The Atlantic Legal Foundation long has been the nation’s foremost advocate for using sound science in judicial and regulatory proceedings. In class-action or mass-action product liability litigation involving federally regulated products such as drugs, medical devices, and pesticides, expert federal agencies such as the Food and Drug Administration and the Environmental Protection Agency spend years studying product-specific health and safety data before approving a product for use. These agencies also regulate product labeling on a nationally uniform basis, determining what specific health and safety warnings are – and are not – warranted. Nonetheless, state and federal courts, applying state tort law, frequently fail to provide adequate deference or weight to federal regulatory agencies’ scientifically based safety determinations. Instead, judges allow juries in product liability litigation to base their findings on the opinions of paid expert witnesses, some of whom, despite judges’ gatekeeper role under Federal Rule of Evidence 702 and its state counterparts, are purveyors of junk science.
Legal defenses such as federal preemption and federal regulatory compliance are predicated on federal regulatory agencies’ scientifically based, health and safety-related determinations. When courts ignore or second-guess such determinations in private party litigation, civil justice is undermined. As discussed in a recent article published in the Food and Drug Law Journal by appellate specialist Luther T. Munford of Butler Snow in Jackson, Mississippi, Courts v. FDA: A Lesson from Pelvic Mesh Litigation on Relative Competence to Decide a Legal Question, pelvic mesh product liability litigation is a dramatic, ongoing example of how courts can err by failing to afford sufficient deference or weight to agency safety determinations. In the article, Mr. Munford explains that
[t]he extent to which courts should defer to an administrative agency’s interpretation of the law governing the agency is the subject of considerable debate. In that debate, judges have asserted that the judicial branch is the most competent branch to decide what the law is and that it need not defer to agency opinion. . . . The ultimate lesson in the Chevron debate over deference is that courts should listen to agencies whose conduct and expertise are at issue, or at least ask for their help.