In a jarring blow to any hope of justice for one injured plaintiff, a Pennsylvania appellate court has refused to overturn a lower court ruling that lets Procter & Gamble off the hook for severe injuries caused by one of its products. The ruling centers around the need for “scientific” evidence that the denture cream Fixodent can cause severe nerve damage in some users. To understand the extent of the injustice meted out in this decision you first need to understand that the nerve damage caused by Fixodent is severe, permanent and irreversible. Those who were injured can barely walk or hold eating utensils. Second, you should know that there was no warning of the dangers and consumers were unaware of the zinc contained in the product. Finally, there is long accepted science that over-ingestion of zinc causes exactly the kind of nerve damage injuries as suffered by the Plaintiffs in the lawsuits against P&G. These plaintiffs were diagnosed with high levels of zinc in their blood and they had no other source for ingesting zinc into their bodies other than the Fixodent product they put daily into their mouths.
How does justice lose sight of such obvious and overwhelming facts? Judges lose sight when the undertake an inane dissection of the scientific evidence presented in court, looking for every possible way that the scientific studies on the subject may differ in any way from the case at hand. The appellate court in this case noted that the scientific studies relied upon by the Plaintiff did not involve the exact same form of zinc as used in earlier studies. It was also noted that there is no scientific study relating specifically the product Fixodent to the injury claimed. To require such specific studies puts a burden on Plaintiffs that can never be met and deprives them of the right to put all the available facts before a jury of their peers.
This is all a success story for the corporate interests that for years have been on a campaign to undermine any science that reveals their responsibility for the harms they perpetuate. In the specific case of Procter & Gamble’s Fixodent, a study linking denture creams to the this nerve injury was concluded at the University of Texas in 2006, but the results were withheld from the public for two years awaiting peer review publication. It turned out that the person responsible for the peer review was being paid by Procter & Gamble and was unethically forwarding the study results to them, rather than making them public. In the end, because the courts wanted to split scientific hairs and ignore common sense, corporate influence won again.