Plaintiffs’ lawyers are relying more and more on traditional and social media to bolster litigation, often pushing inaccurate and baseless claims in friendly outlets.
They sometimes partner with so-called experts to provide misleading scientific evidence to support their claims both inside and outside the courtroom. This concerning trend repeats fallacies and influences public perception of cases and the parties on each side.
For example, the trial bar is spending hundreds of millions of dollars trying to drive home the message that products like Roundup and talcum powder cause cancer, despite the lack of sound scientific evidence verifying these claims.
Since 2015, Roundup has been the top target of mass tort product liability ads, with an estimated $131 million spent on more than 625,000 TV ads airing nationally and locally. Second only to Roundup are ads soliciting claims alleging a link between talcum powder use and incidences of cancer. An estimated $109 million was spent on more than 370,000 talc litigation ads since 2015.
Despite massive ad buys by the trial bar, a recent defense verdict in the Alesi v. Monsanto Roundup trial may signal that their efforts are coming up short. In August, a St. Louis jury reviewed the endless parade of junk science brought by plaintiffs’ lawyers and issued a commonsense verdict, finding Roundup was not the cause of the plaintiffs’ cancer.
The case fell apart under cross-examination as the expert witnesses proved less than credible.
While on the stand, William Sawyer, a board-certified toxicologist, was forced to admit that he was unable to obtain certification from the American Board of Toxicology.
He had to turn to the founder of the American College of Forensic Examiners, who was so willing to certify any paying customers that he once certified a cat as an examiner. Sawyer collected $2.5 million from his testimony in four Roundup trials.
Environmental agencies worldwide, including the US Environmental Protection Agency, agree that no credible evidence exists linking glyphosate to non-Hodgkin’s lymphoma.
But one outlier organization says otherwise—an advisory group of the International Agency for Research on Cancer deemed glyphosate a “probable human carcinogen.” However, that panel was run by Christopher Portier, a scientist who received $160,000 from litigators.
The trial bar employed a similar playbook in its attack on talcum powder. Most recently, The New Yorker published a story about Johnson & Johnson and its long-running talc litigation.
The company is attempting to resolve talc-related claims through a process that Judge Michael Kaplan of the US Bankruptcy Court called “the optimal venue for redressing the harms of both present and future talc claimants in this case—ensuring a meaningful, timely, and equitable recovery.”
While the US Court of Appeals for the Third Circuit reviews Kaplan’s ruling, the plaintiffs’ bar seems unwilling to let the case’s facts and legal arguments speak for themselves. Instead, as communications with The New Yorker show, they helped orchestrate an 8,000-word article that can charitably be described as one-sided.
This pattern of promoting misleading information has real and troubling consequences. Kaplan and his staff received violent threats on social media, voicemails, and emails since the plaintiffs’ attorneys ramped up their media campaign.
One source The New Yorker cites without questioning is the plaintiffs’ attorneys’ hired gun expert, David Egilman, who testifies that, every time he looks, he finds asbestos in tissue of customers who use Johnson & Johnson’s baby powder. What is not reported is that Egilman also recently testified that, when shown a picture of the Orion constellation, it was a depiction of talc.
Additionally, in 2007, Egilman conspired with others to violate a protective order in a case regarding the drug Zyprexa and provided hundreds of cherry-picked confidential documents to various media outlets—including using a sham subpoena.
A federal district court held extensive hearings and strongly rebuked Egilman for his conduct, noting that he and his conspirators “executed the conspiracy using other people as their agents in crime.” The New Yorker doesn’t provide this context.
Despite myriad baseless claims by the plaintiffs’ bar, independent medical experts have not found a confirmed link to cancer.
Curb the Trend
This behavior—and the failure of judges and other leaders to police it adequately—is unacceptable. Our judicial system is based on rules, but also relies on all parties to litigation to operate truthfully and in good faith, even when it’s inconvenient or unfavorable to us.
Professional codes of ethics demand rigorous adherence to both propriety and transparency. Judges must ensure their courtrooms are free of junk science, and that all abide by the standards our justice system requires of us.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Tiger Joyce is president of the American Tort Reform Association.