Previously we reported on a case involving products liability law. The article explained that a plaintiff can win a products liability suit without proving any negligence on the part of the defendant. The plaintiff does need to show that the product had some type of “defect,” and that the defect caused the plaintiff’s injury. In order to convince the jury on these points, the plaintiff often relies heavily on a so-called expert, who may testify, for example, on the effects of radiation on those living near Three Mile Island, or on “emerging” scientific evidence of something or other.
Rubanick v. Witco Chemical Corp., 225 N.J. Super. 485, 542 A.2d 975 (1988), was a typical case. The plaintiff was the wife of Ronald Rubanick, who had died of colon cancer. Mrs. Rubanick claimed that her husband’s cancer was caused by exposure to chemicals containing polychlorinated biphenyls (PCBs) manufactured by Monsanto Chemical Corporation and sold to Witco, where Rubanick had worked. Mrs. Rubanick sued Witco and Monsanto, among others. Her only evidence that Rubanick’s exposure to PCBs at Witco was the cause of his cancer was to be expert testimony by Earl Balis, a cancer researcher.
What type of evidence would Dr. Balis offer? Dr. Balis planned to testify to the following: (1) a higher-than-expected incidence of cancer at Witco; (2) animal studies involving PCB ingestion; (3) one study in a journal of industrial medicine, and (4) the variance of cancer types in a PCB-exposed population. One can only imagine the quality of the statistical evidence offered. (This is an age when findings of human carcinogenicity are made on the basis of feeding to mice grotesquely massive amounts of chemicals no human or mouse normally ingests at all.) On this basis, Dr. Balis proposed to testify that, in his opinion, Rubanick died as a result of exposure to PCBs at Witco.
The defense produced expert testimony rebutting the charges that such PCB exposure causes cancer, evidence that Rubanick’s slow-growing cancer must have been contracted before Rubanick was allegedly exposed to PCBs, evidence that Witco employees had normal blood
levels of PCBs and (as far as can be determined from the court’s opinion) evidence that Rubanick’s only exposure to any chemical containing PCBs consisted of rolling 45 drums of other substances through a “contaminated” area.
In the area of products liability, the forces of change in substantive law, anti-business premises and breakdowns in scientific standards have often resulted in the admission of testimony every bit as baseless as that offered by the plaintiff in the Rubanick case. In such cases, each side puts an “expert” on the stand; both experts present their opinions; the lawyers attempt to show the shortcomings of the other side’s experts; and the confused jury, having been instructed that fault is not at issue, having watched an impressive-sounding expert expound on “emerging” evidence, believing in their heart of hearts that business cares nothing for the ordinary guy or that the party with more money should pay, may find against a defendant who is innocent even given debased substantive standards. Indeed, in a case such as the Rubanick case, the harm extends much further. Once Monsanto loses a case in which it is found that PCB exposure causes cancer, Monsanto may be precluded by principles of collateral estoppel from disputing this in subsequent cases brought by other plaintiffs.
There is some good news. The wheel is turning a bit, and some courts have refused to admit expert evidence which does not meet minimum standards. In the Rubanick case, the judge rejected the plaintiff’s expert witness on Monsanto’s motion. The court found that the proffered testimony had insufficient scientific basis, and that the expert had brought little to court other than his credentials and his subjective opinion.
Copyright © The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.
