Bad science is creating a harmful, tangled mess in American courtrooms. Right now, we expect judges—with little or no scientific training—to decide which scientific evidence and expert testimony should be admissible in trial. But without understanding the validity of the data, or its context within all available research, these high-stakes judicial decisions are mostly left to guesswork and gut feelings.
The end result is a patchwork of decisions that often contradict each other.
The shortcomings of our current system were on full display in two recent judicial developments. In the first, a New Jersey Appellate Court reversed a decision awarding $117 million to a man who alleged his cancer had been caused by Johnson & Johnson’s baby powder. The judge had allowed junk science into the courtroom and the defendant was granted a “do over” as a result.
“The appellate court had little difficulty in saying the trial court was ‘so wide off the mark’ in addressing expert witness opinion admissibility,” explained Nathan Schachtman, Esq., an attorney with more than three decades of experience with lawsuits involving complex science. Turns out, the “expert” witness in the trial had never actually studied the issue himself, and failed to cite support for his opinion.
Meanwhile, the U.S. Supreme Court declined to consider an appeal of a similar case in Missouri, leaving in place a $2.1 billion judgment against Johnson & Johnson and effectively ending the case. It was the complete opposite of a “do over.”
How can two courts reach such divergent outcomes on cases where the evidence was all but identical? Clearly, more needs to be done to address the admissibility of scientific evidence and expert testimony in the courtroom. Several options for improvement were addressed in a recent R Street Institute white paper.
Adding to the tangled mess is the unbalanced news coverage of such trial decisions. The media amplifies reports of large judgments awarded to plaintiffs, but follow-up stories are sparse when those awards are overturned or dramatically reduced. This only adds to the public’s confusion surrounding the actual risk of exposure to substances and their perception of product manufacturers.
This issue will be explored further in a Roundtable discussion later this year featuring the Center’s board chair, Dr. Richard Williams, along with the R Street Institute and others who believe courtrooms that are considering difficult scientific issues should be held to the same rigorous standards as the scientific community—and who are committed to finding solutions to make that happen.
By developing ways to increase the scientific knowledge of judges, improve rules on the admissibility of scientific evidence, and provide clear definitions of causation, we can finally begin to detangle the mess at the intersection of science, justice, and the economy.