Roundup Weedkiller Litigation

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In a series of recent decisions, both federal and state courts have allowed the admission of scientific evidence alleging that Monsanto’s Roundup weedkiller is associated with lymphoma.  These courts have allowed these cases to proceed, despite the fact that the EPA and other authorities have concluded that there is no established link between such products and cancer.  Juries have imposed multi-million dollar verdicts and the company faces large-scale litigation involving thousands of claims.  Please join David Bernstein, the George Mason University Foundation Professor at George Mason University’s Antonin Scalia Law School for a discussion of these decisions.

Featuring: 

Prof. David Bernstein, George Mason University Foundation Professor, Antonin Scalia Law School

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Litigation and Environmental Law & Property Rights Practice Groups, was recorded on Thursday, May 16, 2019, during a live teleforum conference call held exclusively for Federalist Society members. 

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is on “Roundup Weedkiller Litigation.” My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

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

 

Today we are very fortunate to have with us Professor David Bernstein, who is the University Professor at the George Mason University Antonin Scalia Law School. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for our speaker. Thank you very much for sharing with us today. Professor Bernstein, the floor is now yours.

 

Prof. David Bernstein:  Thanks. Thanks everyone who is listening in. I should preface by saying that I was asked to do this teleforum because of my interest and expertise in the area of scientific evidence. I’m not affiliated with any of the parties. I’m not involved in litigation. I probably, therefore, can’t answer any questions you might have later about litigation strategy or whatnot. I’m just an outsider to the case.

 

I’ve been researching and writing about scientific and expert evidence since I was in law school in 1989. I served as a research assistant to Peter Huber when his book, Galileo’s Revenge, which helped bring the issue of junk science in the courtroom to the floor. I also co-edited with him a book called Phantom Risk: Scientific Interference and the Law. I’m co-author of The New Wigmore: Expert Evidence treatise, which you should have on your -- if you're lawyers out there, you should probably have on your bookshelf if you don’t have it already. And in general I’ve been writing about this issue for basically 30 years, and that’s why I’m here.

 

So I’m going to talk a little bit about the background issues with regard to expert evidence, then get into the Roundup litigation thereafter. But first, let me mention that the reason that of course this is such a hot issue now is that there’ve been several trials, three trials specifically, on the issue of whether the pesticide, Roundup, and its active ingredient of glyphosate can cause non-Hodgkin lymphoma. In each case, the jury has ruled in favor of the plaintiffs and awarded very large damages to the plaintiffs. In the most recent case, which you probably saw on the news just a few days ago, a jury in a California state court awarded tens of millions of dollars in compensatory damages and $2 billion, $1 billion to each plaintiff, in punitive damages. And all of these verdicts have occurred despite the fact that just about every regulatory agency in the world that’s examined the safety of glyphosate says that it does not cause cancer and that it’s safe for human use.

 

So let’s go back a little bit. The Roundup litigation is hardly the first litigation in which a product deemed to be safe by mainstream scientists has fallen victim to aggressive litigation. We have Bendectin, a morning sickness drug alleged to cause birth defects, which was the subject of the famous Daubert case. Spermicides causing birth defects, various vaccines causing side effects that are really not attributable to them, silicone breast implants in the ‘90s and more. In all of these cases, juries ruled against the defendants despite absence of reliable scientific evidence supporting their claims. And in some cases, like in Bendectin, at one point there were several dozen studies showing that Bendectin doesn’t cause birth defects, and that didn’t stop the about 40 percent of juries in Bendectin cases from ruling in favor of the plaintiffs.

 

So what plaintiffs typically do is rely on evidence that is directly suggestive at most only of general causation; in other words, that this product or substance may cause, in general, an increased risk of a particular disease. So for example, a plaintiff in a typical toxic tort case may rely on animal studies, which usually involve much higher relative exposure to the substance at issue; laboratory studies on cells; active case reports; temporal relationship – “I took the drug on Monday, and on Thursday I started feeling symptoms.”; radial tort actions by the government if they were negative; analogies of similar substances known to cause disease; studies on humans involving much higher exposure levels or involving several substances together and it’s hard to separate them out. Which one is really causing the problem?; and epidemiological studies that are too preliminary to be of much value – for example, small sample size or other issues, or are suggestive enough, typically significant, or so forth.

 

So already we have evidence even that a substance can cause disease is often pretty speculative and not particularly valid or accepted by scientific community. It may be the sort of evidence that says, “Hey, maybe we should do some more studies,” but that’s about it. Now, then of course to prove causation for any individual plaintiff, what we call specific causation, you're going to require even more speculation or educated guess work. So many experts try to give their speculation a scientific sounding spin by claiming that they have engaged in a so-called differential diagnosis by which they really mean differential ideology.

 

They say, “Well, look, there are nine known causes of this disease. We’ve eliminated eight of them. The only other known cause, or at least potentially known cause, is this particular substance, so that must have been it.” The problem is that there’s a lot of diseases for which the causes are idiopathic; in other words, we don’t know what the cause is in the vast majority of cases, and that’s something that the experts virtually don’t take into account. If 80 percent of causes of a disease are unknown, and the other 20 percent we think have potentially known causes, the fact that we can eliminate eight of them only leaves you with potentially, at most, 20 percent [that] may be caused by the substance, if it even can cause it to begin with.

 

But it sounds really scientific. Its sounds like the classic thing a doctor should do, and it seems to impress juries. But really, despite the portents of science, these differential ideologies really abound to this: in the absence of some other known causal mechanism, I, the expert, am willing to speculate that the product or substance at issue in this case caused the plaintiff’s injury.

 

Now, all of that, that sort of testimony, wouldn’t necessarily be a big problem if in trials on toxic tort cases we rely on a consensus of experts. Maybe experts appointed by judges or by a special master or presented by the local university or the scientific community somehow. But as we all know, that’s not the way things work in the American legal system. The experts that get to testify include, if their testimony is admitted, are experts chosen by the parties. And they're not simply chosen by the parties. They’re chosen precisely because the lawyers know what the experts are going to say. If you're a plaintiff, you're not going to call an expert to testify who thinks that there is no causation. And indeed, if you are a plaintiff, or a defendant for that matter, you might call dozens of experts until you find someone who is willing to say what you want them to say, the thousands of epidemiologists, toxicologists, oncologists, immunologists, and so on out there. So if there’s anything even resembling suggested evidence causes disease, a good plaintiff’s attorney will have no problem finding one or more experts to testify about causation.

 

In some cases, this is because there are higher guns out there, right? There’s credentialed experts who are basically willing to say almost anything for a fee. But that doesn’t have to be the issue. In any given field of study, there’s going to be something of a bell curve of opinion. And so it may turn out that you cluster 90, 95, 98 percent of the experts think there’s either no evidence of causation or lack of sufficient evidence, but you have the 2 percent on the far end of the spectrum who, for whatever reason, have sincerely concluded that there really is causation. And the plaintiffs are well within their rights under our system to only talk to those 2 percent, to only call those 2 percent, and not to reveal how many people they’ve spoken to, or how many experts are on the other side.

 

Meanwhile, we have these thousands of potential experts. We bring two or three to trial on each side, maybe four or five depending on the case. And then we bring them before a jury composed of 12 laypeople who usually know nothing about science, and who are then charged with the task of mediating between competing scientists, all of whom are well credentialed, who take diametrically opposite views of how suggestive the science is of causation, right? So the defense experts will undoubtedly say that there is no evidence of causation, or there’s not nearly sufficient evidence of causation. And plaintiff’s experts that they are pretty sure there is causation to a reasonable, medical, or scientific certainty. And the jury’s supposed to decide between these two sides after hearing oral testimony over a period of weeks—the most recent Roundup trial lasted 17 days. That’s quite a while—with many other issues thrown into the litigation, generally, which could include the pain and suffering of the plaintiffs, any alleged malfeasance by defendants.

 

And meanwhile, the jurors if they [inaudible 9:40] inclined to investigate the scientific evidence themselves and were confident to do so, can’t do so on their own anyway because unlike judges, they don’t get access to the underlying written studies. They aren’t even instructed by the judge as to what the legal standard is they're supposed to apply until after they have heard all of the evidence, by which time they may have already decided who’s in the right and who’s in the wrong. And studies show that 90 percent of the time they have. And then usually they only get oral instructions that are very hard to understand and deal with many different issues.

 

So it shouldn’t be very shocking that given this is the kind of crazy way that we decide scientific issues in the court that juries often get it wrong. Sometimes they don’t understand the evidence and sometimes they incorrectly think that they're supposed to shift the burden of proof to the defendant because that seems more just if the circumstance is, “Well, if the defendant didn’t do as many studies as I think they should’ve done, they should have to disprove it. They should have to prove a negative.” That’s not the way the burden of proof works in our system, but we can forgive lay jurors for thinking otherwise.

 

So judges began to take notice of this problem in the late ‘80s, early ‘90s. And a series of rulings finally known as the Daubert trilogy -- as most of you probably know, the Supreme Court stated that scientific evidence henceforth—in federal court at least—is only admissible if it’s reliable. The Court then elaborated on that in the next opinion, the Joiner opinion, saying that even if a type of evidence is being relied on, say epidemiology, is reliable, a trial judge can still reject expert testimony if there’s not a sufficiently reliable connection between the underlying studies and the conclusions.

 

And to me the most key factor with regard to expert testimony, in federal court at least, is one that is often ignored. We often talk about Daubert or the Daubert trilogy, but in 2000 the Federal Rules of Evidence were amended to incorporate the reliability standard, but also to make it clear that judges not only can ensure that the expert is reliably extrapolating to his conclusions but that he must do so. Expert testimony is not admissible unless—and I’m quoting from the rule here—“the expert has reliably applied the principles and methods to the facts of the case.” Now, in practice this is often ignored by federal judges. I don't know how they -- it’s very frustrating to me as an evidence professor. I teach my students what the rules of evidence are, and I see judges who will ignore it. They’ll cite the rule. They’ll say the rule, of course, governs us. And they’ll ignore the text of the rule. They’ll cite cases from the ‘90s or even the ‘80s from before the rule was enacted saying, “This is the standard of our circuit.” Well, circuits can’t have their own standards. They have to obey the rule, but often they don’t, and that’s been a problem.

 

Anyway similar revolutions were going on in state court. In California, for example, where two of the Roundup cases have been decided, the state Supreme Court a few years back in the Sargon case, allude to “We’re not adopting federal law, but federal law is useful,” and said pretty explicitly that trial judges are supposed to exclude speculative expert testimony.

 

Okay, with all of that as background, that brings us to Roundup. There is no good scientific evidence that Roundup causes cancer in general, increases the risk of cancer, or non-Hodgkin lymphoma, the cancer alleged so far in the Roundup litigation in particular. Regulatory bodies around the world, which are often very caution about what they approve including the U.S. EPA, European regulators, Canadian regulators, German regulators, Japanese regulators have all concluded that Roundup is safe and unlikely to be the cause of any type of cancer.

 

Now there are a few stray studies out there that are showing an increase in cancer in those exposed to Roundup. But there are other stray studies that have shown a decrease in cancer, which is very unlikely to be causal. And basically, if you look at the studies as a whole, all of these outlier studies seem to just amount to statistical noise.

 

The litigation for the plaintiff has gotten a boost by the fact that one international body, the IARC, has found out that Roundup is probably a human carcinogen. But even then, if you look at what they actually said, they did so based on animal studies in which animals were injected with extremely high doses of the relevant chemicals. It’s really dubious to, in general, extrapolate from animal studies to humans. But even if one could directly extrapolate from these animal studies to human cancer causation, that would only mean that, okay, if you inject humans with huge amounts of Roundup, glyphosate, that they will also get tumors the way the rats did or the other animals did in these animal studies.

 

Subsequent to the IARC findings, several international regulatory bodies revisited their determination under public pressure after that decision that Roundup is safe, including the U.S. EPA, and all of the agencies that have looked at safety again have reasserted that we think that Roundup is indeed safe. And they did that in part based on flaws in the IARC methodology. But also there’s some new studies that have come out since the IARC, and they said these studies are some of the best studies that have been done. The biggest studies that reinforces our original perspective.

 

So in short, there really is no reliable evidence, even of general causation, that Roundup can cause cancer in general or non-Hodgkin lymphoma, much less specific causation evidence that it caused NHL in any given case. So from my perspective as an evidence professor, the judges in these cases should exclude the plaintiff’s evidence in each case and then granted -- the scientific evidence, that is the expert evidence -- and then granted summary judgment. They failed to do so because they did not apply the relevant rules of evidence properly.

 

So for example, in the federal case, the judge stated that so long as an opinion is premised on reliable scientific principles, it should not be excluded by the trial judge. And that’s the rule of law at the Ninth Circuit. Well, frankly, the Ninth Circuit is such a big circuit you could find a precedent that says almost any with regard to scientific evidence. But this particular statement has to be wrong. Why does it have to be wrong? Because as I noted earlier, Rule 702 explicitly says that it’s not just the underlying principles that have to be reliable—in other words, epidemiology or toxicology—that you rely on, but the court must determine that the expert has reliably applied the principles and methods to the facts of the case.

 

Now as I said earlier, there are plenty of federal court decisions that ignore the text of Rule 702, but you know, if I'm advising a federal trial judge, I don’t care if you can find a circuit court opinion that says this or that. You have a rule of evidence to apply. If a rule of evidence explicitly states that you have the obligation to ensure that the facts and data be reliably applied to the issue at hand, then you have to do that. And if the Ninth Circuit wants to insist that the rule doesn’t really say that, let them take it up with you later.

 

Meanwhile, in the California Supreme Court and California trial courts adhering to the rule because of California Supreme Court, the rules are less clear because they don’t have a rule of evidence like Rule 702. But again the Sargon case, the court specifically said -- the California Supreme Court specifically said that California trial judges are obligated to exclude speculative evidence. And, frankly, the evidence in the Roundup litigation is quite clearly speculative. Should be excluded under Sargon. Oddly enough, in at least the first of the two California trial courts, I haven’t gone to see -- there hasn’t been a post-trial motion yet, at least that I’ve seen, or a first trial ruling in the case that was decided Monday. But in the first case, the court said, “Well, this is a case involving medical science, and medical science could be deemed more of art than a science.” That’s a lot of nonsense.

 

When you're taking about scientific causation, this isn’t like a doctor deciding whether to prescribe you Advil or Tylenol, and there’s a little bit of an art to knowing a particular patient and their experience. This is a scientific inquiry. The rules of scientific evidence clearly apply, and if you're going to have a rule that says you have to exclude speculative science, you can’t have lawyers come in and present an expert who literally said in this first California case, “Hey, I’m the expert. This guy seems to be kind of young to be getting non-Hodgkin lymphoma. I can’t think of any other reason why he would’ve gotten non-Hodgkin lymphoma. It must have been from Roundup.” That was the judge’s explanation of why the evidence was sufficient. In fact, of course, given that most instances of non-Hodgkin lymphoma are idiopathic, we don’t know the cause. The fact that you can’t identify a particular cause doesn’t really tell you anything because in the vast majority of cases, we cannot identify a cause to begin with.

 

So you actually have to have good evidence, solid scientific evidence, from epidemiology or elsewhere that Roundup raises the risk of non-Hodgkin lymphoma and raises it sufficiently to prove causation in an individual case. And the plaintiffs simply didn’t have that.

 

So that’s where we stand with regard to litigation. Obviously now that there have been these three large verdicts against Monsanto, I’m sure there’s going to be a lot more litigation. This issue’s going to drive off -- I have to say, just in closing, that of all the other issues that I’ve come across in researching expert testimony and toxic tort litigation, pharmaceutical products, I can’t think of another situation in which international regulatory bodies in the United States and elsewhere have been so vehement and unanimous in saying that a product, not just doesn’t have a particularly high risk, but is actually safe. And the litigation has nevertheless managed to proceed to trials with the defendant on the losing end. So with that said, I’d be happy to take any questions you have. And again, thanks for listening.

 

Wesley Hodges:  Professor, while we wait for any questions from the audience, I do want to ask you just looking at the lack of scientific evidence in these trials, why do you find the juries keep falling on the same side, deciding the same way?

 

Prof. David Bernstein:  So there’s a pattern in these sorts of cases, which is that a) you have a sympathetic plaintiff. But a sympathetic plaintiff isn’t really enough because juries don’t want to just be giving money away for no reason as a rule. But you also have at least a plausible case from the documents that are uncovered in discovery that the defendant, in some regard, was a bad actor. That the defendant was irresponsible in not doing sufficient studies. Maybe they were lobbying the government to find that their product was safe. Maybe there’s a document that someone somewhere in the company said, “Well, we really should be more worried about safety than we are.” The one problem with this, of course, is that if you consider how many documents are produced in litigation, you have literally several million documents. But the jury doesn’t see there’s several million documents. They only see the two or three or ten that the plaintiffs find especially damning. It doesn’t really give you a full picture of what the company was doing.

 

As I understand it—and, again, I haven’t been a participant in the litigation—the plaintiffs made a big deal of the fact that Monsanto was involved in discussing with the EPA what’s going on with its regulation, trying to encourage them that find that their product was safe. Under the Noerr–Pennington doctrine, as far as I’m concerned, this should all be First Amendment protected, but it not only help resulted in the defendants losing, they wound up having massive punitive damages against them.

 

Which is kind of crazy. I mean, you have a situation -- for punitive damages, you would think you’d have to willful misconduct by Monsanto, given that every regulatory agency in the world thinks that Roundup is safe, to hold that Monsanto was actually so irresponsible that billions of dollars of punitive damages to be awarded against them means that the plaintiff’s lawyer really persuaded the jury that somehow despite all of these regulatory agency decisions that Monsanto was a bad actor.

 

And the fact is once the jury decides that a defendant is a bad actor, they often implicitly, or sometimes it’s suggested to them, improperly, explicitly shift the burden of proof to the defendant. And once you shift the burden of proof from “the plaintiff has to prove causation” to “the defendant is a bad actor; we don’t like them; we think they're irresponsible; let them disprove causation,” that’s really hard to do. That involves proving a negative, right? And having to prove a negative to a jury that’s already disinclined to have a favorable opinion of you is going to be a really hard thing to do.

 

And, again, this is something that all the cases I mentioned earlier, the silicone breast implant litigation, Bendectin and so forth, they all, to a large extent, rely on the idea that somehow the company acted improperly, even though they met all regulatory guidance at the time; that there were some documents, here or there, that suggested that maybe they weren’t as responsible as they should’ve been, and therefore we’re going to rule against them after shifting the burden of proof to them to disprove causation.

 

So I think that is the most significant issue, especially a lot of time the jury gets lost in the scientific evidence. Sometimes they choose to ignore the scientific evidence because they dislike the defendant so much or feel sorry for the plaintiff. But sometimes the scientific evidence is so complicated that they say to themselves, “Well, we only know who’s right here. We have experts on each side. They're well qualified. We don’t understand what’s going on. So let’s figure out who we think -- who’s side is justice on?” And you have some injured person dying of cancer versus a big, heartless company which has some documents, out of the millions that were discovered, that may not make them look like the best individuals that ever lived. And so justice in that situation, it’s not terribly surprising, the jury may say, “Since we don’t understand the scientific evidence anyway, let’s just go with which party we think is more deserving and that would be plaintiff.”

 

Wesley Hodges:  Very good. Thank you so much. Looks like we do have one question from the audience. Let’s go ahead and go to that caller.

 

Caller 1:  Hi Professor. I had a question for you, and I was curious whether, historically, there’s been examples of what I’ll call the opposite situation where the product was clearly bad and clearly harmful but in the early cases the plaintiffs lost, whether that’s cigarettes, or asbestos, or Dalkon Shield, or thalidomide. Are there cases historically that were early on where the plaintiffs lost, but then as the scientific evidence built up, it became crystal clear that those products were terrible?

 

Prof. David Bernstein:  Yeah. I think the cigarette litigation is the clearest example of that. I mean, there are other issues there like preemption and whatnot. But because the Rules of Evidence through, say, the late 1980s tend to be very lax and basically any qualified expert could testify to anything, you would definitely have some experts on the side of Phillip Morris, or whoever, who would say things that, really, even at the time couldn’t stand up to remote scrutiny.

 

In fact, back in the early ‘80s when these issues first started really coming to the fore, there were some defendants, including the cigarette companies, who were really reluctant to require the plaintiffs to rely on statistical evidence, epidemiological evidence, because they were afraid, as is clear in the case of cigarettes, that statistical evidence would work against them. And in fact, statistical evidence does work against cigarette companies. And they once said, “Oh these are just something we tell the juries. These are just statistics. You can’t rely on them. They're not individualized. We have medical testimony from actual doctors that says the opposite thing.” They did use the same sort of what you might call ‘junk science’ techniques as the plaintiffs use in other cases.

 

Eventually, of course the evidence on cigarettes became overwhelming. But [inaudible 26.01] a lot of their barriers, we ended up having a national settlement based on Medicaid litigation of all things as opposed to individual cases. But certainly, there were some.

 

I’d say overall -- yeah, I was a teenager in the late ‘70s or early ‘80s, and we had lots of scares about Three Mile Island and Love Canal and toxic torts. And that’s where a lot of these cases started. And fortunately, I think we can all be glad that turned out that for the most part these chemical toxins, and whatnot, in our environment turned out to be less dangerous than a lot of people thought might be the case at the time. And then as more evidence came out, the world seemed to be a safer place rather than less safe.

 

Caller 1:  Okay, so in this case you pointed out the overwhelming evidence with respect to the safety of Roundup. In a case like the silicone breast implants where the plaintiffs won huge judgments based on some bad science or a couple of very early studies, a litigation strategy for Corning and many of those potentially would’ve been to just drag out the litigation as long as possible so that the better science and come in and potentially we can win these cases. And ultimately, better science did come in and any link was disestablished between silicone breast implants and harm. What would Monsanto or Bayer do in this case from a litigation strategy where the scientific evidence is so overwhelming and the jurors, at least in these three cases, are just ignoring it and hammering them with large judgments?

 

Prof. David Bernstein:  That’s a really good question because you're right. In a lot of these cases, the reason they eventually petered out -- Bendectin and breast implants being two really good examples because the evidence just became so overwhelming one-sided that courts just are saying, “Forget about it. We’re just going to throw out you're cases from now on.” So we would hope that the trial judges in these cases would’ve done that from the get go, but they didn’t. So if judges aren’t persuaded despite the existing evidence that this is true, what do you exactly do? And I suppose one potential strategy was to do what they did with regard to the silicone breast implant litigation which is eventually put it before one judge who appoints experts, really looks into the scientific evidence. I think individual judges do tend to be reluctant to be the first and put themselves out there as excluding plaintiff’s evidence, and then maybe being the bad guy if other judges disagree with them. But when you have an MDL case where you have lots of resources and this is sort of your job is to make that determination, that might be a different story.

 

I’m not counsel for any of these parties, so I have a lot less experience than the people who do this, so I’m not sure. MDL litigation worked in the breast implant context, but of course only after Dow Corning had already declared bankruptcy, leaving fewer possible claims to begin with.

 

So that’s one solution. The other is just to fight really hard at the appellate level and try to get some sound opinions there. It’s kind of tough because not all of the judges are inclined to enforce Rule 702 or state equivalents strictly.

 

One thing I’ve noticed, I hate to put a plug for my colleagues in the evidence profession, is I think there’s some evidence professors out there who can sometimes help out with these things. We rarely, if ever, get called to participate in any of these cases as amici or otherwise. And I always wonder, “Why not?” because I think a lot of us tend to be fairly skeptical. We have a lot of expertise in the area. We’re not tied to the parties. We have no particular pecuniary incentives to go one way or the other. We could just as easily work for the plaintiffs, maybe more easily. But my friend, like David Kay and Jennifer Mnookin, I’ve talked to them. They say no one ever asked them to put their two cents in. So maybe having the academic community participate one way or the other might be useful.

 

I’m not looking for business here. I’m just pointing out that I think that the people who study scientific evidence as a rule tend to be -- as their professions tend to be really skeptical about a lot of these cases. But they tend to be on the sidelines. They write postmortems about how terrible evidence in the Bendectin cases were. Or how terrible -- I wrote a piece, how terrible the evidence in the breast implant litigation was. But that was years after the bad verdicts.

 

Caller 1:  So one very last question. I know this is not exactly on topic, but I am curious what is the current science and the status of the litigation against Johnson & Johnson about talcum powder having asbestos or causing cervical cancer? What’s the best science, and where from a litigation standpoint are most of those cases headed?

 

Prof. David Bernstein:  To be perfectly honest, I looked into that talc litigation a few years ago with regard to some project I was working on, and I have other things going on -- among other things, other academic projects, my daughter’s Bar Mitzvah, among other things I’ve lost track of exactly where the talc litigation stands. So I’m afraid I can’t really give you a good answer on that.

 

Wesley Hodges:  Well, very good. Thank you so much, caller, for your questions. We do appreciate the conversation. Here’s our next caller.

 

Ashley Linn (sp):  Hi there. Ashley Linn. I’m a recovering lawyer, so this is going to be kind of an outsider question for those of us who don’t live our lives close to tort litigation and somewhat related to the last question that came through. Just as an outsider, it seems to me that we hear these huge jury verdicts in a lot of these tort cases and then they somehow get winnowed down. And I’m just trying to get an understanding of where in the process that happens. Is that usually just at the appellate level, a judge somewhere saying, “You know what? This evidence is ridiculous,” and throwing it out after it gets through the first pass? Or has this gone farther than you would’ve expected and what typically happens in these jury cases? Thanks.

 

Prof. David Bernstein:  With regard to punitive damages, punitive damages typically get reduced when they seem to be extremely high. The Supreme Court suggested a ratio of more than 10 to 1—I think it was 10 to 1—of punitive to compensatory is presumptively inappropriate. I would expect the billion dollars punitive damages awards to be winnowed somewhat by the trial judge and then perhaps by the appellate court to some extent as well if they don’t think the trial judge went far enough.

 

The real problem is that in these cases the compensatory damages have been really significant. And a good amount of the compensatory damages is pain and suffering. And the juries have a lot of discretion there, and judges tend to be pretty reluctant to winnow them substantially. They may reduce them somewhat, but if someone is dying a horrible, painful death of non-Hodgkin lymphoma, most judges think, “Who am I to say whether that’s worth $5 million or $15 million or $30 million?” and pain and suffering is a very subjective thing. So the damages themselves really high compensatory damages will get winnowed somewhat. Really high punitive damages will tend to get winnowed down a lot, and it could be by a post-trial motion, by the trial judge, or it could be at the appellate level.

 

As for the jury verdicts themselves, it’s very difficult to get a verdict itself overturned as incorrect. Judges at all levels tend to be reluctant to do that. On the other hand, in most jurisdictions when there’re evidentiary rulings, those evidentiary rulings are reviewed de novo -- well, I shouldn’t say they're reviewed de novo. That’s actually incorrect. In some jurisdictions, they're reviewed de novo. In most jurisdictions, they're not. But the judges tend to be less reluctant to overturn evidentiary rulings -- by the judge and to overturn ultimate rulings by the jury.

 

So I would expect Monsanto’s lawyers are working very hard, now, on three appeals. Well, they probably still have some post-trial motions for the case that was resolved on Monday. But I’m sure in federal court for the previous case in the previous state court, they are working feverishly on their briefs, asking the judges both for an overturn of the verdict, but more likely to be victorious on the issue of whether this scientific evidence should’ve been admissible to begin with.

 

For example, in the federal court the federal judge acknowledged that the general causation evidence – the evidence of whether Roundup even theoretically raises the risk of cancer – was shaky but admissible. That’s language from Daubert, “shaky, but admissible.” But I think the relevant question that I would ask, at least as an appellate lawyer, then, if the evidence of even general causation is barely reliable enough to be admitted, and then there’s even less evidence of specific causation that it could cause this specific cancer to this specific person, how is that sufficiently reliable on the specific causation issue to even get to the jury?

 

So I’m sure issues like that are going to arise. But my experience with those kinds of issues is what panel you get, and very different judges have their own idiosyncratic views of how easy or not easy it should be for scientific evidence to be admissible. It often has very little to do with what the actual rules of evidence are. And if you hit the right panel, you get lucky, and you might actually get a bad verdict overturned. If you hit a panel where the judges are, like many judges, inclined to think, “Well, I don't really care what Rule 702 says. Our circuit has some language in past opinions that allows us to let stuff in. We’re just referees. We’re not supposed to be involved in these cases. If there’s qualified experts willing to say so, that’s good enough for me,” then they’ll just uphold things. Then your only hope is the Supreme Court. And of course the Supreme Court hasn’t granted cert on a scientific evidence case in almost 20 years. So the odds of them doing so any time soon is probably not that high.

 

Ashley Linn:  Sounds like we need an amicus brief from you.

 

Wesley Hodges:  Well, very good. Thank you so much, caller. We do appreciate your question. Well, seeing no immediate questions from the audience, Professor, I turn the mic back to you. Do you have any closing thoughts for us today?

 

Prof. David Bernstein:  I just wanted to -- I just thought at some point I might give an example of how litigation can spin out of control based on bad scientific evidence. So way back in the mid-1990s when the silicone breast implant litigation really hadn’t gotten that far yet, there was an appeal to the Ninth Circuit. It was just a year after Daubert, I believe, and no one was really sure what to do with Daubert yet. And the Ninth Circuit ordered reargument under Daubert, and they made a ruling. And in their ruling, they basically said, “Well, there is sufficient epidemiological evidence to support the jury verdict.” And once they did that, the flood gates opened.

 

Now, what was the epidemiological evidence in that particular case? There was a doctor in Florida who was a plastic surgeon, immunologist, and he had happened to have a couple of patients -- I guess this was an immunologist. He had a couple of patients who had silicone breast implants and had an immune system disease. So he wrote a letter to the Journal of the American Medical Association saying, “Hey, this is something people should look out for. Maybe there’s a relationship.”

 

Now, once he wrote that letter, a lot of doctors read this journal. So when they had patients who had an immune system disease and breast implants, they would refer the patient to this doctor. This doctor then did a so-called epidemiological study where he looked at all his patients who had an immune system disease. He figured out how many of them had silicone breast implants and said, “Aha! There’s a much higher rate of people with silicone breast implants and immune system disease than you’d expect in a material population. So that means that silicone breast implants cause immune system disease.”

 

Now elementary logic, really, without any kind of scientific training should tell you that if a doctor is getting patients who are referred to him specifically because they have immune system disease and silicone breast implants, he’s going to have an usually high number of such patients. But somehow the Ninth Circuit decided this was a legitimate epidemiological study sufficient to support a jury verdict. So when you're dealing with this level of scientific illiteracy on the part of judges, or at least a combination of scientific illiteracy and an unwillingness to do any serious policing of expert testimony, whatever the official rules of expert testimony are may not be as determinative as you would hope. So we really need to get on the judges’ case, so to speak, to put aside whatever their personal views are on the right to jury trial or summary judgment or the rules of expert testimony and ask them to enforce the rules as written. Because that’s really what their job is.

 

Wesley Hodges:  Fantastic. Well, Professor, thank you so much for that. We really do appreciate you being here today. On behalf of The Federalist Society, I would like to thank you for the very valuable time and expertise that you’ve lent us. We welcome all listener feedback by email at info@fedsoc.org. Thank you everyone for joining us today. --

 

Prof. David Bernstein:  Thanks for having me.

 

Wesley Hodges:  -- This call is now adjourned.

 

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