Yesterday, I posted on several pharmaceutical litigations that have involved meta-analytic studies. Meta-analytic studies have also figured prominently in non-pharmaceutical product liability litigation, as well as in litigation over videogames, criminal recidivism, and eyewitness testimony. Some, but not all, of the cases in these other areas of litigation are collected below. In some cases, the reliability or validity of the meta-analyses were challenged; in some cases, the court fleetingly referred to meta-analyses relied upon the parties. Some of the courts’ treatments of meta-analysis are woefully inadequate or erroneous. The failure of the Reference Manual on Scientific Evidence to update its treatment of meta-analysis is telling. See “The Treatment of Meta-Analysis in the Third Edition of the Reference Manual on Scientific Evidence” (Nov. 14, 2011).
Abortion (Breast Cancer)
Christ’s Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Authority, 937 F.Supp. 425 (E.D. Pa. 1996), rev’d, 148 F.3d 242 (3d Cir. 1997)
Asbestos
In re Joint E. & S. Dist. Asbestos Litig., 827 F. Supp. 1014, 1042 (S.D.N.Y. 1993)(“adding a series of positive but statistically insignificant SMRs [standardized mortality ratios] together does not produce a statistically significant pattern”), rev’d, 52 F.3d 1124 (2d Cir. 1995).
In Re Asbestos Litigation, Texas Multi District Litigation Cause No. 2004-03964 (June 30, 2005)(Davidson, J.)(“The Defendants’ response was presented by Dr. Timothy Lash. I found him to be highly qualified and equally credible. He largely relied on the report submitted to the Environmental Protection Agency by Berman and Crump (“B&C”). He found the meta-analysis contained in B&C credible and scientifically based. B&C has not been published or formally accepted by the EPA, but it does perform a valuable study of the field. If the question before me was whether B&C is more credible than the Plaintiffs’ studies taken together, my decision might well be different.”)
Jones v. Owens-Corning Fiberglas, 288 N.J. Super. 258, 672 A.2d 230 (1996)
Berger v. Amchem Prods., 818 N.Y.S.2d 754 (2006)
Grenier v. General Motors Corp., 2009 WL 1034487 (Del.Super. 2009)
Benzene
Knight v. Kirby Inland Marine, Inc., 363 F. Supp. 2d 859 (N.D. Miss. 2005)(precluding proffered opinion that benzene caused bladder cancer and lymphoma; noting without elaboration or explanation, that meta-analyses are “of limited value in combining the results of epidemiologic studies based on observation”), aff’d, 482 F.3d 347 (5th Cir. 2007)
Baker v. Chevron USA, Inc., 680 F.Supp. 2d 865 (S.D. Ohio 2010)
Diesel Exhaust Exposure
King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009)
Kennecott Greens Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946 (D.C. Cir. 2007)
Eyewitness Testimony
State of New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011)
Valle v. Scribner, 2010 WL 4671466 (C.D. Calif. 2010)
People v. Banks, 16 Misc.3d 929, 842 N.Y.S.2d 313 (2007)
Lead
Palmer Asarco Inc., 510 F.Supp.2d 519 (N.D. Okla. 2007)
PCBs
In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 856-57 (3d Cir.1990) (‘‘There is some evidence that half the time you shouldn’t believe meta-analysis, but that does not mean that meta-analyses are necessarily in error. It means that they are, at times, used in circumstances in which they should not be.’’) (internal quotation marks and citations omitted), cert. denied, 499 U.S. 961 (1991)
Repetitive Stress
Allen v. International Business Machines Corp., 1997 U.S. Dist. LEXIS 8016 (D. Del. 1997)
Tobacco
Flue-Cured Tobacco Cooperative Stabilization Corp. v. United States Envt’l Protection Agency, 4 F.Supp.2d 435 (M.D.N.C. 1998), vacated by, 313 F.3d 852 (4th Cir. 2002)
Tocolytics – Medical Malpractice
Hurd v. Yaeger, 2009 WL 2516874 (M.D. Pa. 2009)
Toluene
Black v. Rhone-Poulenc, Inc., 19 F.Supp.2d 592 (S.D.W.Va. 1998)
Video Games (Violent Behavior)
Brown v. Entertainment Merchants Ass’n, ___ U.S.___, 131 S.Ct. 2729 (2011)
Entertainment Software Ass’n v. Blagojevich, 404 F.Supp.2d 1051 (N.D. Ill. 2005)
Entertainment Software Ass’n v. Hatch, 443 F.Supp.2d 1065 (D. Minn. 2006)
Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009)
Vinyl Chloride
Taylor v. Airco, 494 F. Supp. 2d 21 (D. Mass. 2007)(permitting opinion testimony that vinyl chloride caused intrahepatic cholangiocarcinoma, without commenting upon the reasonableness of reliance upon the meta-analysis cited)
Welding
Cooley v. Lincoln Electric Co., 693 F.Supp.2d 767 (N.D. Ohio. 2010)
