Filing of Four Amicus Briefs in Johnson Appeal
On August 30 and September 3, 2019, a number of entities – CMA (comprised of the California Medical Association, California Dental Association and California Hospital Association), California Farm Bureau Federation, Civil Justice Association of California, and leading biotech company Genentech – filed amicus briefs in the Johnson glyphosate case in the Court of Appeal of the State of California, First Appellate District, Division One. Among a number of issues, these briefs raise concerns about the methods used to determine medical causation in the Johnson case as well as the excessive punitive damage award.
Read CMA’s Amicus Brief here.
- “Amici submit that physician expert witness opinion testimony in the courtroom on the issue of causation should reflect the same high level of scientific reasoning that is expected of physicians in diagnosing and treating patients in the office, clinic, or hospital. In other words, it should be with ‘the same level of intellectual rigor.’” (pg. 37)
- “Amici also submit that the first and perhaps most important indication of the ‘intellectual rigor’ of a physician expert witness’s opinion on the question of specific causation is whether the opinion was based on the consensus of medical and scientific opinion for ruling out the hypothetical alternative. If not, was it at least consistent with the consensus of medical and scientific opinion? If not even that, then what other scientific approach that the physician applies in his own practice was applied by him in his role as expert witness to rule out the hypothetical alternative? The causal reasoning offered by Plaintiff’s expert witness physician Dr. Nabhan, as summarized by the trial court, was the ‘red flag’ that Plaintiff was younger than the average NHL patient ruled out all unknown causes. The obvious implication is that all unknown causes are age related. The problem with that testimony is that there is no evidence to support that assumption. Rather, that was a speculative leap that Dr. Nabhan made.” (pg. 37)
Read the California Farm Bureau Federation’s Amicus Brief here.
- “IARC’s approach focuses on an entirely theoretical question of whether a substance is capable of causing cancer under any circumstances at any possible dose. In contrast, through pesticide registrations and registration reviews, EPA analyzes scientific studies and data in order to make human health risk assessments and ecological risk assessments to determine whether there is any threat of harm to human health or the environment under actual conditions of use in the real world. A theoretical hazard determination will not provide a proper evaluation on the risks of pesticide use and should not be used to make regulatory decisions or legal decisions.” (pg. 38)
- “By erroneously admitting IARC Monograph 112, but not admitting the EPA regulatory determinations on glyphosate, the jury and the trial court were not provided with proper scientific evidence, especially the scientific evidence used pursuant to FIFRA when reviewing and approving a pesticide for use in the United States and making sure there are no ‘unreasonable risk[s] to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.’” (pg. 39)
Read the Civil Justice Association of California’s Amicus Brief here.
- “When, as here, there is a genuine scientific dispute between experts and studies proffered by plaintiffs and defendants on the dangerousness of a product, malice cannot be attributed to defendant because it agrees with one side of the dispute, especially when that side is the one that a majority of the world’s government regulators are on.” (p 16-17)
Read Genentech’s Amicus Brief here.
- Genentech indicated it was filing in order “to highlight the importance of the proper screening of scientific expert testimony for companies with scientifically innovative products and consumers who rely on their innovations” and that “without proper gatekeeping of expert evidence and reasonable restrictions on punitive damages, companies, like Genentech, whose entire business models are geared towards creating innovative, scientific products face a prohibitive increase in their risk of liability.” (pg. 8)
- “The mere threat of lawsuits that rely on junk science deters scientific innovation—companies, even if they have scientific evidence demonstrating their products are safe and effective, may not want to risk being held liable for multi-million dollar verdicts because of some junk science theory resting on unsupported speculation. The country’s experience with vaccines is illustrative.” (pg. 10) The brief goes on to provide three illustrative examples of where this has happened: vaccines (pg. 10), Bendectin (pg. 12-13), and Norplant (pg. 13).