This blog is not about politics, although sometimes I have wandered into the political thicket when the events of the day involved scientific and statistical issues.[1] Our current events today do not involve statistical evidence so much as political, moral, and practical judgment. At some point, however, I cannot avoid a sense of responsibility to speak on the issues. On the one side, we have a grumpy old man who has evidenced some senior moments. On the other side, we have a grumpy old man who has evidenced senior moments as well as a vile character and temperament, generally devoid of decency, historical knowledge, and practical judgment.

Some have argued that the first grumpy old man is propped up by Marxists, the ultra-woke, and “haters” of the USA. Others have argued that the second grumpy old man is a creature of a personality cult, and that he is a documented rapist, fraudster, liar, hustler, and worse.[2]

Well, I know I am not going to firm up the political quagmire on which we now stand. But I have a humble, and I hope constructive, suggestion. Supporters of both grumpy old men would, I think, agree that they care about strength, intelligence, tactical and strategic ability, mental acuity and stamina, and a desire to win.  My suggestion is instead of having debates between the main protagonists, which many would agree to be a waste of time and money, we should instead require the grumpy old men to face off in a chess match. It need not be long; it could be, say, best of three games. Their moves would be observable by all, including their ability to conform to the rules of game, which require, among other things, refraining from talking and making noise. The American public, and the world, would see whether one or the other, or both, or neither, of the grumpy old men have the cognitive and intellectual ability and a true “killer” instinct, to be a national leader in these troubled times. Professional psychologists could analyze the intelligence of the players in real time.

Perhaps the rules of the game might be modified to include shock collars to discipline either player who spoke during the game, other than to offer a draw, or to resign.

Perhaps I am grumpy old man myself.

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[1] See “Pernicious Probabilities in the Supreme Court” (Nov. 21, 2020); “A Trumpence for Your Thoughts” (Nov. 21, 2020). And I have supported sound deployment of statistical evidence. See, e.g., Brief of 27 Election Law, Scientific Evidence, and Empirical Legal Scholars as Amici Curiae in Support of Appellees, in Rucho v. Common Cause, No. 18-422, Supreme Court of the United States (Mar. 9, 2019); Brief of 44 Election Law, Scientific Evidence, and Empirical Legal Scholars as Amici Curiae in Support of Appellees, in Gill v. Whitford, No. 16-1161, Supreme Court of the United States (Sept. 1, 2017).

[2] The supporters of the second grumpy old man have criticized those who criticize his supporters, on grounds that there are substantive issues at stake in their support.  See Julian Adorney, “Stop Dunking on Trump Supporters: No one is beyond reach—unless everyone around them refuses to reach out,” Quilette (Feb. 7, 2024). This of course misses the point that the supporters have had plenty of other viable candidates to support who would have actually been articulate voices on their behalf.  The supporters have shown, consistently over eight years, that they do not care about immorality or sycophancy to dictators, and that they prefer a sexual abuser and fraudster.

There are many nits that a reader could pick with the third edition of the Reference Manual, but one non-trivial issue is raised by the epidemiology chapter’s pronouncement that:

“Epidemiology is concerned with the incidence of disease in populations, and epidemiologic studies do not address the question of the cause of an individual’s disease¹⁷⁸.”[1]

According to the Manual’s authors, the so-called specific-causation question is “beyond the domain of the science of epidemiology.” Epidemiologists do not investigate whether “an agent caused a specific plaintiff’s disease.”[2] The chapter insists that “[t]his question is not a question that is addressed by epidemiology. Rather, it is a legal question with which numerous courts have grappled.”[3]

Later on in the chapter, the authors repeat their opinion when they insist that the use of a threshold relative risk is “not epidemiology or an inquiry that an epidemiologist would undertake.”[4]

Strictly speaking the authors are correct that an epidemiologic study itself typically does not address the question individual causation. The authors of an epidemiologic study have no one person in mind, as does the factfinder in a civil action. The notion that epidemiology as a scientific discipline does not address the question of individual causation, however, seems just wrong. Tellingly, the authors’ footnote pointed to case law and a law review article, and not a single scientific source. The chapter does reference another legal source, the Third Restatement, which repeats the gist of the epidemiology chapter’s categorical statement:

“Scientists who conduct group studies do not examine specific causation in their research. No scientific methodology exists for assessing specific causation for an individual based on group studies. Nevertheless, courts have reasoned from the preponderance-of-the-evidence standard to determine the sufficiency of scientific evidence on specific causation when group-based studies are involved.”[5]

The chapter’s broad, sweeping characterization fails to consider:

• genome-wide association studies that may identify genes or mutations that are highly penetrant and which identify a causal association in the carriers of the genes; and
• epidemiologic studies that identify associations, shown to be causal, with risk ratios sufficiently great (say over 20) such that virtually all cases of the studied outcome would be avoided by removing the exposure that gave rise to such a large risk ratio; and
• epidemiologic studies that allow causal associations to be inferred in limited sub-populations, with sufficiently high relative risks that the studies support specific causation opinions.

Perhaps even more important than the above counter-examples, the chapter authors ignore the myriad instances in which epidemiologic studies and clinical trials, and analyses of both, directly inform clinical judgments about individual patients or subjects. Clinicians use studies of groups, such as clinical trials, to identify therapeutic benefits from medications and other interventions.  These data directly inform their prescription decisions for individual patients, or their decisions to recommend surgical or other medical interventions to individuals.[6] The classic text on medical decision making describes how group-level data provide the basis for individual clinical decisions on therapy:

“1.5 How do I choose among several risky treatment alternatives?

Choosing among risky treatment alternatives is difficult because the outcome of most treatments is uncertain: some people respond to treatment but others do not. If the outcome of a treatment is governed by chance, a clinician cannot know in advance which outcome of the treatment will result. Under these circumstances, the best way to achieve a good outcome is to choose the treatment alternative whose average outcome is best. This concept is called expected value decision making.”[7]

Medical practitioners and scientists frequently use epidemiologic data, based upon “group-based data” to make individual diagnostic judgments. The inferences from group data to individual range abound in the diagnostic process itself, where the specificity and sensitivity of disease signs and symptoms are measured by group data. Physicians must rely upon group data to make prognoses for individual patients, and they rely upon group data to predict future disease risks for individual patients. Future disease risks, as in the Framingham risk score for hard coronary heart disease, or the Gale model for breast cancer risk, are, of course, based upon “group-based data.”[8] A search on the phrase “prediction models” yielded 662,297 results in the National Library of Medicine PubMed database.

The epidemiology chapter has taken its position on the irrelevance of epidemiology to specific causation through all three editions of the Reference Manual.  Perhaps its authors will rethink their dogma in the fourth.

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[1] RMSE3d at 608. The internal footnote, 178, pointed to: “178. See DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 945 & n.6 (3d Cir. 1990) (“Epidemiological studies do not provide direct evidence that a particular plaintiff was injured by exposure to a substance.”) (emphasis added in this post). The emphasis in the quote is mine because the DeLuca court suggested by implication that epidemiologic studies provided the basis for inferences about specific causation. The footnote also cited another case that simply cited an earlier edition of the Manual, which hardly advances the inquiry into whether the Manual was correct in the first place. See In re Viagra Prods. Liab. Litig., 572 F. Supp. 2d 1071, 1078 (D. Minn. 2008) (“Epidemiology focuses on the question of general causation (i.e., is the agent capable of causing disease?) rather than that of specific causation (i.e., did it cause a disease in a particular individual?)” (quoting the second edition of this reference guide)). Finally, the Manual cited a state court case, In re Asbestos Litig,, 900 A.2d 120, 133 (Del. Super. Ct. 2006), and a law review article, Michael Dore, “A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-in-Fact,” 7 Harv. Envtl. L. Rev. 429, 436 (1983).” Admittedly, the chapter’s position can be found in writings of other legal commentators, although repetition hardly makes it any less wrong. See, e.g., Andrew See, “Use of Human Epidemiology Studies in Proving Causation,” 67 Def. Couns. J. 478, 478 (2000) (“Epidemiology studies are relevant only to the issue of general causation and cannot establish whether an exposure or factor caused disease or injury in a specific individual.”); Melissa Moore Thomson, Causal Inference in Epidemiology: Implications for Toxic Tort Litigation, 71 N.C. L. Rev. 247, 255 (1992) (“statistic-based epidemiological study results should not be applied directly to establish the likelihood of causation in an individual plaintiff”); 

[2] RMSE3d at 609 & n.179. Inconsistently, the epidemiology chapter reports, without criticism, that some courts have allowed expert witnesses to opine about specific causation, without detailing how epidemiologic science was helpful to the specific causation issues. See RMSE3d at 609 n. 181 (citing Ambrosini v. Labarraque, 101 F.3d 129, 137–41 (D.C. Cir. 1996); Zuchowicz v. United States, 870 F. Supp. 15 (D. Conn. 1994); Landrigan v. Celotex Corp., 605 A.2d 1079, 1088–89 (N.J. 1992)).

[3] RMSE3d at 609.

[4] RMSE3d at 611 n.186.

[5] See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28 cmt.

c(3) (2010) (cited at RMSE3d at 610 n.182).

[6] See, e.g., Robert H. Fletcher, Suzanne W. Fletcher, and Grant S. Fletcher, Clinical Epidemiology: The Essentials (5th ed. 2015) (treating prognosis, diagnosis, treatment, and prevention as topics of consideration, all involving individual patient decisions, in clinical epidemiology); Grobbee & Arno W. Hoes, Clinical Epidemiology: Principles, Methods, and Applications for Clinical Research (2d ed. 2015).

[7] Harold C. Sox, Michael C. Higgins & Douglas K. Owens, Medical Decision Making 6 (2d ed. 2013).

[8] See, e.g., Ewout W. Steyerberg. Clinical Prediction Models: A Practical Approach to Development, Validation, and Updating (2d ed. 2019).

In the early 1970s, Amos Tversky and Daniel Kahneman raised the awareness of hindsight bias as a pervasive phenomenon in all human judgment.[1] Although these insights seemed eponymously obvious in hindsight, experimental psychologists directly tested the existence and extent of hindsight bias in a now classic paper by Baruch Fischhoff.[2] The lack of awareness of how hindsight bias affects our historical judgments seriously limits our ability to judge the past.

Kahneman’s participation in the planning phase of a new, fourth edition of the Reference Manual on Scientific Evidence, is a hopeful sign that his insights and the research of many psychologists will gain a fuller recognition in the law. Hindsight bias afflicts judges, lawyers, jurors, expert witnesses, scientists, physicians, and children of all ages.[3]

Hindsight Bias in the Law

Sixth Amendment Challenges

Challenges to the effectiveness of legal counsel is a mainstay for habeas petitions, filed by convicted felons. In hindsight, their lawyers’ conduct seems woefully inadequate. In judging such claims of ineffectiveness, the United States Supreme Court acknowledged the role and influence of hindsight bias in judging trial counsel’s strategic decisions:

“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”[4]

This decision raises the interesting question why there is not a strong presumption of reasonableness in other legal contexts, such as the “reasonableness” of physician judgments, or of adequate warnings.

Medical Malpractice

There is little doubt that retrospective judgments of the reasonableness of medical decisions is infected, distorted, and corrupted by hindsight bias.[5] In the words of one paper on the subject:

“There is evidence that hindsight bias, which may cause the expert to simplify, trivialise and criticise retrospectively the decisions of the treating doctor, is inevitable when the expert knows there has been an adverse outcome.”[6]

Requiring the finder of fact to assess the reasonableness of complex medical judgments in hindsight, with knowledge of the real-world outcomes of the prior judgments, pose a major threat to fairness in the trial process, in both bench and jury trials. Curiously, lawyers receive a “strong presumption” of reasonableness, but physicians and manufacturers do not.

Patent Litigation

Hindsight bias plays a large role in challenging patent validity. The works of genius seem obvious with hindsight. In the context of judging patent criteria such non-obviousness, the Supreme Court has emphasized that:

“A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.”[7]

Certainly, factfinders in every kind of litigation, not just intellectual property cases, should be made aware of the distortion caused by hindsight bias.

Remedies

In all likelihood, hindsight bias can probably never be fully corrected. At a minimum, factfinders should be educated about the phenomenon. In criminal cases, defendants have called psychologists about the inherent difficulties in eyewitness or cross-race identification.[8] In New Jersey, trial courts must give a precautionary instruction in criminal cases that involve eyewitness identification.[9] In some but not all discrimination cases, courts have permitted expert witness opinion testimony about “implicit bias.”[10] In “long-tail” litigation, in which jurors must consider the reasonableness of warning decisions, or claims of failure to test, decades before the trial, defendants may well want to consider calling a psychologist to testify about the reality of hindsight bias, and how it leads to incorrect judgments about past events.

Another, independent remedy would be for the trial court to give a jury instruction on hindsight bias.  After all, the Supreme Court has clearly stated that “[a] factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.” The trial judge should set the stage for a proper consideration of past events, by alerting jurors to the reality and seductiveness of hindsight bias. What follows is a first attempt at such an instruction. I would love to hear from anyone who has submitted a proposed instruction on the issue.

Members of the jury, this case will require your determination of what were the facts of what scientists knew or should have known at a time in the past. At the same time that you try to make this determination, you will have been made aware of what is now known. Psychological research clearly shows that all human beings, regardless of their age, education, or life circumstances have what is known as hindsight bias. Having this bias means that we all tend to assume that people at times past should have known what we now in fact know. Calling it a bias is a way to say that this assumption is wrong. To decide this case fairly, you must try to determine what people, including experts in the field, actually knew and did before there were more recent discoveries, and without reference to what is now known and accepted.

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[1] Amos Tversky & Daniel Kahneman, “Judgment under uncertainty: heuristics and Biases,” 185 Science 1124 (1974). See also “People Get Ready – There’s a Reference Manual a Comin’ ”(June 6, 2021).

[2] Baruch Fischhoff, “Hindsight ≠ foresight: the effect of outcome knowledge on judgment under uncertainty,” 1 Experimental Psychology: Human Perception & Performance 288, 288 (1975), reprinted in 12 Quality & Safety Health Care 304 (2003); Baruch Fischhoff & Ruth Beyth, “I knew it would happen: Remembered probabilities of once – future things?” 13 Organizational Behavior & Human Performance 1 (1975); see Baruch Fischhoff, “An Early History of Hindsight Research,” 25 Social Cognition 10 (2007).

[3] See Daniel M. Bernstein, Edgar Erdfelder, Andrew N. Meltzoff, William Peria & Geoffrey R. Loftus, “Hindsight Bias from 3 to 95 Years of Age,” 37 J. Experimental Psychol., Learning, Memory & Cognition, 378 (2011).

[4] Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2052 (1984); see also Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012).

[5] Edward Banham-Hall & Sian Stevens, “Hindsight bias critically impacts on clinicians’ assessment of care quality in retrospective case note review,” 19 Clinical Medicine 16 (2019); Thom Petty, Lucy Stephenson, Pierre Campbell & Terence Stephenson, “Outcome Bias in Clinical Negligence Medicolegal Cases,” 26 J.Law & Med. 825 (2019); Leonard Berlin, “Malpractice Issues and Radiology – Hindsight Bias” 175 Am. J. Radiol. 597 (2000); Leonard Berlin, “Outcome Bias,” 183 Am. J. Radiol. 557 (2004); Thomas B. Hugh & Sidney W. A. Dekker, “Hindsight bias and outcome bias in the social construction of medical negligence: a review,” 16 J. Law. Med. 846 (2009).

[6] Thomas B. Hugh & G. Douglas Tracy, “Hindsight Bias in Medicolegal Expert Reports,” 176 Med. J. Australia 277 (2002).

[7] KSR International Co. v. Teleflex Inc., 550 U.S. 398, 127 S.Ct. 1727, 1742 (2007) (emphasis added; internal citations omitted).

[8] See Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) (Todd, J.) (rejecting per se inadmissibility of eyewitness expert witness opinion testimony).

[9] State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011).

[10] Samaha v. Wash. State Dep’t of Transp., No. cv-10-175-RMP, 2012 WL 11091843, at *4 (E.D. Wash. Jan. 3, 2012) (holding that an expert witness’s proferred opinions about the “concepts of implicit bias and stereotypes is relevant to the issue of whether an employer intentionally discriminated against an employee.”).

A version of this post appeared previously on Professor Deborah Mayo’s blog, Error Statistics Philosophy. The post was invited as a comment on Professor Mayo’s article in Conservation Biology, which is cited and discussed below. Other commentators had important, insightful comments that can be found at Error Statistics Philosophy.[1] These commentators and many others participated in a virtual special sessionof Professor Mayo’s “Phil Stat Forum,” on January 11, 2022. This session, “Statistical Significance Test Anxiety,” was moderated by David Hand, and included presentations by Deborah Mayo and Yoav Benjamini. The presenters slides, as well as a video of the session are now online.

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The metaphor of law as an “empty vessel” is frequently invoked to describe the law generally, as well as pejoratively to describe lawyers. The metaphor rings true at least in describing how the factual content of legal judgments comes from outside the law. In many varieties of litigation, not only the facts and data, but the scientific and statistical inferences must be added to the “empty vessel” to obtain a correct and meaningful outcome.

Once upon a time, the expertise component of legal judgments came from so-called expert witnesses, who were free to opine about the claims of causality solely by showing that they had more expertise than the lay jurors. In Pennsylvania, for instance, the standard for qualify witnesses to give “expert opinions” was to show that they had “a reasonable pretense to expertise on the subject.”

In the 19^th and the first half of the 20^th century, causal claims, whether of personal injuries, discrimination, or whatever, virtually always turned on a conception of causation as necessary and sufficient to bring about the alleged harm. In discrimination claims, plaintiffs pointed to the “inexorable zero,” in cases in which no Black citizen was ever seated on a grand jury, in a particular county, since the demise of Reconstruction. In health claims, the mode of reasoning usually followed something like Koch’s postulates.

The second half of the 20^th century was marked by the rise of stochastic models in our understanding of the world. The consequence is that statistical inference made its way into the empty vessel. The rapid introduction of statistical thinking into the law did not always go well. In a seminal 1977 discrimination case, Casteneda v. Partida,[2] in an opinion by Associate Justice Blackmun, the court calculated a binomial probability for observing the sample result (rather than a result at least as extreme as such a result), and mislabeled the measurement “standard deviations” rather than standard errors:

“As a general rule for such large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist.  The II-year data here reflect a difference between the expected and observed number of Mexican-Americans of approximately 29 standard deviations. A detailed calculation reveals that the likelihood that such a substantial departure from the expected value would occur by chance is less than I in 10¹⁴⁰.”[3]

Justice Blackmun was graduated from Harvard College, summa cum laude, with a major in mathematics.

Despite the extreme statistical disparity in the 11-year run of grand juries, Justice Blackmun’s opinion provoked a robust rejoinder, not only on the statistical analysis, but on the Court’s failure to account for obvious omitted confounding variables in its simplistic analysis. And then there were the inconvenient facts that Mr. Partida was a rapist, indicted by a grand jury (50% with “Hispanic” names), which was appointed by jury commissioners (3/5 Hispanic). Partida was convicted by a petit jury (7/12 Hispanic), in front a trial judge who was Hispanic, and he was denied a writ of habeas court by Judge Garza, who went on to be a member of the Court of Appeals. In any event, Justice Blackmun’s dictum about “two or three” standard deviations soon shaped the outcome of many thousands of discrimination cases, and was translated into a necessary p-value of 5%.

Beginning in the early 1960s, statistical inference became an important feature of tort cases that involved claims based upon epidemiologic evidence. In such health-effects litigation, the judicial handling of concepts such as p-values and confidence intervals often went off the rails.  In 1989, the United States Court of Appeals for the Fifth Circuit resolved an appeal involving expert witnesses who relied upon epidemiologic studies by concluding that it did not have to resolve questions of bias and confounding because the studies relied upon had presented their results with confidence intervals.[4] Judges and expert witnesses persistently interpreted single confidence intervals from one study as having a 95 percent probability of containing the actual parameter.[5] Similarly, many courts and counsel committed the transposition fallacy in interpreting p-values as posterior probabilities for the null hypothesis.[6]

Against this backdrop of mistaken and misrepresented interpretation of p-values, the American Statistical Association’s p-value statement was a helpful and understandable restatement of basic principles.[7] Within a few weeks, however, citations to the p-value Statement started to show up in the briefs and examinations of expert witnesses, to support contentions that p-values (or any procedure to evaluate random error) were unimportant, and should be disregarded.[8]

In 2019, Ronald Wasserstein, the ASA executive director, along with two other authors wrote an editorial, which explicitly called for the abandonment of using “statistical significance.”[9] Although the piece was labeled “editorial,” the journal provided no disclaimer that Wasserstein was not speaking ex cathedra.

The absence of a disclaimer provoked much confusion. Indeed, Brian Turran, the editor of Significance, published jointly by the ASA and the Royal Statistical Society, wrote an editorial interpreting the Wasserstein editorial as an official ASA “recommendation.” Turran ultimately retracted his interpretation, but only in response to a pointed letter to the editor.[10] Turran adverted to a misleading press release from the ASA as the source of his confusion. Inquiring minds might wonder why the ASA allowed such misleading press releases to go out.

In addition to press releases, some people in the ASA started to send emails to journal editors, to nudge them to abandon statistical significance testing on the basis of what seemed like an ASA recommendation. For the most part, this campaign was unsuccessful in the major biomedical journals.[11]

While this controversy was unfolding, then President Karen Kafadar of the ASA stepped into the breach to state definitively that the Executive Director was not speaking for the ASA.[12] In November 2019, the ASA board of directors approved a motion to create a “Task Force on Statistical Significance and Replicability.” Its charge was “to develop thoughtful principles and practices that the ASA can endorse and share with scientists and journal editors. The task force will be appointed by the ASA President with advice and participation from the ASA Board.”

Professor Mayo’s editorial has done the world of statistics, as well as the legal world of judges, lawyers, and legal scholars, a service in calling attention to the peculiar intellectual conflicts of interest that played a role in the editorial excesses of some of  the ASA’s leadership. From a lawyer’s perspective, it is clear that courts have been misled, and distracted by, some of the ASA officials who seem to have worked to undermine a consensus position paper on p-values.[13]

Curiously, the task force’s report did not find a home in any of the ASA’s several scholarly publications. Instead “The ASA President’s Task Force Statement on Statistical Significance and Replicability”[14] appeared in the The Annals of Applied  Statistics, where it is accompanied by an editorial by ASA former President Karen Kafadar.[15] In November 2021, the ASA’s official “magazine,” Chance, also published the Task Force’s Statement.[16]

Judges and litigants who must navigate claims of statistical inference need guidance on the standard of care scientists and statisticians should use in evaluating such claims. Although the Taskforce did not elaborate, it advanced five basic propositions, which had been obscured by many of the recent glosses on the ASA 2016 p-value statement, and the 2019 editorial discussed above:

1. “Capturing the uncertainty associated with statistical summaries is critical.”
2. “Dealing with replicability and uncertainty lies at the heart of statistical science. Study results are replicable if they can be verified in further studies with new data.”
3. “The theoretical basis of statistical science offers several general strategies for dealing with uncertainty.”
4. “Thresholds are helpful when actions are required.”
5. “P-values and significance tests, when properly applied and interpreted, increase the rigor of the conclusions drawn from data.”

Although the Task Force’s Statement will not end the debate or the “wars,” it will go a long way to correct the contentions made in court about the insignificance of significance testing, while giving courts a truer sense of the professional standard of care with respect to statistical inference in evaluating claims of health effects.

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[1] Commentators included John Park, MD; Brian Dennis, Ph.D.; Philip B. Stark, Ph.D.; Kent Staley, Ph.D.; Yudi Pawitan, Ph.D.; Brian, Hennig, Ph.D.; Brian Haig, Ph.D.; and Daniël Lakens, Ph.D.

[2] Casteneda v. Partida, 430 U.S. 432 (1977).

[3] Id. at 430 U.S. 482, 496 n.17 (1977).

[4] Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d 307, 311-12 (5th Cir. 1989).

[5] Richard W. Clapp & David Ozonoff, “Environment and Health: Vital Intersection or Contested Territory?” 30 Am. J. L. & Med. 189, 210 (2004) (“Thus, a RR [relative risk] of 1.8 with a confidence interval of 1.3 to 2.9 could very likely represent a true RR of greater than 2.0, and as high as 2.9 in 95 out of 100 repeated trials.”) (Both authors testify for claimants cases involving alleged environmental and occupational harms.); Schachtman, “Confidence in Intervals and Diffidence in the Courts” (Mar. 4, 2012) (collecting numerous examples of judicial offenders).

[6] See, e.g., In re Ephedra Prods. Liab. Litig., 393 F.Supp. 2d 181, 191, 193 (S.D.N.Y. 2005) (Rakoff, J.) (credulously accepting counsel’s argument that the use of a critical value of less than 5% of significance probability increased the “more likely than not” burden of proof upon a civil litigant). The decision has been criticized in the scholarly literature, but it is still widely cited without acknowledging its error. See Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 65 (2009).

[7] Ronald L. Wasserstein & Nicole A. Lazar, “The ASA’s Statement on p-Values: Context, Process, and Purpose,” 70 The Am. Statistician 129 (2016); see “The American Statistical Association’s Statement on and of Significance” (March 17, 2016). The commentary beyond the “bold faced” principles was at times less helpful in suggesting that there was something inherently inadequate in using p-values. With the benefit of hindsight, this commentary appears to represent editorizing by the authors, and not the sense of the expert committee that agreed to the six principles.

[8] Schachtman, “The American Statistical Association Statement on Significance Testing Goes to Court, Part I” (Nov. 13, 2018), “Part II” (Mar. 7, 2019).

[9] Ronald L. Wasserstein, Allen L. Schirm, and Nicole A. Lazar, “Editorial: Moving to a World Beyond ‘p < 0.05’,” 73 Am. Statistician S1, S2 (2019); see Schachtman,“Has the American Statistical Association Gone Post-Modern?” (Mar. 24, 2019).

[10] Brian Tarran, “THE S WORD … and what to do about it,” Significance (Aug. 2019); Donald Macnaughton, “Who Said What,” Significance 47 (Oct. 2019).

[11] See, e.g., David Harrington, Ralph B. D’Agostino, Sr., Constantine Gatsonis, Joseph W. Hogan, David J. Hunter, Sharon-Lise T. Normand, Jeffrey M. Drazen, and Mary Beth Hamel, “New Guidelines for Statistical Reporting in the Journal,” 381 New Engl. J. Med. 285 (2019); Jonathan A. Cook, Dean A. Fergusson, Ian Ford, Mithat Gonen, Jonathan Kimmelman, Edward L. Korn, and Colin B. Begg, “There is still a place for significance testing in clinical trials,” 16 Clin. Trials 223 (2019).

[12] Karen Kafadar, “The Year in Review … And More to Come,” AmStat News 3 (Dec. 2019); see also Kafadar, “Statistics & Unintended Consequences,” AmStat News 3,4 (June 2019).

[13] Deborah Mayo, “The statistics wars and intellectual conflicts of interest,” 36 Conservation Biology (2022) (in-press, online Dec. 2021).

[14] Yoav Benjamini, Richard D. DeVeaux, Bradly Efron, Scott Evans, Mark Glickman, Barry Braubard, Xuming He, Xiao Li Meng, Nancy Reid, Stephen M. Stigler, Stephen B. Vardeman, Christopher K. Wikle, Tommy Wright, Linda J. Young, and Karen Kafadar, “The ASA President’s Task Force Statement on Statistical Significance and Replicability,” 15 Annals of Applied Statistics (2021) (in press).

[15] Karen Kafadar, “Editorial: Statistical Significance, P-Values, and Replicability,” 15 Annals of Applied Statistics (2021).

[16] Yoav Benjamini, Richard D. De Veaux, Bradley Efron, Scott Evans, Mark Glickman, Barry I. Graubard, Xuming He, Xiao-Li Meng, Nancy M. Reid, Stephen M. Stigler, Stephen B. Vardeman, Christopher K. Wikle, Tommy Wright, Linda J. Young & Karen Kafadar, “ASA President’s Task Force Statement on Statistical Significance and Replicability,” 34 Chance 10 (2021).

Over the years ago, I have written about David Rosner and Gerald Markowitz, two academic historians, who testify a lot for the lawsuit industry, mostly in asbestos cases, but also in cases involving exposures to lead, silica, and vinyl chloride. Rosner and fellow-traveller Markowitz, or Rosnowitz for short, are fond of telling two stories: (1) how some suspect organization tried to recruit them to testify for hire for defendants in litigation, and (2) how I had the audacity to criticize their suspect historical scholarship about silica, silicosis, and silica litigation.[1]

I was shocked (really) to find that Rosner and Markowitz were at the center of recruiting historians for hire to write attacks on opponents of their socialist ideology, but both historians sit, or have sat, on the Project Advisory Board of the Cry Wolf Project. Back in 2010, this “project” was engaged in hiring historians to write white papers (or should they be “rainbow papers”) to stop or discredit “progressive policy” options.[2] Imagine that: historians for hire by the Left.

Lest you think that the Cry Wolf Project is some innocent group of social justice warriors, you should know that the project has a Nixonian or Stalinist (take your pick) enemies list of “culprits,” including:

Academics
American Medical Association
American Petroleum Institute
American Textile Manufacturers Institute
Business Roundtable
Chamber of Commerce
Conservative media
Democrats
Energy Industry
Financial Institutions
Food Industry
Mainstream media
National Association of Manufacturers (NAM)
National Federation of Independent Business (NFIB)
National Grain and Feed Association
Republicans
Think tanks

No surprise, but the Crying Wolf Project is the darling of socialist academicians. Jake Blumgart, a researcher for the Cry Wolf Project, attempted to explain:

“Progressives need to construct a counter-narrative that demonstrates that in many cases these claims [of conservatives] have been, and continue to be, grossly exaggerated. The Cry Wolf Project’s wants media, opinion leaders, and policy makers to respond ‘There they go again!’ when industry ‘cries wolf.’ Such a refrain will undermine the credibility and arguments of organizations.”[3]

Ah, attacking the messenger; manufacturing doubt; and projecting bad motives and psychological weaknesses upon opponents. Almost full-bore Trumpism. In our current tribalist politics, the extent to which both sides impute their own motives to other tribes is fascinating.

And who is this “Talking Union,” for which Jake Blumgart writes? According to its website, Talking Union is:

“a project of the labor network of Democratic Socialists of America. We will report on the activities and views of DSA and Young Democratic Socialists of America labor activists. We seek to be a place for a broad range of labor activists to discuss ideas for the renewal and strengthening of the labor movement.”

And in this daisy-chain of institutional affiliations, who are the “Democratic Socialists of America”? With thanks to Al Gore for having the invented the internet, we can find an answer quickly. The Democratic Socialists of America is an organization, indeed, it is:

“the largest socialist organization in the United States, with over 92,000 members and chapters in all 50 states. We believe that working people should run both the economy and society democratically to meet human needs, not to make profits for a few.

We are a political and activist organization, not a party; through campus and community-based chapters, DSA members use a variety of tactics, from legislative to direct action, to fight for reforms that empower working people.

The Democratic Socialists of America is the largest socialist organization in the United States because we’re a member-driven mass organization. We believe that working people should run both the economy and civil society, and we show our commitment to this principle by being an organization of, by, and for the working class.”

I have quoted at length from the Democratic Socialists’ website to make clear that this is not an organization that simply a group of “progressives”; they are activists who are engaged in what they conceive of as class warfare. In their own words, they would limit democracy to those people who fit their definition of working people, and that the interests of the “working class” are paramount. At times, there may be only a thin line between trying to tame the excesses of capitalism, such as employer’s failures to protect workers, and outright communism. The Democratic Socialists are quite open about what side of the line they occupy. The apparent commitment to democracy appears to be a sham; not everyone is entitled to run the economy and society, only “working people” are.

There is no democracy in the worldview of the “Democratic Socialists”; the line between its stated goals and those of Marxism is imaginary.[4] Just as Trump has a man crush on Putin, socialist George Bernard Shaw had one on Stalin,[5] Kulaks be damned.

From the Crying Wolf Project, with its counter-narratives, we have traced the ideology to the Talking Union, to the Democratic Socialists of America, to Marxism.

Well, I have had friends who were Marxists, and I would not advocate that Marxists should be kept from teaching in universities, or that Marxists should not enjoy the same freedom of speech and association that we all enjoy. Marxists, however, have an ideological commitment to historical materialism, by which everything can be, and must be, explained by class conflict. Given these commitments, can Marxist historians testify in litigation that involves what they perceive to be class interests and an opportunity to “empower” working class claimants? It would seem that positional commitments to the interests of the “work class” create conscious and unconscious biases when exploring historical issues that touch on labor-management issues.

Lawyers are accustomed to, and know how to exploit, bias that results from money, institutional loyalties, and friendships.[6] And yet, there are real conflicts of interest generated by scientists’ affiliations with advocacy groups, labor unions, or the lawsuit industry, not to mention their deeply held political commitments.[7] The ideological commitments revealed by the writings of the website sponsored by the Democratic Socialists of America should raise questions about expert witnesses who have deep ties to the group.

Historians would seem particularly vulnerable to biased assessment of whether knowledge of hazards was shared by industry and labor, as well as their respective industrial hygiene advisors, governmental actors, academia, and the medical community. Nonetheless, the case books are notably absent of precedents about discovery into political commitments, whereas the cases about discovery of fees, income, and percentages of defense versus plaintiffs’ work are legion.

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[1] “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017). See D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009); D. Rosner & G. 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); David Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009); David Rosner & Gerald Markowitz, “The Historians of Industry” Academe (Nov. 2010).

[2] “Counter Narratives for Hire” (Dec. 13, 2010). Other members of the Project Advisory Board include Robert Kuttner (co-founder & co-editor, American Prospect), Alice O’Connor (Univ. California, Santa Barbara), Janice Fine (Rutgers Univ.), Andrea M. Hricko (Southern California Envt’l Health Sciences Center), Jennifer Klein (Yale Univ.), Meg Jacobs, (Mass. Instit. Tech.), William Forbath (Univ. Texas Law School), Tom Sugrue (Univ. Pennsylvania), and Lizabeth Cohen (Harvard Univ.).

[3] Jake Blumgart, “Introducing The Cry Wolf Project,” Talking Union (June 17, 2011).

[4] Staff, “Academia’s latest propaganda factory, the ‘Cry Wolf’ project,” San Francisco Examiner (June 11, 2010).

[5] Fintan O’Toole, “Why George Bernard Shaw Had a Crush on Stalin,” N.Y. Times (Sept. 11, 1017).

[6] Sahana Pal, “Establishing Bias in an Expert Witness: The What, Why and How,” 14 Internat’l Commentary on Evid. 43 (2016); Anthony F. Della Pelle & Richard P. De Angelis, Jr., “Proving Positional Bias: How much discovery should be permitted of an expert witness’s financial interests?” A.B.A. Litigation Comm. (April 20, 2011); Michael H. Graham, “Impeaching the Professional Expert Witness by a Showing of Financial Interest,” 53 Indiana L. J. 35 (1977).

[7] “Can Expert Bias and Prejudice Disqualify a Witness From Testifying?” (Oct. 11, 2014).

After the advent of hyperstrict products liability law in the 1960s, Pennsylvania law fell into the trap of treating liability as joint and several, based upon pro rata, or per capita contribution. The Pennsylvania regime worked a tremendous hardship and unfairness, especially in the context of asbestos personal injury cases. If there were 10 companies sued in a mesothelioma case, each would be responsible under a molded verdict for a 10 percent share. This per capita molding would take place even if an non-settling defendant contributed less than1 percent of the asbestos exposure, and another, settled (or bankrupt) defendant was causally responsible for 50 percent of the friable asbestos in the workplace. Similarly, the per capita shares would be imposed even in a mesothelioma case involving one defendant that manufactured a crocidolite product that was 99.9 % causally responsible for the plaintiff’s demise.

In 2011, Pennsylvania enacted the Fair Share Act, which was remedial legislation designed to mitigate the unfairness of joint and several liability in mass, and other, tort litigation by abrogating joint and several liability in favor of apportionment of shares among multiple defendants, including settled defendants.[1]

Although the statute stated the general rule in terms of negligence,[2] the Act was clearly intended to apply to actions for so-called strict liability:

“(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection.”[3]

The obvious point of the Fair Share Act was to require courts to mold verdicts among so-called joint tortfeasors by their relative, comparative contribution to the plaintiffs’ harm.[4]  Although the Act carved out exceptions for intentional torts and for cases in which a defendant receives 60% or greater share in the apportionment, the run-of-the mine asbestos case fell squarely under the scope of the Act’s remedial purpose.[5]

The 2011 Pennsylvania remedial legislation sought to reform the state’s wooden approach by reintroducing apportioned contribution to join and several liability.

In Roverano v. John Crane, the Pennsylvania trial judge fell under the ever-present spell of asbestos exceptionalism, when he refused to apply Fair Share Act, suggesting that “the jury was not presented with evidence that would permit an apportionment to be made by it.” The trial judge’s conclusory suggestion ignored the trial proofs, which would have given the jury ample basis for apportioning, given that the plaintiff had been exposed to different asbestos products in distinguishable amounts, and for distinguishable durations.[6] Furthermore, asbestos products have distinguishable, relative levels of friability, with different levels of respirable fiber exposure for the plaintiff.  As noted, in mesothelioma cases, the products will inevitably contain different kinds of asbestos minerals – crocidolite, amostie, or chrysotile – which have distinguishable and relatively different levels of potency to cause the plaintiff’s specific disease. Asbestos cases, whether involving asbestosis, lung cancer, or mesothelioma claims, are more amenable to apportionment of shares among co-defendants than are “red car / blue car” cases.

Riding in on a ray of light, the Pennsylvania Superior Court reversed the trial court’s asbestos exceptionalism, and held that upon remand, the court must:

“[a]pply a non-per capita allocation to negligent joint tortfeasors and strict liability joint tortfeasors; and permit evidence of settlements reached between plaintiffs and bankrupt entities to be included in the calculation of allocation of liability.”[7]

The lawsuit industry was riled by the intermediate appellate court’s decision.[8] Plaintiffs counsel like per capita – equal – shares because it allows them to settle with strong adversaries, which funds their trials against weaker or recalcitrant defendants. If they lose, they lose; but if they win, they have minimized the offsets for the large contributors to their clients’ harms. The regime of equal pro capita contribution also allows to extort large settlements from minor defendants. The force behind this extortion is amplifed by the inability of all sued defendants to obtain offsets for the shares of settled or non-sued bankrupt defendants.

The Roverano plaintiff appealed from the Superior Court’s straightforward application of a remedial statute. At oral argument, Justice Baer invoked the specter of “junk science” appearing before juries in the form of evidencce for apportioned shares:[9]

“Respectfully, your theory is interjecting junk science. We’ve never held that duration of contact corresponds with culpability.”[10]

Six of the seven justices on the Pennsylvania Supreme Court, however, did not see the light on apportionment.[11] Although the majority allowed the bankrupts, whether sued or not, to be placed on the verrdict sheet for a potential offset to the liability of the judgment defendants, the Court held that the Fair Share Act did “not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.”[12]

The majority in Roverano demonstrated a singular lack of understanding of the record evidence, and the law of apportionment. Perhaps the Court’s best defense was that it was snuckered by the professional testifier, Dr. Arthur Frank, who described all asbestos diseases as “dose responsive, meaning that as the dose of asbestos increases so does the likelihood of disease.”[13] Frank proffered an obscurantist explanation:

“[T]here is scientifically or medically no exposures you can leave out that make up the cumulative exposure. It is the totality of the exposure that comes from the variety of products that people are exposed to that give them their cancer and all of the exposures they have day after day end up increasing their risk and if they get the disease, you have to say it was in part causative of it.”[14]

Frank thus concluded that each product that increased Mr. Roverano’s exposure to asbestos contributed to his risk of developing lung cancer. Frank’s opinions beg the question whether each product contributed to plaintiff’s risk of developing cancer in proportion to that product’s contribution to the total, cumulative fiber burden in the tissue that became malignant.

The defense causation expert witnesses, Dr. Alan Pope and Dr. James Crapo, both testified that Roverano had no increased risk for lung cancer, given that he did not have evidence of asbestosis, which is a prerequisite for being asbestos-caused lung cancer. Both of these defense expert witnesses attributed Roverano’s lung cancer to his tobacco use. Crapo, however, apparently conceded on cross-examination that “if a variety of asbestos products combined to cause a disease, the individual exposures cannot be separated, but nonetheless low-level exposures would not be a factor.”[15]

The disagreements between the parties’ physician expert witnesses were irrelevant to the apportionment issue. Although they disagreed whether there was a threshold for asbestos-related lung cancer, they all agreed that when asbestos caused lung cancer, it did so in a dose-dependent fashion, which would have been the useful predicate for the trier of fact to assess how much each defendant or non-party bankrupt was responsible for the cumulative dose.

The trial defendants each presented expert witnesses in the field of industrial hygiene. Counsel for Brand Insulation called Patrick Rafferty, who opined that Roverano’s asbestos exposure was within the range of normal, outdoor, ambient environmental levels. Apparently, Rafferty made no attempt to estimate the amount of the total exposure, such as it was, which came from Brand Insulation products. This estimation certainly would have been within an industrial hygienist’s competence in assessing historical workplace fiber counting data.

John Crane called Frederick Toca to testify, as both an industrial hygiene and a toxicologist. According to John Crane’s brief, Toca provided a quantification of asbestos fiber release from Crane’s packing material between .005 and .01 fiber/cubic centimeter, which is at or below the level of asbestos found in the ambient air. Toca further offered that Mr. Roverano’s asbestos exposure from the use of insulation materials had been as high as 30 to 100 f/cc. (R. 622a, Tr. 59.) The published opinion, and the parties’ briefs, are unclear as to whether the defense industrial hygienists provided an estimate of the trial defendants’ products to the “cumulative” exposure experience by plaintiff. The record appears to suggest that there was no dispute that the trial defendants’ products contributed a very small fraction of 1 percent of the total.

If the Pennsylvania Supreme Court’s decision is correct, Toca testified to a conclusion that “the asbestos-containing thermal insulating products combined with cigarette smoking were responsible for the increased risk of lung cancer.”[16] Without the full record, I cannot verify the accuracy of this statement, but curiously I could not find any reference to such testimony in the plaintiff’s or the defendants’ briefs. In addition, the reference to Toca in plaintiff’s brief emphasized Toca’s acknowledgement that he was not a physician, and that he was not giving a medical causation opinion. (RR 625a; N.T. p. 78).

If the majority opinion is correct, then John Crane’s calling a non-physician toxicologist to disagree with its well-qualified pulmonary physician expert, Dr. Crapo, was an astonishing and puzzling move. Some would even call it a stunningly stupid act of self-immolation. Worse yet, Toca is not credited with having any basis for his causation opinion, which is against the weight of epidemiologic evidence. Even with this curious defense-sponsored opinion from Dr. Toca, there was no dissent or disagreement that asbestos-related lung cancers were dose-related outcomes, which would be the basis for a risk-based causal apportionment.

No expert witness identified a “fingerprint” of causation that permitted the plaintiff’s lung cancer to be attributed to asbestos, smoking, or a combination of the two. The testimony at trial was about “risk,” with the glib assumption that the cumulative risk resulted in the lung cancer, and that all the cumulative risk was involved. The cumulative risk, however, was proportional to the amount and duration of asbestos exposures from their various sources.

The incoherence of the Roverano majority opinion is aggravated by the failure to recognize the lack of any meaningful, legal distinction between so-called strict liability failure to warn and negligence.[17] Furthermore, with respect to culpability, juries make difficult quantitative assessments of fault based upon non-quantitative evidence in myriad of circumstances. Apportionment based upon causal contribution in proportion to friable asbestos exposure would be simple and straightforward by comparison.

At the Pennsylvania Supreme Court, only dissenting Chief Justice Saylor “got it.” Although he agreed that the non-party bankrupt companies should have been on the verdict sheet, the Chief Justice pointedly dissented from the majority’s cribbed reading of a remedial statute, and the majority’s “inertia” in the face of a clear legislative mandate to implement a “fair share” comparative responsibility regime, which takes into account both “causal” responsibility and fault (when proven at trial). The dissent is worthy of extensive quotation, especially given the Chief Justice’s recognition of the majority’s failure to understand the risk-based reasoning that was used at trial to claim causation:

“I also respectfully disagree with the majority’s conclusion that comparative apportionment of liability is impossible in asbestos cases. *** I have previously observed that, in light of the immense uncertainties involved in assessing actual, product-specific causation in many asbestos cases, the courts have come to accept abstract assessments of increased risk as proxies for traditional substantial-factor causation. [citing to his dissent in Rost v. Ford Motor Co., 637 Pa. 625, 151 A.3d 559 1032, 1057 (2016); and to the majority opinion’s reliance upon plaintiff’s own risk-based analysis] Along these lines, because of all of the impediments to any sort of rational determination of dose in long-latency, toxic tort cases involving frequently undocumented, unquantified, and sometimes small exposures to many different sources of asbestos occurring long ago in the past, the platitude that ‘[r]ough approximation is no substitute for justice’, Majority Opinion, at 542 (citation omitted), becomes quite meaningless in the asbestos litigation landscape. In this respect, I submit that ‘rough approximation’ is at best a generous characterization for what occurs on a routine basis in asbestos-related trials in Pennsylvania and elsewhere.

Given that risk-based assessments are being accepted to support jury determinations of substantial-factor causation, I see no reason why the same litmus cannot be employed to support comparative responsibility assessments by jurors, as the Fair Share Act plainly contemplates. [citing statute] By way of example, as I read the statute, it was intended to permit a factfinder to apportion liability differently between a manufacturer of loose insulation containing friable, amphibole asbestos to which a plaintiff may have been exposed on a daily basis in an industrial workplace for decades, and a local auto parts store which may have carried brake shoes (among its inventory of thousands of other products) containing asbestos encapsulated in resin, which the same plaintiff may have occasionally installed on his personal vehicles.

Furthermore, the majority’s analysis appears to overlook that apportionment assessments are generally imprecise ones in many contexts, but they are nevertheless routinely entrusted to jurors. [citing briefs].”[18]

Chief Saylor’s dissent embarrasses the shaky scholarship of the majority’s opinion. The Pennsylvania Supreme Court had previously affirmed the proposition that “liability attaches to a negligent act only to the degree that the negligent act caused the employee’s injury.”[19] Asbestos litigation has been around for a long time in Pennsylvania, and elsewhere. The Roverano decision will help it stay around longer still.[20] On the reviewed evidence, the trial defendants should have been liable either for nothing or for a very small fraction of one percent of the total damages.

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[1] 42 Pa.C.S.A. § 7102.

[2] 42 Pa.C.S.A. § 7102(a).

[3] 42 Pa.C.S.A. § 7102(a)(1) (emphasis added).

[4] 42 Pa.C.S.A. § 7102(a)(2).

[5] 42 Pa.C.S.A. § 7102 (a)(3)(ii), (iii).

[6] “Apportionment and Pennsylvania’s Fair Share Act” (Mar. 14, 2019).

[7] Roverano v. John Crane, 2017 Pa. Super. 415, 177 A.3d 892 (2017).

[8] See Max Mitchell, “Pa. Justices Express Wariness of ‘Junk Science’ in Applying Fair Share Act,” (Mar. 6, 2019).

[9] Id.

[10] Id.

[11] Roverano v. John Crane Inc. , 226 A.3d 526 (Pa. 2020).

[12] Id. at 527. The Court cited a two-decade old decision in Baker v. AC & S, 562 Pa. 290, 755 A.2d 664 (2000), in which it relied upon a trial court’s explanation that the jury had no evidence upon which the it could apportion liability. “The plaintiff’s testimony was clear and unequivocal that asbestos exposure from individual products cannot be quantified. The defendants presented no evidence to the contrary.”

[13] Id. at 529 (internal citations omitted).

[14] Id. at 530.

[15] Id. at 530-31 (“If they are all part of something he used substantially and contributed to the dose in a major way, then, no, I couldn’t separate them out.”).

[16] Id. at 531.

[17] Justice Wecht concurred in part to emphasize that “[t]he only coherent way to assign unequal shares of liability among multiple defendants is to assess relative blameworthiness, and that leads inevitably to considerations indistinguishable from fault.” Id. at 549-50. Because the Pennsylvania courts have persisted in ignoring the equivalence between strict liability failure to warn and negligence, Justice Wecht felt he had to concur.

[18] Id. at 558-59.

[19] Dale v. Baltimore & Ohio RR., 520 Pa. 96, 106, 552 A.2d 1037, 1041 (1989). See also McAllister v. Pennsylvania RR., 324 Pa. 65, 69-70, 187 A. 415, 418 (1936) (holding that plaintiff’s impairment, and pain and suffering, can be apportioned between two tortious causes; plaintiff need not separate damages with exactitude); Shamey v. State Farm Mutual Auto. Ins. Co., 229 Pa. Super. 215, 223, 331 A.2d 498, 502 (1974) (citing, and relying upon, Restatement (Second) of Torts Section 433A; difficulties in proof do not constitute sufficient reason to hold a defendant liable for the damage inflicted by another person). Pennsylvania law is in accord with the law of other states as well, on apportionment. See Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988) (holding that a strict liability claim against General Motors for an unreasonably dangerous product defect was subject to apportionment for contribution from failing to wear a seat belt) (the jury’s right to apportion furthered the public policy of properly allocating the costs of accidents and injuries).

[20] James Insco and Matthew Deluzio, “Pennsylvania Asbestos Ruling Helps Extend Claims To Bankrupt Entities,” Law360 (March 10, 2020).

Exploring pathology can help us appreciate proper physiological function, and how normal functioning can be lost. In the realm of epistemology, studying error or patho-epistemology, can help us elucidate knowledge. To that end, Ross Pomeroy, at Real Clear Science, this week offers his views of the best of the worst of 2020 pseudo-science.[1] Admittedly, 2020 has been a bad year for epistemic virtue, but Pomeroy lists eight noteworthy instances of scientific junk. Not surprising, several of his eight examples come from the Trump epistemic swamp.

Next year, junk science is likely to be more bipartisan, with left-wing and right-wing nutjobs finding consensus in anti-vaccination make believe. On the left, chemophobia is leading to hyperventilation, without evidence, over whether chemicals such as Per- and polyfluoroalkyl substances (PFAS) will inhibit COVID-19 vaccine efficacy.[2] Congressman Dan Kildee (D-Mich.), who has tirelessly advocated against PFAS, pushed the Centers for Disease Control to investigate whether there was an interaction between PFAS exposure and COVID-19.[3] This bit of political pressure was then transformed into a hyperbolic statement by Philippe Grandjean, an adjunct professor of environmental health at the Harvard School of Public Health and testifier for the lawsuit industry,[4] that “[a]t this stage we don’t know if it [PFAS] will impact a corona vaccination, but it’s a risk.” How something that has unknown health effects is transmuted into a “risk” by Grandjean is a secret lost with the great alchemists of the 13^th century.[5]

And on the right, look for the leopard-skinned kraken-pot lawyer, Sidney Powell, to generate lies, conspiracies, and frauds about COVID-19 vaccines and vaccination.[6]

The numbering of junk science examples below is Pomeroy’s, and it is not clear whether the last, which was labeled number one, was supposed to be the worst, or whether number eight was. I have repeated Pomeroy’s list, in his order, with my musings.

8. Woke Science: Magic Amulets Prevent COVID-19

This exemplar of junk comes from researchers at the University of Pittsburgh’s departments of infectious disease and epidemiology, and was published online in October 2020, at the dubious journal, Science of the Total Environment.[7] The title of the article purports to ask a question:

“Can Traditional Chinese Medicine provide insights into controlling the COVID-19 pandemic: Serpentinization-induced lithospheric long-wavelength magnetic anomalies in Proterozoic bedrocks in a weakened geomagnetic field mediate the aberrant transformation of biogenic molecules in COVID-19 via magnetic catalysis”

Discerning editors and peer reviewers might have noticed that the authors omitted a question mark from their title, or that the content of the article was utterly bogus. A trip to the article online shows up a notice that the article has been removed:

“The publisher regrets that this article has been temporarily removed. A replacement will appear as soon as possible in which the reason for the removal of the article will be specified, or the article will be reinstated.”

Inquiring minds are yearning to know the reason for the removal, but in the interim, several observers have noted that the paper in question had the aroma of a dogpile.[8] The article is so outlandish that some skeptical onlookers, such as Drs. Steven Novella[9] and Ivan Oransky, thought that the article might be a Sokal-style hoax.[10]

Alas, the authors were in earnest. COVID-19 is related to magnetic fields, but jade amulets can prevent the disease. Who would have thought? When Dr. Ivan Oransky wrote to confirm authorship of the publication,[11] his inquiry provoked a white-fragility accusation from Moses Turkle Bility, one of the authors!

“Dear Dr. Ivan Oransky, yes, I published that article, and I kindly suggest you read the article and examine the evidence provided. I also suggest you read the history of science and how zealots have consistently attempted to block and ridicule novel ideas that challenge the predominant paradigm from individuals that are deem not intelligent enough. I not surprised that this article has elicited angry responses. Clearly the idea that a black scientist can provide a paradigm shifting idea offends a lot of individuals. I’ll be very candid with you; my skin color has no bearing on my intelligence. If you have legitimate concerns about the article and wish to discuss, I’ll address; however, I will not tolerate racism or intellectual intolerance targeted at me.”

The ultimate Woke anti-racist brushback pitch in scientific discourse! Or maybe I am just “jaded.”

7. Maga-megachurch’s Air Filtration System Destroys 99.9% of COVID.

Owners of a megachurch claimed that their air filtration system killed 99.9% of the corona virus that causes COVID-19. Biblical miracles aside, the Arizona Attorney General thought this claim was a step too far and ordered the Phoenix church to stop advertising its air purification system.[12] Next you know, Arizona will ban claims of virgin birth.

6. Oleandrin

The transitive property of truth should validate the efficacy of oleandrin as a “miracle cure” for COVID-19.  The CEO of MyPillow, Mike Lindell, supports Donald Trump, and Donald Trump supports Mike Lindell. Mike Lindell supports oleandrin, a plant-based toxin,[13] and so Trump supports oleandrin as well as a “miracle cure.” Or is it the transitive property of stupidity? In the meanwhile, the U.S. FDA rejected an application for permission to include oleandrin in supplements. On the other hand, Trump’s Secretary of Housing and Urban Development, Dr. Ben Carson has enthusiastically touted oleandrin, and he is a brain surgeon.[14]

5. Sodium Hypochlorite and Lysol, i.v., stat!

Back in April 2020, former President Trump told an anxious nation that he thought that the ideas of putting light down into the lungs, or maybe just disinfectant, would knock out the corona virus. Trump seemed to take credit for these ideas, which he found “pretty interesting.”[15] Main stream media struggled with how to let the American public know that their president was a moron.

4. Methanol for COVID.

Not a good idea, but apparently many Iranians thought it could not be worse than anything that President Hassan Rouhani had in store for them.

3. 5G and COVID-19

OK, a bogus claim but maybe a good reason to delay upgrading your cell phone.

2. Face Masks Activate Corona Virus

COVID-19 brought out some of the most remarkable quacks. Take Judy Mikovits. Please. Mikovits was the intellectual powerhouse behind the docu-conspira-mentary, “Plandemic.” Good to know. Mikovits advanced the unfounded claim that wearing face masks activate the corona virus, that beaches have healing powers, and that a vaccine against COVID-19 will kill millions.[16] Good to know.

1. Hydroxychloroquine

Donald Trump has always been a snake-oil salesman, but with his endorsement of hydrochloroquine, at least he hawked an FDA-approved medication. The problem was that the indication for hydrochloroquine was malaria, not COVID-19.

Unlike his support for injecting bleach and Lysol, Trump had “expert support,” for his touting of hydrochloroquine, the Association of American Physicians & Surgeons (AAPS).[17] Despite its official sounding name, the AAPS was little more than a propaganda outlet for the debunked study by Didier Raoult. The International Society of Antimicrobial Chemotherapy (ISAC), which publishes the journal in which Raoult’s study appeared had issued a statement “of concern” about Raoult’s results. Trump, however, had no concern, perhaps because the AAPS also relied upon claims made by Vladimir Zelenko about 1,554 patients, for which he had “published no data, described no study design, and reported no analysis.”

But wait, Trump and the AAPS had more data. Since no quackfest would be complete without “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.[18] Notwithstanding Donald’s Trumping of hydroxychloroquine, the FDA revoked its emergency use authorization for the medication’s use as an anti-viral.[19] In the meanwhile, Trump and his administration wasted government resources by stockpiling an unproven, useless medication, while ignoring efficacious ones.[20]

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[1] Ross Pomeroy, “The Biggest Junk Science of 2020,” Real Clear Science (Dec. 15, 2020).

[2] Oliver Milman, “Covid: chemicals found in everyday products could hinder vaccine: Researchers worry PFAS, commonly found in the bodies of Americans, will reduce the immunization’s effectiveness,” The Guardian (Nov. 17, 2020).

[3] Iris Myers, “CDC Investigates Potential Link Between ‘Forever Chemicals’ and Decreased Effectiveness of Covid-19 Vaccines,” Envt’l Working Group (Dec. 11, 2020).

[4] See, e.g., Maine People’s Alliance v. Holtrachem Mfr’g Co., 211 F. Supp. 2d 237 (D. Maine 2002); Sullivan v. Saint-Gobain Performance Plastics Corp., 431 F. Supp. 3d 448 (D. Vt. 2019); Food & Water Watch, Inc. v. U.S. EPA, case no. 17-cv-02162-EMC (N.D. Calif. Aug. 10, 2020).

[5] This hyperbole was rightly called out by Joseph Annotti and the Center for Truth in Science. See “Center for Truth in Science Responds to Concerns over PFAS Compounds and Vaccine Efficacy,” Center for Truth in Science (Dec. 16, 2020).

[6] Davey Alba & Sheera Frenkel, “From Voter Fraud to Vaccine Lies: Misinformation Peddlers Shift Gears,” N.Y. Times (Dec. 16, 2020).

[7] Moses Turkle Bility, Yash Agarwala, Sara Ho, Isabella Castronova, Cole Beattya, Shivkumar Biradara, Vanshika Narala, Nivitha Periyapatna, Yue Chen, Jean Nachega, “Can Traditional Chinese Medicine provide insights into controlling the COVID-19 pandemic: Serpentinization-induced lithospheric long-wavelength magnetic anomalies in Proterozoic bedrocks in a weakened geomagnetic field mediate the aberrant transformation,” Science of The Total Env’t, available at https://doi.org/10.1016/j.scitotenv.2020.142830 (online 8 October 2020, 142830).

[8] Shawna Williams, “Paper Proposing COVID-19, Magnetism Link to Be Retracted: The study, published in a peer-reviewed journal, has attracted widespread derision from researchers,” The Scientist (Nov. 4, 2020).

[9] Steven Novella, “Magic Amulets Do Not Prevent COVID,” The Ness (Nov. 03 2020).

[10] See, e.g., Jamie Lindsay & Peter Boyle, “The Conceptual Penis as a Social Construct,” 3 Cogent Social Sciences online (2017) (Peter Boghossian published under the pseudonym Peter Boyle), retracted (2017).

[11] Ivan Oransky, “Amulets may prevent COVID-19, says a paper in Elsevier journal. (They don’t),” Retraction Watch (Oct. 29, 2020).

[12] News Staff, “Arizona AG o)rders Glendale company, Phoenix church to stop advertising air purification system,” Arizona Family (June 26, 2020).

[13] Steven Novella, “Oleandra – The New COVID Snake Oil: Oleandrin is being promoted as the new COVID-19 snake oil – but it is a deadly toxin,” Science-Based Medicine (Aug. 19, 2020).

[14] Jonathan Swan, “Trump eyes new unproven coronavirus ‘cure’,” Axios (Aug. 16, 2020).

[15] William J. Broad & Dan Levin, “Trump Muses About Light as Remedy, but Also Disinfectant, Which Is Dangerous,” N.Y. Times (April 24, 2020).

[16] Angelo Fichera, Saranac Hale Spencer, D’Angelo Gore, Lori Robertson and Eugene Kiely, “The Falsehoods of the ‘Plandemic’ Video,” Fact Check (May 8, 2020); Stuart J.D. Neil  & Edward M. Campbell, “Fake Science: XMRV, COVID-19, and the Toxic Legacy of Dr. Judy Mikovits,” 36 AIDS Research & Human Retroviruses 545 (2020); Martin Enserink & Jon Cohen, “Fact-checking Judy Mikovits, the controversial virologist attacking Anthony Fauci in a viral conspiracy video,” Science Mag. (May 8, 2020).

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

[18] The HCQ issue is not the AAPS’s first quack attack. Those who follow the organization will sense déjà vu. The AAPS has held forth previously on abortion and breast cancer, vaccination and autism, HIV and AIDS, and Barak Obama and hypnotic induction. See “The Plague and Quackery Right & Left” (June 19, 2020).

[19] 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). The AAPS did not take the FDA’s rejection of hydroxychloroquine lying down. The Society sued the FDA to end “arbitrary” restrictions on its use. “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine,” AAPS (June 2, 2020). The AAPS complaint is available at its website: http://aapsonline.org/judicial/aaps-v-fda-hcq-6-2-2020.pdf

[20] See 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); 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); “Remarks by President Trump in a Roundtable with Restaurant Executives and Industry Leaders” (May 18, 2020); Andrew Solender, “All The Times Trump Has Promoted Hydroxychloroquine” Forbes (May 22, 2020). 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).

Claims under Federal and State Racketeering Acts And Other Civil Remedies

There are three types approaches to civil remedies a defendant might pursue to inhibit the flow of false claims in products cases. First, a defendant could seek to take on the entire procedure by which these claims have been developed and focus broadly on the alliance between plaintiffs’ lawyers and their medical accomplices.  The Federal Racketeering Act, RICO, offers the most likely avenue of attack for such a wide-ranging approach. Indeed, this was the approach that the CSX Railroad took in seeking redress from fraudfeasor radiologist Dr. Ray Harron and his lawsuit industry collaborators.[1] Second, the product liability defendant could select a limited number of bogus claims and file suit related specifically to those claims.  Third, the product liability defendant can seek remedies in the specific cases, after prevailing, for bad faith filings or improper conduct by lawyers.

A Challenge under RICO to the Broad Pattern Of Misconduct By Plaintiffs’ Lawyers And Their Medical Collaborators

The federal RICO statute allows a private plaintiff damaged by a “pattern of racketeering activity” to sue those involved in conducting the affairs of an enterprise through a pattern of such unlawful conduct.[2]  One of the central aspects of RICO is that it provides a civil remedy for misconduct that would otherwise be subject only to criminal sanctions.  On the other hand, to qualify for such unique remedies, a plaintiff must satisfy a number of difficult, technical requirements under the RICO statute.

While a substantial and complex body of case law has developed under RICO, the following are the main issues that bear on the viability of such a claim against the lawyers and medical professionals who are responsible for allegedly bogus claims, such as were seen in the Silica MDL:

• The existence of repeated instances of the misconduct on which the RICO claim is predicated;
• A showing that there has been a pattern or practice of such misconduct;
• Proof that a person has conducted the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.[3]

Putting aside the various – and significant – technical issues, a product liability defendant must meet three fundamental requirements of persuasion before a court will likely allow it to proceed, namely showing that the pattern of false claims the product liability defendant confronts:

(1) falls well outside the normal bounds of litigation misconduct (given that courts are all too accustomed to experts whose testimony conveniently favors their respective sides);

(2) is such a wide-ranging problem that it cannot properly be addressed on a case-by-case basis like most issues of bad faith litigation conduct; and

(3) raises issues that are susceptible of judicial, rather than legislative, redress.

The Predicate Offense

The most central requirement for a RICO plaintiff is the identification of an illegal “predicate act” within the meaning of RICO – that is, an illegal action which, taken together with other instances of similar conduct, constitutes a “pattern” of racketeering activity.  The statute contains a long list of enumerated predicate offenses, one of which must occur in a “pattern” over a sufficiently long period of time for there to be a valid claim under RICO.  While there are several candidates, the most promising theory here is that the plaintiffs’ lawyers have engaged in repeated acts of bribing witnesses to provide false and/or misleading testimony at depositions and at trial — in particular, the medical professionals whose diagnoses are the linchpin of the false claims, such as those seen in the Silica MDL.[4]  It is also possible that the product liability defendant could bring a RICO case based on predicate acts of mail and wire fraud.

“Bribery” of Witnesses; Obstruction of Justice; Witness Tampering

In defining “racketeering activity,”[5] the federal RICO statute expressly refers to certain offenses that pertain to the administration of justice, including obstruction of justice,[6] witness tampering,[7] and bribery.[8]  These statutes, however, only apply to offenses committed in the course of federal proceedings.

On the other hand, Section 1961(1)(A), of the federal criminal code, also refers to “bribery. . . .chargeable under State law and punishable for imprisonment for more than one year. . . .”  There is substantial authority to the effect that “bribery” is a generic designation and does not limit predicate acts to state laws that are specifically labeled as bribery.  Rather, a court need only determine whether the alleged misconduct is the type of activity which falls within a general description of bribery.[9]  Product liability defendants may well have a claim that the dealings between plaintiffs’ lawyers and the physicians involved in medical screenings involve an ongoing course of what can properly be viewed as bribes to witnesses to submit materially false evidence in violation of state law.  Several points support this position.

There is authority under state law that payments to witnesses to provide favorable testimony do in fact constitute bribery.^[10]  For example, the Texas Penal Code provides that:[11]

“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding[^[12]] or coerces a witness or prospective witness in an official proceeding:

(1) to testify falsely;

(2) to withhold any testimony, information, document, or thing… .”

Similarly, Mississippi, another jurisdiction where screening activities have taken place with some abandon, has enacted a prohibition against “bribery to induce perjury” which provides as follows:

“Every person who shall, by the offer of any valuable consideration, attempt, unlawfully and corruptly, to procure any other person to commit willful and corrupt perjury as a witness in any cause, matter, or proceeding in or concerning which such other person might by law be examined as a witness, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years.”[13]

In the silica MDL cases, Judge Jack’s opinion did not specifically find that a corrupt payment was made on any particular occasion.  Rather than describing the exchange of a specific envelope of cash, the silica MDL opinion described an ongoing course of corrupt remuneration paid to medical professionals who were all too willing to bend their opinions and subvert medical standards.  Any attempt to characterize such a pattern of behavior as witness bribery must answer two basic questions:

(1) are the medical witnesses being paid for expert services, rather than the content of their testimony; and

(2) would awarding relief in this case establish a wide-ranging precedent under which legitimate experts would be chilled from rendering opinions and litigants’ access to the courts correspondingly restricted.

There seems no good reason to excuse the collaboration of lawyers and expert witnesses that results in the procurement of convenient, false, and exaggerated testimony from the laws that condemn tendering false evidence.

The proof problem, however, for situations in which the illicit payments take more subtle forms, such as “fees” for hired experts as opposed to envelopes of money for lay witnesses, may become intractable. In practice, it will be easier to persuade a court to consider the payments made for favorable diagnoses (such as silicosis in the silica MDL) as bribes if the evidence shows that the hired physicians’ testimony was perjured. Perjured testimony would certainly encourage courts to permit juries to consider whether the witness payments were for the substance of testimony, rather than for disinterested professional services. Furthermore, a showing of perjury would reduce any judicial concern that the litigation would chill legitimate expert witness opinion testimony, especially in novel contexts.

The federal bribery statute specifically carves out payment of reasonable fees to expert witnesses.[14]  But expert witnesses clearly have no immunity from the prohibitions against accepting compensation for the substance of testimony.  The proof problems for expert witnesses are differentially greater than they are with lay witnesses.  The basic requirement of truthful testimony, however, is a constant.  Notwithstanding that expert witnesses are entitled to fair compensation for their expertise, judicial concerns over the corrupting influence of excessive fees and testifying date back to the 19th century.

The difficulty in showing that the procured opinion testimony was deliberately false may be mitigated in cases such as the claimed silicosis cases in the silica MDL by showing that the opinions were given with full knowledge that they were insufficient under professional standards and scientific, medical principles. Furthermore, there is the matter of physicians reading the same X-ray in two, inconsistent ways. In any event, under the federal RICO statute (as opposed to the analogous state RICO statutes) showing perjury in a state court proceeding will not be enough to state a valid claim.  A showing of perjury, however, combined with the other aspects of the relationship between the plaintiffs’ lawyers and their cooperating medical screeners may support an inference of bribery, which in turn may serve as a predicate offense for RICO liability.

Fraud

GAF’s claims of frauds discussed[15] earlier focused on the claim that asbestos plaintiffs’ lawyers focused had committed RICO predicate acts of mail fraud,[16] and wire fraud,[17] by submitting fraudulent claims for payment.  Much of the GAF litigation focused on arguments about whether GAF’s successive complaints satisfied the requirement of Federal Rule of Civil Procedure 9(b) that allegations of fraud be pled “with particularity.”

Although Judge Jack’s thorough opinion showed that fraud claims certainly had a basis in fact in the context of the silica MDL, that litigation illustrates a central problem; namely, how can a defendant prosecute a civil fraud or RICO case when it knew that the claims were bogus, litigated the soundness of the diagnoses, and prevailed by having the diagnoses excluded. Detrimental reliance is, of course, a key general element of any fraud claim.  In the case brought by GAF, this issue was resolved in favor of GAF, but based on GAF’s argument that it had relied on fraudulent affidavits in connection with settlements of cases.  Thus, in essence, GAF adequately pleaded that it had relied on the fraudulent misstatements.[18]

Notwithstanding the general requirement that a fraud claim plead detrimental (and reasonable) reliance, there is authority that would support a RICO claim even if the RICO plaintiff did not rely on the fraudulent representations.[19] The reliance of a third party, such as a court or a jury may satisfy the reliance requirement.

“Pattern Of Racketeering Activity” 

Apart from the requirement of showing that predicate acts have occurred, a complaint under RICO must plead the existence of “a pattern of racketeering activity.”[20]  The RICO statute defines a “pattern of racketeering activity” as requiring a showing of “at least two acts of racketeering activity” committed within a 10-year period.  Most courts recognize that a “pattern” usually means more than two, with some courts requiring plaintiffs to show “continuity plus relationship” between or among the predicate acts to establish a “pattern of racketeering activity.”[21] The Supreme Court has stated that RICO plaintiffs can show “continuity plus relationship” for purposes meeting the RICO statutory RICO’s “pattern of racketeering activity” requirement by establishing a nexus between the defendant’s predicate acts.[22]

A plaintiff can establish the nexus by showing that “the criminal acts have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.”[23] The continuity element is basically a temporal connection, satisfied by showing “the predicates themselves amount to, or . . . otherwise constitute a threat of continuing racketeering activity.”[24] RICO plaintiffs can meet their burden by alleging and proving that either

(1) that the defendant’s predicate acts or offenses were part of the defendant’s regular way of doing business;[25] or

(2) that “a series of related predicates extend[ed] over a substantial period of time.”[26]

The Supreme Court has made clear that the proper focus is on long-term criminal conduct, and stated that “[predicate] acts extending over a few weeks or months and threatening no future criminal conduct [would] not satisfy [the continuity] requirement.”[27]  The federal circuits have continued to disagree about how to apply this mandate.

To succeed on a RICO claim, a product liability defendant must show that the pattern of activity with which it is concerned satisfies the continuity requirement inherent in the statutory reference to a “pattern of racketeering activity.”  The misconduct must have taken place over a significant period of time and over a wide number of cases; it must be ongoing and constitute a basic method of doing business for those involved.

Conducting the Affairs of the “Enterprise” Through the Pattern of Racketeering Activity

A complaint under RICO must also allege that a person has “conduct[ed]” the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.

Distinction between the Enterprise and the Pattern Of Racketeering Activity

An enterprise is a group of persons or entities associating together for the common purpose of engaging in a course of conduct.[28] Under the federal RICO statute, the enterprise may be a legal entity or “any union or group of individuals associated in fact although not a legal entity.”[29] A confederacy of individuals or entities may be a valid “associat[ion] in fact” enterprise.  But “[t]he plaintiff alleging an association-in-fact enterprise must adduce evidence demonstrating ‘an ongoing organization, formal or informal, and . . . evidence that the various associates function as a continuing unit.’ ”[30]  As one of the Circuits has stated, such an “associat[ion] in fact” enterprise:[31]

(1) must have an existence separate and apart from the pattern of racketeering,

(2) must be an ongoing organization and

(3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.

In considering the plaintiffs’ counsel’s racket in the Silica MDL as a protential RICO case, we must assess whether the network of silica plaintiffs’ lawyers and the cooperating medical screeners can properly be characterized as an “enterprise” within the meaning of RICO. Although the corrupt nature of the enterprise was apparent to Judge Jack, a RICO case will require particularity in pleading and proof of the cross-ties between the participants in the scheme. Beyond the evidence proffered in the Rule 702 hearing in In re Silica, a RICO plaintiff would have to develop further the ongoing relationships between plaintiffs’ counsel and the screening and sham-diagnosing physicians by showing their collaboration in and through professional organizations, joint efforts to influence legislation, and other activities, to define the nature and scope of their enterprise.[32]

Remedies

There are two types of remedies that might be available based on the RICO claim.  First, the plaintiff could seek the consequential damages incurred as a result of the pattern of racketeering activity.  Second, the plaintiff could seek equitable relief, including an injunctive to halt the illegal conduct.

Damages — Under section 1964(c) a RICO plaintiff must be “injured in his business or property” and “shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee . . .”  “[T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property.”[33]    To seek consequential damages under RICO, an aggrieved product manufacturer would have to prove that the pattern of illegal behavior has imposed reasonably quantifiable costs.

In cases where the product liability defendant already prevailed, the defendant could seek the costs of defending the action.  Although the issue is not finally settled, there is strong authority for the proposition that litigation costs can be awarded under RICO notwithstanding the general rule that parties bear their own court costs.[34]  This rule is particularly appropriate in cases in which the predicate acts directly increased the difficulty and cost of defense.

If a product liability claim proceeded to jury verdict in favor of the plaintiff, the product manufacturer could not seek damages until it obtained relief from judgment. A final judgment in favor of plaintiff would bar, under the doctrine of res judicata, any RICO claim for the misconduct that went into obtaining the verdict.

Equitable Relief – The product liability defendant might also seek an injunction against a continuation of the pattern of racketeering activity in which the lawyers and medical professionals have engaged.  Whether Section 1964(c) authorizes equitable remedies for private litigants is an issue that has divided courts.[35]

Filing Suit against Lawyers and Physicians Involved in Particular Bogus Claims or Groups of Claims

State Fraud and Malicious Prosecution Actions

A defendant facing perjurious testimony in a line of improper product liability cases might also consider filing a test case against those responsible for a particular bogus claim or group of claims.  Although a single test case might seem to be easier endeavor than a broad RICO action, that is not necessarily true, due to the difference in the legal theories available.  As noted above, RICO and its state counterparts are notable for the fact that they allow civil remedies for misconduct proscribed by criminal law.

To prevail in a suit alleging malicious prosecution of a civil claim, in Texas for instance, a plaintiff must establish the following elements:

“(1) the institution or continuation of civil proceedings against the plaintiff;

(2) by or at the insistence of the defendant;

(3) malice in commencement of the proceedings;

(4) lack of probable cause for the proceeding;

(5) termination of the proceedings in defendant’s favor; and

(6) special damages.”[36]

Texas courts have made clear that “a plaintiff must suffer a special injury before recovering for malicious prosecution of a case.”[37]  A party is deemed to have suffered special damages when there is “some physical interference with a party’s person or property in the form of an arrest, attachment, injunction, or sequestration.”[38]

State-law based fraud claims raise the difficulties of proof of detrimental reliance discussed above in the context of RICO; namely, whether the product liability defendant must demonstrate that it detrimentally relied on the fraudulent conduct it alleges.  Some of the RICO case law promisingly suggests that third-party’s reliance will suffice, but there is a dearth of precedent for most states’ common law fraud. A number of states have adopted their own state analogues of the federal RICO statute. One potential advantage of proceeding under state RICO is that obstruction of justice may, in some states, serve as a predicate offense, without having to demonstrate bribery.

 Common Law Negligence Actions against Testifying Physicians

Although the harm arising from misleading opinion testimony can be substantial and readily foreseen, the law of most states gives testifying expert witnesses immunity from suit for negligently false or misleading testimony.[39]  More recent cases have prohibited parties from suing their adversaries’ expert witnesses, but have permitted parties to sue their own expert witnesses.[40]

In 1984, New Jersey took a big step towards permitting actions against adversarial expert witnesses by allowing a suit against an “impartial expert,” jointly appointed by the parties to render a binding asset valuation.  The New Jersey Supreme Court, in reversing a summary judgment for the expert, held that such an expert witness has no immunity from claims for breach of agreement, for breach of fiduciary duty, and for negligence.[41]

The Texas Supreme Court has allowed a man involuntarily committed to proceed with a negligence action against the psychiatrist who served as an expert witness for his children.[42] In decades since these narrow exceptions, there has been little movement on reducing the immunity that expert witnesses enjoy for incorrect testimony, negligently or even recklessly given.

Actions or Motions to Disqualify Testifying Expert Witnesses from Participating in Future Proceedings

Under the laws of most states, there is no opportunity to bar an expert witness from participating in future litigation endeavors on the basis of his past derelictions of duty.  The closest remedy to such prospective prohibition is a professional sanction such as licensure suspension or revocation, which would be readily discovered and used to impeach the offending expert witness in future cases.  As we have seen, such a sanction is quite rare in the United States.

Monetary Sanctions against Attorneys

Both state and federal law contain a variety of remedies for improper litigation conduct, including Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and the inherent supervisory powers of the court, and others, to address improper litigation expert witness conduct. Historically, these three approaches have not provided any meaningful remedy against meretricious expert witness testimony.

Conclusion

Encouraged by legal counsel, and fueled by partisan zeal or desire to shape public policy through the workings of tort law, expert witnesses have shaped and distorted the law.  The imposition of a reliability standard in Federal Rule of Evidence 702 has ameliorated the situation a bit in federal court, at least when federal district judges are willing to make the effort to understand the science and examine the testimony for its logical and scientific gaps and errors.  The situation in many state courts is not so sanguine, and there are situations in all courts where more serious remedies than simple exclusionary rules are needed.  The law is catching up with the magnitude of the problem created by the prosecution of mass torts, with fortunes at stake.  The solutions will take creativity and persistence from those aggrieved by bogus science and bad medicine in the courtroom.

---

[1]  CSX Transp., Inc. v. Peirce, 974 F. Supp. 2d 927 (N.D. W. Va. 2013), app. dism’d sub nom. CSX Transport., Inc. v. Gilkison (4th Cir. Nov. 6, 2014).

[2]  18 U.S.C. § 1962(c).

[3] Section 1962 contains other prohibitions against racketeering activity.  However, the prohibition in § 1962(c) referred to above is the most plausible avenue for relief in the present context.

[4] While the plaintiffs themselves are likely encouraged to give false or unfounded testimony, the medical professionals are a more appropriate subject of attention, for both substantive and tactical reasons.

[5]  18 U.S.C. § 1961(1)(B).

[6]  18 U.S.C. § 1503.

[7]  18 U.S.C. § 1512.

[8]  18 U.S.C. § 201.

[9] “The state law felony offenses listed in § 1961(1)(A) are included by generic designation, and the test for determining whether particular acts fit into the generic category of predicate offense is whether the complaint alleges the type of activity generally known or characterized in the proscribed category.”  Heden v. Hill, 937 F. Supp. 1230 (S.D. Texas 1996) (citing United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir.1977)).

[10] 18 U.S.C. § 201 criminalizes “bribery of public officials and witnesses” in federal proceedings.  This language lends further credence to the conclusion that transferring improper benefits to witnesses in exchange for favorable testimony constitutes “bribery” within the meaning of the RICO statute.

[11]  Texas Penal Code § 36.05, entitled “tampering with witness,” makes such undue influence on witnesses punishable by a prison term of not less than two years.

[12] The phrase “official proceeding” is no longer defined in the statute.  A 1993 amendment to the Texas Penal Code deleted the prior definition, which would have been broad enough to encompass civil cases brought in state court, as well as a variety of other contexts.

[13]  Mississippi Statute § 97-9-65.  This statute cross-references the Mississippi RICO law.

[14] 18 U.S.C. § 201(d) (“Bribery of public officials and witnesses).” Similarly, Texas and Mississippi both have rules that allow payment of reasonable expert fees in their Rules of Professional Conduct.  See V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 3.04 (a lawyer may pay “a reasonable fee for the professional services of an expert witness.”); MS R.P.C. Rule 3.4 Comment (“it is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law.  The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”)

[15]  “Legal Remedies for Suspect Medical Science in Products Cases – Part One” (June 2, 2020).

[16]  18 U.S.C. § 1341.

[17]  18 U.S.C. § 1343.

[18]  See G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp. 2d 521, 539-40, 542-43 (S.D.N.Y. 2002).

[19]  See, e.g., Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 262-63 (2d Cir. 2004) (“a plaintiff who is injured as a proximate result of RICO predicate acts of fraud need not prove his own reliance, rather than that of a third party… .”); Procter & Gamble Co. v. Amway Corp., 242 F.3d 539 (5th Cir. 2001) (upholding RICO claim by Procter & Gamble against competitors that disseminated rumors that plaintiff was linked to Satanism, although plaintiff had in no way relied upon those rumors); City of New York v. Cyco.Net, Inc., 2005 WL 174482 (S.D.N.Y., Jan. 27, 2005).

[20]  18 U.S.C. § 1961(5).

[21]  See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, n.14 (1985).

[22]  H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 251 (1989.

[23]  Id. at 240.

[24]  Id.

[25]  Id. at 240-42.  Such allegations established an “open-ended” pattern.

[26]  Id. at 242.  Such allegations establish a “closed-ended” pattern.

[27]  Id.

[28]  United States v. Turkette, 452 U.S. 576, 583 (1981).

[29]  18 U.S.C. § 1961(4) (emphasis added).

[30] Whelan v. Winchester Prod. Co., 319 F.3d 225 (5th Cir. 2003)(quoting Turkette, 452 U.S. at 583).

[31]  Crowe v. Henry, 43 F.3d 198, 205 (5th Cir. 1995).

[32]  See, e.g., State Farm Mut. Auto. Ins. Co. v. Giventer, 212 F.Supp. 2d 639 (N.D. Tex. 2002) (rejecting RICO claim by automobile insurer defrauded into paying claims when plaintiff failed to an enterprise of plaintiffs’ lawyers and chiropractic clinics).

[33]  Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).

[34]  See, e.g., Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354-55 (3d Cir. 1986), aff’d, 483 U.S. 143 (1987); Stochastic Decisions Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir. 1993). On the other hand, a court may be reluctant to award litigation costs with respect to claims that have not yet been resolved.

[35]  Compare Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001) (private equitable relief available), with Religious Technology Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986) (private equitable relief unavailable).

[36]  Fuqua v. Graber, 158 S.W.3d 635, 638 (Tex. Ct. App. 2005), quoting Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996).

[37]  Tex. Beef Cattle, 921 S.W.2d at 208-09.

[38]  Id. at 209, citing Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex. App. 1990). Similarly, the elements of a tort of malicious prosecution is Mississippi are: “(1) the institution of a proceeding (2) by, or at the insistence of the defendant (3) the termination of such proceedings in the plaintiff’s favor (4) malice in instituting the proceedings and (5) the suffering of injury or damage as a result of the prosecution.”  Williams v. Jungle, — So. 2d – , 2005 WL 43721 (Miss. Jan. 11, 2005), citing McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001).  All of the elements must be proven by a preponderance of the evidence.  See Williams, — So. 2d, 2005 WL 43721 at *1, citing Van v. Grand Casinos of Mississippi, Inc., 724 So. 2d 889, 891 (Miss. 1998).

[39]  See, e.g., Briscoe v. LaHue, 460 U.S. 325 (1983)(noting that expert witnesses have absolute immunity for harm caused to opposing parties from incorrect or misleading testimony).

[40]  See, e.g., LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999) (holding that a party may sue its expert witness for negligence); Murphy v. A.A. Mathews, 841 S.W. 2d 671, 682 n.11 (Mo. 1992).

[41]  Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397, 402 (1984).

[42]  James v. Brown, 637 S.W.2d 914 (Texas 1982) (per curiam).