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.
