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Professor Faigman on the Dual Goals of the Daubert Revolution

March 9th, 2013

Academic commentators on Daubert and its progeny tend to fall into two camps: acolytes and heretics. The acolytes have generally supported the changes brought about by Daubert and the ultimate statutory embrace of active expert witness gatekeeping. The heretics have maintained a rearguard action against Daubert, and Rule 702; they have tried to undermine gatekeeping at every turn.

Among the chief acolytes is David Faigman, whose books and articles have contributed substantially to the discussions and debates about the law of scientific evidence and expert witnesses. Professor Faigman’s recent article is an important contribution to the law review literature on Daubert. David L. Faigman, “The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science,” 102 U.C. Davis Law Rev. 101 (2013) [“Revolution”]. It is well worth reading.

Professor Faigman declares himself “a fan” of Daubert, and embraces the revolution in expert witness law heralded by the Supreme Court’s 1993 decision. Id. at 103. He emphasizes that the decision, quickly approaching its 20th anniversary, was truly revolutionary in how the federal courts engaged with expert witness opinion testimony, and that the consequences of the revolution are still taking shape. Id.

Faigman acknowledges that Daubert and its progeny, and the statutory embrace of gatekeeping in Rule 702, at the end of the last millennium, were important developments in ensuring the epistemic warrant of federal courts’ judgments. Some authors, hostile to the gatekeeping enterprise, have suggested that this aspect of Daubert resulted from persistent pressures from the defense bar and industry to limit plaintiffs’ access to the courts. Faigman does not address such suggestions, and I believe that they are cynical and incorrect. The federal courts, by the mid-1980’s, were deeply embarrassed by the scientific community’s opprobrium, meted out over notorious decisions, such as Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff’d and rev’d in part on other grounds, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S.950 (1986). See also In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234 (5th Cir. 1986) (“Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.”). Daubert and its progeny were, in my view, the judicial response to the scientific community’s criticisms.

Faigman’s thesis in this paper, however, lies elsewhere. He argues that the Supreme Court’s excursions into expert evidence law, in Daubert and in the later cases, were intended primarily to give trial courts greater control over their dockets by being able to excluding dubious testimony and to grant summary dispositions. Revolution at 104 Scientific verisimilitude was secondary to docket control. Id. at 105.

Faigman’s thesis is plausible and should be taken seriously. The first three cases in the “Revolution,” Daubert, Joiner, and Kumho Tire, were all tort cases with “mass tort” overtones. Daubert was one of many Bendectin cases. Joiner was a case involving occupational PCB exposures. If the tenuous scientific opinions were deemed “admissible,” there were sure to be many more such cases. And Kumho Tire was a case involving dubious allegations of a defect in a tire, the sort of allegations that plague American industry because they are so easy to manufacture, and so costly to defend.

Faigman builds an impressive case for the proposition that the justices really were trying to give trial courts managerial power to control their own dockets by filtering out essential, but deficient, expert witness testimony. Id. at 118. After all, if the Supreme Court were really interested in improving judicial use of scientific evidence, why would it have created an abuse of discretion standard for reviewing Rule 702 determinations? The abuse standard signals that decisions either way are tolerable if they are accompanied by the right verbiage and procedural steps.

Faigman also points out that the abuse-of-discretion standard deprives the appellate courts of any meaningful review of the validity of scientific opinion testimony. The claims and conclusions advanced by expert witnesses in individual cases will often be of interest and importance to scientists, policy makers, plaintiffs, defendants, beyond the confines of the individual case. The appellate courts are in a better position to ascertain validity questions, and maintain consistency in them, as a matter of law. Freed of the pressures of trial courts, and with input from amici curiae, the appellate court can evaluate validity issues more deliberately with a view to harmonizing competing factors across many cases. The scientific issues are, in any event, often non-case specific, or they have the tendency to recur in many cases of the same type. Id. at 131.

Faigman’s thesis sheds light upon who the heretics are, and why they have worked so hard to undermine expert witness gatekeeping. At stake is not only greater scientific validity, but also summary disposition of litigation rent-seeking. Rule 702 gatekeeping challenges judges and commentators to identify their priorities: commitment to scientific principles or to litigation as an alternative to regulation and legislation on behalf of a special constituency.

There are some ironies inherent in Faigman’s thesis. The trial bench has been reluctant to exercise its gatekeeping function as a method of docket control. Instead, it has moved towards greater use of pre-trial consolidations in multi-district litigations to achieve economies of scale. The MDL trend, however, has its problems. Placing responsibility for expert witness gatekeeping in the MDL court may be counter to its “pre-trial” rationale of the MDL statute. Furthermore, exercising gatekeeping across hundreds or thousands of cases heightens and highlights the anxieties, fears, distaste, and institutional incompetence for deciding scientific issues. The move toward MDL handling has had the apparent result of diluting the gatekeeping mandate and reducing the use of summary dispositions.

The procedural and the validity goals of Daubert are quite independent. Validity may have been, as Faigman argues, a secondary goal for the Justices, but it was a worthy goal in and of itself. I believe Professor Faigman would agree. In describing the Supreme Court’s path on validity, Faigman notes that there were two competing models of expert witness admissibility determinations that vied for acceptance: Frye, and then Daubert. Id. at 105. He likens Frye to nose counting among the “relevant” scientific community for support of the witness’s methodology. All a trial judge need do is identify the relevant community and then to count the noses. Daubert represented a possible alternative:

“to charge judges with the responsibility to consider the methods and principles underlying proffered expert opinion and have them make the validity determination.”

Id. at 105. Making trial judges responsible for warranting the validity of scientific evidence, and ultimately all expert witness opinion testimony, was one of the important changes that resulted in the Revolution and its embrace of “good grounds” or epistemic validity:

“[p]roposed testimony must be supported by appropriate validation.”

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993)

Professor Faigman correctly observes that, although lawyers and lower court judges have obsessed over the so-called Daubert factors, the actual holding of Daubert was “the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.” Revolution at 111 (quoting Daubert, 509 U.S. at 590). Despite the improvident dictum about focus on methodology and not on conclusions, the Supreme Court, in Daubert, had made clear that there are necessary implications of Rule 702’s requirement that expert witness testimony relate to specialized “knowledge”:

“This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

Daubert, 509 U.S. at 592-93.

Professor Faigman writes to point out the erroneous interpretations and distortions of Daubert, its progeny, and Rule 702:

“The holding of Daubert is the requirement that judges find as a preliminary fact that the methods and principles underlying proffered expert testimony are sufficiently valid to support that testimony. The four ‘Daubert factors’ were offered as guidelines to help courts assess expert testimony.”

Revolution at 114.

Faigman’s writing is a useful reminder to those judges and commentators who would simplify and abridge the entire gatekeeping project into one or another dictum found in Daubert (or Joiner or Kumho Tire), and who ignore the actual holding of the cases, or the mandate of the subsequent statute. For those writers who try to evade the difficult scientific determinations and discriminations inherent in evaluating causal claims and other scientific opinions, Faigman reminds us that Justice Breyer, in his concurrence in Joiner, was not shy about pointing out that gatekeeping:

“will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer.”

General Electric Company v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 520 (1997) (Breyer, J., concurring). I take Faigman’s essay as an eloquent importuning of the judiciary to heed Justice Breyer, to stop whining, and to start learning.

It is a measure of Professor Faigman’s concern for the accuracy and validity of scientific testimony that he cannot bring himself to address a third way: ignore validity, reliability, sufficiency, and simply allow expert witnesses to battle out.

This third way was what really prevailed before Daubert in much of civil litigation over health effects. The Frye rule was rarely if ever applied to such cases, and most states excepted the opinion testimony of physicians, in any event. Before Frye, we had whatever was dished up by ready, willing, able (and sufficiently glib) testifiers. To be sure, expert witnesses had to be qualified, but the threshold was astonishingly low. In Pennsylvania, for instance, the standard is that the putative “expert” must have “a reasonable pretense of expertise.” See, e.g., Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 9-10 (1991); Kuisis v. Baldwin-Lima-Hamilton Corp.,457 Pa. 321, 319 A.2d 914 (1974)(“the witness must have a reasonable pretension to specialized knowledge on the subject under investigation”). The federal courts were not far behind. Ferebee v. Chevron Chem. Co., 552 F. Supp. 1297 (D.D.C. 1982), aff’d, 736 F.2d 1529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984).

Indeed, there is a pervasive, reactionary movement afoot, among judges and academic commentators to return to the wild, woolly days, celebrated in Ferebee’s famous dictum:

“On questions … which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”

Ferebee, 736 F.2d at 1534. This third way then is simply to delegate to the expert witnesses themselves to assess the “weight of the evidence,” and offer up their opinions, without any scrutiny from the courts as to the validity or sufficiency of the bases for those opinions. This retrograde step is not just the stuff of naive law student musings. See, e.g., Note, “Admitting Doubt: A New Standard for Scientific Evidence,” 123 Harv. L. Rev. 2021 (2010). Reactionaries in the Academy and in the judiciary are intent to reduce gatekeeping to a weak test of relevancy, without any determination of content validity.

Posted in Expert Witnesses, Rule 702, Scientific Evidence, Trial Procedure | Comments Off on Professor Faigman on the Dual Goals of the Daubert Revolution

New York Breathes Life Into Frye Standard – Reeps v. BMW

March 5th, 2013

In Lumpenepidemiology, I detailed how one federal judge, the Hon. Helen Berrigan, was willing to “just say no” to bad epidemiology and bad science, and to shut an expert witness’s attempt to distort and subvert scientific methodology. Judge Berrigan closely examined the plaintiffs’ claim that a mother’s ingestion of Paxil caused a child’s heart defect, and found the proffered expert witness testimony to fail legal and scientific standards. Frischhertz v. SmithKline Beecham Corp., 2012 U.S. Dist. LEXIS 181507 (E.D.La. 2012). The plaintiffs’ key expert witness, Dr. Shira Kramer, attempted to provide plaintiffs with a necessary association by “lumping” all birth defects together in her analysis of epidemiologic data of birth defects among children of women who had ingested Paxil (or other SSRIs). Given the clear evidence that different birth defects arise at different times, based upon interference with different embryological processes, the trial court discerned this “lumping” of end points to be methodologically inappropriate. Id. at *13 (citing Chamber v. Exxon Corp., 81 F. Supp. 2d 661 (M.D. La. 2000), aff’d, 247 F.3d 240 (5th Cir. 2001).

Frischhertz was decided in December 2012, the same month that another trial judge, right here in New York City, caught Dr. Shira Kramer in the commission of similar lumpenepidemiology, in Reeps v. BMW of North America, LLC, New York S.Ct., Index No. 100725/08 (New York Cty. Dec. 21, 2012) (York, J.). See William Ruskin, “Frye Decision in BMW Case Results in Exclusion of Plaintiff’s Experts” (Jan. 17, 2013). Reeps was also a birth defects case. Debra Reeps claimed that during the first trimester of her pregnancy, she was exposed to gasoline fumes from a fuel-line leak in her BMS 525i. She also claimed that her son’s adverse birth outcomes (which included severe mental retardation, severe cerebral palsy, and a congenital heart defect) were caused by her inhalation of gasoline fumes. Heading the plaintiffs’ team of expert witnesses in support of these claims, Epidemiologist Shira Kramer opined that all of the boy’s problems were caused by the mother’s exposure to unleaded gasoline fumes.

Kramer’s opinions read like the Berenstain Bears’ guide to epidemiology. She asserted that gasoline vapors and its constituents (toluene, benzene, solvents, etc.), individually or collectively, cause “birth defects” generally, and Sean Reeps’ defects specifically. Kramer also asserted that she used a “weight-of-evidence assessment,” which included a consideration of Bradford Hill’s criteria for judging causality. BMW moved to exclude plaintiffs’ witnesses, including Kramer, on grounds that the witnesses’ evidence and methods were “novel, unorthodox, unreliable and not generally accepted in the relevant scientific communities.” Reeps slip op. at 5. The number of ways that Kramer’s opinions ran afoul of New York law of expert witness opinions is remarkable.

Animal Studies

The animal studies found no relevant adverse birth effects, even at high gasoline fume exposure levels. Kramer and her posse nonetheless cited animal studies involving cancer, miscarriage, and anemia for the general claim that gasoline fumes causes birth defects, as though such defects could all be lumped together.

Case Reports

Kramer relied upon two published papers of case reports in which women were exposed to leaded gasoline and then gave birth to children with malformations. Given that the exposures reported were to leaded gasoline, the case reports were dubious in the first instance. Furthermore, the reported defects were not even the same as those experienced by Sean Reeps. Although the court seemed willing to engage in a discussion of what these case reports might offer towards a synthesis of all evidence, it ultimately recognized that, pace Raymond Wolfinger, plural of anecdote is not data. “Courts have recognized that … case reports are not generally accepted in the scientific community on questions of causation.” Slip op. at 17 (quoting from Heckstall v. Pincus, 19 A.D.3d 203, 205, 797 N.Y.S.2d 445 (1st Dept. 2005)).

Exposure Assessment

The chemical components in gasoline, blamed by Kramer, make up no more than two percent of gasoline vapor. Reeps, slip at 6. One of plaintiffs’ expert witnesses asserted, without measurements, that Debra Reeps experienced atmospheric concentrations of gasoline at least 1,000 p.p.m. Plaintiffs claimed that this level of exposure was tantamount to recreational solvent abuse, in an attempt to rely upon studies of solvent exposure at very high levels. BMW showed that the witnesses’ speculation was unfounded and implausible. The fuel-line leak would have to leak about a gallon per mile driven to generate 1,000 p.p.m. in the passenger compartment. Id. at 8.

Teratology Principles

Because certain structures, organs, and tissues in a developing embryo or fetus form at predictable stages of pregnancy, the science of teratology plays close attention to when the exposure to the putative teratogen occurred in the time course of a pregnancy. Late exposures to known teratogens cannot very well explain harms that can result only from exposure early in pregnancy. Similarly, early exposures cannot explain harms that arise only out of teratogenic exposures. Debra Reeps’ claimed gasoline exposure occurred in her first trimester. Despite Dr. Shira Kramer’s efforts, the neurological deficits and injuries in Sean Reeps thus cannot be explained by his mother’s early term exposures, even if gasoline fumes had the claimed teratogenic properties.

Ipse Dixit

Debra Reeps had a history of herpes simplex infection, which could explain her son’s cerebral palsy. Slip op. at 7. Dr. Kramer asserted that there were no alternative causes.

Epidemiology

Apparently no analytical epidemiologic study (either cohort or case-control) found an association between gasoline fume exposure in pregnancy and Sean Reeps’ birth defects. Kramer attempted to claim that the “[f]ailure to detect a statistical association does not establish that there is no association between an exposure and an outcome.” Slip op. at 15. Absence of evidence may not show evidence of absence, but it also does not show evidence of harm.

In one episode of Seinfeld, Jerry Seinfeld chides a rental car clerk for not honoring a reservation. “You know how to take the reservation; you just don’t know how to hold the reservation. And that’s really the most important part.” Scientific methodology is similar to making reservations. Anyone can claim to be following Sir Austin Bradford Hill’s causal criteria, but actually applying the criteria faithfully is really what the “methodology” is all about. The abridged form favored by Dr. Kramer is indeed unorthodox, novel, unreliable, invalid, and unacceptable, scientifically and legally, as Justice York found in Reeps. In essence, the plaintiffs argued that all their expert witnesses need show is that they are aware of proper methodologies, not that they actually used the methodologies properly. Shira Kramer, and the other plaintiffs’ expert witnesses, offered a pastiche of a method, in the hopes that this would be sufficient. Absent was a systematic review, and a proper analysis of the evidence. The Reeps case rejoined: the law requires the real thing.

New York’s adherence to a Frye standard creates a potential roadblock to meaningful gatekeeping. If an expert witness could evade gatekeeping by simply claiming to be following epidemiologic methods, regardless of how badly, that witness could undermine the interests of the justice system in weeding out speculative, unreliable, or invalid opinions. The New York Court of Appeals demonstrated its unwillingness to tolerate such evasions. See, e.g., Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 857 N.E.2d 1114, 824 N.Y.S.2d 584 (2006) (excluding testimony of Dr. Bernard Goldstein, and dismissing leukemia (AML) claim based upon claimed low-level benzene exposure from gasoline) , aff’g 16 A.D.3d 648 (App. Div. 2d Dep’t 2005).

In Reeps, Justice York makes clear that it is the “plaintiff’s burden to prove the methodology applied to reach the conclusions will not be rejected by specialists in the field.” Slip op. at 11. The trial court recognized that a Frye hearing in New York must determine whether plaintiffs’ expert witnesses are faithfully applying a methodology, such as the Bradford Hill criteria, or whether they are they are “pay[ing] lip service to them while pursuing a completely different enterprise.” Id. To be sure, litigants might not welcome this level of scrutiny for their expert witnesses. Justice York’s recognition that the court must examine a proffered opinion to determine whether it “properly relates existing data, studies or literature to the plaintiff’s situation, or whether, instead, it is connected to existing data only by the ipse dixit of the expert,” carries with it, an acknowledgment that New York law, like federal Rule 702, requires an assessment of the validity and sufficiency of the evidence and inferences that make up an expert witness’s opinions. Id. (internal quotations omitted).

Posted in Causation, Expert Witnesses, Frye | Comments Off on New York Breathes Life Into Frye Standard – Reeps v. BMW

Leaving Las Vegas

February 24th, 2013

The Journal of the National Cancer Institute recently published a curious article about what appears to be unpublished research that suggests a non-asbestos environmental cause of malignant mesothelioma in Clark County, Nevada. Leslie Harris O’Hanlon, “Researchers Explore Possible Link Between Mesothelioma and Dust Emissions in Southern Nevada,” J. Nat’l Cancer Instit., doi: 10.1093/jnci/djt033, published ahead of print (Feb. 12, 2013).

The researcher appears to have been Francine Baumann , an epidemiologist at the University of Hawaii Cancer Center, who has worked with Michele Carbone, on occasion. Analyzing Nevada’s cancer registry data from 1995 to 2008, Baumann found what she believed to be an increase in earlier age at diagnosis, and a reduced ratio of male-to-female cases for Clark County. She interpreted these data to show that an environmental exposure was at work, but she professed ignorance of what the exposure might be.

The article also quotes the Nevada state epidemiologist, Ihsan Azzam, M.D., Ph.D., as saying:

“We analyzed the data and used the same data set as the researcher and came to completely different conclusions and findings. Their interpretation of data and their representation of it is wrong.”

The article presents no data or statistical analysis. Given that Baumann’s work is unpublished, and apparently contradicted, it is curious that the Journal would publish any story about it. Some of the raw data can be found online at Nevada Central Cancer Registry, including an online database, and Reports From The Office of Public Health Informatics and Epidemiology.

The O’Hanlon article is even more curious considering the nature of the research. There are 16 counties in Nevada, so Baumann presumably was canvassing counties without a pre-specified hypothesis as to whether Clark County was different from the others, or from the national rates. This seems like post-hoc data dredging, but the Journal does not provide sufficient information to assess the validity of Baumann’s work.

The O’Hanlon article bizarrely talks about an unknown environmental cause in Clark County, but does not mention erionite, a zeolite. The article discusses erionite-associated mesothelioma in Turkey, and an investigation into erionite occurrences in the United States. Remarkably, O’Hanlon fails to mention that erionite occurs in Clark County, and in many other counties, throughout Nevada. The NIOSH Science Blog fills in the missing information by showing how widespread erionite deposits are throughout Nevada. See David Weissman, MD, and Max Kiefer, MS, CIH, “Erionite: An Emerging North American Hazard,” (Nov. 22, 2011). Of course, the widespread deposits argue against erionite as a causal explanation for the putative environmental trigger in Clark County. See also Arthur J. Gude & Richard Sheppard, “Wooly Erionite from the Reese River Zeolite Deposit, Lander County, Nevada, and its Relationship to Other Erionites,” 29 Clays and Clay Minerals, 378-384 (1981); Keith Papke, “Erionite and Other Associated Zeolites in Nevada,” Bulletin 79, Nevada Bureau of Mines and Geology (1972).

Erionite occurs in several mineralogical forms, including non-fibrous and various fibrous forms. The erionite associated with environmental cases in Turkey has been studied and found to be fibrous, but there are many variations in fibers, including length, and length-to-diameter aspect ratio. Erionite is a zeolite mineral and has the ability to absorb metal ions, including chromate, uranyl, and other ions, which may be an independent source of potential carcinogenicity.

There are many reasons to leave Las Vegas, but Dr. Baumann probably has not found a new one.

Posted in Causation, Risk and Risk Factor, Scientific Evidence | Comments Off on Leaving Las Vegas

The Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research

February 19th, 2013

“[A]n anti-asbestos lobby, based in the Mount Sinai School of Medicine of the City University of New York, promoted the fiction that asbestos was an all-pervading menace, and trumped up a number of asbestos myths for widespread dissemination, through media eager for bad news.”

This statement was not the ranting of an industrialist whose company was bankrupted by asbestos personal injury cases; nor was it the complaint of an industry scientist, dismayed at a body of research that showed his industry’s product to be harmful. The statement was made by one of the most independent, thoughtful scientists who has worked on asbestos health effects, the late Doug Liddell, of the Department of Epidemiology and Biostatistics, in McGill University. F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997).

Although Professor Liddell died in 2003, the “Lobby” lives and thrives. Witness the article published earlier this month, in The Lancet. David Holmes, “IARC in the dock over ties with asbestos industry,” 381 Lancet 359 (2013). A Scientist at the International Agency for Research on Cancer (IARC), Valerie McCormack, accepted an invitation to present data at a scientific conference in Kiev, Russia, on chrysotile asbestos risk assessment and management. McCormack’s decision set off a firestorm of protest from various sources, claiming that the Russian scientists were in “cahoots” with the Russian asbestos industry.

The Lancet article presents a muddled account of the issues, but a persistent reader may make out several supposed concerns of the “Lobbyists.” First, the Lobbyists objected on grounds that an earlier version of the paper to be delivered by McCormack, “Estimating the asbestos-related lung cancer burden from mesothelioma mortality,” was too favorable to chrysotile in relation to commercial amphibole asbestos. (The Lancet fails to mention that McCormack’s paper has since been published, with co-authorship by some distinguished scientists. See Valerie McCormack, Julian Peto, G. Byrnes, K. Straif, and P. Boffetta, “Estimating the asbestos-related lung cancer burden from mesothelioma mortality,” 106 Brit. J. Cancer 575 (2012).)

Second, the Lobbyists objected to IARC’s decision to collaborate on a study of Russian miners and millers, with Evgeny Kovalevkiy. The study, entitled “Historical cohort study of cancer mortality following exposure to chrysotile asbestos at the Uralasbest plant in Asbest, Russian Federation” is supported by the Russian Scientific Research Institute of Occupational Health (SRIOH), which supports the continued mining and exporting of chrysotile asbestos. Especially vexing to the Lobbyists, Kovalevskiy has personally advocated public policy that encourages the continued use of chrysotile. In the words of three American political scientists who sent a letter of protest to the IARC:

“Kovalevskiy is a leading promoter of use of chrysotile asbestos. He testified before the Supreme Court of Brazil in August 2012, as witness on behalf of the Brazilian Chrysotile Institute. He testified that there is no evidence whatsoever to justify banning the use of chrysotile asbestos; that he opposes placing chrysotile asbestos on the Rotterdam Convention’s List of Hazardous Substances; that, in the past, harm to health was caused by the use of amphibole asbestos and excessive, prolonged exposure levels to chrysotile asbestos, but that, today, chrysotile asbestos is causing no harm to health in Russia. We consider that it is unacceptable that a scientist, who is a promoter of chrysotile asbestos use, should be a lead scientist on an IARC research project regarding chrysotile asbestos.”

“IARC in the dock” at 360 (quoting letter signed by Richard Lemen, Arthur Frank, and Barry Castleman). The Lancet article conveniently omits any reference to the remunerative and unremunerative work by these gentlemen for the American anti-asbestos litigation industry.

Posted in Conflicts of Interest, Expert Witnesses, Scientific Misconduct | Comments Off on The Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research

Milward Symposium Organized By Plaintiffs’ Counsel and Witnesses

February 16th, 2013

The criticisms of corporate free speech are motivated, at bottom, over hostility to the views that would likely flow from corporate speech. In this age, it is a marvel that there is such hostility to free expression of ideas. We should be much more focused on validity and factual accuracy of arguments than on sponsorship. Sometimes, even the most biased sources manage to stumble upon the truth.

Still, sponsorship remains a major debating point for those who cannot or will not take the time to evaluate the merits of an issue. The Center for Progressive Reform (CPR) is, like many American corporations, a nonprofit organization, but it aspires to be a “research and educational organization.” The CPR’s principal aims deal with protecting health and safety against occupational and environmental harms. These are laudable goals even if the CPR is predictably a voice of entrenched interest groups, such as the litigation industry, also known as the plaintiffs’ tort bar.

One of the CPR’s key activities is “[d]efending clean science from political or corporate interference.” The CPR raises interesting questions about what is “clean,” and what is “dirty” science, and whether it is willing to defend science from all political and corporate interference, or only that interference with which it disagrees.

The American litigation industry is represented by a highly politicized “corporation,” the American Association for Justice (AAJ), previously known by the more revealing name, Association of Trial Lawyers of America (ATLA®). The AAJ describes itself as a corporation, or a “collective,” that supports plaintiff trial lawyers as their “collective voice … on Capitol Hill and in courthouses across the nation … .” The Robert A. Habush Foundation is endowed by the AAJ, and serves as an educational mission. Through the Habush Foundation, the AAJ funds educational programs, “think tanks,” and writing projects designed to influence judges, law professors, lawyers, and the public, on issues of importance to the AAJ: “the civil justice system and individual rights” for bigger, better, and more profitable litigation outcomes.

Of the two organizations, the CPR, and the AAJ/ATLA, the CPR has the more disinterested stance, in theory. The AAJ may be a “not-for-profit,” but it represents the interests of one of the most powerful, and wealthiest, interest groups in American society — the plaintiffs’ bar.

Last May, the CPR sponsored a symposium in Washington D.C. on one of the most controversial, and reactionary decisions involving federal gatekeeping of expert witness testimony, Milward v. Acuity Specialty Products Group, Inc., 664 F.Supp. 2d 137 (D. Mass. 2009), rev’d, 639 F.3d 11 (1st Cir. 2011), cert. denied, U.S. Steel Corp. v. Milward, ___ U.S. ___, 2012 WL 33303 (2012). The CPR’s interest in the Milward decision is clear. One of CPR’s member “scholars,” Carl Cranor, was a partisan expert witness in Milward. The trial court had excluded Cranor’s testimony; a panel of the First Circuit of the Court of Appeals reversed and ordered that Cranor and the plaintiffs’ other expert witnesses be heard at trial. See Milward — Unhinging the Courthouse Door to Dubious Scientific Evidence (Sept. 2, 2011); WOE-fully Inadequate Methodology – An Ipse Dixit By Another Name (May 2, 2012). The Milward decision embraced a vacuous methodology sometimes called “weight of the evidence” (WOE) or “inference to the best explanation,” which had been previously rejected by other Circuits, as well as by the United States Supreme Court, in General Electric Co. v. Joiner, 522 U.S. 136 (1997).

The agenda for the symposium, “Toxic Tort Litigation after Milward v. Acuity Specialty Products,” reflects the CPR’s role, in conjunction with the Wake Forest Journal of Law and Public Policy, in sponsoring the event. The connection between the CPR and Wake Forest Law School may not be obvious. CPR board member, Sid Shapiro, is a law professor at Wake Forest. Shapiro and CPR member Thomas McGarity presented at the symposium. So did Professor Steve Gold, who has been an enthusiastic cheerleader for the Milward decision. Law professors Michael Green and Joseph Sanders also presented. There was only one practicing lawyer involved in the symposium, Texas plaintiffs’ lawyer, Steve Jensen, of Allen Stewart, P.C. Mr. Jensen is a past chair of the AAJ’s Section on Toxic, Environmental, and Pharmaceutical Torts.

No defense counsel participated.

The proceedings of the Milward symposium will be published in an upcoming issue (volume 3, no. 1) of the Wake Forest Journal of Law and Public Policy. This issue is scheduled to include papers from the presenters, along with one additional author, Carl Cranor.

The website of the Wake Forest Journal of Law & Policy describes the symposium:

In Milward v. Acuity Products, 639 F.3d 11 (1st Cir. 2011), the First Circuit became the first court – either federal or state – to allow a “weight of the evidence” methodology for assessing causation in a toxic tort case. The plaintiff had alleged that exposure to defendant’s benzene-containing products caused his rare leukemia (Acute Promyelocytic Leukemia (“APL”)). His expert witness, a leading toxicologist and expert on benzene, surveyed five lines of scientific evidence from the peer-reviewed literature, and concluded the available evidence, taken as a whole, supported the inference that benzene exposure can cause APL. The lower court, following a common post-Daubert approach, excluded the testimony “because no one line of evidence supported a reliable inference of causation, [and] an inference of causation based on the totality of the evidence was unreliable.” The First Circuit rejected this “atomistic” approach, noting that the district court did not have the authority to exclude evidence because reasonable experts may disagree about what it means.

This symposium will explore the implications of Milward for toxic tort litigation in the federal and state courts, including whether it correctly applies Daubert v. Merrell Dow Pharmaceuticals, Inc., 509, U.S. 579 (1993). * * * Speakers are invited to comment on any aspect on Milward that they find interesting and important, including the following issues:

What role does the weight of the evidence methodology play in scientific risk assessment, and what are the implications of this role for tort litigation?

Should well-founded testimony based on a weight of the evidence methodology be admissible in toxic tort litigation? Does the Restatement of Torts (Third) § 28 cmt. c concerning the role of scientific judgment in adjudicating general causation support the admissibility of such testimony?

Does the reliance of regulatory agencies, such as EPA, on a weight of the evidence methodology for purposes of regulating toxic chemicals support the result in Milward? Or are there differences in the legal and policy judgments being made by regulators and judges that distinguish regulatory agencies from courts?

What are the legal and policy implications of Milward for the future of toxic tort litigation?

The Journal also notes the sponsorship of the CPR, and, in a cryptic paragraph, reports that

“CPR thanks the Robert L. Habush Foundation for its support of the symposium.”

Most casual readers will not likely recognize the Habush foundation for what it is: an arm of AAJ/ATLA. I suppose it was too painful for Wake Forest or the CPR to acknowledge openly that the litigation industry itself supported this symposium. Some may find irony in the CPR’s past criticism of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), when its current status as a conduit for litigation industry money to support scholarship in that industry’s interests. See Daniel Farber, “Of the Corporations, By the Corporations, For the Corporations? The Meaning of the Citizens United Decision” (Jan. 21, 2010).

Professor Steve Gold’s paper, “When Certainty Dissolves into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era,” has been posted at the Social Science Research Network. Steve Jensen’s contribution to the symposium has been published as well, in the AAJ’s trade journal. Steve Baughman Jensen, “Reframing the Daubert Issue in Toxic Tort Cases,” Trial (Feb. 2013).

Posted in Conflicts of Interest, Expert Witnesses, Rule 702 | Comments Off on Milward Symposium Organized By Plaintiffs’ Counsel and Witnesses

Probabilism Case Law

January 28th, 2013

Some judges and commentators have characterized all evidence as ultimately “probable,” but other writers have criticized this view as trading on the ambiguities inherent in our ordinary usage of probable to convey an epistemic hedge or uncertainty. How successful is the probabilistic program in the law? In the context of assessing causation, many courts have succumbed to the temptation to substitute risk for causation. Other courts have noticed the difference between a prospective risk and a retrospective factual determination that a risk factor actually participated in bringing about the caused result. In any event, judicial skepticism about probabilistic evidence, in many contexts, has found its expression in holdings and in dicta of common law courts. The following is a chronological listing of some pertinent cases that rejected or limited the use of overtly probabilistic evidence. There are only two cases involving epidemiological evidence before 1970 on the list.

Day v. Boston & Maine R.R., 96 Me. 207, 217–218, 52 A. 771, 774 (1902) (“Quantitative probability, however, is only the greater chance. It is not proof, nor even probative evidence, of the proposition to be proved. That in one throw of dice, there is a quantitative probability, or greater chance, that a less number of spots than sixes will fall uppermost is no evidence whatever that in a given throw such was the actual result. Without something more, the actual result of the throw would still be utterly unknown. The slightest real evidence would outweigh all the probability otherwise.”)

Toledo, St. L. & W. R. Co. v. Howe, 191 F. 776, 782-83 (6th Cir. 1911) (holding that evidence at issue was not probabilistic, but noting in dictum that “[n]o man’s property should be taken from him on the mere guess that he has committed a wrong. . . because of a probability among other probabilities that the accident for which recovery is sought might have happened in the way charged.”)

People v. Risley, 214 N.Y. 75, 86, 108 N.E. 200, 203 (1915) (holding that probability calculations were improper when “the fact to be established in this case was not the probability of a future event, but whether an occurrence asserted by the people to have happened had actually taken place”)

Lampe v. Franklin Am. Trust, 339 Mo. 361, 384, 96 S.W.2d 710, 723 (1936) (“verdict must be based upon what the jury finds to be facts rather than what they find to be ‘more probable’.”)

Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, 827 (1940) (the preponderance standard requires more than showing that the chances mathematically favor a fact in dispute; the proponent must prove the proposition in dispute such that the jurors form an actual belief in the truth of the proposition) (“It has been held not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer. The weight or preponderance of the evidence is its power to convince the tribunal which has the determination of the fact, of the actual truth of the proposition to be proved. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may linger there.”)

Smith v. Rapid Transit, 317 Mass. 469, 470, 58 N.E.2d 754, 755 (1945) (evidence that defendant was the only bus franchise operating in the area where the accident took place was not sufficient to establish that the bus that caused the accident belonged to the defendant where private or chartered buses could have been in the area; it is not enough that mathematically the chances somewhat favor the proposition to be proved)

Kamosky v Owens-Illinois Co., 89 F. Supp. 561, 561-62 (M.D.Pa. 1950) (directing verdict in favor of defendant; statistical likelihood that defendant manufactured the bottle that injured plaintiff was insufficient to satisfy plaintiff’s burden of proof)

Mahoney v. United States, 220 F. Supp. 823, 840 41 (E.D. Tenn. 1963) (Taylor, C.J.) (holding that plaintiffs had failed to prove that their cancers were caused by radiation exposures, on the basis of their statistical, epidemiological proofs), aff’d, 339 F.2d 605 (6th Cir. 1964) (per curiam)

In re King, 352 Mass. 488, 491-92, 225 N.E.2d 900, 902 (1967) (physician expert’s opinion that expressed a mathematical likelihood, unsupported by clinical evidence, that claimant’s death from cancer was caused by his accidental fall was legally insufficient to support a judgment)

Garner v. Heckla Mining Co., 19 Utah 2d 367, 431 P.2d 794, 796 97 (1967) (affirming denial of compensation to family of a uranium miner who had smoked cigarettes and had died of lung cancer; statistical evidence of synergistically increased risk of lung cancer among uranium miners is insufficient to show causation of decedent’s lung cancer, especially considering his having smoked cigarettes)

Whitehurst v. Revlon, 307 F. Supp. 918, 920 (E.D. Va. 1969) (holding that challenged evidence was not probabilistic, and noting in dictum that probability evidence of negligence evidence would leave verdict based upon conjecture, guess or speculation)

Guenther v. Armstrong Rubber Co., 406 F.2d 1315, 1318 (3d Cir. 1969) (holding that defendant cannot be found liable on the basis that it supplied 75-80% of the kind of tire purchased by the plaintiff; any verdict based on this evidence “would at best be a guess”)

Crawford v. Industrial Comm’n, 23 Ariz. App. 578, 582-83, 534 P.2d 1077, 1078, 1082-83 (1975) (affirming an employee’s award of no compensation because he was exposed to disease producing conditions both on and off the job; a physician’s testimony, expressed to a reasonable degree of medical certainty that the working conditions statistically increased the probability of developing a disease does not satisfy the reasonable certainty standard)

Olson v. Federal American Partners, 567 P.2d 710, 712 13 (Wyo. 1977) (affirming judgment for employer in compensation proceedings; cigarette smoking claimant failed to show that his lung cancer resulted from workplace exposure to radiation, despite alleged synergism between smoking and radiation).

Heckman v. Federal Press Co., 587 F.2d 612, 617 (3d Cir. 1977) (statistical data about a group do not establish facts about an individual)

Bazemore v. Davis, 394 A.2d 1377, 1382 n.7 (D.C. 1978) (if verdicts were determined on the basis of statistics indicating high probability of alleged facts, more often than not they would be correct guesses, but this is not a sufficient basis for reaching verdicts)

Kaminsky v. Hertz Corp., 94 Mich. App. 356 (1979) (dictum; reversing summary judgment)

Sulesky v. United States, 545 F. Supp. 426, 430 (S.D.W.Va. 1982) (swine flu vaccine GBS cases; epidemiological studies alone do not prove or disprove causation in an individual)

Robinson v. United States, 533 F. Supp. 320, 330 (E.D. Mich. 1982) (finding for government in swine flu vaccine case; the court found that that the epidemiological evidence offered by the plaintiff was not probative, and that it “would reach the same result if the epidemiological data were entirely excluded since statistical evidence cannot establish cause and effect in an individual”)

Iglarsh v. United States, No. 79 C 2148, 1983 U.S. Dist. LEXIS 10950, *10 (N.D.Ill. Dec. 9, 1983) (“In the absence of a statistically valid epidemiological study, even the plaintiff’s treating physician or expert witness, or any clinician for that matter, is unable to attribute a plaintiff’s injury to the swine flu vaccination.”)

Johnston v. United States, 597 F. Supp. 374, 412, 425-26 (D.Kan. 1984) (although the probability of attribution increases with the relative risk, expert must still speculate in making an individual attribution; “a statistical method which shows a greater than 50% probability does not rise to the required level of proof; plaintiffs’ expert witnesses’ reports were “statistical sophistry,” not medical opinion)

Kramer v. Weedhopper of Utah, Inc., 490 N.E.2d 104, 108 (Ill. App. Ct. 1986) (Stamos, J., dissenting) (“Liability is not based on a balancing of probabilities, but on a finding of fact. While the majority contends that the measure of what is considered sufficient evidence [to support submitting a case to the jury] resolves itself into a question of probability, a review of case law … reveals that a theoretical probability alone cannot be the basis for [a prima facie case]. There must be some evidence in addition to the abstraction which will enable a jury to choose between competing probabilities.”)

Washington v. Armstrong World Industries, 839 F.2d 1121 (5th Cir. 1988) (affirming grant of summary judgment on grounds that statistical correlation between asbestos exposure and disease did not support specific causation)

Thompson v. Merrell Dow Pharm., 229 N.J. Super. 230, 244, 551 A.2d 177, 185 (1988) (epidemiology looks at increased incidences of diseases in populations)

Norman v. National Gypsum Co., 739 F. Supp. 1137, 1138 (E.D. Tenn. 1990) (statistical evidence of risk of lung cancer from asbestos and smoking was insufficient to show individual causation, without evidence of asbestos fibers in the plaintiff’s lung tissue)

Smith v. Ortho Pharmaceutical Corp., 770 F. Supp. 1561, 1576 (N.D. Ga. 1991) (“The court notes that, in an individual case, epidemiology cannot conclusively prove causation; at best, it can establish only a certain probability that a randomly selected case of birth defect was one that would not have occurred absent exposure (or the ‘relative risk’ of the exposed population).”)

Smith v. Ortho Pharmaceutical Corp., 770 F. Supp. 1561, 1573 (N.D. Ga. 1991) (“However, in an individual case, epidemiology cannot conclusively prove causation; at best, it can only establish a certain probability that a randomly selected case of disease was one that would not have occurred absent exposure, or the ‘relative risk’ of the exposed population. Epidemiology, therefore, involves evidence on causation derived from group-based information, rather than specific conclusions regarding causation in an individual case.”)

Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359–60 (7th Cir. 1998) (Posner, C.J.)

Krim v. pcOrder.com, Inc., 402 F.3d 489 (5th Cir. 2005) (rejecting standing plaintiffs’ standing to sue for fraud absent a showing of actual tracing of shares to the offending public offering; statistical likelihood of those shares having been among those purchased was insufficient to confer standing)

Posted in statistical evidence | Comments Off on Probabilism Case Law

New Release of PLI’s Treatise on Product Liability Litigation

January 19th, 2013

The Practicing Law Institute (PLI) has released a new edition of its treatise on product liability litigation. Stephanie A. Scharf, Lise T. Spacapan, Traci M. Braun, and Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (PLI Dec. 2012).

The new edition, the third release of the treatise, has several new chapters, including my contribution, Chapter 30A, “Statistical Evidence in Products Liability Litigation,” which discusses the use of, and recent developments, in statistical and scientific evidence in the law, including judicial mishandling of “significance probability,” statistical significance, statistical power, and meta-analysis. Here is the table of contents for this new chapter on statistical evidence:

§ 30A:1 : Overview 30A-2
§ 30A:2 : Litigation Context of Statistical Issues 30A-2
§ 30A:3 : Qualification of Expert Witnesses Who Give Testimony on Statistical Issues 30A-3
§ 30A:4 : Admissibility of Statistical Evidence—Rules 702 and 703 30A-3
§ 30A:5 : Significance Probability 30A-5

§ 30A:5.1 : Definition of Significance Probability (The “p-value”) 30A-5
§ 30A:5.2 : The Transpositional Fallacy 30A-5
§ 30A:5.3 : Confusion Between Significance Probability and The Burden of Proof 30A-6
§ 30A:5.4 : Hypothesis Testing 30A-7
§ 30A:5.5 : Confidence Intervals 30A-8
§ 30A:5.6 : Inappropriate Use of Statistical Significance—Matrixx Initiatives, Inc. v. Siracusano 30A-9

[A] : Sequelae of Matrixx Initiatives 30A-12
[B] : Is Statistical Significance Necessary? 30A-13

§ 30A:6 : Statistical Power30A-14

§ 30A:6.1 : Definition of Statistical Power 30A-14
§ 30A:6.2 : Cases Involving Statistical Power 30A-15

§ 30A:7 : Meta-Analysis 30A-17

§ 30A:7.1 : Definition and History of Meta-Analysis 30A-17
§ 30A:7.2 : Consensus Statements 30A-18
§ 30A:7.3 : Use of Meta-Analysis in Litigation 30A-18
§ 30A:7.4 : Competing Models for Meta-Analysis 30A-20
§ 30A:7.5 : Recent Cases Involving Meta-Analyses 30A-21

§ 30A:8 : Conclusion 30A-23

The treatise weighs in with over 40 chapters, and over 1,000 pages. The table of contents and table of authorities are available online at the PLI’s website.

The PLI is a non-profit educational organization, chartered by the Regents of the University of the State of New York. The PLI provides continuing legal education, and publishes treatises and handbooks geared for the practitioner.

Posted in statistical evidence, Uncategorized | Comments Off on New Release of PLI’s Treatise on Product Liability Litigation

Egilman Instigates Kerfuffle at McGill University

January 15th, 2013

Last February, the Canadian Broadcast Corporation unleashed a one-sided, twenty minute investigative journalistic film on the Quebec asbestos industry. All allegations from the plaintiffs’ litigation world were accepted as true, and the asbestos mining industry was cast as a manufacturer of doubt and deception. See “Fatal Deception” (Feb 2, 2012).

The narrator raises the suggestion that the Canadian federal government is relying upon “junk science” to justify support for continuing exports of chrysotile and for reopening the Quebec mines. This CBC production features Dr. David Egilman, holding forth on his views on the relationship between McGill University, Professor Corbett Macdonald, and the Quebec asbestos industry. Mostly, Egilman is permitted to define the issues and provide the “answers,” although the CBC film does give some air time to Professor Bruce Case, who points out that Egilman is not a scientist, but rather a social critic. When Professor Case was asked on air how he would respond to Egilman in response to his allegations, Case responded, “I wouldn’t give Dr. Egilman the time of day…because he’s not an honorable person.”

For over a decade, Egilman has been pressing his allegations that asbestos research conducted by McGill University investigators was tainted. In September 2012, McGill University’s Research Integrity Officer, Abraham Fuks, reported that the Egilman allegations were baseless and unsupported. Consultation Report to Dean David Eidelman (Sept. 23, 2012). See Egilman’s Allegations Against McDonald and His Epidemiologic Research Are Baseless (Oct. 20, 2012). Egilman responded to Professor Fuks’ report by labeling it “a shameful cover-up.” Eric Andrew-Gee, “Asbestos debate rages on at the Faculty Club: American researcher attacks McGill’s asbestos investigation,” The McGill Daily (Jan. 10, 2013).

The Egilman show apparently kicked off the new year at the McGill University Faculty Club, earlier this month, with a shouting match. According to the University’s newspaper, Egilman called MacDonald’s research on the Quebec chrysotile miners and millers “garbage,” and he called upon McGill University to retract the paper.

Egilman’s argument took the high road and the low road: He understandably objected to McGill’s and MacDonald’s refusal to share mineralogical data about tremolite content of asbestos from the Thetford Mines. Of course, the sad state of epidemiology today is that there is no mechanism for requiring data sharing, and the authors of pro-plaintiff studies have consistently refused to share data, and have fought subpoenas tooth and nail.

But then there was the low road. According to the McGill Daily, Egilman lapsed into name calling. During his presentation, Egilman referred to McGill’s Professor Fuks as Inspector Fox and included a cartoon in his slideshow of a henhouse guarded by a grinning fox. “Fuks, by the way, is German for Fox,” Egilman said.

One of the McGill professors chided Egilman for his ad hominem attack on Professor Fuks, and pointed out that Egilman could have made his points without personal attacks. Egilman responded “I could have, but it’s funny.” Id.

Egilman called upon his audience to evaluate his claims against those of Professors Case and Fuks. “One of us is an asshole,” he announced. Id. Indeed. Just perform the iterative disjunctive syllogism; it’s a matter of elimination. For a more scholarly analysis of assholes, see Aaron James, Assholes: A Theory (2012).

Posted in Conflicts of Interest, Underlying Data | Comments Off on Egilman Instigates Kerfuffle at McGill University

Tunnel Vision on Conflicts of Interest

January 13th, 2013

Judge Alsup’s order requiring disclosure of money paid to bloggers and journalists is only a recent manifestation of a misguided attempt to control conflicts of interest among non-parties. See Can a Court Engage in Abusive Discovery? (Jan. 10, 2013). Judge Alsup’s curious orders can be traced to encouragement in the Federal Judicial Center’s “pocket guide” to managing an MDL for products liability cases. Barbara Rothstein & Catherine Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (2011). Link or download This FJC publication suggested that an MDL court should unleash discovery against authors of published works for evidence of bias, citing an MDL trial court that ordered parties to produce lists of payments to authors of articles relied upon by expert witnesses. Id. at 35 n.48 (citing In re Welding Fume Prods. Liab. Litig., 534 F. Supp. 2d 761 (N.D. Ohio 2008).

The United States Supreme Court has also encouraged hostility to party-funded research and writing. In Exxon Shipping Co. v. Baker, 554 U.S. 471, 501 (2008), the Court struck down a large punitive damage award. Justice Souter, writing for a divided court, noted in footnote 17:

“The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous ‘mock juries’, where different ‘jurors’ are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L.Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.”

Id. at n.17; see also Conflicts of Interest, Footnote 17, and Scientific McCarthyism. The glib dismissal of behavioral research on a relevant topic by the Supreme Court was remarkable. Professor Sunstein, is a professor at University of Chicago, and formerly served the Administrator of the White House Office of Information and Regulatory Affairs, in President Obama’s administration. Professor Kahneman, a Nobel Laureate, is Professor Emeritus in Princeton University. Professor W. Kip Viscusi has been one of the most prolific writers about and investigators of punitive damages. Justice Souter’s footnote might be interpreted to impugn the integrity of their research by virtue of their corporate sponsorship. More important, Justice Souter’s opinion fails to explain why the Court would not look beyond funding to the merits of the funded research. Courts consider arguments of the parties’ counsel, although of course, the parties compensate their counsel for marshalling facts, and formulating and presenting arguments. Perhaps Justice Souter would have been justified in announcing that he and his judicial colleagues had looked at Sunstein’s research more closely than other cited research. The wholesale dismissal of relevant evidence based upon funding is irrational.

A new article posted on the Social Science Research Network explores the misdirection and distortion created by the single-minded focus on financial conflicts of interest. Richard S. Saver, “Is It Really All About The Money? Reconsidering Non-Financial Interests In Medical Research,” Journal of Law, Medicine & Ethics (forthcoming 2013).

Richard Saver is a professor of law at the University of North Carolina School of Law, and also holds appointments in the UNC’s School of Medicine. Saver describes how conflicts of interest (COIs) have largely and incorrectly been reduced to financial conflicts. For instance, in 2011, the National Institutes of Health (NIH) addressed only financial issues when it promulgated rules for managing conflicts of interest in the field of medical research. Department of Health and Human Services, “Responsibility of Applicants for Promoting Objectivity in Research for Which Public Health Service Funding is Sought and Responsible Prospective Contractors,” 76 Fed. Reg. 53256 (Aug. 25, 2011). Several commentators advocated regulation of non-financial COI, but the agency refused to include such COIs within its rules. Id. at 53258. The Institute of Medicine (IOM), in its monograph on COI in medicine, similarly gave almost exclusive priority to financial ties. Institute of Medicine, Conflict of Interest in Medical Research, Education, and Practice (Washington, D.C.: The National Academies Press, 2009).

Saver argues that the focus on economic COI is dangerous because it instills complacency about non-financial interests, and provides a false sense of assurance that the most serious biases are disclosed or eliminated. Saver’s review of retractions, frauds, and ethical lapses in biomedical research suggests that non-financial interests, such as friendships and alliances, institutional hierarchies, intellectual biases and commitments, beneficence, “white-hat” advocacy, as well as the drive for professional achievement, recognition, and rewards, all have the potential to complicate, distort, and sometimes undermine scientific research in myriad ways. The failure to recognize serious non-economic COIs and biases, and the reluctance to treat them differently from financial COIs endangers the validity of science. Not only are these non-financial threats ignored, but financial interests receive undue attention, resulting in the erosion of public trust in scientific research that is sound.

Professor Saver’s caveats about COI moralism apply beyond biomedical research. The Exxon Shipping case, the MDL Pocket Guide, and Judge Alsup’s opinion on disclosure of payments to journalists and bloggers signal that courts are well on their way towards selectively and arbitrarily screening out evidence and arguments based upon sponsorship. What is needed is a whole-hearted commitment to consider and analyze all the available data. Time to shed the blinders.

Posted in Conflicts of Interest | Comments Off on Tunnel Vision on Conflicts of Interest

Can a Court Engage in Abusive Discovery?

January 11th, 2013

ABA’s Litigation News reported that the federal district judge in lawsuit between Oracle and Google sua sponte ordered the parties to identify all journalists, bloggers, or other writers paid to comment on any of the issues in the case. Jannis E. Goodnow, “Surprise Order Forces Parties to Identify Bloggers on Payroll,” Litigation News (Jan. 3, 2013).

Judge William Alsup cited his “concern” that the parties or their counsel “may have retained or paid print or Internet authors, journalists, commentators or bloggers who have and/or may publish comments on the issues.” Oracle America, Inc. v. Google Inc., No. C 10-03561 WHA, Order re Disclosure of Financial Relationships with Commentators on Issues in This Case (N.D. Calif. Aug. 7, 2012). And in a follow-up order, Judge Alsup expanded the scope of the order to include disclosure of those authors even if their payment was not specifically for commenting on the case before him. Order to Supplement (Aug. 20, 2012).

Judge Alsup offered a strange rationale for his disclosure order:

“Just as a treatise on the law may influence the courts, public commentary that purports to be independent may have an influence on the courts and/or their staff if only in subtle ways. If a treatise author or blogger is paid by a litigant, should not that relationship be known?”

Well; not really. A treatise author’s opinion is only as good as the facts and inferences that are employed in reaching a conclusion. The judge’s job is, of course, to assess the reasoning for himself.

Judge Alsup’s rhetorical question reveals a fundamental misunderstanding of the judicial function. The arguments in a case come from counsel who have are being paid. The financial biases are complex. Generally, the court might expect each side to benefit in some way financially from obtaining a ruling in line with the arguments it has advanced. Sometimes, defense counsel may benefit from perpetuating a litigation, but their reputational interests alone certainly will motivate them to prevail. Plaintiffs’ counsel hope to make money in pursuing a case. Typically, legal counsel can be trusted to address the issues comprehensively. Money will be involved.

Of course, journalists, bloggers, law professors, or pundits may put forward an argument not advanced by the parties. A trial or an appellate judge might see such an argument, but why would funding make a difference to the merits of the argument? Judges are, after all, supposed to be good at evaluating arguments without favor or prejudice. And if a judge were to encounter an argument, presented by a non-party but not by the parties, which argument was persuasive, the judge would have the option of requesting the parties’ briefing on the matter.

Disclosure of party funding of writers might legitimately be needed when there was a matter of a poll or survey evidence influenced by the funded writers. Such evidence apparently was not involved in the Oracle case; indeed, Judge Alsup’s request was based upon a purely fictitious concern. After the parties made their disclosures, Judge Alsup announced that he would not take any action because none of the journalistic commentary or blogging had influenced any of his decisions.

So this intrusive exercise in court-ordered disclosure really served no purpose at all. If a party were to propound discovery requests that did not advance the litigation, we would not hesitate to call the discovery abusive.

Unfortunately, no one is paying me to blog on the issues I find interesting.

Posted in Conflicts of Interest | Comments Off on Can a Court Engage in Abusive Discovery?

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.