Multiple studies, including a recent study of over 250,000 women published in JAMA, have found no statistically significant increase in the risk of ovarian cancer in women who use talcum powder. And, yet, some judges allow predatory trial lawyers to put “experts” on the stand to testify that talcum powder causes cancer. Although at least 8 different juries in 2019 rejected claims that Johnson’s Baby Powder caused plaintiffs’ ovarian cancer, others have found Johnson & Johnson liable, awarding billions in damages. Verdicts like these raise questions about the ability of juries to evaluate scientific data in context and to determine causation properly.
How much do you know about science in the courtroom? Let’s play “Two Truths and a Lie” and find out. Can you identify which of the following statements is not true?
A. A judge in a product liability case should admit all expert testimony and let the jury decide whom to believe.
B. A company should not be held liable for damage caused by its product simply because the product is hazardous.
C. When a jury holds a company liable for a plaintiff’s injury without direct proof that the company’s product caused the plaintiff’s injury, consumers pay the price.
Let’s take these statements one at a time:
A. LIE! Once an expert testifies, it is impossible to “unhear” his conclusions. Where the expert’s credentials are impressive and undisputed, juries may defer to the expert even after vigorous cross-examination reveals that the science is shaky or that the expert’s conclusions are speculative. Because the content of expert testimony is outside the realm of an ordinary juror’s experience, trial judges play an important gatekeeping function in determining the admissibility of expert testimony.
B. TRUTH! “Hazard” is the possibility that, at some exposure level and under some circumstance, a substance or product might pose a risk. “Risk,” on the other hand, refers to the likelihood that actual exposure in the real world will cause harm. Weed killer, for example, is toxic to weeds. It may also cause harm to a human if she bathes in it repeatedly or drinks it. Weed killer, in other words, poses a hazard to humans. But that does not mean that normal use of weed killer poses a significant risk to humans of developing cancer. In a product liability lawsuit, a jury should not find a manufacturer liable unless there is proof of actual exposure at the particular level of risk.
C. TRUTH! Verdicts that are not based on careful, fact-based determinations of causation impose unfair economic burdens on the manufacturers of safe and beneficial products. Ultimately, it is the consumer who pays the price of these verdicts in the form of higher prices and reduced access to useful products and potentially life-saving medications and vaccines.
Bottom line: In product liability cases, a jury is not supposed to hold a defendant company liable without proof that the company caused harm to the plaintiff. In determining causation, science matters. Judges must, therefore, take particular care to ensure that lawyers and experts do not mislead or emotionally manipulate jurors with scientifically unreliable testimony.
To learn more, read IWF’s Legal Policy Focus here.