Part Two.  (Professor Haack presents six “irreconcilable differences” between science and the law.  In the first part, I looked at the first three of these six differences.  The remaining three are discussed below.)

* * * *

(iv) “Because of its adversarial character, the legal system tends to draw in as witnesses scientists who are in a sense marginal more willing than most of their colleagues to give an opinion on the basis of less-than-overwhelming evidence; moreover, the more often he serves as an expert witness, the more unbudgeably  confident a scientist may become in his opinion.”  Id. at 16.

Haack’s point appears unexceptional, although in my experience defendants typically cannot risk sponsoring “marginal” witnesses.  Plaintiffs’ counsel, however, do sponsor marginal witnesses because they know that the jury system gives them a sympathy boost from the emotions aroused in a serious injury case.

Haack provides examples of “marginal” science and witnesses that are disturbing for the biases and prejudices that she exhibits.  Haack focuses upon Dr Robert Brent, a toxicologist, who seems to pop into her mind as Merrell Dow’s expert witness “always ready to testify that Bendectin does not cause birth defects.”  Id. at 17.  Really?  Haack presents no evidence or suggestion that Brent was wrong, and indeed, Brent published widely on his views of the subject.  Wide publication does not necessarily mean Brent was right, but at least he was willing to subject himself to professional peer review, and post-publication, professional challenges.  Still, Haack is distressed that Dr Robert Brent opines with “unwarranted certainty” that Bendectin does not cause birth defects, but she offers no suggestion or support that his certainty was or is misplaced.

In stark contrast, Haack expresses no discomfort with Bendectin plaintiffs’ expert witness, Dr Done, and with the facile ease with which he opined with certainty that Bendectin does cause birth defects.  Here there really is a great deal of empirical evidence, and it has largely vindicated Dr Brent’s views on the safety and efficacy of Merrell Dow’s medication.  Dr Done’s subjective appreciation of “flaws” in some clinical trials does not transmute criticism into affirmative evidence in favor of the opinion that he so zealously, and overzealously, advocated in many Bendectin cases, for his own substantial pecuniary benefit.  What is remarkable about Haack’s article is that she singles out Dr Brent in the context of a discussion of “marginal” and “willing” testifying scientists, but she omits any mention of the plaintiffs’ cadre of ready, willing, and somewhat disreputable testifiers.  Perhaps even more remarkable is that Haack overlooks that Dr Done was essentially fired from his university for his entrepreneurial testimonial activities of dubious scientific worth, and that he may well have lied about his credentials.  See M. Green, Bendectin and Birth Defects:  The Challenges of Mass Toxic Substances Litigation 280 – 82 (Philadelphia 1996) (citing decisional law in which Done’s lack of veracity was judicially noted).

Haack offers the silicone breast implant litigation as another example of legal proceedings that may have been based upon adversarial posturing, but she equivocates by suggesting that the litigation may have been based upon a “(mis?)perception.”  Id. at 17. Haack’s question mark is telling.  Was the public’s (mis?)perception that silicone implants caused connective tissue diseases “generated in part by the legal system”? 

Here Haack is reluctant to come to terms with the reality that that the public really was misled by the legal system’s willingness to enter judgments upon verdicts for plaintiffs, based upon weak and bogus science.  These verdicts were returned, of course, before the spirit of Daubert helped cleanse the courtroom of the plaintiffs’ expert witnesses recently described by Judge Jack Weinstein as “medical charlatans”:

“[t]he breast implant litigation was largely based on a litigation fraud. …  Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”

Weinstein, “Preliminary Reflections on Administration of Complex litigation.”  Cardozo Law Review De Novo 14 (emphasis added).

Haack’s brief narrative also misses the true origins of the silicone controversy.  The misleading started with scientists who had genuine “enthusiasm” for the causal hypothesis and exuberant, perhaps all-too-human, but unscientific excitement that an exogenous cause for autoimmune disease had been discovered.  The press and the Sidney Wolfes of the world then stirred the pot before the plaintiffs’ lawyers pounced on such an enticing opportunity.  Dr Kessler’s moratorium at FDA ultimately forced plaintiffs’ counsel to file cases (if for no other reason than to protect the clients against the statute of limitations).  Between Dr Kessler’s moratorium and the pronouncements of the IOM and Judge Pointer’s panels, there were jury verdicts in favor of plaintiffs (and many in favor of defendants), all signifying the waste of tremendous resources.

Haack’s observation that law relies on adversarial procedure, is hardly newsworthy, at least in common-law countries. This reliance is not a strongly distinguishing feature, however, between law and science.  Haack expresses a concern that some of our scientific knowledge base is developed by industry, which even in the communist world, is motivated by an adversarial spirit to capture markets and profits.  Money, however, is but one motive and inducement to adversity.  Surely, university professors are often locked in heated, adversarial disputes and debates over arcane scholarly issues.  Are full professorships, tenure, endowments, and funding mere bagatelles?  Sure, there are paeans to sharing data and collaborative scientific enterprises, but what is the empirical evidence that these lofty sentiments are followed in practice? Perhaps most persuasive is the testimony of scientists themselves, who acknowledge the presence and value of adversity in science:

“[One] way of dealing with errors is to have friends who are willing to spend the time necessary to carry out a critical examination of the experimental design beforehand and the results after the experiments have been completed. An even better way is to have an enemy. An enemy is willing to devote a vast amount of time and brain power to ferreting out errors both large and small, and this without any compensation. The trouble is that really capable enemies are scarce; most of them are only ordinary. Another trouble with enemies is that they sometimes develop into friends and lose a good deal of their zeal. It was in this way the writer lost his three best enemies. Everyone, not just scientists, need a few good enemies!”

George Olah, “My Search for Carbocations and Their Role in Chemistry; Nobel Lecture (Dec. 8, 1994), quoting George von Bekessy (Nobel prize winner in medicine, 1961).

The differentiation between law and science in terms of adversity fails.  Indeed, Haack herself notes an “erosion in the ethos of science.  Id. at 9n.54, and notes that scientists, like all human beings, sometimes act from mixed or dubious motives.  Id. at 9.  This concession alone is enough to support the legal procedures of expert witness opinion gatekeeping.

(v) “Legal rules can make it impossible to bring potentially useful scientific information to light; and the legal penchant for rules, “indicia,” and the like sometimes transmutes scientific subtleties into formulaic legal shibboleths.”  Id. at 18.

One of Haack’s concerns is that a scientific conclusion may be built from many different pieces of evidence, and that the Daubert process “atomizes” the overall evidence by looking at one witness’s opinions at a time.  She points out that a conclusion may be based upon toxicology, epidemiology, or clinical medicine, none of which is alone sufficient to warrant a causal conclusion.  Id. at 18.  This concern is rarely realized in practice because the witnesses always remain in control of their opinions.  They need not articulate the “bottom-line” conclusion; they can limit their opinion to a foundational opinion, which another expert witness will incorporate into a conclusion.  Once a witness, however, voices the ultimate causal conclusion, that witness will have to identify all the pieces and lines of supporting evidence.  The Daubert process can then proceed to ask whether the epistemic warrant is present in that witness’s opinion.  Haack’s misplaced concern appears to arise out of her unfamiliarity with how expert witness opinions are tendered, challenged, and reviewed.

Haack’s concern also ignores that regardless of the possibility of “interlocking pieces of evidence,” sometimes the evidence does not cohere sufficiently to warrant the conclusion.  “Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house.”   Jules Henri Poincaré, La Science et l’hypothèse (1905)

(vi) “Both because of its concern for precedent, and because of the desideratum of finality, the legal system has a tendency to inertia, and sometimes lags behind science.”  Id. at 20.

Like many naïve commentators, Haack seems perplexed and perhaps disturbed that the Daubert decision, which held that Rule 702 did not incorporate the Frye rule, led to more restrictive judicial gatekeeping of scientific opinion testimony.  Id. at 6.  Haack simply is unaware of the judicial legacy of Frye, which led to exclusion of evidence based upon novel scientific devices, but which was often feckless against expert witnesses who outran their headlights.  Before Daubert, there often was no standard; the epistemic anarchy of Ferebee ordained that expert witnesses had free-rein to reek and wreak.

Of course, “law lags science,” and for the good reasons explained by Judge Posner.  Rosen v. Ciba Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).

Curiously, Haack expresses dismay that law is overly concerned with precedent, but at the same time notes that the admission and exclusion of expert witness opinion testimony is reviewed for abuse of discretion, and that in some instances, courts could rule either way and still be sustained on appeal.

Haack’s writings on science recognize that the core activity of science is inquiry, which is judged pragmatically as successful or not in terms of whether its answers have predictive and explanatory power.  For Haack, the legal system “could hardly be more different, with its emphasis on adversarial procedure, promptness and finality, case-specific fact finding, precedent, and policy considerations.  Id. at 12.  As discussed above, Haack overstates and misstates the differences.

The key to Haack’s conception of the legal side of the “marriage” is her insistence that the legal system exists to resolve disputes by making determinations of liability, not to find out whether a defendant is really liable.  Id.  There are certainly judges, who unduly impressed with their own procedural efficiency, and unconcerned with the truth-finding function of trials, who would agree with Haack’s rhetoric, but many judges, lawyers, and scholars would disagree.  A trial is a search for the truth, even if under time and procedural constraints.  The legal system suffers when judgments in court turn on scientific findings that diverge too much from good scientific practice.  This is the ultimate provenance of, and lesson from, the Supreme Court’s decision in Daubert.

Professor Haack is a Professor of philosophy and of law, at the University of Miami, Florida.  She has written widely on the philosophy of science, in the spirit of pragmatism and C.S. Peirce.  Much of what she has written has been a useful corrective to formalistic writings on “the scientific method,” and are worthy of study by lawyers interested in the intersection of science and the law.  We lawyers need to develop a better (more accurate, both in explaining and predicting) theory of what science is to better accommodate our procedural rules to scientific inquiry.  Haack’s writings on science, are a helpful corrective.

A recent article by Professor Haack, provides a helpful précis of her views on science in the courtroom, but also reveals robust biases and prejudices that should raise red flags about her objectivity in commenting on the legal process.  Susan Haack, “Irreconcilable Differences?  The Troubled Marriage of Science and Law,” 72 Law & Contemporary Problems 1 (2009).

Haack’s paper grew out of a presentation at the Fourth Coronado Conference, organized by SKAPP (The Project on Scientific Knowledge and Public Policy).  Haack provides no information about the provenance of SKAPP, and the funding sources for SKAPP have been suppressed by its principals.  At the time of the Conference, SKAPP was headed by Dr David Michaels, who was a hired expert witness for plaintiffs’ counsel in tort litigation.  Dr Michaels is now the head of OSHA.  Michaels founded SKAPP with funding by plaintiffs’ counsel from monies left over from the silicone gel breast implant litigation. 

Ironically, the litigation shut down by Daubert has given rise to enough “left over” walking-around money to fund anti-Daubert writings and activities.  As in most multi-district litigations, the plaintiffs’ counsel set up a common benefit fund, which received a fixed percentage of every settlement, ostensibly to cover the costs of developing the plaintiffs’ case against the defendants.  Perversely, plaintiffs’ counsel have sufficient money on their hands, years after the silicone litigation is over, to fund conferences that help develop their case against the sort of gatekeeping that shut down their litigation machine.  People who have taken SKAPP money might ask why the money has not been distributed to claimants.

SKAPP’s hostility to expert witness gatekeeping is fairly obvious even if it had not been funded by the lawyers who sponsored such dubious evidence in the implant litigation.  See SKAPP A LOT  (posted April 30, 2010).  I am not suggesting that Haack’s paper was slanted to please the behind-the-scenes financial sponsors of the Coronado Conference.  I am, however, suggesting that the money went to SKAPP because of its ideological proclivities, and that Haack may well have been selected, in part, because of her anti-industry views.  The drumbeat for transparency and disclosures from authors affiliated with industry sounds out for transparency and disclosures from authors who want to speak out against that industry.  One could only imagine the hue and cry if a scholarly conference had been funded by an organization that had in turn been set up by, say, the tobacco industry.

In keeping with SKAPP’s priorities, Haack does not like the Daubert decision or its incorporation into statutory law by Federal Rule of Evidence 702.  Haack is critical of courts for excluding expert witnesses from testifying.  She anguishes for witnesses who have been “dauberted out,” and warns us that the consequences for such witnesses can be serious, and even disasterous.  Id. at 7 & n.48.  There is no such sympathy for the victims of unreliable expert witness testimony.

Haack sets out to characterize the differences between the scientific and legal enterprises, which make for a troubled “marriage.”  The sexual relational metaphor is Haack’s, and it fails.  Although Haack offers some important insights into science and scientific methodology, there are some significant problems, especially with her amateur marriage counseling.

Haack identifies six “irreconcilable differences” in a “not-so-tidy list.”  Id. at 15 – 21.  The differences ultimately, however, prove more insubstantial than Haack claims.

(i)  “Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interest is most severe.”  Id. at 15. 

True that, but Haack illustrates the pressure only with examples of industries that conduct research “for marketing purposes” or “with an eye to protecting itself against litigation.”  Id. Haack, for instance, gives an example of this difference in the form of Merck’s clinical trials of Vioxx.  Surely anyone familiar with the landscape of recent American tort law might think of examples from the claimants’ side.  The breast implant litigation spawned fraudulent studies on immunogenicity of silicone, by plaintiffs’ expert witnesses, who hoped to commercialize test kits for “silicone sensitivity.” Fenfluramine litigation showcased collateral litigation for fraud by plaintiffs’ counsel.  Silica litigation, based upon dubious medical screenings, resulted in fraudulent filings supported by fraudulent expert witness reports.  It would not have been difficult for Haack to find some examples of not just pressure, but criminal malfeasance, on the plaintiffs’ side of litigation, to illustrate where the “commercial interest is most severe.”  Perhaps Haack understood that the organizers of SKAPP wanted to keep the focus on industry.

(ii)  “Because the legal system aspires to resolve disputes promptly, the scientific questions to which it seeks answers will often be those for which the evidence is not yet in.  Id. at 16. 

This difference between science and law is real, although scientists themselves often overstate the certainty of their conclusions for which the evidence is not yet sufficiently complete.  This is hardly the stuff of an “irreconcilable difference,” because science, as Haack herself acknowledges, provides the reconciliation:

“Moreover, at any time there are many scientific questions to which there is no warranted answer, and to which scientists can only say, ‘at the moment, we just don’t know; we’re working on it, but we can’t tell you when we will have it figured out.’”

Id. at 12.  There are times that the law must await an answer as well. Expert witnesses are under no compulsion to offer an opinion that is not ready to be couched as a scientific conclusion.

(iii) “Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; for related reasons, the legal system constitutes virtually the entire market for certain fields of forensic science (or quasi-science), and for certain psychiatric specialties.” Id. at 16.

Although Haack’s characterization of the legal system’s demands is correct, she fails to explain why the legal system should countenance pseudo-science simply because real science is silent.  In looking at the Joiner litigation, which of course ended in the United States Supreme Court, Haack complains, no – whines, that specific causation of Mr. Joiner’s lung cancer was “an almost impossibly difficult question.”  Id. at 16, discussing General Elec. Co. v. Joiner, 522 U.S. 136, 139 – 40 (1997).  If so, then why should we allow a jury to speculate upon what is essentially a scientific issue?  Such speculative judgments are what led to the felt need for gatekeeping in the first place.

Haack goes on to complain further that the toxicity of PCB is “well-establish.”  Toxicity for what end point?  The Joiner case, however, involved challenges to the general causation question of lung cancer, on which the “well-established” toxicity of PCBs was quite irrelevant.  Good grief, water and oxygen are toxic at sufficiently large doses, but that does not mean we can attribute all diseases to them.

(to be continued)

All right; I know I said I wanted to write about the law of torts, but a tort is a civil wrong, and nothing could be more wrong than the behavior of the Thomas women.  First, Mrs. Thomas telephones Anita Hill at work on a Saturday morning, and leaves her a voicemail message about how Hill should apologize for her testimony given almost two decades ago.  The news wires and blogosphere came alive; everyone asked what was she thinking. 

Second, and even more bizarre than Mrs. Thomas’ lapse of judgment and civility, a former Thomas “girl friend,” Lillian McEwen provoked even greater outrage.  After having “dumped” Clarence Thomas more than 20 years ago, Ms. Ewen decided the time had come to go public with her great personal insights, gleaned from the bedroom behavior of Thomas. McEwen had no news of criminal activity, no news of abuse or mistreatment, no news of legal impropriety, and no personal observation of any event that could reconcile the contradictions in the Thomas-Hill testimony.  No, McEwen decided she could not go into senility without telling the world why she had dumped Thomas:  

• he gave up heavy drinking,
• he became “asexual,”
• he decided to get into better shape by running,
• he wanted to have a serious relationship that involved cohabiting,
• he decided that he needed to advance his career, and
• he paid more attention to controlling and disciplining his son.

Wow!  To be sure, McEwen also told us that Thomas enjoyed pornography and women with ample mammaries, but that was while she was still enjoying Thomas.  The post-epiphany Thomas was much less fun, no doubt, for Ms. McEwen, who preferred the Thomas who “drank to excess,” who lacked ambition, who was unstable, who had trouble concentrating, and who lacked “intellectual curiosity.”  Tom Cohen, “Former girlfriend says Clarence Thomas was a binge drinker, porn user.”< http://articles.cnn.com/2010-10-25/us/scotus.thomas.mcewen_1_anita-hill-pornography-binge-drinker?_s=PM:US>

Perhaps Ms. McEwen’s loss is the Supreme Court’s gain.

This is the stuff of news wires and Larry King interviews.  Mr. King interviewed Ms. McEwen, and even he appeared to have been flummoxed by McEwen’s public revelation that a sober, hard-working, physically fit Thomas was unacceptable in the McEwen bedroom.  Talk about too much information!  Still, Mr. King failed at the cross-examination by avoiding any meaningful inquiry into the nature and basis for McEwen’s long-term relationship with Clarence Thomas, before his having cleaned up his act. Afterall, McMcEwen had “opened the door,” as trial lawyers say, and she put her own peccadilloes, fetishes, and preferences into issue.  If she was willing to speak about Thomas, then surely fairness requires that she talk openly about herself as well.  Afterall, asexuality is in the eye of the beholder.  So many questions went unasked.  Inquiring minds want to know.

Mr. Justice Thomas declined comment, very appropriately.  I wish I had witnesses in my trials, who, like Lillian McEwen, impeached themselves so effectively and completely.  It is difficult to imagine that Ms. McEwen had been a prosecutor and administrative law judge, although it is only fair to consider that Ms. McEwen is accustomed to putting her “defendant” in the worst possible bad light.  The entire country now understands why then Senator Biden controlled his own urges and did not call Ms. McEwen as a witness at the Thomas confirmation hearings.

Lynn Gates, of Smith, Murphy & Schoepperle LLP, pointed me to a recent article in ABA Mobile about an Iowa lawyer who reprimanded for submitting a brief in which large blocks of language and research were copied from a law review article.  Weiss, “Iowa Lawyer Reprimanded for Plagiarizing Bankruptcy Brief” (Oct 18, 2010).

The ABA article reports on a recent case, filed October 15, 2010, by the Supreme Court of Iowa, Iowa Supreme Court Attorney Disciplinary Board v. Cannon, which held that wholesale copying from a law review article was sanctionable and upheld a public reprimand of the offending lawyer for dishonesty or mispresentation toward the court. 

The gravamen of the complaint against the Iowa lawyer was that the lawyer copied large segments of a law review article into a brief he filed with the court.  The court preferred charges after finding that the lawyer’s briefs were of an “unusually high quality.”  The disciplinary board found that the lawyer’s conduct involved dishonesty and misrepresentation toward the court, and that the lawyer’s fee for writing the brief was unreasonable and excessive.  The lawyer had billed 25.5 hours for preparing the briefs.  The Grievance Commission agreed that the attorney had plagiarized, but not that the attorney had charged an excessive fee.  The Commission was apparently mollified by the lawyer’s having refunded his fee to the client, but nonetheless recommended a six-month suspension from practice. On review, the Iowa Supreme Court affirmed the finding of plagiarism, but concluded that a public reprimand was the appropriate sanction.

What are the lessons to be drawn from this interesting case?

First, and foremost, don’t plagiarize from well-written, well-researched law review articles.

Second, think twice about writing briefs of unusually high quality unless this is your regular practice and your clients can afford the quality.

Third, the board’s fixation on the excessive and unreasonable fee seems misplaced.  On appeal, the excessive fee charge evaporated in large measure because the lawyer had already refunded his fee.  There was no discussion whether the 25.5 hours billed was the actual time taken to find the relevant law review article, plagiarize it, and prepare the brief with the offending plagiarism.  If so, the time would have been honestly reported and not necessarily excessive.  We can only imagine how much more time the lawyer might have required to write the brief from scratch, and the client may well have benefitted substantially from the plagiarism.  The excessive fee charge seems not to fit the deed at all.

Fourth, copyright was never discussed.  Curiously, none of the tribunals involved appeared concerned about copyright infringement.  The Iowa Supreme Court never mentioned that passing off language and research as one’s own might be a copyright infringement, and that the lawyer should be sanctioned for violating federal copyright law. Surely the law review article that contributed such high quality to the lawyer’s brief had been infringed by the lawyer.

In my earlier post on plagiarism, I was not suggesting that law schools did not recognize and punish plagiarism.  Academic standards for plagiarism exist in law schools, although the definitions of plagiarism and the academic sanctions vary.  See Legal Writing Institute, “Law School Plagiarism v. Proper Attribution, A Publication of the Legal Writing Institute” (2003) (surveying law school policies and finding them often poorly defined, inconsistent, and contradictory); see also LeClercq, “Failure to Teach: Due Process and Law School Plagiarism,” 49 J. Leg. Educ. 236 (1999).

Plagiarism within law firms is another matter.  My own experience with “legal” plagiarism goes back to my work as a summer associate.  A partner for whom I was working asked me to research and write a manuscript on a topic of interest to him.  I told him that I would gladly do so, but that I expected to be noted as an author.  The partner told me that he would acknowledge my research contributions in a footnote, but that full authorship status was not appropriate for a student researcher.  The partner made it clear that the article would be for promotional purposes, and as a mere summer associate, my participation did not require authorship status.  I was stunned that the actual writer would not be also promoted as knowledgeable in the topic of the article, but my naiveté soon wore off.  I admit that my reaction was passive aggressive:  I put the research project at the end of my summer’s assignments, and somehow I never managed to get to do the research and writing for that partner.  In the long term, my reaction was more positive:  when I asked an associate to research a topic on which I wanted to write, I gave that associate authorship status if I used any part of the research or writing. Still, I was surrounded by lawyers, and even some partners, who held out writings that were ghost written by associates, law clerks, interns, and the like.  There is a lot of such intellectual slavery in law firms.

The ritualistic words “reasonable degree of medical certainty” (RDMC) are intoned by medical expert witnesses in most state and federal courts.  Courts in some liberal states, such as New Jersey, courts may dilute the typical formulation to require that expert witnesses opine with “reasonable degree of medical probability,” but the magic words are just as important.

Do the words have any meaning?

The words certainly have functional meaning in that their omission may lead to untoward consequences.  Although I have not seen many reported decisions on the issue, I have seen grown men cry when their adversaries pointed out that their expert witnesses failed to utter the magic words, and their trial judges seriously pondered striking the unadorned testimony.  In one case, my adversary begged me for a stipulation because his witness had failed to use the magic words, and had already fled the jurisdiction.  Because I (correctly) believed that the trial judge was going to grant a directed verdict on another ground, I cheerfully agreed to the stipulation that the witness, if he had been asked, would have stated that his opinions were all held and expressed to a RDMC.

Do the words have actual meaning besides the operational significance of being required by law?

David Faigman, who is truly a distinguished Professor, at the University of California Hastings College of Law, writes that the use of these words is an empty formalism.  The expression used in conjunction with a claim that X causes Y, or that X causes this particular case of Y, “has no empirical meaning and is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means.”  Faigman, “Evidentiary Incommensurability:  A Preliminary Exploration of the Problem of Reasoning from General Scientific Data to Individualized Decision-Making,” 75 Brooklyn Law Review 1115, 1134 (2010).  Faigman goes on to note that “less extreme versions” of RDMC attached to propositions about the causation of individual events are objectionable as well.  Faigman appears to take aim at both the RDMC qualifier as well as the assertion of some empirical propositions that are qualified by it.

In part, Professor Faigman’s concern about the lack of “empirical meaning” for some statements of individual causation are well taken.  He asks, for example, how can a witness say “more likely than not” that a given instance of cross-race identification is inaccurate. “Experts’ case-specific conclusions appear to be based largely on an admixture of an unknown combination of knowledge of the subject, experience over the years, commitment to the client or cause, intuition, and blind-faith.  Science it is not.” Id. at 1134 – 35.  Faigman gives other examples of the problem in the context of specific medical causation in personal injury cases, which illustrates that clinical training and practice often provide no basis for reliable attribution of causation in particular cases.  Id. at 1132 (“the core nature of clinical practice is at right angles to the crux of most legal inquiries); id. at 1133 & n.45 (citing Henricksen v. Conoco-Phillips Co., 605 F.Supp. 2d 1142 (E.D. Wash. 2009) for the proposition that differential etiology is useless when there is a large percentage of idiopathic cases and no discriminating feature of toxic causation in plaintiff’s case).

To the extent that Faigman has identified an embarrassing “lacuna” in the use of scientific evidence in courtrooms, his article is, as his articles usually are, an astute commentary on the sad state of how science is applied in court rooms.  Faigman, and a few other academic lawyers, have been willing to point to the naked judges and juries and boldly note that they are without clothes.

But is Faigman correct that the expression, RDMC, “is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means”?  Id. at 1134.

Faigman’s critique of RDMC appears to be aimed at expert witnesses who will utter the phrase, (and at courts that will superficially accept the utterance), without understanding the phrase, or perhaps not really meaning or caring what they say.  See generally H. Frankfurt, Bullshit 2005 (passim).  Surely, however, the phrase is not semantically empty.  “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion.  Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge.  A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers.  Objectively, the phrase conveys the notion of reliable knowledge.  To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.  Even if judges and lawyers were to take the phrase as empty (because they are inured to bullshit in this setting), jurors are likely to take it as having a plain language meaning that adds epistemic and personal “heft” to the opinion.

Furthermore, Faigman’s comment about RDMC is inaccurate in some states that take the utterance very seriously.  In Pennsylvania, for instance:

“the expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence.”

Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681, 684 (1954).   This “formalistic” requirement in Pennsylvania is particularly important because the appellate courts have seriously eroded the gatekeeping function under Pennsylvania Rule of Evidence 702.  The epistemic requirements of RDMC are thus, for the time being, the only way to ensure that science adequately informs the verdicts and judgments of Pennsylvania courts.

Professor Faigman’s article raises an additional, “case-specific” concern.  For reasons that are unclear, Faigman uses the connection between asbestos and mesothelioma to serve as an example of an outcome that has a unique cause:

“An example of this is the relationship between asbestos exposure and mesothelioma. The unique cause of mesothelioma is exposure to asbestos, but not everyone exposed to asbestos develops mesothelioma.”  Id. at 1120.

and

“In the example of mesothelioma, a civil plaintiff who has this disease will be able to trace it back to asbestos exposure.”  Id. at 1121.

Not really.  Faigman offers no support for these startling assertions, and they are wrong.  Mesothelioma is known to be caused by erionite, a non-asbestos zeolite mineral, and the disease is probably caused by radiation as well.  Young adult cases among survivors of childhood Wilms’ tumor have been frequently described (after therapeutic radiation).  There is much that is known and unknown about mesothelioma causation.  Some forms of asbestos clearly cause mesothelioma, but there are few competent experts who will say, with RDMC, that all cases of mesothelioma are caused by asbestos.

Plagiarism is serious academic sin. Back in the day, my junior high teachers instilled a fear of this sin, and its dire consequences, in me. Given that I had abandoned a religious worldview long ago, the Purple “P” was a much worse branding than the Scarlet “A,” for anyone who lives by the written word.

The Chronicle of Higher Education reported a story yesterday about a graduate student’s outing of a professor’s apparent plagiarism at Rutgers University (at one of its satellite campuses in Newark, New Jersey). See Bartlett, “Alan Sokal, the 1996 Hoaxer, Takes Aim at an Accused Plagiarist at Rutgers.” http://chronicle.com/article/Alan-Sokal-Takes-Aim-at-an/124969/

The protagonists in this morality play are Mr. Frank Fischer, a professor of political science at Rutgers, and Mr. Kresimir Petkovic, a graduate student in the field of political science. Petkovic submitted an article to Critical Policy Studies; the paper was critical of Fischer’s work. Fischer, an award-winning scholar, is an editor of Critical Policy Studies. As you might imagine, Mr. Petkovic’s article did not fare too well. According to Bartlett’s account, initially, the journal initially told Petkovic that the paper might be published along with a response from Fischer. Ultimately, Petkovic’s paper was rejected.

The rejection led Petkovic to investigate, perhaps peevishly, whether Fischer’s scholarly work, the subject of his critique, was original. With the advent of electronic search engines, and software for comparing documents, the process of identifying plagiarism has been simplified. Thinking that he had found “pay dirt,” Petkovic sought out help from the well-known debunker of social constructivism, Alan Sokal, who offered to help in the investigation. Fischer threatened to sue, but the Chronicle apparently took it upon itself to publish the Petkovic-Sokal report on Fischer’s work as a linked document to Bartlett’s article. http://chronicle.com/items/biz/pdf/plagiarism_fischer.pdf  Fischer defended himself against the charges of plagiarism by interposing a plea of mere sloppiness.

There are several interesting lessons from the Fischer-Petkovic affair.

First, the Fischer affair illustrates some of the failings of peer review. It is a system run by human beings, and peer review is only as strong as the integrity of not just the reviewers, but of the editors as well. Even if the peer reviewers were selected in a fair manner, they were selected by the editors of the journal conducting the review. The reviewers may well be part of the clique that is being critiqued, and even if not, they are likely reviewers because they want to keep the option of someday publishing their work in the journal in question. This does not seem like a good system to provide unbiased review, with meritorious inclusion and exclusionary decisions.

This process takes surely place in medical publishing as well, where editorial boards and their friends are often possessed by various “enthusiasm” for and against certain lines of research. There is an awful lot of “political” science in medicine, as well. For parties who litigate medico-scientific issues, this problem in peer review is often problematic.

Second, the Fischer affair illustrates the existence of a certain inbred arrogance among intellectual groups. Fischer is an award-winning scholar in his circle. Many academic intellectual circles are very “tight,” and they seem not to care about what those external to the circle think. This phenomenon was seen in the 2005 award of the Sedgwick Memorial Medal by the American Public Health Association to Barry S. Levy. The Sedgwick award is meant to recognize outstanding achievements in public health. Shortly before receiving the award, Levy was awarded other epithets from a federal district judge. In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Texas 2005)(expressing particular disappointment with Dr. Levy, who although not the worst offender of a bad lot of physicians, betrayed his “sterling credentials” in a questionable enterprise to manufacture diagnoses of silicosis for litigation). See also Schachtman, Silica Litigation: Screening, Scheming & Suing; Washington Legal Foundation Critical Legal Issues Working Paper Series No. 135 (Dec. 2005)(exploring the ethical and legal implications of the entrepreneurial litigation in which Levy and others were so heavily involved); available at http://www.wlf.org/upload/1205WPSchachtman.pdf. The Fischer affair is a reminder that qualifications do not substitute for indicia of reliability or integrity.

Third, the Fischer matter raises the interesting question for lawyers as to what is the permissible limit of plagiarism in the law? The law is built upon slavishly following what someone else did in the same or similar situation previously. That is “precedent.” Still, we would expect judges to attribute specific language to others when they use that language verbatim. Lawyers for litigants, however, may be all-too-happy to see their language in briefs appropriated wholesale by judges in their cases.

And what constraints operate upon lawyers themselves? Can they take, without attribution, language from another brief, for use in their most current case? Recently, I had the experience of circulating a draft appellate brief to my codefendants’ counsel for their review. My hope in doing so was to avoid unnecessary conflicts in our written submissions to the appellate court. Given the press of deadlines, I did not make much of not having my codefendants’ counsel return the favor in allowing me to see her draft brief. So imagine my consternation when I saw my codefendant’s brief, which used entire pages out of my brief! There appears to be no ethical canon, principle, or rule to address this issue.  Perhaps there should be.

Gregory Joseph posted a note about an interesting case, McElgunn v. CUNA Mutual Insurance Soc’y, 700 F. Supp. 2d 1141 (D.S.D. 2010)(first-party bad faith case for non-ERISA disability benefits), which addressed the vexing issues of whether lawyers’ objections and colloquy during a videotaped de bene esse deposition should be excised on play back before a jury.  See “No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition,” http://www.josephnyc.com/blog/?blogID=1485.  Apparently the trial court overruled the great majority of the objections, and the losing party further objected to the playback of its counsel’s repeated objections.  The court, noting no authority had been cited for requiring editing, permitted the playback without editing of the objections and colloquy.  The trial court further reasoned that the jury’s viewing of the objections on the videotape was “no different than what the jury would see if an attorney made similar objections at trial during an examination of a witness.”  The trial court also noted that the jury should be allowed to observe the witness’s reaction to the objections and the colloquy.

Joseph does not comment upon this ruling, which in some ways is a troubling precedent.  Of course it is not the district judge’s fault that the Rules Committee has not addressed the practical issues raised by the growing use of videotaped depositions at the time of trial.  The court, however, is incorrect to the extent that common sense would be some authority for allowing redaction of objections and colloquy.  If the testimony had taken place in court, the objecting party would have had three advantages.  First, its counsel could have had the benefit of the court’s rulings early in the testimony, and those rulings may have persuaded the counsel that the issue was not worth pressing or preserving further.  Second, the objecting lawyer could have requested a continuing objection to a line of testimony, and thus avoided appearing to be obstructionist before the jury.  Of course, such a request for a continuing objection could be made on the record of the deposition, but the defender would not know for sure that the court will ultimately honor the request.  Third, even if ruling on the objection were a discretionary call for the trial judge, the presentation of the testimony from a witness on the stand may have caused the trial judge to take greater control of the courtroom, despite overruling the objection overruled.  (How many times have trial judges overruled a leading question on direct examination, but then admonished the examiner to stop leading?)  Surely, the party defending a de bene esse videotaped deposition should not be disadvantaged by operating in the dark about how the court will ultimately rule on objections. 

Perhaps the Rules Committees will address the problems posed by the McElgunn decision; the issues have certainly been with us for long enough.

Recently, I presented to a local bar association about the rise of systematic review and meta-analysis in the medical and social sciences to resolve open scientific issues with the best available data.  I did not believe that this would be a particularly controversial topic.  There can be no denying that in the last 25 years, the systematic review has challenged and replaced the authoritative narrative review, which frequently was selective and incomplete, and which reflected the pre-existing beliefs of its author.  Similarly, meta-analysis has emerged as an important tool to analyze a body of studies, and to refine and perhaps resolve open issues of causation of benefit and harm.

Before the meeting began, I sat with two lawyers who ultimately would be in the audience.  I was fine tuning my slides, and they were talking excitedly and openly about various political issues.  It was obvious that these lawyers considered themselves liberal activists on a wide range of current issues.  So it was surprising when these same lawyers were the most outspoken, and frankly hostile, audience members.  They interrupted me incessantly, and their questions reflected skepticism and adversity to the notion that medical, and even some social, issues should be resolved based upon evidence-based principles that required pre-specification of the criteria for quality of evidence, and for the ultimate synthetic judgment of integrating the available evidence into a reliable conclusion. 

Living in the heart of liberal New York City, I expected hostility from people on the Far Right (not to be confused with conservatives), whose commitment to religious positions makes an evidence-based worldview impossible.  Ultimately, evidence does not matter in debates about Creationism, and perhaps about other issues as well.  The unscientific approach taken by people on the Religious Right on issues such as abortion and breast cancer, and in the Tobacco Industry on “sound science,” certainly led me to expect that they would fundamentally dissent from an evidence-based world view. 

I was surprised by two liberal auditors’ resistance and hostility to my description of the ascendancy of evidence-based medicine.  One of them seemed offended by the notion that there was a generally accepted hierarchy of evidence, and so, for instance, a randomized clinical trial would trump a mere anecdotal case report.

In pondering my audience’s reaction, I later remembered Alan D. Sokal’s wonderfully puckish article, “Transgressing the Boundaries:  Towards a Transformative Hermeneutics of Quantum Gravity,” published in Social Text 217-252 (Nos. 46 – 47, Spring 1996). Although Sokal is a socialist, he was frustrated and even horrified by the Left’s embrace of social constructivism, and its rejection of an evidence-based world view.  In a parody that he planted deep in Constructivist territory, Sokal perpetuated a hoax that has rightly become famous.  At the outset of his article, he claims:

“It has thus become increasingly apparent that physical ‘reality’, no less than social ‘reality’, is at bottom a social and linguistic construct; that scientific ‘knowledge’, far from being objective, reflects and encodes the dominant ideologies and power relations of the culture that produced it; that the truth claims of science are inherently theory-laden and self-referential; and consequently, that the discourse of the scientific community, for all its undeniable value, cannot assert a privileged epistemological status with respect to counter-hegemonic narratives emanating from dissident or marginalized communities.”

Sokal, at 217.  With his tongue planted firmly in his cheek, Sokal deconstructed the deconstructionists, and for that he has been hailed and vilified.

I realized that Sokal’s work, back in 1996, identified the source of my audience’s hostility.  My hostile auditors want to be free to embrace their counter-hegemonic narratives, without being troubled or delayed by considerations of reliable evidence.  Looking at a broader audience, we can see that Sokal’s hoax identifies the resistance and hostility to the evidence-based worldview embraced by the U.S. Supreme Court in Daubert, and codified in Federal Rule of Evidence 702.

As lawyers, of course, we see hostility to, or ignorance of, evidence-based positions with distressing frequency.  One recent example cropped up in an opinion of the New Jersey Appellate Division, in Sarkozy v. A.P. Green Industries, Inc., 2009 N.J. Super. Unpub. LEXIS 2052 (July 31, 2009), certif. denied sub nom. Patton v. A.O. Smith Corp., 2009 N.J. LEXIS 1465 (Dec. 14, 2009).  In Sarkozy, the Appellate Division reviewed what appears to have been a challenge to an award for medical monitoring to some of the plaintiffs, who had claimed injuries from occupational asbestos exposure.  Plaintiffs’ expert witnesses had opined that plaintiffs should have biannual chest radiographs, CT scans, and PET scans to detect lung cancer, and colonoscopies to detect colorectal cancer.  Remarkably, the Appellate Division failed to mention that no medical organization has endorsed CT scans, and certainly not PET scans, for the medical monitoring for lung cancer.  Those imaging modalities are not only expensive, but carry a risk of their own from ionizing radiation.  Furthermore, there is no reliable evidence that these imaging modalities actually improve outcomes or are medically necessary. 

With respect to colonoscopies, the evidence is even more extreme.  First, the screening a normal part of adult health, and so does not represent a differential, increased cost to the plaintiffs.  Second, and more important, there is no reliable evidence that asbestos exposure increases the risk of colorectal cancer.  Although the opinion that asbestos causes colorectal cancer was popularized by the late Irving Selikoff, and has been preached as gospel by his followers, there is little or no reliable evidence to support the opinion.  Recently, a select committee of the Institute of Medicine published its report on Asbestos:  Selected Health Effects (2006), in which it concluded that the evidence was insufficient to infer a causal relationship between asbestos exposure and colorectal cancer.  See id. at p. 10.  Plaintiffs’ expert witnesses, who appear to have hatched within the Selikoff nest, continue to propagate the Selikoff propaganda, and the propaganda continues to infect judicial decisions.  So much for evidence-based medicine in New Jersey courts.

Perhaps, in Sarkozy, the defendants’ counsel never objected.  If so, shame on them.  Perhaps the trial and appellate courts were simply resistant to analyzing and ensuring the reliability of the evidence.  Even so, it is hard to see how an award for medical monitoring for CT and PET scanning could be sustained without any consideration of the efficacy of those procedures.

Harry Frankfurt’s little book, On Bullshit (Princeton UniversityPress 2005), hardly shook up the world of philosophy, but it gave a valuable, succinct assessment of what is wrong with so much expert witness opinion testimony:

“Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about.  Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”

On Bullshit, at 63.

Parties to litigation experience this compulsion to take a position and say something about the elements of their claims and defenses, lest they suffer an adverse judgment on a matter that is dear to them.  Frankfurt’s thesis helps to explain why plaintiffs’ expert witnesses are more prone to bullshit than the defense’s:  the plaintiffs must find someone to say something about those elements of their claims that require expert witness testimony, or else the plaintiffs will be out of court.  The defense, however, has the luxury of not saying anything, but putting the plaintiffs to their proofs.  If the burden of proof were shifted, the bullshit, no doubt, would emanate from the other side of the courtroom.  Plaintiffs must put forward evidence to meet their burden on every element of their claim; whereas defendants can concede, or not contest, some elements as long as they have defenses to at least one necessary element of the claim.

Several years ago, I was in a federal courtroom somewhere in the Midwest, where I was being treated to an oral argument by Richard (“Dickie”) Scruggs.  To show my disapproval of the liberties that Dickie was taking with the facts and law, on a break, I pulled out my copy of On Bullshit, and started leafing through it.  Dickie, gracious and good humored, came over to tell me how much he had enjoyed reading the book, and how he had bought ten copies to give out to friends for Christmas.  All I could say was what goes around, comes around.