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 The term "junk" science has been around for several years now. A
working definition for the term is "faulty scientific data and analysis
used to advance special, or hidden, agendas."
A few examples of
claimed junk science include the degree of impact of carbon dioxide
emissions on global warming, negative health effects for women with
silicone breast implants, and the side effects of some prescription
medicines.
So, if there truly is legitimate debate between cause
and effect in these cases, why do jurors readily accept a "junk
science" causation relationship?
First, junk science offers an
easy answer. The cause and effect relationship often sounds logical,
even simple. Jurors, like most of us, find it very easy to connect the
dots when something goes wrong with people's health after exposure to a
possible agent of harm. A man kills his family and then commits suicide
after he stopped taking anti-depressants, a woman's health deteriorates
after living with breast implants for several years, or our climate
seems to be changing dramatically after we emit tons of carbon dioxide
in the atmosphere over many decades. Sounds logical, huh?
Secondly,
the "real" science on these issues doesn't measure up in terms of
conclusive evidence for many of us. Often, the conclusion sounds
inconclusive: "no relationship found", "could be other mitigating
factors", "evidence not clear".
Additionally, the "real"
science can be difficult to understand. Very few jurors have the
background to evaluate scientific information. But, they do have common
sense. They can apply logic to a situation. It is much easier for us to
apply, and adopt, the simpler explanation.
Junk science is
reinforced on several levels. The media plays a huge role in moving
junk science stories forward. After all, they make very easy, and
interesting, media stories.
Also, there are often warnings
related to a particular product that "sets the table" for a negative
causation outcome. These warnings are mandated by governments. In the
absence of a relative complete understanding of a situation, most
people are apt to trust governments as opposed to "greedy,
profit-minded" corporations. In the absence of conclusive evidence,
government bodies often choose to regulate by "erring on the safe
side", further setting up a causation expectation. Plus, there are
certainly enough examples of products and materials that HAVE caused
harm.
So, what is a litigator to do?
Bring a sharp
focus to the corporation's "image equity." Jurors usually have a
pre-existing opinion of the defendant's company, industry, and products
or services. Recognize, know, and utilize this image in media coverage,
case background and case presentation strategy.
Answer the
"harm" question. Was there real harm? Are you sure? Define "harm" to
the jury panel. Make sure they are positive regarding definitive,
measurable harm.
Focus on the causation question. Did this
product, or service, absolutely cause the plaintiff harm? Can you be
sure? What other factors could have contributed to the plaintiff's
problems?
Lastly, don't try to develop these strategies in a
vacuum. Utilize trial research to define, refine and test these issues.
Jury research is a key component to litigation success. Source
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