TORTINI

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

Gatekeeping of Expert Witnesses Needs a Bair Hug

December 20th, 2017

For every Rule 702 (“Daubert”) success story, there are multiple gatekeeping failures. See David E. Bernstein, “The Misbegotten Judicial Resistance to the Daubert Revolution,” 89 Notre Dame L. Rev. 27 (2013).1 Exemplars of inadequate expert witness gatekeeping in state or federal court abound, and overwhelm the bar. The only solace one might find is that the abuse-of-discretion appellate standard of review keeps the bad decisions from precedentially outlawing the good ones.

Judge Joan Ericksen recently provided another Berenstain Bears’ example of how not to keep the expert witness gate, in litigation claims that the Bair Hugger forced air warming devices (“Bair Huggers”) cause infections. In re Bair Hugger Forced Air Warming, MDL No. 15-2666, 2017 WL 6397721 (D. Minn. Dec. 13, 2017). Although Her Honor properly cited and quoted Rule 702 (2000), a new standard is announced in a bold heading:

Under Federal Rule of Evidence 702, the Court need only exclude expert testimony that is so fundamentally unsupported that it can offer no assistance to the jury.”

Id. at *1. This new standard thus permits largely unsupported opinion that can offer bad assistance to the jury. As Judge Ericksen demonstrates, this new standard, which has no warrant in the statutory text of Rule 702 or its advisory committee notes, allows expert witnesses to rely upon studies that have serious internal and external validity flaws.

Jonathan Samet, a specialist in pulmonary medicine, not infectious disease or statistics, is one of the plaintiffs’ principal expert witnesses. Samet relies in large measure upon an observational study2, which purports to find an increased odds ratio for use of the Bair Hugger among infection cases in one particular hospital. The defense epidemiologist, Jonathan B. Borak, criticized the McGovern observational study on several grounds, including that the study was highly confounded by the presence of other known infection risks. Id. at *6. Judge Ericksen characterized Borak’s opinion as an assertion that the McGovern study was an “insufficient basis” for the plaintiffs’ claims. A fair reading of even Judge Ericksen’s précis of Borak’s proffered testimony requires the conclusion that Borak’s opinion was that the McGovern study was invalid because of data collection errors and confounding. Id.

Judge Ericksen’s judicial assessment, taken from the disagreement between Samet and Borak, is that there are issues with the McGovern study, which go to “weight of the evidence.” This finding obscures, however, that there were strong challenges to the internal and external validity of the study. Drawing causal inferences from an invalid observational study is a methodological issue, not a weight-of-the-evidence problem for the jury to resolve. This MDL opinion never addresses the Rule 703 issue, whether an epidemiologic expert would reasonably rely upon such a confounded study.

The defense proffered the opinion of Theodore R. Holford, who criticized Dr. Samet for drawing causal inferences from the McGovern observational study. Holford, a professor of biostatistics at Yale University’s School of Public Health, analyzed the raw data behind the McGovern study. Id. at *8. The plaintiffs challenged Holford’s opinions on the ground that he relied on data in “non-final” form, from a temporally expanded dataset. Even more intriguingly, given that the plaintiffs did not present a statistician expert witness, plaintiffs argued that Holford’s opinions should be excluded because

(1) he insufficiently justified his use of a statistical test, and

(2) he “emphasizes statistical significance more than he would in his professional work.”

Id.

The MDL court dismissed the plaintiffs’ challenge on the mistaken conclusion that the alleged contradictions between Holford’s practice and his testimony impugn his credibility at most.” If there were truly such a deviation from the statistical standard of care, the issue is methodological, not a credibility issue of whether Holford was telling the truth. And as for the alleged over-emphasis on statistical significance, the MDL court again falls back to the glib conclusions that the allegation goes to the weight, not the admissibility of expert witness opinion testimony, and that plaintiffs can elicit testimony from Dr Samet as to how and why Professor Holford over-emphasized statistical significance. Id. Inquiring minds, at the bar, and in the academy, are left with no information about what the real issues are in the case.

Generally, both sides’ challenges to expert witnesses were denied.3 The real losers, however, were the scientific and medical communities, bench, bar, and general public. The MDL court glibly and incorrectly treated methodological issues as “credibility” issues, confused sufficiency with validity, and banished methodological failures to consideration by the trier of fact for “weight.” Confounding was mistreated as simply a debating point between the parties’ expert witnesses. The reader of Judge Ericksen’s opinion never learns what statistical test was used by Professor Holford, what justification was needed but allegedly absent for the test, why the justification was contested, and what other test was alleged by plaintiffs to have been a “better” statistical test. As for the emphasis given statistical significance, the reader is left in the dark about exactly what that emphasis was, and how it led to Holford’s conclusions and opinions, and what the proper emphasis should have been.

Eventually appellate review of the Bair Hugger MDL decision must turn on whether the district court abused its discretion. Although appellate courts give trial judges discretion to resolve Rule 702 issues, the appellate courts cannot reach reasoned decisions when the inferior courts fail to give even a cursory description of what the issues were, and how and why they were resolved as they were.


2 P. D. McGovern, M. Albrecht, K. G. Belani, C. Nachtsheim, P. F. Partington, I. Carluke, and M. R. Reed, “Forced-Air Warming and Ultra-Clean Ventilation Do Not Mix: An Investigation of Theatre Ventilation, Patient Warming and Joint Replacement Infection in Orthopaedics,” 93 J. Bone Joint 1537 (2011). The article as published contains no disclosures of potential or actual conflicts of interest. A persistent rumor has it that the investigators were funded by a commercial rival to the manufacturer of the Bair Hugger at issue in Judge Ericksen’s MDL. See generally, Melissa D. Kellam, Loraine S. Dieckmann, and Paul N. Austin, “Forced-Air Warming Devices and the Risk of Surgical Site Infections,” 98 Ass’n periOperative Registered Nurses (AORN) J. 354 (2013).

3 A challenge to plaintiffs’ expert witness Yadin David was sustained to the extent he sought to offer opinions about the defendant’s state of mind. Id. at *5.

Stuck in Silicone

December 12th, 2017

There was a time when silicone chemistry, biocompatibility, toxicity, and litigation weighed upon my mind. What started with a flurry of scientific interest, led to a media free for all, then FDA Commissioner David Kessler’s moratorium on silicone breast implants, and then to a feeding frenzy for the lawsuit industry. Ultimately, the federal court system found its way to engage four non-party expert witnesses, who cut through the thousands of irrelevant documents that plaintiffs’ counsel used to obfuscate the lack of causation evidence. The court-appointed experts in MDL 926 were unanimous in their rejection of the plaintiffs’ claims.1 Not long after, the Institute of Medicine (now the National Academy of Medicine) issued its voluminous review of the scientific evidence, again with the conclusion that the evidence, when viewed scientifically and critically, showed a lack of association between silicone and autoimmune disease.2

Along the way to this definitive end of the lawsuit industry’s assault on the medical device industry, the parties assembled in the courtroom of the Hon. Jack B. Weinstein, for Rule 702 hearings on the opinions proffered by the plaintiffs’ expert witnesses. Judge Weinstein, along with the late Judge Harold Baer, of the Southern District of New York, and Justice Lobis, of the New York Supreme Court, held hearings that lasted two weeks, and entertained virtually unlimited argument. In characteristic style, Judge Weinstein did not grant the defendants’ Rule 702 motions; rather he cut right to the heart of the matter, and granted summary judgment in favor of the defense on plaintiffs’ claims of systemic diseases.3

Over a dozen years later, in reflecting upon a long judicial career that involved many so-called mass torts, Judge Weinstein described the plaintiffs’ expert witnesses more plainly as “charlatans” and the silicone litigation as largely based upon fraud.4

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

Last week, I received an email from Arthur E. Brawer, who represented himself to be an Associate Clinical Professor of Medicine.5 Dr. Brawer kindly forwarded some of his publications on the subject of silicone toxicity.6 Along with the holiday gift, Dr Brawer also gave me a piece of his mind:

I recommend you rethink your prior opinions on the intersection of science and the law as it relates to this issue, as you clearly have no idea what you are talking about regarding the matter of silicone gel-filled breast implants. Perhaps refresher courses in biochemistry and biophysics at a major university might wake you up.”

Wow, that woke me up! Who was this Dr Brawer? His name seemed vaguely familiar. I thought he might have been a lawsuit industry expert witness I encountered in the silicone litigation, but none of his articles had a disclosure of having been a retained expert witness. Perhaps that was a mere oversight on his part. Still, I went to my archives, where I found the same Dr Brawer engaged in testifying for plaintiffs all around the country. In one early testimonial adventure, Brawer described how he came up with his list of signs and symptoms to use to define “silicone toxicity”:

Q. Doctor, if a patient presented to you with green hair and claimed that her green hair was attributable to her silicone breast implants, unless you could find another explanation for that green hair, you’d put that on your list of signs and symptoms; right?

A. The answer is yes.

Notes of Testimony of Arthur E. Brawer, at 465:7-12, in Merlin v. 3M Co., No. CV-N-95-696-HDM (D. Nev.Dec. 11, 1995) (Transcript of Rule 702 hearing)

A year later, Brawer’s opinions were unceremoniously excluded in a case set for trial in Dallas, Texas.7 Surely this outcome, along with Judge Weinstein’s rulings, the findings of the court-appointed witnesses in MDL 926, and the conclusions of the Institute of Medicine would have discouraged this Brawer fellow from testifying ever again?

Apparently not. Brawer, like the Black Knight in Monty Python and the Holy Grail, still lives and breathes, but only to be cut again and again. A quick Westlaw search turned up another, recent Brawer testimonial misadventure in Laux v. Mentor Worldwide, LLC, case no. 2:16-cv-01026, 2017 WL 5235619 (C.D. Calif., Nov. 8, 2017).8 Plaintiff Anita Laux claimed that she developed debilitating “biotoxin” disease from her saline-filled silicone breast implants. In support, she proffered the opinions of three would-be expert witnesses, a plastic surgeon (Dr Susan Kolb), a chemist (Pierre Blais), and a rheumatologist (Arthur Brawer).

Plaintiffs’ theory of biotoxin disease causation started with Blais’ claim to have found mold debris in the plaintiff’s explanted implants. The court found Blais unqualified, however, to offer an opinion on microbiology or product defects, and his opinions in the case, unreliable. Id. at *4-6. Dr Kolb, the author of The Naked Truth about Breast Implants, attempted to build upon Blais’ opinions, a rather weak foundation, to construct a “differential diagnosis.” In reasoning that Ms. Laux’s medical complaints arose from a mold infection, Kolb asserted that she had ruled out all other sources of exposure to mold. Unfortunately, Kolb either forgot or chose to hide correspondence with Ms. Laux, in which the plaintiff directly provided Kolb with information about prior environmental mold exposure on multiple occasions. Id. at *3. The trial court severely deprecated Kolb’s rather selective and false use of facts used to make the attribution of Ms. Laux’s claimed medical problems.

Dr Brawer, the author of Holistic Harmony: A Guide To Choosing A Competent Alternative Medicine Provider (1999), and my recent email correspondent, also succumbed to Judge Wright’s gatekeeping in Laux. The court found that Brawer had given a toxicology opinion with no supporting data. His report was thus both procedurally deficient under Federal Rule of Civil Procedure 26, and substantively deficient under Federal Rule of Evidence 702. Finding Brawer’s report “so lacking of scientific principles and methods,” and thus unhelpful and unreliable, the trial court excluded his report and precluded his testimony at trial. Id. at *7.

Thankfully, the ghost of litigations past, communicating now by email, can be safely disregarded. And I do not have to dig my silicone polymer chemistry and biochemistry textbooks out of storage.


1 See Barbara Hulka, Betty Diamond, Nancy Kerkvliet & Peter Tugwell, “Silicone Breast Implants in Relation to Connective Tissue Diseases and Immunologic Dysfunction: A Report by a National Science Panel to the Hon. Sam Pointer Jr., MDL 926 (Nov. 30, 1998).” The experts appointed by the late Judge Pointer all committed extensive time and expertise to evaluating the plaintiffs’ claims and the entire evidence. After delivering their reports, the court-appointed experts all published their litigation work in leading journals. See Barbara Hulka, Nancy Kerkvliet & Peter Tugwell, “Experience of a Scientific Panel Formed to Advise the Federal Judiciary on Silicone Breast Implants,” 342 New Engl. J. Med. 812 (2000); Esther C. Janowsky, Lawrence L. Kupper., and Barbara S. Hulka, “Meta-Analyses of the Relation between Silicone Breast Implants and the Risk of Connective-Tissue Diseases,” 342 New Engl. J. Med. 781 (2000); Peter Tugwell, George Wells, Joan Peterson, Vivian Welch, Jacqueline Page, Carolyn Davison, Jessie McGowan, David Ramroth, and Beverley Shea, “Do Silicone Breast Implants Cause Rheumatologic Disorders? A Systematic Review for a Court-Appointed National Science Panel,” 44 Arthritis & Rheumatism 2477 (2001).

2 Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants (Institute of Medicine) (Wash. D.C. 1999).

3 See In re Breast Implant Cases, 942 F. Supp. 958 (E. & S.D.N.Y. 1996) (granting summary judgment because of insufficiency of plaintiffs’ evidence, but specifically declining to rule on defendants’ Rule 702 and Rule 703 motions).

5 At the Drexel University School of Medicine, in Philadelphia, as well as the Director of Rheumatology at Monmouth Medical Center, in Long Branch, New Jersey.

6 Included among the holiday gift package was Arthur E. Brawer, “Is Silicone Breast Implant Toxicity an Extreme Form of a More Generalized Toxicity Adversely Affecting the Population as a Whole?,”1 Internat’l Ann. Med. (2017); Arthur E. Brawer, “Mechanisms of Breast Implant Toxicity: Will the Real Ringmaster Please Stand Up,”1 Internat’l Ann. Med. (2017); Arthur E. Brawer, “Destiny rides again: the reappearance of silicone gel-filled breast implant toxicity,” 26 Lupus 1060 (2017); Arthur E. Brawer, “Silicon and matrix macromolecules: new research opportunities for old diseases from analysis of potential mechanisms of breast implant toxicity,” 51 Medical Hypotheses 27 (1998).

7 Bailey v. Dow Corning Corp., c.a. 94-1199-A (Dallas Cty. Texas Dist. Ct., Sept. 15, 1996).

8 I later found that another blog had reviewed the Laux decision. Stephen McConnell, “C.D. Cal. Excludes Three Plaintiff Experts in Breast Implant Case,” Drug & Device Law (Nov. 16, 2017).

Manufacturing Consent

December 2nd, 2017

David Michaels along with other “political” scientists, and the lawsuit industry, have worked assiduously over the last several decades to delegitimize discussion, debate, and controversy over scientific claims.1 Their key goals have been to attempt to disqualify manufacturing industry and any scientist with the slightest manufacturing industry contact. Their attempts to disqualify other interlocutors is, however, highly asymmetrical. If those with connections to manufacturing industry criticize studies or causal conclusions, then we hear that the criticism is corrupt. If those with connections to manufacturing industry embrace studies that show favored associations, or causal conclusions, then we hear that the embrace of advocacy positions was an “admission,” reluctantly given but “forced” by overwhelming evidence. In other words, the attempts to disqualify interlocutors are made only when the speakers articulate criticism of the claims of advocacy science.

David Zaruk has argued that the techniques used to squelch criticism of advocacy science bear an uncanny resemblance to the techniques used by fascists generally. See David Zaruk, “Ten Practices Linking Environmentalism with Fascism,” Riskmonger (Dec. 2, 2017). Although Zaruk’s argument may appear hyperbolic, there is no denying that advocacy scientists (not merely in the field of environmentalism) have used the rhetorical devices that are used by intellectual bullies everywhere. In the case of advocacy scientists, one of their key maneuvers has been to privilege advocacy scientists who speak for their favored positions, for the lawsuit industry, and for self-styled public interest groups by ignoring their potential conflicts of interest, while diminishing the substantive content of all “opposition” voices by pejoratively characterizing their opponents’ motivation as “manufacturing doubt.” Of course, the deepest irony is that before there was manufacturing doubt, there was manufacturing consent.2 The unkindest thing that can, and must be said, of the current enthusiasm for attacking dissident scientists is not that the attacks are fascist, but that they are unscientific.

The likes of David Michaels have sought to manufacture consent on various health effects issues, by selectively and asymmetrically accusing scientists of conflicts of interest, or trying to pervert the course of science. These attacks on “dissidents” assume the truth of the contested causal conclusions, and then proceed to call out the dissidents for casting doubt on the “truth” in favor of falsehood. What this mobbing of dissidents ignores is the basic normative structure of science, which requires doubt.

One of the first sociologists of science, Robert Merton, described four institutional imperatives of science: universality, communitarianism, disinterestedness, and “organized skepticism.”3 Scientists are committed to methodologies and an institutional ethos that require searching scrutiny of claims to scientific knowledge. The scientific advocates who would silence criticism with accusations of “manufacturing doubt” ignore the epistemic importance of dissent and disagreement in science. The prevalent attempts to squelch dissent as “manufacturing doubt” is thus unscientific and dangerous.4


1 See, e.g., David Michaels, Doubt is Their Product: How Industry’s War on Science Threatens Your Health (2008); David Michaels, “Manufactured Uncertainty: Protecting Public Health in the Age of Contested Science and Product Defense,” 1076 Ann. N.Y. Acad. Sci. 149 (2006); David Michaels, “Mercenary Epidemiology – Data Reanalysis and Reinterpretation for Sponsors with Financial Interest in the Outcome,” 16 Ann. Epidemiol. 583 (2006); David Michaels & Celeste Monforton, “Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health and Environment,” 95 Amer. J. Public Health S39 (2005); David Michaels, “Doubt is their Product,” 292 Sci. Amer. 74 (June 2005).

2 See generally Edward S. Herman & Noam Chomsky, Manufacturing Consent (1988).

3 Robert K. Merton, “The Normative Structure of Science,” in Robert K. Merton, The Sociology of Science: Theoretical and Empirical Investigations, chap. 13, at 267, 270 (1973).

4 See Inmaculada de Melo-Mmartín and Kristen Intemann, “Who’s afraid of dissent? Addressing concerns about undermining scientific consensus in public policy developments,” 22 Persp. on Science 593 (2014).

Copywrongs in the Academic-Publishing Industrial Complex

December 1st, 2017

Works of the United States government, including works prepared by its officers and employees, do not qualify for copyright protection. 17 U.S.C. § 105. Such works are in the “public domain,” and may be freely distributed. Works in the public domain thus include academic papers written by governmental scientists and published in proprietary academic journals. The journals cannot acquire a copyright in what was in the public domain ab initio.

And yet, proprietary journals routinely charge customers for works in the public domain. There appears to be no meaningful regulation of the academic publishing world, where publishers sometimes commandeer $60 or more per article, and charge yet again for access to supplementary data and materials. Charging fees such as these for what belongs to the public is worse than ludicrous; it’s piracy! See Ryan Merkley, “You Pay to Read Research You Fund. That’s Ludicrous,” Wired (April 18, 2016).

In an era when publishers complain and sue over unauthorized distribution of articles, it is remarkable that publishers are so cavalier about their own copywrongs. Paywall Watch is a website that has set its mission to call out proprietary academic publishers for improperly charging money to distribute articles that are in the public domain. See Dalmeet Singh Chawla, “Website Flags Wrongly Paywalled Papers,” The Scientist (May 31, 2017). From a casual review of the Paywall Watch website, there appear to be many offending instances of publisher piracy.

In addition to overt copywrongs, there is the more prevalent issue raised by publishers profiteering from selling papers based upon federally funded research. Federal regulations and Executive Orders direct federal agencies to ensure that taxpayers do not pay twice for federally funded research, even research conducted by non-governmental employees. SeeExpanding Public Access to the Results of Federally Funded Research,” (Feb. 22, 2013); Office of Science and Technology Policy, “Memorandum on Public Access” (2013). Despite President Obama’s support, powerful congressional patrons of the Academic-Publishing complex, from both sides of the aisle, have shilled for protectionist legislation. See Beware the Academic-Publishing Complex!” (Jan. 11, 2012) (discussing Congresswoman Carolyn Maloney’s efforts to press special interest legislation for Elsevier). Compliance with the federal open-access mandate is poor.

* * * * * * *

A group of authors, led by scientists from Divisions of the National Institute for Occupational Safety and Health, in Cincinnati, Ohio, recently published an epidemiologic study of cancer outcomes in workers exposed to polychlorinated biphenyls (PCBs). Avima M. Ruder, Misty J. Hein, Nancy B. Hopf, and Martha A. Waters, “Cancer incidence among capacitor manufacturing workers exposed to polychlorinated biphenyls,” 60 Am. J. Indus. Med. 198 (2017) [cited below as Ruder]. The NIOSH authors published their study in the “Red Journal,” the American Journal of Industrial Medicine, edited by Steven B. Markowitz and Rodney Ehrlich, who are well-known in lawsuit industry circles.

Ruder’s article contained a clear disclaimer:

This article is a U.S. Government work and is in the public domain in the USA.”

Ruder’s publisher, John Wiley & Sons, blithely ignored the disclaimer and hid the article behind a paywall (at the relatively low, one-time price of $38.00, U.S.). And that is too bad because Ruder’s work has generally shown that there is not much to the claim that PCBs cause lung cancer, a claim that caused quite a stir in the United States Supreme Court, twenty years ago. See General Electric Co. v. Joiner, 522 U.S. 136 (1997). Ruder and colleagues found a slightly raised incidence of lung cancer, risk ratio 1.16, but they readily acknowledged that without smoking history data, this small risk could not be interpreted causally. Ruder at 205 (2017); see also Avima M. Ruder, Misty J. Hein, Nancy B. Hopf, and Martha A. Waters, “Mortality among 24,865 workers exposed to polychlorinated biphenyls (PCBs) in three electrical capacitor manufacturing plants: A ten-year update,”217 Internat’l J. Hyg. & Envt’l Health 176 (2014). In a previous analysis of lung cancer mortality in the full cohort, the elevation had disappeared when short-term workers (fewer than 90 days on the job) were removed from the analysis. The long-term workers, with obviously much greater potential for cumulative and peak exposures, showed a lung cancer standardized mortality ratio of 0.99, ever so slightly less lung cancer than expected among non-exposed workers. Ruder at 205. See “How Have Important Rule 702 Holdings Held Up With Time?” (Mar. 20, 2015); The Joiner Finale.”