When we were first asked to try asbestos cases, one-time peripheral defendants were under siege. Plaintiffs’ counsel had worked with their experts to develop “studies” purporting to show that working with products historically thought safe were instead very dangerous. If we were to win these cases, we would need effective attacks (1) to exclude the evidence altogether or (2) to demonstrate to the jury why these studies were more akin to parlor tricks than meaningful science.
We developed the first successful motion excluding these “studies,” even though the “studies” had been accepted for publication in the peer-reviewed industrial hygiene literature. After an extensive evidentiary hearing, the court wrote a lengthy opinion explaining how the “studies” were in fact “junk science.” More recently, we faced these studies again in the Garlock estimation trial. The court’s detailed opinion explained why the studies were “useless” and “pseudo-science at best.”
But the courts have not always excluded the “studies.” And, on those occasions when courts have denied our motion, we successfully deconstructed the experts before the jury, obtaining defense verdicts.