Consumers Pay the Price for Mass Torts Driven By Junk Science
The Center for Truth in Science has released an excellent report on mass torts and how unscrupulous lawyers use them to extort large settlements even though their claims are not founded in science. While there may be legitimate mass torts, there are too many cases based on junk science, an observation I recently highlighted elsewhere.
The report explains: “A mass tort is a type of civil action consisting of numerous individual plaintiffs alleging injury from a defective and dangerous product or a specific incident.” These are not the same as class action lawsuits. Mass tort payouts compensate each plaintiff differently based on damages suffered, while a class action divides up the sum of the award equally.
I’ve written about the junk science underlying a number of such cases, including recent cases against Bayer Agrosciences subsidiary Monsanto related to glyphosate, the active ingredient in the weed killer known as Roundup, and others.
As consumers we might think tort cases start when an aggrieved party contacts an attorney, seeking compensation for legitimate harm that a consumer product caused. While some tort cases may arise that way, many mass torts and class action lawsuits are developed as part of a concerted effort by a legion of law firms and marketers seeking personal financial benefit. That process involves trolling for any possible claim they can make stick, be it true or false.
The Center’s report notes that each case starts with a “trigger,” such as an event or a single government—or United Nations, as in the glyphosate case—study or report that grabs headlines. In some cases, triggers can point to legitimate problems, for which legal action may be warranted. Yet, all too often, triggers lead trial attorneys to latch onto junk science or media hype to push a case forward.
Trial lawyers are always on the lookout for new triggers and plaintiffs to push their schemes forward. Twice a year, the report points out, hundreds of trial lawyers gather at the “Mass Torts Made Perfect” conferences in Las Vegas to network and discuss future opportunities with a throng of “lead generators.”
These so called “lead generators” constitute an entire industry of handsomely paid marketing and advertisement firms that troll for potential plaintiffs and then sell the plaintiff leads to law firms. According to the Center for Truth in Science report, trial lawyers will pay between $500 to $10,000 per lead. These ad campaigns can cost as much as $100,000 a month, often totaling as much as $1.25 million or more for some of the bigger campaigns. This is big business.
You have probably seen the commercials that ask viewers whether they or a family member has used a certain product and then eventually got cancer or had another health issue. It doesn’t matter whether the two factors are related. The trial lawyers hope to hear from enough individuals with at least marginally plausible claims to cobble together enough cases. As the cases pile up, companies often have little option other than to offer a big settlement—paying the plaintiffs to go away. Of course, the trial lawyers collect a sizable chunk of the payoffs to cover their hefty legal fees. The Center for Truth in Science explains:
The objective of all this advertising spending was to solicit clients to sign onto the respective litigation. The mass-tort machine drives up numbers as trial dates are set and settlements—whether rumors or real—are made. According to an owner of a lead generator firm, “What [plaintiff lawyers] hope for is that the Monsantos of the world come in and say, here’s $10 billion, spread it how you like.”
That is exactly what is happening with the glyphosate cases. These cases are based on a single faulty assessment of the chemical produced by a United Nations outfit known as the International Agency for Research on Cancer (IARC), which trial lawyers cite to assert that glyphosate causes cancer.
Yet the IARC classification of glyphosate as a carcinogen is not even a risk assessment. It simply states at some level it may cause cancer, but it does not assess whether actual human exposures from this chemical are high enough to matter. In addition, it contradicts nearly every other government assessment on the chemical’s safety—including the U.S. Environmental Protection Agency—that have deemed risks associated with current exposures to be negligible.
Yet trial lawyers have successfully leveraged that one assessment, along with media hype, to generate thousands of lawsuits that Bayer is trying to settle. Although there is no solid evidence that its product has harmed anyone, Bayer has offered more than $1 billion to cover 125,000 existing claims, while creating a fund for future claims.
LawyersAndSettlements.com reported on the breakdown of this offer in October:
Those 125,000 people cover 95,000 cases and at least 30,000 claims from plaintiffs who have not agreed to join the settlement (however, they can still join). Bayer says it will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation from Roundup customers who may develop non-Hodgkin’s lymphoma.
Yet the settlement is still not complete, and trial lawyers continue to market for more plaintiffs in what appears to be a never-ending nightmare for the company. There are real costs of these mass torts that harm consumers. If these legal challenges eventually lead Bayer to discontinue glyphosate or policy makers to ban it, the costs to farmers and consumers would be substantial. There would also be adverse environmental effects, as detailed in this journal article.
The Center for Truth in Science highlights costs associated with some of the other cases covered in its report, and notes that even the advertisements themselves can be dangerous. The report explains:
A 2016 publication of the Heart Rhythm Society reported 31 cases of individuals who had stopped taking rivaroxaban, the blood-thinner commonly known as Xarelto, pursuant to viewing negative rivaroxaban legal advertising. Seventy-four, point nineteen percent of these patients experienced a stroke or a transient ischemic neurologic event, two patients had persistent residual paralysis. Another patient, a 45-year-old man receiving rivaroxaban for the treatment of deep vein thrombosis, stopped the drug and died of a subsequent pulmonary embolism. Another female patient, receiving rivaroxaban for stroke prevention, stopped the drug and died of a massive stroke.
Further research has found many unfavorable implications concerning public health. Research has found “mounting evidence that misleading information and exaggerated claims made in lawsuit ads prevent people from seeking treatment or lead them to stop taking a prescribed medication without consulting a doctor.” The FDA reports that healthcare professionals filed 61 reports, as of December 2016, of patients stopping their blood thinner medications after viewing a lawsuit advertisement critical of the product.60 According to the FDA, this resulted in six deaths and other patients most commonly suffering from strokes. Mental health patients are at risk as well. Psychiatrists have reported that some patients stopped taking their medications after viewing a lawsuit ad, with some even attempting suicide.
Several potential new mass torts related to consumer chemicals are on the horizon that could also have seriously adverse implications. In particular, a misguided health scare related to ethylene oxide—a gas used to sterilize medical equipment—has already adversely impacted medical supplies during the COVID-19 crisis. Potential litigation could lead to more plant closures in the future, resulting in medical supply shortages long into the future. You can learn more about that here, here, and here, and it’s the subject of a forthcoming CEI study.
Also on the horizon are potential claims related to the pesticide Chlorpyrifos, which is essential to farmers for many different crops. This one may be harder for the trial lawyers to fight because claims about it are based on a particularly flimsy study produced by an activist outfit housed at Columbia University. You can learn more about that here, here, and here.
The Center for Truth in Science report does not offer a solution on how to stop these junk-science based mass torts, but the organization is working to promote unbiased scientific research. In particular, it is offering grants to scientists with no strings attached so that conflicts of interest related to government or industry funding can be separated from the scientific process. Hopefully, adding unbiased quality research will counter the junk science that is driving many of these faulty mass torts.