Judges Muzzle Science Experts In Liability Suits
'TOXIC TORT' CASES
AUSTIN, TEXAS — ENTHUSIASM for product-liability law reform is hotter than McDonald's coffee, not only among conservative lawmakers, but judges also.
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.
The Texas ruling, which barred an expert's testimony, ''could be as damaging as anything that's occurred,'' says Michael Slack, a plaintiff's attorney in Austin and the legislative chairman for the Texas Trial Lawyers Association. He charges that the conservative majority on the Texas Supreme Court has ''systematically dismantled the rights of injury victims,'' and that the Texas case is only the latest example.
The case concerns Benlate DF. That fungicide was recalled in 1991 by E.I. du Pont de Nemours and Company because of traces of herbicide later found to be limited to lots that never left the factory. When damage reports poured in anyway from nurseries and other users, Du Pont voluntarily paid out $500 million to settle claims. Meanwhile, it conducted extensive research that exonerated Benlate, finding instead everything from nematode infestations to boron deficiencies in plaintiffs' plants.
Du Pont then cancelled its claims program and challenged remaining plaintiffs to submit any recalled Benlate DF for testing at the top university of their choice. Du Pont would live with the results if the plaintiffs would.
None accepted, preferring instead to sue. Du Pont has spent another $650 million fighting or settling remaining cases. A frequent plaintiff's witness has been Carl Whitcomb, a plant scientist who once helped Du Pont win an unrelated case in the 1970s.
For his first lawsuit Dr. Whitcomb conducted tests with Benlate DF that he says produced ''extremely unique'' damage characteristics. Since then he has examined 200 other Benlate sites and seen the same effects. ''It's not a thread that connected them. It's a rope that would pull the Queen Mary,'' he says.
One site he examined was a pecan orchard owned by the Robinsons, a Texas couple. But for the first time, Whitcomb was not allowed to testify in the Robinson case. Five of nine Texas Supreme Court justices ruled Whitcomb's testimony ''little more than speculation'' because he did not conduct tests at that site. The Robinsons lost.
The ruling ''changes completely Texas law. It takes away from a jury the right to decide whom to believe. The little man gets hurt again,'' fumes Jack Sanders, the Robinsons' attorney.
Howard Rudge, Du Pont's general counsel, applauds the notion of judge as gatekeeper of science testimony. ''When you allow lousy science to go to the jury, you're paving the way for the jury to feel good'' about ruling for the plaintiff, he says.
''The question in these cases is, 'Is there enough [evidence] to get to the jury?' If so, we've lost it because the jury, I don't think, is capable of making these kinds of determinations,'' he adds.
Mr. Goode says the Robinson case is an unmistakable message from the state supreme court to lower Texas courts: ''Don't be afraid to exclude experts if you think they're unreliable.''
Even after Robinson, a plaintiff with a good case ''can still win with ease'' in Texas, he adds. Mr. Slack, though, sees ''a new swagger among lawyers who represent defendants, particularly big corporations and manufacturers. They feel the law going their way.''