“If the trial court’s ruling is upheld, California will be empowered to pick winners and losers in legitimate scientific debates. The First Amendment forbids that result.”
— Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC—Late yesterday Washington Legal Foundation (WLF) urged the California Court of Appeal to reverse a trial-court decision imposing $344 million in civil penalties on a medical-device manufacturer for disseminating fully protected scientific speech.

Imposing a penalty larger than all other reported California awards combined, the trial court found that every communication the defendants made about Ethicon’s pelvic-mesh products—whether to doctors or patients, written or verbal—violated California law. Yet as the State conceded on the first day of trial, the “scientific propositions” about pelvic mesh are “very much in dispute” here.

Even so, as the basis for thousands of individual violations (penalized at $1,250 apiece), the trial judge indiscriminately relied on materials in which Ethicon’s allegedly “deceptive” statements did no more than accurately describe the results of scientific studies on matters of genuine scientific debate. In other words, without even considering the First Amendment implications of doing so, the trial court imposed liability based on protected scientific speech.

In its amicus brief supporting reversal or vacatur, WLF argues that the trial court erred by imposing liability without considering the First Amendment, which shields reasonably debatable scientific claims from liability. WLF’s brief also contends that allowing the trial-court’s judgment to stand would irreparably chill scientific speech on vital matters of public health.

WLF’s brief was filed with the pro bono assistance of Peter Choate and Mollie Benedict of Tucker Ellis LLP in Los Angeles.