Op-Ed: When Science Becomes a Litigation Strategy

This op-ed was published by the Law.com for the New York Law Journal.

The impacts of legal battles based on “made-for-litigation” science extend beyond the courtroom, putting patient safety, medicine, and scientific research in the crosshairs. 

On the heels of a shocking White House event spotlighting junk science claims around acetaminophen, the 2^nd Circuit will hear arguments in Tylenol litigation this fall.

In the Tylenol multidistrict litigation, In re: Acetaminophen — ASD-ADHD Products Liability Litigation, plaintiffs allege that acetaminophen use during pregnancy causes autism spectrum disorder and attention deficit hyperactivity disorder in children. 

In December 2023, U.S. District Judge Denise Cote excluded the plaintiffs’ expert testimony in the MDL after finding it unreliable, cherry-picked, and misleading. Citing her strengthened gatekeeping authority under recently amended Federal Rule of Evidence 702, Judge Cote ruled that the plaintiffs’ experts failed to demonstrate that their methodologies were accepted by the broader scientific community.

But the issue didn’t end there. Ahead of oral arguments in the plaintiffs’ appeal — now scheduled before the 2^nd Circuit in November — plaintiffs are pointing to a new study echoing the same flawed methodology Judge Cote rejected nearly two years ago. 

Conveniently, the Mount Sinai study  was published just in time for the appellate briefing and touted by Health and Human Services Secretary Robert F. Kennedy Jr. at the White House. That timing should raise eyebrows.

Trial Lawyer Playbook

The Tylenol case is not an outlier, unfortunately. Rather, it’s the latest example of made-for-litigation science, seemingly produced in lockstep with litigation deadlines or political agendas.

• Roundup: Now fueling billions in verdicts, the International Agency for Research on Cancer published a controversial report in 2015 declaring glyphosate “probably carcinogenic” after the involvement of an “invited specialist” who simultaneously was paid by plaintiffs’ firms for work on related litigation. Regulators worldwide, including the U.S. EPA, find glyphosate safe. 
• Talc: A 2020 study by Dr. Jacqueline Moline cited 33 mesothelioma cases allegedly linked to cosmetic talc, which served as the basis for millions in verdicts. Concealed in the original study, it later was revealed in unsealed court records that several subjects had alternative asbestos exposures and that Dr. Moline’s article misled both the scientific literature and juries.
• Zantac: Zantac claims initially were based on testing by Valisure Labs, which heated the drug to extreme, unrealistic conditions, propelling nationwide lawsuits. U.S. District Court Judge Robin Rosenberg tossed the MDL in 2022, emphasizing that no credible scientist outside the litigation concluded Zantac causes cancer.
• Ultra-Processed Foods: Plaintiffs’ lawyers have started building their own definitions of ultra-processed foods in lieu of scientific consensus. In December 2024, Sec. Kennedy’s former law firm, Morgan & Morgan, filed a first-of-its kind lawsuit alleging food manufacturers designed and marketed ultra-processed foods to addict children, leading to the rise in childhood chronic diseases. In July, a month before the case was tossed, Sec. Kennedy announced a project to create a federal definition for UPFs as part of his “Make America Healthy Again” agenda.

These examples show the same playbook: when science does not support a causation theory, create litigation-driven science to fill the gap, then leverage that science in court and in the press.

Read the full piece on Law.com written by ATRA’s president Tiger Joyce for the New York Law Journal.