How billion-dollar payouts incentivize bad science
This piece is a continuation of last week’s commentary on the mass tort machine.
Over the last year, I have regularly chronicled the latest news and updates on mass tort litigation surrounding glyphosate, the main ingredient in Round-Up weedkiller, here at the Intersection and in external commentary.
In this case, hundreds of thousands of plaintiffs allege that exposure to glyphosate caused their cancers and await their share of an $11 billion settlement—most of which will go to a handful of law firms—based on the final conclusion.
Similarly, thousands of plaintiffs await the outcome of a $2.1 billion jury award against Johnson & Johnson that determined exposure to talcum powder caused their ovarian cancer. Johnson & Johnson is appealing the decision to the U.S. Supreme Court, but the consequences have already begun to trickle down, with J&J pulling talc-based baby products from U.S. markets last year.
In both of these cases, emotion appears to have overruled scientific facts. Jurors dismissed, ignored, or simply did not believe the overwhelming scientific evidence presented during the trials that cast doubt (if not entirely discredited) the alleged connections between exposure and disease.
When emotion takes over—especially fear driven by greed—the consequences can be severe. This scenario creates what we have dubbed a “tangled mess” that ultimately costs communities thousands of well-paying jobs, makes household items more expensive, and leaves essential workers with less effective tools to do their jobs.
This leads to a very important question: can we improve the system and untangle the mess? We believe the answer is yes, which is why the Center is working on an initiative that would help judges, juries, regulators, legal scholars, and legal educators determine the probability that exposure to a chemical caused a disease or other impact. Stay tuned for more to come on this over the next few months.
In addition, the Center is taking a close look at the use of independent scientific panels as a resource for judges and regulators—most of whom have little, if any, scientific training—to utilize their expertise and analysis of evidence prior to it being submitted for consideration in a courtroom or hearing.
Finally, next week we will announce the recipients of our first round of research grants on issues at the intersection of science, justice, and the economy—glyphosate, talc, ethylene oxide, and PFAS—that will help shed light on the veracity of the existing research on each topic with the ultimate goal of distributing it to policymakers, judges, attorneys, and consumers in an effort to bring a sense of balance – to our judicial and regulatory forums.
Read our precursor to this article, Fear, greed dominate the mass tort industry playbook.