COVID-19 and Expert Believability
Recently, I was speaking with a plaintiff’s lawyer whom I like and respect about the potential impacts of COVID-19 on the concept of a reasonably prudent person—something we have written about before. He suggested to me that an even bigger impact—not necessarily tied solely to COVID but certainly exacerbated by it—could be with respect to jurors’ willingness to listen to and believe scientific testimony.
In many life sciences lawsuits, science and scientific evidence play important roles. Many defendants in life sciences cases—particularly product liability litigation—rely on the presentation of scientific expert testimony to explain to the jurors why the particular product did not cause the plaintiff’s injury, or why the plaintiff’s illness arose due to some other medical cause. Many plaintiffs also rely on scientific experts—albeit with differing viewpoints—to help explain to jurors why they were caused to suffer a particular illness or injury due to a product, pharmaceutical, or medical device. As many courts have observed, such cases routinely hinge on a “battle of the experts,” as each side tries to convince the jury that its scientific experts and evidence should be believed over the other side.
Our country’s continuing effort to combat COVID-19 has involved a number of medical and scientific recommendations. Some of these have evolved over time (compare, for example, very early recommendations about the relevant benefits of mask-wearing to more recent suggestions about their usefulness), and there are certainly many areas where the science continues to evolve (for example, how long respirable virus droplets may remain in the air, or how extensive may such droplets be spread through indoor HVAC systems).
But in addition to the natural evolution of the science, there seem to be a growing number of people who appear to be choosing not to follow the recommendations of medical and scientific experts because they reject the underlying medical and scientific basis of those recommendations. It is beyond the scope of this discussion to consider the reasoning or rationale behind those decisions.
But an unfortunate effect may be an increasing willingness among a growing number of people not just to reject scientific propositions in their daily lives, but perhaps also an increasing willingness to reject scientific propositions when presented to them in court. And if that happens, the use and presentation and effectiveness of scientific evidence in court—by both defendants and plaintiffs—will be a whole lot more difficult and unpredictable.