A national taxpayers' group is in the middle of an uphill battle against a determined, well-financed group of plaintiff lawyers some think are peddling "junk science" and the judges who allow it in their courtrooms, resulting in multibillion-dollar settlements in some cases.
Mass tort cases built around this so-called evidence are gutting taxpayers and sullying the reputations of some of America’s largest companies, Daniel Savickas, Director of Policy for the Taxpayers Protection Alliance, said during a recent American Legal Record Podcast. The exemplar is the claim found in thousands of lawsuits that an ingredient in the weedkiller Roundup — glyphosate – causes cancer.
This, even though the Environmental Protection Agency, the Food and Drug Administration, and other health and safety agencies have deemed the product safe when used properly.
“(D)espite millions of people using this product with glyphosate in it, all of a sudden now you have this massive scandal and entire industry is disrupted,” Savickas told podcast host Leyla Gulen. “All because of one spurious study that snowballed because trial lawyers seized on it with the opportunity to make some money.”
In 2015, the International Agency for Research on Cancer, an arm of the World Health Organization, announced that glyphosate could “probably” cause cancer. The report was the firing of the starting pistol for the plaintiffs’ bar. Lawsuits have piled up ever since.
In 2020, Monsanto, bought by Bayer in 2018, reached an $11 billion settlement in nearly 100,000 Roundup cases filed nationwide. Monsanto estimates that an additional 54,000 Roundup lawsuits remain, most of which were filed in state courts.
Companies will often settle mass tort cases to lessen the PR blow, Savickas said.
In June, Johnson & Johnson agreed to a $700 million settlement surrounding lawsuits that claimed talcum powder causes ovarian cancer. Additional cases are pending.
“A lot of times the company just wants to be done with it to have their hands clean with it because of the reputational hazards,” said Savickas. “So, they'll settle out for a lot of money and that'll hurt their business too. But probably not as much as the PR nightmare of having a long-protracted trial of people saying that their product caused cancer.”
Driving the lawsuits are millions of dollars pumped into billboards and television and internet advertising as a come-on to sign mass tort plaintiffs.
“There's a lot of money in saying we have some loose linkage to Roundup and cancer,” Savickas said. “If you think that's you, please call the number. And a bunch of people think that maybe they'll make a quick buck. They call the number and all of a sudden that feeds into this association. Now you have hordes of people saying they think Roundup caused their cancer or they think Roundup killed their loved one.”
The trumped-up numbers, business defense lawyers say, increases pressure to settle the lawsuits that could result in payouts to many with no injuries— where some individuals collected without ever having used the product at the center of the claim. And a growing portion of that is being driven by third-party funding of the lawsuits.
“We’ve seen a dynamic change in the past decade with the increase in third-party litigation funding driving the advertising,” Phil Goldberg, managing partner of Shook, Hardy & Bacon’s Washington, D.C. office, told Legal Newsline for an earlier story. “And in some cases, we’re seeing unsupported claims as high as 50 percent.”
Savickas said that in some instances, the methodology of the science behind the claims is almost entirely without merit. He cited one Connecticut-based lab, Valisure, that has become a go-to product testing facility for plaintiffs' lawyers.
Legal Newsline has chronicled the effect Valisure has had on mass torts, which has led to tens of thousands of Zantac lawsuit and a budding environment for lawsuits over acne medication.
By heating those medicines, Valisure says they can turn into the carcinogen benzene. But their methods include an artificial stomach heated to more than 250 degrees and introduced to a lethal amount of salt. The FDA has criticized the lab, and federal and state governments have refused to join Valisure's False Claims Act lawsuit against the maker of Zantac.
A federal judge refused to allow the evidence in to a multidistrict litigation proceeding in Florida, but a Delaware state court judge ruled the other way, letting some 75,000 cases move forward.
A 2000 amendment to federal rules covering the testimony of expert witnesses (Rule 702) directs judges to act as gatekeepers, keeping bad science out of their courtrooms. Whether some did or not was debated, so in December 2023 the rule was again amended to clarify that judges, and not juries, must assess the strength of the science introduced in a case.
In the first few months, the results have been a “mixed bag,” according to Lee Mickus of the Colorado-based firm of Evans Fears Schuttert McNulty Mickus LLP., and Co-Chair of the Rule 702 committee for Lawyers for Civil Justice
“Many of the recent orders recognized the amendments’ directive that courts must focus on Rule 702’s admissibility criteria and must scrutinize the proposed experts’ testimony using the preponderance standard,” Mickus wrote in a paper published in April by the Washington Legal Foundation. “These decisions reflect proper adherence to the amendments’ objective. Other decisions, however, overlooked the new rule’s specification that the court, and not the jury, must determine if the expert meets the enumerated requirements.
He added that “a number of orders simply ignored the most visible aspect of the amendments — bringing the preponderance standard into the text of Rule 702 itself — and instead evaluated admissibility challenges with the view that courts should decide admissibility using a different scale, one that prefers admission and reserves exclusion for exceptional situations.”
Savickas said we need more.
“There just needs to be more hard and fast processes in place to make sure that any scientific or other knowledge is being scrutinized in the way that it should, given the economic impacts at play, given the potential harm to businesses across the country. There needs to be a process to make sure that when a scientific claim is being used in a tort case, that these processes are followed," he said.
The cost of the lawsuits to the consumer have been staggering, Savickas said.
"(W)hether that results in higher prices, because companies have to account for these potential lawsuits and their business models, whether that's just businesses not having the type of investment because it's getting invested in mass torts," he said. "$1,300 per taxpayer is the estimate of what the mass tort industry costs taxpayers each year, each individual taxpayer.”