"Junk Science" and Legal Testimony in a COVID World

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COVID-19 has disrupted the world like few other events in recent history. The disruptions are sure to lead to disagreements and serious legal disputes. As matters are sorted out in courts across the country, how should and how will science and expert testimony be used? How will the 'battle of experts' be engaged in the courts? Will standards of expertise change in either direction, either in sympathy for people who have suffered, or in anticipation of opportunistic plaintiffs seeking a payout?


Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP

Jeff Stier, Senior Fellow, Taxpayers Protection Alliance


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.



Greg Walsh: Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled, "'Junk Science' and Legal Testimony in a COVID World." My name is Greg Walsh and I am Assistant Director of Practice Groups at The Federalist Society.


As always, please note that all expressions of opinion are those of the experts on today's call.


Today, we are fortunate to have with us Mark A. Behrens, Partner and Co-Chair at the Public Policy Group, Shook Hardy & Bacon in Washington, DC, and is also a member of FedSoc's litigation practice group executive committee.


We also have Mr. Jeff Stier, a Senior Fellow at the Taxpayers Protection Alliance, who is also the chairman of the board of the Jewish International Connection in New York. He's also a Senior Fellow at the Consumer Choice Center.


After our speakers give their opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mr. Behrens, the floor is yours.


Mark A. Behrens:  Well, thank you very much to The Federalist Society for this invitation and opportunity to speak on this important topic today. We were planning on doing this before the COVID-19 public health emergency, and so some of the remarks are going to talk generally about the issue of the rule of science and the rule of law, and then we can talk a little bit about COVID-19 specifically, perhaps more in the discussion point.


      One of the things that I'm going to focus on today are a couple of materials that -- in our brief time today, I don't have time to go into all of them, but I recommend them to readers.


One is a paper that just came out this week by a Denver lawyer named Lee Mickus with the Washington Legal Foundation called "Gatekeeping Reorientation: Amending Rule 702 to Correct Judicial Misunderstanding about Expert Evidence". And I wish I had had this weeks ago because it's really terrific.


And it fits into the theme of a paper that I have that's forthcoming in a symposium edition of the Southwestern University Law Review in Los Angeles with my colleague, Andy Trask, and it's called "The Rule of Science and the Rule of Law".


And the theme of both of these is that, in an attempt to be inclusive of their treatment of scientific evidence, courts, I believe, have stumbled into a rule of law crisis. The rule of law works best when courts apply the rules in a robust and consistent manner.


Given a known set of facts, there should be a predictable set of outcomes in a given set of cases. Now, that doesn't mean perfectly replicated outcomes every time. But, in general, if we have similar cases—that is, plaintiffs alleging similar injuries or using a similar product against the same defendant—we should expect that the outcomes should be roughly consistent.


But we don't have that today. In fact, in those types of cases, we see extreme variability, not only from state to state, but even within the federal system from circuit to circuit. And what we now have because of that is inconsistent mainstream scientific consistence. And it's probably being driven by the liberal thrust by some court to permit expert testimony, and that's resulted in chaos.


Too often, courts are not executing or enforcing their gatekeeping obligation. Many courts are deferring questions about the reliability of scientific evidence to the jury on the theory that scientific disputes go to the weight of the evidence rather than its reliability.


But when judges allow questionable evidence to be admitted, the testimony may cloud, rather than clarify, the issues the jury is asked to decide, and the jury might be influenced by that and reach unscientific conclusions.


And so, going to this point of some judges that are seeing their role as merely studying the weight of the evidence and not going to its admissibility, we have some courts now that have really watered down Rule 702 and, I would argue, abdicate their gatekeeping role.


Some courts have made statements to the effect of, "The gatekeeping function is meant to screen the jury from unreliable nonsense opinions." So an opinion that's unpersuasive and outside the scientific mainstream may still be admitted by a court whose standard for exclusion is simply it can't be a nonsense opinion.


Other courts have said statements like, "The expert's opinion should be excluded only when it is so fundamentally unreliable that it offers no assistance to the jury."


So these courts are saying that they're applying Rule 702, but they're really allowing everything to come in unless it is just absolutely nonsensical. And, because of that, we do have, what I would call, a rule of law crisis that's forming in our courts because there's wide unpredictability. And we're seeing instances where the science in the courtroom and the outcomes in courtrooms are completely at odds with the scientific mainstream.


And when we have that, when science in the courtroom does not match up with science in the real world, science in laboratories, science that people read about in texts, we are going to lose faith in our court system. And I'll give you two very recent examples of this.


One is the Roundup litigation. There's a federal MDL in the Northern District of California on this. There are also state court cases, predominantly focused in the San Francisco/Oakland area of California—which is just coincidentally in the same area as the federal MDL—and many cases in the City of St. Louis.


The cases are about the ingredient glyphosate, which is the active ingredient in Roundup. And in 2015 -- this is a product that's been around for decades, but in 2015, the International Association for Research on Cancer, IARC, which is a part of the World Health Organization, issued a monograph declaring that it is probably—that is, glyphosate, this active ingredient in Roundup herbicide—is probably carcinogenic to humans. And they focused in particular on non-Hodgkin's lymphoma, which is a cancer in the lymphatic system.


But IARC's finding is a departure from the long-running scientific consensus that glyphosate does not pose a cancer risk at human levels. For example, the U.S. EPA does not currently consider glyphosate likely to cause cancer.


And, in fact, as recently as January of 2020, January this year, just a few months ago, EPA publically reiterated that it had thoroughly evaluated the potential human health exposure associated with exposure to glyphosate and determined that there are no known risks to human health from the current registered uses of the product, and that glyphosate is not likely to be carcinogenic to humans.


That's the position taken by virtually every leading regulatory authority in the world. The scientific consensus is crystal clear that this product does not cause cancer. And yet, in the three cases that have gone to trial, there have been enormous plaintiff verdicts that have come out of this.


And, now, why does that happen? Partly is, when you look at the opinion in the federal judge, for example, that allowed the evidence to go before the jury, allowed the plaintiff's expert, it appears that, being in the Ninth Circuit, that he felt compelled to rule as he did because of the Ninth Circuit's liberal thrust favoring admission. And he was quite candid to say that in the Ninth Circuit, a trial judge should not exclude an expert opinion merely because he thinks it's shaky or because the jury will have cause to question the credibility.


Instead, he said, "This emphasis has resulted in slightly more room to deference to experts in close cases than might be appropriate in other circuits." What he's saying is that in another circuit, these plaintiff experts may never have been allowed to testify. If that isn't creating inconsistencies and questioning calls about fairness and application of science in our courts, I don't know what will.


The talc litigation is another. In January of 2020, again, very recently this year, The Journal of the American Medical Association published the results of an original investigation in which it announced that, after examining four cohort populations involving more than 250,000 women, JAMA found there was not a statistically significant association between the use of talcum powder in the genital area and ovarian cancer.


And yet, there's been very wide variability in those cases. At one extreme, in Missouri, which has Daubert—they've adopted the federal standard by statute. And yet, in Missouri, a 22-plaintiff case in the City of St. Louis produced a $4.69 billion verdict, which is now under appeal.


But there have also been several multi-million-dollar verdicts in various jurisdictions, including California, whereas New Jersey courts have dismissed similar cases. And yet, other cases that have gone to trial, Johnson & Johnson has prevailed.


So, there again, you have plaintiffs that have essentially the same exposures, the same disease, using the same product, suing the same defendant, and you have some courts that exclude the plaintiff's evidence and some juries finding no liability, and one jury finding multi-billion-dollar liability.


This is going to be bad for our society. It undermines the rule of law. And there are a few things that can be done about this. One would be to look at the rule itself and see if the rule, Rule 702, can be improved.


Professor David Bernstein at George Mason Law School, who is one of the nation's leading experts on expert evidence, and DC defense lawyer Eric Lasker have written a very good law review article in the 2015 William and Mary Law Review on saying it's time to amend the federal rules of evidence to really restore the promise of Daubert.


The comments also could be addressed to make clear that there is no presumption or liberal thrust towards admissibility, and just public education through programs like this. Because it really enforces the wisdom of a comment that Judge Posner made more than 20 years ago where he said, "The courtroom is not the best place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it."


And when we have courts that are allowing science in our courtrooms that is unpersuasive -- I'm not talking about junk science. I'm talking about science that just is outside the scientific mainstream, as in the case of Roundup, or as in the case of talc. When those cases can go forward and result in verdicts that are completely inconsistent with the scientific mainstream, it really starts to lead to questions about whether we have a rule of law and whether our courts can be relied upon to follow the rule of science.


That concludes my remarks. I'm happy to let Jeff go and then answer any questions that the audience may have. Thank you again.


Jeff Stier:  Thank you, Mark. This is Jeff Stier. Mark, you really laid out a really good framework for the discussion that I wanted to open with, which is what are the ramifications of this problem that you lay out?


But, first, I just want to say it's not only a problem that's taking place in the law, but there is a crisis in the scientific community, and we're seeing it accelerate right now. And that's a crisis of -- scientific journals used to be an important test. If you're published in a scientific journal, that pretty much gives you the ability to testify on that topic that you've written about.


But there have been a proliferation of scientific journals, online journals, that there are these communities of one particular angle that peer-review each other and publish each other's articles of junk science. And all you have to do is get an expert testimony in is just say, "Well, they published here. They published on this topic."


So publication, in the days of the internet especially, really don't make somebody an expert. We're not talking about publishing in the New England Journal of Medicine or JAMA. We're talking about very specific journals on certain areas that are eager to take any content that they can get and also a rush to publish.


And we've seen hundreds and hundreds of articles published—which would get you in as an expert witness—on COVID-19. Nothing in science should be moving that fast in terms of the peer-review process. Now they have pre-publication articles, which, again, if you write a pre-publication article, that's going to get you in as an expert witness these days.


So not only is there a crisis in law and a lack of predictability, but there's a real problem in the scientific community. And I would point you to a really great resource for following some of that: a website called retractionwatch.com. And Retraction Watch follows some of the retractions that scientific journals have been forced to publish.


Unfortunately, many of those retractions, when they do come, only come after a pressure campaign. And it really does undermine the legal system and confidence in our legal system, but it also does a lot more than that.


Last year, a Gallup poll found that only 51 percent of Americans think socialism would be a bad thing for the country. And my concern is that, while maybe Bernie Sanders is no longer in the race, the 2020 election will be a big test for whether socialism does gain a foothold, not only taking root in the ballot box, but also from the jury box, and certainly from the bench as well.


I'm glad that we have an opportunity to talk about glyphosate. But why does it matter? Why does this matter to me? The problem is that when you don't have a predictable legal system, and when you have unpredictable science and experts getting their views to translate into jury verdicts, well, then you're undermining innovation itself.


These outsized verdicts harm society by discouraging investment in innovative products. Researchers at the University of Chicago Booth School of Business and Tilburg University recently aggregated data from more than 40,000 lawsuits from 1996 to 2011, and they found that the frivolous lawsuits tended to focus on highly innovative businesses, costing the average defendant—that's the average defendant—$1.1 million each year.


And those cases, they found, were, in effect, a disproportionate tax on innovation, which harms all of us. And looking at everything, as we do now, through the COVID-19 lens, there's a lot of uncertainty about even when businesses have permission from the authorities to open up again, in what context can you do so without risking legal action if one of your employees get sick? Whether they get sick at work or not may not even matter.


So there's lots of liability questions. There have been over -- The Wall Street Journal reported, I think it was last week, there were over 700 lawsuits filed already on COVID-19. Well, surely there are many more. And that goes back to before the shutdown.


Well, what about going forward? Even if authorities give permission for businesses to reopen, in what context will they be allowed to reopen? And to what degree will they be held accountable if an employee or a customer gets sick at a certain business location, to the extent that we could even know at this point?


So, I think, from an innovation standpoint and from a getting the country going again standpoint, this uncertainty does a tremendous amount of harm that is rarely seen without an examination of it.


The context that this is all happening -- and going back to the glyphosate example, the Roundup example that Mark used, when the European Food Safety Authority looked at glyphosate, they found that there was no, as Mark said, there was no concern about human cancer from the levels at which humans were exposed to glyphosate in its regular use.


And some activists, especially at IARC, were pushing the IARC to find a cancer cause when there wasn't. And the director of EFSA, the European Food Safety Authority, got into this kind of war of words with those that were pushing for a carcinogenic finding. And he lambasted IARC's politicized work. And he said that we've entered the Facebook age of science, where you post a report you like and you count how many people like it.


And he said, for us, this is no way forward. We can't evaluate scientific issues, whether in the regulatory environment—or I would argue in the legal environment—by people liking a study; by people liking a pre-publication study done by basically an outcast of the scientific community.


The anti-vaccine movement was started by scientists who would've been admitted to testify in these cases, but it was completely junk science. Eventually, that was retracted but belatedly and after the damage had already been done.


And so, living in this time when we've got this crisis in the legal system, as Mark points out, and this crisis in the science community, and now, living in the pandemic time, how are we going to continue to innovate? How are businesses going to know how to reopen, and do so without unnecessary litigation risk at a time when plaintiff and the plaintiffs' bar have already stated that this is an opportunity? This is a reset to be able to redistribute wealth, which is clearly a primary goal in the plaintiffs' bar movement, in the more politicized movement that exists.


And I think that's what we need to be concerned about. And, as Mark pointed out, there are some ideas about reforming how do we allow expert testimony. And I do think one of the answer is public education, is educating the public.


But I think, not only in forums like this, but there is a large degree of scientific illiteracy that exists. And in order to overcome this anti-capitalist view that does exist in many of the jury pools and in much of the bench, I think it's important for people to understand the negative consequences.


In one of the glyphosate jury verdicts, a juror was interviewed, and the question is, "How can you find that this weed killer, this component of the weed killer, is carcinogenic -- not only is it carcinogenic, which the EPA and other agencies found that it's not, but how do you know that it contributed to this person's cancer?" Well, you can't, but the juror said, "You know, the company has lots of money and these plaintiffs -- we're so sympathetic. They did get cancer." There was no link to the glyphosate, but they did have non-Hodgkin's lymphoma, and they were sympathetic, so kind of why not, was the jury's thinking.


And the plaintiffs' bar knows this and is looking for opportunities to, I think, capitalize on it. And I think we have to have our guard up for that. And, with that, I will close.


Greg Walsh:  Thank you. Let's now go to audience questions.


Dr. Jim Wallace:  Hi. My name is Dr. Jim Wallace, and I am the lead science author of work associated with the greenhouse gas Endangerment Finding. So I had a team of lawyers and scientists that have been working on this for over 10 years.


      I have to say, I just happened to see this coming in and it's a really appropriate topic, extremely appropriate topic. And, as I'm sure everybody on phone knows, one of the areas where we have the whole question of the quality of the science is in this global warming, climate change, and so forth area.


      Your Roundup example is easy because the science is really set. And you can talk about concepts like scientific mainstream and quality work that's been done in that area, but the notion of talking about, say, the consensus viewpoint in science. The consensus has no meaning in science. You're always testing working hypothesis. Whether CO2 is impacting warming -- that's a testable hypothesis by proper scientific method.


      And so it's really important that what you're doing always in science is setting up falsifiable hypotheses and taking the best available empirical evidence and testing those hypotheses.


      For example, in the climate area, we started that about seven years ago, and we published it. It's on a website. The authors are all there. You know exactly who the authors are.


Greg Walsh:  I'm sorry. Caller, would you mind getting to your question?


Caller 1:  Yeah. My question is you have to be careful about what you're doing here because you're setting up expectations for science that are not consistent with science, with the scientific method. So I think you're asking too much.


Greg Walsh:  We seemed to have lost that caller.


Jeff Stier:  No, I think that's a really important question. The doctor, I think, is highlighting something that Mr. Behrens and I were both pointing out is the challenge of how do you deal with scientific evidence; whether it's very weak evidence or whether it's junk science or whether it's a consensus or not a consensus opinion. And how do you deal with that in the courtroom?


      And I think the question is on point because they are two different systems. We have a scientific system, where you study a certain hypothesis and you try to validate it or invalidate it, and you've got a legal system, where you've got a specific set of facts in that particular case where a judge and a jury may play a role in figuring out what the answer is.


      And it's not only the scientific questions and the legal questions, but when it comes to public policy, I've been hearing, "Well, a court already found that glyphosate is a carcinogen." Well, as if that answers the scientific debate when certainly we know it doesn't. And those cases are an anomaly, at least in terms of whether the court or the jury got the science right.


      But I think it's an important point in the question, which is there are two different systems and neither of them are always going to get us an answer right away or the answer that we think is right. And that's why I think we need good education -- the public needs to be well-educated on science to help sort that out. And right now we're doing a poor job of it.


Mark A. Behrens:  Yes, I think those are excellent points. The other thing that I wanted to add is because these are, as you point out, two different systems, but in the civil lawsuit system, the plaintiff has the burden of proof. So where there isn't the so-called scientific mainstream, where you don't have, let's say, 10 studies that all come to the same conclusion, but you might have one that goes one way or another that goes the other way. In that type of setting, admittedly, there isn't a scientific mainstream position, a consensus position.


      But, by definition, then, I don't think you can say that it's more likely than not that that product caused the plaintiff's alleged disease because there isn't a consensus that would say that it's more likely than not that there was causation there. So I think, as you point out, these are very critical questions.


      But I think that was the concluding point in my part that Judge Posner said is we have to be very careful. Law does best when it lags behind the science, not when it's leading it.


Greg Walsh:  Caller from area code 404, you're on the line.


Caller 2:  Yes. I was wondering whether you had heard of the term "the fragility index"? It's a way of testing statistical analysis of scientific studies. And it's a way of showing how really significant those statistical analyses are, or what lack of significance they have. It's the fragility index.


      My son, Dr. John Michael Caldwell, is just publishing an article on this very subject. It hasn't been published yet, but he's a biomedical engineer and an orthopedic surgeon. And he's analyzing orthopedic literature and a lot of other medical literature based on this and it's a way that you can refine your analysis of the statistical analyses of it. I was wondering whether anybody had heard of it, that fragility index?


Jeff Stier:  Well, I'm not familiar with it, but the good news is your son will be eligible to testify as an expert. And usually, in this case, perhaps defense lawyers would have an opportunity to bring experts that, if we just use that glyphosate Roundup example again where you've got all of the scientific evidence in the world going against IARC, the WHO Cancer Group. The fragility study might be a good test to apply to the expert witness or the expert testimony on the plaintiff's side in such a case. So I think it's important to bring in those types of other expert opinions.


      But going back to Mark's last response, is we can use all the science in the world and we can have the burden on the plaintiff, at least to show a preponderance of the evidence is on their side, but we all know that, unfortunately, it's not just a preponderance of the evidence, but it's often a preponderance of the most sympathetic party in the case.


Greg Walsh:  We'll now go to our next caller.


Caller 3:  Hello. I would like you to consider what you really mean by junk science and scientific consensus in the light of history. If you remember Galileo and Copernicus, they stood alone in the face of a collective scientific and religious community that said that the earth was flat. But, eventually, everyone caught up with the truth.


So science is supposed to get us to the truth, but it's not the only means. We could all discover the truth and we don't need, necessarily, the science community to tell us what the truth is; that a jury itself could discover the truth based on all the evidence.


And that 702 is fine to allow expert opinion from both sides. And that's fair. Let there be a battle of the experts. Why do you have to only have one side of the issue if you can have both? And let the jury be the judge. Thank you.


Jeff Stier:  You know, I think that's a large part of what we're seeing. If I can, on a lighter note, the Flat Earth Society folks are somewhat excited because they're hearing that the end of the world is near. A little COVID-19 humor for you.


But, seriously, that's a very valid point. What is junk science? How do we define junk science? You could argue there is no such thing as junk science; there are varying viewpoints. But there is a scientific method, as the doctor pointed out, too, in the first question. There is a scientific method.


And I think it's important that, while there are varying viewpoints that should be allowed, we should, in today's modern world, while accepting a range of viewpoints from different qualified experts, I do think it is important for modern society to embrace the scientific methods and the standards that the scientific community adheres to, as imperfect as they may have been in the past, and as imperfect as they are today. There needs to be a scientific standard that I would hope we could all defend.


Greg Walsh:  We will now go to our next question.


Eugene Kerman:  Hi, speakers. It's Eugene Kerman here. My question is are you suggesting that in cases where the evidence is in equipoise, the judge should be able to overturn jury's verdict for the plaintiff? And, if so, to kind of balance that, are you also suggesting infinitely extending statutes of limitations and that the plaintiff should be able to sue again if new science is discovered shifts the balance to the plaintiff's side? Thanks.


Mark A. Behrens:  The principal goal that I'm advocating would be for judges not to abdicate their gatekeeping responsibility at the front end of the case. So where you have science that I would call unpersuasive, which there may be more to it than just outright junk science, that it's just nonsensical.


I don't like using the phrase "junk science" because it would seem to say that the judge can only exclude nonsensical expert evidence. But where you have -- in the situations like the talc, or the situation, particularly, for the Roundup where you have every regulatory in the world on one side saying something and IARC and plaintiff experts taking a different position, it's much easier in that regard.


But that's why I don't like to use the phrase "junk science". I focus more on unpersuasive or science that doesn't reflect the scientific consensus where there is one. And in those situations, the courts, I believe, have a gatekeeping duty -- and the Supreme Court and Rule 702 all say this. It's not just me. It's the Supreme Court and it's Rule 702 that say the judges have a duty to be gatekeepers in that situation and not let that evidence go to the jury. And we're just not seeing that happening on a robust or consistent basis, not only across the states, but even within the federal judiciary.


So my preference would be to see the judges actually follow the letter and spirit of the rule and only have the jury in cases where there is strong evidence that should be admissible on both sides, and that's really the function for the jury in that setting. But the judge needs to do his or her job upfront.


Jeff Stier:  And I'll just add to that, somewhat tangentially, because I think a really good theme of the questions that we've been getting is that there's these two different systems. They're both imperfect. We don't have really good answers. But I do think we should all be aware that we are all beneficiaries of technology, whether it's low-cost food, reduced soil erosion from glyphosate, critical components of computers and cellphones from siloxanes, from chemicals that are widely used in aircraft.


      Innovation makes life better for everyone. That's why they're so widely used. But the system that helped us develop them is under attack. And Congress isn't always going to fix that problem. When Congress passed the update on the chemical safety law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, they were very clear that there would be no preemption for toxic tort litigation.


      So, that is, if the EPA says this chemical is not a carcinogen, you can still go out and sue for it. You maybe will have an even bigger burden of proof, but there is no preemption, and that is just in 2016. Let's say the CDC says, "Okay, businesses should reopen with the following safeguards," and a business goes ahead and reopens and strictly uses those safeguards. They are still going to be exposed to litigation, even if they follow those safeguards to a T.


      So you need to have that predictability, and, while I think the courts can in some cases do a better job -- well, maybe we need to improve the standard of what scientists can have the opportunity to testify. But I think we need to be aware of this issue of preemption. And if we're going to have a suit, especially in a federal jurisdiction or if a state issues guidelines on what you need to do to reopen and a business follows those guidelines, there needs to be legislative preemption.


      And in order to do that, the legislature should be saying that this preempts litigation. Having an awareness of this problem and the fact that the courts are not always the best way to resolve these issues, that if there is a bias, if you will, to get the country restarted, we need to build into the reopening approach, we need to build in certain protections. I know the administration has been talking about that just in the past few days, but it's not enough to do it at the federal level. It's going to have to be done at the state level as well. And there should be a burden on Congress to do that if it can't be done exclusively at the federal level.


Greg Walsh:  Caller from area code 775, you're on the air.


Caller 5: Yeah. Hi. My practice is largely in the area of water law out here in the western United States, and we end up dealing with a lot of scientific evidence around groundwater modeling and computer modeling, that type of thing. There's real issues with it as far as assumptions. It relies heavily on assumptions that go into it, all those types of thing.


      But I'm just curious because a lot of lay people, people who are on juries, that type of thing, don't understand and don't have the sophistication and understand the issue that much with regards to modeling. But I'm curious what you guys might think what effect the COVID epidemic might have on people's receptiveness, or lack thereof, to models given the various model predictions that we've seen come out with it and how widespread that's been publicized now. I'm just curious to hear your thoughts on that.


Mark A. Behrens:  Yeah. Great question. I think a lot of people are applying their own lens, their own prism, to COVID-19 issues. So I might say, as I'm guessing from your question you might say, that the public now has an opportunity to have a better understanding of the limits of modeling; that it's based on the numbers that you put in, which are usually wide-ranging, depending on the model, because we don't know the answer, which is why we need the model in the first place.


      Why do we need models? It's because we don't know the answer. So a model is really just a sophisticated way of saying anybody's guess based on the inputs. So I think you're right. But I would be cautious about assuming that everyone is going to think like you do or like I do because many people are saying we really need these models and if we had only relied on the models that they liked, we'd all be in a better position.


      So I think we all have our own biases going into it. But I think modeling is part of science, as imperfect as it is. And to have a more scientifically literate populous means having the ability to discern what those models can and cannot tell us with a degree of certainty.


Greg Walsh:  Let's go to our next caller.


Caller 6:  I was wondering whether you are actually, on the issue of preemption, are you actually advocating that, say, an EPA determination would preempt plaintiffs' lawsuits on a subject? That we'd have a bureaucratic organization preempting lawsuits? Is that what you're advocating?


Jeff Stier:  Well, what I'm doing is I'm pointing out the fact that when it came to the Chemical Safety Act, there was no preemption. And these issues are playing out right now in the courts on issues relating to FDA approval of a drug, the FDA approval of a drug as safe and effective. Can a plaintiff bring a lawsuit and say this caused damage? I'm not advocating -- there are certainly good arguments on both sides, but we shouldn't be able to rely on the fact that there's preemption because there rarely is, which, I think, increases the burden on defendants to be able to make their case when you can pretty much bring any sort of science in.


      While the burden is on a plaintiff, there's a huge burden on the defense to overcome that sympathy factor, and they shouldn't have a false sense of security that they're going to get it, as some would argue, through a preemption because it's simply not existing. And preemption is very rare, unless it's built into the law. In certain cases, it may be appropriate. But no, there's never any -- giving power to any one group, whether it be judges, even juries, or lawmakers, is never a safe thing. So there needs to be multiple layers of protection.


Caller 6:  It would seem that the people who have to be educated on the scientific method and on statistical analysis first are going to be the judges. And they're pretty woefully [inaudible 00:40:54].


Mark A. Behrens:  This is Mark. Let me make a couple of comments because I think on the one, on the preemption argument, there are some circumstances where preemption is appropriate. And, in fact, one of the central arguments in the briefs that I've read in the Roundup litigation, for instance, is that the labeling on the product is EPA approved. Like new drug warnings, EPA looks at labeling on chemical products.


      Where EPA says this product does not cause cancer, their position is that if the company were to put a label that says, "The product may cause cancer," the EPA's position is that that would be a mislabeled product and illegal to sell.


And this has come up in the context of California. Because of the IARC finding, California has this Prop 65 -- you all know, if you buy any products in California, you buy a bottle of wine, or you go in any building, there's a sticker on almost everything that says it causes cancer in California.


      And the IARC finding would've triggered that type of label on Roundup, but the company can't do it because the EPA says that's not the science. And so, in that setting, where the agency says you can't sell the product with that kind of label because it doesn't cause cancer, you can't comply with a labeling requirement of the federal agency and then comply with an inconsistent requirement from a state court or from a state regulator.


      So there are areas like that where the preemption is clear, should be clear, and is followed. And, otherwise, I think a bit what we were talking about and saying that where the regulators worldwide on a particular product fall in line, it's not maybe that the EPA declares something not to be carcinogenic, but the fact that behind that is a scientific body, a body of scientific evidence, that drives that decision. And that body of scientific evidence is what says that the evidence should not go forward in the jury.


      Now, again, there may be circumstances where preemption is appropriate and following the guidance of the agency is preemptive of state regulations or state tort law. But, oftentimes, it's simply driven by the body of science behind those agency decisions.


Jeff Stier:  And the same issue exists at the FDA with regard to pharmaceutical companies. They're always petitioning the FDA for broader warnings, but usually the FDA requires them to be more narrow, and you get into this position where you can't win either way. And that does speak to the preemption issue.


Mark A. Behrens:  While we wait for another call -- this is Mark. One of the things that I thought that Jeff pointed out in his introductory remarks that I wrote down that I thought were so important because today's discussion is really focused on the persuasiveness of science in the courtroom and the crisis of the rule of law in some of the courts because of that.


      But there really is also, outside the courtroom now, real question about science. We've picked on two examples today—talc and Roundup—where there is a scientific consensus and the juries just ignored it.


Jeff had mentioned the anti-vaccination crowd. That's another excellent example of large -- there's a large population of people that just don't believe the science in a particular area, the consensus and really unquestionable science in an area.


      And that is a problem, I think, that, as a society, we've got to educate people. They need to be better educated about science and the scientific method; to trust science. Maybe we'll make some headway in that as we come out of the COVID-19 crisis in the future. If the pharmaceutical companies are able to find a vaccine or a therapeutic treatment, that may help restore confidence and inspire confidence in the science and the scientific community.


      But we do have a problem with that today. And some of it, frankly, I think, is driven by the mainstream media. I've seen, for example, in a lot of comments about EPA in regard to Roundup, for instance, that most of the headlines when they're reporting that the EPA has looked conclusively at the body of science and found the product is not carcinogenic, the headline always says "Trump EPA," as if this is a politically motivated decision. But it's not. This has been the position of the agency for 30-something years. It's not driven by political motivations. It is driven by the science. And yet, for most people that are reading the papers, that may not come across.


Greg Walsh:  Let's go to our final caller. It looks like it's from an anonymous number.


Chandler:  Yes. This is Chandler in Atlanta. I sense a mood of elitism here and so it brings me to three questions. Who decides who the experts are? The lawyers for the plaintiff or the lawyers for the defendants? And who decides that there is a scientific method we should all agree upon? Who decides that? And then, there is an unquestionable science—who decides what's unquestionable? And then, there are areas of preemption—who decides what those areas are? And, based on about 50 years of practice, I sort of trust the jury more than I ever trust any experts or any judges. So that's my background for my questions. Thank you.


Jeff Stier: This is Jeff. With regard to the third question about preemption, since I'm the one that brought it up. I applaud you for your skepticism of allowing anyone, a person or group of people, to decide what's right for everybody. I think we all need more of that skepticism.


      But on the preemption front, there's a pretty clear legal standard, and Mark spoke to it very well. But on the other issues, I think that's why we're having this call is because there are those disagreements about what is good science, what is bad science, what is junk science? Should be allow all science in?


And there are problems if you allow just every opinion to come in as an expert opinion. And I think that's really the issue is that these are expert opinions and how do you -- the challenge is defining who is an expert and how do juries and judges who are not scientists weigh the strength of that and do you just let everybody in?


Greg Walsh:  Thank you. Jeff and Mark, is there anything you want to say before we conclude today?


Mark A. Behrens:  No. I just want to thank Jeff for his thoughtful comments. Thanks to The Federalist Society for hosting this, and for all of the people that listened in and gave such thoughtful, helpful comments.


Jeff Stier:  And in the interest of time, I'll just echo that. Yeah. Thank you so much.


Greg Walsh:  On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.