ENTHUSIASM for product-liability law reform is hotter than
McDonald's coffee, not only among conservative lawmakers, but
New laws passed by 20 state legislatures and pending in Congress
will make lawsuits rarer and judgments smaller against
manufacturers whose products injure a plaintiff.
Judges, meanwhile, have begun to hand victory before trial to
defendants by excluding evidence at the heart of some plaintiffs'
cases. The silencing of scientific experts - the stars of today's
high-dollar, "toxic tort" lawsuits - is becoming more common in
today's court battles.
The use of such witnesses has increased at a time when, some
lawyers say, juries tend to regard anyone labeled an expert as
infallible, regardless of the quality of the testimony.
"There are some excellent experts out there, but there are some
people whose opinions are for sale," says Vince Walkowiak, a Texas
lawyer who is a member of the pro-defendant Product Liability
Advisory Council. "We have seen a real blossoming of a cottage
industry. It can create litigation where there shouldn't be any."
The change of heart regarding scientific experts favors
defendants in the high-stakes product-liability arena, where giant
corporations have often fallen.
Companies hit hard include:
*In 1982, Johns-Manville Corporation filed Chapter 11 because of
asbestos-related claims and set aside $2.5 billion for plaintiffs.
*In 1985, A.H. Robins Company declared bankruptcy after 325,000
lawsuits over its Dalkon Shield contraceptive device. It set up a
$2.5 billion trust fund for plaintiffs.
*In May, Dow Corning declared bankruptcy over breast implant
claims. It and other defendants are haggling over creation of a
$4.5 billion trust fund - despite the fact that studies have failed
to link implants to the variety of illnesses afflicting plaintiffs.
"Virtually everything happening in the breast implant arena is
founded on very dubious science," charges the Manhattan Institute's
Peter Huber. His 1991 book, "Galileo's Revenge" (BasicBooks)
maintains that much expert witness testimony was based on "junk
"Expert testimony has gotten out of hand," agrees Steven Goode,
who specializes in evidence at the University of Texas School of
Law. He notes that classified ads from expert witnesses crowd the
pages of Trial, a magazine for plaintiff's attorneys. "There are a
lot of people making a living testifying," he says.
That will be tougher now in Texas, a state reputed to have an
aggressive plaintiff's bar and juries that sock defendants with
huge damage awards.
Texas passed product liability reforms that took effect on Sept.
1. Plaintiff's attorneys are just as concerned over a state Supreme
Court ruling in June that relied heavily on the US Supreme Court's
1993 Daubert decision, which said that trial courts should screen
out scientific testimony of questionable merit. The effect of that
decision has been that more judges are exercising this power before
trial, rather than permitting experts to battle on the witness
The Texas ruling, which barred an expert's testimony, "could be
as damaging as anything that's occurred," says Michael Slack, a
plaintiff's attorney in Austin and the legislative chairman for the
Texas Trial Lawyers Association. …