TORTINI

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

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).

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).

Weight of the Evidence in Science and in Law

July 29th, 2017

woe to that man by whom the offense cometh”

         Matthew 18:7

Weight of the evidence (WOE) has cropped up again in recent trial and appellate court proceedings involving the admissibility of scientific expert witness opinion testimony. With some consistency, the WOE approach advocated is vacuous. The proponents of WOE do not specify what type of evidence is considered, whether all evidence was considered, or how competing and conflicting evidence was weighed.

Interpreted sympathetically, WOE might be taken to mean that “scientific judgment” was exercised with respect to causal inference, without describing exactly what was done. Although sympathetic, this interpretation renders the purported methodology meaningless. WOE-ful scientists might just as well say that they used scientific method. Not surprisingly, WOE is absent from virtually all major epidemiology textbooks

Despite the vacuity of WOE, or because of it, some lawyers, who constitute the lawsuit industry, are particularly fond of WOE.1 Expert witnesses who support the lawsuit industry have defended their “right” to inflict WOE on the litigation system, tooth and nail.2

Carl Cranor, a philosophy professor and a hired expert witness in litigation for plaintiffs’ counsel, has written about WOE and attempted to defend WOE as a scientific methodology. Cranor has caricaturized criticisms of WOE, including mine, by suggesting that the International Agency for Research on Cancer’s use of WOE rebuts my suggestion that WOE is no method at all.3 Cranor’s defense fails, however, because IARC’s method, for all its deficiencies, never invokes a method mired in WOE.

Perhaps the Lawsuit Industry likes WOE as much as it likes the equally vague term, “link.” WOE frees them from the requirement of any meaningful methodology, which means that any conclusion is possible. Under WOE, any conclusion can survive gatekeeping as an opinion. WOE frees the putative expert witness from the need to consider the quality of research. WOE-ful authors such as Carl Cranor invoke WOE or seek to inflict WOE without mentioning the crucial “nuts and bolts” of scientific inference, such as concepts of

  • Internal and external validity
  • Assessment of random error
  • Assessment of known and residual confounding
  • Known and potential threats to validity in
  • Appropriate methods of systematic review
  • Appropriate synthesis across studies, such as systematic review and meta-analysis

These important concepts are lost in the miasma of WOE.

In the published scientific literature, it is a commonplace that WOE is either poorly or not defined and specified. The phrase is vague and ambiguous; its use, inconsistent.4  Even authors sympathetic to the WOE mission have reluctantly concluded that the term is most often used in a way that “does not lend itself to transparency or repeatability except in simple cases.”5

Another reason that WOE resonates so strongly with the Lawsuit Industry is that having expert witnesses proclaim WOE as their methodology permits trial counsel to claim that the proffered opinions are immune to gatekeeping because, after all, weight-of-the-evidence questions are for the jury. Lawyers learn early on about WOE factual issues in appellate review of a wide variety of evidentiary and sufficiency issues in criminal and civil cases.6 Unless against the great WOE, WOE questions are for the jury.

Even venerable judges fall for this semantic confusion. In 1995, the Second Circuit, before the major revision of Rule 702, in 2000, noted that in discharging their gatekeeping role, trial judges do not assume:

“‘the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witness’s soul’ that would ‘inexorably lead to evaluating witness credibility and weight of the evidence, the ageless role of the jury’.”

McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1045 (2d Cir.1995) (internal citations omitted).

Of course, the expert witness’s soul is not at issue, but his methodology is. More important, however, note how the appellate court adverted to “weight of the evidence” as something that the jury must evaluate, along with witness credibility. The expert witness WOE litigation strategy deliberately trades upon the confusion between WOE in the allocation between judge and jury, and valid scientific methodology in causal inference. McCullock is proof that judges can be, and are, bamboozled by the litigation strategy.

Twenty years after McCullock, federal appellate judges are still falling for the deliberate confusion between legal and scientific WOE. The Ninth Circuit recently held that the reliability test of Federal Rule of Evidence 702 is:

“‘is not the correctness of the expert’s conclusions but the soundness of his methodology’, and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.”

City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (internal citation omitted), cert. denied, 135 S. Ct. 870 (2014). Characterizing a methodological dispute as one that “merely” concerns the “weight of the evidence” is a strategy to remove the dispute from judicial gatekeeping altogether.

Recently, the Third Circuit displayed this confusion of WOE with methodological impropriety by mischaracterizing failure to correct for multiple testing as merely an improper calculation that ordinarily goes to the weight of the evidence, not its admissibility. Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 83 (3d Cir. 2017).

The Third Circuit, in Karlo, cited to a Supreme Court case that predated Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and which did involve any Rule 702 challenge to the use of a flawed statistical analysis. In Bazemore v. Friday, 478 U.S. 385, 400 (1986), plaintiffs sued as a class for employment discrimination, and sought to show the discrimination through the use of a regression analysis. The defense challenged the plaintiffs’ regression on grounds that key variables were omitted. The Court rejected a sufficiency challenge to a finding of discrimination in plaintiffs’ class action, and noted:

Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility.”

The lesson of the last two decades of judicial gatekeeping is that methodological infirmity will affect both probitiveness and admissibility7. Courts cannot escape their important gatekeeping duties by shifting their responsibility to juries under the guise of WOE.

2 See Schachtman, “Desultory Thoughts on Milward v. Acuity Specialty Products,” (Oct. 2015).

3 Carl F. Cranor, Toxic Torts: Science, Law, and the Possibility of Justice 146 (2d ed. 2016) (citing and selectively quoting from Schachtman, WOE-fully Inadequate Methodology – An Ipse Dixit By Another Name” (May 1, 2012)).

4 See Charles Menzie, Miranda Hope Henning, Jerome Cura, Kenneth Finkelstein, Jack Gentile, James Maughan, David Mitchell, Stephen Petron, Bonnie Potocki, Susan Svirsky & Patti Tyler, “A weight-of-evidence approach for evaluating ecological risks; report of the Massachusetts Weight-of-Evidence Work Group,” 2 Human Ecological Risk Assessment 277, 279 (1996) (“although the term ‘weight of evidence’ is used frequently in ecological risk assessment, there is no consensus on its definition or how it should be applied”); Sheldon Krimsky, “The weight of scientific evidence in policy and law,” 95 Am. J. Pub. Health S129 (2005) (“However, the term [WOE] is applied quite liberally in the regulatory literature, the methodology behind it is rarely explicated.”); V. H. Dale, G.R. Biddinger, M.C. Newman, J.T. Oris, G.W. Suter II, T. Thompson, et al., “Enhancing the ecological risk assessment process,” 4 Integrated Envt’l Assess. Management 306 (2008) (“An approach to interpreting lines of evidence and weight of evidence is critically needed for complex assessments, and it would be useful to develop case studies and/or standards of practice for interpreting lines of evidence.”);  Douglas L. Weed, “Weight of Evidence: A Review of Concept and Methods,” 25 Risk Analysis 1545 (2005) (noting the “lack of definition of the term weight of evidence, multiple uses of the term and a lack of consensus about its meaning, and the many different kinds of weights, both qualitative and quantitative which can be used in risk assessment”); R.G. Stahl Jr., “Issues addressed and unaddressed in EPA’s ecological risk guidelines,” 17 Risk Policy Report 35 (1998) (noting that U.S. Environmental Protection Agency’s guidelines for ecological weight-of-evidence approaches to risk assessment fail to provide guidance); Glenn W. Suter, Susan M. Cormier, “Why and how to combine evidence in environmental assessments:  Weighing evidence and building cases,” 409 Sci. Total Env’t 1406, 1406 (2011) (noting arbitrariness and subjectivity of WOE “methodology”).

5 See Igor Linkov, Drew Loney, Susan Cormier, F. Kyle Satterstrom, and Todd Bridges, “Weight-of-evidence evaluation in environmental assessment: review of qualitative and quantitative approaches,” 407 Sci. Total Env’t 5199, 5203 (2009).

6 See, e.g., People v. Collier, 146 A.D.3d 1146, 1147-48, 2017 NY Slip Op 00342 (N.Y. App. Div. 3d Dep’t, Jan. 19, 2017) (rejecting appeal based upon defendant’s claim that conviction was against “weight of the evidence”); Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014) (noting “new trial is appropriate if the jury’s verdict is against the manifest weight of the evidence”).

7 David L. Faigman, Christopher Slobogin & John Monahan, “Gatekeeping Science: Using the Structure of Scientific Research to Distinguish Between Admissibility and Weight in Expert Testimony,” 110 Northwestern L. Rev. 859, 865 (2016) (“An expert economist in an employment discrimination case who admittedly fails to control for a key variable such as seniority or wage structure in a regression analysis has committed a general error that should lead to exclusion by a judge… .”).

Slemp Trial Part 5 – Daniel W. Cramer

July 24th, 2017

The case of talc and ovarian cancer is a difficult and close case on general causation. Although I do not believe that the plaintiffs have made their case, their causal claims do not have the usual earmarks of “junk science,” so readily visible in many other litigations, such as the Zoloft birth defects cases.

Dr. Daniel Cramer is a physician and an epidemiology. He holds the title of professor of epidemiology at the Harvard University Chan School Of Public Health, as well as a professor of obstetrics, gynecology, and reproductive biology, at the Harvard Medical School. The plaintiffs called Cramer to testify on causation issues.

Cramer could have been purely duplicative as a witness, but he was used primarily on specific causation with a big boost on general causation because of his many publications on talc and ovarian cancer (a subject generally missing from Graham Colditz’s C.V.). The planned testimony for Cramer was to try to present the causal attribution of Slemp’s tumor to talc, with the understanding that since specific implied general causation, the plaintiff would obtain corroborating testimony on general causation as well.

With respect to Slemp’s known risk factors, such as her massive obesity and heavy smoking history, Cramer attempted to quantify her ex ante risks based upon her medical chart and from using risk ratios from available epidemiologic studies. Predictably, Cramer tried to diminish these ex ante risks by a highly selective reading of Slemp’s charts, but he ably deflected cross-examination criticisms by characterizing questions as quibbles and volunteering that he was not trying to ascribe plaintiff’s ovarian cancer exclusively to talc. Similarly, Cramer attempted to present the highest ex ante risk ratio for Slemp’s talc exposure, through his characterizations of her case as involving bilateral tumors and other features. Cramer tried to diminish the risk factor of obesity by claiming that fat women use talc more and that there was “synergy” between obesity and talc use. Cramer never described the evidentiary basis for this claimed synergy, or whether it was multiplicative or something less dramatic.

Interestingly, risk ratios from groups (epidemiologic studies) were used to describe her individual risks. The defense did not actively challenge this procedure. The premise of Cramer’s approach was that if an individual patient had a previous exposure or lifestyle variable that has been causally associated with ovarian cancer, then those exposures and lifestyle variables all participating in actually causing the patient’s cancer. As noted in the summary of Graham Colditz’s testimony, this assumption by Cramer is disputed. Cramer never attempted to justify the assumption by reference to any body of scientific evidence, or text. For Mrs. Slemp, Cramer opined that talc (as well as obesity and smoking) caused her serous borderline ovarian tumors. This conclusion was driven by his assumption that if Slemp had an exposure to a known cause of ovarian cancer, then it must have played a “substantial” role in causing the cancer.

Cross-Examination

The defense vigorously challenged Cramer for having failed to discuss causation in his publications. Most of these publications were epidemiologic studies, which did not necessarily provide an opportunity for full-ranging discussions of causal conclusions. Cramer effectively parried by noting that causation is not established by a single study, and single-study reports were not an appropriate vehicle for a full review and analysis of causation. As for his reviews and opinion pieces, Cramer defended his failure to state a clear causal conclusion on grounds that he had urged warning labels for personal talc products, and that a causal conclusion was not needed to justify such a warning because even a potential risk of ovarian cancer outweighed the negligible benefit of using talc in personal hygiene.

The defense plowed on with its claim that many studies lacked statistical significance, but Cramer generally lost defense counsel in technical details. For Cramer’s estimation of Slemp’s ex ante risk ratio from talc exposure, the defense challenged Cramer’s use of a one-tailed test of significance1. Cramer offered a half-hearted defense of a one-sided test in this context, and used the questions as an opportunity to repeat how low the p-value was with respect to the general association between talc and ovarian cancer. Cramer muddied the water by claiming that this calculation was superseded by further refinement of his estimate, which took into account the bilaterality of Slemp’s tumors, which obviated his one-sided confidence interval calculation. Although the details were not entirely forthcoming, the jury would not likely have seen this exchange as anything other than a quibble. The defense’s claim that Cramer had violated the “rules of epidemiology” never got off the ground, and given that the defense never presented an epidemiologist, the claim of counsel never was grounded in actual evidence.

Counterfactual Causation

The most important cross-examination of Dr. Cramer came from both J & J’s and Imerys’ counsel on the issue of counterfactual causation. Defense counsel asked Cramer, in several different ways, whether Ms. Slemp would have avoided having ovarian cancer if she had not used talc. Cramer stridently and belligerently refused to answer the question. The trial judge showed no interest in obtaining an answer to these questions. In the last effort to obtain a response from Cramer on “but for” causation, Cramer simply refused:

“I am not going to opine on the topic because it is not the task I was charged with.”

In other words, plaintiffs’ counsel and Cramer had discussed his inability to answer the counterfactual question, and decided it was simply better not respond to the question altogether. Since Mr. Smith, plaintiffs’ counsel, did not “task” him with counterfactual causation, Cramer was not going to answer it. Cramer’s intransigence was remarkable because the counterfactual question is an important component to causal inference in epidemiologic science. See, e.g., Michael Höfler, “Causal inference based on counterfactuals,” 5 BMC Med. Research Methodology 28 (2005).

In law, as in science, the counterfactual questions put to Cramer, are essential. Conduct or a product cannot be a legal cause of harm unless that cause alone, or acting in concert with other causes, was enough to result in the injury. Although legal treatises speak of “substantial factor,” the American Law Institute (ALI) defined that phrase (outside the context of overdetermined effects) negatively to make clear that “the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.” Restatement (Second) of Torts § 432 (1965).

Given the mischief generated by some courts and commentators2 with respect to “substantial factor,” the ALI abandoned the phrase altogether in its most recent Restatement of the law of torts. In the current Restatement, the ALI has emphasized that the imposition of liability require that the harm claimed is one that would not have occurred in the absence of (“but for”) the defendant’s negligent conduct. Restatement (Third) of Torts: Physical and Emotional Harm § 26 cmt. J (2010); see also June v. Union Carbide Corp., 577 F.3d 1234, 1244 (10th Cir. 2009) (no material difference between Second and Third Restatements; holding that ‘‘a defendant cannot be liable to the plaintiff unless its conduct is either (a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a causal set that (probably) would have caused the injury in the absence of other causes.’’).

Dr. Cramer’s refusal to answer the key counterfactual question about talc and Ms. Slemp’s ovarian cancer points to a lawlessness, both scientific and legal, in the proceedings in St. Louis, Missouri.


1 SeeFAQ: What are the differences between one-tailed and two-tailed tests?” Institute for Digital Research and Education.

2 See David A. Fischer, “Insufficient Causes,” 94 Kent. L. J. 277, 277 (2005-06) (criticizing judicial obtuseness in misinterpreting the earlier Restatement’s use of “substantial factor”).