Junk science admitted during trial continues to undermine our judicial system, unfairly affecting individual parties, consumers and industries.
When judges allow flawed evidence to corrupt verdicts, that rewards frivolous litigants, encourages future “jackpot justice” claims and fuels widespread distortion of justice.
Juries shouldn’t be blamed, because they can’t be expected to make effective decisions in cases when “expert” testimony put before them is actually rooted in junk science. Rather, our judicial system must do a better job of applying the rules of evidence and ensuring that jurors can better trust the accuracy of the information they receive in court.
The problem affects criminal and civil trials, where attorneys frequently hire self-proclaimed expert witnesses to give testimony that supports their clients’ cases. To be sure, some of those witnesses are indeed credible, knowledgeable experts whose statements on the witness stand are accurate and based on sound science. Too often, however, that’s not the case.
In our judicial system, judges should ideally act as more effective evidentiary gatekeepers, ensuring that testimony presented to juries remains scientifically sound and that the same rules for evaluating scientific evidence apply across all courtrooms. Unfortunately, not all judges are aligned in interpreting that critical procedural mandate.
In turn, that can lead to twisted outcomes, such as a recent Delaware case involving mass tort litigation in which plaintiff attorneys contended that the heartburn medication Zantac had somehow caused their clients to develop cancer.
In that textbook illustration of junk science leading to an unfair outcome, the judge admitted evidence suggesting a link between Zantac (ranitidine) and cancer by relying on studies of a chemical contained in the drug rather than the actual drug itself. In doing so, the judge discounted human studies conducted by the Food and Drug Administration and European regulators showing no association between the use of ranitidine and cancer.
Illustrating the dubiousness of that Delaware decision, a Florida judge had examined those same studies and, based on their conclusions, excluded plaintiff expert testimony claiming that Zantac was carcinogenic.
Higher courts are beginning to acknowledge the problem. This past August, the Delaware Supreme Court ruled that the state’s standards for expert testimony must align with the 2023 amendments to Federal Rule of Evidence 702, affirming that courts must more rigorously assess the reliability of expert evidence rather than presume admissibility.
That federal evidentiary rule, initially enacted in 1975, required that expert witnesses be reliably qualified as such through demonstrated knowledge, skill, experience, training or education, and that the proposed testimony would assist juries in understanding the evidence or a fact in issue. Twenty years later, the Supreme Court affirmed in Daubert v. Merrell Dow Pharmaceuticals Inc. that courts must play that critical “gatekeeping” role, ensuring that only truly expert testimony deemed reliable is admitted and presented to juries.
Additionally, a more recent federal amendment to Rule 702 took effect in late 2023. Those changes more clearly place the burden on proponents offering expert testimony to meet the rule’s criteria, and demand a tighter connection between experts’ opinions and the methods supporting them.
Despite those mandates, and although some other states have adopted the federal rule, challenges in achieving consistency obviously persist, and necessary progress remains.
Members of the legal community concerned about problems arising from junk-science trial testimony are hopeful that the new changes to Rule 702 will reinforce trial judges’ role as gatekeepers of expert testimony. If fully implemented, that should help judges ensure that the “expert” testimony presented to juries remains trustworthy.
All Americans should share that same concern. Jury decisions in mass tort litigation can significantly affect consumers, businesses and the economy.
Accordingly, we all have a stake in making sure those decisions are sound and supported by scientific facts, not fiction. It’s up to us to demand that it happens.