A rogue’s gallery of pharma giants, insurance companies, and carmakers has called on a federal court committee to restrict Federal Rule of Evidence 702 to make it harder for plaintiffs to get their experts admitted. The blatant move to rig the admission of experts in favor of corporations came from notorious mass tort defendants like Bayer, GlaxoSmithKline, Johnson & Johnson, Medtronic, Merck, Novartis, Pfizer, Teva, and Walgreen. The brazen attack on Rule 702, or the Daubert rule, was sent on March 2 to the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts. “Too often, courts do not fully execute or enforce the “gatekeeping” obligation. Instead, we see courts allowing juries a role in deciding whether an expert’s opinions have the requisite scientific support without first ensuring that the testimony is the product of reliable principles and methods and is reliably applied,” the gang of corporate marauders wrote. Furthermore, the group wanted the Committee to get rid of the “presumption of admissibility” for experts. The Committee had issued a rule amendment in 2000 stating that “the rejection of expert testimony is the exception rather than the rule.” The exclusion of an expert witness can cause the dismissal of a mass tort case. For example, Pfizer knocked out more than 300 birth defect lawsuits over the medication Zoloft simply by having expert witnesses disqualified.
Plaintiffs reject changing Rule 702
The corporations, who banded under the misleading name, “Lawyers for Civil Justice,” are making bids to gain a structural advantage for its members. AAJ Senior Director of Policy and Senior Counsel Sue Steinman said, "Taken together, they are all designed to make it harder and more time consuming for people who are injured to get justice in courts. And in some cases, it would also add more time and burden to the judges who work on these cases," Rule 702 grew out of the 1993 Supreme Court ruling Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which overturned the Frye standard for admitting experts, saying “that the rule incorporated a flexible reliability standard instead.” Rule 702 of the Federal Rules of Evidence provides in part: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise... Bayer, which makes the cancer-causing Roundup weed killer, and Johnson & Johnson, which makes cancer-causing baby powder and talc products, constantly argue that plaintiff experts are offering “junk science.” The giant corporations have failed to persuaded juries, so they are running an end-around with the Court Committee. Bayer faces 3,000 federal lawsuits over Roundup in MDL 2741, overseen by U.S. District Judge Vince Chhabria in California, IN RE: Roundup Products Liability Litigation. It faces another 10,000 cases in state courts. Recently a state court jury in Oakland in May found that the plaintiff’s use of glyphosate-based herbicide for over 30 years caused them to contract non-Hodgkin's lymphoma. The judge cut a $2 billion verdict to $86.7 million. Johnson & Johnson faces 15,299 cases nationwide in federal court, but all of the action so far has been in state courts. The federal cases are consolidated before Chief US District Judge Freda L. Wolfson in MDL 2738 in New Jersey, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation. Many state juries have awarded 7- and 8-figure verdicts against J&J after it was proven that the company knew for decades about the risk of cancer-causing asbestos contamination in its talc products. For example, a jury awarded $4.7 billion against J&J in December 2018 to 22 women with ovarian cancer. Many of the corporations seeking to restrict Rule 702 are insurance companies, along with:
- Benjamin Moore
- Dow Inc.
- Ford Motor
- Smith + Nephew
The next meeting of the Committee is May 8.