TORTINI

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

Publication of Two Symposia on Scientific Evidence in the Law

August 2nd, 2015

The Journal of Philosophy, Science & Law bills itself as an on-line journal for the interdisciplinary exploration of philsophy, science, and law. This journal has just made its “Daubert Special” issue available at its website:

Jason Borenstein and Carol Henderson, “Reflections on Daubert: A Look Back at the Supreme Court’s Decision,” 15 J. Philos., Sci. & Law 1 (2015)

Mark Amadeus Notturno, “Falsifiability Revisited: Popper, Daubert, and Kuhn,” 15 J. Philos., Sci. & Law 5 (2015)

Tony Ward, “An English Daubert? Law, Forensic Science and Epistemic Deference,” 15 J. Philos., Sci. & Law 26 (2015)

Daniella McCahey & Simon A. Cole, “Human(e) Science? Demarcation, Law, and ‘Scientific Whaling’ in Whaling in the Antarctic” 15 J. Philos., Sci. & Law 37 (2015)

Back in January 30 – 31, 2015, the Texas Law Review called for a Conference on Science Challenges for Law and Policy, to focus on issues arising at intersection of science and law, with particular focus on issues arising in criminal justice, bioethics, and the environment. The Conference schedule is still available here. Conference papers addressed the nature of scientific disputes, the role of expertise in resolving such disputes, and the legal implementation and management of scientific knowledge. Some of the Conference papers are now available in the symposium issue of the 2015 Texas Law Review:

Rebecca Dresser, “The ‘Right to Try’ Investigational Drugs: Science and Stories in the Access Debate,” 93 Tex. L. Rev. 1631

David L. Faigman, “Where Law and Science (and Religion?) Meet,” 93 Tex. L. Rev. 1659 (2015)

Jennifer E. Laurin, “Criminal Law’s Science Lag: How Criminal Justice Meets Changed Scientific Understanding,” 93 Tex. L. Rev. 1751 (2015)

Elizabeth Fisher, Pasky Pascual & Wendy Wagner, “Rethinking Judicial Review of Expert Agencies,” 93 Tex. L. Rev. 1681 (2015)

Sheila Jasanoff, “Serviceable Truths: Science for Action in Law and Policy,” 93 Tex. L. Rev. 1723 (2015)

Thomas O. McGarity, “Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma,” 93 Tex. L. Rev. 1783 (2015)

Jennifer L. Mnookin, “Constructing Evidence and Educating Juries: The Case for Modular, Made-In-Advance Expert Evidence About Eyewitness Identifications and False Confessions,” 93 Tex. L. Rev. 1811 (2015)

Papantonio on Fire — Slander & Slime

August 1st, 2015

Michael Mann’s lawsuit against the Competitive Enterprise Institute (CEI) for defamation is an interesting case.  SeeClimategate on Appeal” (Aug. 17, 2014). Whatever you think of Mann’s research, the charges of the CEI, calling Mann’s work fraudulent were outrageous. Mann may have a political agenda, and his scientific work may be flawed and invalid, but that does not make it fraudulent. If the CEI has evidence that Mann fabricated or falsified data, then the charge would be appropriate, but so far, nothing to support the charge has emerged. In its pleadings, the CEI averred that it used “fraudulent” as a metaphor or something like that.

The excesses of the CEI are not unique to the climate change debate. One website features an interview with Mike Papantonio, an attorney for the litigation industry, about claims that the Weinberg Group spreads scientific disinformation. “Scientists for SaleRT Question More (Sept. 17, 2014). The Weinberg Group describes itself as providing

“biotech, medical device and pharmaceutical consulting services to companies of every size on every continent, supplying them with viable and efficient drug development pathways and compliance solutions.”

Weinberg Group Website. According to Papantonio and his media facilitator, Thom Hartmann, the Weinberg Group is a group of “professional liars and huxters,” who will “cook the books,” to show that chemicals or tobacco do not cause cancer. Papantonio, however, never delivers any evidence that the Weinberg Group has falsified or fabricated evidence. He, Papantonio, does not like the Weinberg Group’s interpretation of scientific evidence in his legal cases, and its persistence in revealing the weaknesses of the litigation industry’s litigation and regulatory claims.

A shortened version of Papantonio’s irresponsible name calling can be found on YouTube. Hartmann & Papantonio, “C-8 and the Business of Misinformation” (Sept. 16, 2014). Papantonio appears to have used his media appearances to advance the litigation industry’s cause in MDL 2433, In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation. This MDL aggregates cases of claimed health effects from exposure to perfluorooctanoic acid (PFOA), also known as C8, which is used in making du Pont’s Teflon.

Papantonio’s rants and defamatory screeds illustrate some of the litigation industry’s rhetorical strategies:

  1. dichotomize the world into safe and harmful;
  1. by semantic fiat, declare anything not proven safe as harmful;
  1. assert that the defense of any substance, exposure, drug, etc., which is not proven absolutely safe, is deliberate infliction of harm upon the public; and
  1. reclassify any statement that a substance, known to cause harm under some circumstance, doesn’t cause harm under every other circumstance as “fraudulent.”

Like the CEI, Papantonio stretches the English language and common decency beyond its ultimate tensile stress. Certainly, scientists should participate in litigation and regulatory proceedings, and their views should be given close scrutiny. Papantonio’s interview statements, however, exemplify a pathology of thought and expression that also exceeds our tolerance for discourse in a free society; it is slime and slander.

Events, Outcomes, and Effects – Media Responsibility to Be Accurate

July 29th, 2015

Thanks to Dr. David Schwartz for the pointer to a story, by a Bloomberg, Reuters health reporter, on a JAMA online-first article on drug “side effects.” See David Schwartz, “Lack of compliance on ADR Reporting: Some serious drug side effects not told to FDA within 15 days” (July 29, 2015).

The reporter, Lisa Rapaport, wrote about an in-press article in JAMA Internal Medicine, about delays in drug company mandatory reporting. Lisa Rapaport, “Some serious drug side effects not told to FDA within 15 days,” (July 27, 2015). The article that gave rise to this media coverage, however, was not about side effects, or direct effects, for that matter; it was about adverse events. See Paul Ma, Iván Marinovic, and Pinar Karaca-Mandic, “Drug Manufacturers’ Delayed Disclosure of Serious and Unexpected Adverse Events to the US Food and Drug Administration,” JAMA Intern. Med. (published online July 27, 2015) (doi:10.1001/jamainternmed.2015.3565).

The word “effect[s]” occurs 10 times in Rapaport’s news item; and yet, that word does not appear at all in the JAMA article, except in a footnote that points to a popular media article. And Reuters is the source of the footnoted popular media article.[1] Apparently, Reuter’s reporters are unaware of the difference between an event and an effect. The companies’ delay in reporting apparently made up 10% of all adverse event reports, but spinning the story as though it were about adverse effects makes the story seem more important and the delays more nefarious.

Why would a reporter covering a medical journal article not be familiar with the basic terminology and concepts at issue? The FDA’s description of its adverse event system makes clear that adverse events have nothing to do with “effects.” The governing regulations for post-marketing reporting of adverse drug experiences are even more clear that adverse events or experiences are not admissions or conclusions of causality. 21 C.F.R. 314.80(a), (k). See also ICH Harmonised Tripartite Guideline for Good Clinical Practice E6(R1) (10 June 1996).

Perhaps this is an issue with which Sense about Science USA can help? Located in the brain basket of America – Brooklyn, NY – Sense about Science is:

“a non-profit, non-partisan American branch of the British charitable trust, Sense About Science, which was founded in 2003 and which grew to play a pivotal role in promoting scientific understanding and defending scientific integrity in the UK and Europe.”

One of the organization’s activities is offering media help in understanding scientific and statistical issues. Let’s hope that they take the help being offered.


[1] S. Heavey, “FDA warns Pfizer for not reporting side effects” (June 10, 2010).

California Actos Decision Embraces Relative-Risk-Greater-Than-Two Argument

July 28th, 2015

A recent decision of the California Court of Appeal, Second District, Division Three, continues the dubious state and federal practice of deciding important issues under cover of unpublished opinions. Cooper v. Takeda Pharms. America, Inc., No. B250163, 2015 Cal. App. Unpub. LEXIS 4965 (Calif. App., 2nd Dist., Div. 3; July 16, 2015). In Cooper, plaintiff claimed that her late husband’s bladder cancer was caused by defendant’s anti-diabetic medication, Actos (pioglitazone). The defendant moved to strike the expert witness testimony in support of specific causation. The trial judge expressed serious concerns about the admissibility of plaintiff’s expert witnesses on specific causation, but permitted the trial to go forward. After a jury returned its verdict in favor of plaintiff, the trial court entered judgment for the defendants, on grounds that the plaintiff lacked admissible expert witness testimony.

Although a recent, large, well-conducted study[1] failed to find any meaningful association between pioglitazone and bladder cancer, there were, at the time of trial, several studies that suggested an association. Plaintiff’s expert witnesses, epidemiologist Dr. Alfred Neugut and bladder oncologist Dr. Norm Smith interpreted the evidence to claim a causal association, but both conceded that there were no biomarkers that allowed them to attribute Cooper’s cancer to pioglitazone. The plaintiff also properly conceded that identifying a cause of the bladder cancer was irrelevant to treating the disease. Cooper, 2015 Cal. App. Unpub. LEXIS 4965, at *13. Specific causation was thus determined by the so-called process of differential etiology, with the ex ante existence of risk substituting for cause, and using risk exposure in the differential analysis.

The trial court was apparently soured on Dr. Smith’s specific causation assessment because of his poor performance at deposition, in which he demonstrated a lack of understanding of Cooper’s other potential exposures. Smith’s spotty understanding of Cooper’s actual and potential exposures and other risks made any specific causation assessment less than guesswork. By the time of trial, Dr. Smith and plaintiff’s counsel had backfilled the gaps, and Smith presented a more confident analysis of Cooper’s exposures and potentially competing risks.

Cooper had no family history of bladder cancer, no alcohol consumption, and no obvious exposure to occupational bladder carcinogens. His smoking history would account for exposure to a known bladder carcinogen, cigarette smoke, but Cooper’s documented history was of minor tobacco use, and remote in time. Factually, Cooper’s history was suspect and at odds with his known emphysema. Based upon this history, along with their causal interpretation of the Actos bladder cancer association, and their quantitative assessment that the risk ratio for bladder cancer from Actos was 7.0 or higher for Mr. Cooper (controlled for covariate, potential confounders), the plaintiff’s expert witnesses opined that Actos was probably a substantial factor in causing Mr. Cooper’s bladder cancer. The court did not examine the reasonableness of Dr. Smith’s risk ratios, which seem exorbitant in view of several available meta-analyses.[2]

The court stated that under the applicable California law of “substantial factor,” the plaintiff’s expert witness, in conducting a differential diagnosis, need not exclude every other possible cause of plaintiff’s disease “with absolute certainty.” Cooper, at *41-42. This statement leaves unclear and ambiguous whether the plaintiff’s expert witness must (and did in this case) rule out other possible causes with some level of certitude less than “absolute certainty,” such as reasonable medical certainty, or perhaps reasonable probability. Dr. Smith’s testimony, as described, did not attempt to go so far as to rule out smoking as “a cause” of Cooper’s bladder cancer; only that the risk from smoking was a lower order of magnitude than that for Actos. In Dr. Smith’s opinion, the discrepancy in magnitude between the risk ratios for smoking and Actos allowed him to state confidently that Actos was the most substantial risk.

Having estimated the smoking-related increased risk to somewhere between 0 and 100%, with the Actos increased risk at 600% or greater, Dr. Smith was able to present an admissible opinion that Actos was a substantial factor. Of course, this all turns on the appellate court’s acceptance of risk, of some sufficiently large magnitude, as evidence of specific causation. In the Cooper court’s words:

“The epidemiological studies relied on by Dr. Smith indicated exposure to Actos® resulted in hazard ratios for developing bladder cancer ranging from 2.54 to 6.97.18 By demonstrating a relative risk greater than 2.0 that a product causes a disease, epidemiological studies thereby become admissible to prove that the product at issue was more likely than not responsible for causing a particular person’s disease. “When statistical analyses or probabilistic results of epidemiological studies are offered to prove specific causation . . . under California law those analyses must show a relative risk greater than 2.0 to be ‘useful’ to the jury. Daubert v. Merrell Dow Pharmaceuticals Inc., 43 F.3d 1311, 1320 (9th Cir.), cert. denied 516 U.S. 869 (1995) [Daubert II]. This is so, because a relative risk greater than 2.0 is needed to extrapolate from generic population-based studies to conclusions about what caused a specific person’s disease. When the relative risk is 2.0, the alleged cause is responsible for an equal number of cases of the disease as all other background causes present in the control group. Thus, a relative risk of 2.0 implies a 50% probability that the agent at issue was responsible for a particular individual’s disease. This means that a relative risk that is greater than 2.0 permits the conclusion that the agent was more likely than not responsible for a particular individuals disease. [Reference Manual on Scientific Evidence (Federal Judicial Center 2d ed. 2000) (“Ref. Manual”),] Ref. Manual at 384, n. 140 (citing Daubert II).” (In re Silicone Gel Breast Implant Prod. Liab. Lit. (C.D. Cal. 2004) 318 F.Supp.2d 879, 893; italics added.) Thus, having considered and ruled out other background causes of bladder cancer based on his medical records, Dr. Smith could conclude based on the studies that it was more likely than not that Cooper’s exposure to Actos® caused his bladder cancer. In other words, because the studies, to varying degrees, adjusted for race, age, sex, and smoking, as well as other known causes of bladder cancer, Dr. Smith could rely upon those studies to make his differential diagnosis ruling in Actos®—as well as smoking—and concluding that Actos® was the most probable cause of Cooper’s disease.”

Cooper, at *78-80 (emphasis in the original).

Of course, the epidemiologic studies themselves are not admissible, regardless of the size of the relative risk, but the court was, no doubt, speaking loosely about the expert witness opinion testimony that was based upon the studies with risk ratios greater than two. Although the Cooper case does not change California law’s facile acceptance of risk as a substitute for cause, the case does base its approval of plaintiff’s expert witness’s attribution as turning on the magnitude of the risk ratio, adjusted for confounders, as having exceeded two. The Cooper case leaves open what happens when the risk that is being substituted for cause is a ratio ≤ 2.0. Some critics of the risk ratio > 2.0 inference have suggested that risk ratios greater than two would lead to directed verdicts for plaintiffs in all cases, but this suggestion requires demonstrations of both the internal and external validity of the studies that measure the risk ratio, which in many cases is in doubt. In Cooper, the plaintiff’s expert witnesses’ embrace of a high, outlier risk ratio for Actos, while simultaneously downplaying competing risks, allowed them to make out their specific causation case.


[1] James D. Lewis, Laurel A. Habel, Charles P. Quesenberry, Brian L. Strom, Tiffany Peng, Monique M. Hedderson, Samantha F. Ehrlich, Ronac Mamtani, Warren Bilker, David J. Vaughn, Lisa Nessel, Stephen K. Van Den Eeden, and Assiamira Ferrara, “Pioglitazone Use and Risk of Bladder Cancer and Other Common Cancers in Persons With Diabetes,” 314 J. Am. Med. Ass’n 265 (2015) (adjusted hazard ratio 1.06, 95% CI, 0.89-1.26).

[2] See, e.g., R.M. Turner, et al., “Thiazolidinediones and associated risk of bladder cancer: a systematic review and meta-analysis,” 78 Brit. J. Clin. Pharmacol. 258 (2014) (OR = 1.51, 95% CI 1.26-1.81, for longest cumulative duration of pioglitazone use); M. Ferwana, et al., “Pioglitazone and risk of bladder cancer: a meta-analysis of controlled studies,” 30 Diabet. Med. 1026 (2013) (based upon 6 studies, with median follow-up of 44 months, risk ratio = 1.23; 95% CI 1.09-1.39); Cristina Bosetti, “Cancer Risk for Patients Using Thiazolidinediones for Type 2 Diabetes: A Meta-Analysis,” 18 The Oncologist 148 (2013) (RR = 1.64 for longest exposure); Shiyao He, et al., “Pioglitazone prescription increases risk of bladder cancer in patients with type 2 diabetes: an updated meta-analysis,” 35 Tumor Biology 2095 (2014) (pooled hazard ratio = 1.67 (95% C.I., 1.31 – 2.12).

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.