by Ned Ryun
In the interest of a return to normalcy, we take this short break from COVID and Ukraine coverage to bring to your attention an actual conservative policy matter. The pesky trial lawyers and their junk science “experts” are at it again, providing certain justices of the Supreme Court an opportunity to show us they can still do the right thing.
I’m not pointing fingers at say, Justices John Roberts and Brett Kavanaugh, but certain esteemed members of the court who had less than smooth sailing in their confirmation battles and for whom conservatives stormed the ramparts (figuratively speaking of course), have left us wondering if they were worth the battle scars. Here’s some low hanging fruit for them to pick off and make everyone breathe a little easier. All they have to do is vote to take a certain case.
The case involves a long-running dispute brought by the inventor of a special warming blanket called the Bair Hugger (now owned by 3M) which has proven to reduce post-operative infections and other complications and has been used in over 300 million surgeries worldwide to maintain patients’ body temperatures. The inventor, Dr. Scott Augustine made a fortune on this device but lost his rights to the product and its proceeds when he pled guilty to Medicare fraud in an unrelated matter. Dr. Augustine then invented a competing device and waged a campaign to discredit the Bair Hugger claiming that it caused infections. He then hired “experts” and funded studies to back up his claim. Except one of the actual authors of the studies called those studies “marketing rather than research.” As in not based on facts. The FDA admonished Dr. Augustine to stop the false campaign. And not a single physician who uses the Bair Hugger, or a single epidemiologist or any public health officials have supported Dr. Augustine’s contention.
But then Augustine hired a plaintiffs’ law firm to instigate litigation hoping, no doubt, that 3M would buckle. But 3M chose to fight in court and won at the district court level. Augustine and his trial lawyers decided to appeal and that’s where this takes on bizarro world characteristics. Several weeks ago, the 3M corporation filed a petition for review of a plaintiffs’ suit out of the Eighth Circuit Court of Appeals. The Eighth Circuit, doing its best imitation of the nutty Ninth, reversed the lower court decision in favor of 3M based on a finding that while the district court correctly found the plaintiff’s expert witnesses to be unreliable, i.e. unfactual, they weren’t “so fundamentally unsupported as to offer no assistance to a jury.”
Basically, the appeals court agreed with the lower court that the experts didn’t actually do any real studies of the product in question or its track record and were reduced to hypotheticals. Nevertheless, the court declared the computer models Augustine’s experts created and relied on could in some alternate bizarro universe make sense to a bizarro world jury.
If the Supreme Court declines to take this case, it’s open season in the Eighth Circuit for these outrageous, frivolous plaintiffs’ suits. Every trial lawyer in America will be looking for ways to sue American corporations using junk science generated by their own hired experts, knowing that the businesses may choose to just settle to save the extreme expense of litigation, not to mention the potential damage to their brands.
In case you didn’t know, this entire field of aggressive litigation is big business: law firms almost every day are modeling potential lawsuits, building out pitch decks and then raising money from investors to pursue the cases for the said investors to get a return on their money. Many times, instead of long drawn out lawsuits, corporations settle and the trial lawyers get a quick payday. Do you really want a world in which trial lawyers are filing lawsuits, funded by shady investors, bolstered by junk science, knowingly accepted by the courts? At that point, the rule of law is absolutely dead. The courts and our legal system become entirely subjective and a quick-return investment scheme for trial lawyers and their allies.
It only takes four Supreme Court justices to vote in favor of hearing a case. We can be fairly confident that Thomas, Alito, Gorsuch, and maybe even Barrett will vote yes. But it would be nice to know that there were more than four voting in favor. By taking the case, the Supremes would automatically be signaling they intend to fix the mess made by the Eigth Circuit.
Considering the facts of this case, the plaintiffs’ history of misconduct, prior court precedent and adherence to that precedent in every other judicial circuit, and the role of the Supreme Court in bringing the circuits into harmony when there are differences in interpretation of statutes and prior court precedent, this should be an easy one for four justices to vote to review. More importantly it will signal to the American people that objective facts and science still exist and still matter in the court of law.
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Ned Ryun is a former presidential writer for George W. Bush and the founder and CEO of American Majority. You can find him on Twitter @nedryun.