Since America’s inception, we have outpaced the rest of the world in technological innovation.
Scientific figures such as Benjamin Franklin and Thomas Edison have always seemed present with us, and their heirs — modern-day titans like Steve Jobs and Elon Musk — maintain that tradition. Alongside their innate genius, their innovative successes occurred through hard work and revolutionary thinking, incentivized by a system that rewards hard work and provides an opportunity for efforts to bear fruit. Their achievements met the exacting tests of hard science.
Today, however, all of that is jeopardized by a very unlikely source: money-hungry plaintiffs’ lawyers.
To illustrate, consider the sheer number of science-related articles over the last week, month or year about weight-loss fads, new superfoods, longevity “breakthroughs,” diets to cure cancer, diets that cause cancer. You name it, it’s been published.
In many instances, such articles were reported in otherwise respectable news outlets, which republished those “findings” from “science journals” unworthy of the name. Some of those findings are inaccurate — if not outright lies — subsidized by wealthy plaintiffs’ lawyers hoping to astroturf lucrative mass tort cases. Those manipulative plaintiffs’ attorneys know that the “science” they’re peddling is often reviewed uncritically, especially when the sources of primary funding are whitewashed from view.
Here’s how those schemes work.
Opportunistic plaintiffs’ lawyers, always on the lookout for the next big score, devote considerable resources to identifying products that may be speculatively linked to specific harms. Because everything we consume carries some risk, many legal outfits strain to identify “supposed risks,” and fund “scientific research” alleging a connection — however tenuous — between the product and a resulting harm. They subsequently attempt to weaponize that sham research in court.
Savvy law firms also invest heavily in marketing campaigns that push their junk science to media outlets, who then amplify their message passively and uncritically.
Afterward, thinking they’ve received those reports from trusted sources, the consuming public often shares those stories with friends. Shortly thereafter, would-be-plaintiffs who never felt that they’d suffered any conceivable harm from products they’d used and enjoyed, are coaxed into signing onto mass tort claims.
At that plaintiff recruitment stage, the scheme is nearly complete. All that remains is for the junk science and legal claims to somehow pass muster in a courtroom.
Sadly, the defective legal standards of admissibility of “expert” evidence in national tort and product liability cases allow that to occur all too often. The junk science, paid from start to finish by plaintiffs’ lawyers seeking a big payday, is too often sustained by bewildered or compliant judges as credibly sound. Overworked, understaffed and lacking the technical background to make proper evaluations, courts frequently admit into evidence research that should be laughed from the room.
Returning to America’s enduring legacy of innovation, that unacceptable level of junk science chicanery produces a chilling effect on scientific innovation.
After all, how is a biotech firm incentivized to research cutting-edge cancer treatments if the threat of mass tort lawsuits hangs over its head during drug trials and afterward? The only way around that dilemma is to pass on those hidden liability costs to consumers to cover future legal fees. For perspective on that dilemma, consider that the average cost of developing a new drug exceeds $2 billion.
As a consequence, America’s court system is now straining under mass tort abuse. So are American consumers, who shoulder an estimated yearly invisible “tort tax” of $3,965 per family.
That triggers the pivotal question of what we can do to correct this growing menace. It starts with state and federal lawmakers taking the lead to pass meaningful legislation to better ensure that the evidence juries and judges hear is sound. By raising standards of admissibility to screen junk science from hard science, legal disputes can be resolved more fairly and America’s legacy of scientific innovation can continue.
Otherwise, Americans will continue to pay the unacceptable and growing cost.
Timothy H. Lee is senior vice president of legal and public affairs at the Center for Individual Freedom.
