Juries' Scientific Guesswork Has No Place in Courts
“The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”
Retired Federal Circuit judge Richard Posner’s 1996 observation is exceptionally relevant today, as judges and juries see more lawsuits in which scientific evidence plays a crucial role— including the impending onslaught of COVID-19 litigation.
Sadly, these pivotal decisions are often made based on emotion and guesswork rather than settled science. Revisions to the rules governing expert witnesses and judges’ role as “gatekeepers” and juries as “arbiters” of such evidence are crucial to reduce the “guesswork” Judge Posner referred to decades ago.
The public agrees. A recent poll of Americans conducted by the Center for Truth in Science found that 61% of those surveyed believe juries should not award settlements unless there is consistent scientific evidence to do so. In fact, they believe that juries themselves are not qualified to make statements or decisions about the safety of a product or ingredient.
Rather, respondents believe that court-appointed panels of independent scientific experts are the “gold standard” when it comes to determining settled science amongst contradictory and conflicting claims.
Recently, negotiations between lawyers for Bayer AG and those for the plaintiffs of several mass tort lawsuits attempted to achieve this gold standard by presenting U.S. District Court Judge Vince Chhabria with a proposal to create an independent scientific panel that would evaluate the link between glyphosate, the active ingredient in Roundup weed killer, and cancer.
Unfortunately, Chhabria dismissed this small (and popular) glimmer of common sense and fairness by questioning the constitutionality of taking it out of the hands of a jury and handing the issue to a panel of scientists.
Meanwhile, in a separate California courtroom, Judge William Shubb permanently blocked efforts to require cancer warning labels on Roundup under the state’s Prop. 65 rules, sagely stating that such labels would be misleading, were not backed by regulatory findings, and undermine “California’s interest in accurately informing its citizens of health risks.”
The latter courtroom is focused on the value of settled science, the former wants to place the responsibility for making decisions about complex issues that could impact businesses, their employees, and millions of consumers in the hands of often inexperienced jurors who may not have the scientific knowledge to make well-informed decisions, despite the public's concerns about the fairness of such a system.
In fact, Bayer’s decision to pursue a settlement in the first place was based on economics, not scientific evidence or an admission of guilt. It is impossible to estimate the cost of defending individual lawsuits in multiple state jurisdictions for decades to come. Settlements allow companies like Bayer to move forward by setting aside a definitive amount of money for current and future claims while also allowing it to continue to produce the popular weed killer
This is just one of dozens of examples showcasing how the mass tort system in the United States has shifted away from one that was designed to uphold scientific integrity and protect consumers by reducing the asymmetry between individuals and large corporations to one that extorts money from corporations through threats of years—and potentially decades—of costly litigation.
Mass tort lawsuits have their place in the American judicial system. Their mere presence is a strong incentive for corporations to conduct extensive research and testing on virtually every consumer product before bringing it to market. And, for those companies that cut corners, hide evidence, or otherwise attempt to market dangerous products to unsuspecting consumers, the penalties are severe and justifiably so.
However, as polling shows, it is time to re-think the rules. There is something inherently wrong with a system that fosters mass tort lawsuits based on powerful emotional narratives and “scientific guesswork” determined by individuals who, while well meaning, lack scientific expertise.
The gold standard of expert-determined scientific evidence should be the new standard in America's court system.