In 1991, Peter Huber, discussing traumatic cancer claims, wrote:
“After years of floundering in the junk science morass of traumatic cancer, judges slowly abandoned sequence-of-events logic, turned away from the sympathetic speculations of family doctors, and struggled on to the higher and firmer ground of epidemiology and medical science. Eventually, the change of heart among appellate judges was communicated back down to trial judges and worker’s compensation boards, and traumatic cancer went into almost complete remission.”
Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom 55-56 (1991).
With the advent of Daubert and meaningful gatekeeping of expert witness opinion testimony, the traumatic cancer claims did recede. For a while. Plaintiffs’ counsel, and stalwart opponent of epistemic standards for scientific claims in court, Kenneth Chesebro attacked Huber’s précis of the traumatic cancer law and science. Kenneth J. Chesebro, “Galileo’s Retort: Peter Huber’s Junk Scholarship,” 42 Am. Univ. L. Rev. 1637 (1993). Defenses of the dubious science continue to appear, although mostly in non-peer-reviewed publications.[1]
One of the more disturbing implications of the West Virginia Supreme Court’s decision in Harris v. CSX Transportation, Inc., 232 W.Va. 617, 753 S.E.2d 275 (2013), was the Court’s reliance upon its own, recent approval of traumatic cancer claims. The Harris Court cited, with approval, a 2002 traumatic cancer case, State ex rel. Wiseman v. Henning, 212 W.Va. 128, 569 S.E.2d 204 (2002). The Wiseman case involved a specious claim that a traumatic rib injury caused multiple myeloma, a claim at odds with scientific method and observation. The West Virginia Supreme Court blinked at the challenge to the physician expert witness who advanced the causal claim in Wiseman; and in Harris, the Court made clear that blinking is what trial courts should do when confronted with methodological challenges to far-fetched causal opinions.
A couple of years ago, the New York Times ran an article about traumatic cancer. C. Claiborne Ray, “Injury and Insult” (Nov. 5, 2012), responding to the question “Is it possible for cancer to develop as a result of an injury?” Here is how Times science reporter responded:
A. “It’s a common myth that injuries can cause cancer,” the American Cancer Society says on its Web site. Until the 1920s, some doctors believed trauma did cause cancer, “despite the failure of injury to cause cancer in experimental animals.” But most medical authorities, including the cancer society and the National Cancer Institute, see no such link. The more likely explanation, the society suggests, is that a visit to the doctor for an injury could lead to finding an existing cancer.
Other possibilities are that scar tissue from an old trauma could look like a cancerous lesion and that an injured breast or limb would be more closely watched for cancer to develop.
Ms. Ray went on to note a published study, in which would-be myth-busters presented observational data purportedly showing a relationship between physical injury and subsequent breast cancer. The paper cited by Ms. Ray was a report on a small case-control study done by investigators at the Department of Geography, Lancaster University. See Jan Rigby, et al., “Can physical trauma cause breast cancer?” 11 Eur. J. Cancer. Prev. 307 (2002). The study consisted of 67 breast cancer cases and 134 controls, matched on age, family history, age of menarche, parity, age at first birth, and menopausal status.
Not surprisingly, considering its small size, the Rigby study reported no statistically significant differences for several factors known to be associated with breast cancer: social class, education, residence, smoking and alcohol consumption. Although lacking power to detect differences of known risk factors, this study turned up a large, statistically significant association between physical trauma and breast cancer:
“Women with breast carcinoma were more likely to report physical trauma to the breast in the previous 5 years than were the controls (odds ratio (OR) 3.3, 95% confidence interval (CI) 1.3-10.8, P < 0.0001).”
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“More likely to [self-]report” hardly implies causation, but the authors jumped not only to a causal explanation but to a causal conclusion:
* * * * *
“In conclusion, recall bias is an unlikely explanation for these results in view of the nature and severity of physical trauma. Models of epithelial cell generation indicate that a causal link between physical trauma and cancer is plausible. A latent interval between cancer onset and presentation of under 5 years is also plausible. The most likely explanation of the findings is that physical trauma can cause breast cancer.”
Rigby at 307.
The Rigby study is a valuable demonstration of how malleable researchers can be in discovering plausible explanations for their data. The authors fail to discuss the natural history of breast carcinoma, such as tumor doubling time, which would make their five-year window decidedly implausible. The Rigby paper also demonstrates how strident researchers can be in claiming that they have produced a study that has eliminated bias in observational research, when they have barely scratched the surface of bias or confounding. Magical thinking is not the exclusive domain of lawyers.
Until reading the Harris and Wiseman cases, I had thought that the legal system had graduated from the “mythology” of traumatic cancer cases.[2] To be sure, in the past, any number of physicians have supported traumatic cancer claims, in print and in the courtroom.[3] Some authors attempted to put some rational limits on the extent of the traumatic cancer claims.[4] By 1947, at least, the trauma theory was criticized in leading texts.[5] In 1974, the Mayo Clinic published a review that emphasized the lack of experimental evidence to support the claim that uncomplicated trauma causes cancer.[6] The law review literature attempted to make sense of the compensation-frenzied courts, without much success.[7]
Many cases from most jurisdictions have approved traumatic cancer claims. Some are set out below. Some courts heroically resisted the pro-compensation Zeitgeist, usually on case-specific evidentiary issues.[8]
In New York, judges seem to be well aware that post hoc ergo propter hoc is a fallacy. Cassano v. Hagstrom, 5 N.Y.2d 643, 159 N.E.2d 348, 187 N.Y.S.2d 1 (1959) (affirming dismissal of case based because of plaintiffs’ attempt to use fallacious reasoning in the form of “post hoc ergo propter hoc”); Holzberg v. Flower & Fifth Ave. Hosps., 39 AD 2d 526 (N.Y. 1st Dep’t 1972). Still, the New York courts struggled with traumatic cancer claims, and appeared to oscillate wildly without clear guidance on whether or to what extent the courts could reject specious claiming supported by speculative or unreliable expert witness opinion testimony.[9] Given the current hostility to gatekeeping of expert witness opinion, a recrudescence of traumatic cancer claims is likely.
Opinions Approving Causation in Traumatic Cancer Cases
California
Santa Ana Sugar Co. v. Industrial Accid. Comm’n, 170 P. 630, 630 (Cal. Dist. Ct. App. 1917)
Colorado
Canon Reliance Coal Co. v. Indus. Comm’n, 72 Colo. 477, 211 P. 868, 869-70 (1922) (cancer caused by being hit on cheek with a lump of coal)
Georgia
National Dairy Prods. Corp. v. Durham, 154 S.E.2d 752, 753-54 (Ga. Ct. App. 1967)
Kentucky
Louisville Ry v. Steubing’s Adm’r, 136 S.W. 634, 634 (Ky. Ct. App. 1911)
Louisiana
Reed v. Mullin Wood Co., 274 So. 2d 845, 846-47 (La. Ct. App. 1972), cert. denied, 275 So. 2d 729, 791 (La. 1973);
Thompson v. New Orleans Ry. & Light Co., 83 So. 19, 20 (La. 1919)
Michigan
Wilson v. Doehler-Jarvis Div. of Nat’l Lead Co., 353 Mich. 363, 91 N.W.2d 538, 539-40 (1958) (blow to lip caused cancer)
Mooney v. Copper Range RR, 27 N.W.2d 603, 604 (Mich. 1947)
Minnesota
Daly v. Bergstedt, 267 Minn. 244, 126 N.W.2d 242, 247–48 (1964) (affirming jury finding of causation between traumatic leg fracture and breast cancer; six physicians testified against causation; one stated cancer “could” result from trauma; imagining that scientific and legal standards of causation differ)
Pittman v. Pillsbury Flour Mills, Inc., 48 N.W.2d 735, 736 (Minn. 1951)
Hertz v. Watab Pulp & Paper Co., 237 N.W. 610, 611 (Minn. 1931)
Austin v. Red Wing Sewer Pipe Co., 163 Minn. 397, 204 N.W. 323, 323-24 (Minn. 1925) (cancer developed one year after worker was hit in the face with coal)
Gaetz v. City of Melrose, 193 N.W. 691, 692 (Minn. 1923)
Missouri
Vitale v. Duerbeck, 338 Mo. 536, 92 S.W.2d 691, 695 (1936)
New Hampshire
Jewell v. Grand Trunk Ry, 55 N.H. 84 (1874) (reversing traumatic cancer verdict on other grounds)
New Mexico
White v. Valley Land Co., P.2d 707, 708-10 (N.M. 1957)
Ohio
Hanna v. Aetna Ins., 24 Ohio Misc. 27, 52 Ohio Op. 2d 316, 259 N.E.2d 177, 177-79 (Ohio Mun. Ct. Dayton 1970)(breast lump found three months after car accident)
Glenn v. National Supply, 129 N.E.2d 189, 190-91 (Ohio Ct. App. 1954)
Oregon
Devine v. Southern Pacific Co., 207 Or. 261, 295 P.2d 201 (1956) (holding that physician’s testimony as to “probable” causation between shoulder fracture and lung cancer was sufficient; jury verdict for plaintiff reversed on other grounds).
Pennsylvania
Baker v. DeRosa, 413 Pa. 164, 196 A.2d 387, 389–90 (Pa. 1964)
Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 103 A.2d 681, 684(1954) (the fact that breast cancer was found in the same place as the injury-caused bruise helped establish causation);
Southern S.S. Co. v. Norton, 41 F. Supp. 103 (E.D. Pa. 1940) (trauma to skull and lower back held to have caused lung cancer)
Tennessee
Koehring-Southern & Am. Mut. Ins. Co. v. Burnette, 464 S.W.2d 820, 821 (Tenn. 1970)
Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 10 (Tenn. 1951)
Rhode Island
Valente v. Bourne Mills, 77 R.I. 274, 278-79, 75 A.2d 191, 193-94 (1950) (adopting house of cards position in which any rational inference suffices even if not supported by expert medical opinion)
Emma v. A.D. Julliard & Co., 75 R.I. 94, 63 A.2d 786, 787-89 (R.I. 1949)(plaintiff had malignant tumor removed from her breast seven weeks after being hit with a can of juice)
Texas
Traders & General Insur. Co. v. Turner, 149 S.W.2d 593, 597-98 (Tex. Civ. App. 1941) (testicular cancer)
Virginia
Ellis v. Commonwealth Dep’t of Highways, 28 S.E.2d 730, 731-32, 735 (Va. 1944) (accepting post-hoc reasoning “[f]acts prevail over possibilities or probabilities”)
Winchester Milling Corp. v. Sencindiver, 138 S.E. 479, 480-81 (Va. 1927)
[1] See, e.g., Melvin A. Shiffman, Can Trauma Cause or Accelerate the Growth of Cancer? Forensic Examiner 6 (Fall 2004).
[2] See Manasco v. Insurance Co. of State of Pennsylvania, 89 S.W.3d 239 (Tex. App. Texarkana 2002) (affirming denial of benefits to worker who claimed head injury caused brain tumor; citing to epidemiological studies that failed to show an association between trauma and brain tumors).
[3] See, e.g., George R. Parsons, “Sufficiency of Proof in Traumatic Cancer Cases,” 2 Tort & Med. Year Book 335 (1962); Stoll & Crissey, “Epithelioma from Single Trauma,” 62 N.Y. St. J. Med. 496 (Feb. 15, 1962); Wilhelm C. Hueper, Trauma and Cancer (1959); Arden R. Hedge, “Can a Single Injury Cause Cancer?” 90 Calif. Med. 55 (1959); R. Crane, “The Relationship of a Single Act of Trauma to Subsequent Malignancy,” in Alan R. Moritz & David S. Helberg, eds., Trauma and Disease 147 (1959); Shields Warren, M.D., “Minimal criteria required to prove causation of traumatic or occupational neoplasms,” Ann. Surgery 585 (1943); Bishop, “Cancer, Trauma, and Compensation,” 32 So. Med. J. 302 (1939); Knox, “Trauma and Malignant Tumors, 26 Am. J. Surg. 66, 69-70 (1934); William B. Coley & Norman L. Higinbotham, “Injury as a causative factor in the development of malignant tumors,” 98 Ann. Surg. 991 (1933); Wainwright, “Single Trauma, Carcinoma and Workman’s Compensation,” 5 Am. J. Surg. 433 (1928); Alson R. Kilgore & Curtis E. Smith, “Industrial liability for cancer,” 25 Calif. & Western Med. 70 (1926); Charles Phelps, “The relation of trauma to cancer formation,” 51 Ann. Surgery 609 (1910).
[4] James Ewing, “Modern Attitudes Toward Traumatic Cancer,” 19 Arch. Path. 690, 692 (1935); James Ewing, “The Relation of Trauma to Malignant Tumors,” Am. J. Surg. 30, 31-34 (Feb. 1926).
[5] See, e.g., James A. Tobey, Public Health Law 321 (3ed 1947) (“Although there is little, if any, scientific evidence to prove conclusively that malignant growths such as carcinoma, sarcoma, and other forms of cancer are ever caused by single blows, wounds, injuries, or other forms of trauma, the courts have awarded damages in a number of instances to persons who have developed cancers following single injuries.”) (internal citations omitted).
[6] George R. Monkman, Gregg Orwoll & John C. Ivins, “Trauma and Oncogenesis,” 49 Mayo Clinic Proc. 157 (1974).
[7] The trauma theory of carcinogenesis was discussed and questioned in several law review articles. See, e.g., Orrin E. Tilevitz, “Judicial Attitudes Towards Legal and Scientific Proof of Cancer Causation,” 3 Colum. J. Envt’l L. 344 (1977); Donald J. Ladanyi, “Impact Trauma As ‘Legal Cause’ of Cancer,” 20 Cleveland State L. Rev. 409 (1971); Theodore Dyke, “Traumatic Cancer?” 15 Clev.-Marshall L. Rev. 472 (1966); Jerry G. Elliott, “Traumatic cancer and ‘an old misunderstanding between doctors and lawyers’,” 13 U. Kan. L. Rev. 79 (1964); Comment, Sufficiency of Proof in Traumatic Cancer: A Medico-Legal Quandary, 16 Ark. L. Rev. 243 (1962); Comment, “Sufficiency of Proof in Traumatic Cancer Cases,” 46 Cornell L.Q. 581 (1961); Adelson, Injury and Cancer, 5 Western Res. L. Rev. 150 (1954).
[8] State Compensation Ins. Fund v. Kindig, 445 P.2d 72 (Colo. 1968) (head injury held not to have caused leukemia 68 days later); Slack v. C.L. Percival Co., 198 Iowa 54, 199 N.W. 323, 326 (1924) (anticipating Daubert by rejecting expert witness opinion that was “wholly in the realm of conjecture, speculation, and surmise”); Ortner v. Zenith Carburetor Co., 207 Mich. 610, 175 N .W. 122 (1919) (holding that 30 months was too long for a claim that accident that crushed worker’s fingers caused blood poisoning and penile cancer); Stordahl v. Rush Implement Co., 417 P.2d 95 (Mont. 1966) (rejecting traumatic causation of malignant tumor); Tonkovich v. Dep’t of Lab. & Indus., 31 Wash. 2d 220, 195 P.2d 638 (1948) (injury to foot held not to have caused abdominal cancer)
[9] See Dennison v. Wing, 279 App. Div. 494, 110 N.Y.S.2d 811, 813 (1952) (rejecting cancer claim when latency was two months on grounds that cancer took longer to develop); Sikora v. Apex Beverage Corp., 282 App. Div. 193, 196-97 (1953) (reversing judgment for plaintiff based upon jury’s finding that slip and fall accelerated breast cancer based upon lack of evidentiary support), aff’d, 306 N.Y. 917, 119 N.E.2d 601 (1954); Frankenheim v. B. Altman & Co., 13 Misc. 2d 1079, 1080-81, 177 N.Y.S.2d 2 (Bronx Cty. S.Ct. 1958) (granting motion to set aside verdict for plaintiff based upon traumatic cancer claim on grounds of insufficient evidence), app. dism’d, 8 App. Div. 2d 809 (First Dep’t 1959). But see McGrath v. Irving, 24 App. Div. 2d 236, 265 N.Y.S.2d 376 (1965) (affirming jury verdict based upon claim that plaintiff’s swallowing glass in car accident caused or accelerated development of laryngeal cancer); Mattfield v. Ward Baking Co., 14 App. Div. 2d 942, 221 N.Y.S.2d 224, 224 (1st Dep’t 1961) (affirming award for traumatic cancer based upon the “usual” conflicting expert witness testimony) Mattfield v. Ward Baking Co., 14 App. Div. 2d 942, 942 (1961) (affirming workman’s compensation award for “aggravation” of cancer, which resulted after “the usual conflict of medical opinion”); Pezzolanti v. Green Bus Lines, 114 App. Div. 2d 553, 553-54, 494 N.Y.S.2d 168, 169 (1985) (affirming workman’s compensation award for disability to wrist, which resulted from “trauma” of hitting pothole, which in turn injured asymptomatic wrist destabilized by pre-existing cancer).
