As published on Legal Newsline’s Northern California Record:

SAN FRANCISCO, July 22, 2019 – On one coast, Bayer AG is fighting to reverse eye-popping jury verdicts based on a contested theory Roundup herbicide made by its Monsanto unit causes cancer. On the other, Johnson & Johnson begins hearings this week in federal court in New Jersey over its request to exclude more than 20 expert witnesses plaintiff lawyers need to prove their case that Johnson’s Baby Powder is contaminated with deadly asbestos and can cause ovarian cancer.

In both cases companies are challenging a singular feature of American tort law: In U.S. courts, unlike most of the rest of the world, non-scientist jurors get to decide questions of scientific fact. And once the jury has decided, judges have little leeway to overturn their version of the truth unless it is completely unsupported by the evidence. In toxic-tort cases like Roundup and talc, that evidence usually comes out of the mouths of highly paid expert witnesses selected by the lawyers on each side. Judges are relegated to a gatekeeper role and many judges, especially in state court, prefer to let jurors decide the credibility of scientific witnesses themselves.

“The law doesn’t require the usual scientific standards of proof to decide a case,” said Edward Cheng, a mathematician and professor at Vanderbilt Law School who studies how courts handle scientific questions. “You just have to take into account what is available.”

In the Roundup lawsuits, judges in state and federal court in California last week trimmed jury verdicts ordering more than $2 billion in punitive damages, but refused to reverse jurors’ fundamental findings of scientific fact including allegations that household exposure to Roundup can cause non-Hodgkin’s lymphoma. Jurors in in Hardeman v. Monsanto determined the cancer link exists even though every major national regulatory agency considers Roundup’s active ingredient glyphosate to be safe. Long-term epidemiological studies of more than 40,000 agricultural workers, who are exposed to far higher amounts of glyphosate than consumers, also show no higher risk of lymphoma.

In his order refusing to overturn the jury verdict, U.S. District Judge Vince Chhabria said, “there is credible evidence on both side of the scientific debate” and “the metaphorical jury is still out on whether glyphosate causes NHL.” Judge Chhabria did slash the jury’s award of $75 million in punitive damages on top of $5 million for pain and suffering, saying it exceeded the U.S. Supreme Court’s recommended maximum ratio to actual damages of four to one. But the jury was reasonable to conclude Monsanto “deserves to be punished,” he wrote, because “the evidence easily supported a conclusion that Monsanto was more concerned with tamping down safety inquiries and manipulating public opinion than it was with ensuring its product is safe.”

How can a federal judge conclude a company deserves to be punished for failing to investigate scientific theories that even its primary regulator, the Environmental Protection Agency, says are unfounded?

“It’s not really the judge that’s doing anything at this point,” said Cheng. “The jury heard the case and the jury decides the facts.”

In a second ruling last week, Judge Winifred Smith in state court in Alameda, Calif. rejected a motion for a new trial but did tentatively grant one on the issue of preemption in lawsuits by a husband and wife who were awarded more than $2 billion in damages. In that case, Monsanto argued it was unfair for the judge to combine Alva and Alberta Pilliod’s claims in a single trial because jurors could easily be misled to think it was rare for a husband and wife to be diagnosed with the same disease and conclude Roundup was the only logical explanation (one expert even suggested this in court, over fierce objections by the defense).

Monsanto also complained that plaintiff experts including Dr. Dennis Weisenberger used “unapologetically results-oriented” methods to exclude all other potential causes of non-Hodgkin’s lymphoma, including Alva Pilliod’s repeated bouts with cancer and his wife’s history of smoking and genetic risk factors.

In New Jersey, Johnson & Johnson is hoping to snuff out multidistrict litigation over claims talcum powder causes ovarian cancer by convincing U.S. District Judge Freda L. Wolfson that plaintiff experts have made “numerous leaps of logic that defy scientific knowledge and methods.” The plaintiff case is built upon the testimony of experts like Dr. William Longo, who says he has found asbestos fibers in samples of talcum powder that plaintiff lawyers obtained from unsealed bottles they purchased on eBay and other sources.

Johnson & Johnson says Longo is confusing asbestos fibers with “cleavage fragments” created when talc is ground into powder and the results from his electron microscope research can’t be repeated by other scientists. Under the U.S. Supreme Court’s Daubert doctrine governing scientific testimony in federal courts, judges are supposed to exclude experts unless their methods can be replicated and have been subjected to outside scrutiny such as being published in peer-reviewed journals.

While Daubert can be a powerful tool for eliminating misleading testimony from the courtroom – and J&J hopes it can crush the ovarian cancer cases by eliminating plaintiff witnesses from the MDL – it doesn’t solve the underlying problem of having non-scientists decide scientific questions, Cheng said.

“Why would you ever hand this off to people who have no idea of what the science is?” said Cheng, who will explore alternative methods of handling science in the courts in a forthcoming article. “It’s a crazy way to handle the situation.”

Most other countries do it differently. First of all, only in the U.S. are civil litigants constitutionally guaranteed a trial by jury. Jury trials are exceedingly rare in civil lawsuits in the U.K. In the rest of Europe judges typically decide under statutes spelling out the duties of manufacturer defendants. Instead of serving as gatekeepers, judges in those countries select the experts they believe will best help them understand the science.

In U.S. courts, jurors are usually subjected to a “battle of the experts,” in which lawyers tried to undercut the credibility of opposing experts on cross-examination. In reality, science usually takes a secondary role behind incriminating e-mails and other documents suggesting the defendant company was trying to hide the truth, whatever that is, or failed to prove its products were safe even though it’s the plaintiff’s burden to prove they are unsafe.

Cheng suggests toxic tort cases should be handled more like medical malpractice lawsuits. Instead of deciding a fundamental question of science – does glyphosate cause cancer – jurors should decide whether the scientific community has concluded glyphosate causes cancer.

It’s a subtle shift, but an important one. In med-mal cases, jurors don’t decide whether Dr. A caused Plaintiff B’s injury. They decide whether Dr. A deviated from the standard of care, and then whether that deviation caused the injury. Expert witnesses still play an important role, but doctors can’t be held liable unless the jury decides they practiced medicine in a way that violated the standards of their professional community.

“It’s not about believing this expert or that, but rather trying to ascertain what the expert community might conclude,” Cheng said.

With Roundup and talc, few experts who are not on the payroll of plaintiff lawyers agree with the scientific theories jurors seem inclined to treat as fact. The only quasi-governmental agency to conclude glyphosate causes cancer is the International Agency for Research on Cancer and the chair of the committee that reached that conclusion, Chris Portier, signed on as a plaintiff expert days after the IARC report was released. The U.S. EPA meanwhile reiterated its position that glyphosate doesn’t cause cancer on April 30, even as the jury in the Pilliod case was preparing to reach the opposite scientific conclusion.

Conflicting jury verdicts on the science are nothing new. Silicone breast implant manufacturers paid out billions of dollars in damages over theories silicone was a slow-acting poison that caused a constellation of diseases, until large-scale studies proved those theories false. Other chemicals jurors have branded as dangerous have turned out to be safe, including Bendectin, the Merrell Dow Pharmaceuticals drug that was at question in the original Daubert ruling.

“If I were to design the system you would have to wait around for more evidence,” said Cheng, although he acknowledged that could unfairly leave plaintiffs without recourse to court until scientists caught up with their claims. “I worry that we’re repeating the same mistakes that we have in the past.”