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Judges Muzzle Science Experts In Liability Suits

'TOXIC TORT' CASES

By Scott PendletonStaff writer of The Christian Science Monitor / September 8, 1995



AUSTIN, TEXAS

ENTHUSIASM for product-liability law reform is hotter than McDonald's coffee, not only among conservative lawmakers, but judges also.

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New laws passed by 20 state legislatures and pending in Congress will make lawsuits rarer and judgments smaller against manufacturers whose products injure a plaintiff.

Judges, meanwhile, have begun to hand victory before trial to defendants by excluding evidence at the heart of some plaintiffs' cases. The silencing of scientific experts - the stars of today's high-dollar, ''toxic tort'' lawsuits - is becoming more common in today's court battles.

The use of such witnesses has increased at a time when, some lawyers say, juries tend to regard anyone labeled an expert as infallible, regardless of the quality of the testimony.

''There are some excellent experts out there, but there are some people whose opinions are for sale,'' says Vince Walkowiak, a Texas lawyer who is a member of the pro-defendant Product Liability Advisory Council. ''We have seen a real blossoming of a cottage industry. It can create litigation where there shouldn't be any.''

The change of heart regarding scientific experts favors defendants in the high-stakes product-liability arena, where giant corporations have often fallen.

Companies hit hard include:

* In 1982, Johns-Manville Corporation filed Chapter 11 because of asbestos-related claims and set aside $2.5 billion for plaintiffs.

* In 1985, A.H. Robins Company declared bankruptcy after 325,000 lawsuits over its Dalkon Shield contraceptive device. It set up a $2.5 billion trust fund for plaintiffs.

* In May, Dow Corning declared bankruptcy over breast implant claims. It and other defendants are haggling over creation of a $4.5 billion trust fund - despite the fact that studies have failed to link implants to the variety of illnesses afflicting plaintiffs.

''Virtually everything happening in the breast implant arena is founded on very dubious science,'' charges the Manhattan Institute's Peter Huber. His 1991 book, ''Galileo's Revenge'' (BasicBooks) maintains that much expert witness testimony was based on ''junk science.''

''Expert testimony has gotten out of hand,'' agrees Steven Goode, who specializes in evidence at the University of Texas School of Law. He notes that classified ads from expert witnesses crowd the pages of Trial, a magazine for plaintiff's attorneys. ''There are a lot of people making a living testifying,'' he says.

That will be tougher now in Texas, a state reputed to have an aggressive plaintiff's bar and juries that sock defendants with huge damage awards.

Texas passed product liability reforms that took effect on Sept. 1. Plaintiff's attorneys are just as concerned over a state Supreme Court ruling in June that relied heavily on the US Supreme Court's 1993 Daubert decision, which said that trial courts should screen out scientific testimony of questionable merit. The effect of that decision has been that more judges are exercising this power before trial, rather than permitting experts to battle on the witness stand.