In a commentary published in Law360, Beasley Allen’s Leigh O’Dell called out corporate America for building a significant litigation theme around the specter of “junk science.”
“In defending itself for the marketing of everything from pesticides to pharmaceuticals, the pro-tort reform crowd can be expected to trot out the canard that any science other than that of the defense constitutes junk,” she wrote. “In contrast, the principles of relevancy and reliability set forth in Daubert standards apply to both sides of the aisle.”
Claims that rely on scientific testimony rely on expert witnesses from both sides. The credibility of their testimony is based on medical and scientific research and is rightfully scrutinized by juries and courts. There are numerous examples where appellate courts and federal circuits have sought to clarify the admissibility of expert testimony. But, O’Dell writes, there is no evidence that junk science is prevailing over justice.
Still, both the wheels of science and justice grind slowly in the face of corporate opposition, she said.
O’Dell cited an example from the talc litigation, Carl et al. v. Johnson & Johnson. In August 2020, a three-judge panel overturned the 2016 trial court opinion that tossed the claims of two women alleging that regular, decades use of Johnson’s Baby Powder led to their ovarian cancer. O’Dell discussed how the U.S. District Court for the District of New Jersey “correctly applied the Daubert standard,” acknowledging that it is not the court’s role to decide who is right but whether experts are qualified and have used reliable methodology in reaching their opinions.
However, the opinions neither reflect nor affirm the clinical research and dozens of peer-reviewed medical articles showing a connection between talcum powder use and cancer. “The use of the ‘junk science’ appellation remains solely in the strategic purview of corporate America—in this case with Johnson & Johnson—to sway public, if not judicial, opinion.”
Read O’Dell’s full commentary on Law360 here.
