On several occasions, former President George W. Bush complained that “junk science” was contaminating our courtrooms. As folksy as “junk science” sounds, Bush didn’t coin that one. Instead, it’s been a catch phrase of the tort “reform” movement for years. The gist of the argument is that plaintiffs (always plaintiffs, never defendants) hire unreliable scientists to perform unreliable tests, and then use those tests to persuade juries to award money. Here’s an example of junk science performed by the makers of the Duragesic fentanyl patch. Imagine this scenario: You need to know how quickly the fentanyl gel in the Duragesic patch will evaporate if its exposed to air. The results of this test will help determine how dangerous it is to get fentanyl gel on yourself. Check out how they performed the test:
Q. In connection with that study, did they put a drop of Duragesic gel on aluminum trays; is that right?
Q. But the substance that they put on the trays was not the exact same substance that is in the Duragesic patch, was it?
A. No, it was minus fentanyl.
A. Because fentanyl is dangerous. It wasn't necessary.
In other words, a test that was performed to determine the evaporation rate of fentanyl didn’t include fentanyl. I can only imagine how loudly a defendant would complain about “junk science” if plaintiffs tried to offer into evidence a test about fentanyl that didn’t use fentanyl. The person being deposed is Robert Gale, the lead inventor of the Duragesic fentanyl patch.
It’s also worth noting the reason that they didn’t include fentanyl in the test: because they knew the substance is so dangerous that they didn’t want anyone to accidentally come in contact with it. I’m not sure how much of Mr. Gale’s testimony came into evidence for the jury in this Duragesic lawsuit, but I know the lawyers for the plaintiff obtained a multimillion dollar verdict in it. The case was DiCosolo v. Janssen, et. al. Here is Robert Gale’s Deposition from that fentanyl lawsuit in PDF format.