In Davis v. Ayala, defendant Hector Ayala challenged the prosecutor’s use of preemptory challenges in an apparently racially motivated fashion. The trial judge allowed the prosecutor to disclose his reasons in an ex parte session, without the defense present. Under the Supreme Court’s decision in Batson, the defendant should have had the opportunity to inquiry into the bona fides of the prosecutor’s claimed motivations. Based upon the prosecutor’s one-sided presentation, the trial judge ruled that the prosecutor had valid, race-neutral grounds for the contested strikes. After a trial, the empanelled jury convicted Ayala of murder, and sentenced him to death. In a 5-4 decision, the Supreme Court held that the trial court’s error was harmless. Davis v. Ayala, Supreme Court, No. 13–1428 (June 18, 2015). Justice Kennedy issued a concurrence. His conscience was curiously not troubled by the Star Chamber proceedings, but the facts of Ayala’s post-conviction incarceration, which has taken place largely in solitary confinement.

Remarkably, the New York Times weighed in on the Ayala case, but not to castigate the Court for rubber-stamping Kafkaesque Rules of Procedure that permits the defense to be excluded and prevented from exercising its Constitutionally protected role. The Times chose to spill ink instead on Justice Kennedy’s concurrence on the length of solitary confinement. Editorial, “Justice Kennedy on Solitary Confinement,” N.Y. Times (June 19, 2015).

What is curious about Justice Kennedy’s focus, and the Times’ cheerleading, is that they run roughshod over a procedural error that excused prosecutorial secrecy and that affected the adjudication of guilt or innocence, only to obsess about whether a man, taken to be guilty, has been treated inhumanely by the California prison system. Even more curious is the willingness to the Times to castigate, on bogus legal grounds, Justice Thomas for responding to Justice Kennedy:

“In a brief, sour retort that read more like a comment to a blog post, Justice Clarence Thomas quipped that however small Mr. Ayala’s current accommodations may be, they are ‘a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest’. It was a bizarre and unseemly objection. The Eighth Amendment does not operate on a sliding scale depending on the gravity of a prisoner’s crime.”

Id. (emphasis added). Except, of course, the Eight Amendment’s requirement of proportionality does operate on a sliding scale[1]. In Kennedy v. Louisiana, 554 U.S. 407 (2008), for instance, the Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibited a state from imposing the death penalty to punish a child rapist because of the sanction’s disproportionality[2].

Perhaps the New York Times could hire a struggling young lawyer to fact check its legal pronouncements? Both Justice Kennedy and Justice Thomas were in the same majority that would tolerate denying the defendant of his constitutional right to examine prosecutor’s motivation for striking black and Hispanic jurors. What a “sour note” for the Times to sound over Justice Thomas’s empathy for the victims of the defendant’s crimes.

[1] William W. Berry III, “Eighth Amendment Differentness,” 78 Missouri L. Rev. 1053 (2013); Charles Walter Schwartz, “Eighth Amendment Proportionality Analysis and the Compelling Case of William Rummel,” 71 J. Crim. L. & Criminology 378 (1980); John F. Stinneford, “Rethinking Proportionality Under the Cruel and Unusual Punishments Clause,” 97 Va. L. Rev. 899 (2011).

[2] Also curious was that then Senator Barack Obama criticized the Supreme Court for its decision in the Kennedy case. See Sara Kugler “Obama Disagrees With High Court on Child Rape Case,” ABC News (June 25, 2008) (archived from the original).

There are some important asymmetries in the law.  A single defendant is at risk of collateral estoppel, but each individual plaintiff will claim independence lack of privity with the rest of the herd.  Similarly, a defendant in a mass tort may be bound by its cross-examination of a now unavailable witness, but plaintiffs may be able to disavow a previous plaintiff’s examination even though there was a common representation.

Plaintiffs have sought discovery of confidential consulting expert witnesses of a defendant in multi-district litigation, while successfully evading discovery of their own consulting expert witnesses.  Again plaintiffs’ success turns on the lack of privity between and among the many plaintiffs, or because plaintiffs’ counsel indulge the fiction that they were not acting in their role as attorney for claimants.

Expert witnesses for plaintiffs accuse scientists who testify for a defendant of “conflicts of interest,” but conveniently ignore and fail to disclose their own. See “More Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010) (Arthur Frank and Barry Castleman); James Coyne, “Lessons in Conflict of Interest: The Construction of the Martyrdom of David Healy and The Dilemma of Bioethics,” 5 Am. J. Bioethics W3 (2005).

Plaintiffs often seek to use evidence of lobbying or “rent-seeking” by defendants.  See Bruce R. Parker and Jennifer Lilore, “Application of the Noerr-Pennington Doctrine to Drug and Medical Device Litigation,”  Rx for the Defense 2 (Fall 1995) (“Typically, plaintiffs will argue that the petitioning activity was designed to minimize or eliminate regulations pertaining to safety and efficacy in order to maximize profits. Plaintiffs’ counsel often assert that such conduct is reckless and supports an award of punitive damages.”). See, e.g., Ruth v. A.O. Smith Corp., 2006 WL 530388 at *13 (N.D. Ohio Feb. 27, 2006); In re Welding Fume Prods. Liab. Litig., No. 1:03–CV–17000, MDL no. 1535, 2010 WL 7699456, *93 (June 4, 2010) (“Trial Template for Welding Fume MDL Cases”; summarizing previous Noerr-Pennington ruling in this MDL, and rejecting defendants’ motion, in part, to bar use of defendants’ petitioning governmental and quasi-governmental entities to consider scientific studies and arguments concerning “threshold limit values,” despite constitutional protection of speech).

Of course, the plaintiffs’ bar lobbies as an organized entity, and perhaps its activities should be imputed to all members of the relevant organizations.  Mutuality might chill plaintiffs’ enthusiasm for attacking defendants for their efforts to influence policy. The plaintiffs’ bar is, after all, the litigation industry.  A few weeks ago, the Association of Trial Lawyers of America (ATLA), now operating under the pseudonym American Association of Justice (AAJ), issued a press release (Mar. 13, 2014), praising a proposed FDA regulation that would undermine preemption defenses for manufacturers of generic pharmaceuticals. The press release conveniently omitted that the proposed regulation praised was one that plaintiffs helped craft. Paul Berard, “Trial lawyers helped FDA with rule opening generic drug firms to lawsuits” Wash. Examiner (Mar. 27, 2014).

Last week, the FDA in response to a Congressional inquiry, acknowledged that high-level officials of the agency met with plaintiffs’ lawyer, Ed Blizzard, and regulatory counsel for ATLA-AAJ, Sarah Rooney, and ATLA’s lobbyist, Michael Forscey. See Jeff Overley, “FDA Chief Questioned Over Staff Meeting With Trial Lawyers,” Law360, New York (Mar. 28, 2014).  The meeting was calendared, in February 2013, at the FDA as a follow up to the Supreme Court’s decision in Pliva v. Mensing, which held that FDA regulations preempted state liability claims against makers of generic drugs. The FDA participated through high-level officials, including its chief counsel, and policy advisors.  Congressman Kevin Yoder interrogated FDA Commissioner Margaret Hamburg as to why a private session with plaintiffs’ lawyers and lobbyists, who are in the litigation business.  The news accounts did not provide an explanation why the plaintiffs’ litigation lobbyists could not have submitted their comments publicly.  Mr. Blizzard’s and the ATLA’s lobbying snow storm was, however, registered on the FDA’s public calendar for February 11-15, 2013.

Jim Beck documents that this is not first time that the plaintiffs’ bar has lobbied for their fee-generating activities with the FDA, for rules that fostered their litigation product.  See “The More Things Change, The More They Remain The Same” (April 3, 2014). Perhaps when the plaintiffs next make their argument that the FDA is captured by industry, courts should take judicial notice that the plaintiffs’ bar has a great deal of influence as well.

Offense to that man by whom the WOE cometh!

A few weeks ago, the Wake Forest Journal of Law & Policy published six articles from its 2012 Spring Symposium, on “Toxic Tort Litigation After Milward v. Acuity Products.”  Not a single paper is critical of Milward, which is no surprise given that the Symposium was a joint production of The Center for Progressive Reform and the Wake Forest University School of Law.

In previous posts, I addressed concerns about papers from Professors Green and Sanders.  One of the partisan expert witnesses from the Milward case, Carl Cranor, presented at the symposium, and published in the Journal.  See Carl F. Cranor, “Milward v. Acuity Specialty Products: Advances in General Causation Testimony in Toxic Tort Litigation,” PDF 3 Wake Forest J. L. & Policy 105 (2013) [cited herein as Cranor].

The partisan nature of the Wake Forest/CPR symposium is obvious, and perhaps disclosures of conflicts of interest, so real and palpable, are unnecessary.  Cranor acknowledges that he testified for plaintiffs in Milward, but his disclosure does not address how deep his conflict of interest was.  Cranor at 105. In addition to his consulting, report writing, and testifying, Cranor has written briefs for plaintiffs in this and in other litigations.  Unlike the potential for conflict of interest supposedly raised by payments, Cranor’s conflict of interest is actual.  He has been a long-time advocate for radical precautionary principle regulation, legislation, and adjudication.  Cranor’s conflicts are revealed by his writings, his associations, and his activities.

There is nothing wrong with advocacy per se, and Cranor’s ideas, such as they are, deserve to be judged on their merits.  Cranor will no doubt complain that I am addressing one idea at a time, in a corpuscularian fashion, and that his ideas can only be appreciated as a complete gestalt.  If the individual ideas and claims, however, are incorrect, incomplete, inconsistent, and incoherent, we may rightfully reject the entirety of his claims.

Cranor asserts that he is representing how scientists go about their business in reaching judgments of causality.  He has, however, inaccurately described serious attempts to judge causality in order to distort causal assessments into precautionary practice. Cranor presents a reductionist, abridged notion of scientific assessment of causality in order to legitimate the CPR’s radical agenda in both regulation and adjudication.

VAPID AND VACUOUS

Cranor’s principal claim is that “weight of the evidence” (WOE) is a complete, sufficient description of how scientists do, and should, engage in judging causality.  This claim, however, fails because WOE is not a methodology for attributing causation.

In his symposium article, Cranor introduces WOE by telling us that:

“‘Weight of the evidence argument’ is just another name for nondeductive reasoning.”

Cranor at 113 (citing Larry Wright, Practical 46-49 (Fogelin, ed. 1989)

So WOE is equivalent to induction, abduction, analogy, and every other form and manner of non-deductive reasoning.  So, let’s see.  A rat dropped from the top of my building falls to the ground, accelerating at 32 ft/sec/sec.  A mouse dropped accelerates at the same rate.  Rats and mice are both murine mammal species.  This could be a great analogy.  Rats fed large quantities of saccharin develop bladder tumors.  So by analogy, mice develop bladder tumors from saccharin.  It’s an analogy, but it goes very badly wrong.  But Cranor’s explication of WOE fails to explain why this analogy fails to explain or predict the outcome in mice.  See Kenneth Rothman, Sander Greenland, and Timothy Lash, Modern Epidemiology 30 (3d ed. 2008) (“Whatever insight might be derived from analogy is handicapped by the inventive imagination of scientists who can find analogies everywhere”).

Cranor proceeds to introduce a qualitative criterion, “best support,” in non-deductive settings:

“[N]o one conclusion is ‘guaranteed’ by the premises. Consequently, the evaluative task in assessing such inferences is to judge which conclusion the evidence best supports (or, to put it another way, which explanation best accounts for the evidence in the premises) and how well it does so.”

Cranor at 114-15.  Although the requirement of a superlative qualitative assessment seems promising, as we will see, Cranor ensures that the assessment is empty.  Cranor applauds the First Circuit for adopting his identification of WOE with non-deductive reasoning to the best explanation:

“[Nondeductive reasoning or reasoning] to the best explanation can be thought of as involving six general steps, some of which may be implicit. The scientist must

(1) identify an association between an exposure and a disease,

(2) consider a range of plausible explanations for the association,

(3) rank the rival explanations according to their plausibility,

(4) seek additional evidence to separate the more plausible from the less plausible explanations,

(5) consider all of the relevant available evidence, and

(6) integrate the evidence using professional judgment to come to a conclusion about the best explanation.”

Cranor at 115 (citing Milward v. Acuity Specialty Prods. Group, Inc., 639 F.3d 11, 17−18 (1st Cir. 2011)).  Cranor’s and the Circuit’s embrace of this description is seriously flawed.  They move from WOE to “reasoning to the best explanation,” but they do provide any guidance on the key elements:

(1) what constitutes an association?

(2) what renders an explanation plausible, and when is “unknown on the current evidence” an appropriate explanation to offer?

(3) what are the criteria for ranking plausible explanations?

(4) what evidence will discriminate between and among rival explanations?

(5) how do we consider all relevant evidence without using qualitative and quantitative weights?  If we use weights, how?

(6) how do we integrate disparate lines of evidence, and which profession will provide the critical assessment of validity for the integration, and the determinant of what is the “best explanation”?

Cranor harrumphs with the First Circuit:

“[n]o serious argument can be made that the weight of the evidence approach is inherently unreliable.”

Cranor at 115 (quoting Milward, at 18−19).  The double negative is revealing, and so is the utter lack of content to the so-called methodology.  Even if WOE were a method, the Circuit’s statement is meaningless, much like saying that no one could say that physics is inherently unreliable.  Such a statement certainly would not help us judge the bona fides of cold fusion advocates.

WOE IN COURT

Perhaps in an attempt to induce judges and lawyers to lower their intellectual guard, Cranor tells us that WOE is nothing other than what happens in jury trials:

“Jurors, or judges conducting bench trials, use such inferences to find the most plausible account of whether a person is guilty of a crime or has committed a tort. To convict a person of a crime, jurors must find that the total body of relevant evidence supports the conclusion of a nondeductive argument beyond a reasonable doubt; to hold a person accountable for a tort, jurors must find that the total body of relevant evidence supports the conclusion of a nondeductive argument by a preponderance of the evidence, a lower standard of proof.”

Cranor 116.  To be sure, “weight of the evidence” does have a legal usage.  Any superficial appeal of this analogy between scientific assessment of causation and litigation of facts quickly dissipates when we realize the relevant evidence has been filtered for the jury by recognized rules of evidence.  Evidence deemed too weak, too speculative, too prejudicial will have been excluded in a jury trial.  In addition, there are social norms and contexts that operate in a jury trial that may be inimical to the truth-finding process.  My favorite Philadelphia trial anecdote from a former Assistant District Attorney is about a jury that convicted a man for murder.  Although there were racial issues that made the case difficult and the outcome uncertain, after the trial, the forewoman explained that reaching a verdict was easy because the defendant’s mother, who was identified as living near the courthouse, never showed up for the trial.  More “scientific” studies document the role of race, ethnic, and socio-economic prejudice and bias.  Furthermore, in civil and criminal trials, the evidence is generally unweighted except by lawyers’ argument and rhetoric.  A lawyer unhappy with a study’s result may argue that one author had a conflict of interest, even though the study was well designed and conducted, and provided the “weightiest” evidence on the issue to be decided.  Perhaps Cranor advances the trial example because almost “anything goes” in lawyers’ argument and juries’ assessments of scientific issues.

WOE is vacuous as described by Cranor. Statements that all types of relevant research should be considered do not tell us anything.  Stating that “scientific judgment” is necessary says everything, and thus nothing, because it leaves out any description of the methodology to inform and apply the judgment.  Expert witnesses should not be allowed to invoke WOE as a way to avoid methodological scrutiny.

The WOE Cranor would inflict upon the judicial process has been described as a “black box,” which fails to provide any operative method of specifying relevancy or weight for differing kinds of evidence, or method for synthesizing the disparate studies.  We should not be surprised by the lack of endorsement from the scientific community itself for WOE-ful methods.  The phrase is vague and ambiguous; its use, inconsistent.

See, e.g., V. H. Dale, G.R. Biddinger, M.C. Newman, J.T. Oris, G.W. Suter II, T. Thompson, et al., “Enhancing the ecological risk assessment process,” 4 Integrated Envt’l Assess. Management 306 (2008)(“An approach to interpreting lines of evidence and weight of evidence is critically needed for complex assessments, and it would be useful to develop case studies and/or standards of practice for interpreting lines of evidence.”);

Igor Linkov, Drew Loney, Susan M. Cormier, F. Kyle Satterstrom, and Todd Bridges, “Weight-of-evidence evaluation in environmental assessment: review of qualitative and quantitative approaches,” 407 Science of Total Env’t 5199–205 (2009) (reviewing the use of WOE methods and concluding that the approach is not particularly rigorous, and that the approach “does not lend itself to transparency or repeatability except in simple cases”);

Douglas Weed, “Weight of Evidence: A Review of Concept and Methods,” 25 Risk Analysis 1545 (2005) (noting the vague, ambiguous, indefinite nature of the concept of “weight of evidence” review);

R.G. Stahl, Jr., “Issues addressed and unaddressed in EPA’s ecological risk guidelines,” 17 Risk Policy Report 35 (1998); (noting that U.S. Environmental Protection Agency’s guidelines for ecological weight-of-evidence approaches to risk assessment fail to provide guidance);

Glenn Suter II & Susan Cormier, “Why and how to combine evidence in environmental assessments:  Weighing evidence and building cases,” 409 Science of the Total Environment 1406, 1406 (2011)(noting arbitrariness and subjectivity of WOE “methodology”);

Charles Menzie, Miranda Hope Henning, Jerome Curac, et al. “A weight-of-evidence approach for evaluating ecological risks; report of the Massachusetts Weight-of-Evidence Work Group,” 2 Human Ecological Risk Assessment 277 (1996) (“although the term ‘weight of evidence’ is used frequently in ecological risk assessment, there is no consensus on its definition or how it should be applied”);

Sheldon Krimsky, “The Weight of Scientific Evidence in Policy and Law,” 95 Supp.(1) Am. J. Pub. Health S129, S131 (2005) (“However, the term [WOE] is applied quite liberally in the regulatory literature, the methodology behind it is rarely explicated.”)

Describing WOE, Krimsky notes that “WOE seems to be coming out of a ‘black box’ of scientific judgment.”  Krimsky at S131.  Revealingly, Krimsky references a report from the Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services, which describes WOE as an alternative to causal determinations when trying to set policy, when “causality is out of reach.”  Id. (citing citing ATSDR, “The Assessment Process: An Interactive Learning Program,” available at http://www.atsdr.cdc.gov/training/public-health-assessment-overview/html/module2/sv18.html (last visited May 8, 2013).

Krimsky thus acknowledges what Cranor tries so hard to obscure:  WOE is a precautionary approach to be applied when the scientific answer is “I don’t know.”

My friend Chris Guzelian thinks that I have jumped the shark in joining with Professors Makuch and Lash in filing an amicus brief in United States v. Harkonen.  Or maybe just a big-mouthed bass. No one has taken a longer, harder, more sustained look at false scientific speech than Professor Guzelian, and for the most part I agree with his assessment that scientific speech can be so false or misleading as to be the subject of prohibition. See, e.g., Christopher Guzelian & Philip Guzelian, “Editorial:  Prevention of false scientific speech: a new role for an evidence-based approach,” 27 Human & Experimental Toxicol. 733 (2008).

Professors Guzelian (Chris’s father is an esteemed medical toxicologist) note, with approval, several instances in which scientific speech is curtailed or even penalized.  Advertising claims for dietary supplements are subject to a salutary requirement of “Significant Scientific Agreement” (SSA), made out to the FDA’s satisfaction.  In order to make out SSA, sellers must show that the totality of sound, relevant evidence supports the health claim in a systematic review. FDA, Guidance for industry evidence-based review system for the scientific evaluation of health claims (2007).

Study quality and methodology must be pre-specified, with the hierarchical nature of various study designed honored. Making health claims on labels of homeopathic remedies is a bit like crying “fire!” in a crowded theater.  Most purchasers do not have the time or ability to evaluate the accuracy of the claim; and they react rather than deliberate, often to their detriment.

These and other examples provided by the Professors Guzelian are illustrative and revealing.  Context for the scientific speech to be proscribed is important.  Thus, when Ninth Circuit Judge Alex Kozinski expresses the libertarian position, he is no doubt thinking of what is published in scientific journals and texts:

“[T]here are many varieties of noncommercial speech that are just as objective as paradigmatic commercial speech and yet receive full first amendment protection. Scientific speech is the most obvious; much scientific expression can easily be labeled true or false, but we would be shocked at the suggestion that it is therefore entitled to a lesser degree of protection. If you want, you can proclaim that the sun revolves around the earth, that the earth is flat, that there is no such thing as nitrogen, that flounder smoke cigars, that you have fused atomic nuclei in your bathtub — you can spout any nonsense you want, and the government can’t stop you.”

Alex Kozinski & Stuart Banner, “Who’s Afraid of Commercial Speech?” 76 Va. L. Rev. 627, 635 (1990), cited and quoted in Christopher Guzelian, “Scientific Speech,” 93 Iowa L. Rev. 882, 910 (2008).

In other contexts, the government can and should intervene to avoid palpable harm from misleading scientific speech.  Surely, the judiciary can stop expert witnesses from opining that flounder smoke cigars, and many other unsubstantiated, speculative, unreliable opinions.  Federal Rule of Evidence 702.  The presentation of unreliable “expert” witness opinion testimony in court, to lay jurors, is also like shouting “fire!” in a crowded theater.  Someone will get hurt.  The courtroom is not a free speech zone although many zealous political scientists have sought to turn it into an “anything goes” forum.  As one district judge described the problem in a case with epidemiologic evidence:

“According to plaintiffs, the rate of PD [Parkinson’s disease] mortality is so poor a proxy for measuring the rate of overall PD incidence, that the Coggon study proves nothing. In the next breath, however, plaintiffs set forth an unpublished statistical analysis (by Dr. Wells) of PD mortality data collected by the National Center for Health Statistics, arguing it proves that welders, as a group, suffer earlier onset of PD than the general population.⁷⁷ Of course, the devil is in the details, discussion of which is beyond the scope of this opinion (and perhaps beyond the scope of understanding of the average juror),⁷⁸ but this example shows how hard it is to tease out whether the limitations of a given study make it unreliable under Daubert.”

In re Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, MDL 1535, 2006 WL 4507859, *33 (N.D. Ohio 2006).  In footnote 78, the district judge elaborated about what she meant by stating that the issues were beyond the scope of the average juror’s understanding:

“The Court does not at all mean to impugn the intelligence of the average juror; however, even the smartest and most attentive juror will be challenged by the parties’ assertions of observation bias, selection bias, information bias, sampling error, confounding, low statistical power, insufficient odds ratio, excessive confidence intervals, miscalculation, design flaws, and other alleged shortcomings of all of the epidemiological studies.”

Id. at *33 n.78.  The danger of harm in subversion of the fact-finding process requires that district judges intervene and make threshold decisions under Rules 702 and 703.  As one Supreme Court Justice expressed the matter:

“[A] trial judge, acting as ‘gatekeeper’, must ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable’.  This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer— particularly when a case arises in an area where the science itself is tentative or uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. ***

Of course, neither the difficulty of the task nor any comparative lack of expertise can excuse the judge from exercising the ‘gatekeeper’ duties that the Federal Rules impose — determining, for example, whether particular expert testimony is reliable and ‘will assist the trier of fact’, Fed. Rule Evid. 702, or whether the ‘probative value’ of testimony is substantially outweighed by risks of prejudice, confusion or waste of time. Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care.”

General Elec. Co. v. Joiner, 522 U.S. 136, 147–49 (1997) (Breyer, J., concurring) (citations omitted).

Jurors are especially vulnerable to the misleading speech of expert witnesses.  They are selected for their ignorance of the underlying scientific principles, and in many jurisdictions, no one on the jury will have any significant training or experience in scientific or statistical principles. By the nature of their engagement, jurors are further prohibited from seeking outside assistance or making their own independent inquiries.  Explicit time limitations on witness examinations, or implicit limitations that result from jurors’ lack of aptitude or attention to scientific methodology result in extreme abridgments of scientific evidence in American civil and criminal trials.  This situation calls out for tight control over scientific evidence and speech in the courtroom.

Press releases are a very different context in which scientific evidence is presented and described. For many years, press releases have been used by commercial and academic scientists to announce study results.  None of the imminent, irremediable harms from arguably misleading courtroom scientific speech are at issue in the context of press releases.  Scientists and physicians do not need to make a decision on the basis of claims in a press release, and they are trained to demand more careful presentation of data and analysis.  Even law students recognize that press releases are different:

“When submitting studies for peer review, scientists choose significance levels so as to minimize the chance of Type I error and maximize the potential for advancing scientific knowledge.¹³⁴ When submitting press releases, however, scientists tend to report positive aspects of study results with less caution than they would in a scientific journal.¹³⁵”

“Developments in the Law: Confronting the New Challenges of Scientific Evidence,” 108 Harv. Law. Rev. 1481, 1553 & n.135 (1995) (citing Lawrence K. Altman, MD, “The Doctor’s World; Promises of Miracles:  News Releases Go Where Journals Fear to Tread,” New York Times (Jan. 10, 1995) (“When speaking to the public, some scientists, in conjunction with their institution’s press office, are willing to make much bolder claims for their work. *** Many come from a news release or news conference, when public relations officials get carried away with enthusiasm. Sometimes scientists become willing partners with institution officials and say things in releases that they would never dream of saying in a scientific paper, where evidence is demanded to support a claim.”)

A press release that accurately reports data, but draws a conclusion that is more enthusiastic than the government thinks to be appropriate is hardly criminal fraud.  Here context is important, especially when the press release announces that more detailed presentation of data and analyses will be forthcoming within a week or so.  Surely, given the fulsome reports of retractions and investigations of false and fabricated data in published articles, the government must have better things to do than to police press releases.

“The United States has long been a breeding ground for conspiracy theorists… .”  It did not take long for conspiracy theories surrounding the tragedy in Newtown, Connecticut, to circulate.  Lee-Anne Goodman, “Latest American conspiracy theory claims Newtown mass shooting a hoax” (Jan. 15, 2013) (Associated Press) (“Sandy Hook Truthers, as they’ve been dubbed, believe last month’s mass shooting in Newtown, Conn., was a hoax”).  And the tragedy of the Boston marathon bombing gave rise to conspiracy theories within hours of the horror.  Meghan Keneally, “Conspiracy theorists claim Boston was ‘false flag’ attack arranged by the government” (April 17, 2013) (“false flag” staged attack); Amanda Marcotte, “The Boston Marathon Bombing Could Become a Conspiracy Theory Hotbed” (April 16, 2013).

Conspiracy theories are not confined in the United States to the lunatic fringe; nor are they the creatures of internet fantasies.  Conspiracy theories inundate our courts, and occasionally make for a rattling good yarn from academic writers. A couple of years ago, I wrote about historians of occupational health and safety as particularly susceptible to the lure of conspiracy theories.

Professors Rosner and Markowitz, historians of silicosis, certainly come to mind:

“In the postwar era, professionals, industry, government, and a conservative labor movement tried to bury silicosis as an issue.”

David Rosner & Gerald Markowitz, Deadly Dust:  Silicosis and the Politics of Occupational Disease in the Twentieth Century America 213 (Princeton 1991).  This is a remarkable group libel of scientists, physicians, industrialists, and labor union leaders. Perhaps readers may infer that the unions branded “conservative” are the ones not committed to Marxist-Leninist principles, such as the Western Federation of Miners, later known as International Union of Mine, Mill, and Smelter Workers.  In their book, Rosner and Markowitz singled this union out for its for heroic resistance to the putative conspiracy of government, academics, scientists, industry, and the non-Communist-influenced labor movement.

Reality is often much less glorious than speculative conspiracy theories.  Professor Beth J. Rosenberg, an Assistant Professor, in the Department of Public Health & Community Medicine, in Tufts University School of Medicine, Boston, Massachusetts, is an unabashed activist.   She has championed workers’ safety and rights.  She has tried, but failed, to organize workers and unions in Massachusetts over the real hazards of abrasive sandblasting, only to find that their concerns lay elsewhere.  Beth Rosenberg, “Second Thoughts About Silicosis,” 13 New Solutions 223 (2003).

“The main point here is that the men I’ve interviewed are not terribly concerned about silica dust. They care about being treated decently and respectfully by their bosses. They’re concerned about being encouraged to work too fast to work safely. They care about lead dust, particularly bringing it home to their families, so they get really angry when the foreman wants to lock up the yard at five o’clock and doesn’t leave them enough time to shower and change their clothes. They feel that they are expendable. And although most are fully aware of silica’s dangers, silica is not a top priority for them. The silica agenda was set by some physicians and health professionals who are outraged that anybody is still dying of this 100 percent preventable disease. This is understandable, and I am one of those people, but I’m not sure this is the best way to be of service. I see that there are other, more pressing issues than silica.

Id. at 229 (emphasis added).  See also  CDC, “Ten Great Public Health Achievements – United States, 1900 – 1999,” 48(12) CDC Morbidity and Mortality Weekly Report 241 (April 02, 1999)(“Work-related health problems, such as coal workers’ pneumoconiosis (black lung), and silicosis — common at the beginning of the century — have come under better control.”).

Is there any substance to the claim that everyone, after the Great Depression, other than a few radical labor leaders, tried to bury the issue of silicosis?  As I have noted, we can find some objective indication of continued interest in silicosis from the number of publications in the National Library of Medicine’s database (PubMed) on silicosis.  A simply search on “silicosis,” with limits to each decade after the 1930s reveals a pattern that silicosis had not been buried at all:

Date Range                    Number of Articles from Keyword Search

1940 – 1949                      113

1950 – 1959                    1,421

1960 – 1969                    1,867

1970 – 1979                    1,178

1980 – 1989                       940

1990 – 1999                       882

2000 – 2009                      843

To be sure, the low count in the 1940s likely results from the lack of coverage of publications in the database, as well as the growth in the number of biomedical journals after the 1940s.  The Post-War era certainly presented distractions in the form of other issues, including the development of antibiotics, chemotherapies for tuberculosis, the spread of poliomyelitis and the development of vaccines for this and other viral diseases, radiation exposure and illnesses, tobacco-related cancers, and other chronic diseases.  Given the exponential expansion in scope of public health, the continued interest in silicosis after World War II, documented in the PubMed statistics, is remarkable.

Recently, in my own blog reading, I came across a post by David Oliver on the use of Google’s database of digitized books to create charts of word hits in this digital library.  See David Oliver, Fun With Google Books’ Ngram Viewer (Dec. 17, 2010).  Oliver hypothesizes that the number of times that a word appears in the database of over 5 million books is a reasonable proxy for identifying the active interests and concerns of society.  Google labs offers the opportunity to run this search as a function of year, and to produce a chart that reflects the prevalence of the keyword over time.

With David Oliver’s permission, here charts he prepared, using Google labs, for two very different diseases, mesothelioma and silicosis, with their very different levels of interest and concern among various writers:

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This Google tool may be incomplete and imperfect, but it shows, along with the PubMed database, that it may well be time to look for more objective bases for historical opinions, both in court and in academia.

The Marxist-Leninist would-be historians of occupational health are particularly adept in demonizing those scientists and fellow-historians whose views evidence any lack of support for labor’s positions.  What passes for history of asbestos disease in American courtrooms, marshaled to show notice of hazards to manufacturers, is particularly corrupted by political and ideological animus.

One of the heroes of the left is the late Dr. Harriet Louise Hardy (1906 – 1993), who helped put occupational medicine on the map of American medical research and scholarship.  There is much to admire in the life of Dr. Hardy (who remarkably does not have a Wikipedia entry.) Dr. Hardy’s collaboration with Alice Hamilton, M.D, on the revision of the textbook, Industrial Toxicology, is well known.  Hardy’s colleagues at Harvard wrote a glowing tribute to her, after her death.  John D. Stoeckle, Homayoun Kazemi, Rose Goldman, and Chris Oliver, “Faculty of Medicine: Memorial Minute for Harriet L. Hardy (1905-1993)” (May 1, 1997):

“As she often admitted, her professional life was not a planned academic or specialty career but an accidental product of several influences — her interest in clinical medicine, her school and college health jobs of working with the young and healthy, her identification with and study of the industrial disablements of blue-collar workers, and the support of senior colleagues who encouraged her interests in the illnesses of the workplace, in what she called “clinical preventive medicine”. In such work, unlike the ‘company doc’, whose attachments were to the corporation, hers were to the worker, for whom she advocated in her writings, clinical care, and testimonies before the Workmens’ Compensation Board.”

Her colleagues noted that she suffered from a meningioma, requiring surgery in 1972, and during the last years of her life, from lymphoma.  In 1991, when Hardy was suffering from cancer and the sequelae of serious central nervous system disease, Dr. David Egilman sought her out to write a letter to the editor of the “red journal,” to complain about the use of the medical literature in interpreting the historical evolution of knowledge of asbestos hazards.  See Harriet Hardy & David Egilman, “Corruption of Occupational Medical Literature:  The Asbestos Example,” 20 Am. J. Indus. Med. 127 (1991).

Given Hardy’s credentials and her collaboration with an asbestos plaintiffs’ expert witness, it seems worthwhile to examine her views about asbestos given in her autobiography.  Harriet Hardy, M.D., Challenging Man-Made Disease:  The Memoirs of Harriet L. Hardy, M.D. (1983).  Hardy was plain spoken and practical.  Although she had no bias in favor of industry, she was not beset with the ideological animus of so many contemporary testifying witnesses.  Hardy addresses asbestos in several pages of her autobiography, which should be required reading for judges and lawyers coping with asbestos litigation:

“The media in industrialized Western countries have publicized the ill effects of asbestos quite out of proportion to the risk, especially that in city streets, schools, hospitals, and drinking water.”

Id. at 94.

Hardy describes two of her own cases of lung cancer in asbestos workers, in the 1950s.  She notes that she published the first case with Hanna Klaus in the 1950s. Kurt J. Isselbacher, Hanna Klaus, and Harriet L. Hardy, “Asbestosis and bronchogenic carcinoma: Report of one autopsied case and review of the available literature,” 15 Am. J. Med. 721 (1953).  Hardy reports that her contemporaneous reaction:  “A note on the second case included the query, Since men were heavy smokers, might not the cancer be due to a combination of cigarette smoking and inhalation of asbestos fibers?”  Id. at 95. A question, not an answer, to be sure.

Hardy addresses the more obvious case of asbestos and mesothelioma, with an answer that would dismay the Lobby:

“A fatal malignancy [mesothelioma] associated with inhalation of a single form (crocidolite) of asbestos invaded the chest wall (pleura) and/or the abdominal wall.”

Id. at 95 (emphasis added).

“I feel that the facts to date do not support the many claims of asbestos effect on those with slight exposure.”

Id.

“This story of asbestos damage is now internationally known, and unanswered questions of differences in fibers from various areas and their harmful effect and the problem of safe working and neighborhood levels are engaging the skills of research groups.”

Id.  Hardy ends her discussion with a plea for skepticism and epistemological modesty in interpreting lay media reports, which have been dominated by scaremongers:

“I would plead that every reader look at all reports in the lay press and on television with great skepticism.  My reasons are shown by the following examples. A state health commissioner is using funds that he has to underwrite an antismoking campaign.  Deception is a mistake no matter how noble the cause.  Because a plant situated on a U.S. Great Lake dumped waste asbestos into the lake, which serves as a public water supply to a nearby city, fishing was forbidden and the livelihood of an important number of people denied.  The evidence that water containing asbestos fibers is harmful and may cause cancer has yet to be assembled.”

Id. at 98.

Those familiar with the Reserve Mining fiasco know that the evidence was never forthcoming.  Throughout her autobiography, Hardy’s compassion and disinterestedness are manifest.  It is unfortunate that Hardy did not serve directly as a more influential voice on asbestos issues.