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


September 5th, 2017

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

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

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

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

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

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

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

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

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

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

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

Lies, False Memories, or Bad Biochemistry?

February 23rd, 2015

NBC suspended Brian Williams for six months for a bout of misremembering[1]. The electronic media hardly skipped a sine wave. David Brooks thinks that the public reaction was “barbaric” [sic][2], and counseled more empathy. Indeed, some commentators jumped on Williams’ apology as an admission of lying.[3] Science Times writer Parker-Pope more charitably asked whether Brian Williams was a victim of false memory[4]. The media fretted that Williams, their most trustworthy voice and face, had undermined the public’s trust in the major news services. Why worry though? There was little trust in the nightly news programs that serve up news as entertainment.

Memory is key to what trial lawyers do in presenting evidence in support of historical narrative about events that took place in the past. False memory, whether the innocent or guilty kind, is a major threat to the judicial system’s attempt to discern the truth based upon narrative testimony. Lawyers recognize that memories are fragile and subject to manipulation. The tenuous connection between past events and current recollection is an omnipresent challenge to the basic process of juridical fact finding. The most cynical members[5] of the bar, no doubt, exploit the amorphous quality of memory, but even at its best, memory can be a slender reed to support our judgments.

Consider the criminal prosecution against Adnan Syed, which turned on the dodgy testimony of Jay Wilds. As recounted in Sarah Koenig’s Serial podcasts, the State of Maryland tried Syed twice. The first trial ended in a mistrial before the case could be submitted to a jury. The murder charges turned on factual accounts of one witness, Jay Wilds, who gave a wildly different account each time he talked about his participation in the cover up of the murder of Hae Min Lee.

Koenig’s series not only breathed life into Syed’s efforts to obtain a hearing on his ineffective assistance challenge, but they demonstrated the power of hindsight and other cognitive bias in the criminal justice system, as well as in all human endeavors[6]. Witnesses, including Syed, struggled to give accurate accounts of past events, even a few weeks after the fact, whatever that was.

Every lawyer who has tried cases can recount instances in which witnesses failed to recall, or recalled erroneously, essential facts in the litigation. In one recent case I had in upstate New York, a witness, who appeared very honest to the defense counsel in the deposition room, testified that he had never seen or read any warnings concerning crystalline silica in the pottery factory, where had worked for several decades. When the employer produced documents from its safety program, the documentary record showed that the plaintiff sat on a safety committee, and that he had helped to prepare safety warning placards for the workplace. Memories are like that, especially when they are inconvenient.

In 2013, Mauro Costa-Mattioli and his research group showed that actin polymerization, fostered by the mTORC2 pathway, is essential for long-term memory in mice and flies. See Wei Huang,Ping Jun Zhu, Shixing Zhang, Hongyi Zhou, Loredana Stoica, Mauricio Galiano, Krešimir Krnjević, Gregg Roman & Mauro Costa-Mattioli, “mTORC2 controls actin polymerization required for consolidation of long term memory,” 16 Nature Neurosci. 441 (2013). Well, perhaps Brian Williams simply had a surfeit of actin polymerization working to remodel his memory in a false and misleading way? And perhaps my plaintiff had a deficit of actin remodeling of his neurons?

[1] Emily Steel & Ravi Somaiya, “Brian Williams Suspended From NBC for 6 Months Without Pay,” N.Y. Times (Feb. 10, 2015).

[2] David Brooks, “The Act of Rigorous Forgiving,” N.Y. Times (Feb. 10, 2015). Brooks would probably think this use of “sic” was barbaric rather than merely barbarous pedantry in pointing out a diction error.

[3] “NBC’S Brian Williams admits on air to lying: Apologizes for bogus story of his ‛personal heroics’.”

[4] Tara Parker-Pope, “Was Brian Williams a Victim of False Memory?” N.Y. Times (Feb. 9, 2015). (The print edition contained a different, more biting headline: “False Memory vs. Bald Faced Lie”).

[5] See “Preparing for your deposition” a.k.a. the Baron & Budd asbestos memo” Wikipedia; Walter Olson, “Thanks for the Memories: How lawyers get the testimony they want,” Reason (June 1998).

[6] Not everyone agrees. JaneAnne Murray, a lawyer with criminal defense experience, took a surprising approach in suggesting that Adnan Syed should have pleaded guilty, in part because the prosecution’s case against Syed was strong. See JaneAnne Murray, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty,” N.Y. Times (Jan. 22, 2015) (“In this case, the injustice may lie not in the conviction, but in the failure to negotiate the charges. The unstructured presentation of the facts in “Serial” obscured a strong case for the prosecution.”). Actually, Koenig’s Serial podcasts appeared to play down the strength of the defense, and what should and could have been done with the testimony of the chief prosecution witness, Jay Wilds. Koenig lauded Syed’s defense lawyer, Cristina Gutierrez, as having a reputation for brillance, which seemed conspicuously absent in the segments of trial tapes excerpted on Serial. In any event, the Maryland Special Court of Appeals has only recently granted Syed an appeal on his claim for post-conviction relief. Emma G. Fitzsimmons, “Appeal to Be Heard in ‘Serial’ Murder Case,” N.Y. Times (Feb. 7, 2015).