Mass tort litigation has become a multi-billion-dollar industry for trial lawyers over the past several decades as they’ve targeted everything from tobacco and pharmaceuticals to talcum powder and military-grade ear plugs.
After pocketing billions of dollars from litigation against the tobacco and pharmaceutical industries, trial lawyers have their sights set on a new industry target – agriculture.
While thousands of cases against Roundup® are pending and some have gone to trial, the herbicide paraquat is their latest focus.
But before they hit the courtrooms, they often hit TV airwaves first. Trial lawyers and businesses known as “lead generators” spend millions of dollars advertising in plaintiff-friendly “Judicial Hellholes®,” seeking potential claimants.
We’ve all seen the ads, declaring that we or a loved one may be entitled to financial compensation, soliciting claims alleging that various products are responsible for medical conditions that either have a range of potential causes or an entirely unkown cause.
Roundup® has been the top target of these mass tort product liability litigation TV ads since 2015, with an estimated $131 million spent on more than 625,000 ads airing nationally and locally across the country.
Since plaintiffs’ lawyers have earned billions of dollars on the handful of Roundup® claims that have gone to trial, showing a good return on their advertising investment, they’ve now started their latest ad campaign for claims involving paraquat.
Since the beginning of 2021, more TV ads have aired across the country soliciting claims alleging injuries caused by paraquat than mass tort ads related to any other product. Advertisers have spent more than $24 million to air more than 150,000 of these ads since 2021. Many ads hone in on the message that products like Roundup® and paraquat cause serious diseases, despite the lack of sound scientific evidence verifying these claims.
The trial bar additionally relies on traditional and social media to bolster litigation, further pushing inaccurate and baseless claims – and they tend not to deviate from their typical playbook, as evidenced in the 2022-2023 Judicial Hellholes® report.
The ad buys and public relations campaigns peddle misinformation and taint public preconceptions, while judges in Judicial Hellholes® fail to restrict falsehoods in their courtrooms.
Personal injury lawyers sometimes partner with so-called experts to provide misleading scientific evidence to support their claims both inside and outside the courtroom.
Monsanto faces thousands of cases across the country alleging Roundup® causes cancer. Expert witnesses testify that the weedkiller’s active ingredient, glyphosate, is to blame for triggering the disease. Trial lawyers have chosen to file a bulk of the litigation in Judicial Hellholes® because judges are known to allow junk science in their courtrooms.
Trial lawyers turn to individuals with dubious credentials and a loose appreciation of ethical norms for one reason – the truth simply isn’t on their side.
Environmental safety agencies in the U.S., Canada, Brazil, Australia, New Zealand, Japan, and the European Union have spent decades reviewing the health impacts of glyphosate. All agree that no credible evidence exists linking glyphosate to non-Hodgkin’s lymphoma.
But one outlier organization says otherwise. An advisory group of the International Agency for Research on Cancer (IARC) deemed glyphosate a “probable human carcinogen.” In 2017, a senior scientist on that IARC panel testified critical evidence favorable to glyphosate had been withheld and would likely have changed IARC’s conclusion. The panel, however, was run by Christopher Portier, a scientist who received $160,000 from litigators and worked under the direct supervision of a partner at one of the law firms suing Monsanto.
However, Monsanto recently prevailed in a jury trial in the 21st Judicial District of Missouri. The St. Louis case fell apart under cross-examination as the plaintiff’s expert witnesses proved less than credible.
While the truth prevailed in this case, it is unreasonable to expect jurors to arrive at the proper resolution without judges performing their gatekeeping responsibilities and keeping junk science out of their courtroom.
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The system is further abused by lawyers who exploit procedural advantages within the judicial system itself, including a little-known process known as multidistrict litigation. Law firms flood the MDL process with tens of thousands of dubious claims, knowing that it’s next to impossible for judges – or the defendants – to sort through and check them all.
It’s become a big problem: more than 70% of civil cases in federal courts are currently in MDLs. As of October 2022, there are nearly 400,000 pending cases in MDLs, largely in product liability litigation. This percentage has surged from under 30% just ten years ago. As two law professors noted in a recent article, “MDL’s gravitational pull over thousands of cases demolishes all of the normal expectations of individual process and federalism.”
Once thousands of cases are filed and consolidated, and without the protections that MDLs “demolish,” it’s often game over. It’s impossible to bring that many cases to trial, so MDL defendants are faced with two unappealing options: settle for a king’s ransom or declare bankruptcy.
The trial lawyers’ playbook is chock full of clever maneuvers to create more business for themselves, but they can’t do it alone. Third-party investors provide the necessary money upfront to initiate these tactics. Hedge funds, institutional investors, and public and private companies have poured billions of dollars into funding litigation.
The lawsuit-investment industry is rapidly growing, with startup businesses joining the fray, seeing a lucrative opportunity.
While the massive advertising and public relations campaigns may paint a picture of a white knight helping those in need, the reality is often quite different.
We all pay the price in higher costs on goods and services. Research shows that lawsuit abuse across the U.S. results in nearly $285 billion in excessive tort costs, meaning every American pays approximately $1,303 each year in a “tort tax.” Excessive tort costs affect 4,244,960 jobs across the country, with an estimated loss of $143.8 million in wages.
While Americans face record-high inflation, it’s more critical than ever for courts around the country to rebalance the scales and ensure that everyone is treated fairly in our civil justice system – for the sake of our economy, and more importantly, for the sake of our democracy and judicial systems withstanding the tides of change.
Tiger Joyce is the American Tort Reform Association (ATRA) President.
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