An old story has it a Southern defense attorney, confronted with photographic evidence of his client’s guilt, turns to the jury and says “who you gonna believe? Me, or your own lyin’ eyes?”

A quick Google search reveals the line was actually first uttered by Chico Marx, disguised as Groucho, in “Duck Soup.”

But I thought of this apocryphal courtroom tale last week when the Fifth Circuit Court of Appeals chucked out a $502 million jury verdict against DePuy Orthopedics and Johnson & Johnson over allegedly defective hip implants. In a strongly worded 57-page ruling, the appeals court criticized Houston lawyer Mark Lanier for the oldest tort-lawyer trick in the world: Using completely unrelated evidence to convince jurors the executives at DePuy and J&J were Very Bad People who should pay for his client’s injuries.

Lanier insinuated DePuy was infected with racism by citing a single employee’s resignation letter, which he transformed into a “filthy email.” And he repeatedly tried to tie J&J to Saddam Hussein after the judge inexplicably allowed Lanier to bring in evidence of a deferred prosecution agreement J&J signed in 2011 admitting to violations of the Foreign Corrupt Practices Act by an affiliate not involved in the litigation. In his closing argument, Lanier connected the dots for the jury between his claim DePuy and J&J paid kickbacks to U.S. doctors to install hip implants with “the bribes to Saddam Hussein’s government, the bribes in Greece, Romania, Poland and all the other places where they were bribing people to put in …their products.”

“That alone is a winner,” Lanier told the jury. “That ought to be enough.”

Never mind the scientific evidence before your eyes, in other words. Believe me, and punish these executives for being Very Bad People. Lanier’s strategy represented a sleight of hand I have observed repeatedly in years of covering tort law in this country. Presented with a client who suffered some mishap and a company whose products or conduct may have been to blame, trial lawyers try to steer the jury’s attention away from the necessary cause-and-effect relationship between the defendant’s product and their client’s injury, toward extraneous evidence suggesting the company’s employees are evil.

One of the most mysterious concepts in the already confusing business of American tort law is proximate cause, or the legal relationship between one person”s actions and another’s injury. William Prosser, author of one of the leading texts on torts, famously called proximate cause “a tangle and a jungle, a palace of mirrors and a maze,” because of the difficulty of sorting out who or what actually caused an injury. A company that digs a hole in the street might be liable for the injuries of a man who stumbles into it but what if somebody deliberately kicks a child into that same hole? Who’s liable then? One of the most important skills of a trial lawyer is to  muddle the two examples above, leaving the jury convinced the defendant not only dug the hole but was capable of kicking a child into it — and is therefore liable for anything related to the hole.

Every first-year law student learns the famous case of Palsgraf v. Long Island Railroad, where the plaintiff sued the railroad after a large platform scale fell on her. The case itself is a tangle of mysteries, involving a passenger jumping on a moving train, losing his balance, being saved by an attentive conductor, and dropping a package of fireworks wrapped in newspaper that inexplicably explode and possibly topple the scale many feet away. The plaintiff blamed the conductor for causing her injuries by negligently trying to assist the passenger. Justice Benjamin Cardozo rejected that theory, saying the conductor couldn’t have foreseen how helping a passenger carrying an innocuous-looking package wrapped in newspaper would cause the plaintiff’s injuries.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do”

The job of a trial lawyer is to get around Cardozo’s famous words. Back in the 1990s, for example, lawyers had a perfect case against breast-implant manufacturers whose products ruptured, requiring painful surgery to collect all the globules of silicone that migrated through a woman’s upper chest area. But the number of ruptures was small relative to the total number of breast implants. So they came up with a more inclusive theory: Silicone was a slow-acting poison that could cause everything from memory loss to lupus.

The lawyers didn’t have plausible scientific evidence for this, and subsequent studies found that silicone was, in fact, safe. (Breast augmentation remains by far the most popular procedure tracked by the American Society of Plastic Surgeons, with 300,000 implants last year.) But the implant manufacturers didn’t have enough science at hand to prove a negative when they went to trial, so the lawyers used internal memoranda and other evidence to paint Dow Corning and Mentor executives as Very Bad People who foisted a product on the market knowing it might cause lupus (even though, as it turns out, it didn’t). The end result was the lawyers got thousands of plaintiffs, hundreds of millions of dollars in fees, and the women whose implants ruptured had to share damages payments with women who had no injuries other than a very bad scare by lawyers who were wrong on the science.

Tobacco lawsuits are another example. Jurors are told — and a significant number of them apparently believe — that smokers ignored the very clear warning on each pack of cigarettes, from the nation’s highest medical officer, that the product they were about to consume will kill them. Whom did they believe instead? Tobacco executives, apparently. How executives in one of the most reviled industries in America carried more credibility with consumers than the U.S. Surgeon General is a mystery. But jurors still buy this story. Believe me, not your own lyin’ powers of reason.

The same story is being revived in the two biggest examples of mass-tort litigation today, opiods and climate change. In both cases private plaintiff lawyers operating in partnership with government attorneys are arguing that corporations filled with Very Bad People convinced doctors that what they learned in medical school was incorrect, and convinced consumers that burning hydrocarbon fuels doesn’t release greenhouse gases.

There’s a legal strategy embedded in these stories. In both cases lawyers are trying to shoehorn garden-variety tort cases into the law of public nuisance, and it’s not a good fit. To win a public nuisance case, lawyers theoretically have to prove someone created an unreasonable nuisance that deprived citizens of the use or enjoyment of a public amenity. The archetypal case would be a city suing a landlord over properties infested with drug dealers and criminals, or a company releasing plumes of dust and smoke that drifts into the surrounding neighborhood. The remedy is traditionally abatement, or a court order to stop the annoying activity.

With opioids and hydrocarbons, however, plaintiff lawyers have to leap over the considerable hurdle that both products are not only legal but their production and sale is heavily regulated and encouraged by the government. The Centers for Disease Control have tightened guidelines for opioids but still recommend them for pain treatment and the federal government provides billions of dollars in subsidies for the production of oil and gas. So it’s hard for lawyers to argue either activity is “unreasonable” on its face, and indeed they aren’t even trying to obtain the traditional remedy in public nuisance cases, which is a court injunction ending the offending activity.

No, they’re playing the old game of shifting your attention elsewhere. Look at these marketing materials Purdue Pharma put out suggesting opioids weren’t addictive! These consent agreements over fraudulent marketing practices! The research oil companies sponsored by scientists who are known skeptics of climate change! These are Very Bad People we’re dealing with, and they need to be given a lesson! Hit them in the pocketbook!

Never mind that no physician can get through med school without learning that opioids are addictive, or that the First Amendment protects a company’s right to sponsor scientific research and even express doubts about the prevailing view on climate change. Those thoughts will only distract the jury from the real job of punishing the guilty.

In its ruling reversing the $500 million verdict (reduced by more than $300 million under Texas’ punitive-damages cap), the Fifth Circuit criticized the trial judge for allowing Lanier to bring in  evidence about Saddam Hussein and the resignation letter accusing a DePuy executive of racism. Lanier argued DePuy and J&J opened the door by talking about their strong corporate ethics and the judge bought it. But the Fifth Circuit said “the references to Hussein were both recurring and `highly prejudicial,’ presented as if sufficient to prove liability.”

The judge allowed a general instruction at the close of trial, the appeals court noted. But Lanier’s statement was among the last things the jury heard before retiring to deliberate, “and a colossal verdict followed.”

“Because the taint is unmistakable, the verdict cannot stand.”

An unrepentant Lanier told Legal Newsline, where I am a freelance correspondent, that he can win without Saddam Hussein and he’s probably right. His tactics in this case were over the top, but the basic strategy still works.

“We find it unfortunate the behavior of J&J was so bad, that reciting that behavior to a jury evidently prejudices the verdict; however, the court has not allowed that into evidence in the subsequent trials, and those resulted in larger awards,” he said.