Last week, we highlighted the reforms that a distinguished panel of experts believe are needed to improve the quality of scientific evidence used by regulators, and by extension, the quality of decisions based on that data.
The panelists — which included two of the Center’s board members — were discussing the role of scientific expertise and evidence in the legal and regulatory arenas, at a Roundtable hosted by R Street Institute. You can watch a replay of the event here.
Below is a quick recap of the panel’s recommendations on how to improve the use and quality of scientific evidence in the courtroom. Legal panelists included:
- Lawrence Ebner, executive vice president and general counsel of the Atlantic Legal Foundation
- Tim Pratt, former general counsel of Boston Scientific, attorney in private practice
- Anthony Marcum, resident fellow at R Street Institute and panel moderator
Litigation vs. Regulation
Litigation relies on the probability of a product injuring a specific party, while regulation relies on the probability of a product injuring a population or sub-population.
Explosion of Mass Torts
According to Pratt and Ebner, 62% of federal lawsuits are multi-district litigation (MDL), also known as mass torts. This type of lawsuit has exploded in popularity because:
- The rules allowing the consolidation of cases into mass torts are 50 years old and desperately need to be updated.
- Trial attorneys spend over $200 million/year on TV ads to recruit potential claimants.
- The rules allowing trial attorneys to “forum shop” — to file their cases in jurisdictions that are historically friendly to mass tort claimants — drive up the number of cases and the size of awards and settlements.
The Fundamental Problem with Mass Torts
- The ability to consolidate cases allows a large number of “junk lawsuits” to get included in the MDL. This drives up the cost of discovery and increases the financial pressure on defendants to settle.
Federal and State Conflicts
- Panelists agreed the conflict between federal and state regulation could have a dramatic impact on thousands of MDL cases. For example, an existing MDL brought by plaintiffs against the manufacturer of Roundup claims the company “failed to warn” consumers about the potential danger of using the weedkiller. However, the FDA, which regulates the chemical, has repeatedly said there is no reliable scientific evidence to require such a warning. If the courts rule that manufacturers are required to make warnings despite the lack of a regulatory requirement, the doors to unlimited future mass torts would be thrown wide open.
Independent Scientific Panels
- Both panelists felt that having judges use independent scientific panels to determine the validity of evidence to be admitted into a courtroom — a concept strongly supported by consumers, according to research done by the Center for Truth in Science — was totally unworkable from a due process standpoint.
- Instead, they suggested that additional education for judges to help them with the role as the “gatekeepers of scientific evidence” would be more effective.