Robert G. Knaier, Fitzgerald Knaier, LLP, and California Western School of Law, is publishing Homeopathy on Trial: Allen v. Hyland’s, Inc. and a Failure of Evidentiary Gatekeeping in volume 57 of Jurimetrics (2017). Here is the abstract.
This article explores how the law, through rules governing the admissibility of expert evidence, can — but sometimes fails to — safeguard consumers from misleading scientific and medical claims. Americans spend approximately three billion dollars annually on homeopathic health-care products. But do these products actually work, and, if they do not, are there are any legal consequences for those who make money by claiming that they do? This article addresses these questions. It first explains the responsibility of trial courts to act as evidentiary “gatekeepers,” with the power to preclude the admission of unreliable evidence in support of purportedly scientific claims. It then discusses the nature, history, and evidentiary basis of homeopathy; describes a lawsuit tried to a southern California jury in 2015, in which consumers alleged that Hyland’s, Inc. misrepresented the efficacy of its homeopathic products; and outlines how evidentiary gatekeeping failed in that case — resulting in a jury verdict in favor of Hyland’s. This article concludes by considering the harms that can flow from such a failure and offers thoughts on the importance of ensuring that litigants and courts focus their efforts on precluding pseudoscience from distorting the civil justice system.
Download the article from SSRN at the link.