Ziliak Gives Legal Advice — Puts His Posterior On the Line

I have posted before about the curious saga of two university professors of economics who curiously tried to befriend the United States Supreme Court.  Professors Ziliak and McCloskey submitted an amicus brief to the Court, in connection with Matrixx Initiativives, Inc. v. Siracusano, ___ U.S. ___, 131 S.Ct. 1309 (2011).  Nothing unusual there, other than the Professors’ labeling themselves “Statistics Experts,” and then proceeding to commit a statistical howler of deriving a posterior probability from only a p-value.  See The Matrixx Oversold” (April 4, 2011).

I seemed to be alone in my dismay over this situation, but recently Professor David Kaye, an author of the chapter on statistics in the Reference Manual on Scientific Evidence, weighed in with his rebuttal to Ziliak and McCloskey’s erroneous statistical contentions.  SeeThe Transposition Fallacy in Matrixx Initiatives, Inc. v. Siracusano: Part I” (August 19, 2011), and “The Transposition Fallacy in Matrixx Initiatives, Inc. v. Siracusano: Part II” (August 26, 2011).  Kaye’s analysis is well worth reading.

Having attempted to bamboozle the Justices on statistics, Stephen Ziliak has now turned his attention to an audience of statisicians and students of statistical science, with a short article in Significance on the Court’s decision in Matrixx.  Stephen Ziliak, “Matrixx v. Siracusano and Student v. Fisher:  Statistical Significance on Trial,”  Significance 131 (September 2011).  Tellingly, Ziliak did not advance his novel, erroneous views of how to derive posterior odds or probabilities from p-values in the pages of a magazine published by the Royal Statistical Society.  Such gems were reserved for the audience of Justices and law clerks in Washington, D.C.  Instead of holding forth on statistical issues, Ziliak has used the pages of a statistical journal to advance equally bizarre, inexpert views about the legal meaning of a Supreme Court case.

The Matrixx decision involved the appeal from a dismissal of a complaint for failure to plead sufficient allegations in a securities fraud action.  No evidence was ever offered or refused; no expert witness opinion was held reliable or unreliable.  The defendant, Matrixx Initiatives, Inc., won the dismissal at the district court, only to have the complaint reinstated by the Court of Appeals for the Ninth Circuit.  The Supreme Court affirmed the reinstatement, and in doing so, did not, and could not, have created a holding about the sufficiency of evidence to show causation in a legal proceeding.  Indeed, Justice Sotomayor, in writing for a unanimous Court, specifically stated that causation was not at issue, especially given that evidentiary displays far below what is necessary to show causation between a medication and an adverse event might come to the attention of the FDA, which agency in turn might find the evidence sufficient to order a withdrawal of the medication.

Ziliak, having given dubious statistical advice to the U.S. Supreme Court, now sets himself up to give equally questionable legal advice to the statistical community.  He asserts that Matrixx claimed that anosmia (the loss of the sense of smell) was unimportant because not “statistically significant.”  Id. at 132.  Matrixx Initiatives no doubt made several errors, but it never made this erroneous claim.  Ziliak gives no citation to the parties’ briefs; nor could one be given.  Matrixx never contended that anosmia was unimportant; its claim was that the plaintiffs had not sufficiently alleged facts that Matrixx had knowledge of a causal relationship such that its failure to disclose adverse event reports became a “material” omission under the securities laws.  The word “unimportant” does not occur in the Matrixx’s briefs; nor was it uttered at oral argument.

Ziliak’s suggestion that “[t]he district court dismissed the case on the basis that investors did not prove ‘materiality’, by which that court meant ‘statistical significance’,” is nonsense.  Id. at 132.  The issue was never the sufficiency of evidence.  Matrixx did attempt to equate materiality with causation, and then argued that allegations of causation required, in turn, allegations of statistical significance.  In arguing the necessity of statistical significance, Matrixx was implicitly suggesting that an evidentiary display that fell short of supporting causation could not be material, when withheld from investors.  The Supreme Court had an easy time of disposing of Matrixx’s argument because causation was never at issue.  Everything that the Court did say about causation is readily discernible as dictum.

Ziliak erroneously reads into the Court’s opinion a requirement that a pharmaceutical company, reporting to the Securities and Exchange Commission “can no longer hide adverse effect [sic] reports from investors on the basis that reports are not statistically significant.”   Id. at 133.  Ziliak incorrectly refers to adverse event reports as “adverse effect reports,” which is a petitio principii.  Furthermore, this was not the holding of the Court.  The potentially fraudulent aspect of Matrixx’s conduct was not that it had “hidden” adverse event reports, but rather that it had adverse event reports and a good deal of additional information, none of which it had disclosed to investors, when at the same time, the company chose to give the investment community particularly bullish projections of future sales.  The medication involved, Zicam, was an over-the-counter formulation that never had the rigorous testing required for a prescription medication’s new drug application.

Curiously, Ziliak, the self-described statistics expert fails to point out that adverse event reports could not achieve, or fail to achieve, statistical significance on the basis of the facts alleged in the plaintiffs’ complaint.  Matrixx, and its legal counsel, might be forgiven this oversight, but surely Ziliak the statistical expert should have noted this.  Indeed, if the parties and the courts had recognized that there never was an issue of statistical significance involved in the case, the entire premiss of Matrixx’s appeal would have been taken away.

To be a little fair to Ziliak, the Supreme Court, having disclaimed any effort to require proof of causation or to define that requisites of reliable evidence of causation, went ahead and offered its own dubious dictum on how statistical significance might not be necessary for causation:

“Matrixx’s argument rests on the premise that statistical significance is the only reliable indication of causation. This premise is flawed: As the SEC points out, “medical researchers … consider multiple factors in assessing causation.” Brief for United States as Amicus Curiae 12. Statistically significant data are not always available. For example, when an adverse event is subtle or rare, “an inability to obtain a data set of appropriate quality or quantity may preclude a finding of statistical significance.” Id., at 15; see also Brief for Medical Researchers as Amici Curiae 11. Moreover, ethical considerations may prohibit researchers from conducting randomized clinical trials to confirm a suspected causal link for the purpose of obtaining statistically significant data. See id., at 10-11.

A lack of statistically significant data does not mean that medical experts have no reliable basis for inferring a causal link between a drug and adverse events. As Matrixx itself concedes, medical experts rely on other evidence to establish an inference of causation. See Brief for Petitioners 44-45, n. 22. We note that courts frequently permit expert testimony on causation based on evidence other than statistical significance. See, e.g., Best v. Lowe’s Home Centers, Inc., 563 F.3d 171, 178 (C.A.6 2009); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263-264 (C.A.4 1999) (citing cases); Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 744-745 (C.A.11 1986). We need not consider whether the expert testimony was properly admitted in those cases, and we do not attempt to define here what constitutes reliable evidence of causation.”

What is problematic about this passage is that Justice Sotomayor was addressing situations that were not before the Court, and about which she had no appropriate briefing.  Her suggestion that randomized clinical trials are not always ethically appropriate is, of course, true, but that does not prevent an expert witness from relying upon observational epidemiologic studies – with statistically significant results – to support their causal claims.  Justice Sotomayor’s citation to the Best and the Westberry cases, again in dictum, is equally off the mark.  Both cases involve the application of differential etiological reasoning about specific causation, which presupposes that  general causation has been previously, sufficiently shown.  Finally, Justice Sotomayor’s citation to the Wells case, which involved both general and specific causation issues, was inapposite because plaintiff’s expert witness in Wells did rely upon at least one study with a statistically significant result.  As I have pointed out before, the Wells case went on to become an example of one trial judge’s abject failure to understand and evaluate scientific evidence.

Postscript:

The Supreme Court’s statistical acumen may have been lacking, but the Justices seemed to have a good sense of what was really going on in the case.  In December 2010, Matrixx settled over 2,000 Zicam injury claims. On February 24, 2011, a month before the Supreme Court decided the Matrixx case, the federal district judge responsible for the Zicam multi-district litigation refused Matrixx’ motion to exclude plaintiffs’ expert witnesses’ causation opinions.  “First Zicam Experts Admitted by MDL Judge for Causation, Labeling Opinions” 15 Mealey’s Daubert Reporter (February 2011); In re Zicam Cold Remedy Marketing, Sales Practices and Products Liab. Litig., MDL Docket No. 2:09-md-02096, Document 1360 (D. Ariz. 2011).

After the Supreme Court affirmed the reinstatement of the securities fraud complaint, Charles Hensley, the inventor of Zicam, was arrested on federal charges of illegally marketing another drug, Vira 38, which he claimed was therapeutic and preventive for bird flu.  Stuart Pfeifer, “Zicam inventor arrested, accused of illegal marketing of flu drug,” Los Angeles Times (June 2, 2011).  Earlier this month, Mr. Hensley pleaded guilty to the charges of unlawful distribution.

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