WASHINGTON – Despite a recent scolding by more than 100 Nobel laureates for its science-denying campaign against perfectly healthful and environmentally beneficial genetically modified foods, Greenpeace and others with a financial interest in misleading the public are no more likely to change their ways than are the personal injury lawyers now using their own junk science to manipulate St. Louis juries and drive multimillion-dollar verdicts with groundless allegations that talcum powder use can cause ovarian cancer.
Using what some defense counsel have come to call “trap, trash and trick” tactics, plaintiffs’ lawyers as of mid-August had engineered about 2,100 individual talc claims grouped in roughly 260 separate lawsuits nationwide. Not coincidentally, two thirds of these claims have been filed in the City of St. Louis Circuit Court, a jurisdiction increasingly notorious for plaintiff-friendly procedures and outlier verdicts, such as those for $72 million, $70 million and $55 million in three respective talc cases this year.
Trap. Among other reasons, plaintiffs’ lawyers are eager to trap their meritless talc cases in St. Louis because the “Show Me Your Lawsuits State” is one of a shrinking minority of holdout states that have yet to adopt the more exacting Daubert standard for expert testimony. Named for a 1993 Supreme Court precedent, Daubert is the standard now used in all federal courts and nearly 40 state court systems. Effectively requiring judges to act as gatekeepers in reviewing the substance of expert testimony before it is presented to a jury, it weeds out fanciful evidentiary theories that haven’t passed peer-review muster.
Personal injury lawyers’ efforts to trap their cases in St. Louis are aided by the state’s rather pliable venue law, which allows lawsuits to be filed in any county where at least one individual claimant -- among the scores comprising a typical talc lawsuit -- resided when her alleged injury occurred.
A circuit-splitting 2010 decision by the U.S. Court of Appeals for the Eighth Circuit also makes it harder for a Missouri defendant to remove a case to federal court when an anchor-claimant has been added only to skirt state venue requirements. And by keeping the number of claimants in their respective talc lawsuits under 100, plaintiffs’ lawyers also avoid the federal Class Action Fairness Act’s threshold for automatic removal to federal court.
Trash. Before, during and after they’ve managed to trap their lawsuits in St. Louis, personal injury law firms make sizeable investments in local television advertising to trash defendants and their products with wholly unfounded claims. Ostensibly packaged as client solicitations, the incessant ads more practically function as a means to influence potential jurors. To wit, talc defendants filed a motion in late July seeking to have a trial moved “outside the St. Louis media market and at least 100 miles away, in order to minimize the jury taint” from such ads.
The motion offered extensive analysis of plaintiff firm ad-buys, noting that, from July 2015 through June 2016, more talcum powder litigation ads were aired in the St. Louis media market than in any other market nationwide. In March 2016 alone, 23 percent of all talcum powder litigation ads airing across the country aired in St. Louis, even though that market comprises just 1 percent of the national television audience. Furthermore, a survey of potential St. Louis jurors revealed that more than six in 10 recall being exposed to ads linking talcum powder use to ovarian cancer, and that a sizeable majority of those who recalled the ads had formed an “unfavorable” opinion about talcum powder.
Trick. With their trashing phase complete, plaintiffs’ lawyers then work to trick preconditioned jurors into believing their expert witnesses’ testimony alleging a causal relationship between talcum powder use and ovarian cancer. Never mind that the scientific, medical and regulatory communities are united in saying that no such relationship exists. Even a judge in generally plaintiff-friendly New Jersey last month dismissed two talc cases scheduled for trial after deciding that two plaintiffs’ experts who’d testified in St. Louis are not qualified to testify in the Garden State.
Nevertheless, defendants’ pleadings to have those so-called experts excluded from trials in St. Louis fall on deaf ears. Judges there invariably allow the introduction of this junk science and, with visibly ill women or their surviving loved ones as sympathetic clients, practiced personal injury lawyers then pluck jurors’ heartstrings and persuade them to come back with gigantic verdicts that fly in the face of genuine science.
A similarly shameless trick was played on Missourians in late June when lame-duck Gov. Jay Nixon, a grateful past recipient of generous campaign contributions from trial lawyers, vetoed a bipartisan bill that would have finally adopted the more exacting Daubert standard for expert evidence and thus made the state less hostile to economic growth and job creation. But lawmakers are expected to try again next year, and a new governor may be less dependent on plaintiffs’ bar cash.
Meanwhile, the reputation of Missouri’s plaintiff-friendly, junk science-embracing civil courts will be further tarnished by personal injury lawyers’ trap, trash and trick tactics.
Joyce is president of the American Tort Reform Association based in Washington, D.C.