Science And The Seventh Amendment

The newspapers reported on May 8, 2017, that a St. Louis jury returned a multi-million dollar verdict against Johnson & Johnson involving baby powder. The product is made from the mineral talc and is used by some for feminine hygiene. The plaintiff in the St. Louis case alleged and the jury found that product caused her ovarian cancer. Johnson and Johnson intends to appeal. Johnson and Johnson also said that the scientific evidence does not support the claim; that similar cases had been thrown out by a judge in New Jersey; and, that the company intends to vigorously defend its product. Around 2000 similar cases are pending.

One would be justified in asking how a jury could return a multi-million dollar verdict in St. Louis while a judge in New Jersey is dismissing virtually identical cases.

The answer to this question lies in the distinction and tension between the roles of judges and juries. The 7th Amendment to the U.S. Constitution guarantees our right to a jury trial in civil cases. Juries are empowered to decide contested issues of fact. Judges decide questions of law. But, judges have the discretionary power to decide what evidence, i.e., which facts, a jury may and may not hear. It is hard to overstate the significance of this power.

In the baby powder cases the scientific evidence is hotly disputed. Some studies say the powder can cause ovarian cancer and other studies say it doesn’t. This would seem to be the very epitome of an issue that juries should decide. However, the U.S. Supreme Court has decided that a trial judge must make certain that juries only hear scientific evidence and expert testimony that the trial judge determines is reliable and trustworthy. This means a trial judge is not only empowered, but obligated, to decide prior to trial whether the scientific evidence necessary to prove a case meets the legal test of reliability and trustworthiness and, to perform this gate-keeper function, the trial judge must apply a multi-step test prescribed by the U.S. Supreme Court. State courts have adopted these or similar standards regarding the admissibility of scientific and expert testimony. One could argue that deciding what evidence is trustworthy invades the rightful province of the jury and violates the 7th Amendment, but such arguments have not been successful. Consequently, what we have in the baby powder cases is a judge in St. Louis that has decided the scientific evidence is sufficiently reliable and trustworthy for a jury to hear both sides and decide for themselves if the product caused the cancer, and a judge in New Jersey who has decided just the opposite and dismissed the cases filed there.

Ultimately, these cases will be decided by the appellate courts, probably the U.S. Supreme Court. The question, strictly speaking, won’t be whether baby powder is safe or unsafe. Rather, the question will be whether the trial judges in exercising their discretion properly applied the multi-factored legal analysis that is required to determine the reliability and trustworthiness of scientific evidence.

What qualifies a judge to determine if scientific evidence is reliable, trustworthy and credible? The truth is that judges are not scientists and probably no more capable than jurors to determine the credibility of expert witnesses and the trustworthiness of scientific evidence. And, of course, judges do have their own biases and prejudices that color their decisions and judges, whether elected or appointed, can be influenced by political parties and special interests.

I suggest that judges should make an effort to weed out scientific evidence that is blatantly untrustworthy, but that judges should allow juries to decide most of these disputed issues. The collective wisdom of juries is powerful. In short, we either believe in the jury system or we don’t.