Judges Muzzle Science Experts In Liability Suits
'TOXIC TORT' CASES
(Page 2 of 2)
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.Skip to next paragraph
Subscribe Today to the Monitor
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.''