Legal Reform

Burned Tort Lawyers Plead Guilty to $200 Million Extortion Racket

Late last year, we covered the criminal case against Virginia-based attorney Timothy Litzenburg and his partners.

He was accused of approaching an international agrochemical company, presumably Bayer, the parent company of Monsanto, and threatening to weaponize the media and courts against them unless they gave his law firm $200 million.

The aim was to use recent verdicts to claim glyphosate, a key ingredient in Monsanto’s Roundup, is a dangerous carcinogen, even though hundreds of studies by reputable bodies, including the FDA, have said there is no evidence for that claim.

In court, it was revealed that Litzenburg’s firm threatened Monsanto by pitching them a massive “consulting agreement” that would make future cases against them from the firm invalid because of the conflict of interest. The hope was that the company would back down and the lawyers would make off with a huge payday.

Last Friday, Timothy Litzenburg, of Charlottesville, and his partner, Daniel Kincheloe each pleaded guilty to extortion after a short trial. They will face sentencing in September.

Litzenburg and Kincheloe also admitted that after making their demand for $200 million from the company, they registered a Virginia corporation for the purpose of receiving money from the company, and that they agreed to split the funds among themselves and their associates, and to not distribute any of the money the company paid them as purported “consulting fees” to their existing clients. Litzenburg and Kincheloe admitted that after making their demand for $200 million, Litzenburg threatened that they and others would commence litigation that would become “an ongoing and exponentially growing problem for [Company 1], particularly when the media inevitably takes notice[,]” and that such litigation would cost Company 1 and its publicly-traded parent company “billions, setting aside the associated drop in stock price and reputation damage.”

WHSV

This case is important because it peels back some layers on our nation’s vastly complicated tort or injury legal system, a pernicious cyclone of veiled threats, millions of dollars, unethical standards, and huge settlements to lawyers that often leave truly injured plaintiffs in the dust.

The incentives that exist in the American legal system make it possible for virtually any legal firm to trump up a case against companies or individuals. Often times, companies will choose to settle these cases for large amounts rather than have the case gain publicity, even if there was no actual harm or injury.

In a sense, the bigger a company is, the more likely they are to have a target on their back, no matter the claim that is brought up in court.

Though there are plenty of legitimate tort cases in which people have been harmed, there are just as many that are just outright frivolous and have no legal merit. Just think of the various cases against Google Maps because people took a wrong route and were struck by a car, or against Burger King because it’s meatless burgers aren’t really “vegan”.

Because the number of cases that can be heard by judges and juries is limited in a given year, the existence of these types of cases means that other cases, with real greviences won’t get heard.

And even if cases with real harms are eventually brought to court, it’s highly likely the plaintiffs will only receive a fraction of their deserved restitution.

It’s a system that overwhelmingly benefits injury lawyers at the expense of those they are supposed to represent.

Earlier this year, an analysis of large class-action lawsuits compiled by the law firm Jones Day found that that class members received an average of just 23 percent of eventual payouts — sometimes in the billions of dollars — and close to two-thirds went straight to lawyers instead.

These large settlements end up costing companies and the consumers that suffer from higher prices, not to mention the hundreds of potential plaintiffs who are not able to have their civil cases quickly heard.

America loves lawsuits. So why can’t you sue a cop for excessive force?

Across the country, people of all backgrounds are in the streets to seek justice.

They feel let down by their institutions, their cities and their nation. They’re not wrong. The shocking death of George Floyd in Minneapolis has awoken many Americans to the pressing issues of police accountability and racial justice.

For a lawsuit-frenzied country, one would think there would be an overwhelming number of lawsuits filed against police officers who abused their power.

But that’s not the case, because of a little-known legal doctrine called “qualified immunity.” It effectively shields all civil servants from being sued for actions they perform on the job.

A recent Reuters investigation found that qualified immunity is a “fail safe” for those who commit police brutality and denies victims of that violence their constitutional rights.

Several elected officials in Washington, D.C., are taking a second look at this policy, and the U.S. Supreme Court is being pressured to revisit the issue, even though justices have consistently upheld it.

Stripping this defense from police officers who use excessive and deadly force in the line of duty would help protect future lives, and restore justice to those who need it most.

in Florida, between 2013-2019, 540 people were killed after altercations with police; 31 percent of them were black, according to the Mapping Police Violence Database.

A Tampa Bay Times database found that of the 772 incidents with officer-involved shootings between 2009 and 2014, there were just 91 lawsuits. It is not known how many resulted in significant settlements establishing negligence, but a similar database in New York shows it’s just a handful every year.

For the families of the innocent victims in police altercations, we want a legal system that can not only prosecute and sentence officers who use excessive force, but also hold them responsible in civil courts.

That should be easy considering the United States — and Florida, specifically — are among the most litigious places in the world. But the majority of civil lawsuits are filed are not based on the negligence of police officers or other civil servants, but against business owners by trial attorneys representing consumers. These cases are often frivolous .

But they ofthen become large class-action lawsuits that take up extraordinary time and resources in the courts, promising huge payouts to the suing legal firms and virtually nothing for class members, all the while slowing down the prosecution of civil wrongs that resulted in injuries and death.

A significant analysis of large class-action lawsuits compiled by the law firm Jones Day finds that class members received an average of just 23 percent of eventual payouts — sometimes in the billions of dollars — and close to two-thirds went straight to lawyers instead.

These large settlements end up costing companies and the consumers that suffer from higher prices, not to mention the hundreds of potential plaintiffs who are not able to have their civil cases quickly heard.

Instead of a judicial system clogged with civil lawsuits that actually end up harming citizens, what about a more accountable legal system that would help deliver justice to the victims and families most harmed by those who are supposed to protect us?

That’s why qualified immunity of police officers and civil servants cannot be allowed to stand, and we must institute legal reform that would help balance justice in our society.

This is the right moment to focus on justice and equality. Making our judicial system more robust and more adept at identifying those who commit civil wrongs should be a priority. We owe this to all victims of violence and those who deserve restitution.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

How liability lawsuits drive up drug prices, stifle innovation, and harm patients

A single drug can cost up to 2 million dollars per treatment. In the light of COVID-19, patient groups and activists have been using the crisis of the moment to call for capping drug and vaccine prices and cracking down on barriers to access for patients. In developing countries, large parts of drug prices are caused by tariffs, taxes, and other regulatory barriers. The United States, on the other hand, has the highest per-capita drug expenditure and drug prices in the world.

Bringing a drug to the US market is usually critical for a company to recoup the roughly 2 billion dollars of development costs per successfully launched medicine. At the same time, the country’s unique legal liability and injury system (called tort law) leads to higher drug prices without necessarily creating benefits for patients. Once a drug has passed the rigorous approval process demonstrating safety and efficacy to the US Food and Drug Administration (FDA), it is still subject to various liability laws at the state level.

In the last two decades, Pfizer set aside a whopping 21 billion dollars for settlements following tort lawsuits against the diet drug Fen-Phen. Those who were harmed by the drug were able to seek legal recourse. That said, thousands and thousands of people who were not harmed by the drug were also able to seek compensation. So much so that it is assumed that at least 70% of the payouts went to claimants who weren’t harmed at all by the drug.

Johnson & Johnson was ordered to pay 8 billion dollars to one patient for side effects caused by the antipsychotic drug Risperdal. These are just a few examples of a plethora of multi-billion-dollar payments drug companies have been compelled to make after being dragged to court, despite them being deemed safe by the FDA.

Patient advocates who are passionate about lowering drug prices in the USA should take a serious look at liability laws and how their misuse inflates prices. Abolishing liability beyond FDA requirements could reduce drug prices in the United States by 12 to 120 billion dollars a year and therefore give many more patients access to medicines. 

In 2019, US patients spent a total of $360 billion on prescription drugs. Between 3 and 30% of this amount could be freed up for other treatments or price cuts if liability rules for FDA-approved drugs would be reformed. This change might seem radical, but it is what Congress has approved for FDA-approved medical devices. A similar preemption was extended to vaccines in the late 1980s via the Vaccine Injury Compensation Program.

Another impact of lawsuits following product withdrawals of FDA-approved drugs is that they negatively affect new investments in development. Pfizer’s settlement for Fen-Phen alone could have been used to bring 10-15 new innovative and life-saving drugs to patients.

Rather than using these financial resources for more research and development, or to lower drug prices, pharmaceutical manufacturers have to fight law firms who enrich themselves by abusing the US tort system. Tort law on top of FDA regulation is not just stifling innovation, but also an expensive way to compensate for the harm caused to patients. Paul H. Rubin suggests that the costs of settlement for the legal process account for half of the total settlement fees. Reducing this burden could increase the speed of new drugs being developed and reduce their price. Critics of tort reform will say that changing liability rules will endanger patients, but that’s far from the truth. A 2007 study shows that tort law reform in some states led to a total of 24,000 fewer deaths due to price reductions and the arrival of new innovative drugs. That’s something to keep in mind.

As long as we keep existing tort law on top of the FDA approval framework, consumers are being de facto forced to pay a massive markup on drugs in order to get insured against potential side effects. This is a very expensive and inefficient way of insuring patients against harm. 

A smarter way of designing such a compensation scheme is to either expand the vaccine compensation scheme to pharmaceuticals or to allow consumers to personally purchase insurance against such damages. This could, for instance, be supplementary insurance on top of the patient’s existing health insurance plans. Such a system would allow patients who opt-in much lower fees than the existing mandatory tort law system.

Exempting drugs from state tort law would be an easy step to reduce drug prices without putting patients under more risk. American patients would save billions a year and be able to access more treatments than they can currently. This will lead to a net benefit for patients and the health of the nation. Why not give it a try?

“Die Schuldigen nicht in den Skihütten von Ischgl suchen”

Die weltweite Verbraucherorganisation Consumer Choice Center nimmt die Gastwirte im österreichischen Party-Hotspot in Schutz.

Après-Ski im Fokus: Der Gastro in Tirol wird vorgeworfen, zur Corona-Ausbreitung beigetragen zu haben

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Can you sue the ski hut where you contracted coronavirus?

European nations may be opening up their economies throughout the month of May, but that grand opening is likely to be dogged by the wave of COVID-19-related lawsuits.

We learned over the weekend that over 5,000 international tourists to the ski town of Ischgl, Austria are in the process of filing a lawsuit against the town and public officials. There are also being considered against ski resort owners in the area.

The lawsuit is being prepared by the Austrian Consumer Protection Association, which claims health authorities and the bar owners were “negligent” in not shutting down ski huts and restaurants earlier. They launched a website asking potential plaintiffs to share their information in order to join a future class-action lawsuit.

Often described as the “Ibiza of the Alps,” Ischgl made international headlines as an epicenter of the coronavirus crisis. At one particular venue, Kitzloch, a German bartender reportedly tested positive for coronavirus on March 7th. The bar closed its doors two days later. The town went into lockdown on March 13th. Tyrolean Governor Günther Platter then issued a province-wide quarantine on March 18th.

By the end of March, nearly 1,000 cases across Europe could be traced back to the resort town, and as many of 1,500 to the region itself.

The complaint states that the delay from the first known case until the ski town was ordered into lockdown was “negligible” and that authorities should have “known of a threat of mass infection”. Some have even blamed “greed” and “toxic business” as the reason local officials and business owners waited before shuttering doors. But as covered above, ski lodges and restaurants shut before provincial and national lockdowns ordered them to.

The first death in Austria from the coronavirus wasn’t until March 12, after which the town of Ischgl went into complete lockdown. The national lockdown went into effect four days later.

Is this enough to make a case against ski huts and villages where tourists contracted coronavirus?

As my colleague Linda Kavuka has pointed out, the current pandemic is a living and breathing example of Force Majeure, an Act of God that indemnifies certain parties in lawsuits and breaches of contract because it is simply “beyond the control” of any person or organization.

That said, there are legitimate questions to be asked: should ski towns have shuttered their doors and closed down bars and restaurants earlier? Likely. But we simply didn’t have the same information then as we do now.

And considering the very disturbing revelations about obfuscation of information by both the Chinese Communist Party and the World Health Organization at the outset of this crisis, it’s hard to place blame solely at the feet of local mayors and ski hut owners in the Alps.

(That’s why the U.S. states of Mississippi and Missouri have filed lawsuits against China.)

Of course, the fact that any skier or holiday goer would contract the coronavirus at a place where they were supposed to be enjoying themselves is a tragedy. Many people unknowingly spread the virus, were hospitalized themselves and died as a result. No one can excuse that loss of life and the grief that ensues.

But what we must hold uphold, in this situation and many more to come, is the facts and cases we allow to enter our legal system and our courts.

Classifying or assigning claims of negligence in the pandemic could likely mean thousands of unwitting public officials, business owners, and individuals will be held liable for what they didn’t know at the time. That would be a dangerous precedent.

We’ve often covered the incredibly litigious culture in the United States’ tort law system and articulated to reasons to reform it. Now, it seems, we’ll have to spread that same message throughout the European continent.

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix Series Reveal Injustice and Junk Science Are Plaguing Courts

With so many of us doing our part to stay at home, it’s been the perfect time to dive into a binge-worthy Netflix series.

For many, it’s been “Tiger King” or reruns of “Friends,” but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: Is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise, therefore, that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers.

In “The Innocence Files,” it was controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics.

Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a New Jersey district court is currently reviewing whether submitted scientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence.

Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they have been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it is the lives of innocent men and women.

As citizens, taxpayers and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Battle of the Experts: Judge tosses portions of testimony in J&J talc trial

For the last year, we’ve dedicated a good amount of space in our campaigns advocating for significant reform when it comes to both the U.S. tort law system and the science that is used in courts.

With most courts closed due to COVID-19, that afforded us an opportunity to better dive into one case that’s grabbing headlines: one of the many talc lawsuits against Johnson & Johnson, which we’ve written about before.

Plaintiffs in multiple lawsuits claim their baby powder products contained elements of asbestos in the talc, the main ingredient in hundreds of cosmetic products, food additives, and lubricants, and therefore can cause cancer.

Because these lawsuits have been inundated with scientific testimony from all sides, a judge in a Federal District Court in New Jersey held a Daubert hearing, examining the methodologies and credibility of the science presented in the case.

For those interested in countering junk science in the courts, this is a big one.

The Daubert opinion, written by Chief Judge Freda Wolfson, sheds a lot of light on the process of determining whether certain expert analysis can be entered as evidence for juries to consider.

In this specific case in New Jersey, all experts from the plaintiff-side who had part of their testimonies thrown out because their methodologies were questionable or they made claims they couldn’t back up. All defense witnesses will be heard without reservations.

Overall, there’s a lot of “Battle of the Experts” here, and it makes for fascinating reading.

There was a lot of debate about the strength of weakness of “epidemiological studies” – tell me if you’ve heard about those recently – and about whether expert witnesses were basing their testimonies on “subjective belief or unsupported speculation”.

Specifically, one of the main witnesses says talcum powder causes inflammation in certain cells, and then uses that to claim it’s carcinogenic. Chief Judge Wolfson torches him for his claim without causation.

“For all these reasons, the Court finds that Dr. Saed’s opinion that talc causes ovarian cancer is unsupported by the findings of his study—which can only arguably demonstrate that use of talcum powder causes inflammation in ovarian cells.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 24

Second, because there was no transformation of the cell under experimentation, which is usually how we can prove a link to cancer, the judge called his conclusions “unreliable”.

What is more, Dr. Saed’s findings with respect to CA-125 further demonstrate that his opinion with respect to ovarian cancer causation is unreliable.

Chief Judge Freda Wolfson, Daubert opinion, pg. 56

The second main expert witness gets knocked down for producing scientific experiments that can in no way be replicated. The judge points out that each additional attempt at replication came up with a negative for asbestos, which is claimed to be the carcinogen in focus.

“Without that information, which is internally created by MAS, reproducing Dr. Longo’s test under the PLM would not be possible, and hence, the testing is unreliable…J-3’s PLM analysis was negative for asbestos for each sample.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 23

It’s obviously very difficult for courts to examine and establish good science from bad science.

That’s why Daubert hearings are supposed to weigh methodologies, like disproven bite-mark analysis or tire tracks (as many Netflix series are now exposing).

A lot of junk science is taken as fact because it’s in the courtroom, and that’s wrong. That’s exactly what was explained to us last week on Consumer Choice Radio by Jerry Buting, the famed attorney of Steven Avery from the series Making a Murderer.

What we know is that science is a powerful tool to use in lawsuits that affect millions of consumers or innocent people’s lives, but it can be flawed and have bad consequences.

For that reason, we need good legal reform in each state’s tort system to ensure we can uphold good scientific evidence. Justice depends on it.

A full embed of the Daubert opinion can be found here:

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