The U.S. economy has long depended on innovation; it’s a big part of why we are the most prosperous nation on earth. From Silicon Valley startups to groundbreaking pharmaceutical research, American ingenuity drives growth, creates high-paying jobs, and ensures our global leadership. However, the proliferation of spurious information known as “junk science” puts a damper on the development of new ideas and products, making us less competitive and weaker on the international stage.
Legal actions underpinned by junk science are not supported by credible scientific evidence, such as peer-reviewed publications, or by experts with bona fide credentials. Consider the high-profile actions based on claims that cell phone use can cause brain cancer. Emerging rulings that plaintiffs’ experts used flawed methodologies and failed to present reliable scientific evidence to support their claims – in fact, extensive research and large scale studies have found no link between cell phone use and an increased risk of brain tumors or other cancers – shows how jurors ran the risk of being misled by junk science. Unfortunately, not all courts have been as diligent in disallowing testimony to a jury from individuals who may not necessarily be an expert on the subject matter at issue in the case.
Fortunately, the court system has recently addressed the problem of how to determine if a person can qualify to testify as an expert before a jury. The Federal Rule of Evidence 702 (Rule 702) was amended to address the long-standing concern that courts have had traditionally broad discretion as gatekeepers and that some courts have not been vigilant in examining the credentials and testimony of individuals proffered as experts. This abdication of duty by the courts can cause jurors to rely on dubious science that will likely impact the jury’s verdict.
Rule 702 states that an individual who will be testifying as an expert must be qualified and have the scientific, technical, or other specialized knowledge to help the court understand the evidence or determine facts that may be at issue. Alternatively, it must be demonstrated to the court that the expert’s testimony is based on sufficient facts or data; is the product of reliable principles and methods; and reflects a reliable application of the principles and methods to the facts of the case.
Importantly, the amended Rule clarifies that the party offering an individual as an expert must prove that the testimony is admissible by a preponderance of the evidence. Previously, many courts wrongly presumed that the sufficiency of an individual’s testimony proffered as an expert went to the weight of the evidence, not to its admissibility. Under the newly amended rule this would be incorrect. Unless the person offered as an expert can meet the criteria of admissibility, the testimony is not appropriate and should be denied.
This is a welcome step forward, as the admission of misleading, scientifically unfounded evidence in litigation exacerbates the negative impacts these cases can have on our economy. One study found that excessive tort costs result in the loss of $473 billion and the elimination of 4.46 million jobs. Taking that kind of money out of the general economy cripples investments in innovation and new product development.
It can also take a toll on the patient-doctor relationship and cause dwindling consumer trust in evaluating what products are safe. Frequent targets of these claims based on junk science are legal actions that include companies engaged in manufacturing and health care delivery, crucial industries for not only economic growth but also the provision of essential products and services. Any proliferation of misinformation can send consumers down a never-ending rabbit hole over which products are safe to use.
This erosion of trust also extends beyond manufacturers to healthcare providers, who are forced to spend more time trying to address allegations found in television commercials. Unfounded claims in advertisements based on junk science erode public confidence in medicine, and cause individuals to become increasingly susceptible to fear-based legal ads disguised as health advocacy. In this cycle, consumers lose faith, not only in products, but in the once-trusted entities meant to protect their well-being, including their own doctors.
The amendments to Rule 702 and the emphasis to address issues concerning expert testimony is an encouraging step to eliminate junk science in the courtroom. As such, courts should be diligent in applying the amended rule to ensure that verdicts are fair and appropriate.
Vickie Yates Brown Glisson is the former secretary of the Kentucky Cabinet for Health and Family Services.
