The term “junk” science has been around for several years now. A working definition for the term is “faulty scientific data and analysis used to advance special, or hidden, agendas.”
A few examples of claimed junk science include the degree of impact of carbon dioxide emissions on global warming, negative health effects for women with silicone breast implants, and the side effects of some prescription medicines.
So, if there truly is legitimate debate between cause and effect in these cases, why do jurors readily accept a “junk science” causation relationship?
First, junk science offers an easy answer. The cause and effect relationship often sounds logical, even simple. Jurors, like most of us, find it very easy to connect the dots when something goes wrong with people’s health after exposure to a possible agent of harm. A man kills his family and then commits suicide after he stopped taking anti-depressants, a woman’s health deteriorates after living with breast implants for several years, or our climate seems to be changing dramatically after we emit tons of carbon dioxide in the atmosphere over many decades. Sounds logical, huh?
Secondly, the “real” science on these issues doesn’t measure up in terms of conclusive evidence for many of us. Often, the conclusion sounds inconclusive: “no relationship found”, “could be other mitigating factors”, “evidence not clear”.
Additionally, the “real” science can be difficult to understand. Very few jurors have the background to evaluate scientific information. But, they do have common sense. They can apply logic to a situation. It is much easier for us to apply, and adopt, the simpler explanation.
Junk science is reinforced on several levels. The media plays a huge role in moving junk science stories forward. After all, they make very easy, and interesting, media stories.
Also, there are often warnings related to a particular product that “sets the table” for a negative causation outcome. These warnings are mandated by governments. In the absence of a relative complete understanding of a situation, most people are apt to trust governments as opposed to “greedy, profit-minded” corporations. In the absence of conclusive evidence, government bodies often choose to regulate by “erring on the safe side”, further setting up a causation expectation. Plus, there are certainly enough examples of products and materials that HAVE caused harm.
So, what is a litigator to do?
Bring a sharp focus to the corporation’s “image equity.” Jurors usually have a pre-existing opinion of the defendant’s company, industry, and products or services. Recognize, know, and utilize this image in media coverage, case background and case presentation strategy.
Answer the “harm” question. Was there real harm? Are you sure? Define “harm” to the jury panel. Make sure they are positive regarding definitive, measurable harm.
Focus on the causation question. Did this product, or service, absolutely cause the plaintiff harm? Can you be sure? What other factors could have contributed to the plaintiff’s problems?
Lastly, don’t try to develop these strategies in a vacuum. Utilize trial research to define, refine and test these issues. Jury research is a key component to litigation success.
Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.