias. In the millions of court cases that are floating around our court system, there are bound to be some that are decided incorrectly, either on legal grounds, or on an incorrect understanding of the scientific merit. The only ones we hear about are the cases where juries award large amounts of money. In cases where plaintiffs suffer catastrophic damages, but lose, there is nary a peep about our broken system.
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Expert witnesses are presented in cases so that lay people have the tools they need to reach a proper conclusion. Does it always work out? Nope. As with any system, the best witness isn’t always the one with the best facts, but the ones who marry great facts with great presentation. That’s not just a legal issue, but a recurring theme throughout every human endeavor. Slick hucksters will always be with us, whether we’re dealing with the law, science, or any part of life where parties have disparate knowledge (which is all of them).
Philosophically, expert juries are a return to a medieval clerisy, where learned experts, our supposed betters, are the only ones who can be entrusted with the power to determine right and wrong and distinguish truth from falsehood. There is no small irony that science, the engine that destroyed the clerical and aristocratic stranglehold on authority, now deems those insufficiently versed in their techniques to be unworthy of having a say in how court cases are decided.
One of the reasons that the United States exists is that some English potentates tried to strip the rights of the Englishmen living in America of their rights to a trial by a jury of their peers. I would venture that the gap between educational attainment of early colonial backwoodsman and learned people like Thomas Jefferson, James Madison, and George Washington was orders of magnitude greater than what exists between a scientist and a common juror today. Jefferson and Madison still preferred matters being decided by those backwoodsman than whomever the King deemed sage enough to decide such matters.
If the hoi polloi lack the requisite understanding to properly weigh the merits of a science-based argument as members of a jury, I wonder how we would expect them to accept the results of a decision that they didn’t understand? Part of what makes jury verdicts carry weight is the fact that they’re decided by people just like us. Removing that crucial democratic element from our system of justice is a recipe for further increasing class divides and reducing social cohesion.
In the interest of getting the science right, Berezow and Campbell get justice wrong.
The post Do “Junk Science” Verdicts Mean We Need Expert Juries? appeared first on Grossman Law.