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

Contra Parascandola’s Reduction of Specific Causation to Risk

August 22nd, 2014

Mark Parascandola is a photographer who splits his time between Washington DC, and Almeria, Spain.  Before his career in photography, Parascandola studied philosophy (Cambridge), and did graduate work in epidemiology (Johns Hopkins, MPH). In 1997 to 1998, he studied the National Cancer Institute’s role in determining that smoking causes some kinds of cancer.  He went on to serve as a staff epidemiologist at NCI, at its Tobacco Control Research Branch, in the Division of Cancer Control and Population Sciences (DCCPS).

Back in the 1990s, Parascandola wrote an article, which is a snapshot and embellishment of arguments given by Sander Greenland, on the use and alleged abuse of relative risks to derive a “probability of causation.” See Mark Parascandola, “What’s Wrong with the Probability of Causation?” 39 Jurimetrics J. 29 (1998)[cited here are Parascandola]. Parascandola’s article is a locus of arguments that have recurred from time to time, and worth revisiting.

Parascandola offers an interesting historical factoid, which is a useful reminder to those who suggest that the RR > 2 argument was the brainchild of lawyers:  The argument was first suggested in 1959, by Dr. Victor P. Bond, a physician with expertise in medical physics at the Brookhaven National Laboratory.  See Parascandola at 31 n. 6 (citing Victor P. Bond, The Medical Effects of Radiation (1960), reprinted in NACCA 13th Annual Convention 1959, at 126 (1960).

Unfortunately, Parascandola is a less reliable reporter when it comes to the judicial use of the relative risk greater than two (RR > 2) argument.  He argues that Judge Jack Weinstein opposed the RR > 2 argument on policy grounds, when in fact, Judge Weinstein rejected the anti-probabilistic argument that probabilistic inference could never establish specific causation, and embraced the RR > 2 argument as a logical policy compromise that would allow evidence of risk to substitute for specific causation in a limited fashion. Parascandola at 33-34 & n.20. Given Judge Weinstein’s many important contributions to tort and procedural law, and the importance of the Agent Orange litigation, it is worth describing Judge Weinstein’s views accurately. See In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785, 817, 836 (E.D.N.Y. 1984) (“A government administrative agency may regulate or prohibit the use of toxic substances through rulemaking, despite a very low probability of any causal relationship.  A court, in contrast, must observe the tort law requirement that a plaintiff establish a probability of more than 50% that the defendant’s action injured him. … This means that at least a two-fold increase in incidence of the disease attributable to Agent Orange exposure is required to permit recovery if epidemiological studies alone are relied upon.”), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988); see also In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223, 1240, 1262 (E.D.N.Y. 1985)(excluding plaintiffs’ expert witnesses), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).[1]

Parascandola’s failure to cite and describe Judge Weinstein’s views raises some question of the credibility of his analyses, and his assertion that “[he] will demonstrate that the PC formula is invalid in many situations and cannot fill the role it is given.” Parascandola at 30 (emphasis added).

Parascandola describes basic arithmetic of probability of causation (PC) in terms of a disease for which we “expect cases” and for which we have “excess cases.” The rate of observed cases in an exposed population divided by the rate of expected cases in an unexposed population provides an estimate of the population relative risk (RR). The excess cases can be obtained simply from the difference between observed cases in the exposed group and the expected cases in the unexposed group.  The attributable fraction is the ratio of excess cases to total cases.

The probability of causation “PC” = 1 – (1/RR).

Heterogeneity Yields Uncertainty Argument

The RR describes a group statistic, and an individual’s altered risk will almost certainly not be exactly equal to the group’s average risk. Parascandola notes that sometimes this level of uncertainty can be remedied by risk measurements for subgroups that better fit an individual plaintiff’s characteristics.  All true, but this is hardly an argument against RR > 2.  At best, the heterogeneity argument is an expression of inference skepticism of the sort that led Judge Weinstein to accept RR > 2 as a reasonable compromise. The presence of heterogeneity of this sort simply increases the burden upon plaintiff to provide RR statistics from studies that very tightly resemble plaintiff in terms of exposure and other characteristics.

Urning for Probablistic Certainty

Parascandola describes how the PC formula arises from a consideration of the “urn model” of disease causation.  Suppose in group of sufficient size there were expected 200 stomach cancer cases within a certain time, but 300 were observed. We can model the situation with an urn of 300 marbles, 200 of which are green, and 100 are red. Blindfolded or colorblind, we pull a single marble from the urn, and we have only a 1/3 chance of obtaining a red, “excess” marble case. Parascandola at 36-37 (borrowing from David Kaye, “The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation,” 7 Am. Bar Fdtn. Res. J. 487, 501 (1982)).

Parascandola argues that the urn model is not necessarily correct.  Causation cannot always be reduced to a single cause. Complex etiologic mechanisms and pathways are common.  Interactions between and among causes frequently occur.  Biological phenomena are sometimes “over-determined.” Parascandola asks us to assume that some of the non-excess cases are also “etiologic cases,” which were caused by the exposure but which would not have occurred but for the exposure.  Id. at 37. Borrowing from Greenland, Parascandola asserts that “[a]ll excess cases are etiologic cases, but not vice versa.” Id. at 38 & n.37 (quoting from Sander Greenland & James M. Robins, “Conceptual Problems in the Definition and Interpretation of Attributable Fractions,” 128 Am. J. Epidem. 1185, 1185 (1988)).

Parascandola’s argument, if accepted, proves too much to help plaintiffs who hope to establish specific causation with evidence of increased risk. His argument posits a different, more complex model of causation, for which plaintiffs usually have no evidence.  (If they did have such evidence, then they would have nothing to fear in the assumptions of the simplistic urn model; they could rebut those assumptions.) Parascandola’s argument pushes the speculation envelope by asking us to believe that some “non-excess” cases are etiologic cases, but providing no basis for identifying which ones they are.  Unless and until such evidence is forthcoming, Parascandola’s argument is simply uncontrolled multi-leveled conjecture.

Again borrowing from Sander Greenland’s speculation, Parascandola advances a variant of the argument above by suggesting that an exposure may not increase the overall number of excess cases, but that it may accelerate the onset of the harm in question. While it is true that the element of time is important, both in law and in life, the invoked speculation can be, and usually is, tested by time windows or time series analyses in observational epidemiology and clinical trials.  The urn model is “flat” with respect to the temporal dimension, but if plaintiffs want to claim acceleration, then they should adduce Kaplan-Meier curves and the like.  But again, with the modification of the time dimension, plaintiffs will still need hazard ratios or other risk ratios greater than two to make out their case, unless there is a biomarker/fingerprint of individual causation. The introduction of the temporal element is important to an understanding of risk, but Parascandola’s argument does not help transmute evidence of risk in a group to causation in an individual.

Joint Chancy Causation

In line with his other speculative arguments, Parascandola asks:  what if a given cancer in the exposed group is the product of two causes rather than due to one or another of the two causes? Parascandola at 40. This question restates the speculative argument in only slightly different terms.  We could multiply the possible causal sets by suggesting that the observed effect resulted from one or the other or both or none of the causes.  Parascandola calls this “joint chancy causation,” but he manages to show only that the inference of causation from prior chance or risk is a very chancy (or dicey) step in his argument.  Parascandola argues that we should not assume that the urn model is true, when multiple causation models are “plausible and consistent” with other causal theories.

Interestingly, this line of argument would raise the burden upon plaintiffs by requiring them to specify the applicable causal model in ways that (1) they often cannot, and (2) they now, under current law, are not required to do.


In the end, Parascandola realizes that he has raised, not lowered, the burden for plaintiffs.  His counter is to suggest, contrary to law and science, that “the existence of alternative hypotheses should not prevent the plaintiff’s case from proceeding.” Parascandola at 41 n.50.  Because he says so. In other words, Parascandola is telling us that irrespective of how poorly established a hypothesis is, or of how speculative an inference is, or of the existence and strength of alternative hypotheses,

“This trial must be tried.”

W.S. Gilbert, Trial by Jury (1875).

With bias of every kind, no doubt.

That is not science, law, or justice.

[1] An interesting failure or lack of peer review in a legal journal.


Climategate on Appeal

August 17th, 2014

Michael Mann, a Professor of Meteorology at Penn State University, studies and writes about climate change. When the email servers of the University of East Anglia were hacked in 2009, Mann’s emails were among those used to suggest that there was a conspiracy to suppress evidence inconsistent with climate change.

Various committees investigated allegations of scientific malfeasance, which has come to be known as “climategate”; none found evidence of scientific misconduct. Some of the committees, however, did urge that the investigators engage in greater sharing of their supporting data, methods, and materials.

In February 2010, Penn State issued a report of its investigation, which found there was “no credible evidence that Dr. Mann had or has ever engaged in, or participated in, directly or indirectly, any actions with an intent to suppress or to falsify data.” A Final Investigation Report, from Penn State in June 2010, further cleared Mann.

In the United Kingdom, a Parliamentary Committee on Science and Technology published a report, in March 2010, finding that the criticisms of the Climate Research Unit (CRU) at the University of East Anglia (UEA) were not well founded. A month later, the UEA issued a Report of an International Panel, which found no evidence of deliberate scientific malpractice. Another UEA report, the Independent Climate Change Email Review report, found no reason to doubt the honesty of the scientists involved. An official UK governmental report, in September 2010, similarly cleared the climate researchers of wrongdoing.

The view from this side of the Atlantic largely exonerated the climate researchers of any scientific misconduct. An EPA report, in July 2010, dismissed the email content as merely a “candid discussion” among scientists collaborating on complex data. An independent review by the Department of Commerce’s Inspector General found no “inappropriate” manipulation of data in the emails. The National Science Foundation reported, in August 2011, that it could discern no research misconduct in the climategate emails.

Rand Simberg, an adjunct scholar with the Competitive Enterprise Institute (CEI) wrote a blog post, “The Other Scandal in Unhappy Valley” (July 13, 2012), in which he referred to Mann and his research as “wrongdoing” and “hockey-stick deceptions.” Simberg describes the hacked UEA emails as having “revealed” that Mann “had been engaging in data manipulation to keep the blade on his famous hockey-stick graph.” Similarly, Simberg states that “many of the luminaries of the ‛climate science’ community were shown to have been behaving in a most unscientific manner.”

The current on-line version of the Simberg’s blog post ends with a note[1]:

*Two inappropriate sentences that originally appeared in this post have been removed by the editor.

A post by Mark Steyn on the National Review online website called Mann’s hockey stick “fraudulent.” A subsequent National Review piece offered that in “common polemical usage, ‛fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.”

Legal counsel for Penn State wrote the Competitive Enterprise Institute, in August 2012, to request an apology from Simberg and the CEI, and a retraction of Simberg’s blog post. I am not sure what was in the two, subsequently removed, “inappropriate sentences” in Simberg’s piece were, or when the sentences were removed, but Dr. Mann, represented by Cozen O’Connor, went on to  sue Mark Steyn, Rand Simberg, the CEI, and National Review, for libel, in October 2012, in the Superior Court of the District of Columbia. Further publications led to an Amended Complaint in 2013.

Mann obviously does not like being called the author of fraudulent and intellectually bogus work, and he claims that the publications by Simberg and Steyn are libelous as “allegations of academic fraud.”

The D.C. Superior Court denied defendants’ motion to dismiss, setting up interlocutory appeals to the D.C. Court of Appeals, which is the highest court for the District. The appellate court allowed an interlocutory appeal, with a schedule that calls for appellants’ briefs by August 4, 2014. Dr. Mann’s brief is due by September 3, 2014, and appellants’ reply briefs by September 24, 2014.  The Court set consideration of the appeal for its November calendar.

Defendants CEI and National Review filed their opening briefs last week. This week, on August 11, 2014, the Cato Institute, Reason Foundation, Individual Rights Foundation and Goldwater Institute filed a brief in support of CEI and National Review. Other amici who filed in support of the defendants are Mark Steyn, the District of Columbia, and the Alliance Defending Freedom, and the Electronic Frontier Foundation.

I am not sure that all the epithets point to academic fraud.  Some of the adjectives, such as “bogus” do not really connote scienter or intent to deceive.  The use of the adjective “fraudulent,” however, does connote intentional falsity, designed to mislead. Deceit and intent to mislead seem to be at the heart of an accusation of fraud.

The defendants’ arguments, and their amici, on appeal predictably rely heavily upon the First Amendment to protect their speech, but surprisingly, they characterize labeling someone’s research as “fraudulent” as merely “hyperbolic” or “robust” debate and polemics.

Some of the defendants’ other arguments are even more surprising.  For instances, Cato correctly points out that “Courts are ill-suited to officiate scientific debate to determine ‛truth’ or ‛falsity’.” True, but officiate they must in criminal fraud, intellectual property, product liability, and in securities fraud cases, as well as many other kinds of litigations. Cato admonishes that the “[e]volution of scientific thought over time highlights the danger of courts[’] determining ‛truth’ in public debate.” Dangerous indeed, but a commonplace in state and federal courts throughout the land.

Is this Think Tank Thuggery or robust free speech? The use of “fraudulent” seems to be an accusation, and it would have much more “robust” to have had a careful documentation of what exactly was Professor Mann’s supposed deviation from a scientific standard of care.

[1] The words “fraud” and “fraudulent” do not appear in the current on-line version of Simberg’s post.

Homeopathy on Trial

August 7th, 2014

As Tim Minchin put it in his poem, “Storm,” an alternative medicine is either not shown to be effective or has been shown to be ineffective; because if an alternative medicine has been shown to be effective, then we call it “medicine.”

Standard Homeopathic Company makes and sells various so-called alternative medicine remedies. Plaintiffs filed suit against Standard for misleadingly claiming efficacy, and sought class action certification.  Class actions have become increasingly difficult to maintain in federal court, but this one seems like a worthy candidate. The plaintiffs, in their Third Amended Complaint, alleged that “there is ‘little evidence’ that homeopathy is effective.” Usually, plaintiffs are perfectly happy with just a ‘little evidence’ to support claims for many dollars, but here they complained about being duped by homeopathy and its claims of dubious validity.

On August 1, 2014, District Judge Dolly Gee certified a class on behalf of purchasers of defendants’ homeopathic remedies (Calms Forte, Teething Tablets, Migraine Headache Relief, Colic Tablets, etc.) from February 2008 to the present. Allen v. Hyland’s Inc., 2:12-cv-01150, 2014 WL 3819713 (C.D. Calif. Aug. 1, 2014). The win was no doubt as sweet as the sugar pills that they had bought.

Standard Homeopathic is represented by Norton Rose Fulbright, which also represents ethical drug manufacturers.  Curiously, the defense lawyers must not have seen the substantial potential conflict of interest in representing a homeopathic manufacturer. Watching defendants’ attempts to defend the truth of their advertised claims for homeopathic remedies should make for an interesting litigation to watch.


The Illinois Medical Studies Act and Access to Underlying Research Data

August 2nd, 2014

In the course of the welding fume litigation, defense counsel sought underlying data and documentation from a study published by Dr. Brad Racette and others, on their observations of Alabama welders[1]. The Alabama study, with its duplicate publication, aroused counsel’s suspicion for several reasons, not the least of which was that plaintiffs’ counsel had participated in creating the study by providing their clients as participants at screenings to be conducted by Dr. Racette and his colleagues.  According to the disclosure in the Neurology article, the study was

“[s]upported by NIH grants K23NS43351 and NS41509, the Greater St. Louis Chapter of the American Parkinson’s Disease Association, and the Welder Health Fund. The Welder Health Fund was created by Gulf States Trial Attorneys to support medical–legal screening of welders for Parkinson disease. No author has taken any money personally related to this research.”

A little research showed that the referenced NIH grants were not for this specific study, which was a creation of the litigation industry d/b/a the Welder Health Fund.

Defense counsel directed subpoenas to both Dr. Racette and his institution, Washington University St. Louis, for the study protocol, underlying data, data codes, and statistical analyses.  After a long discovery fight, the MDL court largely enforced the subpoenas.  See, e.g., In re Welding Fume Prods. Liab. Litig., MDL 1535, 2005 WL 5417815 (N.D. Ohio Oct. 18, 2005) (upholding defendants’ subpoena for protocol, data, data codes, statistical analyses, and other things from Dr. Racette author of study on welding and parkinsonism).

Dr. Racette continued the controversy with a one-sided editorial in Neurology, which he wrote along with his legal counsel from the subpoena contest. Brad A. Racette, Ann Bradley, Carrie A. Wrisberg, and Joel S. Perlmutter, “The Impact of Litigation on Neurologic Research,” 67 Neurology 2124 (2006) [“Litigation Impact”]. Defense counsel wrote a response, which was limited due to the nature of the 400-word cap on letters to the editor. Nathan A. Schachtman, “The Impact of Litigation on Neurologic Research,” 69 Neurology 495 (2007).  A slightly more expansive response was published on the TortsProf blog. Schachtman, “Letter: Litigation and Research” (April 15, 2007).

The debate continued in October 2007, when Dr. Brad Racette and I were invited by the Committee on Science, Technology, and Law of the National Academies of Science to discuss litigation and compelled access to underlying research data.  Dr. Racette complained about how disruptive subpoenas were into the operation of his research.  The Committee members appeared unimpressed by the alleged burdens when they realized that Racette’s research grew out of medico-legal screenings organized, conducted, and paid for by plaintiffs’ lawyers, and that it had been over 30 years since the National Research Council urged scientists to plan proactively for sharing data from their research, and that current National Institutes of Health guidelines require such a plan[2]. Most members of the Committee expressed the view that nothing untoward had occurred with the subpoena of Dr. Racette’s underlying data.

The fight over Dr. Racette’s data had consequences in the courtroom.  Defense expert witnesses were able to see how Dr. Racette was able to generate the appearance of large increased prevalence of “parkinsonism” (idiosyncratically defined and ascertained), which appearance was at odds with the vast data from analytical epidemiologic studies from around the world. James Mortimer, Amy Borenstein, and Laurene Nelson, “Associations of welding and manganese exposure with Parkinson disease: Review and meta-analysis,” 79 Neurology 1174 (2012) (reporting a statistically significant decreased risk of Parkinson’s disease among welding tradesmen).  Remarkably, the plaintiffs’ counsel, who had sponsored the Alabama study, did not show the underlying Racette data and materials to their expert witnesses.  Within a short time after the subpoena was enforced, plaintiffs’ counsel mostly withdrew the epidemiologic component of their cases. Racette’s study ceased to play a major role in the plaintiffs’ claims. The debate over access to underlying data continues, both for clinical trials and for observational studies[3].

In “Litigation Impact,” Racette and colleagues offered specific remedial suggestions concerning the access of data.  One suggestion is to prohibit all data access categorically. Ironically, Racette’s suggestion run contrary to the widespread view that clinical trial data must be shared. Here is how Racette presents his suggestion:

“Stronger, more comprehensive federal legislation recognizing a research scholar privilege and ensuring that research data are uniformly protected against disclosure in all states is essential to advancing medical science.

Protections for study participants and researchers against disclosure of study data could be modeled after provisions such as those set forth in the Illinois Medical Studies Act. This Act specifically designates medical research study data and protocols as protected and prohibits the disclosure of research data obtained as part of a medical study.40,41 Enforcement includes a potential misdemeanor conviction for any person disclosing medical study data. Such legislation must strike a critical balance between the rights of industry to defend itself and the rights of researchers.”

Litigation Impact at 2128.

Is Racette correct that Illinois Medical Studies Act prevents disclosure of underlying research study data?

The claim seems dubious, but the Act is hardly a model of clarity:

Sec. 8-2101. Information obtained. All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner’s professional competence, or other data of the Illinois Department of Public Health, local health departments, the Department of Human Services (as successor to the Department of Mental Health and Developmental Disabilities), the Mental Health and Developmental Disabilities Medical Review Board, Illinois State Medical Society, allied medical societies, health maintenance organizations, medical organizations under contract with health maintenance organizations or with insurance or other health care delivery entities or facilities, tissue banks, organ procurement agencies, physician-owned insurance companies and their agents, committees of ambulatory surgical treatment centers or post-surgical recovery centers or their medical staffs, or committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, or their designees (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services, except that in any health maintenance organization proceeding to decide upon a physician’s services or any hospital or ambulatory surgical treatment center proceeding to decide upon a physician’s staff privileges, or in any judicial review of either, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.
(Source: P.A. 92-644, eff. 1-1-03.)

Ill.Ann.Stat. ch. 735 § 5 (Code of Civil Procedure)/8–2101, et seq. (Medical Studies).

Racette’s suggestion that the Act protects the underlying data from research studies is not supported by reliable precedent.  Plaintiffs’ lawyers, including lawyers who worked with Dr. Racette in the welding litigation, have objected to discovery on the basis of the Act, but the objections were apparently not further litigated. See Videotape Deposition of Paul A. Nausieda, M.D. in Boren v. A.O. Smith Corp., Circuit Court of Illinois, Third Judicial Circuit (Dec. 22, 2004).

The Act itself has no ostensible connection to protecting the underlying data in an epidemiologic study.  Niven v. Siquiera, 109 Ill. 2d 357, 487 N.E.2d 937 (1985) (“the purpose of the Act is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease”); Matviuw v. Johnson, 70 Ill. App.3d 481, 486, 388 N.E.2d 795, 799 (1st Dist. 1979). The Act protects peer-review or quality-control committees that supervise overall medical care with a view to improving the quality and standard of care, and reducing morbidity and mortality of patients. The privilege is designed to permit persons to speak freely to committees, and to protect their self-evaluative deliberations. Id.; Walker v. Alton Memorial Hospital Ass’n, 91 Ill. App.3d 310, 314, 414 N.E.2d 850, 853 (5th Dist. 1980). For a document to fall within the scope of the Act, it must be “generated specifically for the use of a peer-review committee.” Webb v. Mt. Sinai Hospital and Medical Center of Chicago, Inc., 807 N.E.2d 1026, 1033 (Ill. App. Ct. 2004)(internal citation omitted).

Given the language of the Act, and its interpretation in the Illinois courts, it is not surprising that attempts to assert the statutory privilege to defeat research subpoenas have failed.

In Andrews v. Eli Lilly & Co., Inc., 97 F.R.D. 494 (N.D. Ill. 1983), the district judge quashed a subpoena that sought production of records from research that was exploring the association between maternal use of diethylstilbestrol and daughters’ development of adenocarcinoma of the vagina. In granting the motion to quash, the district judge acknowledged that the Medical Studies Act protected the records from disclosure. Id. at 500. The party seeking discovery, argued that the Illinois statute was limited to hospital peer review.  The district court acknowledged that the purpose of the Act was to ensure confidentiality of the peer-review process, but that the “plain language” of the statute did not limit protected material to that used for peer review. Id. at 500 n.19. In any event, Andrews was stripped of any precedential force when it was vacated by the United States Court of Appeals.   Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984).

In the Orthopedic Bone Screw MDL, plaintiffs sought research study documents from the Scoliosis Research Society. Invoking the Illinois Medical Studies Act, the Society moved for a protective order to prevent disclosure of the names of physicians and patients who participated in “The Pedicle Screw Cohort Study,” and the disclosure of documents from that study. In re Orthopedic Bone Screw Prods. Liab. Litig., MDL No. 1014, 1996 WL 34394351 (E.D. Pa. Feb. 14, 1996), app. dism’d, 94 F.3d 110 (3d Cir. 1996). The Society claimed that the Act provided an unconditional confidentiality for all data and related information underlying a “a medical study.” Id. at *2.

The MDL court denied the plaintiffs’ motion to enforce, but rejected the claim that the Act created a privilege that applied in the case. Id. at *3 (citing the predominant federal interest in determining whether a state court privilege applied, and the lack of Illinois interests in a choice of law analysis).

In another multi-district litigation, Pfizer sought peer reviewer and editorial comments from the Journal of the American Medical Association, on articles and manuscripts of studies involving its COX-2 inhibitor medications, Bextra and Celebrex.  In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., Case No. 08 C 402, 2008 U.S. Dist. LEXIS 21098; 2008 WL 4345158 (N.D. Ill. Mar. 14, 2008). The Journals asserted privileges, including a statutory privilege under the Illinois Medical Studies Act. Id. at *10-12. The federal district court ruled that the privilege appeared not to apply to manuscripts, articles, peer reviewer and editorial comments:

“The Medical Studies Act, 735 ILCS 5/8-2101, provides that [a]ll information, interviews, reports, statements, memoranda, recommendations, letters of reference or third party confidential assessments of a health care practitioner’s professional competence, or other data …  of allied medical societies . . . used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services . . . . 735 ILCS 5/8-2101. The purpose of the Act is to ‛ensure that members of the medical profession can maintain effective professional self-evaluation and to improve the quality of healthcare’.

To that end, the Act clearly protects from disclosure information gathered in the course of a peer review, but only if it is used in connection with a program or study designed to improve internal quality control or patient care, or to reduce morbidity and mortality. Putting aside the question of whether the Journals would qualify as ‛allied medical societies’, the Court is not persuaded that the specific information identified in the subpoenas fits within this definition. In her declaration, Dr. DeAngelis represented that JAMA ‛publishes scientific articles, commentaries, and news involving all fields of medicine, including medical research, significant clinical observations, diagnostic and therapeutic developments, legal and social matters of interest to  physicians, and issues of medical ethics’; JAMA’s motto, she said, is ‛to promote the science and art of medicine and the betterment of the public health’. DeAngelis Declaration, PP12-13. A lofty goal – but one that far transcends the provisions of the Medical Studies Act. The Act protects from disclosure documents only when ‛used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation’; surely not everything published in JAMA and AIM – or everything considered for publication – can fairly be described this way. And, on the limited record before it, the Court cannot say that all of the documents requested in the subpoenas can be either.”

Id. at *11-14.

Racette’s suggestion that the Illinois Medical Studies Act can provide guidance with respect to research subpoenas is wrong on the law, facts, and policy of the need for data sharing. The public, and its members, remain entitled to every man’s evidence. See Lord Hardwicke’s Speech on Lord Orford’s Bill (May 25, 1742), quoted in George Harris, The Life of Lord Chancellor Hardwicke; with Selections from His Correspondence, Diaries, Speeches, and Judgments, Vol. 2, at 8 (1847).

[1] See Brad A. Racette, S.D. Tabbal, D. Jennings, L. Good, J.S. Perlmutter, and Brad Evanoff, “Prevalence of parkinsonism and relationship to exposure in a large sample of Alabama welders,” 64 Neurology 230 (2005); Brad A. Racette, et al., “A rapid method for mass screening for parkinsonism,” 27 Neurotoxicology 357 (2006).

[2] See National Institutes of Health, Final Statement on Sharing Research Data (Feb. 26, 2003); Stephen E. Fienberg, et al., eds. Committee on National Statistics, National Research Council, Sharing Research Data (1985); Eleanor Singer, chair, Panel on Data Access for Research Purposes, National Research Council, Expanding Access to Research Data: Reconciling Risks and Opportunities (2005).  See also National Academy of Sciences Committee on Ensuring the Utility and Integrity of Research Data in a Digital Age, Ensuring the Integrity, Accessibility, and Stewardship of Research Data in the Digital Age (2009).

[3] See, e.g., Jesse A Berlin, Sandra Morris, Frank Rockhold, Lisa Askie, Davina Ghersi, and Joanne Waldstreicher, “Bumps and bridges on the road to responsible sharing of clinical trial data,” 11 Clinical Trials 7 (2014); Rebecca Kush & Michel Goldman, “Fostering Responsible Data Sharing through Standards,” 370 New Engl. J. Med. 2163 (June 5, 2014); Jerome P. Reiter & Satkartar K. Kinney, “Sharing Confidential Data for Research Purposes: A Primer,” 22 Epidemiology 632 (2011).

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.