Wall Street Journal: Junk Science Sometimes Still Prevails in Court

Wall Street Journal: Junk Science Sometimes Still Prevails in Court

In The News | August 27, 2024

A recent Delaware case shows that not all states follow the Supreme Court’s 1993 Daubert ruling.

This op-ed was written by Robert P. Charrow and was originally published by The Wall Street Journal.

“Junk science” is in vogue. The term describes expert testimony, hired and paid for by a party in civil litigation, that sounds scientific but isn’t. The practice can harm patients by leading corporations to withdraw perfectly safe and effective drugs to avoid litigation.

That happened more than 30 years ago with the drug Bendectin, commonly used to ease morning sickness during pregnancy. Epidemiological studies consistently found no association, let alone causation, between the drug and birth defects. Yet plaintiffs in one case consulted with a cadre of experts who sliced and diced existing data to conclude otherwise. Their findings were never published in a peer-reviewed journal.

The issue went to the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993). The court, adhering to a federal statute, instructed federal trial judges to act as gatekeepers by permitting testimony about scientific opinions only if it amounted to “good science,” developed in accordance with the scientific method. Such opinions, the justices added, must also “fit” the issue before the court. If a case were about whether a drug caused a disease in humans, its effect on animals likely wouldn’t suffice. The high court instructed the lower court to consider the propriety of the plaintiff’s expert testimony in light of its opinion.

Read the full piece by in The Wall Street Journal here. Robert P. Charrow served as general counsel of the U.S. Department of Health and Human Services, 2018-21. He was a co-author of a friend-of-the-court brief in Daubert.