When jurors hear cases, they reasonably expect that they are presented only with reliable scientific information to support their deliberations. Regrettably, this is often not the case. This problem is exacerbated by the fact that one of the worst examples of “junk science” that finds its way into our courts is being funded by American taxpayers.
The International Agency for Research on Cancer, or IARC, supported by the National Institutes of Health, issued a report concluding that glyphosate, the active ingredient in Roundup, is carcinogenic. That report became the basis for a San Francisco jury entering a $289 million jury award against Monsanto. And the essential evidence in this case – the IARC report – contradicts more than 800 scientific studies, including analyses by the U.S. Environmental Protection Agency and the NIH.
Closer scrutiny of the IARC process reveals advisement by an “invited specialist,” Christopher Portier, in its work on glyphosate. At the same time Portier worked for the agency, he was paid by the Environmental Defense Fund, an anti-pesticide group. Moreover, Portier received $160,000 from law firms suing over glyphosate. When asked about this potential conflict of interest, Portier claimed to be advising the law firms on other IARC-related lawsuits, not the glyphosate litigation from which they stood to benefit. He then later acknowledged his statement was wrong. It is also worth noting that Portier had no experience with glyphosate prior to his work for IARC.
The U.S. House Committee on Space, Science and Technology, which has stated the IARC finding on glyphosate is an “affront to scientific integrity that bred distrust and confusion,” requested that (now former) IARC Director Christopher Wild appear before the Committee. Wild refused to testify, and his successor, Elizabete Weiderpass, has not responded.
American taxpayers expect that entities receiving federal funding are accountable to Congress. If IARC responds to Congress, it would be worth exploring how Portier, with no glyphosate experience, was chosen by IARC as a specialist on the substance.
The problem of junk science in litigation is not confined to IARC. In Minnesota, 3M disposed of perfluorocarbons, or PFC, as allowable under state law. Minnesota’s Attorney General Lori Swanson, however, sued the company for groundwater contamination, even though the state Health Department had declared that “there are no unusual occurrences of adverse birth outcomes or cancer occurrences that could plausibly be related to PFC exposure.”
Attorney General Swanson intended to rely on the scientific expertise of Dr. David Sunding, a University of California, Berkeley professor, disregarding the Health Department’s strong finding to the contrary. In fact, Alan Bender, Health Department official and University of Minnesota associate professor, stated that Dr. Sunding’s claim that PFC pollution caused increased rates of childhood cancer deaths was the “most off-the-wall of his many mischaracterizations.” Faced with the prospect of an outsized award fueled by junk science, 3M settled the case for $850 million.
In another case relying on unsubstantiated science, in July a St. Louis jury awarded 22 plaintiffs $4.5 billion after concluding there was asbestos in Johnson & Johnson’s talcum baby powder, and that it caused ovarian cancer. Again, the role of expert testimony was crucial in the outcome. Although both the American Cancer Society and the U.S. Food and Drug Administration concluded otherwise, the plaintiffs’ “expert” told jurors that talcum powder causes cancer.
Addressing problems with junk science is not easy. In 2013, Florida’s legislature enacted a statute bringing state law on expert evidence in line with more than 30 states and federal courts based on the process established by the 1993 decision of the Supreme Court of the United States in Daubert v Merrell Dow Pharmaceuticals. This decision requires judges to serve as “gatekeepers” and follow procedures weeding out junk science and not allowing it to reach jurors.
It is unclear whether this sensible reform ever will be implemented, as it is a continuous subject of litigation and debate regarding the legislature’s authority to make law. This issue, however, is not an academic matter for endless debates on constitutional law. Reasonable rules and procedures based on Daubert are essential to a balanced legal system, and it is the responsibility of the judiciary in the country as well as lawmakers to ensure that junk science does not find its way into our courtrooms.
Sherman “Tiger” Joyce is the President of the American Tort Reform Association.
