TORTINI

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

Styles of Judicial Opinion Writing

May 28th, 2013

Not Enough Original Words

You copy a little,
But not too much.
Some people say it’s degrading.

In Cojocaru v. British Columbia Women’s Hospital and Health Centre, the Supreme Court of Canada confronted an interesting question whether a litigant may challenge an adverse judgment on grounds that the trial judge plagiarized from the plaintiffs’ submissions.  Cojocaru (May 24, 2013).

In this complex medical malpractice case, the trial court issued its written judgment in 368 paragraphs, of which only 47 were discernibly original.  The overwhelming majority of the paragraphs, 321, were plagiarized from the plaintiffs’ submissions, without attribution.  The Supreme Court agreed that this degree of plagiarism raises a serious question whether the trial judge’s judgment should be set aside as not a truly independent evaluation of the facts and law.  Id. at para. 10-11.

The Court proceeded to note that trial court judgments are “entitled” to a presumption of integrity and impartiality.  The defendants argued that any such presumption was vaporized by the “the extent of the copying, the quality of the copying, the lack of attribution for the copying, the nature of the case and the failure to fulfill the basic functions of reasons for judgment.” Id. at para. 52.

Although acknowledging that the trial court had copied over 87% of its judgment from the plaintiffs’ briefs, the Supreme Court held that the defendants had failed to rebut the presumption of judicial integrity and impartiality.  Id. at  para. 73.  Judicial plagiarism is, according to the Supreme Court, “a longstanding and accepted practice.” Id. at para 30.  The Court, however, acknowledged that excessive plagiarism “may raise problems.”  Id.

The Supreme Court rejected the notion that judges should express themselves in their own language, and that their reasons should be their “original” work product.  Id. at 31.  Copying, according to the Court, does not mean that plagiarist judges have failed to think about and resolve the issues before them.  Id.

The Court conceded that it was not “best practice for judges to bulk up their judgments with great swaths of borrowed material.”  If the carried the copying to excess (presumably much greater than 87%), the copying “may raise problems.”

Rules and prohibitions against plagiarism do not apply to judges, say the Canadian Supreme Court judges.  Id. at para. 32.  According to the high court, lack of originality is a virtue in a system that depends upon precedent.  “Judges are not selected, and are only rarely valued, because of their gift for original expression.”  Id. (quoting, with attribution, thankfully, Simon Stern, “Copyright Originality and Judicial Originality” 63 Univ. Toronto L. J. 1 (2013)).

The Supreme Court cited precedential support of its judgment that judges are too busy to think and write in their own words.  See id. at para. 37, 38 (citing English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605, [2002] 3 All E.R. 385 (holding that copying does not invalidate a court’s decision); id. at para. 41 (citing United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964) (noting that when trial judge “adopt[s] verbatim” the findings of fact submitted by counsel, “[t]hose findings, though not the product of the workings of the … judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence”).

The majority of the intermediate appellate court, the Court of Appeal, had held that the extent and nature of the plagiarism was “cogent evidence” of lack of the trial judge’s judicial integrity.  Although the Supreme Court rejected the conclusion that the trial judge had failed to make an independent decision, the Supreme Court did display some original, independent thought in upholding the defendants’ assignments of error.  The Supreme Court reversed the judgment for plaintiffs on the merits.  Id. at para. 76.

Judicial Verbosity – Too Many Original Words

There is a tradition in New Jersey appellate cases to never issue a short, succinct opinion when a long one is at hand.  Plaintiff Alison Rosenberg took Merck’s drug, Fosamax, for osteoperosis. After undergoing a tooth extraction, Rosenberg developed bone complications of her jaw.  She claimed that she developed osteonecrosis of the jaw (ONJ), and that this condition was caused by her use of Fosamax, and by Merck’s negligent failure to warn that Fosamax causes ONJ. Rosenberg et al. v. Merck Sharp & Dohme Corp., No. A-5271-10T3, 2013 WL 1187916 (N.J. Super. Ct. App. Div. Mar. 25, 2013) (per curiam).

Merck defended and affirmatively sought to show that Rosenberg did not have ONJ.  Its expert witness, Brent Ward, D.D.S., M.D., an expert in ONJ and in maxillofacial surgery, testified that Rosenberg suffered from osteomyelitis, not from ONJ.

At the end of the case, the trial judge instructed the jury to make findings:

“(1) whether plaintiff proved it was more likely than not that plaintiff had ONJ;

(2) whether plaintiff’s development of ONJ was a result of taking Fosamax; and

(3) whether Merck negligently failed to adequately warn about the risks of ONJ from Fosamax.”

The jury resolved the first question by finding that the plaintiff had not suffered from ONJ, and pursuant to the trial court’s instructions, ceased deliberations and notified the court of their final verdict, upon which judgment was entered.  The jury thus never reached the questions about ONJ and Merck’s liability.

Rosenberg, et vir., appealed, contending that the trial judge erred in excluding evidence of Merck’s 2010 change in its warning label, which impeded her attempt to impeach Dr. Ward on the relationship between Fosamax and ONJ.  The problem is that the excluded evidence was relevant only to an issue that the jury never reached.  Somehow the New Jersey Appellate Division managed to draw out its per curiam opinion to eleven pages, in its own words.

High, Higher, Highest Quality Research Act

May 25th, 2013

“The High Quality Research Act” (HQRA), which has not been formally introduced in Congress, continues to draw attention. SeeClowns to the left of me, Jokers to the right.”  Last week, Nature published an editorial piece suggesting that the HQRA is not much of a threat. Daniel Sarewitz, “Pure hype of pure research helps no one, ” 497 Nature 411 (2013).

Sarewitz suggests that “the problem” is the hype about the benefits of pure research and the let down that results from the realization that scientific progress is “often halting and incremental,” with much research not “particularly innovative or valuable.”  Fair enough, but why is this Congress such an unsophisticated consumer of scientific research in the 21st century?  How can it be a surprise that the scientific community engages in the same rent-seeking behaviors as do other segments of our society? Has it escaped Congress’s attention that scientists are subject to enthusiasms and group think, just like, … congressmen?

Still, Sarewitz believes that the HQRA bill is not particularly threatening to the funding of science:

“In other words, it’s not a very good bill, but neither is it much of a threat. In fact, it’s just the latest skirmish in a long-running battle for political control over publicly funded science — one fought since at least 1947, when President Truman vetoed the first bill to create the NSF because it didn’t include strong enough lines of political accountability.”

This sanguine evaluation misses the effect of the superlatives in the criteria for National Science Foundation funding:

“(1) is in the interests of the United States to advance the national health, prosperity, or welfare, and to secure the national defense by promoting the progress of science;

(2) is the finest quality, is ground breaking, and answers questions or solves problems that are of utmost importance to society at large; and

(3) is not duplicative of other research projects being funded by the Foundation or other Federal science agencies.”

HQRA Section 2(a) – (c).  These superlatives set up most research proposals to fail because of the scientific community’s inability to predict in advance which studies will be truly “ground breaking” and will “answer questions .. that are of utmost importance….”  Congressmen will thus be able selectively to target research grants to embarrass the NSF Director in public hearings.  The Director will hardly be able to defend a particular grant with the assertion that, “well, we have many other grants that are also very fine, although not of the “finest quality”; we have other grants that are really important to society, but also not of the “utmost” importance.

Certainly, there is a good deal of wasted research funding, on grants that are frivolous.  Directing funding to worthwhile research is not an easy task, but it almost certainly beyond the ken of congressional committees.

What the HQRA attempts to set up is not another layer of peer review by the NSF Director, but by Congress itself, with a line-item veto for research that offends particular Congressional sensibilities.  Sarewitz is naive to believe that this bill poses little threat or change to the funding of science in the United States.  The HQRA is a particularly serious threat, not to NSF funding of scientific research, but to the selection of grants that to be funded.

Congress should be looking at the NSF budget for waste, but the best way to ensure that the NSF triages funding of truly important research is to limit the funds appropriated.  Contrary to the current wisdom, neither right nor left has a monopoly on stupidity when it comes to science.  The history of federal funding of alternative medicine in this country (e.g., National Center for Complementary and Alternative Medicine (NCCAM), and previously the Office of Alternative Medicine.) illustrates all too well how ideological funding and Congressional “oversight” works. See, e.g., Eric Boyle, “The Politics of Alternative Medicine at the National Institutes of Health,” Federal History online 16 (2011).

Two Schools of Thought

May 25th, 2013

In litigation of claims of professional malpractice, the “two schools of thought doctrine” is a complete defense.  Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964 (1992).

As explained by the Pennsylvania Supreme Court, physicians may defend against claims that they deviated from the standard of care, or of professional malpractice, by adverting to support for their treatment by a minority of professionals in their field:

“Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.”

Id. at 40.  See also Fallon v. Loree, 525 N.Y.S.2d 93, 93 (N.Y. App. Div. 1988) (“one of several acceptable techniques”); Dailey, “The Two Schools of Thought and Informed Consent Doctrine in Pennsylvania,” 98 Dickenson L. Rev. 713 (1994); Douglas Brown, “Panacea or Pandora’ Box:  The Two Schools of Medical Thought Doctrine after Jones v. Chidester,” 44 J. Urban & Contemp. Law 223 (1993).

Perhaps the two schools doctrine is an interesting anomaly that harkens back to a legal epistemology founded in authority rather than evidence.  In the law of expert witnesses, the criterion for admissibility of opinion has shifted from “general acceptance” to epistemic warrant, but malpractice law still allows custom and practice to dictate the standard of care.  The two schools doctrine ameliorates the practice of basing standard of care on authoritative, non-evidence based practices and opinions.  If standards of care were truly evidence based, then there might still be situations in which the available evidence was inconclusive between two approaches to patient care.  In situations of inconclusive evidence between two approaches, the two schools doctrine would provide a defense.

Products Liability

In products liability cases, failure-to-warn theories are often predicated upon claims that defendants should have known of a risk of harm posed by their products.  Plaintiffs will cite past pronouncements made by authors as evidence that the harm was “known” to others, and thus the defendants should have known of the harm, and thus should have warned about the harm.  This species of claiming often takes place, however, without any analysis whether the past pronouncements were made with good and adequate scientific bases.

If products liability law persists in treating past, putative knowledge uncritically, then it should, at least, allow defendants to defend on the ground that there were contrary pronouncements made. Juries should be told that the existence of contrary pronouncements from a respectable minority of writers is a complete defense. The two schools of thought doctrine should thus be given wider play in tort law than just professional malpractice.  Products liability should honor the basic underlying principle of malpractice law that the opinions of even a respected minority of experts fully answers the claim of negligence. The existence of the contrary opinions should bar punitive damage claims altogether.

Consider what happens in the typical failure to warn case.  The plaintiff  goes trash picking through the dustbin of medical history to find some prescient writer who argued that the product in question causes disease.  Defendant points to other authors who disputed the relationship.  The court instructs the jury that they may find defendant negligent for failing to warn if they believe the plaintiffs’ evidence.  The jury makes its decision, thoroughly infected with hindsight bias.

This scenario is unsatisfactory and unduly restrictive.  Applying the two schools of thought doctrine, the court should instruct the jury to find for the plaintiff only if there was not a considerable number of recognized and respected professionals and  experts, who had opined that the product caused the specific injury in question.  The existence of such a minority should defeat claims for punitive damages as a matter of law.

United States v. Harkonen

On May 7, 2013, the Ninth Circuit of the United States Court of Appeals denied, Dr. Harkonen’s petition for rehearing in United States v. Harkonen.  No data or analyses were false or fabricated in the Harkonen case.  The government’s prosecution was predicated on a statistical orthodoxy that is opposed by a large number of recognized and respected statisticians.  This fact would have been a complete defense to a claim of professional negligence.  The two schools doctrine should completely bar a prosecution for fraud.

Remarkably, expert witnesses commonly testify to causal associations on lesser evidence than Dr. Harkonen relied upon in a press release for his judgment of causal efficacy, but the trial court believed the jury could infer scienter and falsity from conversations between an “orthodox” statistician and Dr. Harkonen about the propriety of drawing a casual inference from a given dataset.

Perhaps civil litigants should start counterclaiming for fraud when they receive expert witness reports.

Asbestos Litigation Blues

May 22nd, 2013

Mr. Curtis  Geatz alleges that he has mesothelioma as a result of asbestos exposure, including exposure to crocidolite from having smoked Kent Micronite filtered cigarettes for nine months, in 1955-56. Geatz v. Benjamin Moore & Co., File No. 62CV124946, Minn. D. Ct. for Ramsey Cty. (2d Jud. Dist.).  SeeLorillard Executive Admits Asbestos Once Included in Kent Filters” (April 23, 2013) (misleadingly suggesting that testimony about filter content was something other than very old news).

Crocidolite is clearly the most potent cause of mesothelioma.  In a published cohort study of workers at Hollingsworth & Vose, a company that made the filters for the Kent cigarette, over 15 percent of all deaths were due to mesothelioma.  James Talcott, et al., “Asbestos-Associated Diseases in a Cohort of Cigarette-Filter Workers,” 321 New Engl. J. Med. 1220 (1989).

Despite the high potency of crocidolite in causing mesothelioma, the late Irving Selikoff  worked hard to advance his opinion that all asbestos fiber types were comparable.  Selikoff also propagandized the view that crocidolite was not widely used in the United States, although he and his colleagues documented the use of “blue” fiber at Johns-Manville factories in the United States. SeeSelikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010).

In Mr. Geatz’s case, Lorillard moved for summary judgment on grounds that crocidolite fibers in the cigarettes plaintiff smoked were not a substantial contributing factor of his mesothelioma. The trial court denied Lorillard’s motion, apparently on the strength of unidentified exhibits attached to an attorney affidavit (Tiffany Dickenson).

Mr. Geatz’ claim is not implausible on its face, but the trial court’s refusal of Lorillard’s motion for summary judgment is a conclusory black box.  It may be right or wrong, but it fails to describe the defendant’s evidence or arguments as to why potent crocidolite in the Kent filter could not have been a substantial factor, or the plaintiffs’ evidence as to why the jury should be allowed to say otherwise.  Lorillard may have argued that the fibers did not leave the filter, or that the exposure would have been too low, even to the extremely potent crocidolite fiber.  Apparently there was no threshold issue of admissibility of each side’s expert witnesses, but still, the scientific issues, the plaintiffs, and the defendants deserve some explanation of the court’s decision.