TORTINI

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

Science Day Should Be Every Day in Our Courtrooms — Part I

March 24th, 2017

The following post and its sequel are an expansion upon a post that I wrote with Dr. David Schwartz, of Innovative Science Solutions, LLC. Dr. Schwartz is a talented scientist with whom I had the privilege and pleasure to work at McCarter & English, before he left to become an independent scientific consultant. Dr. Schwartz is one of the founding partners of his firm, which focuses on helping lawyers with the scientific issues in complex health effects litigation. Our earlier post can be found on the Courtroom View Network’s website. “Guest Analysis: Key Takeaways from Recent Talc Powder ‘Science Day’ Hearing in California,” Courtroom View Network (Mar 24, 2017).

========================================================

Every February 28th, India celebrates National Science Day in honor the Indian physicist Sir Chandrashekhara Venkata Raman, who discovered the Raman effect. The United States has no equivalent celebration, but “Science Days” have become a commonplace in complex state and federal Litigations, around the country.

Background

The major impetus for science tutorials seems to have come from the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The holding of Daubert, now incorporated into, and extended by Federal Rule of Evidence 702, requires trial judges to act as gatekeepers of the relevance and reliability of expert witness opinion testimony in their courtrooms. One of the first tests of the judiciary’s performance to perform this role came in the silicone gel breast implant litigation. The federal silicone cases were consolidated before Judge Pointer Sam C. Pointer, Jr., in MDL 926. Judge Pointer believed that trial judges in the transferor courts should conduct whatever review of expert witness opinion was needed to satisfy the then recent Daubert decision.

Some of the first federal silicone lawsuits remanded from the MDL went to Judge Robert Jones in Portland Oregon. These cases involved complex issues of immunology, clinical rheumatology, epidemiology, toxicology, surgery, and polymer and analytical chemistry. At the outset of his case management of the remanded cases, plaintiffs’ counsel requested that Judge Jones schedule an all-day tutorial for counsel to present on these scientific issues. The parties’ tutorials, along with an avalanche of defense Daubert motions, persuaded Judge Jones to take the unusual step of appointing technical advisors to assist him in assessing the scientific evidence, inferences and claims in the silicone litigation. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1415 (D. Ore. 1996).1 Judge Jones’s technical advisors attended court throughout the Daubert hearings conducted in Portland, and they delivered advisory reports to Judge Jones to assist him in his gatekeeping function. Judge Jones ultimately granted the defense motions to exclude the plaintiffs’ expert witnesses’ claims of silicone causation of connective tissue diseases.

In large measure because of Judge Jones’s case management and exclusion of expert witness testimony, the silicone MDL court appointed a panel of neutral expert witnesses, in the fields of epidemiology, rheumatology, immunology, and toxicology.2

One of the first requests received from the Science Panel in MDL 926 was for what turned out to be a series of Science Days in which the parties’ expert witnesses would present to them, and explain their interpretation of the vast array of evidence, from different disciplines. Each presenting party expert witness was allowed 15 to 20 minutes to present. The lawyers were not entirely reduced to potted plants; they had a chance to conduct a short cross-examination. Given that the primary audience was a panel of four distinguished scientists, there was an emphasis for most of the lawyers, for the plaintiffs and the defendants, to ask pertinent, substantive questions.

The Science Panel was not entirely satisfied with the party expert witnesses, and requested a second Science Day, at which the Panel could call its own slate of scientists to address the scientific claims made in the litigation. The proceedings took place at the National Academies of Science, in Washington, D.C.

These proceedings, along with extensive submissions of articles and briefings from the parties led to the Report of National Science Panel, on November 30, 1998.

Every Day is Science Day, Somewhere

Since the breast implant litigation, many MDL and other courts have faced complex causation claims in litigation involving pharmaceutical products, medical devices, consumer products and a host of chemical exposures. Appointment of independent, neutral expert witnesses remains unusual, but trial judges have welcomed tutorials in the form of “Science Days,” to help them learn the methodologies and vocabularies of the scientific disciplines that are involved in the litigations before them. For some reason, the parties, the judges, and the legal media often reference Science Days in scare quotes, signaling that perhaps other Science takes place in these proceedings. Whether the scare quotes are warranted remains to be determined.

Science Days” have become a tradition in mass tort litigation.3 In the last few years, there is a Science Day somewhere, in some courtroom, going on, perhaps not daily, but with sufficient frequency that the phenomenon should receive more critical attention. Federal judges with multi-district litigation, or state judges with multi-county cases, set aside time to permit the parties a chance to educate them about the scientific and technical aspects of the litigations before them. Judges know that Daubert and Rule 702, or their state analogues, require them to act as gatekeepers. Furthermore, myriad motions in the discovery and trial phases of a case will require judges to make nuanced but accurate decisions about scope and content of discovery, and admissibility of documents and testimony,

Science Day – Have It Your Way

John Milton: We negotiating?

Kevin Lomax: Always.4

The Devil’s Advocate (1997).

There are no federal or state rules that set out procedures for science tutorials for judges or their appointed expert. The form and substance of Science Days depend upon a three-say negotiation among the plaintiffs, defendants, and the trial judge. Although the parties are often left to work out a plan for science day, most courts tend to weigh in by imposing time limits, and they may even rule in or rule out live witness testimony.

In 2007, the American Bar Association set out Civil Trial Practice Standards,5 which included an entire section on the use of tutorials to assist the court. [The relevant standards for tutorials is set out at the end of Part II of this post, as an appendix.]


1 See Laural L. Hooper, Joe S. Cecil, and Thomas E. Willging, “Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation,” at 9 (Federal Judicial Center 2001).

2 MDL 926 Order 31 (May 31, 1996) (order to show cause why a national Science Panel should not be appointed under Federal Rule of Evidence 706); MDL 926 Order No. 31C (Aug. 23, 1996) (appointing Drs. Barbara S. Hulka, Peter Tugwell, and Betty A. Diamond); Order No. 31D (Sept. 17, 1996) (appointing Dr. Nancy I. Kerkvliet).

3 See, e.g., Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges at 39 & n. 54 (Fed. Jud. Ctr. 2011); Sean Wajert, “‘Science Day’ In Mass Torts,” Mass Tort Defense (Oct. 20, 2008); Lisa M. Martin, “Using Science Day to Your Advantage,” 2(4) Pro Te: Solutio 9 (2009).

4 From the screenplay of the movie, directed by Taylor Hackford, written by Jonathan Lemkin and Tony Gilroy, and based on a novel by Andrew Neiderman.

5 American Bar Association’s “Civil Trial Practice Standards” (August 2007 & 2011 Update).

Washington Legal Foundation’s Paper on Statistical Significance in Rule 702 Proceedings

March 13th, 2017

The Washington Legal Foundation has released a Working Paper, No. 201, by Kirby Griffis, entitledThe Role of Statistical Significance in Daubert / Rule 702 Hearings,” in its Critical Legal Issues Working Paper Series, (Mar. 2017) [cited below as Griffis]. I am a fan of many of the Foundation’s Working Papers (having written one some years ago), but this one gives me pause.

Griffis’s paper manages to avoid many of the common errors of lawyers writing about this topic, but adds little to the statistics chapter in the Reference Manual on Scientific Evidence (3d ed. 2011), and he propagates some new, unfortunate misunderstandings. On the positive side, Griffis studiously avoids the transposition fallacy in defining significance probability, and he notes that multiplicity from subgroups and multiple comparisons often undermines claims of statistical significance. Griffis gets both points right. These are woefully common errors, and they deserve the emphasis Griffis gives to them in this working paper.

On the negative side, however, Griffis falls into error on several points. Griffis helpfully narrates the Supreme Court’s evolution in Daubert and then in Joiner, but he fails to address the serious mischief and devolution introduced by the Court’s opinion in Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 131 S.Ct. 1309 (2011). See Schachtman, “The Matrixx – A Comedy of Errors” (April 6, 2011)”; David Kaye, “Trapped in the Matrixx: The U.S. Supreme Court and the Need for Statistical Significance,” BNA Product Safety & Liability Reporter 1007 (Sept. 12, 2011). With respect to statistical practice, this Working Paper is at times wide of the mark.

Non-Significance

Although avoiding the transposition fallacy, Griffis falls into another mistake in interpreting tests of significance; he states that a non-significant result tells us that an hypothesis is “perfectly consistent with mere chance”! Griffis at 9. This is, of course, wrong, or at least seriously misleading. A failure to reject the null hypothesis does not prove the null such that we can say that the “null results” in one study were perfectly consistent with chance. The test may have lacked power to detect an “effect size” of interest. Furthermore, tests of significance cannot rule out systematic bias or confounding, and that limitation alone ensures that Griffis’s interpretation is mistaken. A null result may have resulted from bias or confounding that obscured a measurable association.

Griffis states that p-values are expressed as percentages “usually 95% or 99%, corresponding to 0.05 or 0.01,” but this states things backwards. The p-value that is pre-specified to be “significant” is a probability or percentage that is low; it is the coefficient of confidence used to construct a confidence interval that is the complement of the significance probability. Griffis at 10. An alpha, or pre-specified statistical significance level, of 5% thus corresponds to a coefficient of confidence of 95% (or 1.0 – 0.05).

The Mid-p Controversy

In discussing the emerging case law, Griffis rightly points to cases that chastise Dr. Nicholas Jewell for the many liberties he has taken in various litigations as an expert witness for the lawsuit industry. One instance cited by Griffis is the Lipitor diabetes litigation, where the MDL court suggested that Jewell switched improperly from a Fisher’s exact test to a mid-test. Griffis at 18-19. Griffis seems to agree, but as I have explained elsewhere, Fisher’s exact test generates a one-tailed measure of significance probability, and the analyst is left to one of several ways of calculating a two-tailed test. SeeLipitor Diabetes MDL’s Inexact Analysis of Fisher’s Exact Test” (April 21, 2016). The mid-p is one legitimate approach for asymmetric distributions, and is more favorable to the defense than passing off the one-tailed measure as the result of the test. The mere fact that a statistical software package does not automatically specify the mid-p for a Fisher’s exact analysis does not make invoking this measure into p-hacking or other misconduct. Doubling the attained significance probability of a particular Fisher’s exact test result is generally considered less accurate than a mid-p calculation, even though some software packages using doubling attained significance probability as a default. As much as we might dislike bailing Jewell out of Daubert limbo, on this one, limited point, he deserved a better hearing.

Mis-Definitions

On recounting the Bendectin litigation, Griffis refers to the epidemiologic studies of birth defects and Bendectin as “experiments,” Griffis at 7, and then describes such studies as comparing “populations,” when he clearly meant “samples.” Griffis at 8.

Griffis conflates personal bias with bias as a scientific concept of systematic error in research, a confusion usually perpetuated by plaintiffs’ counsel. See Griffis at 9 (“Coins are not the only things that can be biased: scientists can be, too, as can their experimental subjects, their hypotheses, and their manipulations of the data.”) Of course, the term has multiple connotations, but too often an accusation of personal bias, such as conflict of interest, is used to avoid engaging with the merits of a study.

Relative Risks

Griffis correctly describes the measure known as “relative risk” as a determination of the “the strength of a particular association.” Griffis at 10. The discussion then lapses into using a given relative risk as a measure of the likelihood that an individual with the exposure studied develop the disease. Sometimes this general-to-specific inference is warranted, but without further analysis, it is impossible to tell whether Griffis lapsed from general to specific, deliberately or inadvertently, in describing the interpretation of relative risk.

Conclusion

Griffis is right in his chief contention that the proper planning, conduct and interpretation statistical tests is hugely important to judicial gatekeeping of some expert witness opinion testimony under Federal Rule of Evidence 702 (and under Rule 703, too). Judicial and lawyer aptitude in this area is low, and needs to be bolstered.

Mercola’s Middlebury Moment – Conflicts of Interest As Distraction from the Merits

March 11th, 2017

Joseph Mercola is an osteopathic physician, who is possession of alternative facts about alternative medicine, which no doubt come from alternative science in an alternative universe. He is a conspiracy theorist who sees government, the media, and the scientific community as engaged in a vast conspiracy to stand in the way of his alternative truths.1

In his alternative world, vaccines kill, timerosal and milk2 cause autism, fluoridation3 and cell phones cause cancer. On his path to alternative health and wellbeing, Mercola has made millions selling and promoting dubious “health foods”; he has also found himself on the alternative side of the law, particularly with the FDA4 and the FTC5.

Mercola is an entrepreneurial physician, who hawks untested “natural health” products, while bashing licensed, tested pharmaceuticals. Mercola may not be the most honest broker of scientific information6, and so it seems inappropriate when he lobbies for the silencing of scientific discussion and debate.

In a web post this week, Mercola claimed that the newspaper USA Today,had been ridiculed for a column by an “industry front group.”7 This was a bit of fake news from Mercola; the event he referenced actually involved an attempt by environmental activist groups8 to silence speech that they disagreed with. The speaker to be silenced was the American Council on Science and Health (ACSH). No ridicule was involved; only accusations of undisclosed funding from self-styled public interest groups, which themselves do not disclose their funding sources in their letter.9

The President of the ACSH, Hank Campbell, responded with a rebuttal to this Middlebury Maneuver10, which is worth reading.11 Campbell eloquently makes three points. First, the accusers have serious conflicts of interest, both financial and positional, themselves. Second, the crucial issue in a scientific debate is the evidence, its quality, and its ability to warrant valid inferences. The “Lobby” wants to silence speech, but has nothing to offer on the merits of any scientific issue, except politically correct, subjective opinion. Third, the Lobby ignores that the ACSH has taken stands on health issues against many the pecuniary interests of corporations; indeed it has taken one of the strongest anti-smoking stances of any advocacy group. Campbell’s rebuttal is a powerful reminder that scientific disagreements cannot be won by bullying opponents into silence.


2 Joseph Mercola, “Milk linked to autism, schizophrenia,” Optimal Wellness Center Website (Mar .21, 1999; archived Jan. 2, 2008).

3 See, e.g., A. Mesh, “Dr Joseph Mercola gives $15,000 to anti-flouride campaign,” Williamette Week (May 6, 2013); Joseph Mercola, “Is fluoride as safe as you are told,” Optimal Wellness Center Website (Feb 2, 6, and 9, 2002); Mercola, the Sun, Tanning Beds, and Melanoma (Skeptic’s Dictionary Newsletter)

4 Susan J. Walker, Director, Division of Dietary Supplement Programs, “Warning letter to Joseph Mercola, D.O.,” (Feb 16, 2005) (Ref. No. CL-04-HFS-810-134 ); Scott J. MacIntire, District Director, “Warning letter to Joseph Mercola, D.O.,” (Sept. 21, 2006); Steven Silverman, Director, Office of Compliance, Center for Devices and Radiological Health, “Warning letter to Dr. Joseph Mercola,” (Mar. 22, 2011); see also Trine Tsouderos, “FDA warns doctor: Stop touting camera as disease screening tool,” Chicago Tribune (April 26, 2011); Stephen Barrett, “Dr. Joseph Mercola Ordered to Stop Illegal Claims,” Quackwatch (Jan. 9, 2017).

6 See Kate Knibbs, “The Most Honest Man in Medicine?” The Ringer (Jan. 5, 2017); Brian Smith, “Dr Mercola: Visionary or quack?” Chicago Magazine (Feb. 12, 2012).

7 Joseph Mercola, “USA Today Ridiculed for Column by Industry Front Group,” (Mar. 07, 2017).

8 Alaska Community Action on Toxics; Beyond Toxics; Breast Cancer Action; Breast Cancer Fund; Californians for Pesticide Reform; Center for Biological Diversity; Center for Food Safety; Citizens’ Environmental Coalition; Clean and Healthy New York Community Science Institute; Empire State Consumer Project; Farmworker Association of Florida; Friends of the Earth – US; Greenpeace; HavenBMedia; Healthy Building Network; Health Care Without Harm; Learning Disabilities Association of Maine; Made Safe Organic Consumers Association; Pesticide Action Network North America; Real Food Media; The 5 Gyres Institute; US Right to Know; Vermont Public Interest Research Group; Women’s Voices for the Earth; Ann Blake, PhD, Environmental & Public Health Consulting; Josh Freeman, MD (Emeritus Chair of Family Medicine, University of Kansas School of Medicine); Matthew Anderson, MD (Associate Professor, Dept. of Family and Social Medicine, Montefiore Medical Center); Martin Donohoe, MD, FACP (Adjunct Faculty, School of Community Health, Portland State University; Board of Advisors, Oregon Physicians for Social Responsibility).

10 Addison County Independent,Middlebury College professor injured by protesters as she escorted controversial speaker” (Mar. 6, 2017); Editorial Board, “Smothering Speech at Middlebury,” N.Y. Times (Mar. 7, 2017); Katharine Q. Seelye, “Protesters Disrupt Speech by ‘Bell Curve’ Author at Vermont College,” N.Y. Times (Mar. 3, 2017).

New York Rejects the Asbestos Substantial Factor Ruse (Juni Case)

March 2nd, 2017

I recall encountering Dr. Joseph Sokolowski in one of my first asbestos personal injury cases, 32 years ago. Dr. Sokolowki was a pulmonary specialist in Cherry Hill, New Jersey, and he showed up for plaintiffs in cases in south Jersey as well as in Philadelphia. Plaintiffs’ counsel sought him out for his calm and unflappable demeanor, stentorious voice, and propensity for over-interpreting chest radiographs. (Dr. Sokolowski failed the NIOSH B-Reader examination.)

At the end of his direct examination, the plaintiff’s lawyer asked Dr. Sokolowski the derigueur “substantial factor” question, which in 1985 had already become a customary feature of such testimonies. And Dr. Sokolowski delivered his well-rehearsed answer: “Each and every exposure to asbestos was a substantial factor in causing the plaintiff’s disease.”

My cross-examination picked at the cliché. Some asbestos inhaled was then exhaled. Yes. Some asbestos inhaled was brought up and swallowed. Yes. Asbestos that was inhaled and retained near the hilum did not participate in causing disease at the periphery of the lung. Yes. And so on, and so forth. I finished with my rhetorical question, always a dangerous move, “So you have no way to say that each and every exposure to asbestos actually participated in causing the plaintiff’s disease?” Dr. Sokolowski was imperceptibly thrown off his game, but he confessed error by claiming the necessity to cover up the gap in the evidence. “Well, we have no way to distinguish among the exposures so we have to say all were involved.”

Huh? What did he say? Move to strike the witness’s testimony as irrational, and incoherent. How can a litigant affirmatively support a claim by asserting his ignorance of the necessary foundational facts? The trial judge overruled my motion with alacrity, and the parties continued with the passion play called asbestos litigation. The judge was perhaps simply eager to get on with his docket of thousands of asbestos cases, but at least Dr. Sokolowski and I recognized that the “substantial factor” testimony was empty rhetoric, with no scientific or medical basis.

Sadly, the “substantial factor” falsehood was already well ensconced in 1985, in Pennsylvania law, as well as the law of most other states. Now, 32 years later, with ever increasingly more peripheral defendants, each involving less significant, if any, asbestos exposure, the “substantial factor” ruse is beginning to unravel.1

Juni v. A.O. Smith Water Products Co.

Arthur Juni was a truck and car car mechanic, who worked on the clutches, brakes, and manifold gaskets of Ford trucks. Juni claimed to have sustained asbestos exposure in this work, as well as in other aspects of his work career. In 2012, Juni was diagnosed with mesothelioma; he died in 2014. Juni v. A.O. Smith Water Products Co., at *1,No. 190315/12 2458 2457, 2017 N.Y. Slip Op. 01523 (N.Y. App. Div. 1st Dep’t, Feb. 28, 2017).

Juni sued multiple defendants in New York Supreme Court, for New York County. Most of the defendants settled, but Ford Corporation tried the case against the plaintiff’s widow. Both sides called multiple expert witnesses, whose testimony disputed whether the chrysotile asbestos in Ford’s brakes and clutches could cause mesothelioma. The jury returned a verdict in favor of the plaintiff, but the trial court granted judgment nothwithstanding the verdict, on the ground that the evidence failed to support the causation verdict. Id. At *1; see Juni v. A. 0. Smith Water Prod., 48 Misc. 3d 460, 11 N.Y.S.3d 415 (N.Y. Sup. Ct. 2015).

Earlier this week, the first department of the New York Appellate Division affirmed the judgment for Ford. 2017 N.Y. Slip Op. 01523. The Appellate Division refused to approve plaintiffs’ theory of cumulative exposure to show causation. The plaintiffs’ expert witnesses, Drs. Jacqueline Moline and Stephen Markowitz, both asserted that even a single asbestos exposure was a “substantial contributing” cause. The New York appellate court, like the trial court before, saw through the ruse, and declared that both expert witnesses had failed to support their assertions.

The “Asbestos Exception” Rejected

Although New York has never enacted a codified set of evidence rules, and has never expressly adopted the rule of Daubert v. Merrill Richardson, the New York Court of Appeals has held that there are limits to the admissibility of expert witness opinion testimony. Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762 (2014); Sean Reeps. v BMW of North Am., LLC, 26 N.Y.3d 801 (2016). In Juni, the Appellate Division, First Department, firmly rejected any suggestion that plaintiffs’ expert witnesses in asbestos cases are privileged against challenge over admissibility or sufficiency because the challenges occur in an asbestos case. The plaintiff’s special pleading that asbestos causation of mesothelioma is too difficult was invalidated by the success of other plaintiffs, in other cases, in showing that a specific occupational exposure was sufficient to cause mesothelioma.

The Appellate Division also rejected the plaintiff’s claim, echoed in the dissenting opinion of one lone judge, that there exists a “consensus from the medical and scientific communities that even low doses of asbestos exposure, above that in the ambient environment, are sufficient to cause mesothelioma.” The Court held that this supposed consensus is not material to the claims of a particular plaintiff against a particular defendant, especially when the particular exposure circumstance is not associated with mesothelioma in most of the relevant studies. In Juni, the defense had presented many studies that failed to show any association between occupational brake work and mesothelioma. The court might also have added that a characterization of low exposure is extremely amiguous, depending upon the implicit comparison that is being made with other exposures. It is impossible to fit a particular plaintiff’s exposure into the scale of low, medium, and high without some further context.

Single Exposure Sufficiency Rejected

The evidence that chrysotile itself causes mesothelioma remains weak, but the outcome of Juni turned not on the broad general causation question, but on the question whether even suggestive evidence of chrysotile causation had been established for the exposure circumstances of an automobile mechanic, such as Mr. Juni. Plaintiffs’ expert witnesses maintained that Juni’s cumulative asbestos exposures caused his mesothelioma, but they had no meaningful quantification or even reasonable estimate of his exposure.

Citing the Court of Appeals decision in Reeps, the Appellate Division held that plaintiff’s expert witnesses’ causation opinions must be supported by reasonable quantification of the plaintiff’s exposure, or some some scientific method, such as mathematical modeling based upon actual work history, or by comparison of plaintiff’s claimed exposure with the exposure of workers in reported studies that establish a relevant risk from those workers’ exposure. In the Juni case, however, there were no exposure measurements or scientific models, and the comparison with workers doing similar tasks failed to show a causal relationship between the asbestos exposure in those tasks and mesothelioma.

Expert Witness Admissibility and Sufficiency Requires Evaluation of Both Direct and Cross-examination Testimony and Relied Upon Studies

The Juni decision teaches another important lesson for challenging expert witness testimony in New York: glib generalizations delivered on direct examination must be considered in the light of admissions and concessions made on cross-examination, and the entire record. In Juni, the plaintiffs’ expert witnesses, Jacqueline Moline and Stephen Markowitz, asserted that asbestos in Ford’s friction products was a cause of plaintiff’s mesothelioma. Cross-examination, however, revealed that these assertions were lacking in factual support.

Cumulative Exposure

On cross-examination, the plaintiffs’ expert witnesses’ statements about exposure levels proved meaningless. Moline attempted to equate visible dust with sufficient asbestos exposure to cause disease, but she conceded on cross-examination that studies had shown that 99% of brake lining debris was not asbestos. Most of the dust observed from brake drums is composed of resins used to manufacture brake linings and pads. The heat and pressure of the brake drum causes much of the remaining chrysotile to transform into a non-fibrous mineral, fosterite.

Similarly, Markowitz had to acknowledge that chrysotile has a “serpentine” structure, with individual fibers curling in a way that makes deeper penetration into the lungs more difficult. Furthermore, chrysotile, a hydrated magnesium silicate, melts in the lungs, not in the hands. The human lung can clear particulates, and so there is no certainty that remaining chrysotile fibers from brake lining exposures ever reach the periphery of the lung, where they could interact with the pleura, the tissue in which mesothelioma arises.

Increased Risk, “Linking,” and Association Are Not Causation – Exculpatory Epidemiologic Studies

When pressed, plaintiffs’ expert witnesses lapsed into characterizing the epidemiologic studies of brake and automobile mechanics as showing increased risk or association, not causation. Causation, not association, however, was the issue. Witnesses’ invocation of weasel words, such as “increased risk,” “linkage,” and “association” are insufficient in themselves to show the requisite causation in long-latency toxic exposure cases. For automobile mechanics, even the claimed association was weak at best, with plaintiffs’ expert witnesses having to acknowledge that 21 of 22 epidemiologic studies failed to show an association between automobile mechanics’ asbestos exposure and risk of mesothelioma.

The Juni case was readily distinguishable from other cases in which the Markowitz was able to identify epidemiologic studies that showed that visible dust from a specific product contained sufficient respirable asbestos to cause mesothelioma. Id. (citing Caruolo v John Crane, Inc., 226 F.3d 46 (2d Cir. 2000). As the Appellate Division put the matter, there was no “no valid line of reasoning or permissible inference which could have led the jury to reach its result.” Asbestos plaintiffs must satisfy the standards set out in the New York Court of Appeals decisions, Parker v. Mobil Oil Corp., 7 NY3d 434 2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014), for exposure evidence and causal inferences, as well.

New York now joins other discerning courts in rejecting regulatory rationales of “no safe exposure,” and default “linear no threshold” exposure-response models as substitutes for inferring specific causation.2 A foolish consistency may be the hobgoblin of little minds, but in jurisprudence, consistency is often the bedrock for the rule of law.


1 The ruse of passing off “no known safe exposure” as evidence that even the lowest exposure was unsafe has been going on for a long time, but not all judges are snookered by this rhetorical sleight of hand. See, e.g., Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 358 (Tex. 2014) (“the failure of science to isolate a safe level of exposure does not prove specific causation”).

2 See, e.g. Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 358 (Tex. 2014) (failing to identify safe levels of exposure does not suffice to show specific causation); Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1165-66 (E.D. Wash. 2009) (rejecting a “no threshold” model of exposure-response as unfalsifiable and unvalidated, and immaterial to the causation claims); Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 679 (6th Cir. 2011) (rejecting claim that plaintiff’s exposure to benzene “above background level,” but below EPA’s maximum permissible contaminant level, caused her cancer); Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 10006, 1015 (E.D. Wash. 2010) (rejecting Dr. David Egilman’s proffered testimony on specific causation based upon his assertion that there was no known safe level of diacetyl exposure).

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.