The media often portray expert testimony as grounded in “junk science.” In some instances, particularly when discredited theories are dressed up as forensic science and offered as evidence against criminal defendants, “junk science” is an apt description.
Yet most expert testimony is based on sound principles of science. The insurance industry and corporate lobbyists have nevertheless engaged in a public relations campaign to convince the public (and potential jurors) that any expert evidence offered against defendants in civil cases is based on “junk science” and thus unworthy of belief.
Johnson & Johnson has faced tens of thousands of lawsuits alleging the marketing of cancer-inducing products, dangerous drugs, and defective hip, knee, and mesh implants. It isn’t surprising that J&J has been a leading proponent of the “junk science” meme, notwithstanding a Reuters investigation that accused J&J of promoting its own junk science while concealing and slanting evidence about the safety of its products.
A prominent expert who testifies in litigation against J&J co-authored a paper that criticized a study conducted by DePuy Synthes, a J&J subsidiary. The paper essentially accused DePuy of using the techniques of junk science to attain results that favored a DePuy product. A Grievance Committee has questioned whether pressure from J&J may have persuaded Brown University to take action against the expert witness.
David Egilman’s Expert Testimony
A 2019 profile in Science described David Egilman, a professor of family medicine at Brown University, as a “bloodhound” who sniffs out corporate misconduct by scouring “corporate records uncovered during litigation, invariably finding memos and studies showing that companies knew about industrial hazards long before warning employees or the public.”
His detractors complain that Dr. Egilman is an advocate for plaintiffs rather than a neutral witness. The same criticism could be made of the expert witnesses who primarily testify on behalf of corporate defendants.
The ultimate question is whether an expert is an advocate for the truth. The Science profile quotes a number of experts who acknowledge that Dr. Egilman is passionate about the positions he takes while praising his rigorous application of science to the facts he uncovers.
Dr. Egilman has testified in multiple lawsuits that allege harms caused by chemical exposures, unsafe drugs, and defective products. He has earned the wrath of Johnson & Johnson by giving testimony that juries have found to be credible in cases that involve hip replacements and carcinogenic talc products.
J&J Seeks Retraction
In 2017, Dr. Egilman published “a peer-reviewed paper that accused a Johnson & Johnson company of publishing a poorly designed study.” The paper concluded that DePuy’s study was “a covert ‘seeding trial,’ which aimed to generate data for marketing their Pinnacle hip replacement system rather than study empirical results of the product’s use.”
The Brown Daily Herald reports that J&J asked the journal in which Dr. Egilman’s paper was published to retract it. J&J argued that Dr. Egilman was biased because he acted as an expert witness in a class action lawsuit against DePuy. Of course, it is exactly his expertise in the field that qualified him both to evaluate DePuy’s study and to serve as an expert witness.
Neither Dr. Egilman nor the other authors were paid to write the paper. No plaintiffs’ lawyers had input into the paper. Dr. Egilman made appropriate disclosures, permitting readers to come to their own conclusions about potential bias. The journal that published the article concluded that no grounds existed to retract it.
Brown University Takes Action Against Dr. Egilman
In an apparent response to J&J’s pressure, Brown University sent Dr. Egilman a cease-and-desist letter. The Brown Daily Herald reports that “the letter requested that Egilman remove his Brown affiliation from his publication” and demanded that Dr. Egilman “disclose when his research was not a product of his work at Brown on future papers.”
The University also cancelled a class that Dr. Egilman had taught repeatedly since 1987. According to the course description, the bioethics class, “Science and Power: The Corruption of Public Health,” focuses on “corporate influence and corruption in medicine and other topics that relate to medical and public health decision making.”
Suspicions of Corporate Influence
Dr. Egilman filed a grievance, asserting that “undue corporate influence on his research and teaching activities” had persuaded the University to interfere with his academic freedom. The University Grievance Committee conducted an investigation.
The Grievance Committee found that the University acted arbitrarily when it instructed Dr. Egilman to remove his University affiliation from his publications. The Committee also found that the instruction was “in express violation of University policy that states that faculty involved in outside activities may reference their Brown appointments in publications.”
The Grievance Committee concluded that Dr. Egilman’s class was cancelled because several deans of the School of Public Health thought his employment would be terminated because of his peer-reviewed journal article. Why deans who failed to investigate the facts would believe a tenured professor could be fired because of a corporate complaint is unclear.
The Grievance Committee did not find direct evidence of corporate influence on the University’s decisions, a charge the University denies, but it concluded that the decisions were “inherently suspicious and (they open) the door to the perception of corporate influence.” The Grievance Committee recommended that the University withdraw its cease-and-desist letter and that it reinstate Dr. Egilman’s class.
The University has made no public comment about the Grievance Committee’s recommendations. Since Brown University has suspended classes in light of the COVID-19 crisis, the University might not be in a position to take action in the near future.