Love is Blind but What About Judicial Gatekeeping of Expert Witnesses? – Viagra Part I

The Viagra litigation over claimed vision loss vividly illustrates the difficulties that trial judges have in understanding and applying the concept of statistical significance.  In this MDL, plaintiffs sued for a specific form of vision loss, non-arteritic ischemic optic neuropathy (NAION), which they claimed was caused by their use of defendant’s medication, Viagra.  In re Viagra Products Liab. Litig., 572 F. Supp. 2d 1071 (D. Minn. 2008).  Plaintiffs’ key expert witness, Gerald McGwin considered three epidemiologic studies; none found a statistically significant elevation of risk of NAION after Viagra use.  Id. at 1076. The defense filed a Rule 702 motion to exclude McGwin’s testimony, based in part upon the lack of statistical significance of the risk ratios he relied upon for his causal opinion.  The trial court held that this lack did not render McGwin’s testimony and unreliable and inadmissible  Id. at 1090.

One of the three studies considered by McGwin was his own published paper.  G. McGwin, Jr., M. Vaphiades, T. Hall, C. Owsley, ‘‘Non-arteritic anterior ischaemic optic neuropathy and the treatment of erectile dysfunction,’’ 90 Br. J. Ophthalmol. 154 (2006)[“McGwin 2006”].    The MDL court noted that McGwin had stated that his paper reported an odds ratio (OR) of 1.75, with a 95% confidence interval (CI), 0.48 to 6.30.  Id. at 1080.  The study also presented multiple subgroup analyses of men who had reported Viagra use after a history of heart attack (OR = 10.7) or hypertension (OR = 6.9), but the MDL court did not provide p-values or confidence intervals for the subgroup analysis results.

Curiously, Judge Magnuson eschewed the guidance of the Reference Manual on Scientific Evidence, in dealing with statistics of sampling estimates of means or proportions.  The Reference Manual on Scientific Evidence (2d ed. 2000) urges that:

“[w]henever possible, an estimate should be accompanied by its standard error.”

RMSE 2d ed. at 117-18.  The new third edition again conveys the same basic message:

What is the standard error? The confidence interval?

An estimate based on a sample is likely to be off the mark, at least by a small amount, because of random error. The standard error gives the likely magnitude of this random error, with smaller standard errors indicating better estimates.”

RMSE 3d ed. at 243.

The point of the RSME‘s guidance is, of course, that the standard error, or the confidence interval (C.I.) based upon a specified number of standard errors, is an important component of the sample statistic, without which the sample estimate is virtually meaningless.  Just as a narrative statement should not be truncated, a statistical or numerical expression should not be unduly abridged.

The statistical data on which McGwin was basing his opinion was readily available from McGwin 2006:

“Overall, males with NAION were no more likely to report a history of Viagra … use compared to similarly aged controls (odd ratio (OR) 1.75, 95% confidence interval (CI) 0.48 to 6.30.  However, for those with a history of myocardial infarction, a statistically significant association was observed (OR 10.7, 95% CI 1.3 to 95.8). A similar association was observed for those with a history of hypertension though it lacked statistical significance (OR 6.9, 95% CI 0.8 to 63.6).”

McGwin 2006, at 154.  Following the RSME‘s guidance would have assisted the MDL court in its gatekeeping responsibility in several distinct ways.  First, the court would have focused on how wide the 95% confidence intervals were.  The width of the intervals pointed to statistical imprecision and instability in the point estimates urged by McGwin.  Second, the MDL court would have confronted the extent to which there were multiple ad hoc subgroup analyses in McGwin’s paper.  See Newman v. Motorola, Inc., 218 F. Supp. 2d 769, 779 (D. Md. 2002)(“It is not good scientific methodology to highlight certain elevated subgroups as significant findings without having earlier enunciated a hypothesis to look for or explain particular patterns.”) Third, the court would have confronted the extent to which the study’s validity was undermined by several potent biases.  Statistical significance was the least of the problems faced by McGwin 2006.

The second study considered and relied upon by McGwin was referred to as Margo & French.  McGwin cited this paper for an “elevated OR of 1.10,” id. at 1081, but again, had the court engaged with the actual evidence, it would have found that McGwin had cherry picked the data he chose to emphasize.  The Margo & French study was a retrospective cohort study using the National Veterans Health Administration’s pharmacy and clinical databases.  C. Margo & D. French, ‘‘Ischemic optic neuropathy in male veterans prescribed phosphodiesterase-5 inhibitors,’’ 143 Am. J. Ophthalmol. 538 (2007).  There were two outcomes ascertained:  NAION and “possible” NAION.  The relative risk of NAION among men prescribed a PDE-5 inhibitor (the class to which Viagra belongs) was 1.02 (95% confidence interval [CI]: 0.92 to 1.12.  In other words, the Margo & French paper had very high statistical precision, and it reported essentially no increased risk at all.  Judge Magnuson cited uncritically McGwin’s endorsement of a risk ratio that included ‘‘possible’’ NAION cases, which could not bode well for a gatekeeping process that is supposed to protect against speculative evidence and conclusions.

McGwin’s citation of Margo & French for the proposition that men who had taken the PDE-5 inhibitors had a 10% increased risk was wrong on several counts.  First, he relied upon an outcome measure that included ‘‘possible’’ cases of NAION.  Second, he completely ignored the sampling error that is captured in the confidence interval.  The MDL court failed to note or acknowledge the p-value or confidence interval for any result in Margo & French. The consideration of random error was not an optional exercise for the expert witness or the court; nor was ignoring it a methodological choice that simply went to the ‘‘disagreement among experts.’’

The Viagra MDL court not only lost its way by ignoring the guidance of the RMSE, it appeared to confuse the magnitude of the associations with the concept of statistical significance.  In the midst of the discussion of statistical significance, the court digressed to address the notion that the small relative risk in Margo & French might mean that no plaintiff could show specific causation, and then in the same paragraph returned to state that ‘‘persuasive authority’’ supported the notion that the lack of statistical significance did not detract from the reliability of a study.  Id. at 1081 (citing In re Phenylpropanolamine (PPA) Prods. Liab. Litig., MDL No. 1407, 289 F.Supp.2d 1230, 1241 (W.D.Wash. 2003)).  The magnitude of the observed odds ratio is an independent concept from that of whether an odds ratio as extreme or more so would have occurred by chance if there really was no elevation.

Citing one case, at odds with a great many others, however, did not create an epistemic warrant for ignoring the lack of statistical significance.  The entire notion of cited caselaw for the meaning and importance of statistical significance for drawing inferences is wrong headed.  Even more to the point, the lack of statistical significance in the key study in the PPA litigation did not detract from the reliability of the study, although other features of that study certainly did.  The lack of statistical significance in the PPA study did, however, detract from the reliability of the inference from the study’s estimate of ‘‘effect size’’ to a conclusion of causal association. Indeed, nowhere in the key PPA study did its authors draw a causal conclusion with respect to PPA ingestion and hemorrhagic stroke.  See Walter Kernan, Catherine Viscoli, Lawrence Brass, Joseph Broderick, Thomas Brott, Edward Feldmann, Lewis Morgenstern, Janet Lee Wilterdink, and Ralph Horwitz, ‘‘Phenylpropanolamine and the Risk of Hemorrhagic Stroke,’’ 343 New England J. Med. 1826 (2000).

The MDL court did attempt to distinguish the Eighth Circuit’s decision in Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001), cited by the defense:

‘‘[I]n Glastetter … expert evidence was excluded because ‘rechallenge and dechallenge data’ presented statistically insignificant results and because the data involved conditions ‘quite distinct’ from the conditions at issue in the case. Here, epidemiologic data is at issue and the studies’ conditions are not distinct from the conditions present in the case. The Court does not find Glastetter to be controlling.’’

Id. at 1081 (internal citations omitted; emphasis in original).  This reading of Glastetter, however, misses important features of that case and the Parlodel litigation more generally.  First, the Eighth Circuit commented not only upon the rechallenge-dechallenge data, which involved arterial spasms, but upon an epidemiologic study of stroke, from which Ms. Glastetter suffered.  The Glastetter court did not review the epidemiologic evidence itself, but cited to another court, which did discuss and criticize the study for various ‘‘statistical and conceptual flaws.’’  See Glastetter, 252 F.3d at 992 (citing Siharath v. Sandoz Pharms.Corp., 131 F.Supp. 2d 1347, 1356-59 (N.D.Ga.2001)).  Glastetter was binding authority, and not so easily dismissed and distinguished.

The Viagra MDL court ultimately placed its holding upon the facts that:

‘‘the McGwin et al. and Margo et al. studies were peer-reviewed, published, contain known rates of error, and result from generally accepted epidemiologic research.’’

In re Viagra, 572 F. Supp. 2d at 1081 (citations omitted).  This holding was a judicial ipse dixit substituting for the expert witness’s ipse dixit.  There were no known rates of error for the systematic errors in the McGwin study, and the ‘‘known’’ rates of error for random error in McGwin 2006  were intolerably high.  The MDL court never considered any of the error rates, systematic or random, for the Margo & French study.  The court appeared to have abdicated its gatekeeping responsibility by delegating it to unknown peer reviewers, who never considered whether the studies at issue in isolation or together could support a causal health claim.

With respect to the last of the three studies considered, the Gorkin study, McGwin opined that it was  too small, and the data were not suited to assessing temporal relationship.  Id.  The court did not appear inclined to go beyond McGwin’s ipse dixit.  The Gorkin study was hardly small, in that it was based upon more than 35,000 patient-years of observation in epidemiologic studies and clinical trials, and provided an estimate of incidence for NAION among users of Viagra that was not statistically different from the general U.S. population.  See L. Gorkin, K. Hvidsten, R. Sobel, and R. Siegel, ‘‘Sildenafil citrate use and the incidence of nonarteritic anterior ischemic optic neuropathy,’’ 60 Internat’l J. Clin. Pract. 500, 500 (2006).

Judge Magnuson did proceed, in his 2008 opinion, to exclude all the other expert witnesses put forward by the plaintiffs.  McGwin survived the defendant’s Rule 702 challenge, largely because the court refused to consider the substantial random variability in the point estimates from the studies relied upon by McGwin. There was no consideration of the magnitude of random error, or for that matter, of the systematic error in McGwin’s study.  The MDL court found that the studies upon which McGwin relied had a known and presumably acceptable ‘‘rate of error.’’  In fact, the court did not consider the random or sampling error in any of the three cited studies; it failed to consider the multiple testing and interaction; and it failed to consider the actual and potential biases in the McGwin study.

Some legal commentators have argued that statistical significance should not be a litmus test.  David Faigman, Michael Saks, Joseph Sanders, and Edward Cheng, Modern Scientific Evidence: The Law and Science of Expert Testimony § 23:13, at 241 (‘‘Statistical significance should not be a litmus test. However, there are many situations where the lack of significance combined with other aspects of the research should be enough to exclude an expert’s testimony.’’)  While I agree that significance probability should not be evaluated in a mechanical fashion, without consideration of study validity, multiple testing, bias, confounding, and the like, handing waving about litmus tests does not excuse courts or commentators from totally ignoring random variability in studies based upon population sampling.  The dataset in the Viagra litigation was not a close call.

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