TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

UC Davis Daubert Symposium

March 28th, 2013

Earlier this month, I wrote about a Symposium on Daubert at the University of California Davis School of Law.  The UC Davis Law Review has now published the proceedings of the Symposium, including a transcript of the direct and cross-examinations of the mock expert witnesses:

Symposium — The Daubert Hearing: From All the Critical Perspectives

 

Egilman Petition for Certiorari Denied

March 18th, 2013

Some will no doubt think that the Supreme Court’s decision in Egilman v. Conagra Foods Inc. was determined by the forces of class warfare and historical materialism more generally, but there it is:  certiorari denied in Order 12-697.

Dr. Egilman still has the option of suing the district judge for alleged defamation, or plaintiffs’ counsel for breach of an implied contract.  Stay tuned.

Harriet Hardy’s Views on Asbestos Issues

March 13th, 2013

The Marxist-Leninist would-be historians of occupational health are particularly adept in demonizing those scientists and fellow-historians whose views evidence any lack of support for labor’s positions.  What passes for history of asbestos disease in American courtrooms, marshaled to show notice of hazards to manufacturers, is particularly corrupted by political and ideological animus.

One of the heroes of the left is the late Dr. Harriet Louise Hardy (1906 – 1993), who helped put occupational medicine on the map of American medical research and scholarship.  There is much to admire in the life of Dr. Hardy (who remarkably does not have a Wikipedia entry.) Dr. Hardy’s collaboration with Alice Hamilton, M.D, on the revision of the textbook, Industrial Toxicology, is well known.  Hardy’s colleagues at Harvard wrote a glowing tribute to her, after her death.  John D. Stoeckle, Homayoun Kazemi, Rose Goldman, and Chris Oliver, “Faculty of Medicine: Memorial Minute for Harriet L. Hardy (1905-1993)” (May 1, 1997):

“As she often admitted, her professional life was not a planned academic or specialty career but an accidental product of several influences — her interest in clinical medicine, her school and college health jobs of working with the young and healthy, her identification with and study of the industrial disablements of blue-collar workers, and the support of senior colleagues who encouraged her interests in the illnesses of the workplace, in what she called “clinical preventive medicine”. In such work, unlike the ‘company doc’, whose attachments were to the corporation, hers were to the worker, for whom she advocated in her writings, clinical care, and testimonies before the Workmens’ Compensation Board.”

Her colleagues noted that she suffered from a meningioma, requiring surgery in 1972, and during the last years of her life, from lymphoma.  In 1991, when Hardy was suffering from cancer and the sequelae of serious central nervous system disease, Dr. David Egilman sought her out to write a letter to the editor of the “red journal,” to complain about the use of the medical literature in interpreting the historical evolution of knowledge of asbestos hazards.  See Harriet Hardy & David Egilman, “Corruption of Occupational Medical Literature:  The Asbestos Example,” 20 Am. J. Indus. Med. 127 (1991).

Given Hardy’s credentials and her collaboration with an asbestos plaintiffs’ expert witness, it seems worthwhile to examine her views about asbestos given in her autobiography.  Harriet Hardy, M.D., Challenging Man-Made Disease:  The Memoirs of Harriet L. Hardy, M.D. (1983).  Hardy was plain spoken and practical.  Although she had no bias in favor of industry, she was not beset with the ideological animus of so many contemporary testifying witnesses.  Hardy addresses asbestos in several pages of her autobiography, which should be required reading for judges and lawyers coping with asbestos litigation:

“The media in industrialized Western countries have publicized the ill effects of asbestos quite out of proportion to the risk, especially that in city streets, schools, hospitals, and drinking water.”

Id. at 94.

Hardy describes two of her own cases of lung cancer in asbestos workers, in the 1950s.  She notes that she published the first case with Hanna Klaus in the 1950s. Kurt J. Isselbacher, Hanna Klaus, and Harriet L. Hardy, “Asbestosis and bronchogenic carcinoma: Report of one autopsied case and review of the available literature,” 15 Am. J. Med. 721 (1953).  Hardy reports that her contemporaneous reaction:  “A note on the second case included the query, Since men were heavy smokers, might not the cancer be due to a combination of cigarette smoking and inhalation of asbestos fibers?”  Id. at 95. A question, not an answer, to be sure.

Hardy addresses the more obvious case of asbestos and mesothelioma, with an answer that would dismay the Lobby:

“A fatal malignancy [mesothelioma] associated with inhalation of a single form (crocidolite) of asbestos invaded the chest wall (pleura) and/or the abdominal wall.”

Id. at 95 (emphasis added).

“I feel that the facts to date do not support the many claims of asbestos effect on those with slight exposure.”

Id.

“This story of asbestos damage is now internationally known, and unanswered questions of differences in fibers from various areas and their harmful effect and the problem of safe working and neighborhood levels are engaging the skills of research groups.”

Id.  Hardy ends her discussion with a plea for skepticism and epistemological modesty in interpreting lay media reports, which have been dominated by scaremongers:

“I would plead that every reader look at all reports in the lay press and on television with great skepticism.  My reasons are shown by the following examples. A state health commissioner is using funds that he has to underwrite an antismoking campaign.  Deception is a mistake no matter how noble the cause.  Because a plant situated on a U.S. Great Lake dumped waste asbestos into the lake, which serves as a public water supply to a nearby city, fishing was forbidden and the livelihood of an important number of people denied.  The evidence that water containing asbestos fibers is harmful and may cause cancer has yet to be assembled.”

Id. at 98.

Those familiar with the Reserve Mining fiasco know that the evidence was never forthcoming.  Throughout her autobiography, Hardy’s compassion and disinterestedness are manifest.  It is unfortunate that Hardy did not serve directly as a more influential voice on asbestos issues.

U.C. Davis Symposium on the “Daubert” Hearing

March 11th, 2013

Professor David Faigman’s recent article, “The Daubert Revolution and the Birth of Modernity:  Managing Scientific Evidence in the Age of Science,” 102 U.C. Davis Law Rev. 101 (2013), notes that the paper grew out of informal remarks given at a recent symposium.  A little Googling quickly turned up the Symposium Site on the University of California, Davis, website.  Like Professor Faigman’s paper, this symposium is a valuable contribution to the art and learning of what Rule 702 hearings should, and should not, be.

The symposium, The Daubert Hearing — From All the Critical Perspectives (March 2, 2012) described itself:

Pretrial practice has long been the center of gravity in modern litigation. The vast majority of cases never go to trial. Instead, after pretrial discovery and in limine motions, the cases settle. The Supreme Court’s celebrated 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, has solidified that trend. In Daubert, the Court abandoned the traditional general acceptance standard for the admissibility of scientific testimony and announced a new empirical validation test. Throughout the country counsel began basing pretrial in limine motions on Daubert to target opposition expert testimony. In criminal cases, defense counsel started challenging the prosecution’s forensic evidence identifying the accused as the perpetrator. In civil tort cases, defense counsel filed motions attacking the plaintiff’s evidence on general causation. When counsel won these motions, the opposition lacked sufficient evidence to go to trial. The hearing on the pretrial Daubert motion became the centerpiece of the litigation.

This symposium will begin with a demonstration Daubert hearing. After the demonstration, all the participants will deliver remarks, giving their perspective on the law and tactics of Daubert hearings. In addition, there will be expert academic commentary by Professor David Faigman of U.C. Hastings School of Law, the lead author of the popular treatise, MODERN SCIENTIFIC EVIDENCE.

The symposium featured a list of distinguished speakers:

Hon. James M. Rosenbaum

Robert G. Smith

Bert Black

Professor David L. Faigman

Professor Edward Imwinkelried

Dr. William A. Toscano, Jr.

Dr. Sander Greenland

The symposium’s hypothetical is available on line, and the symposium itself, which was video recorded, is available for viewing at the UC Davis website.

The scientists who role-played as expert witnesses, Drs. Toscano and Greenland,  were obviously pushed to articulate certain positions that they did not personally subscribe to.  Still, their true colors managed to show, and to influence the mock hearing.  For instance, Dr. Toscano stated several times that causation is very difficult to prove, and in so stating, he managed to convey the impression that he had a personal, subjective higher bar for causal claims than the rest of the scientific community.  This approach is a common rookie mistake for defense counsel and their expert witnesses, and it should be avoided.  There are plenty of good examples of causal relationship that have been established with epidemiology, and the defense expert should be prepared to identify them, and to explain why in some cases, the causal relationships required more exacting evidence.  The other glaring error in the defense presentation was that the exact methodological error was not made clear through Dr. Toscano’s testimony although the defense lawyer, Mr. Smith, explored the gaps and leaps of faith in his cross-examination of Dr. Greenland.  In this setting, the defense expert witness’s focus is on the methodological inadequacies of the plaintiffs’ witness, not on why he rejected the causal claim.

Dr. Greenland was his inimitable self, even going so far as to talk into his magic marker under the impression that it was a microphone.  Who knows; perhaps it was, but it also wrote on the white board.  More telling was that Dr. Greenland embraced a probabilistic conception of causation, which he explained was essentially a bet on the correct result.  This metaphor seems fatally defective.  A bet is a bet, but you cannot call the bet until you have actual evidence of who won.  It may be lovely that Dr. Greenland, or some other expert witness, is willing to place the bet, perhaps with odds, but this metaphor fails to take causal inference out of the subjective realm.  Along with his betting metaphor, Greenland emphasized that the causation decision is driven by a cost-benefit analysis of Type I and II errors.  The slippery slide into substituting the precautionary principle for causal analysis was obvious.

On the plaintiffs’ side, Bert Black, an apostate defense lawyer, did a very good job of portraying the shenanigans used by plaintiffs’ lawyers to avoid and evade gatekeeping.  Statistical significance is not necessary; epidemiology is not necessary; Bradford Hill factors are not necessary; therefore, I can show causation without much of anything.  Black illustrated nicely how the focus is redirected to other cases, such as when someone from a drug company wrote an improvident article that concludes causation from case reports alone.  Or cases involving signature diseases, or acute outbreaks, for which causal relations were discerned and embraced by scientists on the basis of very informal epidemiologic studies or even case series (which someone characterized as anecdata).

Former federal judge James Rosenbaum presided magisterially, and cowardly denied the cross-motion Rule 702 challenges.  In his comments after the mock, Judge Rosenbaum revealed his conception of the gatekeeping process as essentially a determination that the witness is competent.  Of course this is not the law, and much more is required than to determine that the witness is minimally qualified.  Professor Faigman respectfully chastised the judge for ignoring the statute and the caselaw.

One of the more interesting dialogues in the discussions after the mock centered on the harm to an expert witness’s reputational interests from the gatekeeping process.  To be sure there can be such harm, but as Professional Faigman pointed out, the potential for such harm cannot intimidate judges from ruling on the facts and law before them.  I believe though that expert witnesses should be aware of the potential for this sort of harm from their testimonial adventures, and should require certain contractual assurances from the lawyers who engage them.  For instance, expert witnesses should insist upon whether such challenges are possible in the jurisdiction, what the standards are, and whether they will have an opportunity to speak to the challenges.  The expert witnesses should insist upon prompt notification of all such challenges, and upon prompt receipt of all briefs and affidavits that challenge the validity or reliability of their opinions, as well as an opportunity to be heard on their responses.