Keep Junk Science Away From JuriesMay 5, 2021
Law360 has published my Expert Analysis/Opinion, Keep Junk Science Away From Juries. The article explains that juries are being called upon to assess an increasingly broad range of scientific issues—ranging from medical causation in class-action/mass-action product liability litigation to the alleged effects of fossil-fuel emissions in climate-change damages suits. For this reason, trial judges’ “gatekeeper” role, i.e., ensuring that juries only hear expert testimony that is scientifically sound, has become more important than ever.
The U.S. Supreme Court emphasized trial judges’ responsibility to exclude unreliable expert testimony in its Daubert trilogy of cases. But using the current wave of talcum powder product liability litigation as an example, my article points out that some trial courts recently have shirked their gatekeeper duty and allowed juries to award breathtaking amounts of compensatory and punitive damages based on scientifically flimsy testimony.
This is all the more reason for appellate courts to review and reject jury verdicts based on junk science since they deprive defendants of the right to due process.
The Atlantic Legal Foundation, where I serve as Executive Vice President & General Counsel, long has been one of the nation’s foremost advocates for sound science in judicial and regulatory proceedings. Recently, Atlantic Legal filed an amicus brief urging the Supreme Court to review mass-action talc litigation, Johnson & Johnson v. Ingham, No. 20-1223, where the defendant, Johnson & Johnson, was deprived of due process in several ways, including because a Missouri state-court trial judge allowed the jury to hear unreliable scientific testimony regarding an alleged link between women’s personal use of talcum powder and ovarian cancer. In another recent case, Atlantic Legal filed an amicus brief arguing that state-law climate-change damages suits, insofar as they are not barred by the political question doctrine or federal preemption, should be adjudicated in federal courts, not state courts.
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Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation, a national, nonprofit, public interest law firm whose mission is to advocate for individual liberty, free enterprise, property rights, limited government, sound science in judicial and regulatory proceedings, and school choice.