In football, a team’s playbook details their strategy for victory. In the courtroom, some plaintiff attorneys are using a different kind of playbook, utilizing “junk science” to win massive, undeserved payouts from corporations. “Junk” litigation costs every family in the U.S. thousands of dollars annually, making this issue especially relevant given that high prices remain the public’s top economic concern.
The American Tort Reform Association’s (ATRA) Junk Science Playbook exposes the plaintiff attorneys’ strategy for what it is: a coordinated effort to bypass scientific truth, play on emotion, and extract costly verdicts from unlucky defendants. It is a winning tactic for trial lawyers, but a losing deal for the American public.
Emphasizing the importance of rigorous admissibility standards, the Junk Science Playbook supports the nationwide adoption of the gold standard: the Daubert Standard. Derived from a 1993 Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals, the Daubert Standard requires judges to assess the relevance and reliability of expert testimony before it reaches a jury, filtering out junk science and ensuring only credible, peer-reviewed evidence is considered.
In this case, justices interpreted Federal Rule of Evidence 702, which governs the admissibility of testimony in federal courts, directing judges to act as gatekeepers who ensure expert testimony is reliable and relevant. The concept is simple: before a “specialist” can testify, the judge must ensure their claims are rooted in peer-reviewed reality, not just a paycheck.
FRE 702 was clarified in 2023 by Judicial Conference amendments that state expert testimony may be admitted only if the court determines “that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.”
Even since Daubert, junk science has led to unjust verdicts and higher litigation costs. It has been linked to higher insurance premiums and reduced innovation, as companies waste resources defending themselves against meritless claims. Excessive litigation already costs the U.S. economy almost $602 billion each year, imposing an annual “tort tax” of $5,579 on a family of four. At a time when high prices are causing most family budgets to beg for mercy, efforts to bar attorneys from misleading jurors with unsound science would bring much needed relief.
Junk science can also undermine the integrity of the legal system and the authenticity of legitimate science. It can harm businesses, medical professionals, and even the public. When companies are forced to spend billions defending themselves against meritless claims, they aren’t spending that money on research and development, and they can’t lower prices for consumers.
A recent federal case in the Northern District of Illinois, Bojko v. Pierre Fabre USA Inc. (2023), perfectly illustrates the danger of lowering these judicial gatekeeping standards. In this putative class action, plaintiffs claimed they would never have purchased Klorane dry shampoo had they known it contained benzene, a carcinogen.
The crux of their argument relied on limited third-party testing that allegedly found benzene in a small number of samples. Despite the “relatively thin” nature of this evidence, the court found it sufficient to establish standing. By relying on a 2012 report from the International Agency for Research on Cancer (IARC) regarding benzene’s risks, plaintiffs used an Illinois consumer fraud statute to turn a trace contaminant issue — one that potentially doesn’t cause actual harm — into a massive legal liability. This kind of ruling opens the floodgates to more lawsuits based on fear rather than merit.
The plaintiff’s attorney relied on the notorious playbook to win this argument, utilizing the classic “fear-over-fact” strategy. Rather than presenting comprehensive safety data, they relied on limited testing and focused on an outdated report to pivot from a lack of scientific consensus to a claim of “consumer deception.” Despite the lack of strong evidence, the court found it sufficient to establish standing, proving that when the playbook is used effectively, even trace-level contaminants can be leveraged into massive legal liabilities.
The Junk Science Playbook reveals plaintiff’s attorneys’ big ploy to win lawsuits and advocates for legislative reforms and judicial education to strengthen standards for scientific evidence. ATRA’s proposals include training judges on scientific principles and updating state laws to be consistent with federal evidence standards governing expert testimony. Until judges are uniformly diligent in actively gatekeeping against junk science, it will continue to disrupt our legal system, force higher prices on consumers in the form of tort taxes, and hinder economic growth.
Gerard Scimeca is an attorney and serves as chairman and co-founder of CASE, Consumer Action for a Strong Economy, a free-market consumer advocacy organization.