TORTINI

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

Multiplicity in the Third Circuit

September 21st, 2017

In Karlo v. Pittsburgh Glass Works, LLC, C.A. No. 2:10-cv-01283 (W. D. Pa.), plaintiffs claimed that their employer’s reduction in force unlawfully targeted workers over 50 years of age. Plaintiffs lacked any evidence of employer animus against old folks, and thus attempted to make out a statistical disparate impact claim. The plaintiffs placed their chief reliance upon an expert witness, Michael A. Campion, to analyze a dataset of workers agreed to have been the subject of the R.I.F. For the last 30 years, Campion has been on the faculty in Purdue University. His academic training and graduate degrees are in industrial and organizational psychology. Campion has served an editor of Personnel Psychology, and as a past president of the Society for Industrial and Organizational Psychology. Campion’s academic website page notes that he manages a small consulting firm, Campion Consulting Services1.

The defense sought to characterize Campion as not qualified to offer his statistical analysis2. Campion did, however, have some statistical training as part of his master’s level training in psychology, and his professional publications did occasionally involve statistical analyses. To be sure, Campion’s statistical acumen paled in comparison to the defense expert witness, James Rosenberger, a fellow and a former vice president of the American Statistical Association, as well as a full professor of statistics in Pennsylvania State University. The threshold for qualification, however, is low, and the defense’s attack on Campion’s qualifications failed to attract the court’s serious attention.

On the merits, the defense subjected Campion to a strong challenge on whether he had misused data. The defense’s expert witness, Prof. Rosenberger, filed a report that questioned Campion’s data handling and statistical analyses. The defense claimed that Campion had engaged in questionable data manipulation by including, in his RIF analysis, workers who had been terminated when their plant was transferred to another company, as well as workers who retired voluntarily.

Using simple z-score tests, Campion compared the ages of terminated and non-terminated employees in four subgroups, ages 40+, 45+, 50+, and 55+. He did not conduct an analysis of the 60+ subgroup on the claim that this group had too few members for the test to have sufficient power3Campion found a small z-score for the 40+ versus <40 age groups comparison (z =1.51), which is not close to statistical significance at the 5% level. On the defense’s legal theory, this was the crucial comparison to be made under the Age Discrimination in Employment Act (ADEA). The plaintiffs, however, maintained that they could make out a case of disparate impact by showing age discrimination at age subgroups that started above the minimum specified by the ADEA. Although age is a continuous variable, Campion decided to conduct z-scores on subgroups that were based upon five-year increments. For the 45+, 50+, and 55+ age subgroups, he found z-scores that ranged from 2.15 to 2.46, and he concluded that there was evidence of disparate impact in the higher age subgroups4. Karlo v. Pittsburgh Glass Works, LLC, C.A. No. 2:10-cv-01283, 2015 WL 4232600, at *11 (W.D. Pa. July 13, 2015) (McVerry, S.J.)

The defense, and apparently the defense expert witnesses, branded Campion’s analysis as “data snooping,” which required correction for multiple comparisons. In the defense’s view, the multiple age subgroups required a Bonferroni correction that would have diminished the critical p-value for “significance” by a factor of four. The trial court agreed with the defense contention about data snooping and multiple comparisons, and excluded Campion’s opinion of disparate impact, which had been based upon finding statistically significant disparities in the 45+, 50+, and 55+ age subgroups. 2015 WL 4232600, at *13. The trial court noted that Campion, in finding significant disparities in terminations in the subgroups, but not in the 40+ versus <40 analysis:

[did] not apply any of the generally accepted statistical procedures (i.e., the Bonferroni procedure) to correct his results for the likelihood of a false indication of significance. This sort of subgrouping ‘analysis’ is data-snooping, plain and simple.”

Id. After excluding Campion’s opinions under Rule 702, as well as other evidence in support of plaintiffs’ disparate impact claim, the trial court granted summary judgment on the discrimination claims. Karlo v. Pittsburgh Glass Works, LLC, No. 2:10–cv–1283, 2015 WL 5156913 (W. D. Pa. Sept. 2, 2015).

On plaintiffs’ appeal, the Third Circuit took the wind out of the attack on Campion by holding that the ADEA prohibits disparate impacts based upon age, which need not necessarily be on workers’ being over 40 years old, as opposed to being at least 40 years old. Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 66-68 (3d Cir. 2017). This holding took the legal significance out of the statistical insignificance of Campion’s comparison 40+ versus <40 age-group termination rates. Campion’s subgroup analyses were back in play, but the Third Circuit still faced the question whether Campion’s conclusions, based upon unadjusted z-scores and p-values, offended Rule 702.

The Third Circuit noted that the district court had identified three grounds for excluding Campion’s statistical analyses:

(1) Dr. Campion used facts or data that were not reliable;

(2) he failed to use a statistical adjustment called the Bonferroni procedure; and

(3) his testimony lacks ‘‘fit’’ to the case because subgroup claims are not cognizable.

849 F.3d at 81. The first issue was raised by the defense’s claims of Campion’s sloppy data handling, and inclusion of voluntarily retired workers and workers who were terminated when their plant was turned over to another company. The Circuit did not address these data handling issues, which it left for the trial court on remand. Id. at 82. The third ground went out of the case with the appellate court’s resolution of the scope of the ADEA. The Circuit did, however, engage on the issue whether adjustment for multiple comparisons was required by Rule 702.

On the “data-snooping” issue, the Circuit concluded that the trial court had applied “an incorrectly rigorous standard for reliability.” Id. The Circuit acknowledged that

[i]n theory, a researcher who searches for statistical significance in multiple attempts raises the probability of discovering it purely by chance, committing Type I error (i.e., finding a false positive).”

849 F.3d at 82. The defense expert witness contended that applying the Bonferroni adjustment, which would have reduced the critical significance probability level from 5% to 1%, would have rendered Campion’s analyses not statistically significant, and thus not probative of disparate impact. Given that plaintiffs’ cases were entirely statistical, the adjustment would have been fatal to their cases. Id. at 82.

At the trial level and on appeal, plaintiffs and Campion had objected to the data-snooping charge on ground that

(1) he had engaged in only four subgroups;

(2) virtually all subgroups were statistically significant;

(3) his methodology was “hypothesis driven” and involved logical increments in age to explore whether the strength of the evidence of age disparity in terminations continued in each, increasingly older subgroup;

(4) his method was analogous to replications with different samples; and

(5) his result was confirmed by a single, supplemental analysis.

Id. at 83. According to the plaintiffs, Campion’s approach was based upon the reality that age is a continuous, not a dichotomous variable, and he was exploring a single hypothesis. A.240-241; Brief of Appellants at 26. Campion’s explanations do mitigate somewhat the charge of “data snooping,” but they do not explain why Campion did not use a statistical analysis that treated age as a continuous variable, at the outset of his analysis. The single, supplemental analysis was never described or reported by the trial or appellate courts.

The Third Circuit concluded that the district court had applied a ‘‘merits standard of correctness,’’ which is higher than what Rule 702 requires. Specifically, the district court, having identified a potential methodological flaw, did not further evaluate whether Campion’s opinion relied upon good grounds. 849 F.3d at 83. The Circuit vacated the judgment below, and remanded the case to the district court for the opportunity to apply the correct standard.

The trial court’s acceptance that an adjustment was appropriate or required hardly seems a “merits standard.” The use of a proper adjustment for multiple comparisons is very much a methodological concern. If Campion could reach his conclusion only by way of an inappropriate methodology, then his conclusion surely would fail the requirements of Rule 702. The trial court did, however, appear to accept, without explicit evidence, that the failure to apply the Bonferroni correction made it impossible for Campion to present sound scientific argument for his conclusion that there had been disparate impact. The trial court’s opinion also suggests that the Bonferroni correction itself, as opposed to some more appropriate correction, was required.

Unfortunately, the reported opinions do not provide the reader with a clear account of what the analyses would have shown on the correct data set, without improper inclusions and exclusions, and with appropriate statistical adjustments. Presumably, the parties are left to make their cases on remand.

Based upon citations to sources that described the Bonferroni adjustment as “good statistical practice,” but one that is ‘‘not widely or consistently adopted’’ in the behavioral and social sciences, the Third Circuit observed that in some cases, failure to adjust for multiple comparisons may “simply diminish the weight of an expert’s finding.”5 The observation is problematic given that Kumho Tire suggests that an expert witness must use “in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, (1999). One implication is that courts are prisoners to prevalent scientific malpractice and abuse of statistical methodology. Another implication is that courts need to look more closely at the assumptions and predicates for various statistical tests and adjustments, such as the Bonferroni correction.

These worrisome implications are exacerbated by the appellate court’s insistence that the question whether a study’s result was properly calculated or interpreted “goes to the weight of the evidence, not to its admissibility.”6 Combined with citations to pre-Daubert statistics cases7, judicial comments such as these can appear to be a general disregard for the statutory requirements of Rules 702 and 703. Claims of statistical significance, in studies with multiple exposure and multiple outcomes, are frequently not adjusted for multiple comparisons, without notation, explanation, or justification. The consequence is that study results are often over-interpreted and over-sold. Methodological errors related to multiple testing or over-claiming statistical significance are commonplace in tort litigation over “health-effects” studies of birth defects, cancer, and other chronic diseases that require epidemiologic evidence8.

In Karlo, the claimed methodological error is beset by its own methodological problems. As the court noted, adjustments for multiple comparisons are not free from methodological controversy9. One noteworthy textbook10 labels the Bonferroni correction as an “awful response” to the problem of multiple comparisons. Aside from this strident criticism, there are alternative approaches to statistical adjustment for multiple comparisons. In the context of the Karlo case, the Bonferroni might well be awful because Campion’s four subgroups are hardly independent tests. Because each subgroup is nested within the next higher age subgroup, the subgroup test results will be strongly correlated in a way that defeats the mathematical assumptions of the Bonferroni correction. On remand, the trial court in Karlo must still make his Rule 702 gatekeeping decision on the methodological appropriateness of whether Campion’s properly considered the role of multiple subgroups, and multiple anaslyses run on different models.


1 Although Campion describes his consulting business as small, he seems to turn up in quite a few employment discrimination cases. See, e.g., Chen-Oster v. Goldman, Sachs & Co., 10 Civ. 6950 (AT) (JCF) (S.D.N.Y. 2015); Brand v. Comcast Corp., Case No. 11 C 8471 (N.D. Ill. July 5, 2014); Powell v. Dallas Morning News L.P., 776 F. Supp. 2d 240, 247 (N.D. Tex. 2011) (excluding Campion’s opinions), aff’d, 486 F. App’x 469 (5th Cir. 2012).

2 See Defendant’s Motion to Bar Dr. Michael Campion’s Statistical Analysis, 2013 WL 11260556.

3 There was no mention of an effect size for the lower aged subgroups, and a power calculation for the 60+ subgroup’s probability of showing a z-score greater than two. Similarly, there was no discussion or argument about why this subgroup could not have been evaluated with Fisher’s exact test. In deciding the appeal, the Third Circuit observed that “Dr. Rosenberger test[ed] a subgroup of sixty-and-older employees, which Dr. Campion did not include in his analysis because ‘[t]here are only 14 terminations, which means the statistical power to detect a significant effect is very low’. A.244–45.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 82 n.15 (3d Cir. 2017).

4 In the trial court’s words, the z-score converts the difference in termination rates into standard deviations. Karlo v. Pittsburgh Glass Works, LLC, C.A. No. 2:10-cv-01283, 2015 WL 4232600, at *11 n.13 (W.D. Pa. July 13, 2015). According to the trial court, Campion gave a rather dubious explanation of the meaning of the z-score: “[w]hen the number of standard deviations is less than –2 (actually–1.96), there is a 95% probability that the difference in termination rates of the subgroups is not due to chance alone” Id. (internal citation omitted).

5 See 849 F.3d 61, 83 (3d Cir. 2017) (citing and quoting from Paetzold & Willborn § 6:7, at 308 n.2) (describing the Bonferroni adjustment as ‘‘good statistical practice,’’ but ‘‘not widely or consistently adopted’’ in the behavioral and social sciences); see also E.E.O.C. v. Autozone, Inc., No. 00-2923, 2006 WL 2524093, at *4 (W.D. Tenn. Aug. 29, 2006) (‘‘[T]he Court does not have a sufficient basis to find that … the non-utilization [of the Bonferroni adjustment] makes [the expert’s] results unreliable.’’). And of course, the Third Circuit invoked the Daubert chestnut: ‘‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.’’ Daubert, 509 U.S. 579, 596 (1993).

6 See 849 F.3d at 83 (citing Leonard v. Stemtech Internat’l Inc., 834 F.3d 376, 391 (3d Cir. 2016).

7 See 849 F.3d 61, 83 (3d Cir. 2017), citing Bazemore v. Friday, 478 U.S. 385, 400 (1986) (‘‘Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility.’’).

8 See Hans Zeisel & David Kaye, Prove It with Figures: Empirical Methods in Law and Litigation 93 & n.3 (1997) (criticizing the “notorious” case of Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986), for its erroneous endorsement of conclusions based upon “statistically significant” studies that explored dozens of congenital malformation outcomes, without statistical adjustment). The authors do, however, give an encouraging example of a English trial judge who took multiplicity seriously. Reay v. British Nuclear Fuels (Q.B. Oct. 8,1993) (published in The Independent, Nov. 22,1993). In Reay, the trial court took seriously the multiplicity of hypotheses tested in the study relied upon by plaintiffs. Id. (“the fact that a number of hypotheses were considered in the study requires an increase in the P-value of the findings with consequent reduction in the confidence that can be placed in the study result … .”), quoted in Zeisel & Kaye at 93. Zeisel and Kaye emphasize that courts should not be overly impressed with claims of statistically significant findings, and should pay close attention to how expert witnesses developed their statistical models. Id. at 94.

9 See David B. Cohen, Michael G. Aamodt, and Eric M. Dunleavy, Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses (Center for Corporate Equality 2010).

10 Kenneth J. Rothman, Sander Greenland, and Timoth L. Lash, Modern Epidemiology 273 (3d ed. 2008); see also Kenneth J. Rothman, “No Adjustments Are Needed for Multiple Comparisons,” 1 Epidemiology 43, 43 (1990)

Seventh Circuit Franks ‘Every Exposure’ Theory for Extinction

September 11th, 2017

In Krik v. Exxon Mobil Corp., no. 15-3112, 2017 WL 3768933, Slip op. (7th Cir. Aug. 31, 2017) [slip op. cited as Krik], a jury found that smoking cigarettes causes lung cancer, which is not particularly noteworthy. The plaintiff, Charles Krik, however, wanted the jury to find that asbestos exposure, either alone or with his 45 pack-year smoking history caused his lung cancer. The jury found that smoking was the sole cause. Hannah Meisel, “7th Circuit Affirms Exxon’s Trial Win In Asbestos Cancer Suit,” Law360 (Sept. 1, 2017).

Krik’s asbestos exposure was not particularly impressive, and he apparently did not have asbestosis. He claimed asbestos exposure from his four years of work aboard naval vessels, occasionally removing insulation materials, and his two weeks as an independent contractor at an Exxon Mobil refinery, where he replaced heaters supposedly insulated with asbestos. Exxon Mobil disputed whether the heaters even had asbestos in them. The naval vessels would have had asbestos insulation from many manufacturers, but Krik focused on Owens-Illinois because it is the only solvent company remaining in the plaintiffs’ asbestos-powered perpetual litigation machine.

Lung cancer in a man with minor asbestos exposure with very substantial tobacco consumption – who are you going to call? See Arthur Frank Report, 2011 WL 12192776 (2011).

Arthur Frank is a physician who counts himself among the intellectual progeny of the late Irving Selikoff. Like Selikoff, Frank is intensely interested in outcomes that help workers show that their work has caused them illness. In furthering his interests, Frank sometimes makes things up, such as the “each and every exposure” theory. Frank is also a proponent of the “big-tent” theory of causation, which attempts to keep every possible defendant in a lawsuit, bu asserting that every asbestos exposure, regardless of its intensity, duration, quantity, variety of asbestos, or fiber length, constitutes a cause of plaintiff’s lung cancer.

Defendants moved to bar Frank’s opinions under Federal Rule of Evidence 702. See Exxon Mobil’s motion, at 2013 WL 10847058. Judge Lee of the Northern District of Illinois found that Arthur Frank’s opinions, in the form of the “each and every exposure theory,” “any exposure theory,” “single fiber theory,” or “no safe level of exposure theory” was scientifically insubstantial and inadmissible under Rule 702. Krik at 2-3. Judge Lee thus ruled that Krik could not offer expert witness opinions that espoused “every exposure” is substantial.

After Judge Lees’ ruling, Krik’s case was transferred to Judge Manish Shah, for trial. Despite the earlier ruling by Judge Lee, Krik’s counsel called Dr. Frank to testify at trial, with a repackaged opinion about Krik’s “cumulative exposure” caused his lung cancer, and every constituent exposure to that cumulative exposure was causally responsible.

After a voir dire examination of Frank, Judge Shah concluded that Frank’s opinion was still untethered to any “specific quantum of exposure attributable to the defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.” Krik v. Owens‐Illinois, Inc., No. 10‐CV‐07435, 2015 WL 5050143, at *1 (N.D. Ill. Aug. 25, 2015). Frank and plaintiffs’ counsel had attempted to circumvent the earlier ruling by Judge Lee, but their ruse failed to fool Judge Shah. On appeal to the Seventh Circuit1, a panel affirmed Judge Shah’s reasoning and exclusion of Arthur Frank’s opinions. Krik at 4-5.

Arthur Frank is used to making things up, including the law. The law of causation in most jurisdictions distinguishes between substantial and insubstantial contribution, but Frank decreed: “Either it’s zero or it’s substantial; there is no such thing as not substantial.” R. 66‐3 at 23, pageID 923. Really? In Frank’s mind, even a minute, perhaps a second, of fleeting exposure, would be a substantial contributing factor to a plaintiff’s lung cancer because he has legislated insubstantial out of existence. R. 376 at 273–74, pageID 10146‐47.

Frank’s testimony presented several problems:

First, his cumulative exposure theory was no different from the previously excluded “each and every exposure” theory. Even Frank, in his deposition testimony conflated “each and every exposure” with a cumulative exposure theory.

Second, Frank’s opinion did not conform to the legal standard. In the initial ruling on Frank, Judge Lee held that plaintiff must show that asbestos was a “substantial contributing factor” to his injury2.

Third, Frank’s opinion lacked an adequate scientific foundation. Krik was tasked with showing that asbestos was a “substantial contributing factor” to his lung cancer. Krik at 7; Krik, 76 F. Supp. 3d at 747 (Lee, J.). Frank’s opinion on “every exposure” did not help him make out his case.

The trial court judges recognized, putting aside the issue of thresholds, that asbestos‐induced lung cancers are dose dependent. At the very least, any attempt to attribute a person’s lung cancer to an exposure requires a consideration of the timing and quantum of exposure. Frank, in defiance of basic common sense and basic toxicologic principles, would – if allowed by courts – treat every exposure, regardless how de minimis, as a substantial contribution to the total exposure and the total risk. Krik at 8; Krik, 76 F. Supp. 3d at 753 (Lee, J.).

The panel of the Seventh Circuit found the trial judges’ exclusion of the Frank nonsense to be well supported and well within their discretion as gatekeepers3. Krik at 14

Krik’s counsel also complained that the trial court refused to admit the so-called Helsinki document4, a 1997 statement of public policy statement of scientists who opined that “[c]umulative exposure on a probability basis should thus be considered the main criteria for the attribution of a substantial contribution by asbestos to lung cancer risk.” R. 412‐4 at 4, pageID 13657.

The problem for counsel, and for Frank, was that Frank never referred to or embraced the Helsinki statement as an “authoritative text.” If he had, he would have been roundly impeached by the statement’s pronouncement that the “likelihood that asbestos exposure has made a substantial contribution increases when the exposure increases.” Id. The Seventh Circuit held that the exclusion of this document as a stand-alone piece of evidence did not support plaintiff’s theory, and that its exclusion was not an abuse of discretion5. Krik at 15-17.


1 The appellate court noted that it reviewed de novo the question whether the trial court properly applied Rule 702. The district court’s decision to exclude or admit expert witness opinion testimony is reviewed only for “abuse of discretion.” Krik at 4 (citing C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015). The party proponent has the burden of showing that the challenged expert witness testimony satisfies the Rule 702 statutory requirements, by a preponderance of evidence. Id. (citing Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

2 Krik v. Crane Co., 76 F. Supp. 3d 747, 753 (N.D. Ill. 2014) (citing Lindstrom v. A‐C Prod. Liab., 424 F.3d 488, 493 (6th Cir. 2005) (applying maritime law); Thacker v. UNR Indus., Inc., 603 N.E.2d 449, 457 (Ill. 1992) (Illinois law).

3 The panel noted that the Sixth and Ninth Circuits had ruled similarly. McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016); Lindstrom v. A‐C Prod. Liab., 424 F.3d 488, 493 (6th Cir. 2005) (“The requirement, however, is that the plaintiff make a showing with respect to each defendant that the defendant’s product was a substantial factor in plaintiff’s injury … . A holding to the contrary would permit imposition of liability on the manufacturer of any product with which a worker had the briefest of encounters on a single occasion.”).

5 Accord Rockman v. Union Carbide Corp., No. CV RDB‐16‐1169, 2017 WL 3022969, at *5 (D. Md. July 17, 2017); Bell v. Foster Wheeler Energy Corp., No. CV 15‐6394, 2016 WL 5847124, at *3, n.3 (E.D. La. Oct. 6, 2016), recon. denied, No. CV 15‐6394, 2017 WL 876983 (E.D. La. Mar. 6, 2017); Watkins v. Affinia Group, 2016‐Ohio‐2830, ¶ 37, 54 N.E.3d 174, 182; In reJames Wilson Assoc., 965 F.2d 160, 173 (7th Cir.1992); United States v. Dixon, 413 F.3d 520, 524–25 (5th Cir. 2005); Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 862 (E.D.N.C. 2015); Betz v. Pneumo Abex, LLC, 44 A.3d 27, 47, 55 n.35 (Pa. 2012); Bostic v. Georgia‐Pacific Corp., 439 S.W.3d 332, 356–57 (Tex. 2014).

Graced

September 5th, 2017

“With half-damp eyes I stared to the room
Where my friends and I spent many an afternoon
Where we together weathered many a storm
Laughin’ and singin’ till the early hours of the morn”
Bob Dylan, “Bob Dylan’s Dream” (1963)

* * * * * * * * * * * *

Well, not really singing so much as analyzing, calculating, discussing, debating, and occasionally laughing, too.

A few weeks ago, two good friends, Dr David Schwartz, and Dr Judi Steinman, came to visit me in New York. I seem to have known David and Judi, forever. David went to work for McCarter & English, shortly after finishing his post-doctoral training in neuropharmacology and neurophysiology, and his doctorate from Princeton in neuroscience. At McCarter, David worked initially on the Prozac cases, but after the 1992 Pamela Jean Johnson Christmas eve verdict in the silicone gel breast implant litigation, David jumped in to help McCarter and other lawyers understand the sketchy scientific evidence that was being proffered in support of claims by the “silicone sisters.” Judi, whose doctorate was in psychobiology and neuroscience from Rutgers, joined us on the science McCarter science team, a couple of years later. Together, we had the challenge and thrill of putting an end to a rather disreputable chapter in American tort litigation history, MDL 926, a.k.a. In re Silicone Gel Breast Implant Product Liability Litigation.

Ultimately, we all moved on from the McCarter firm. David went on to start a first-rate scientific consulting firm, Innovative Science Solutions (ISS) which serves the pharmaceutical, biotechnology, and medical device industries. As a principal in ISS, David worked with me in welding fume and other litigations, and we continue to collaborate on various projects. A few years ago, we co-produced a short film, “The Daubert Will Set Your Client Free.”

Judi moved to Hawaii, where, in 2003, she started BioTechnoLegal Services LLC, which provides scientific and medico-legal advice to lawyers in complex health-effects litigation. Judi joined the faculty of the University of Hawaii’s Department of Pharmaceutical Sciences, and for some years, she was the Program Coordinator for the University’s Master of Science program in Clinical Psychopharmacology. A couple of years ago, I gave a lecture by Skype to one of Judi’s classes at the University on meta-analysis in pharmacoepidemiology.

What a treat to have David and Judi in my living room, to talk and reminisce. David had planned to conduct an interview of me, but we might as well have conducted interviews of each other, and the varied roads we have traveled. David persisted in his plan to make me the interviewed, and he has now graced me twice by posting the interview to his firm’s website. David Schwartz, “Effective Use of Scientific Principles in the Courtroom: From Silicone to Talc and Beyond,” ISS Blog (Aug. 30, 2017)

Our discussion on a warm July afternoon made me nostalgic, but also pushed me into reflecting on how I came to live in the interdisciplinary world of law and science. Science had always been a part of my life. As a young boy, I lost myself in my grandfather’s Medical Clinics of North America, and my uncle’s college and medical school textbooks. There were several physicians in my family, and one of my favorites was my great uncle Sam, who was an orthopedic surgeon. Uncle Sam delighted my cousins and me with visits to the skeleton that dangled from a hook in his office. When I got my first microscope at age 11, Uncle Sam gave me a collection of tissue slides and taught me the difference between a sarcoma and a carcinoma. This was much more fun than trading baseball cards.

Another childhood treat was visiting my cousin Nan, whose parents had given her a subscription to “Things of Science.” Every month, she received a magical blue box with stuff – scientific stuff, with suggestions for experiments and observations. Whenever I had a chance, I would press Nan to get out the most recent box, and we would we become engrossed in the latest scientific marvel. Nan’s younger sister, Elena, a few years younger, recently reminded me how jealous she was when she was excluded from our scientific play.

In high school school, I had the good fortune to attend a National Science Foundation summer program to study physics. In college, I studied biology, and worked in the laboratory of a professor who was studying tubulin mutations and nuclear migration.

Watching the scientific process unfold through experiments and analysis was a huge thrill, but also, in some ways, a disappointment. Science is a long game, with lots of dead ends and missteps. After finishing university training in biological sciences, I stayed another year to complete a second major in philosophy, and entered graduate school to study philosophy. My experience in the laboratory ultimately made me more interested in the epistemology of scientific evidence and knowledge, as well as the implementation of scientific knowledge in policy decisions. Studying philosophy gave me plenty of opportunity to understand “meta-science,” but in the late 1970s, there were few opportunities for gainful employment. The tenure-track market was saturated by recent doctorates who had swelled the university departments during the Vietnam War. The department chairman, Arthur Smullyan, would send out regular memoranda to remind us that we were not likely going to find university-level teaching jobs. I recall sitting in Patty’s restaurant, on Sicard Street, New Brunswick, where some of my fellow graduate students and I, after finishing our qualifying exams, were drowning our sorrows in cheap beer and pizza. We all bemoaned our lack of job opportunities, and in a fit of exasperation, I suggested that we might form a consulting company. Having polished our skills in argumentation, I thought that there could be a way to eke out a living, much like Monty Python’s “Argument Clinic.” To my surprise, my colleagues pointed out that there already was such a profession. Naively, I asked which one, only to be confused why I had never before thought of law as a career. I took the LSAT, and the rest is history. When I started law school, I thought that my studying biology and philosophy were dead ends in my education, which shows how wrong I can be.

Lawsuit Magic – Turning Talcum into Wampum

August 27th, 2017

Last week, a Los Angeles jury, with little prior experience in giving away other people’s money, awarded Eva Echeverria $417,000,000 dollars, in compensatory and punitive damages.1 Pundits in the media, and from both sides of the bar, including your humble blogger, jumped in to offer their speculation about the cause of profligacy.2

In speaking to one reporter, I described the evidence against Johnson & Johnson in an earlier trial (Slemp) as showing that the company needed to engage more fully with the scientific evidence, and not reduce complex evidence to sound bites. Alas, no good deed goes unpunished; my comments were reduced to sound bites! The reporter quoted me in part as having said that the case was a tough one for the defense, but left out that I thought the case was tough because the defense will have a difficult time educating judges and juries in the scientific methods and judgment needed to reach a sound conclusion. The reporter suggested that I had opined that the evidence against J & J was “compelling,” when I had suggested the evidence was confounded and biased, and that J & J needed to take greater care in addressing study validity.3

Perhaps more interesting than my speculation is the guesswork of the plaintiffs’ counsel, who has had more experience with conjecture than I will ever enjoy. In an interview with an American Law Media reporter4, Allen Smith offered his view that three “new” pieces of evidence explain the Los Angeles hyper-verdict:

1. evidence that other companies selling consumer talcum power have begun to place ovarian cancer warnings on their packaging, within the few months;

2. evidence that two persons involved in the Cosmetic Industry Review, which has concluded that talcum powder is safe, had received payments from Johnson & Johnson for speaking engagements; and

3. evidence that Douglas Weed, a former National Cancer Institute epidemiologist, who testified for Johnson & Johnson as an expert witness in the Echeverria case, had been sanctioned in another, non-talc case in North Carolina, for lying under oath about whether he had notes to his expert report in that other case.

Smith claimed that the new evidence was “very compelling,” especially the evidence that Johnson & Johnson had presented “unbelievable and non-credible witnesses on an issue so important like this.”

Now, Smith was trial counsel. He was intimately involved in presenting the evidence, and in watching the jurors’ reactions. Nonetheless, I am skeptical that these three “bits” explain the jury’s extravagance.

The first “bit” seems completely irrelevant. The fact of another company’s having warned within months of the trial, and years after the plaintiff was diagnosed with ovarian cancer, suggests that the evidence was inflammatory without having any probative value. Feasibility of warning was not an issue. State of the art was an issue. In the Slemp trial, Graham Colditz testified that he had had his epiphany that talc causes ovarian cancer only two years ago, when he was instructed by plaintiffs’ counsel to formulate an opinion on the causal claim. That another company recently placed a warning to ward off the lawsuit industry is hardly evidence of industry or governmental standard. All that can really be said is that some companies have been bullied or scared into warnings by the Lawsuit Industry, in the hopes of avoiding litigation. Indeed, it is not at all clear how this bit of irrelevancy was admitted into evidence. All in all, this evidence of a recent warning, years after the plaintiff’s use of the defendant’s talcum powder seems quite out of bounds.

The second bit was simply more of the same inflammatory, scurrilous attacks on Johnson & Johnson. Having watched much of the Slemp trial, I can say that this was Allen Smith’s stock in trade. From media reports, he seemed to have succeeded in injecting his personal attacks on the most peripheral of issues into the Echeverria trial. Not everything in Slemp was collateral attack, but a lot was, and much of it was embarrassing to the legal system for having tolerated it.

The third bit of evidence about Dr. Weed’s having been sanctioned was news to me. A search on Westlaw and Google Scholar failed to find the sanctions order referred to by plaintiffs’ counsel. If anyone is familiar with the North Carolina case that gave rise to the alleged court sanction, please send me a copy or a citation.


1 Daniel Siegal, “J&J Hit With $417M Verdict In 1st Calif. Talc Cancer Trial,” Law360 (Aug. 21, 2017). The case was Echeverria v. Johnson & Johnson, case no. BC628228, Los Angeles Cty. Superior Court, California.

2 See Daniel Siegal, “Science No Salve For J&J In Talc Cases, $417M Verdict Shows,” Law360, Los Angeles (Aug. 22, 2017). See also Margaret Cronin Fisk & and Edvard Pettersson, “J&J Loses $417 Million Talc Verdict in First California Case,” Bloomberg News (Aug. 21, 2017).

3 Tina Bellon, “Massive California verdict expands J&J’s talc battlefield,” Reuters (Aug. 22, 2017); Tina Bellon, “Massive California verdict expands J&J’s talc battlefield,” CNBC (Aug. 22, 2017); Tina Bellon, “J&J’s talc woes expand with massive California verdict,” BNN Reuters (Aug. 22, 2017).

4 Amanda Bronstad, “New Evidence Seen as Key in LA Jury’s $417M Talc Verdict,” Law.com (Aug. 22, 2017).

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