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The Infrequency of Bayesian Analyses in Non-Forensic Court Decisions

February 16th, 2014

Sander Greenland is a well-known statistician, and no stranger to the courtroom.  I first encountered him as a plaintiffs’ expert witness in the silicone gel breast implant litigation, where he testified for plaintiffs in front of a panel of court-appointed expert witnesses (Drs. Diamond, Hulka, Kerkvliet, and Tugwell).  Professor Greenland has testified for plaintiffs in vaccine, neurontin, fenfluramine, anti-depressant and other pharmaceutical cases.  Although usually on the losing side, Greenland has written engaging post-mortems of several litigations, to attempt to vindicate his positions he took, or deconstruct positions taken by adversary expert witnesses.

In one attempt to “correct the record,” Greenland criticized a defense expert witness for stating that Bayesian methods are rarely used in medicine or in the regulation of medicines. Sander Greenland, “The Need for Critical Appraisal of Expert Witnesses in Epidemiology and Statistics,” 39 Wake Forest Law Rev. 291, 306 (2004).  According to Greenland, his involvement as a plaintiff’s expert witness in a fenfluramine case allowed him to observe a senior professor in Yale University, who served as Wyeth’s statistics expert, make a “ludicrous claim,” id. (emphasis added), that

“the Bayesian method is essentially never used in the medical literature or in the regulatory environments (such as the FDA) for interpreting study results. . . .”

Id. (quoting from Supplemental Affidavit of Prof. Robert Makuch, App. Ex. 114, ¶5, in Smith v. Wyeth-Ayerst Labs., 278 F.Supp. 2d 684 (W.D.N.C. 2003)). Greenland criticizes Professor Makuch’s affidavit as “provid[ing] another disturbing case study of misleading expert testimony regarding current standards and practice.” 39 Wake Forest Law Rev. at 306.

“Ludicrous,” “disturbing,” “misleading,” and “demonstrably quite false”?  Really?

Greenland notes, as a matter of background, that many leading statisticians recommend and adopt Bayesian statistics.  Id. (citing works by Donald Berry, George Box, Bradley Carlin, Andrew Gelman James Berger, and others). Remarkably, however, Greenland failed to cite a single new or supplemental drug application, or even one FDA summary of safety or efficacy, or FDA post-market safety or efficacy review.  At the time Greenland was preparing his indictment, there really was little or no evidence of FDA’s embrace of Bayesian methodologies.  Six years later, in 2010, the agency did promulgate a guidance that set recommended practices for Bayesian analyses in medical device trials. FDA Guidance for the Use of Bayesian Statistics in Medical Device Clinical Trials (February 5, 2010); 75 Fed. Reg. 6209 (February 8, 2010); see also Laura A. Thompson, “Bayesian Methods for Making Inferences about Rare Diseases in Pediatric Populations” (2010); Greg Campbell, “Bayesian Statistics at the FDA: The Trailblazing Experience with Medical Devices” (Presentation give by Director, Division of Biostatistics Center for Devices and Radiological Health at Rutgers Biostatistics Day, April 3, 2009).  Even today, Bayesian analysis remains uncommon at the U.S. FDA.

Having ignored the regulatory arena, Greenland purported to do a study of the biomedical journals, “to check the expert’s claim in detail.” 39 Wake Forest Law Rev. at 306. Greenland searched on the word “Bayesian” in the Journal of Clinical Oncology for issues published from 1994-2003, and “found over fifty publications that contain the word in that journal alone.” Greenland does not tell us why he selected this one journal, which was not in the subject matter area of the litigation in which he was serving as a partisan expert witness.  For most the time surveyed, the Journal of Clinical Oncology published 24 issues a year, and occasional supplements. Most volumes contained over 4,000 pages per year.  Finding 50 uses of the word “Bayesian” in over 40,000 pages hardly constitutes resounding evidence to support his charges of “ludicrous,” “misleading,” “disturbing,” and “quite false.”  Greenland further tells us looking at these 50 or so articles “revealed several,” which “had used Bayesian methods to explore statistically nonsignificant results.” 39 Wake Forest Law Rev. at 306-07 & n.61 (citing only one paper, Lisa Licitra et al., Primary Chemotherapy in Resectable Oral Cavity Squamous Cell Cancer: A Randomized Controlled Trial, 21 J. Clin. Oncol. 327 (2003)). So in over 40,000 pages, Greenland found “several” Bayesian analyses, apparently post hoc looks to explore results that did not achieve pre-specified levels of statistical significance. Given the historical evolution of Bayesian analyses at FDA, and Greenland’s own evidence, the posterior odds that Greenland was correct in his charges seem to be disturbingly low.

Greenland tells us that the number of Bayesian analyses could be increased by looking at additional journals, and the Bayesian textbooks he cites.  No doubt this is true, as is his statement that respected statisticians, in prestigious journals, have called for Bayesian analyses to replace frequentist methods. Of course, increasing the scope of his survey, Greenland would be dramatically increasing the denominator of total journal papers with statistical methods.  Odds are that the frequency would remain very low.  Greenland’s empirical evidence hardly contradicts his bête noire for making the quoted purely descriptive statement about the infrequent use of Bayesian analysis in biomedical journals and in regulatory applications.

In lodging charges of ludicrousness, Greenland might have presented a more balanced view from more carefully conducted surveys of the biomedical literature, in the relevant time period.  See, e.g., J. Martin Bland & Douglas G. Altman, “Bayesians and frequentists,” 317 Brit. Med. J. 1151, 1151 (1998) (“almost all the statistical analyses which appear in the British Medical Journal are frequentist”); David S. Moore, “Bayes for Beginners? Some Reasons to Hesitate,” 51 The Am. Statistician 254, 254 (“Bayesian methods are relatively rarely used in practice”); J.D. Emerson & Graham Colditz, “Use of statistical analysis in the New England Journal of Medicine,” in John Bailar & Frederick Mosteler, eds., Medical Uses of Statistics 45 (1992) (surveying 115 original research studies for statistical methods used; no instances of Bayesian approaches counted); Douglas Altman, “Statistics in Medical Journals: Developments in the 1980s,” 10 Statistics in Medicine 1897 (1991); B.S. Everitt, “Statistics in Psychiatry,” 2 Statistical Science 107 (1987) (finding only one use of Bayesian methods in 441 papers with statistical methodology).

Perhaps the balance between frequentist and Bayesian analysis is shifting today, but when Professor Makuch made his affidavit in 2002 or so, he was clearly correct, factually and statistically.

In the legal arena, Bayesian analyses are frequently used in evaluating forensic claims about DNA, paternity, lead-isotopes, and other issues of identification.  Remarkably, Bayesian analyses play virtually no role in litigation of health effects claims, whether based upon medicines, or upon occupational or environmental exposures.  In searching Google scholar and Westlaw I found no cases outside of forensics. Citations to black-swan cases are welcomed.

Posted in Expert Witnesses, statistical evidence | Comments Off on The Infrequency of Bayesian Analyses in Non-Forensic Court Decisions

“Dummkopf! You’re Fired” – Judge Posner on Expert Witness Gatekeeping

February 15th, 2014

“Equity is a roguish thing, for law we have a measure, know what to trust to. equity is according to the conscience of him that is chancellor, and as that is larger or narrower so is equity. ’Tis all one as if they should make the standard for the measure we call a foot, a chancellor’s foot. What an uncertain measure would this be. One chancellor has a long foot, another a short foot, a third an indifferent foot; ’tis the same thing in the chancellor’s conscience.”

John Selden, The Table Talk of John Selden (1689), at 61 (Samuel Harvey Reynolds, ed., Oxford 1892).

*  *  *  *  *  *  *  *

As Equity in days of old varied with the size of the Chancelor’s foot, today the quality of judicial gatekeeping of expert witness opinion testimony varies with the acumen of the trial judge in the area of the challenged witness’s expertise.  In Apple Inc. v. Motorola, Inc., 2012 WL 1959560 (N.D. Ill. 2012), the parties challenged each other’s damages expert witnesses under Federal Rule 702, only to find that the trial judge was considerably more astute than their expert witnesses. When it came to assessing the validity and reliability of the damages opinions, the trial judge was a veritable “big foot,” kicking the courthouse door closed to some dodgy damage calculations.

The Hon. Richard Posner is a judge of the United States Court of Appeals, for the Seventh Circuit.  Judge Posner is also an economist and a stalwart of law-and-economics jurisprudence. In Apple v. Motorola, Judge Posner sat by designation as a trial judge.   Instead of judging whether a trial judge had abused his or her discretion in admitting or excluding expert witness testimony, Judge Posner had to put his own discretion on the line. 

Judge Posner identified the biggest challenge in gatekeeping as:

“distinguish[ing] between disabling problems with the proposed testimony, which are a ground for excluding it, and weaknesses in the testimony, which are properly resolved at the trial itself on the basis of evidence and crossexamination.”

Apple Inc. v. Motorola, Inc., 2012 WL 1959560, *1. Posner cites old caselaw, arguably superseded by the current Rule 702, for the chestnut that:

“the judge should not exclude evidence simply because he or she thinks that there is a flaw in the expert’s investigative process which renders the expert’s conclusions incorrect. The judge should only exclude the evidence if the flaw is large enough that the expert lacks ‘good grounds’ for his or her conclusions.”

Id. (quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 746 (3d Cir.1994)). Of course, flawed reasoning or methodology is the essence of what deprives anyone from making an claim to knowledge; this little chestnut is not very nourishing.

Judge Posner does better in “operationalizing” Kumho Tire for making the distinction between flaws that weaken, and those that vitiate, the epistemic bases for opinions.  Whether an expert witness “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” is a key test for determining on which side of the distinction a challenged opinion falls. Id. at *2 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

“The Kumho principle implies that an expert witness must provide reasons for rejecting alternative hypotheses ‘using scientific methods and procedure’ and the elimination of those hypotheses must be founded on more than ‘subjective beliefs or unsupported speculation, … .’ ”

Id. at *8 (internal citations omitted).

Posner tempers, and dilutes, Kumho by qualifying the Kumho principle to require a testifying expert to use the same approach as used in the relevant field “if it is feasible for him to do so.” Id. at *3. It is always feasible, but rarely seen, for an expert witness to profess insufficient knowledge, facts, or data to give an opinion. Posner goes further and rewrites the statute, Rule 702, which was designed to keep uncertainty from being masqueraded as certainty:

“when the plaintiff has done his best to prove damages his inability to dispel uncertainty concerning the accuracy of his claim is not fatal. But if an expert witness fails to conduct a responsible inquiry that would have been feasible to conduct, his failure cannot be excused by reference to the principle that speculation is permitted in the calculation of damages; that permission presupposes the exhaustion of feasible means of dispelling uncertainty. Uncertainty is a bad; it is tolerated only when the cost of eliminating it would exceed the benefit.”

Id. at *5.  Sometimes the best efforts to eliminate uncertainty will leave us uncertain.  And the issue of acceptable uncertainty is not necessarily tied to the cost of eliminating it.

Nevertheless, Posner goes on to identify multiple unreasonable assumptions, alternative inferences, missing data, and flawed methods that vitiated most of the opinions before him in Apple v. Motorola.

Judge Posner applies the Kumho principle in the context of damages with a series of counterfactual Gedanken experiments.  He asks what if the plaintiff’s expert witness were working for the defendant (and vice versa), and charged with ascertaining the lowest cost to avoid infringing the plaintiff’s patent.  If the expert submitted the most expensive approach, or an extremely speculative, answer, the defendant would indeed fire the expert: “Dummkopf! You’re fired.” Id. at *9. And if the expert offered unverified evidence that came from an interested, adverse party, the expert’s opinion would again be worthy of no consideration.

Judge Posner is at home in the world of assessing economic damages, and as a “Chancellor,” he proved to have a very big foot indeed. The parties’ expert witnesses came up short on almost every damages opinion examined.

Not all evidentiary issues can be resolved by Judge Posner’s economic reductionism as neatly as the damages issues in this patent infringement case.  Posner’s approach is less satisfying in the context of health effects litigation, where expert witnesses will often have the option of proclaiming inadequate knowledge or method to ascertain general or specific causation.  Still Posner’s Gedanken experiments are contagious.  Suppose we were confronted with a birth defect case in which plaintiffs claimed that the mother’s use of a medication in early pregnancy caused the child’s birth defect.  It is generally conceded that most such birth defects have no known cause, but the plaintiffs’ expert witnesses contend that they have conducted a differential etiology and ascribed causation of the baby’s defect to the mother’s use of the defendant’s   medication.  Suppose there was a serious economic (or life-and-death) consequence to the expert’s opinion.  If the defect were drug-induced, there was no surgical or other correction, but if the defect were “idiopathic,” it could be readily repaired surgically.  Would the expert witness, acting as a treating physician, withhold the treatment because he was “reasonably medically certain” that the defect was caused by the drug?  I don’t think so.  Dr. Dummkopf, you’re fired!

Posted in Expert Witnesses, Rule 702 | Comments Off on “Dummkopf! You’re Fired” – Judge Posner on Expert Witness Gatekeeping

Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases

February 14th, 2014

Worker’s compensation legislation was part of great compromise in the rough-and-tumble battles between labor and management in the first few decades of the last century.  In virtually every state, employers had a common law duty to provide a reasonably safe workplace.  In tort litigation, however, employers enjoyed several powerful affirmative defenses:  contributory negligence, the fellow-servant rule, and assumption of risk.  Workers enjoyed increasingly sympathetic juries and generous damage awards.  Worker’s compensation statutes made recovery for most injuries a certainty, with schedules of damages that were deeply discounted from what might be had in a jury trial. In return for well-nigh absolute liability, employers gained certainty of outcome, reduction of administrative costs, and immunity to tort liability for all but intentional harms.

After World War II, tort law began to change dramatically.  Contributory negligence gave way to comparative negligence.  Assumption of risk defenses were curtailed, and the fellow-servant rule was severely modified or abandoned.  Labor was feeling buyers’ remorse over the workman’s compensation deal.

In 1965, the American Law Institute adopted § 402A which provided for “Special Liability of Seller of Product for Physical Harm to User or Consumer,” based upon concerns of unequal knowledge of defects and latent hazards of products sold to consumers. Liability followed for harm caused by a product irrespective of privity of contract or warranty, and even if “the seller has exercised all possible care in the preparation and sale of his product.” Restatement (Second), Torts § 402A (2)(a),(b) (1965).

Section 402A was inspired by tort cases in New Jersey and California, involving consumer products, but the Restatement was quickly, and unthinkingly, applied to sales made to large manufacturing employer-purchasers in which there was no real inequality of knowledge between seller and purchaser, or hidden or latent hazard in the product or material. (Think about how knowledgeable the United States Navy was about the hazards of asbestos insulation products it bought for ship building.) Section 402 became the vehicle for injured workers to ditch their capped damages in worker’s compensation court, and to put their cases back in front of juries, with the prospect of unlimited awards for non-economic damages.

In the workers’ compensation era, very few injured workers succeeded in making out intentional torts that would overcome their employers’ immunity to suit. Late last year, however, Pennsylvania workers regained their common law right to sue employers for negligence and other torts, for occupational diseases that manifest more than 300 weeks after last employment. Section 301(c)(2) of the Pennsylvania’s Workman’s Compensation Act, 77 P.S. § 411(2) removes these delayed manifested occupational disease claims from the scope of the Act. Since the Act’s inception, most courts have held that late manifestation (over 300 weeks) deprived the claimant of a recovery under the Act, but did not remove the employer’s immunity from suit. In an opinion issued in November 2013, Justice Todd, writing for herself and four other justices, held that the statute’s exclusion of late-manifesting occupational diseases (after 300 weeks) does not leave claimants without a remedy; the statute simply removes the latent disease cases from the purview of the Act, and returns them to the vicissitudes of common law litigation. Tooey v. AK Steel Corp., 81 A.3d 851 (2013).

The Tooey decision has profound implications for how occupational disease litigation claims will be litigated.  For decades, Pennsylvania juries were treated to a faux spectacle that suggested that plaintiffs, with claimed occupational diseases, were the “victims,” of remote suppliers’ failure to warn, when in reality their diseases were largely or totally the result of employer and employee negligence. Not only will plaintiffs sue their employers, but third-party vendors will seek contribution or indemnification from negligent employers. Employers will assert comparative negligence and assumption of risk defenses, which will give the lie to the plaintiffs’ claims of inadequate warnings from the remote suppliers.  Just possibly, Tooey will let the truth come out.

Posted in Learned and sophisticated intermediary, Trial Procedure | Comments Off on Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases

The Capture of the Public Health Community by the Litigation Industry

February 10th, 2014

The American Public Health Association (APHA) is a significant organization ostensibly committed to the improvement of public health. Among its many activities, the APHA publishes a journal, the American Journal of Public Health.  Here is how the APHA describes itself and its activities to advance public health:

“The American Public Health Association champions the health of all people and all communities. We strengthen the profession of public health, share the latest research and information, promote best practices and advocate for public health issues and policies grounded in research. We are the only organization that combines a 140-plus year perspective, a broad-based member community and the ability to influence federal policy to improve the public’s health.”

How could anyone be against the APHA?

A dubious development in the APHA’s history was its evolution as a tool of the litigation industry.  In 2004, after several years of lobbying, agents of the litigation industry managed to push a policy statement past the Association’s leadership, to condemn the requirement of evidence-based reasoning in federal courts in the United States.

The litigation industry’s victory is memorialized in the “Final Minutes of Meetings of the APHA Governing Council, ” held in November 2004, when the industry’s attack on evidence-based science and data transparency, known as “Policy Number: 2004-11 Threats to Public Health Science,” was adopted as an APHA policy statement.

“2004-11” was published in the American Journal of Public Health and is still available on the APHA website, as Policy Number: 2004-11 Threats to Public Health Science.  I have excerpted contentions and recommendations from the APHA policy, in the left column of the chart, below.  My comments are on the right.

 

APHA Policy

Comment
“Acknowledging that within science, absolute proof and perfect information are rare;” Notice the false dichotomy between absolute proof and perfect information and the entire remaining spectrum of scientific information.  This dichotomization has been part of the litigation strategy of passing off hypotheses, preliminary conclusions, unreplicated findings, etc., as though they were acceptable bases for causal conclusions.
“Recognizing that special interests have exploited the nature of science, specifically scientific uncertainty, to delay protective legal and/or regulatory action;” Notice the asymmetry of the accusations; the APHA apparently has no concern for “special interests” that exploit the nature of science by passing off hypotheses as conclusions, and seek to accelerate protective legal and regulatory action by manufacturing faux scientific conclusions.
“Acknowledging that some public health decisions must be made in the absence of perfect scientific information;” “Le mieux est l’ennemi du bien.” But isn’t the good also the enemy of the shabby, dodgy, and fraudulent? Notice again the false dichotomy between “perfect” information and everything else, as though our failing to achieve the perfect opens the door to the worst. True, of course, that sometimes action is needed on incomplete records, but such action is rarely needed for compensation claims.
“Recognizing that special interests, under the guise of a call for “sound science” have sponsored and promoted changes in public policy that have weakened and continue to threaten public health protections;” If the call for sound science cannot be sustained, then this rhetorical gambit will blowback hard on those “special interests.”  Why are these putative scientists, at APHA, so afraid of sound science?
“Recognizing that special interests have challenged highly regarded public health research and researchers, and inappropriately characterized established scientific methods as ‘junk science’;” Mon Dieu!  How cheeky of those special interests.  See the discussion of Dr. Barry S. Levy, below.
“Recognizing that the Daubert decision has propagated misinterpretations and misapplications of scientific principles relied upon throughout the public health sciences, such as insisting that any epidemiologic study that is relied on to support causation demonstrate a twofold increase in risk as well as a reliance on significance testing to determine which scientific findings are to be allowed as evidence;” This contention misunderstands the basic nature of evidence law. Studies, whether they have statistically significant results, or not, are rarely admissible in evidence.  What is admissible, or not, are opinions of duly qualified expert witnesses, who explain and justify the epistemic warrant for their opinions.  With respect to general causation opinions, expert witnesses will often have to show that they have properly ruled out chance, bias, and confounding to arrive at a causal conclusions.  Significance testing can be abused, in both directions, but the APHA ignores the need for having some quantitative approach to assess random variability. As for relative risks greater than two, the APHA is correct that general causation may often be found with small relative risks, but the attribution of causation in an individual claimant often can be made only on probabilistic inferences that will require relative risks greater than two, or even larger.
“Recognizing that special interests are engaged in a campaign to extend Daubert’s reach to those states that have not embraced prescriptive definitions of scientific reliability.” So the APHA makes common cause with those “special interests,” which would abolish all limits on the admissibility of expert witness opinions, and all normative assessments of scientific research.  This position ignores the prescriptive aspect of methodology, and the nature of epistemic warrant in a methodology.

 

What follows from these contentions? 

“Therefore, APHA:”

“Opposes legislation or administrative policies that attempt to define the characteristics of valid public health science, or dictate prescriptive scientific methodologies; and” Admittedly, defining good science is very difficult, but the law often works like science as defining health as the absence of disease.  There are obviously some well-known pathologies of scientific method, and it hardly seems extravagant to urge courts to avoid flaws, fallacies, and fraud.  
“Supports the efforts of other scientific organizations to promote the government’s ability to utilize the best available science to protect the public’s health; and” Of course, sometimes the “best” available science is rather shabby. 
“Urges friend of the court briefs that address the problem inherent in the adoption of Daubert and Daubert-like court rulings, the application of Daubert in regulatory proceedings, and when judges misinterpret scientific evidence in their implementation of the Daubert ruling.” We do not see many APHA-types deploring jury verdicts that offend scientific sensibilities; and so the APHA’s urging here seems again rather one-sided and partisan.  The fact, however, that judges’ misinterpretations of scientific evidence can be criticized publicly is one of the key differences that separates judicial gatekeeping from the black box of jury determinations.

In 2005, the APHA published, in its journal, APJH, a special supplement, “Scientific Evidence and Public Policy,” with

“academic analysis of the conflicts arising in the use of science in regulatory, civil and criminal proceedings. This special issue examines how recent developments in the legal and regulatory arenas have emboldened corporations involved in civil litigation and regulatory proceedings to accuse adversaries of practicing ‘junk science’.”

Apparently, the APHA was not, and is not, concerned with the emboldening the  litigation industry and its efforts to subvert the truth-finding function of civil litigation. 

David Michaels served as the guest editor for the APJH supplement.  Michaels repeated many of the contentions of the 2004 Policy Statement, above, and he added some new ones of his own:

  • Judges are no better than juries in assessing scientific evidence.
  • Scientists evaluate all the evidence by applying a “weight-of-the-evidence” approach.
  • Uncertainty in science is normal and does not mean the underlying science flawed.

David Michaels, “Editorial: Scientific Evidence and Public Policy,” 95 (Supp. 1) Am. J. Pub. Health S5 (2005). These are all serious half truths.  Many judges are quite astute when evaluating scientific evidence, but even the lowest aptitude judges must give articulated reasons for their decisions, which opens up a public process of comment, correction, and criticism.  Juries vote in secret, without having to explain or justify their verdicts.  Scientists, metaphorically speaking, weigh evidence, as do non-scientists, but this opaque metaphor hardly explicates the process of how scientists arrive at conclusions about causal relationships.  And uncertainty is a condition of many scientific fields, but the error lies in trying to pass off tentative, uncertain, preliminary observations and findings as knowledge.

Michaels sees the development of judicial gatekeeping as favoring “the powerful,” and hurting “the weak and vulnerable.” Id. Michaels did not seem to mind if his editorial recommendations favored the litigation industry and hurt the truth.  He now heads up the Occupational Health & Safety Administration.

Here is how Michaels and the APHA described the funding for the AJPH supplement:

“Support for the supplement was provided through unrestricted funding to the Project on Scientific Knowledge and Public Policy (SKAPP) from the Common Benefit Litigation Trust, a fund established by court order in the Silicone Gel Breast Implant Products Liability Litigation. SKAPP is an initiative of scholars that examines the application of scientific evidence in the legal and regulatory arenas. SKAPP is based at the George Washington University School of Public Health and Health Services; more information is available at www.DefendingScience.org.”

See APHA website <http://www.apha.org/about/news/pressreleases/2005/05arenas.htm>, last visited on February 10, 2014.

This pseudo-disclosure is perhaps the most fraudulent aspect of the entire APHA enterprise.  The Common Benefit Trust was a fund that was held back from settlement monies paid by defendants in the silicone gel breast implant litigation.  The Trust was nothing more than the Plaintiffs’ Steering Committee’s war chest, from which it could advance litigation goals within MDL 926 (silicone breast implant cases).  Ironically, the appointment of neutral, court-appointed expert witnesses led to the triumph of “sound science,” and the collapse of the plaintiffs’ counsel house of cards.  Rather than returning their litigation expense fund to the claimants, the plaintiffs’ counsel found a more worthwhile recipient — SKAPP — to advance their litigation goals, if not for MDL 926, then for the next MDL, and the next, and the next….  See SKAPP A LOT; and Conflicted Public Interest Groups.

* * * * * * *

The same year that the APHA published the SKAPP-inspired and funded challenges to Federal Rules of Evidence 702, the APHA awarded its most prestigious award, the Sedgwick Medal, to a physician whose opinions had routinely been found to be unreliable and irrelevant in various litigation industry efforts. “Barry Levy Wins APHA’s Oldest and Most Prestigious Award, the Sedgwick Medal.” (December 11, 2005).

Perhaps the APHA had Levy in mind when it complained that “special interests have challenged highly regarded public health … researchers….”  Dr. Levy seems to have less favorable accolades from trial and appellate judges.  For instance, one federal judge found Levy engaged in a dubious enterprise to manufacture silicosis claims in Mississippi.  In re Silica Products Liability Litigation, 398 F. Supp. 2d 563, 611-16, 622 & n.100 (S.D. Texas 2005) (expressing particular disappointment with Dr. Barry 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).[1] Interestingly, Judge Jack’s opinion was not mentioned in the APHA press release for Dr. Levy’s award ceremony.


[1] See 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 involved). See also Lofgren v. Motorola, Inc., 1998 WL 299925, No. CV 93-05521 (Ariz. Super. Ct., Maricopa Cty. June 1, 1998); Harman v. Lipari, N.J. L. Div. GLO-L-1375-95, Order of Nov. 3, 2000 (Tomasello, J.) (barring the use of Barry Levy in class action for medical monitoring damages); Castellow v. Chevron USA, 97 F.Supp. 2d 780, 793-95 (S.D. Tex. 2000); Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007); Watts v. Radiator Specialty Co., 990 So. 2d 143 (Miss. 2008); Aurand v. Norfolk So. Ry., 802 F.Supp.2d 950 (2011); Mallozzi v. Ecosmart Technologies, Inc., 2013 WL 2415677, No. 11-CV-2884 (SJF)(ARL) (E.D.N.Y. May 31, 2013).

Posted in Conflicts of Interest, Expert Witnesses, Rule 702 | Comments Off on The Capture of the Public Health Community by the Litigation Industry