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

The Plague and Quackery Right & Left

June 19th, 2020

Earlier this week, the U.S. Food and Drug Administration announced the revocation of its emergency use authorization for chloroquine and hydroxychlorine (HCQ).[1] The FDA had originally granted the emergency use authorization for HCQ, on March 28, 2020, but its continued review found that the drug was “unlikely to be effective at treating COVID-19” and the potential risks of HCQ use outweigh any potential benefits. The Agency action was in line with the evolving standard of care for COVID-19, and the available evidence from clinical trials. The medical community applauded, but the Trump Administration, which had been stockpiling HCQ, labeled the revocation as “a Deep State blindside by bureaucrats who hate the administration they work for more than they’re concerned about saving American lives.”[2]

For weeks, Donald John Trump, the short-fingered vulgarian, the Orange Man, the loser of the 2016 popular vote, the Narcissist-in-Chief of the United States, has been hawking the anti-malarial medication HCQ as a potential therapy for COVID-19. Trump’s first public endorsement of HCQ came on March 19, 2020, after its use had been thoroughly scientifically vetted for a few days by talking heads at Fox News.[3] Foxy Laura Ingraham interviewed lawyer Gregory Rigano, author of one of the HCQ papers, who announced to Laura that HCQ can “just get rid of [the virus] completely.”

On April 24, the FDA “issued an alert warning doctors against prescribing the drug for COVID-19 outside of hospitals and research settings because of the risks of serious side effects and death.” Although Trump may be stupid, he is strong and resolute. On May 18, 2020, the nominal President of the United States, announced that he is taking hydroxychloroquine (HCQ), an anti-malaria medication that he had been hyping for months as a potential treatment for COVID-19.[4] When pressed for why he was taking HCQ for prophylaxis, Trump explained his basis:

“Here we go. Are you ready? Here’s my evidence. I get a lot of positive calls about it.”

Although Drs. Anthony Fauci and Deborah Birx have clearly explained that there was insufficient evidence to conclude that HCQ was efficacious in treating COVID-19, and no evidence that HCQ was preventative, Agent Orange followed the playbook he inherited early in life from Roy Cohen: never apologize, never acknowledge you have been wrong, just change the conversation.[5]

Trump’s embrace of HCQ was peculiar in the face of his usual disregard for prophylactics. Of course, Agent Orange’s advocacy for HCQ arose in the context of another lie: virus denial. Trump acolyte Rush Limbaugh has asseverated that the viral agent behind COVID-19 is

“‘the common cold’ that’s being ‘weaponized’ against Trump.”

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

“Now, I want to tell you the truth about the coronavirus. … Yeah, I’m dead right on this. The coronavirus is the common cold, folks.”[6]

In the United Kingdom, men who have contributed greatly to an activity and who have gained national and international respect are knighted by the Queen and become Knight Commanders of the Most Excellent Order of the British Empire. In the United States, the President awards the National Medal of Freedom. During this year’s state-of-the-union address, Trump, while ignoring warnings of the COVID-19 pandemic, awarded the Medal to master trash-talker Rush Limbaugh. Remarkably, the toxicity of Agent Orange is manifested in support for both virus denial and for a bogus therapy.

Evidence is never really necessary for opinion, as Trump has taught us. For his endorsement of HCQ, Trump has, however, the opinion of “experts,” at the Association of American Physicians & Surgeons (AAPS). The AAPS has been stridently championing the cause of HCQ with what can be called only scientific propaganda,[7] including the debunked study by Didier Raoult, which has drawn a statement of concern from the scientific group, International Society of Antimicrobial Chemotherapy (ISAC), which publishes the journal in which Raoult’s results appeared.[8] The AAPS also relied upon claims made Vladimir Zelenko about 1,554 patients, for which he had “published no data, described no study design, and reported no analysis.” And since no quackfest would be complete without hard evidence from Mehmet Cengiz Öz, commonly known as Dr. Oz, the AAPS has dutifully reported that Oz had two patients to whom he gave HCQ, and both survived.

The HCQ issue is not the AAPS’s first quack rodeo. Those who follow the organization will sense déjà vu.[9] A sampler of AAPS’ scientific contributions to public policy debates include:

Abortion and Breast Cancer. The AAPS, on shoddy evidence, jumped on the issue whether abortion causes breast cancer, in 2002, to equate abortion for a teenager as “child abuse,” because the procedure will cause a “30% risk of breast cancer in her lifetime.” The AAPS ignored better and fairly definitive evidence of no association.

Vaccination and Austim. The AAPS has unrepentantly engaged in anti-vaccination propaganda. While acknowledging the scientific consensus against the claim that vaccines cause autism, the group raised hyperbolic doubts and threw itself in with conspiracy theorists to oppose mandatory vaccination.[10] When a measles outbreak occurred in Florida, in 2015, the AAPS issued a news release that “linked” autism with the measles vaccine.

HIV and AIDS. Despite the careful and well-documented conclusion of the National Academy of Science, in 1988, that AIDS was caused by a virus, HIV, the AAPS remains unconvinced. As recently as 2015, the AAPS, through its Executive Director Jane Orient, has questioned the connection and the standard-of-care treatment for HIV infection.

Barak Obama and Hypnotic Induction. In 2008, the AAPS website published an article that condemned Obama’s use of covert hypnotic techniques, which the group traced to Milton H. Erickson’s so-called neurolinguistic programming. The AAPS cited to “An Examination of Obama’s Use of Hidden Hypnosis Techniques in His Speeches,” a 67-page, unpublished, unsigned manuscript, on a right-wing conspiracy website, which no longer seems to have this masterpiece. Fortunately, the “proof” is still available online.

If the AAPS appears to trade in all manner of scientific quackery with a distinctive Republican flavor, then you will not be surprised that its General Counsel is Andrew Schafly, son of the late Phyllis Schafly (1924-2016). Mom was the Grand Dame of the know-nothing Republican party after she helped kill off the Nelson Rockefeller wing of the G.O.P.

Under Andrew Schafly’s deft legal guidance, the AAPS sued the FDA,[11] on June 2, 2020 to end “its arbitrary interference with the use of hydroxychloroquine.”[12] Schafly proudly cited his support for HCQ, which President Trump and other world leaders have taken as a prophylaxis against COVID-19.

The June 2nd AAPS Press Release generously cites and quotes Andrew Schafly’s pronouncements that

“that if everyone [sic] was allowed to take hydroxychloroquine, there would be no need for any social distancing or restrictions on mass gatherings”


“Entrenched, politically biased officials at the FDA should not be allowed to interfere with Americans’ right to access medication donated to the federal government for public use. … By preventing Americans’ use of HCQ as a prophylaxis, the FDA is infringing on First Amendment rights to attend religious services or participate in political events such as political conventions, town halls, and rallies in an important election year.”[13]

The litigious Mr. Schafly claims that “[t]here is no legal or factual basis for the FDA to limit use of HCQ,” and that the agency’s restrictions on HCQ are indefensible. The FDA was unmoved and proceeded yesterday to remove its emergency use authorization for HCQ.

We really did not need a plague to learn that Don Trumpolino and his acolytes were liars and buffoons. Still, the plague was, like so many other events, a great Rorschach epistemic test about care for the truth. In the 1980s, I thought that the toxicity of Agent Orange was exaggerated, but now that the theocons have dropped this weaponized Russian Agent Orange on the White House, I see that I was wrong. The entire country is suffering post-trumpatic stress disorder. We have all stepped in Tweety Turd. But why does truth have to be the first casualty?

The plague has, however, revealed the tenuous connection many United States citizens have with the truth. For anyone who has toiled in the American litigation stables, fragility of respect for truth is a given. Kurt Andersen’s book Fantasyland shows how exceptional Americans are when it comes to cults, conspiracies, fanaticism, fantasies, superstitions, and the like.[14] Andersen makes the point that more cults and new religions are spawned in the USA than in Europe or any else. No surprise then, when Andrew Wakefield was run out of the U.K., he found a warm embrace in the USA from RFK Jr. and Jenny McCarthy. Maybe the truth, small t, never had a chance in the United States, the land of Truth, big T, with its conspiracies and unbounded credulity.

Is American exceptionalism just another instance of the American public’s credulity? I would like to believe that our exceptionalism is real and tied to our great principles and the implicit promise that someday the promise of those principles will be kept.[15] Today, American exceptionalism looks more like an excuse to avoid our own Vergangenheitsbewältigung over slavery and genocide. We have an entrenched minority who adore the Confederacy and its pantheon of losers, traitors, and racists.

Even so, there are traps of untruthfulness on the left, as we see in the New Woke Times’ reinventing history to make slavery into an abuse of capitalism, when in fact slavery was the ultimate alienation of human beings from their labor through force, feudalism, and religion. Apologists for Southern chattel slavery criticized Northern “free labor” capitalism, but woke scholarship finds this inconvenient. Today, facts seem disposable on the left as well, with much needed calls for racial justice and police reform, larded down with virtue signaling and hand-waving excuse mongering for looting and failure to insist that all people stop resisting arrest. These are tough times for the truth.

[1]  FDA Press Release, “Coronavirus (COVID-19) Update: FDA Revokes Emergency Use Authorization for Chloroquine and Hydroxychloroquine” (June 15, 2020); Molly Walker, “HCQ No Longer Approved Even a Little for COVID-19 – Study after study showed no benefit, and now the FDA has had enough,” MedPage Today (June 15, 2020).

[2]  Sheryl Gay Stolberg, “A Mad Scramble to Stock Millions of Malaria Pills, Likely for Nothing,” N.Y. Times (June 16, 2020) (quoting Trump’s Trade Advisor Peter Navarro). Curiously, the Administration has ignored the emerging potentially good news about the efficacy of dexamethasone in treating seriously ill COVID-19 patients, as shown in a randomized clinical trial, which is not yet peer reviewed and published. Benjamin Mueller & Roni Caryn Rabin, “Common Drug Reduces Coronavirus Deaths, Scientists Report,” N.Y. Times (June 16, 2020).

[3]  Philip Bump, “The rise and fall of Trump’s obsession with hydroxychloroquine – Forty days of promotion, hype – and eventual retreat,” Wash. Post (April 24, 2020).

[4]  “Remarks by President Trump in a Roundtable with Restaurant Executives and Industry Leaders” (May 18, 2020).

[5]   Andrew Solender, “All The Times Trump Has Promoted HydroxychloroquineForbes (May 22, 2020).

[6]   Allyson Chiu, “Rush Limbaugh on coronavirus: ‘The common cold’ that’s being ‘weaponized’ against Trump,” Wash. Post (Feb. 25, 2020); See alsoThe corona virus is the common cold”; “Rush Limbaugh: coronavirus a ‘common cold’ being ‘weaponised’ against Trump,” The Guardian (Feb. 25, 2020). See generally Anthony Bardon, “Science Denial,” chap. 2, in The Truth About Denial: Bias and Self-Deception in Science, Politics, and Religion (2019) (exploring the role of cognitive dissonance, motivated reasoning, and confirmation bias, in science denialism).

[7]   “Hydroxychloroquine Has about 90 Percent Chance of Helping COVID-19 Patients,” AAPS (April 28, 2020).

[8]   The ISAC reported that Raoult’s work “does not meet the Society’s expected standard,” and that the ISAC was concerned “regarding the content, the ethical approval of the trial and the process that this paper underwent.”

[9]  David Gorski, “The Association of American Physicians and Surgeons: Ideology trumps science-based medicine,” Science-Based Med. (June 23, 2008).

[10]   AAPS, “Statement on Federal Vaccine Mandates” (Feb. 26, 2019).

[11]   The AAPS complaint is available at its website:

[12]   “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine,” AAPS (June 2, 2020).

[13]    Id.

[14]  Kurt Andersen, Fantasyland: How America Went Haywire – A 500-Year History (2017).

[15]  See, e.g., People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811) (Kent, C.J.) (holding that common law of crime prohibited blasphemy but only for blasphemy against Chancellor Kent’s own religious superstitions).

A New Egilman Bully Pulpit

February 19th, 2020

Larding Up the Literature

Another bio-medical journal? In October 2019, The Journal of Scientific Practice and Integrity published its inaugural volume one, number one issue, online. This journal purports to cover scientific integrity issues, which may well not be adequately covered in the major biomedical journals. There are reasons to believe, however, that this journal may be more of a threat to scientific integrity than a defender.

The journal describes itself:

“an interdisciplinary, peer-reviewed journal that publishes scholarly debate and original research on scientific practices that impact human and environmental health.”

The editorial board reads like a Who’s Who’s list of “political scientists” who testify a LOT for claimants, and who, when not working for the lawsuit industry, practice occupational and environmental medicine for the redistribution of wealth in the Western world.

David Egilman, contemnor and frequent plaintiffs’ expert witness in personal injury litigation is editor in chief. Tess Bird, an Egilman protégé, is managing editor. Another Egilman protégé, Susana Rankin Bohme, an associate Director of Research at Corporate Accountability International, also sits on the editorial board. You may be forgiven for believing that this journal will be an Egilman vanity press.

The editorial board also includes some high-volume testifying plaintiffs expert witnesses:

Peter Infante, of Peter F. Infante Consulting, LLC, Virginia

Adriane Fugh-Berman, of PharmedOut

Barry Castleman,

William E. Longo, President, MAS, LLC

David Madigan,

Michael R. Harbut, and

David Rosner and Gerald Markowitz, my favorite left-wing radical historians.

The journal identifies the Collegium Ramazzini as one of its partners. Cute the “Интернационал”!

The first issue of this new journal features a letter[1] from the chief and managing editors, Egilman and Bird, which states wonderfully aspirational goals. The trick will be whether the journal can apply its ethical microscope to all actors in the world of scientific publishing, or whether this new journal is just not another propaganda outlet for the special pleading by the lawsuit industry.

[1]  Tess Bird & David Egilman, “Letter from the Editors: An Introduction to the Journal of Scientific Practice and Integrity,” 1 J. Sci. Practice & Integrity 1 (2019).

Counter Cancel Culture Part III – Fixing Science

February 14th, 2020

This is the last of three posts about Cancel Culture, and the National Association of Scholars (NAS) conference on Fixing Science, held February 7th and 8th, in Oakland, California.

In finding my participation in the National Association of Scholars’ conference on Fixing Science, “worrying” and “concerning,” John Mashey takes his cues from the former OSHA Administrator, David Michaels. David Michaels has written much about industry conflicts of interests and efforts to influence scientific debates and discussions. He popularized the notion of “manufacturing doubt,”[1] with his book of that title. I leave it to others to decide whether Mashey’s adverting to Michaels’ work, in finding my writings on silica litigation “concerning” and “worrying,” is itself worrisome. In order to evaluate Mashey’s argument, such as it is, the reader should know something more about David Michaels, and his publications.[2]

As one might guess from its title, The Triumph of Doubt: Dark Money and the Science of Deception, Michaels’ new book s appears to be a continuation of his attack on industry’s efforts to influence regulation. I confess not to have read this new book yet, but I am willing to venture a further guess that the industry Michaels is targeting is manufacturing industry, not the lawsuit industry, for which he has worked on many occasions. There is much irony (and no little hypocrisy) in Michaels’ complaints about dark money and the science of deception. For many years, Michaels ran the now defunct The Project on Scientific Knowledge and Public Policy (SKAPP), which was bankrolled by the plaintiffs’ counsel in the silicone gel breast implant litigation. Whenever SKAPP sponsored a conference, or a publication, the sponsors or authors dutifully gave a disclosure that the meeting or publication was underwritten by “a grant from the Common Benefit Trust, a fund established pursuant to a federal court order in the Silicone Gel Breast Implant Products Liability litigation.”

Non-lawyers might be forgiven for thinking that SKAPP and its propaganda had the imprimatur of the federal court system, but nothing could be further from the truth. A common benefits fund is the pool of money that is available to plaintiffs’ lawyers who serve on the steering committee of a large, multi-district litigation, to develop expert witnesses, analyze available scientific studies, and even commission studies of their own.[3] The source of the money was a “tax” imposed upon all settlements with defendants, which funneled the money into the so-called common benefits fund, controlled by the leadership of the plaintiffs’ counsel. When litigating the silicone gel breast implant cases involving claims of autoimmune disease became untenable due to an overwhelming scientific consensus against their causal claims,[4] the leadership of the plaintiffs’ steering committee gave the remaining money to SKAPP, rather than returning the money to the plaintiffs themselves.  David Michaels and his colleagues at SKAPP then misrepresented the source of the money as coming from a “trust fund” established by the federal court, which sounded rather like a neutral, disinterested source. This fund, however, was “walking around” money for the plaintiffs’ lawyers, which belonged to the settling plaintiffs, and which was diverted into a major propaganda effort against the judicial gatekeeping of expert witness opinion testimony.[5] A disinterested reader might well believe that David Michaels thus has some deep personal experience with “dark money,” and “the science of deception.” Mashey might be well advised to consider the adjacency issues raised by his placing such uncritical trust in what Michaels has published.

Regardless of David Michaels’ rhetoric, doubt is not such a bad thing in the face of uncertain and inconclusive evidence. In my view, we could use more doubt, and open-minded thought. Bertrand Russell is generally credited with having written some years ago:

“The biggest cause of trouble in the world today is that the stupid people are so sure about things and the intelligent folks are so full of doubts.”

What are we to make then of the charge by Dorothy Bishop that the conference would not be about regular scientific debate, but

“about weaponising the reproducibility debate to bolster the message that everything in science is uncertain — which is very convenient for those who wish to promote fringe ideas.”

I attended and presented at the conference because I have a long-standing interest in how scientific validity is assessed in the scientific and in the legal world. I have been litigating such issues in many different contexts for over 35 years, with notable scientific experts occasionally on either side. One phenomenon I have observed repeatedly is that expert witnesses of the greatest skill, experience, and knowledge are prone to cognitive biases, fallacies, and other errors. One of my jobs as a legal advocate is to make sure that my own expert witnesses engage fully with the evidence as well as how my adversaries are interpreting the evidence. In other words, expert witnesses of the highest scientific caliber succumb to biases in interpreting studies and evidence.

A quick anecdote, war story, will I hope make the point. A few years ago, I was helping a scientist get ready to testify in a case involving welding fume exposure and Parkinson’s disease. The scientist arrived with some PowerPoint slides, one of which commented that a study relied upon by plaintiffs’ expert witnesses had a fatal design flaw that rendered its conclusions invalid. Another slide embraced a study, sponsored by a co-defendant company, which had a null result but the same design flaw called out in the study used by plaintiff’s witnesses. It was one in the morning, but I gently pointed out the inconsistency, and the scientist immediately saw the problem and modified his slides.

The next day, my adversary noticed the lack of the codefendant’s study in the group of studies this scientist had relied upon. He cross-examined the scientist about why he had left out a study, which the codefendant had actually sponsored. The defense expert witness testified that the omitted study had the same design flaw as seen in the study embraced by plaintiffs’ expert witnesses, and that it had to be consigned to the same fate. The defense won this case, and long after the celibration died down, I received a very angry call from a lawyer for the codefendant. The embrace of bad studies and invalid inferences is not the exclusive province of the plaintiffs’ bar.

My response to Dorothy Bishop is that science ultimately has no political friends, although political actors will try to use criteria of validity selectively to arrive at convenient, and agreeable results. Do liberals ever advance junk science claims? Just say the words: Robert F. Kennedy, Jr. How bizarre and absurd for Kennedy to come out of a meeting with Trump’s organization, to proclaim a new vaccine committee to investigate autism outcomes! Although the issue has been explored in detail in medical journals for the last two decades, apparently there can even be bipartisan junk science. Another “litmus test” for conservatives would be whether they speak out against what are, in my view, unsubstantiated laws in several “Red States,” which mandate that physicians tell women who are seeking abortions that abortions cause breast cancer. There have been, to be sure, some studies that reported increased risks, but they were mostly case-control studies in which recall and reporting biases were uncontrolled. Much better, larger cohort studies done with unbiased information about history of abortions failed to support the association, which no medical organization has taken to be causal. This is actually a good example of irreproducibility that is corrected by the normal evolutionary process of scientific research, with political exploitation of the earlier, less valid studies.

Did presenters at the Fixing Science conference selectively present and challenge studies? It is difficult for me to say, not having a background in climate science. I participated in the conference to talk about how courts deal with problems of unreliable expert witness testimony and reliance upon unreliable studies. But what I heard at the conference were two main speakers argue that climate change and its human cause were real. The thrust of the most data-rich presentation was that many climate models advanced are overstated and not properly calibrated.  Is Bishop really saying that we cannot have a civil conversation about whether some climate change models are poorly done and validated? Assuming that the position I heard is a reasonable interpretation of the data and the models, it establishes a “floor” in opposition to the ceilings asserted by other climate scientists. There are some implications; perhaps the National Association of Scholars should condemn Donald Trump and others who claim that climate change is a hoax. Of course, condemning Trump every time he says something false, stupid, and unsupported would be a full time job. Having staked out an interest climate change, the Association might well consider balancing the negative impression others have of it as “deniers.”

The Science Brief

Back in June 2018, the National Association of Scholars issued a Science Brief, which it described as its official position statement in the area. A link to the brief online was broken, but a copy of the brief was distributed to those who attended the Fixing Science conference in Oakland. The NAS website does contain an open letter from Dr. Peter Wood, the president of the NAS, who described the brief thus:

“the positions we have put forward in these briefs are not settled once and for all. We expect NAS members will critique them. Please read and consider them. Are there essential points we got wrong? Others that we left out? Are there good points that could be made better?

We are not aiming to compile an NAS catechism. Rather, we are asked frequently by members, academics who are weighing whether to join, reporters, and others what NAS ‘thinks’ about various matters. Our 2,600 members (and growing) no doubt think a lot of different things. We prize that intellectual diversity and always welcome voices of dissent on our website, in our conferences, and in our print publications. But it helps if we can present a statement that offers a first-order approximation of how NAS’s general principles apply to particular disciplines or areas of inquiry.

We also hope that these issue briefs will make NAS more visible and that they will assist scholars who are finding their way in the maze of contemporary academic life.

As a preface to an attempt to address general principles, Peter Wood’s language struck me as liberal, in the best sense of open-minded and generous in spirit to the possibility of reasoned disagreement.

So what are the NAS principles when it comes to science? Because the Science Brief seems not to be online at the moment, I will quote it here at length:


The National Association of Scholars (NAS) supports the proper teaching and practice of science: the systematic exercise of reason, observation, hypothesis, and experiment aimed at understanding and making reliable predictions about the material world. We work to keep science as a mode of inquiry engaged in the disinterested pursuit of truth rather than a collection of ‘settled’ conclusions. We also work to integrate course requirements in the unique history of Western science into undergraduate core curricula and distribution requirements. The NAS promotes scientific freedom and transparency.

We support researchers’ freedom to formulate and test any scientific hypothesis, unconstrained by political inhibitions. We support researchers’ freedom to pursue any scientific experiment, within ethical research guidelines. We support transparent scientific research, to foster the scientific community’s collective search for truth.

The NAS supports course requirements on the history and the nature of the Western scientific tradition.

All students should learn a coherent general narrative of the history of science that tells how the scientific disciplines interrelate. We work to restore core curricula that include both the unique history of Western science and an introduction to the distinctive mode of Western scientific reasoning. We also work to add new requirements in statistics and experimental design for majors and graduate students in the sciences and social sciences.

The NAS works to reform the practice of modern science so that it generates reproducible results. Modern science and social science are crippled by a crisis of reproducibility. This crisis springs from a combination of misused statistics, slipshod research techniques, and political groupthink. We aim to eliminate the crisis of reproducibility by grounding scientific practice in the meticulous traditions of Western scientific thought and rigorous reproducibility standards.

The NAS works to eliminate the politicization of undergraduate science education.

Our priority is to dismantle advocacy-based science, which discards the exercise of rational skepticism in pursuit of truth when it explicitly declares that scientific inquiry should serve policy advocacy. We therefore work to remove advocacy-based science from the classroom and from university bureaucracies. We also criticize student movements that demand the replacement of disinterested scientific inquiry with advocacy-based science. We focus our critiques on disciplines such as climate science that are mostly engaged in policy advocacy.

The NAS tracks scientific controversies that affect public policy, studies the remedies that scientists propose, and criticizes laws, regulations, and proposed policies based upon advocacy-based science.

We do this to prevent a vicious cycle in which advocacy-based science justifies the misuse of government – and private funding to support yet more advocacy-based science. We also work to reform the administration of government science funding so as to prevent its capture by advocacy-scientists.  The NAS’s scientific reports draw on the expertise of its member scholars and staff, as well as independent scholars. Our aim is to provide professionally credible critiques of America’s science education and science-based public policy.

John Mashey in his critique of the NAS snarkily comments that folks at the NAS lack the expertise to make the assessments they call for. Considering that Mashey is a computer scientist, without training in the climate or life sciences, his comments fall short of their mark. Still, if he were to have something worthwhile to say, and he supported his statements by sufficient evidence and reasoning, I believe we should take it seriously.

Nonetheless, the NAS statement of principles and concerns about how science and statistics is taught are unexceptional. I suspect that neither Mashey nor anyone else is against scientific freedom, methodological rigor,  and ethical, transparent research.

The scientific, mathematical, and statistical literacy of most judges and lawyers, is poor indeed. The Law School Admission Test (LSAT) does not ask any questions about statistical reasoning. A jury trial is not a fair, adequate opportunity to teach jurors the intricacies of statistical and scientific methods. Most medical schools still do not teach a course in experimental design and statistical analysis. Until recently, the Medical College Acceptance Test (MCAT) did not ask any questions of a statistical nature, and the test still does not require applicants to have taken a full course in statistics. I do not believe any reasonable person could be against the NAS’s call for better statistical education for scientists, and I would add for policy makers. Certainly, Mashey offers no arguments or insights on this topic.

Perhaps Mashey is wary of the position that we should be skeptical of advocacy-based science, for fear that climate-change science will come in for unwelcomed attention. If the science is sound, the data accurate, and the models valid, then this science does not need to be privileged and protected from criticism. Whether Mashey cares to acknowledge the phenomenon or not, scientists do become personally invested in their hypotheses.

The NAS statement of principles in its Science Brief thus seems worthy of everyone’s support. Whether the NAS is scrupulous in applying its own principles to positions it takes will require investigation and cautious vigilance. Still, I think Mashey should not judge anyone harshly lest he be so judged. We are a country of great principles, but a long history of indifferent and sometimes poor implementation. To take just a few obvious examples, despite the stirring words in the Declaration of Independence about the equality of all men, native people, women, and African slaves were treated in distinctly unequal and deplorable ways. Although our Constitution was amended after the Civil War to enfranchise former slaves, our federal government, after an all-too-short period of Reconstruction, failed to enforce the letter or the spirit of the Civil War amendments for 100 years, and then some. Less than seven years after our Constitution was amended to include freedom from governmental interference with speech or publication, a Federalist Congress passed the Alien and Sedition Acts, which President Adams signed into law in 1798. It would take over 100 years before the United States Supreme Court would make a political reality of the full promise of the First Amendment.

In these sad, historical events, one thing is clear. The promise and hope of clearly stated principles did prevail. To me, the lesson is not to belittle the principles or the people, but to hold the latter to the former.  If Mashey believes that the NAS is inconsistent or hypocritical about its embrace of what otherwise seems like worthwhile first principles, he should say. For my part, I think the NAS will find it difficult to avoid a charge of selectivity if it were to criticize climate change science, and not cast a wider net.

Finally, I can say that the event sponsored by the Independent Institute and the NAS featured speakers with diverse, disparate opinions. Some speakers denied that there was a “crisis,” and some saw the crisis as overwhelming and destructive of sound science. I heard some casual opinions of climate change skepticism, but from the most serious, sustained look at the actual data and models, an affirmation of anthropogenic climate change. In the area of health effects, the scientific study more relevant to what I do, I heard a fairly wide consensus about the need to infuse greater rigor into methodology and to reduce investigators’ freedom to cherry pick data and hypotheses after data collection is finished. Even so, there were speakers with stark disagreement over methods. The conference was an important airing and exchanging of many ideas. I believe that those who attended and who participated went away with less orthodoxy and much to contemplate. The Independent Institute and the NAS deserve praise for having organized and sponsored the event. The intellectual courage of the sponsors in inviting such an intellectually diverse group of speakers undermines the charge by Mashey, Teytelman, and Bishop that the groups are simply shilling for Big Oil.

[1]        David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (2008).

[2]        David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception (2020).

[3]        See, e.g., William Rubenstein, “On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be,” Class Action Attorney Fee Digest 87, 89 (March 2009).

[4]        In 1999, after much deliberation, the Institute of Medicine issued a report that found the scientific claims in the silicone litigation to be without scientific support. Stuart Bondurant, et al., Safety of Silicone Breast Implants (I.O.M. 1999).

[5]        I have written about the lack of transparency and outright deception in SKAPP’s disclosures before; seeSKAPP A LOT” (April 30, 2010); “Manufacturing Certainty” (Oct. 25, 2011); “The Capture of the Public Health Community by the Litigation Industry” (Feb. 10, 2014); “Daubert’s Silver Anniversary – Retrospective View of Its Friends and Enemies” (Oct. 21, 2018); “David Michaels’ Public Relations Problem” (Dec. 2, 2011)

Counter Cancel Culture – Part II: The Fixing Science Conference

February 12th, 2020

So this is what it is like to be denounced? My ancestors fled the Czar’s lands before they could be tyrannized by denunciations of Stalin’s Soviets. The work of contemporary denunciators is surely much milder, but no more principled than the Soviet versions of yesteryear.

Now that I am back from the Fixing Science conference, sponsored by the Independent Institute and the National Association of Scholars (NAS), I can catch up with the media coverage of the event. I have already addressed Dr. Lenny Teytelman’s issues in an open letter to him. John Mashey is a computer scientist who has written critical essays on climate science denial. On the opening day of the NAS conference, he published online his take on the recent NAS’s conference on scientific irreproducibility.[1] Mashey acknowledges that the Fixing Science conference included “credible speakers who want to improve some areas of science hurt by the use of poor statistical methods or making irreproducible claims,” but his post devolves into scurrilous characterizations of several presenters. Alas, some of the ad hominems are tossed at me, and here is what I have to say about them.

Mashey misspells my name, “Schactman,” but that is a minor flaw of scholarship. He writes that I have “published much on evidence,” which is probably too laudatory. I am hardly a recognized scholar on the law of evidence, although I know something about this area, and have published in it.

Mashey tautologically declares that I “may or may not be a ‘product defense lawyer’ (akin to Louis Anthony Cox) defending companies against legitimate complaints.” Mashey seems unaware of how the rule of law works in our country. Plaintiffs file complaints, but the standard for the legitimacy of these complaints is VERY low. Courts require the parties to engage in discovery of their claims and defenses, and then courts address dispositive motions to dismiss either the claims or the defenses. So, sometimes after years of work, legitimate complaints are revealed to be bogus complaints, and then the courts will dismiss bogus complaints, and thus legitimate complaints become illegitimate complaints. In my 36 years at the bar, I am proud to have been able to show that a great many apparently legitimate complaints were anything but what they seemed.

Mashey finds me “worrying” and “concerning.” My children are sometimes concerned about me, and even worry about me, about I do not think that Mashey was trying to express solicitude for me.

Why worry? Well, David Michaels in his most recent book, Triumph of Doubt (2020), has an entire chapter on silica dust. And I, worrisomely, have written and spoken, about silica and silicosis litigation, sometimes in a way critical of the plaintiffs’ litigation claims. Apparently, Mashey does not worry that David Michaels may be an unreliable protagonist who worked as a paid witness for the lawsuit industry on many occasions before becoming the OSHA Administrator, in which position he ignored enforcement of existing silica regulations in order to devote a great deal of time, energy, and money to revising the silica regulations. The evidentiary warrant for Michaels’ new silica rule struck me then, and now, as slim, but the real victims, workers, suffered because Michaels was so intent on changing a rule in the face of decades of declining silicosis mortality, that he failed, in my view, to attend to specific instances of over-exposure.

Mashey finds me concerning because two radical labor historians do not like me. (I think I am going eat a worm, ….) Mashey quotes at length from an article by these historians, criticizing me for having had the audacity to criticize them.[2] Oh my.

What Mashey does not tell his readers was that, as co-chair of a conference on silicosis litigation (along with a co-chair who was a plaintiffs’ lawyer), I invited historian Gerald Markowitz to speak and air his views on the history of silica regulation and litigation. In response, I delivered a paper that criticized, and I would dare say, rebutted many of Markowitz’s historical conclusions and his inferences from an incomplete, selectively assembled, and sometimes incorrect, set of historical facts. I later published my paper.

Mashey tells his readers that my criticisms, based not upon what I wrote, but upon the partisan cries of Rosner and Markowitz, “seems akin to Wood’s style of attack.” Well, if so, nicely done, Woods.

But does Mashey believe that his readers deserve to know that Rosner and Markowitz have testified repeatedly on behalf of the lawsuit industry, that is, those entrepreneurs who make lawsuits?[3] And that Rosner and Markowitz have been amply remunerated for their labors as partisan witnesses in these lawsuits?

And is Mashey worried or concerned that in the United States, silicosis litigation has been infused with fraud and deception, not by the defendants, but by the litigation industry that creates the lawsuits? Absent from Rosner and Markowitz’s historical narratives is any mention of the frauds that have led to dismissals of thousands of cases, and the professional defrocking of any number of physician witnesses.  In re Silica Products Liab. Litig., MDL No. 1553, 398 F. Supp. 2d 563 (S.D.Tex. 2005). Even the redoubtable expert witness for the plaintiffs’ bar, David S. Egilman, has published articles that point out the unethical and unlawful nature of the medico-legal screenings that gave rise to the silicosis litigation, which Michaels, Rosner, and Markowitz seem to support, or at the very least suppress any criticism of.[4]

So this is what it means to be denounced! Mashey’s piece is hardly advertisement for the intellectual honesty of those who would de-platform the NAS conference. He has selectively and inaccurately addressed my credentials. As just one example, and in an effort to diminish the NAS, he has omitted that I have received a grant from the NASEM to develop a teaching module on scientific causation. My finished paper is published online at the NASEM website.[5]

I do not know Mashey, but I leave it to you to judge him by his sour fruits.

[1]  John Mashey, “Dark-Moneyed Denialists Are Running ‘Fixing Science’ Symposium of Doubt,” Desmog Blog (Feb. 7, 2020).

[2]  David Rosner & Gerald Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009) (criticizing me for expressing the view that historians should not be permitted to testify and thereby circumvent the rules of evidence). See also David Rosner & Gerald Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009) (same); D. Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009) (same). I once thought there was an academic standard that prohibited duplicative publication!

[3] I have been critical of Rosner and Markowitz on many occasions; they have never really responded to the substance of my criticisms. See, e.g., “How Testifying Historians Are Like Lawn-Mowing Dogs,” (May 15, 2010).

[4]  See David Egilman and Susanna Rankin Bohme, “Attorney-directed screenings can be hazardous,” 45 Am. J. Indus. Med. 305 (2004); David Egilman, “Asbestos screenings,” 42 Am. J. Indus. Med. 163 (2002).

[5]  “Drug-Induced Birth Defects: Exploring the Intersection of Regulation, Medicine, Science, and Law – An Educational Module” (2016) (A teaching module designed to help professional school students and others evaluate the role of science in decision-making, developed for the National Academies of Science, Engineering, and Medicine, and its Committee on Preparing the Next Generation of Policy Makers for Science-Based Decisions).