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On Praising Judicial Decisions – In re Viagra

February 8th, 2021

We live in strange times. A virulent form of tribal stupidity gave us Trumpism, a personality cult in which it impossible to function in the Republican party and criticize der Führe. Even a diehard right-winger such as Liz Cheney, who dared to criticize Trump is censured, for nothing more than being disloyal to a cretin who fomented an insurrection that resulted in the murder of a Capital police officer and the deaths of several other people.[1]

Unfortunately, a similar, even if less extreme, tribal chauvinism affects legal commentary, from both sides of the courtroom. When Judge Richard Seeborg issued an opinion, early in 2020), in the melanoma – phosphodiesterase type 5 inhibitor (PDE5i) litigation,[2] I praised the decision for not shirking the gatekeeping responsibility even when the causal claim was based upon multiple, consistent statistically significant observational studies that showed an association between PDE5i medications and melanoma.[3] Although many of the plaintiffs’ relied-upon studies reported statistically significant associations between PDE5i use and melanoma occurrence, they also found similar size associations with non-melanoma skin cancers. Because skin carcinomas were not part of the hypothesized causal mechanism, the study findings strongly suggested a common, unmeasured confounding variable such as skin damage from ultraviolet light. The plaintiffs’ expert witnesses’ failure to account for confounding was fatal under Rule 702, and Judge Seeborg’s recognition of this defect, and his willingness to go beyond multiple, consistent, statistically significant associations was what made the decision important.

There were, however, problems and even a blatant error in the decision that required attention. Although the error was harmless in that its correction would not have required, or even suggested, a different result, Judge Seeborg, like many other judges and lawyers, tripped up over the proper interpretation of a confidence interval:

“When reviewing the results of a study it is important to consider the confidence interval, which, in simple terms, is the ‘margin of error’. For example, a given study could calculate a relative risk of 1.4 (a 40 percent increased risk of adverse events), but show a 95 percent ‘confidence interval’ of .8 to 1.9. That confidence interval means there is 95 percent chance that the true value—the actual relative risk—is between .8 and 1.9.”[4]

This statement about the true value is simply wrong. The provenance of this error is old, but the mistake was unfortunately amplified in the Third Edition of the Reference Manual on Scientific Evidence,[5] in its chapter on epidemiology.[6] The chapter, which is often cited, twice misstates the meaning of a confidence interval:

“A confidence interval provides both the relative risk (or other risk measure) found in the study and a range (interval) within which the risk likely would fall if the study were repeated numerous times.”[7]

and

“A confidence interval is a range of possible values calculated from the results of a study. If a 95% confidence interval is specified, the range encompasses the results we would expect 95% of the time if samples for new studies were repeatedly drawn from the same population. Thus, the width of the interval reflects random error.”[8]

The 95% confidence interval does represent random error, 1.96 standard errors above and below the point estimate from the sample date. The confidence interval is not the range of possible values, which could well be anything, but the range of reasonable compatible estimates with this one, particular study sample statistic.[9] Intervals have lower and upper bounds, which are themselves random variables, with approximately normal (or some other specified) distributions. The essence of the interval is that no value within the interval would be rejected as a null hypothesis based upon the data collected for the particular sample. Although the chapter on statistics in the Reference Manual accurately describes confidence intervals, judges and many lawyers are misled by the misstatements in the epidemiology chapter.[10]

Given the misdirection created by the Federal Judicial Center’s manual, Judge Seeborg’s erroneous definition of a confidence interval is understandable, but it should be noted in the context of praising the important gatekeeping decision in In re Viagra. Certainly our litigation tribalism should not “allow us to believe” impossible things.[11] The time to revise the Reference Manual is long overdue.

_____________________________________________________________________

[1]  John Ruwitch, “Wyoming GOP Censures Liz Cheney For Voting To Impeach Trump,” Nat’l Pub. Radio (Feb. 6, 2021).

[2]  In re Viagra (Sildenafil Citrate) and Cialis (Tadalafil) Prods. Liab. Litig., 424 F. Supp. 3d 781 (N.D. Cal. 2020) [Viagra].

[3]  See “Judicial Gatekeeping Cures Claims That Viagra Can Cause Melonoma” (Jan. 24, 2020).

[4]  Id. at 787.

[5]  Federal Judicial Center, Reference Manual on Scientific Evidence (3rd ed. 2011).

[6]  Michael D. Green, D. Michal Freedman, & Leon Gordis, “Reference Guide on Epidemiology,” in Federal Judicial Center, Reference Manual on Scientific Evidence 549 (3rd ed. 2011).

[7]  Id. at 573.

[8]  Id. at 580.

[9] Michael O. Finkelstein & Bruce Levin, Statistics for Lawyers 171, 173-74 (3rd ed. 2015). See also Sander Greenland, Stephen J. Senn, Kenneth J. Rothman, John B. Carlin, Charles Poole, Steven N. Goodman, and Douglas G. Altman, “Statistical tests, P values, confidence intervals, and power: a guide to misinterpretations,” 31 Eur. J. Epidem. 337 (2016).

[10]  See, e.g., Derek C. Smith, Jeremy S. Goldkind, and William R. Andrichik, “Statistically Significant Association: Preventing the Misuse of the Bradford Hill Criteria to Prove Causation in Toxic Tort Cases,” 86 Defense Counsel J. 1 (2020) (mischaracterizing the meaning of confidence intervals based upon the epidemiology chapter in the Reference Manual).

[11]  See, e.g., James Beck, “Tort Pandemic Countermeasures? The Ten Best Prescription Drug/Medical Device Decisions of 2020,” Drug and Device Law Blog (Dec. 30, 2020) (suggesting that Judge Seeborg’s decision represented the rejection of plausibility and a single “association” as insufficient); Steven Boranian, “General Causation Experts Excluded In Viagra/Cialis MDL,” (Jan. 23, 2020).

Posted in Confounding, Reference Manual on Scientific Evidence, Rule 702, statistical evidence | No Comments »

American Law Institute – Medical Monitoring vs. Medical Mongering

February 5th, 2021

One of the key activities of the American Law Institute (ALI) has been the researching, writing, and publication of Restatements.[1] According to the ALI’s website, the basic idea was that the ALI “should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was.” This self-appointed task has a huge influence on the development of the law in the United States, and indeed around the world, mostly for the better. Restatements can and often do reduce uncertainty and eliminate unnecessary complexity and obfuscation. The ALI also holds itself out “promote those changes which will tend better to adapt the laws to the needs of life.” The ALI has thus characterized its Restatements as having a “critical and constructive” goal as well as a clarifying and simplifying function.

This ambiguity in its mission statement makes ALI Restatement provisions occasionally controversial on occasion. Controversy can arise from the ALI’s addressing factual situations “not yet discussed by courts or dealt with by legislatures….” Perhaps more disconcerting, however, are situations that have been addressed by courts and legislatures at length, but where the ALI attempts to impose its policy judgments in place of those that carry the imprimatur of a majority of jurisdictions in the United States.

Take the ALI’s recently proposed “restatement” [sic] of medical monitoring law in the Restatement (Third) of Torts: Concluding Provisions:[2]

“A person can recover for medical monitoring expenses, even absent present bodily harm, if:

(a) an actor’s tortious conduct has exposed a person to a significant risk of serious future bodily harm;

(b) the exposure makes medical monitoring reasonable and necessary in order to prevent or mitigate the future bodily harm;

(c) the person has incurred the monitoring expense, will incur the monitoring expense, or would incur the monitoring expense if he or she could afford it; and;

(d) the actor’s liability is not indeterminate.”

Remarkably, the ALI has “restated” the law of medical monitoring to dispense with the requirement of present injury. The ALI Council Draft claims a slim majority of courts favor the abandonment of a present injury predicate, but the scholarship for this claim is shaky at best, as shown in an important recent article by Mark Behrens and Christopher Appel.[3]

Each subpart of the ALI’s proposed rule is problematic. Subpart (a) creates a requirement of “significant risk of serious future bodily harm.” Although there might be general agreement on what is serious bodily harm, the predicate of “significant risk” is incredibly vague. Risk is undefined, and by all rights should represent a cause ex ante, but the lawsuit industry often uses “risk” to connote a possible cause. At the very least, the ALI should clarify that the risk of subpart (a) is one that would pass muster as a general cause under the relevant substantive and evidentiary law. Furthermore, what might appear to be a “significant” risk, may be trivial. Consider an exposure to amphibole asbestos that doubled the risk of mesothelioma. If the baseline annual risk of mesothelioma were one in a million, the exposed claimant would consequently have a two in a million risk. A doubling of risk sounds significant and ominous, but the absolute annual attributable risk would be one in a million. The rule leaves open whether the significance of risk should be evaluated by subjective reactions of the jury, or some quantitative measure. If the latter, the rule leaves open whether the measure is relative or absolute risk.

Subpart (b) specifies that “the exposure makes medical monitoring reasonable and necessary in order to prevent or mitigate the future bodily harm.” Some medical monitoring regimens can allow for earlier interventions that are potentially curative, but others simply increase the time between diagnosis and death by moving up the diagnosis date. This subsection leaves open exactly what counts as mitigation of the future harm.

Subpart (c) ignores that many medical monitoring regimes are already a potential claimant’s personal responsibility, and they involve procedures that are covered by health insurance contracts. Given that any “significant risk” would not change the pre-existing need for such screening procedures as mammography in women, prostate-specific antigen in men, lung cancer screening in adults who have engaged in habitual tobacco self-abuse, and the like, this subpart leaves unclear why and how the burden paying for such routine screening should be shifted to the alleged tortfeasor.

Subpart (d) specifies that the rule would not apply if the defendant’s liability is indeterminate, presumably because of the number of potential claimants. Comment g to the Council’s draft provision attempts to explain:

“defendant whose conduct exposes a vast number of people to risk-creating agents or behaviors is not subject to liability for medical monitoring if the defendant is able to show that liability would be highly unpredictable and virtually unlimited.”[4]

Comment g goes on to suggest that the proposed rule would not apply if the liability it creates were:

“likely to exceed the defendant’s resources and insurance coverage and thereby meaningfully reduce monies available to those exposed persons who ultimately develop bodily harm.”[5]

What subpart (d) leaves unclear is how the defendant is suppose to satisfy this burden to prove “indeterminancy.” If the first case in court is one individual’s claim for medical monitoring costs, how does the defendant show that the aggregate liability will become indeterminate at some later date? Is the defendant suppose to present evidence of its insurance coverage, and perhaps interplead its carrier who had denied coverage? Comment g suggests a completely unworkable proof scheme for trial.

One of the key limitations on strict liability was its requirement of “physical harm.” As the Restatement (Second) of Torts made clear:

“harm implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person that person suffers harm.”[6]

For this reason, juries are permitted to return no cause or no damage verdicts in cases brought by asbestos claimants with pleural plaques or pleural thickening without pulmonary impairment.[7]

Although not universal, the better rule, which the ALI should adopt, was articulated by the United States Supreme Court, in Metro-North Commuter Railroad v. Buckley,[8] when it rejected medical monitoring claims for asymptomatic asbestos claimants. In Buckley, the Court acknowledged[9] the obvious without relegating it to an affirmative defense: unlimited and unpredictable liability is sufficient reason in the abstract to going down the road of imposing medical monitoring liability.

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[1]  See Am. L. Inst., Capturing the Voice of The American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 3 (rev. ed. 2015).

[2]  Restatement (Third) of Torts: Concluding Provisions, Council Draft No.

1, Medical Monitoring (Aug. 24, 2020); Restatement (Third) of Torts: Concluding Provisions, Prelim. Draft No. 1, Medical Monitoring (Feb. 3, 2020).

[3]  Mark A. Behrens & Christopher E. Appel, “American Law Institute Proposes Controversial Medical Monitoring Rule in Final Part of Torts Restatement,” 87 Defense Counsel J. 1 (2021).

[4]  Id. at cmt. g.

[5]  Id.

[6]  Restatement (Second) of Torts § 7 (1965).

[7]  See, e.g., Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 605 A.2d 1092 (1992) (rejecting claim that pleural thickening is an injury as a matter of law that requires the assessment of damages). See also James Beck & Mark Herrmann, “No Injury Cheat Sheet,” Drug & Device Law Blog (July 3, 2008).

[8]  Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 433 (1997).

[9]  Id. at 433 (quoting Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 557 (1994)). See also Herbert L. Zarov, Sheila Finnegan, Craig A. Woods, and Stephen J. Kane, “A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?” 12 DePaul J. Health Care L. 1 (2009).

Posted in Medical monitoring, Risk and Risk Factor | 173 Comments »

Lawsuit Industry Advertising Indirectly Stimulates Adverse Event Reporting

February 4th, 2021

The lawsuit industry spends many millions of dollars each year to persuade people that they are ill from the medications they use, and that lawsuit industry lawyers will enrich them for their woes. But does the lawyer advertising stimulate the reporting of adverse events by consumers’ filing of MedWatch reports in the Federal Adverse Event Reporting System (FAERS)?

The question is of some significance. Adverse event reporting is a recognized, important component of pharmacovigilence. Regulatory agencies around the world look to an increased rate of reporting of a specific adverse event as a potential signal that there may be an underlying association between medication use and the reported harm. In the last two decades, pharmacoepidemiologists have developed techniques for mining databases of adverse event reports for evidence of a disproportionate level of reporting for a particular medication – adverse event pair. Such studies can help identify “signals” of potential issues for further study with properly controlled epidemiologic studies.[1]

One of the vexing misuses of pharmacovigilance techniques in the pharmaceutical products litigation is the use of adverse events reporting, either as case reports or in the form of disproportionality analyses to claim causal inference. In some litigations, lawsuit industry lawyers have argued that case reports, in the FAERS, standing alone support their claims of causation.[2] Desperate to make their case through anecdotes, plaintiffs’ counsel will sometimes retreat to the claim that they want to introduce the MedWatch reports in support of a lesser claim that the reports put the defendant on “notice.” Typically, the notice argument leaves open exactly what the content of the notice is, but the clear intent is to argue notice that (1) there is an increased risk, and (2) the defendant was aware of the increased risk.[3]

Standard textbooks on pharmacovigilance and pharmacoepidemiology, as well as regulatory agency guidance, emphatically reject the use of FAERS anecdotes or their transmogrification into disportionality analyses (DPAs) to support causal claims. The U.S. FDA’s official guidance on good pharmacovigilance practices, for example, elaborates on DPAs as an example of data mining, and instructs us that:

“[d]ata mining is not a tool for establishing causal attributions between products and adverse events.”[4]

The FDA specifically cautions that the signals detected by data mining techniques should be acknowledged to be “inherently exploratory or hypothesis generating.”[5] The agency exercises caution when making its own comparisons of adverse events between products in the same class because of the low quality of the data themselves, and uncontrollable and unpredictable biases in how the data are collected.[6] Because of the uncertainties in DPAs, the FDA urges “extreme causation” in comparing reporting rates, and generally considers DPA and similar analyses as “exploratory or hypothesis-generating.”[7]

The European Medicines Agency offers similar advice and caution:

“Therefore, the concept of SDR [Signal of Disproportionate Reporting] is applied in this guideline to describe a ‘statistical signal’ that has originated from a statistical method. The underlying principle of this method is that a drug–event pair is reported more often than expected relative to an independence model, based on the frequency of ICSRs on the reported drug and the frequency of ICSRs of a specific adverse event. This statistical association does not imply any kind of causal relationship between the administration of the drug and the occurrence of the adverse event.”[8]

Because the lawsuit industry frequently relies upon and over-endorses DPAs in its pharmaceutical litigations, inquiring minds may want to know whether the industry itself is stimulating reporting of adverse events through its media advertising.

Recently, two investigators published a study that attempted to look at whether lawsuit industry advertising was associated with stimulation of adverse event reporting in the FAERS.[9] Tippett and Chen conducted a multivariate regression analysis of FAERS reporting with independent variables of Google searches, attorney advertising, and FDA actions that would affect reporting over the course of a single calendar year (mid-2015 to mid-2016). The authors analyzed 412,901 adverse event reports to FAERS, involving 28 groups of drugs that were the subject of solicitous advertising.

The authors reported that they found associations (statistically significant, p < 0.05) for regression coefficients for FDA safety actions and Google searches, but not for attorney advertising. Using lag periods of one, two, three, and four weeks, or one or two months, between FAERS reporting and the variables did not result in statistically significant coefficients for lawyer advertising.

The authors variably described their finding as “preliminarily” supporting a claim that FAERS reporting is not stimulated by “direct attorney submission or drug injury advertising,” or as failing to find “a statistically significant relationship between drug injury advertising and adverse event reports.”[10] The authors claim that their analyses show that litigation advertisements “do not appear to have spurred patients, providers, attorneys, or other individuals to file a FAERS report, as shown in our regression and graphical results.”[11]

There are substantial problems with this study. For most of the 28 drugs and drug groups studied, attorneys made up a very small proportion of all submitters of adverse event reports. The authors present no pre-study power analysis for this aspect of their study. The authors do not tell us how many analyses they have done before the one presented in this journal article, but they do acknowledge having done “exploratory analyses.” Contrary to the 2016 guidance of the American Statistical Association,[12] they present no actual p-values, and they provide no confidence or prediction intervals for their coefficients. The study did not include local television advertising, and so the reported statistical non-significance of attorney advertising must be qualified to show the limitations of the authors’ data.

Perhaps the most serious problem with this observational study of attorney advertising and stimulated reporting is the way in which the authors framed their hypothesis. Advertising stimulates people to call the toll-free number to learn more how they too may hit the litigation jackpot. The point of attorney advertising is designed to persuade people to become legal clients, not to file MedWatch forms. In the following weeks and months that follow, paralegals interview the callers, collect information, and only then FAERs happen. Lag times of one to four weeks are generally irrelevant, as is the hypothesis studied and reported upon in this article.

After decades of working in this area, I have never seen an advertisement that encourages filing a MedWatch report, and the authors do not suggest otherwise. Advertising is only the initial part of a client intake mechanism that would result in the viewers’ making a telephone call, with a subsequent interview by lawfirm personnel, a review of the putative claim, and the viewers’ obtaining and signing retainer agreements and authorizations to obtain medical records. The scope of the study, which looked at FAERS filings and attorney advertisements after short lag periods could not detect an association given how long the recruitment takes.

The authors speculate, without evidence, that the lawsuit industry may discourage their clients from filing MedWatch reports and that the industry lawyers may hesitate to file the reports to avoid serving as a fact witness in their client’s case.[13] Indeed, the authors themselves adduce compelling evidence to the contrary, in the context of the multidistrict litigation over claimed harms from the use of testosterone therapies.

In their aggregate analysis of the 28 drugs and drug groups, the authors found that the lawsuit industry submitted only six percent of MedWatch reports. This low percentage would have been much lower yet but for the very high proportion (68%) of lawyer-submitted reports concerning the use of testosterone. The litigation-driven filings lagged the relevant attorney advertising by about six months, which should have caused the authors to re-evaluate their conclusions and their observational design that looked for correlations within one or two months. The testosterone data shows rather clearly that attorney advertising leads to recruitment of clients, which in turn leads to the filing of litigation-driven adverse event reports.

As the authors explain, attorney advertising and trolling for clients occurred in the summer of 2015, but FAERS reporting did not increase until an extreme burst of filings took place several months later. The authors’ graph tells the story even better:

So the correct conclusion is that attorney advertising stimulates client recruitment, which results in mass filings of MedWatch reports.

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[1]  Sean Hennessy, “Disproportionality analyses of spontaneous reports,” 13 Pharmacoepidemiology & Drug Safety 503, 503 (2004). See also “Disproportionality Analyses Misused by Lawsuit Industry” (Apr. 20, 2020).

[2]  See, e.g., Fred S. Longer, “The Federal Judiciary’s Super Magnet,” 45 Trial 18, 18 (July 2009) (arguing that “adverse events . . . established a causal association between Piccolomal and liver disease at statistically significant levels”).

[3]  See, e.g., Paul D. Rheingold, “Drug Products Liability and Malpractice Cases,” 17 Am. Jur. 1, Trials, Cumulative Supplement (1970 & Supp. 2019) (“Adverse event reports (AERs) created by manufacturers when users of their over-the-counter pain reliever experienced adverse events or problems, were admissible to show notice” of the elevated risk.).

[4]  FDA, “Good Pharmacovigilance Practices and Pharmacoepidemiologic Assessment Guidance for Industry” at 8 (2005) (emphasis added).

[5]  Id. at 9.

[6]  Id.

[7]  Id. at 11.

[8] EUDRAVigilance Expert Working Group, European Medicines Agency, “Guideline on the Use of Statistical Signal Detection Methods in the EUDRAVigilance Data Analysis System,” at 3 (2006) (emphasis added). See also Gerald J. Dal Pan, Marie Lindquist & Kate Gelperin, “Postmarketing Spontaneous Pharmacovigilance Reporting Systems,” in Brian L. Strom & Stephen E. Kimmel and Sean Hennessy, Pharmacoepidemiology at 185 (6th ed. 2020).

[9]  Elizabeth C. Tippett & Brian K. Chen, “Does Attorney Advertising Stimulate Adverse Event Reporting?” 74 Food & Drug Law J. 501 (2020) [Tippett].

[10]  Id. at 502.

[11]  Id.

[12]  Ronald L. Wasserstein & Nicole A. Lazar, “The ASA’s Statement on p-Values: Context, Process, and Purpose,” 70 The Am. Statistician 129 (2016).

[13]  Tippett at 591.

Posted in Causation, Confounding | 350 Comments »

Center for Truth in Science

February 2nd, 2021

The Center for Truth in Science

Well, now I have had the complete 2020 experience, trailing into 2021. CoVid-19, a.k.a. Trump flu happened. The worst for me is now mostly over, and I can see a light at the end of the tunnel. Fortunately it is not the hypoxemic end-of-life light at the end of the tunnel.

Kurt Gödel famously noted that the “the meaning of world is the separation of wish and fact.” The work of science in fields that touch on religion, politics, and other dogmas requires nothing less than separating wish from fact. Sadly, most people are cut off from the world of science by ignorance, lack of education, and social media that blur the distinction between wish and fact, and ultimately replace the latter with the former.

It should go without saying that truth is science and science is truth, but our current crises show that truth and science are both victims of the same forces that blur wish with fact. We might think that a center established for “truth in science” is as otiose as a center for justice in the law, but all the social forces at work to blur wish and fact make such a center an imperative for our time.

The Center for Truth in Science was established last year, and has already weighed in on important issues and scientific controversies that occupy American courtrooms and legislatures. Championing “fact-based” science, the Center has begun to tackle some of the difficult contemporary scientific issues that loom large on the judicial scene – talc, glyphosate, per- and polyfluoroalkyl substances, and other – as well as methodological and conceptual problems that underlie these issues. (Of course, there is no other kind of science than fact-based, but there are many pseudo-, non-fact based knock offs out there.) The Center has already produced helpful papers on various topics, with many more important papers in progress. The Center’s website is a welcomed resource for news and insights on science that matters for current policy decisions.

The Center is an important and exciting development, and its work promises to provide the tools to help us separate wish from fact. Nothing less than the meaning of the world is at stake.

Posted in Evidence, Scientific Evidence, Scientific Publishing, Uncategorized | Comments Off on Center for Truth in Science

Lawsuit Industry Expert Witness Robert Neel Proctor’s Intimidation Tactics

December 25th, 2020

In his autobiography, Sir Karl Popper described one of the most curious and interesting confrontations in 20th century philosophy. While visiting Cambridge University to give a guest lecture, Popper was hectored by the renown chairman of the philosophy department, Ludwig Wittgenstein. While nervously playing with a fireplace poker and waving it about for emphasis, Wittgenstein challenged Popper to provide an example of a moral rule. Popper rejoined “Not to threaten visiting lecturers with pokers,” after which Wittgenstein threw down the poker and stormed out of the room.[1]

A more recent anecdote in this century gives rise to another moral rule, “thou shalt not bully graduate students working for your adversary.”

The law firm of Jones Day, representing tobacco mega-defendant R. J. Reynolds in personal injury lawsuits, was working with Associate Professor Gregg L. Michel, at the University of Texas. Michel needed research assistants to help with this litigation consulting work, and so in 2008, he reached out to J. Matthew Gallman, a professor of history at the University of Florida, to help line up some worker bees. Gallman helped Michel hire four master-level graduate students from Gallman’s department.

Tobacco lawsuit industry testifier Associate Professor Louis M. Kyriakoudes, at University of Southern Mississippi, learned of the arrangement from his involvement in tobacco litigation. Kyriakoudes shared the information with his fellow-traveling expert witness for tobacco plaintiffs, Robert Neel Proctor.

There was no impropriety in Michel’s hiring the graduate students to assist with his research. Parties are allowed to have consulting expert witness, if for no other reason than to test the accuracy of the other side’s expert witness’s opinions. The research assignment involved searching the archives of a local Pensacola newspaper, in the 1940s, for coverage of smoking’s ill health effects. According to Gallman, the students were “explicitly told not to be selective,” to favor one party or the other.

Proctor was, and still is, a highly paid expert witness for the tobacco lawsuit industry, that is the plaintiffs’ bar, and a regular feature of tobacco trials. After learning the names of the graduate students from his litigation work, Proctor in turn contacted Professor Vassiliki Betty Smocovitis, who held joint appointments in the University of Florida history and biology departments.[2]

In a fairly obvious effort to intimidate and harass the students, Proctor revealed the students’ names to Smocovitis, and pressed his tendentious, gratuitous opinion:

“In my view this is historical malpractice, and I would be very interested to know if the advisers of these students know what they have been doing.”

Smocovitis, who had never been involved in litigation as a partisan expert witness, dutifully carried out the inquiry for Proctor, only to find, unsurprisingly, that her colleagues did not believe that the students had done anything improper. According to her emails, Smocovitis reported back to Proctor that her departmental colleagues were indifferent or annoyed or both for her having bothered them with Proctor’s issue. She told Proctor that “I’m afraid that this is a case of ‘shoot the messenger’, so I can’t persist without alienating myself further,” She resisted Proctor’s importuning to raise the issue at a faculty meeting.

Lawyers at Jones Day sought emails of Proctor and Kyriakoudes from their university servers, and ultimately took depositions of Proctor and Kyriakoudes, the plaintiffs’ expert witnesses, and Smocovitis, in support of motions to sanction Proctor. Michel filed an affidavit in which he described how one of the four students had been led to believe by her departmental chairman, Joseph F. Spillane, that Proctor intended to publish her name.

Kyriakoudes, who dropped the dime on the graduate students, suggested in his deposition that Proctor’s intrusion into the University of Florida department was a “tactical mistake.” According the Chronicle of Higher Education, he testified that “[t]his whole business of getting involved in a department’s activities like this is just—it’s caused no end of trouble.”

In his own deposition, Proctor described the communications as:

“legitimate scholarly inquiry into the participation of historians in litigation.”

* * *

“I was simply raising an ethical issue that she might want to discuss.”

Sort of like Trump’s perfect conversation with President Volodymyr Zelensky. In Trumpian turn-around, Proctor complained that he was real victim of witness harassment and bullying by the defense counsel, in an effort to “silence him.” Ah, the flexibility of historical narrative!

What really seemed to irk Proctor was that any historian, even master-level graduate students, would disagree with him, or find historical evidence that embarrassed Proctor’s litigation positions. Proctor’s blindness to his own bad behavior in the recent past, certainly raises questions about his historical acumen.

Proctor’s play at grievance victimhood was amplified by the obsequious scholarship of Jon Wiener. In the pages of The Nation, Wiener incorrectly reported that “[n]othing improper was found, no witness tampering or intimidation, and the tobacco attorneys dropped the issue–for a while.”[3] In fact, as an historical matter, Wiener was quite wrong.

Judgment Day

The Jones Day lawyers’ motion claimed that Proctor’s improprieties was part of a pattern of behavior that stemmed from his “uncontrolled zeal to win.” Proctor, a paid advocate for the tobacco lawsuit industry, thought it was within his mandate to expose the connection between tobacco defense and historians. In doing so, he engaged in witness tampering and harassment. Proctor and his employers in the lawsuit industry responded with an attempt to portray Proctor’s ham-fisted inquiries as concern for the vulnerable graduate students who were not receiving “guidance,” which would impair their future careers.

The Motion contra Proctor came before Judge Williams Parsons, in the Volusia County Circuit Court.[4] Contrary to the Wiener report, Judge Parsons found that Proctor indeed had intended to harass and humiliate the students into abandoning their litigation support work. Judge Parsons described Proctor’s willingness to advance the plaintiffs’ case at the students’ expense as “appalling,” and “the lowest of the low.” The defense had sought Proctor’s exclusion, but Judge Parsons declined to impose this extreme sanction in favor of barring Proctor from having any contact with adversary expert witnesses or their assistants.

Conduct the following thought experiment. Imagine an historian who testifies for the defense in tobacco litigation finds out that Proctor had hired graduate students to help with research. The defense historian calls up the students’ supervisors to suggest that they are acting unethically and unprofessionally. Now close your eyes and listen to the outcry from the Wieners of the world, or from the American Historical Association! Even after the ugly facts were disclosed, there were some in in the academic historian establishment who rallied to Proctor’s defense, and tried to give Wiener cover for his mendacious coverage of the graduate student incident.[5]

Lancet-ing Adversary Expert Witnesses

Proctor’s attempt to exploit vulnerable history graduate students was not his first attempt to silence historians who disagree with him. Proctor, who has stridently criticized tobacco defense counsel for trying to “silence him,” has worked assiduously to try to silence historians who work for the other side. In a commentary piece in The Lancet, Proctor criticized colleagues who have worked on historical issues for tobacco companies’ legal defense.[6] Proctor substantively criticized his adversaries’ testimony, without providing much in the way of detail, and he implied that their work was ethically improper and rife with conflicts of interest. Perhaps more telling, Proctor himself gave conflicts disclosure that he had “worked on several occasions as an expert witness in plaintiff’s lawsuits,” without telling his readers that he was highly compensated for work.

Proctor’s one-sided analysis provoked spirited opposition from several distinguished medical historians who refused to be bullied or to acquiesce in his moral grandstanding. John C. Burnham, a Professor of History at The Ohio State, wrote a scathing letter to the Lancet’s editors, as well as opinion pieces in History News Network.[7] David Rothman, a professor at Columbia University, similarly took Proctor to task for his pretensions of doing “history” while testifying for the lawsuit industry.[8]

Perhaps the most telling rebuttal came from Professor Alan Blum, a physician and anti-tobacco activist. Dr. Blum, who is the Director of Center for the Study of Tobacco & Society, and a chaired professor at the University of Alabama, is a leading authority on the history of tobacco use and the depradations of the tobacco industry. Professor Blum found Proctor’s animadversions a bit too sanctimonious given that Proctor himself has been a compensated expert witness for the tobacco lawsuit industry.[9]

Conflicted Friends of the Court

The friend of the court brief, from disinterested third parties, is an important, potentially useful source of extra-record information and opinion for judges, both in trial and appellate courts. Historians can on occasion have important historical information, necessary for adjudication. For instance, in the theocratic zeal to strip women of their reproductive rights, historians have adduced important scholarship that abortion was lawful in all thirteen colonies at the time of the Constitutional ratification.  In the context of amicus briefs, historians of course can and do overstep their distinterested roles to act as legal advocates.[10]

Speaking of overstepping, Robert Proctor filed an amicus brief in Altria Group, Inc. v. Good, which involved a tobacco industry’s challenge to Federal Trade Commission control of advertising for “light” or “lowered tar” cigarettes.[11] Accompanying Proctor were four other signatories, Allan M. Brandt, David M. Burns, Jonathan M. Samet and David Rosner.

All except for Brandt had testified multiple times as expert witnesses. Brandt, Proctor, and Samet acknowledged having testified as expert witnesses in United States v. Philip Morris USA, Inc.[12] They all conveniently forgot to note that they were remunerated, and that they had testified against Philip Morris USA, Inc. Burns, who testified as an expert witness in United States v. Philip Morris USA, Inc., failed to mention his testimonial role in that case, as well as many other tobacco cases in support of the lawsuit industry. Rosner, who had not testified in tobacco cases, failed to mention his many paid testimonial adventures for the lawsuit industry.[13]

[1] Karl Popper, Unended Quest: An Intellectual Autobiography at 141-43 (rev. ed. 2005), first published as “Autobiography by Karl Popper,” in Paul Arthur Schlipp, ed., The Philosophy of Karl Popper (1974). The incident is the subject of a book-long inquiry. David Edmonds & John Eidinow, Wittgenstein’s Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers (2001).

[2] Peter Schmidt, “Big Tobacco Strikes Back at Historian in Court,” The Chronicle of Higher Education (Nov. 8, 2009).

[3] Jon Wiener, “Big Tobacco and the Historians: A tale of seduction and intimidation,” The Nation (Feb. 25, 2010).

[4] Nathan Crabbe, “UF students caught in middle of tobacco case’s controversy,” The Gainesville Sun (Dec 8, 2009).

[5]  See “More debate over Jon Wiener’s tobacco exposé,” History News Network (Dec. 13, 2010).

[6] Robert N. Proctor, “Should medical historians be working for the tobacco industry?” 363 Lancet 1173 (2004).

[7] John C. Burnham, “Medical historians and the tobacco industry,” 364 Lancet 838 (2004); John C. Burnham, “In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener,” History News Network (Mar. 29, 2010).

[8] David Rothman, “Medical historians and the tobacco industry,” 364 Lancet 839 (2004). See also Patricia Cohen, “Historians for Hire in Industry Lawsuits,” N.Y. Times (June 13, 2003) (quoting David J. Rothman,  director of the Center for the Study of Science and Medicine at the Columbia College of Physicians and Surgeons, concludes, “To enter the courtroom is to do many things, but it is not to do history”).

[9] Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate,” History Network News (April 26, 2010).

[10] Nell Gluckman, “Why More Historians Are Embracing the Amicus Brief,” The Chronicle of Higher Education (May 3, 2017) (quoting Harvard history professor Tomiko Brown-Nagin’s observation that “[t]o be a legal advocate is freeing”; Brown-Nagin filed an amicus brief in the 2013 Supreme Court case involving racist policies at the University of Texas).

[11]  Amicus Brief of Allan M. Brandt, Robert N. Proctor, David M. Burns, Jonathan M. Samet & David Rosner, in Support of Petition for Certiorari, in Altria Group, Inc. v. Good, No. 07-562, 2008 WL 2472390, (U.S. Supreme Court June 18, 2008).

[12] United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006).

[13] “The Amicus Curious Brief” (Jan. 4, 2018) (describing Rosner and many other plaintiffs’ expert witnesses’ failure to disclose their testimonial conflicts of interest when writing and filing an amicus brief in litigation that directly affected the economic viability of their testimony in asbestos cases for the lawsuit industry).

Posted in Expert Witness Discovery, Expert Witnesses, Historian Testimony | Comments Off on Lawsuit Industry Expert Witness Robert Neel Proctor’s Intimidation Tactics

Susan Haack on Judging Expert Testimony

December 19th, 2020

Susan Haack has written frequently about expert witness testimony in the United States legal system. At times, Haack’s observations are interesting and astute, perhaps more so because she has no training in the law or legal scholarship. She trained in philosophy, and her works no doubt are taken seriously because of her academic seniority; she is the Distinguished Professor in the Humanities, Cooper Senior Scholar in Arts and Sciences, Professor of Philosophy and Professor of Law at the University of Miami.

On occasion, Haack has used her background and experience from teaching about epistemology to good effect in elucidating how epistemiologic issues are handled in the law. For instance, her exploration of the vice of credulity, as voiced by W.K. Clifford,[1] is a useful counterweight to the shrill agnotologists, Robert Proctor, Naomi Oreskes, and David Michaels.

Professor Haack has also been a source of confused, fuzzy, and errant advice when it comes to the issue Rule 702 gatekeeping. Haack’s most recent article on “Judging Expert Testimony” is an example of some unfocused thinking about one of the most important aspect of modern litigation practice, admissibility challenges to expert witness opinion testimony.[2]

Uncontroversially, Haack finds the case law on expert witness gatekeeping lacking in “effective practical guidance,” and she seeks to offer courts, and presumably litigants, “operational help.” Haack sets out to explain “why the legal formulae” are not of practical use. Haack notes that terms such as “reliable” and “sufficient” are qualitative, and vague,[3] much like “obscene” and other adjectives that gave the courts such a difficult time. Rules with vague terms such as these give judges very little guidance. As a philosopher, Haack might have noted that the various judicial formulations of gatekeeping standards are couched as conclusions, devoid of explanatory force.[4] And she might have pointed out that the judicial tendency to confuse reliability with validity has muddled many court opinions and lawyers’ briefs.

Focusing specifically on the field of epidemiology, Haack attempts to help courts by offering questions that judges and lawyers should be asking. She tells us that the Reference Manual for Scientific Evidence is of little practical help, which is a bit unfair.[5] The Manual in its present form has problems, but ultimately the performance of gatekeepers can be improved only if the gatekeepers develop some aptitude and knowledge in the subject matter of the expert witnesses who undergoing Rule 702 challenges. Haack seems unduly reluctant to acknowledge that gatekeeping will require subject matter expertise. The chapter on statistics in the current edition of the Manual, by David Kaye and the late David Freeman, is a rich resource for judges and lawyers in evaluating statistical evidence, including statistical analyses that appear in epidemiologic studies.

Why do judges struggle with epidemiologic testimony? Haack unwittingly shows the way by suggestion that “[e]pidemiological testimony will be to the effect that a correlation, an increased relative risk, has, or hasn’t, been found, between exposure to some substance (the alleged toxin at issue in the case) and some disease or disorder (the alleged disease or disorder the plaintiff claims to have suffered)… .”[6] Some philosophical parsing of the difference between “correlation” and “increased risk” as two very different things might have been in order. Haack suggests an incorrect identity between correlation and increased risk that has confused courts as well as some epidemiologists.

Haack suggests asking various questions that are fairly obvious such as the soundness of the data, measurements, study design, and data interpretation. Haack gives the example of failing to ascertain exposure to an alleged teratogen  during first trimester of pregnancy as a failure of study design that could obscure a real association. Curiously she claims that some of Merrell Dow’s studies of Bendectin did such a thing, not by citing to any publications but to the second-hand accounts of a trial judge.[7] Beyond the objectionable lack of scholarship, the example comes from a medication exposure that has been as exculpated as much as possible from the dubious litigation claims made of its teratogenicity. The misleading example begs the question why choose a Bendectin case, from a litigation that was punctuated by fraud and perjury from plaintiffs’ expert witnesses, and a medication that has been shown to be safe and effective in pregnancy?[8]

Haack balks when it comes to statistical significance, which she tells us is merely based upon a convention, and set “high” to avoid false alarms.[9] Haack’s dismissive attitude cannot be squared with the absolute need to address random error and to assess whether the research claim has been meaningfully tested.[10] Haack would reduce the assessment of random error to the uncertainties of eyeballing sample size. She tells us that:

“But of course, the larger the sample is, then, other things being equal, the better the study. Andrew Wakefield’s dreadful work supposedly finding a correlation between MMR vaccination, bowel disorders, and autism—based on a sample of only 12 children — is a paradigm example of a bad study.”[11]

Sample size was the least of Wakefield’s problems, but more to the point, in some study designs for some hypotheses, a sample of 12 may be quite adequate to the task, and capable of generating robust and even statistically significant findings.

Inevitably, Haack alights upon personal bias or conflicts of interest, as a subject of inquiry.[12] Of course, this is one of the few areas that judges and lawyers understand all too well, and do not need encouragement to pursue. Haack dives in, regardless, to advise asking:

“Do those who paid for or conducted a study have an interest in reaching a given conclusion (were they, for example, scientists working for manufacturers hoping to establish that their medication is effective and safe, or were they scientists working, like Wakefield, with attorneys for one party or another)?”[13]

Speaking of bias, we can detect some in how Haack frames the inquiry. Do scientists work for manufacturers (Boo!) or were they “like Wakefield” working for attorneys for a party? Haack cannot seem to bring herself to say that Wakefield, and many other expert witnesses, worked for plaintiffs and plaintiffs’ counsel, a.k.a., the lawsuit industry. Perhaps Haack included such expert witnesses as working for those who manufacture lawsuits. Similarly, in her discussion of journal quality, she notes that some journals carry advertisements from manufacturers, or receive financial support from them. There is a distinct lack of symmetry discernible in the lack of Haack’s curiosity about journals that are run by scientists or physicians who belong to advocacy groups, or who regularly testify for plaintiffs’ counsel.

There are many other quirky opinions here, but I will conclude with the obvious point that in the epidemiologic literature, there is a huge gulf between reporting on associations and drawing causal conclusions. Haack asks her readers to remember “that epidemiological studies can only show correlations, not causation.”[14] This suggestion ignores Haack’s article discussion of certain clinical trial results, which do “show” causal relationships. And epidemiologic studies can show strong, robust, consistent associations, with exposure-response gradients, not likely consistent with random variation, and these findings collectively can show causation in appropriate cases.

My recommendation is to ignore Haack’s suggestions and to pay closer attention to the subject matter of the expert witness who is under challenge. If the subject matter is epidemiology, open a few good textbooks on the subject. On the legal side, a good treatise such as The New Wigmore will provide much more illumination and guidance for judges and lawyers than vague, general suggestions.[15]

[1] William Kingdon Clifford, “The Ethics of Belief,” in L. Stephen & F. Pollock, eds., The Ethics of Belief 70-96 (1877) (“In order that we may have the to accept [someone’s] testimony as ground for believing what he says, we must have reasonable grounds for trusting his veracity, that he is really trying to speak the truth so far as he knows it; his knowledge, that he has had opportunities of knowing the truth about this matter; and his judgement, that he has made proper use of those opportunities in coming to the conclusion which he affirms.”), quoted in Susan Haack, “Judging Expert Testimony: From Verbal Formalism to Practical Advice,” 1 Quaestio facti. Internat’l J. Evidential Legal Reasoning 13, 13 (2020).

[2]  Susan Haack, “Judging Expert Testimony: From Verbal Formalism to Practical Advice,” 1 Quaestio facti. Internat’l J. Evidential Legal Reasoning 13, 13 (2020) [cited as Haack].

[3]  Haack at 21.

[4]  See, e.g., “Judicial Dodgers – The Crossexamination Excuse for Denying Rule 702 Motions”; “Judicial Dodgers – Reassigning the Burden of Proof on Rule 702”; “Judicial Dodgers – Weight not Admissibility”; “Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent.”

[5]  Haack at 21.

[6]  Haack at 22.

[7]  Haack at 24, citing Blum v. Merrell Dow Pharms., Inc., 33 Phila. Cty. Rep. 193, 214-17 (1996).

[8]  See, e.g., “Bendectin, Diclegis & The Philosophy of Science” (Oct. 23, 2013).

[9]  Haack at 23.

[10]  See generally Deborah Mayo, Statistical Inference as Severe Testing: How to Get Beyond the Statistics Wars (2018).

[11]  Haack at 23-24 (emphasis added).

[12]  Haack at 24.

[13]  Haack at 24.

[14]  Haack at 25.

[15]  David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence (2nd ed. 2011). A new edition is due out presently.

Posted in Causation, Rule 702, Scientific Evidence | Comments Off on Susan Haack on Judging Expert Testimony

Junk Science in 2020

December 17th, 2020

Exploring pathology can help us appreciate proper physiological function, and how normal functioning can be lost. In the realm of epistemology, studying error or patho-epistemology, can help us elucidate knowledge. To that end, Ross Pomeroy, at Real Clear Science, this week offers his views of the best of the worst of 2020 pseudo-science.[1] Admittedly, 2020 has been a bad year for epistemic virtue, but Pomeroy lists eight noteworthy instances of scientific junk. Not surprising, several of his eight examples come from the Trump epistemic swamp.

Next year, junk science is likely to be more bipartisan, with left-wing and right-wing nutjobs finding consensus in anti-vaccination make believe. On the left, chemophobia is leading to hyperventilation, without evidence, over whether chemicals such as Per- and polyfluoroalkyl substances (PFAS) will inhibit COVID-19 vaccine efficacy.[2] Congressman Dan Kildee (D-Mich.), who has tirelessly advocated against PFAS, pushed the Centers for Disease Control to investigate whether there was an interaction between PFAS exposure and COVID-19.[3] This bit of political pressure was then transformed into a hyperbolic statement by Philippe Grandjean, an adjunct professor of environmental health at the Harvard School of Public Health and testifier for the lawsuit industry,[4] that “[a]t this stage we don’t know if it [PFAS] will impact a corona vaccination, but it’s a risk.” How something that has unknown health effects is transmuted into a “risk” by Grandjean is a secret lost with the great alchemists of the 13th century.[5]

And on the right, look for the leopard-skinned kraken-pot lawyer, Sidney Powell, to generate lies, conspiracies, and frauds about COVID-19 vaccines and vaccination.[6]

The numbering of junk science examples below is Pomeroy’s, and it is not clear whether the last, which was labeled number one, was supposed to be the worst, or whether number eight was. I have repeated Pomeroy’s list, in his order, with my musings.

  1. Woke Science: Magic Amulets Prevent COVID-19

This exemplar of junk comes from researchers at the University of Pittsburgh’s departments of infectious disease and epidemiology, and was published online in October 2020, at the dubious journal, Science of the Total Environment.[7] The title of the article purports to ask a question:

“Can Traditional Chinese Medicine provide insights into controlling the COVID-19 pandemic: Serpentinization-induced lithospheric long-wavelength magnetic anomalies in Proterozoic bedrocks in a weakened geomagnetic field mediate the aberrant transformation of biogenic molecules in COVID-19 via magnetic catalysis”

Discerning editors and peer reviewers might have noticed that the authors omitted a question mark from their title, or that the content of the article was utterly bogus. A trip to the article online shows up a notice that the article has been removed:

“The publisher regrets that this article has been temporarily removed. A replacement will appear as soon as possible in which the reason for the removal of the article will be specified, or the article will be reinstated.”

Inquiring minds are yearning to know the reason for the removal, but in the interim, several observers have noted that the paper in question had the aroma of a dogpile.[8] The article is so outlandish that some skeptical onlookers, such as Drs. Steven Novella[9] and Ivan Oransky, thought that the article might be a Sokal-style hoax.[10]

Alas, the authors were in earnest. COVID-19 is related to magnetic fields, but jade amulets can prevent the disease. Who would have thought? When Dr. Ivan Oransky wrote to confirm authorship of the publication,[11] his inquiry provoked a white-fragility accusation from Moses Turkle Bility, one of the authors!

“Dear Dr. Ivan Oransky, yes, I published that article, and I kindly suggest you read the article and examine the evidence provided. I also suggest you read the history of science and how zealots have consistently attempted to block and ridicule novel ideas that challenge the predominant paradigm from individuals that are deem not intelligent enough. I not surprised that this article has elicited angry responses. Clearly the idea that a black scientist can provide a paradigm shifting idea offends a lot of individuals. I’ll be very candid with you; my skin color has no bearing on my intelligence. If you have legitimate concerns about the article and wish to discuss, I’ll address; however, I will not tolerate racism or intellectual intolerance targeted at me.”

The ultimate Woke anti-racist brushback pitch in scientific discourse! Or maybe I am just “jaded.”

  1. Maga-megachurch’s Air Filtration System Destroys 99.9% of COVID.

Owners of a megachurch claimed that their air filtration system killed 99.9% of the corona virus that causes COVID-19. Biblical miracles aside, the Arizona Attorney General thought this claim was a step too far and ordered the Phoenix church to stop advertising its air purification system.[12] Next you know, Arizona will ban claims of virgin birth.

  1. Oleandrin

The transitive property of truth should validate the efficacy of oleandrin as a “miracle cure” for COVID-19.  The CEO of MyPillow, Mike Lindell, supports Donald Trump, and Donald Trump supports Mike Lindell. Mike Lindell supports oleandrin, a plant-based toxin,[13] and so Trump supports oleandrin as well as a “miracle cure.” Or is it the transitive property of stupidity? In the meanwhile, the U.S. FDA rejected an application for permission to include oleandrin in supplements. On the other hand, Trump’s Secretary of Housing and Urban Development, Dr. Ben Carson has enthusiastically touted oleandrin, and he is a brain surgeon.[14]

  1. Sodium Hypochlorite and Lysol, i.v., stat!

Back in April 2020, former President Trump told an anxious nation that he thought that the ideas of putting light down into the lungs, or maybe just disinfectant, would knock out the corona virus. Trump seemed to take credit for these ideas, which he found “pretty interesting.”[15] Main stream media struggled with how to let the American public know that their president was a moron.

  1. Methanol for COVID.

Not a good idea, but apparently many Iranians thought it could not be worse than anything that President Hassan Rouhani had in store for them.

  1. 5G and COVID-19

OK, a bogus claim but maybe a good reason to delay upgrading your cell phone.

  1. Face Masks Activate Corona Virus

COVID-19 brought out some of the most remarkable quacks. Take Judy Mikovits. Please. Mikovits was the intellectual powerhouse behind the docu-conspira-mentary, “Plandemic.” Good to know. Mikovits advanced the unfounded claim that wearing face masks activate the corona virus, that beaches have healing powers, and that a vaccine against COVID-19 will kill millions.[16] Good to know.

  1. Hydroxychloroquine

Donald Trump has always been a snake-oil salesman, but with his endorsement of hydrochloroquine, at least he hawked an FDA-approved medication. The problem was that the indication for hydrochloroquine was malaria, not COVID-19.

Unlike his support for injecting bleach and Lysol, Trump had “expert support,” for his touting of hydrochloroquine, the Association of American Physicians & Surgeons (AAPS).[17] Despite its official sounding name, the AAPS was little more than a propaganda outlet for the debunked study by Didier Raoult. The International Society of Antimicrobial Chemotherapy (ISAC), which publishes the journal in which Raoult’s study appeared had issued a statement “of concern” about Raoult’s results. Trump, however, had no concern, perhaps because the AAPS also relied upon claims made by Vladimir Zelenko about 1,554 patients, for which he had “published no data, described no study design, and reported no analysis.”

But wait, Trump and the AAPS had more data. Since no quackfest would be complete without “evidence” from Mehmet Cengiz Öz, commonly known as Dr. Oz, the AAPS has dutifully reported that Oz had two patients to whom he gave HCQ, and both survived.[18] Notwithstanding Donald’s Trumping of hydroxychloroquine, the FDA revoked its emergency use authorization for the medication’s use as an anti-viral.[19] In the meanwhile, Trump and his administration wasted government resources by stockpiling an unproven, useless medication, while ignoring efficacious ones.[20]

[1] Ross Pomeroy, “The Biggest Junk Science of 2020,” Real Clear Science (Dec. 15, 2020).

[2] Oliver Milman, “Covid: chemicals found in everyday products could hinder vaccine: Researchers worry PFAS, commonly found in the bodies of Americans, will reduce the immunization’s effectiveness,” The Guardian (Nov. 17, 2020).

[3] Iris Myers, “CDC Investigates Potential Link Between ‘Forever Chemicals’ and Decreased Effectiveness of Covid-19 Vaccines,” Envt’l Working Group (Dec. 11, 2020).

[4] See, e.g., Maine People’s Alliance v. Holtrachem Mfr’g Co., 211 F. Supp. 2d 237 (D. Maine 2002); Sullivan v. Saint-Gobain Performance Plastics Corp., 431 F. Supp. 3d 448 (D. Vt. 2019); Food & Water Watch, Inc. v. U.S. EPA, case no. 17-cv-02162-EMC (N.D. Calif. Aug. 10, 2020).

[5] This hyperbole was rightly called out by Joseph Annotti and the Center for Truth in Science. See “Center for Truth in Science Responds to Concerns over PFAS Compounds and Vaccine Efficacy,” Center for Truth in Science (Dec. 16, 2020).

[6] Davey Alba & Sheera Frenkel, “From Voter Fraud to Vaccine Lies: Misinformation Peddlers Shift Gears,” N.Y. Times (Dec. 16, 2020).

[7] Moses Turkle Bility, Yash Agarwala, Sara Ho, Isabella Castronova, Cole Beattya, Shivkumar Biradara, Vanshika Narala, Nivitha Periyapatna, Yue Chen, Jean Nachega, “Can Traditional Chinese Medicine provide insights into controlling the COVID-19 pandemic: Serpentinization-induced lithospheric long-wavelength magnetic anomalies in Proterozoic bedrocks in a weakened geomagnetic field mediate the aberrant transformation,” Science of The Total Env’t, available at https://doi.org/10.1016/j.scitotenv.2020.142830 (online 8 October 2020, 142830).

[8] Shawna Williams, “Paper Proposing COVID-19, Magnetism Link to Be Retracted: The study, published in a peer-reviewed journal, has attracted widespread derision from researchers,” The Scientist (Nov. 4, 2020).

[9] Steven Novella, “Magic Amulets Do Not Prevent COVID,” The Ness (Nov. 03 2020).

[10] See, e.g., Jamie Lindsay & Peter Boyle, “The Conceptual Penis as a Social Construct,” 3 Cogent Social Sciences online (2017) (Peter Boghossian published under the pseudonym Peter Boyle), retracted (2017).

[11] Ivan Oransky, “Amulets may prevent COVID-19, says a paper in Elsevier journal. (They don’t),” Retraction Watch (Oct. 29, 2020).

[12] News Staff, “Arizona AG o)rders Glendale company, Phoenix church to stop advertising air purification system,” Arizona Family (June 26, 2020).

[13] Steven Novella, “Oleandra – The New COVID Snake Oil: Oleandrin is being promoted as the new COVID-19 snake oil – but it is a deadly toxin,” Science-Based Medicine (Aug. 19, 2020).

[14] Jonathan Swan, “Trump eyes new unproven coronavirus ‘cure’,” Axios (Aug. 16, 2020).

[15] William J. Broad & Dan Levin, “Trump Muses About Light as Remedy, but Also Disinfectant, Which Is Dangerous,” N.Y. Times (April 24, 2020).

[16] Angelo Fichera, Saranac Hale Spencer, D’Angelo Gore, Lori Robertson and Eugene Kiely, “The Falsehoods of the ‘Plandemic’ Video,” Fact Check (May 8, 2020); Stuart J.D. Neil  & Edward M. Campbell, “Fake Science: XMRV, COVID-19, and the Toxic Legacy of Dr. Judy Mikovits,” 36 AIDS Research & Human Retroviruses 545 (2020); Martin Enserink & Jon Cohen, “Fact-checking Judy Mikovits, the controversial virologist attacking Anthony Fauci in a viral conspiracy video,” Science Mag. (May 8, 2020).

[17] “Hydroxychloroquine Has about 90 Percent Chance of Helping COVID-19 Patients,” AAPS (April 28, 2020).

[18] The HCQ issue is not the AAPS’s first quack attack. Those who follow the organization will sense déjà vu. The AAPS has held forth previously on abortion and breast cancer, vaccination and autism, HIV and AIDS, and Barak Obama and hypnotic induction. See “The Plague and Quackery Right & Left” (June 19, 2020).

[19] FDA Press Release, “Coronavirus (COVID-19) Update: FDA Revokes Emergency Use Authorization for Chloroquine and Hydroxychloroquine” (June 15, 2020); Molly Walker, “HCQ No Longer Approved Even a Little for COVID-19 – Study after study showed no benefit, and now the FDA has had enough,” MedPage Today (June 15, 2020). The AAPS did not take the FDA’s rejection of hydroxychloroquine lying down. The Society sued the FDA to end “arbitrary” restrictions on its use. “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine,” AAPS (June 2, 2020). The AAPS complaint is available at its website: http://aapsonline.org/judicial/aaps-v-fda-hcq-6-2-2020.pdf

[20] See Sheryl Gay Stolberg, “A Mad Scramble to Stock Millions of Malaria Pills, Likely for Nothing,” N.Y. Times (June 16, 2020) (quoting Trump’s Trade Advisor Peter Navarro); Philip Bump, “The rise and fall of Trump’s obsession with hydroxychloroquine – Forty days of promotion, hype – and eventual retreat,” Wash. Post (April 24, 2020); “Remarks by President Trump in a Roundtable with Restaurant Executives and Industry Leaders” (May 18, 2020); Andrew Solender, “All The Times Trump Has Promoted Hydroxychloroquine” Forbes (May 22, 2020). Curiously, the Administration has ignored the emerging potentially good news about the efficacy of dexamethasone in treating seriously ill COVID-19 patients, as shown in a randomized clinical trial, which is not yet peer reviewed and published. Benjamin Mueller & Roni Caryn Rabin, “Common Drug Reduces Coronavirus Deaths, Scientists Report,” N.Y. Times (June 16, 2020).

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Pernicious Probabilities in the Supreme Court

December 11th, 2020

Based upon Plato’s attribution,[1] philosophers credit pre-Socratic philosopher Heraclitus, who was in his prime about 500 B.C., for the oracular observation that πάντα χωρεῖ και οὐδε ν μένει, or in more elaborative English:

all things pass and nothing stays, and comparing existing things to the flow of a river, he says you could not step twice into the same river.

Time changes us all. Certainly 2016 is not 2020, and the general elections held in November of those two years were not the same elections, and certainly not the same electorate. No one would need a statistician to know that the population of voters in 2016 was different from that in 2020.  Inevitably, some voters from 2016 died in the course of the Trump presidency; some no doubt died as a result of Trump’s malfeasance in handling the pandemic. Inevitably, some new voters came of age or became citizens and were thus eligible to vote in 2020, when they could not vote in 2016. Some potential voters who were unregistered in 2016 became new registrants. Non-voters in 2016 chose to vote in 2020, and some voters in 2016 chose not to vote in 2020. Overall, many more people turned out to vote in 2020 than turned out in 2016.

The candidates in 2016 and 2020 were different as well. On the Republican side, we had ostensibly the same candidate, but in 2020, Trump was the incumbent and had a record of dismal moral and political failures, four years in duration. Many Republicans who fooled themselves into believing that the Office of the Presidency would transform Trump into an honest political actor, came to realize that he was, and always has been, and always will be, a moral leper. These “apostate” Republicans effectively organized across the country, through groups like the Lincoln Project and the Bulwark, against Trump, and for the Democratic candidate, Joseph Biden.

In the 2016 election, Hilary Clinton outspent Donald Trump, but Trump used social media more effectively, with a big help from Vladimir Putin. In the 2020 election, Russian hackers did not have to develop a disinformation campaign; the incumbent president had been doing so for four years.

On the Democratic side of the 2016 and 2020 elections, there was a dramatic change in the line-up. In 2016, candidate Hilary Clinton inspired many feminists because of her XX 23rd chromosomes. She also suffered significant damage in primary battles with social democrat Bernie Sanders, whose supporters were alienated by the ham-fisted prejudices of the Clinton-supporters on the Democratic National Committee. Many of Sanders’ supporters stayed home on election day, 2016. In 2020, Sanders and the left-wing of the Democratic party made peace with the centrist candidate Joseph Biden, in recognition that the alternative – Trump – involved existential risks to our republican democracy.

In 2016, third party candidates, from the Green Party and the Libertarian Party, attracted more votes than they did in 2020. The 2016 election saw more votes siphoned from the two major party candidates by third parties because of the unacceptable choice between Trump and Clinton for several percent of the voting public. In 2020, with Trump’s authoritarian kleptocracy fully disclosed to Americans, a symbolic vote for a third-party candidate was tantamount to the unacceptable decision to not vote at all.

In 2016, after eight years of Obama’s presidency, the economy and the health of the nation were good. In 2020, the general election occurred in the midst of a pandemic and great economic suffering. Many more people voted by absentee or mail-in ballot than voted in that manner in 2016. State legislatures anticipated the deluge of mail-in ballots; some by facilitating early counting, and some by prohibiting early counting. The Trump administration anticipated the large uptick in mail-in ballots by manipulating the Post Office’s funding, by anticipatory charges of fraud in mail-in procedures, and by spreading lies and disinformation about COVID-19, along with spreading the infection itself.

On December 8, 2020, without apparently tiring of losing so much, the Trump Campaign orchestrated the filing of the big one, the “kraken lawsuit.” The State of Texas filed a complaint in the United States Supreme Court, in an attempt to invoke that court’s original jurisdiction to adjudicate Texas’ complaint that it was harmed by voting procedures in four states in which Trump lost the popular vote. All four states had certified their results before Texas filed its audacious lawsuit. Legal commentators were skeptical and derisive of the kraken’s legal theories.[2] Even the stalwart National Review saw the frivolity.[3]

Charles J. Cicchetti[4] is an economist, who is a director at the Berkeley Research Group. Previously, Cicchetti held academic positions at the University of Southern California, and the Energy and Environmental Policy Center at Harvard University’s John F. Kennedy School of Government. At the heart of the kraken is a declaration from Cicchetti, who tells us under penalty of perjury, that he was “formally trained statistics and econometrics [sic][5] and accepted as an expert witness in civil proceedings.”[6] Declaration of Charles J. Cicchetti, Ph.D., Dec. 6, 2020, filed in support of Texas’ motion at ¶ 2.

Cicchetti’s declaration is not a model of clarity, but it is clear that he conducted several statistical analyses. He was quite transparent in stating his basic assumption for all his analyses; namely, the outcomes for the two Democratic candidates, Clinton and Biden, for the two major party candidates, Clinton versus Trump and Biden versus Trump, and for in-person and for mail-in voters were all randomly drawn from the same population. Id. at ¶ 7. Using a binomial model, Cicchetti calculated Z-scores for the observed disparities in rates, which was very good evidence to reject the “same population” assumptions.

Based upon very large Z-scores, Cicchetti rejected the null hypothesis of “same population” and of Biden = Clinton. Id. at ¶ 20. But nothing of importance follows from this. We knew before the analysis that Biden ≠ Clinton, and the various populations compare were definitely not the same. Cicchetti might have stopped there and preserved his integrity and reputation, but he went further.

He treated the four states, Georgia, Michigan, Pennsylvania, and Wisconsin, as independent tests, which of course they are not. All states had different populations from 2016 to 2020; all had no pandemic in 2016, and pandemic in 2020; all had been exposed for four years of Trump’s incompetence, venality, corruption, bigotry, and bullying. Cicchetti gilded the lily with the independence assumption, and came up with even lower, more meaningless probabilities that the populations were the same. And then he stepped into the abyss of the fallacy and non sequitur:

“In my opinion, this difference in the Clinton and Biden performance warrants further investigation of the vote tally particularly in large metropolitan counties within and adjacent to the urban centers in Atlanta, Philadelphia, Pittsburgh, Detroit and Milwaukee.”

Id. at ¶ 30. Cicchetti’s suggestion that there is anything amiss, which warrants investigation, follows only from a maga, mega-transposition fallacy. The high Z-score does not mean that observed result is not accurate or fair; it means only that the starting assumptions were outlandishly false.

Early versus Late Counting

Texas’ claim that there is something “odd” about the reporting before and after 3 a.m., on the morning after Election Day fares no better. Cicchetti tells us that “many Americans went to sleep election night with President Donald Trump (Trump) winning key battleground states, only to learn the next day that Biden surged ahead.” Id. at ¶ 7.

Well, Americans who wanted to learn the final count should not have gone to sleep, for several days. Again, the later counted mail-in votes came from a segment of the population that was obviously different from the in-person voters. Cicchetti’s statistical analysis shows that we should reject any assumption that they were the same, but who would make that assumption?  These expected values for the mail-in ballots differed from the expected values for in-person votes; the difference was driven by Republican lies and disinformation about Covid-19, and by laws that prohibited early counting.  Not surprisingly, the Trumpist propaganda had an effect, and there was a disparity between the rate at which Trump and Biden supporters voted in person, and who voted by mail-in ballot. The late counting and reporting of mail-in ballots was further ensured by laws in some states that prohibited counting before Election Day. Trump was never winning in the referenced “key battleground” states; he was ahead in some states, at 2:59 a.m., but the count changed after all lawfully cast ballots had been counted.

The Response to Cicchetti’s Analyses

The statistical “argument,” such as it is, has not fooled anyone outside of maga-land.[7] Cicchetti’s analysis has been derided as “ludicrous” and “incompetence, by Professors Kenneth Mayer and David Post. Mayer described the analysis as one that will be “used in undergraduate statistics classes as a canonical example of how not to do statistics.”[8] It might even make its way into a Berenstain Bear book on statistics. Andrew Gelman called the analysis “horrible,” and likened the declaration to the infamous Dreyfus case.[9]

The Texas lawsuit speaks volumes of the insincerity of the Trumpist Republican party. The rantings of Pat Robertson, asking God to intervene in the election to keep Trump in office, are more likely to have an effect.[10] The only issue the kraken fairly raises is whether the plaintiff, and plaintiff intervenor, should be be sanctioned for “multipl[ying] the proceedings in any case unreasonably and vexatiously.”[11]

[1]  Plato, Cratylus 402a = A6.

[2] Adam Liptak, “Texas files an audacious suit with the Supreme Court challenging the election results,” N.Y. Times (Dec. 8, 2020); Jeremy W. Peters and Maggie Haberman, “17 Republican Attorneys General Back Trump in Far-Fetched Election Lawsuit,” N.Y. Times (Dec. 9, 2020); Paul J. Weber, “Trump’s election fight puts embattled Texas AG in spotlight,” Wash. Post (Dec. 9, 2020).

[3] Andrew C. McCarthy, “Texas’s Frivolous Lawsuit Seeks to Overturn Election in Four Other States,” Nat’l Rev. (Dec. 9, 2020); Robert VerBruggen, “The Dumb Statistical Argument in Texas’s Election Lawsuit,” Nat’l Rev. (Dec. 9, 2020).

[4] Not to be confused with Chicolini, Sylvania’s master spy.

[5] Apparently not formally trained in English.

[6] See, e.g., K N Energy, Inc. v. Cities of Alliance & Oshkosh, 266 Neb. 882, 670 N.W.2d 319 (2003), Center for Biological Diversity v. Pizarchik, 858 F. Supp. 2d 1221 (D. Colo. 2012), National Paint & Coatings Ass’n, v. City of Chicago, 835 F. Supp. 421 (N.D. Ill. 1993), National Paint & Coatings Ass’n, v. City of Chicago, 835 F. Supp. 414 (N.D. Ill. 1993); Mississippi v. Entergy Mississippi, Inc. (S.D. Miss. 2012); Hiko Energy, LLC v. Pennsylvania Public Utility Comm’n, 209 A.3d 246 (Pa. 2019).

[7] Philip Bump, “Trump’s effort to steal the election comes down to some utterly ridiculous statistical claims,” Wash. Post (Dec. 9, 2020); Jeremy W. Peters, David Montgomery, Linda Qiu & Adam Liptak, “Two reasons the Texas election case is faulty: flawed legal theory and statistical fallacy,” N.Y. Times (Dec. 10, 2020); David Post, “More on Statistical Stupidity at SCOTUS,” Volokh Conspiracy (Dec. 9, 2020).

[8] Eric Litke, “Lawsuit claim that statistics prove fraud in Wisconsin, elsewhere is wildly illogical,”  PolitiFact ((Dec. 9, 2020).

[9] Andrew Gelman, “The p-value is 4.76×10^−264 1 in a quadrillion” Statistical Modeling, Causal Inference, and Social Science (Dec. 8, 2020).

[10]  Evan Brechtel, “Pat Robertson Calls on God to ‘Intervene’ in the Election to Keep Trump President in Bonkers Rant” (Dec. 10, 2020).

[11] See “Counsel’s liability for excessive costs,” 28 U.S. Code § 1927.

Posted in Cognitive Biases, statistical evidence | Comments Off on Pernicious Probabilities in the Supreme Court

A TrumPence for Your Thoughts

November 21st, 2020

Trigger Warning: Political Rant

“Let them call me rebel and welcome, I feel no concern from it; but I should suffer the misery of devils, were I to make a whore of my soul by swearing allegiance to one whose character is that of a sottish, stupid, stubborn, worthless, brutish man.”

Thomas Paine, “The Crisis, Number 1” (Dec. 23, 1776), in Ian Shapiro & Jane E. Calvert, eds., Selected Writings of Thomas Paine 53, 58 (2014).

♂, ♀, ✳, †, ∞

Person, woman, man, camera, TV

Back on October 20, 2020, televangelist Pat Robertson heard voices in his head, and interpreted them to be the voice of god, announcing the imminent victory of Donald Trump. How Robertson knows he was not hearing the devil, he does not say. Even gods get their facts and predictions wrong sometimes. We should always ask for the data and the analysis.

Trump’s “spiritual advisor,” mega-maga-church pastor and televangelist, Paula White, violated the ban on establishment of religion, and prayed for Trump’s victory.[1] Speaking in tongues, White made Trump seem articulate. White wandered from unconstitutional into blatantly criminal territory, however, when she sought intervention of foreign powers in the election, by summoning angels from Africa and South America to help Trump win the election.  Trump seemed not to take notice that these angels were undocumented, illegal aliens. In the end, the unlawful aliens proved ineffective. Our better angels prevailed over Ms. White’s immigrant angels. Now ICE will now have to track these angels down and deport them back to their you-know-what countries of origin.

How did we get to this place? It is not that astute observers on the left and the right did not warn us.

Before Trump was elected in 2016, Justice Ruth Bader Ginsburg notoriously bashed Donald Trump, by calling him a “faker”:

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”[2]

Faker was a fitting epithet that captured Trump’s many pretensions. It is a word that has a broader meaning in the polyglot world of New York City, where both Justice Ginsburg and Donald Trump were born and grew up. The word has a similar range of connotations as trombenik, “a lazy person, ne’er-do-well, boastful loudmouth, bullshitter, bum.” Maybe we should modify trombenik to Trumpnik?

Justice Ginsburg’s public pronouncement was, of course, inappropriate, but accurate nonetheless. She did something, however, that Trump has never done in his public persona; she apologized:

“‘On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them’, Ginsburg said in a statement Thursday morning. ‘Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect’.”[3]

Of course, Justice Ginsburg should have been more circumspect, but her disdain for Trump was not simply an aversion to his toxic politics and personality. Justice Ginsburg was a close friend of Justice Antonin Scalia, who was one of the most conservative justices on the Supreme Court bench. Ginsburg and Scalia could and did disagree vigorously and still share friendship and many common interests. Scalia was not a faker; Trump is.

Other conservative writers have had an equal or even a greater disdain for Trump. On this side of the Atlantic, principled conservatives rejected the moral and political chaos of Donald Trump. When Trump’s nomination as the Republican Party candidate for president seemed assured in June 2016, columnist George Will announced to the Federalist Society that he had changed his party affiliation from Republican to unaffiliated.[4]

On the other side of the Atlantic, conservative thinkers such as the late Sir Roger Scruton rolled their eyes at the prospect of Donald Trump’s masquerading as a conservative.[5] After Trump had the benefit of a few months to get his sea legs on the ship of state, Sir Roger noted that Trump was nothing more than a craven opportunist:

“Q. Does ‘Trumpism’ as an ideology exist, and if it does, is it conservative, or is it just opportunism?

A. It is opportunism. He probably does have conservative instincts, but let’s face it, he doesn’t have any thoughts that are longer than 140 characters, so how can he have a real philosophy?”[6]

Twitter did, at some point, double the number of characters permitted in a tweet, but Trump simply repeated himself more.

In the United States, we have had social conservatives, fiscal conservatives, classic liberal conservatives, and more recently, we have seen neo-cons, theo-cons, and Vichy cons. I suppose there have always been con-cons, but Trump has strongly raised the profile of this last subgroup. There can be little doubt that Donald John Trump has always been a con-con. Now we have Banana Republicans who have made a travesty of the rule of law. Four years in, we are all suffering from what Barak Obama termed “truth decay.”

Cancel culture has always been with us. Socrates, Jesus, and Julius Caesar were all canceled, with extreme prejudice. In the United States, Senator Joseph McCarthy developed cancel culture into a national past time. In this century, the Woke Left has weaponized cancel culture into a serious social and intellectual problem. Now, Donald Trump wants to go one step further and cancel our republican form of democracy. Trump is attempting in plain sight to cancel a national election he lost.

Yes, I have wandered from my main mission on this blog to write about tort law and about how the law handles scientific and statistical issues. My desultory writings on this blog have largely focused on evidence in scientific controversies that find their way into the law. Our political structures are created and conditioned by our law, and our commitment to the rule of law, and the mistreatment of scientific issues by political actors is as pressing a concern, to me at least, as mistreatment of science by judges or lawyers. Trump has now made the post-modernists look like paragons of epistemic virtue. As exemplified in the political response to the pandemic, this political development has important implications for the public acceptance of science and evidence-based policies and positions in all walks of life.

Another blogger whose work on science and risk I respect is David Zaruk, who openly acknowledges that Donald Trump is an “ethically and intellectually flawed train wreck of a politician.”[7] Like Trump apologists James Lindsay and Ben Shapiro, however, Zaruk excuses the large turnout for Trump because Trump voters:

“are sick to death of being told by smug, arrogant, sanctimonious zealots how to think, how to feel and how to act. Nobody likes to be fixed and especially not by self-righteous, moralising mercenaries.”

But wait:  Isn’t this putative defense itself a smug, arrogant, sanctimonious, and zealous lecture that we should somehow be tolerant of Trump and his supporters? What about the sickness unto death over Trump’s endless propagation of lies and fraud? Trump has set an example that empowers his followers to do likewise. Zaruk’s reductionist analysis ignores important determinants of the vote. Many of the Trump voters were motivated by the most self-righteous of all moralizing mercenaries – leaders of Christian nationalism.[8] Zaruk’s acknowledgement of Trump’s deep ethical and intellectual flaws, while refraining from criticizing Trump voters, fits the pattern of the Trump-supporting mass social media that engages in the rhetoric of gas-lighting “what-about-ism.”[9]

Sure, no one likes to be told that they are bereft of moral, practical, and political judgment, but voting for Trump is complicit in advancing “a deeply ethically and intellectually flawed” opportunist. Labeling all of Trump’s opponents as “smug, arrogant, sanctimonious zealots” is really as empty as Trump’s list of achievements. Furthermore, Zaruk’s animadversions against the Woke Left miss the full picture of who is criticizing Trump and his “base.” The critique of Trump has come not just from so-called progressives but from deeply conservative writers such as Will and Scruton, and from pragmatic conservative political commentators such as George Conway, Amanda Carpenter, Sarah Longwell, and Charles Sykes. There is no moral equivalency between the possibility that the Wokies will influence a Biden administration and the certainty that truly deplorable people such as Bannon, Gingrich, Giuliani, Navarro, et alia, will both influence and control our nation’s policy agenda.

Of course, Trump voters may honestly believe that a Democratic administration will be on the wrong side of key issues, such as immigration, abortion, gun control, regulation, taxation, and the like. Certainly opponents of the Democratic positions on these issues could seek an honest broker to represent their views. Trump voters, however, cannot honestly endorse the character and morality of Mr. Trump, his cabinet, and his key Senate enablers. Trump has been the Vector-in-Chief of contagion and lies. As for Trump’s evangelical Christian supporters, they have an irreconcilable problem with our fundamental prohibition against state establishment of religion.

It has been a difficult year for Trump. He has had the full 2020 experience. He developed COVID, lost his job, and received an eviction notice. And now he finds himself with electicle dysfunction. Trump has long been a hater and a denier. Without intending to libel his siblings, we can say that hating and denying are in his DNA. Trump hates and denies truth, evidence, valid inference, careful analysis and synthesis. He is the apotheosis of what happens when a corrupt, small-minded business man surrounds himself with lackies, yes-people, and emotionally damaged, financially dependent children.

Trump declared victory before the votes could be tallied, and he announced in advance, without evidence, that the election was rigged but only if it turned out with the “appearance” of his losing. After the votes were tallied, and he had lost by over 5,000,000 votes, and he lost the Electoral College by the same margin he labeled a “landslide” for him four years earlier, he claimed victory, contrary to the evidence, just as he said he would. Sore loser. Millions of voting Americans, to whom Zaruk would give a moral pass, do not see this as a problem.

In The Queen’s Gambit, a Netflix series, the stern, taciturn janitor of a girls’ orphanage, Mr. Shaibel, taught Beth Harmon, a seven year old, how to play chess. In one of their early games, Beth has a clearly lost position, and Mr. Shaibel instructs her, “now you resign.” Beth protests that she still has moves she can make before there is a checkmate, but Mr. Shaibel sternly repeats himself, “no, now you resign.” Beth breaks into tears and runs out of the room, but she learned the lesson and developed the resiliency, focus, and sportsmanship to play competitive chess at the highest level. If only Mr. Shaibel could have taught our current president this lesson, perhaps he would understand that the American electorate, both the self-styled progressives and conservatives who care about decency and morality, have united in saying to him, “now you resign.”

Dr. Mary Trump, the President’s niece, has written an unflattering psychological analysis of Trump. It does not take a Ph.D. in clinical psychology to see the problem. Donald Trump and his family do not have a dog. Before Donald Trump, James K. Polk (11th president) was the last president not to have a dog in the White House (March 4, 1845 – March 4, 1849). Polk died three months after leaving office.

I suppose there are some good people who do not like dogs, but liking and caring for dogs, and being open to their affection back, certainly marks people as capable of empathy, concern, and love. I could forgive the Obamas for never having had dogs before moving into the Whitehouse; they were a hard working, ambitious two career couple, living in a large city. They fixed their omission shortly upon Obama’s election. The absence of dog from the Trump White House speaks volumes about Trump. In a rally speech, he mocked: “Can you imagine me walking a dog?” Of course, he would not want to walk a dog down a ramp. How interesting that of all the criticisms lodged against Trump, the observation that he lacked canine companionship struck such a nerve that he addressed the matter defensively in one of his rallies. And how sad that he could not imagine his son Barron walking a dog. It was probably Barron’s only hope of having another living creature close to him show concern. Of course, Melania could walk the dog, which would allow her to do something useful and entertaining (besides ignoring the Christmas decorations), especially in her high-heel dog-walking shoes.

Saturday, November 7, 2020. O joy, o rapture! People danced in the streets of the Upper East. Cars honked horns. People hung out their windows and banged pots. Grown men and women shed tears of joy and laughter. A beautiful New York day, VD Day, not venereal disease day, but victory over Donald. Trump can begin to plan for the Trump Presidential Lie-brary and adult book store.

But wait. Trump legal advisor Harmeet Dhillon tells Lou Dobbs on the Fox News Channel: “We’re waiting for the United States Supreme Court – of which the president has nominated three justices – to step in and do something. And hopefully Amy Coney Barrett will come through.” Well, that was not a terribly subtle indication of the corruption in Trump’s soul and on his legal team. Americans now know all about loyalty oaths to the leader, and the abdication of principles. Fealty to Trump is the only principle; just read the Republican Party Platform.

Former White House chief strategist Steven Bannon was not to be out done in his demonstrations of fealty. Bannon called for Dr. Anthony Fauci and FBI Director Christopher Wray to be beheaded “as a warning to federal bureaucrats. You either get with the program or you are gone.” Bannon, of course, was not in a principal-agent relationship with Trump, as was Dhillon, but given that Trump has an opinion about everything on Twitter-Twatter, and that he was silent about Bannon’s call for decapitations, we have to take his silence as tacit agreement.

It does seem that many Republicans are clutching at straws to hang on. Fraud claims require pleading with particularity, and proof by clear and convincing evidence. Extraordinary claims require extraordinary evidence. First and second order hearsay will not suffice. Surely, Rudy the Wanker knows this; indeed, when he has appeared in court, he has readily admitted that he is not pursuing a fraud case.[10] In open court, Guiliani, with a straight face, told a federal judge that his client was denied the opportunity to ensure opacity at the polls.[11]

Under the eye of Newt Gingrich, former Republican Speaker of the House, poll workers should be jailed, and Attorney General William P. Barr should step in to the fray. Never failing to disappoint, Bully Barr obliged. Still, the Republican attempt to win by litigation, a distinctly un-conservative approach, has been failing.[12]

How will we know when our national nightmare is over? There will not be the usual concession speech. Look for Trump’s announcement of his candidacy for the 2024 presidential election.

Donald J. Trump Foundation, Trump Airlines, Trump Magazine, Trump Steaks, Trump Vodka, Trump Mortgage, Trump: The Game, Trump University, GoTrump.com, Trump Marriage #1, Trump Marriage #2, Trump Taj Mahal, Trump Plaza Hotel and Casino, Plaza Hotel, Trump Castle Hotel and Casino, Trump Hotels and Casino Resorts, Trump Entertainment Resorts, Trumpnet – all failures – are now gone. Soon Trump himself will be gone as well.

Post-Script

A dimly lit room filled with coffins. Spider webs stretch across the room. Rats scurry across the floor. Slowly, the tops of the coffins are pushed open from within in, by arms of skeletons. The occupants of the coffins, skeleton, slowly get up and start talking.

Skeleton one: COVID, COVID, COVID, COVID, COVID, COVID, that’s all everyone wants to talk about.

Skeleton two: It’s no big deal; we were going to die anyway. Well at some point.

Skeleton three: And besides, now we are immune. Ha, ha, ha!

Skeleton four: Hey, look at us; we’re rounding the corner.

All, singing while dancing in a circle conga line:

We’ll be coming around the corner when he’s gone (toot, toot)

We’ll be coming around the corner when he’s gone (toot, toot)

We’ll be coming around the corner, we’ll be coming around the corner

We’ll be coming around the corner when he’s gone (toot, toot).

[1]  Wyatte Grantham-Philips, “Pastor Paula White calls on angels from Africa and South America to bring Trump victory,” USA TODAY (Nov. 5, 2020).

[2]  John Kruzel, “Justice Ruth Bader Ginsburg has taken to bashing Donald Trump in recent days,” (July 12, 2016).

[3]  Jessica Taylor, “Ginsburg Apologizes For ‘Ill-Advised’ Trump Comments,” Nat’l Public Radio (July 14, 2016).

[4]  Maggie Haberman, “George Will Leaves the G.O.P. Over Donald Trump,” N.Y. Times (June 25, 2016).

[5]  Roger Scruton, “What Trump Doesn’t Get About Conservatism,” N.Y. Times (July 4, 2018).

[6]  Tom Szigeti, “Sir Roger Scruton on Trump: ‘He doesn’t have any thoughts that are longer than 140 characters’,” Hungary Today (June 8, 2017).

[7]  David Zaruk, “The Trump Effect: Stop Telling me What to Think!,” RiskMonger (Nov. 5, 2020).

[8]  See Katherine Stewart, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism (2020).

[9]  See Amanda Carpenter, Gaslighting America – Why We Love It When Trump Lies to Us 2018.

[10]  Lisa Lerer, “‘This Is Not a Fraud Case’: Keep an eye on what President Trump’s lawyers say about supposed voter fraud in court, where lying under oath is a crime,” (Nov. 18, 2020).

[11]  Gail Collins, “Barr the Bad or Rudy the Ridiculous?” N.Y. Times (Nov. 18, 2020).

[12]  Jim Rutenberg, Nick Corasaniti and Alan Feuer, “With No Evidence of Fraud, Trump Fails to Make Headway on Legal Cases,” N.Y. Times (Nov. 7, 2020); Aaron Blake, “It goes from bad to worse for the Trump legal team,” Wash. Post (Nov. 13, 2020); Alan Feuer, “Trump Loses String of Election Lawsuits, Leaving Few Vehicles to Fight His Defeat,” N.Y. Times (Nov. 13, 2020); Jon Swaine & Elise Viebeck, “Trump campaign jettisons major parts of its legal challenge against Pennsylvania’s election results,” Wash. Post (Nov. 15, 2020).

Posted in Evidence, Public Nuisances | Comments Off on A TrumPence for Your Thoughts

The Knowledge Remedy Proposal

November 14th, 2020

Alexandra D. Lahav is the Ellen Ash Peters Professor of Law at the University of Connecticut School of Law. This year’s symposium issue of the Texas Law Review has published Professor Lahav’s article, “The Knowledge Remedy,” which calls for the imposition of a duty to conduct studies by defendants, to provide evidence relevant to plaintiffs’ product liability claims. Alexandra D. Lahav, “The Knowledge Remedy,” 98 Texas L. Rev. 1361 (2020) [cited as Lahav].

Professor Lahav’s advocated reform is based upon the premises that (1) the requisite studies needed for causal assessment “are too costly for plaintiffs to fund,” (2) are not done by manufacturers, or (3) are not done in good faith, and (4) are not conducted or adequately funded by government. Lahav believes that plaintiffs are injured by exposure to chemicals but they cannot establish causation in court because the defendant “hid its head in the sand,” or worse, “engaged in misconduct to prevent or hide research into its products.”[1] Lahav thus argues that when defendants have been found to have engaged in misconduct, courts should order them to fund studies into risks posed by their products.

Lahav’s claims are either empty or non-factual. The suggestion that plaintiffs are injured by products but cannot “prove” causation begs the question how she knows that these people were injured by the products at issue. In law professors’ language, Lahav has committed the fallacy of petitio principia.

Lahav’s poor-mouthing on behalf of claimants is factually unsupported in this article. Lahav tells us that:

“studies are too expensive for individuals or even groups to fund.”

This is assertion is never backed up with any data or evidence about the expense involved. Case-control studies for rare outcomes suffer from potential threats to their validity, but they can be assembled relatively quickly and inexpensively. Perhaps a more dramatic refutation of Lahav’s assertions come from the cohort studies done in administrative databases, such as the national healthcare databases of Denmark or Sweden, or the Veterans’ Administration database in the United States. These studies involve querying existing databases for the exposures and outcomes of interest, with appropriate controls; such studies are frequently of as high quality and validity as can be had in observational analytical epidemiology.

There are, of course, examples of corporate defendants’ misconduct in sponsoring or conducting studies. There is also evidence of misconduct in plaintiffs’ sponsorship of studies,[2] and outright fraud.[3] And certainly there is evidence of misconduct or misdirection in governmentally funded and sponsored research, sometimes done in cahoots with plaintiffs’ counsel.[4]

Perhaps more important for the intended audience of the Texas Law Review, Lahav’s assertion is demonstrably false. Plaintiffs, plaintiffs’ counsel, and plaintiffs’ advocacy groups have funded studies, often surreptitiously, in many litigations, including those involving claims of harm from Bair Hugger, asbestos, silicone gel breast implants, welding fume, Zofran, isotretinoin, and others. Lahav’s repetition of the claim does not make it true.[5] Plaintiffs and their proxies, including scientific advocates, can and do conduct studies, very much with a view toward supporting litigation claims. Mass tort litigation is a big business, often run by lawyer oligarchs of the plaintiffs’ bar. Ignorantia facti is not an excuse for someone who argues for a radical re-ordering of an already fragile litigation system.

Lahav also complains that studies take so long that the statute of limitations will run on the injury claims before the scientific studies can be completed. There is a germ of truth in this complaint, but the issue could be resolved with minor procedural modifications. Plaintiffs could be allowed a procedure to propound a simple interrogatory to manufacturing firms to ask whether they believe that causality exists between their product and a specific kind of harm, or whether a claimant should reasonably know that such causality exists to warrant pursuing a legal claim. If the manufacturers answer in the negative, then the firms would not be able to assert a limitations defense for any injury that arose on or before the date of its answer. Perhaps the court could allow the matter to stay on its docket and require that the defendant answer the question annually. Plaintiffs and their proxies would be able to sponsor studies necessary to support their claims, and putative defendants would be on notice that such studies are underway.

Without any serious consideration of the extant regulations, Lahav even extends her claims of inadequate testing and lax regulation to pharmaceutical products, which are subject to extensive requirements of showing safety and efficacy, both before and after approval for marketing. Lahav’s advocacy ignores that an individual epidemiologic study rarely “demonstrates” causation, and many such studies are required before the scientific community can accept the causal hypothesis as “disproven.” Lahav’s knowledge remedy is mostly an ignorance ruse.

[1]  Lahav at 1361.

[2]  For a recent, egregious example, see In re Zofran Prods. Liab. Litig., MDL No. 1:15-md-2657-FDS, Order on Defendant’s Motion to De-Designate Certain Documents as Confidential Under the Protective Order (D.Mass. Apr. 1, 2020) (uncovering dark data and dark money behind April Zambelli‐Weiner, Christina Via, Matt Yuen, Daniel Weiner, and Russell S. Kirby, “First Trimester Pregnancy Exposure to Ondansetron and Risk of Structural Birth Defects,” 83 Reproductive Toxicology 14 (2019)). See also In re Zofran (Ondansetron) Prod. Liab. Litig., 392 F. Supp. 3d 179, 182-84 (D. Mass. 2019) (MDL 2657);  “April Fool – Zambelli-Weiner Must Disclose” (April 2, 2020); “Litigation Science – In re Zambelli-Weiner” (April 8, 2019); “Mass Torts Made Less Bad – The Zambelli-Weiner Affair in the Zofran MDL” (July 30, 2019). See also Nate Raymond, “GSK accuses Zofran plaintiffs’ law firms of funding academic study,” Reuters (Mar. 5, 2019).

[3]  See Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (“[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.”) (emphasis added).

[4]  See, e.g., Robert M. Park, Paul A. Schulte, Joseph D. Bowman, James T. Walker, Stephen C. Bondy, Michael G. Yost, Jennifer A. Touchstone, and Mustafa Dosemeci, “Potential Occupational Risks for Neurodegenerative Diseases,” 48 Am. J. Ind. Med. 63, 65 (2005).

[5]  Lahav at 1369-70.

Posted in Cognitive Biases, Rule 702, Scientific Misconduct, Underlying Data | Comments Off on The Knowledge Remedy Proposal

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