Sympathetic Juries Ignore Scientific Evidence


I have long distrusted the use of juries to determine guilt or innocence in cases of scientific evidence. Like all physicians, I have practiced my entire career under the threat of malpractice litigation.

A recent ABC News report cited a Harvard study that concluded 75% of physicians in low risk specialties, and 99% of those in high risk specialties, will be suited at some time in their careers. Although I have experienced only one small nuisance lawsuit that was quickly settled in my career, the fear of a significant claim that could ruin your reputation and your future is real. If the issue comes down to a clear understanding of the scientific evidence presented, will a jury of non-medical, non-scientific peers be able to make the correct determination?

Recent jury determinations suggest the answer is no. The latest example is the verdict in the Monsanto trial in California that concluded Monsanto’s herbicide glyphosate, used in the popular weed-killer RoundUp, caused the defendant’s cancer. The jury awarded Dewayne “Lee” Johnson $289.2 million in damages for allegedly causing his non-Hodgkin’s Lymphoma.

To be sure, the defendant is suffering from this rare and painful condition and the jury was understandably sympathetic to his plight when confronted with gory photos of the lesions that covered up to 80% of his body. The problem is the scientific evidence presented is strongly in favor of the conclusion that glyphosate doesn’t cause cancer.

The Wall Street Journal editorial board cites one comprehensive study, published last November in the Journal of the National Cancer Institute, which investigated cancer incidence among nearly 45,000 licensed pesticide applicators who had been exposed to glyphosate. The study found “no evidence of an association between glyphosate use and risk of any solid tumors or lymphoid malignancies” – including non-Hodgkin’s Lymphoma. Even the Environmental Protection Agency, hardly a supporter of corporations, has likewise concluded that glyphosate is safe.

The only suggestion that there is a connection between glyphosate and cancer comes from the controversial work of the World Health Organization’s International Agency for Research on Cancer. WSJ says this group over the years has claimed pickled vegetables and “very hot beverages” may cause cancer. Its risk assessments suggest that working as a barber or hairdresser is only slightly less hazardous than being exposed to mustard gas. Therefore, it wasn’t unexpected when this group claimed in 2015, without evidence, that glyphosate is also “probably carcinogenic.”

Further investigation of this claim by Reuters revealed WHO had repeatedly ignored and omitted evidence that showed no link between glyphosate and cancer. Christopher Portier, an adviser who worked on the group’s glyphosate determination, was concurrently accepting payments from Lundy & Lundy, a law firm behind several cancer-related class-action lawsuits. The same Mr. Portier testified for Mr. Johnson in the Monsanto trial.

Talcum Powder Scare

If this all seems familiar, it may be because a similar non-scientific verdict was handed down one year ago when someone suited Johnson & Johnson for causing their cancer after years of using their baby powder. The jury awarded the defendant $417 million for failing to warn her about the dangers of their product. The American Cancer Society says there is no evidence that talcum powder can cause cancer since they removed trace amounts of asbestos from the product over 40 years ago. (see earlier post The Talcum Powder Cancer Scare)

The judge in that trial awarded Johnson & Johnson a new trial and the same is likely to happen in the recent Monsanto verdict. When juries dismiss solid scientific evidence in sympathy for the plight of the defendant, we all suffer a disservice. We become unnecessarily fearful for our safety and corporations are forced to remove effective products from the market that make our lives easier.

The Monsanto verdict will undoubtedly lead to many more lawsuits. WSJ says they are facing 5,000 similar suits. Johnson & Johnson faces the same kind of response to the flawed verdict in their case. This kind of un-scientific thinking on the part of sympathetic juries will only benefit the law firms that make a killing on their mistakes.

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