TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

Cancer Epidemiology 100 Years Ago

October 6th, 2014

Writing from the Department of Pathology of Columbia University, at the College of Physicians and Surgeons, Isaac Levin published a study of cancer etiology in 1910. Isaac Levin, “III. The Study of the Etiology of Cancer Based on Clinical Statistics, 51 Ann. Surg. Jun 768 (1910). Levin looked at population and gender prevalence among cancer cases, without age correction or any statistical measure of random error. He compared population prevalence of specific or all-cause mortality without isolating exposure and outcome. Levin’s efforts were earnest, but surely they strike us as primitive. If you want to be disabused of the belief that epidemiology today is a primitive scientific enterprise, mired in methodologies and interpretative strategies of the past, Levin’s article is a welcome documentation that progress is possible and has in fact occurred.

Levin sums up what was known about occupation and cancer in 1910, which was not much:

“QUESTION 10,- OCCUPATION.–Occupation undoubtedly plays an important role in the causation of cancer. The carcinoma of the scrotum of the chimney sweeps, tumors of the bladder of the aniline workers, and X-ray cancer are well known, but it will require a great deal of research to, show how direct the influence is that these occupations exert on the causation of cancer, since only a certain number of the workers contract the disease.”

Id. at 776. No acknowledgment of dose response, or thresholds. No quantitation of risk against baselines.

Levin goes on to note that:

“[o]f extreme interest seems to be the fact, noted both in England and America, that cancer is comparatively rare among the miners. Table IV, compiled from the twelfth U. S. Census, illustrates this fact:

Table IV from Levin 1910

Table IV from Levin 1910

[Open in new window for clearer image]

Wilkesbarre and Scranton are mining towns and the death rate is lower than in Harrisburg or in the whole state of Pennsylvania. It seems also to be the opinion of the surgeons in Pennsylvania (personal communication) that cancer is rare among miners.”

Id. at 776.

There are some other quaint relics of the past here. On the questionnaire used for 4,000 cases or so, here is how Levin inquired of “Race or Nationality”

“RACE OR NATIONALITY. …………Australoid – Coolies of East India; Negroid – Negroes, Negritos of the Philippines; Mongoloid – Chinese, Japanese, American Indians, Filipinos; Melanochroic – Italians, Spaniards, Greeks, Arabs, Jews; Xanthochroic – Fair Europeans. State not only the name of the race, but also of the subdivision]”

Id. at 772. Anthropology was fairly primitive as well, in 1910.

The Last Squirmish Between Irving Selikoff and Sir Richard Doll

September 30th, 2014

In one of his last publications before he died, Dr. Selikoff reflected on the ethical dimensions of epidemiology. He recounted the development of our understanding of the lung cancer hazards of asbestos and smoking, and noted that there had been “random instances” of lung cancer cases reported among asbestos workers in the 1930s and 1949s, but “[w]ith the continued growth of the asbestos industry, it was deemed wise to epidemiologically examine the proposed association. This was done in an elegant, innovative, well-considered study by Richard Doll [7], a study which anyone of us would have been proud to report in 1955.” Irving J. Selikoff, “Statistical Compassion,” 55 J. Clin. Epidemol. 141S, 142S (1991).

Despite his praise for Doll’s work, Selikoff goes on to downplay Doll’s achievement by explaining how Doll supposedly missed a synergistic multiplicative interaction between asbestos exposure and smoking, which Selikoff claimed to have found a decade later:

“Not only was the association [with smoking] not yet established, indicating the need for its investigation in cohort studies, but smoking histories were not available (and indeed, many of the workers involved may not have smoked cigarettes, having begun their asbestos exposure at a time when cigarette smoking was considerably less common, even among blue collar workers). We would want such information now, but these studies were accomplished at an earlier, less informed, time.”

Id. at 143S

This short passage is revealing. In 1955, epidemiology was still a relatively young science, and it was Doll who energetically was developing and implementing its methods. Doll’s use of his cohort study was not undertaken just because it was deemed “wise,” but because the method had evolved to the point that Doll could cast offer the asbestos company in question a reasonably rigorous method of answering their “wise” concern.

Contrary to Selikoff’s suggestions, the smoking association was better established in 1955, when Doll published, than was the asbestosis association. By the time Doll published his famous paper on the association between asbestosis and lung cancer, he had published three studies on the association between smoking and lung cancer. Interestingly, Doll later acknowledged that his failure to obtain smoking histories was purely an oversight. By the time Selikoff undertook his studies of asbestos insulators in the late 1950s, a wise investigator would have known that he needed to be very careful smoking histories to study the role of asbestos in an exposed cohort.

Perhaps more revealing yet, however, was Selikoff’s counterfactual assertion that Doll’s 1955 study was conducted too early to assess the role of tobacco in lung cancers observed in the early 1950s. By the early 1950s, cigarette smoking was well established in both in the U.K., and in the U.S., and had been so for several decades. Here are the data for the United States:

 

Correlation between smoking and lung cancer in US males, showing a 20-year time lag between increased smoking rates and increased incidence of lung cancer.

Correlation between smoking and lung cancer in US males, showing a 20-year time lag between increased smoking rates and increased incidence of lung cancer.

National Cancer Institute Figure 2003

And here are the data from the United Kingdom:

 

Figure 1

Figure 1

Figure 1, from Robert Platt, et al., Smoking and Health: A Report of The Royal College of Physicians of London on Smoking in relation to Cancer of the Lung and Other Diseases 3 (1962).

 

Common Law Causal Apportionment – Each Dog Had His Day

September 27th, 2014

Some legal scholars have suggested that apportionment of damages by causation is a 20th century reform to the common law[1]. This strikes view strikes me as ignoring the late 20th century American courts’ penchant for favoring joint and several liability, without apportionment, and its hostility or refusal to permit causal apportionments. See, e.g., Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014). See alsoMaryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter” (Sept. 19, 2014); “Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience” (Sept. 20, 2014).

The common law, as it developed in the United States from the early 19th century, was hospitable to apportionments that avoided “entire” or “joint and several” liability. Apportionments of single harms were often permitted and encouraged by the use of reasonable estimates of relative causal contributions. The common law generally provided that entire liability, and its procedural consequences similar to joint and several liability, did not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Asbestos (and other similar) cases raise interesting questions about the divisibility and apportionment of physical injuries and resulting impairment or death. Asbestosis represented the cumulative fibrotic result from multiple exposures to asbestos, over the course of an entire occupational exposure. For workers who were exposed to asbestos that came from different manufacturers’ products, the workers’ asbestosis represents the cumulative, single result of all the exposures that resulted in pulmonary deposition of fibers. A very slight, passing exposure may not have contributed at all to pulmonary deposition and retention. Heavier, more sustained exposures might contribute to the overall fiber burden, but certainly not equally. Exposures, deposition, and retention would be expected to vary in proportion to the use and dustiness (asbestos) of each product, weighted by the duration of exposure from each product. If all products were used equally, and were equally dusty, then perhaps they all could be taken to contribute equally. This last hypothetical, however, ignores the reality of market dominance of a few manufacturers, such as Johns-Manville up through the end of asbestos use in insulation.

The situation with mesothelioma is more complicated because not all commercial asbestos fiber types have the same potency with respect to causing mesothelioma. Crocidolite fiber has a potency an order of magnitude greater than amosite fiber. Chrysotile, even with some tremolite contamination, is orders of magnitude below crocidolite in its ability to cause mesothelioma, if it does so at all. These complexities of varying potency can be modeled by dustiness, duration of exposure, intensity of exposure, and potency factors. A further consideration is that mesothelioma arises from one or a few cells deranged by an asbestos fiber in close proximity. Increasing exposure would appear to increase the risk of malignant change, but the change is likely a local phenomenon, not the result of total fiber burden. (Increasing total fiber burden, however, represents an increasing risk of mesothelioma induction.) The assessment of causal responsibility is essential an attribution based upon ex ante risk, not actual causation. Given this reality, there is no reason that the causation cannot and should not be apportioned by the magnitude of the risk, modeled as suggested above.

The scholar’s suggestion that apportionment is a new-fangled development in tort law, and a reform of the common law, does not appear to hold up on close scrutiny. The common law dealt with combined causes in a variety of situations, and liberally permitted apportionment even for single harms, when there was a rational basis.  As Restatement (Second) of Torts makes clear, even so-called distinct harms may require some “rough” estimation in attributing damages to the tortfeasors responsible for the different harms. Restatement (Second) of Torts § 433A (1965). Comment b to this section rather circularly defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment states a hypothetical case and suggested resolution, which are, however, more helpful:

“If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.”

The above hypothetical is very much analogous to cases that occur in asbestos personal injury and property damage litigation. The Restatement also provides for apportionment of damages in cases in which the plaintiff suffers a single but divisible harm. Restatement § 433A(1)(b). Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.” Id. at comment d, the Restatement gives several examples of joint torts that can be apportioned by cause. Of particular interest is the suggestion that:

“Apportionment is commonly made in cases of private nuisance, where the pollution of a stream, or flooding, or smoke or dust or noise, from different sources, has interfered with the plaintiff’s use or enjoyment of his land. Thus where two or more factories independently pollute a stream, the plaintiff’s use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of the respective quantities of pollution discharged into the stream.”

Id. See also 1 S. Speiser, C. Krause & A. Gans, The American Law of Torts at § 3.12 & note 88 (1983 & Supp. 1984) (collecting cases on joint flooding and polluting). Like a stream wasted by pollution, a person’s lungs impaired by fibrosis should be divisible “in terms of degrees” of contribution to the outcome.

Some of the earliest cases giving rise to an apportionment of property damages have involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases involved the propriety of joinder of the dog owners and the resultant joint liability. Under the common-law approach to joinder, courts found it “repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in doing mischief could make the owners jointly liable.” Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817). Consequently, if two dogs, each belonging to different persons, run together and kill the plaintiff’s sheep, each owner is liable only for the sheep his dog killed. Id. (“no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it.”) Van Steenburgh v. Tobias, 17 Wend. 562 (N.Y. 1837) (affirming nonsuit based upon misjoinder because joinder was error unless defendants jointly liable). The court in Van Steenburgh noted that the imposition of joint liability on the owner of one dog, which happened to unite with other dogs in destroying a herd, would be unjust. Id. at 564. The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage. Id. at 563.

In Adams v. Hall, 2 Vt. 9 (1829), the court rejected the plaintiff’s argument that the damage done to his property, a herd of sheep, was entire. Id. at 10, 11. Because the damage done by each defendant’s dog was separate, the defendants were misjoinded under the then current procedural rules. Id. at 11.

In Buddington v. Shearer, 37 Mass. (20 Pick.) 477 (1838), the court acknowledged that the plaintiff would have some difficulty in proving which dog caused what distinct harm, but that under the circumstances, the trier of fact could reasonably apportion damages equally on the assumption that the dogs were capable of equal mischief. Id. at 479-80.

In the absence of a statute, the rule requiring apportionment in dog and sheep cases remains valid. See Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages); Stine v. McShane, 55 N.D. 745, 746 214 N.W. 906 (1927) (in absence of a joint tort or a statute modifying the common law, plaintiff can recover only those damages occasioned by that defendant’s conduct); Nohre v. Wright, 98 Minn. 477, 478-79, 108 N.W. 865 (1906) (each dog owner is liable separately for the damages done by his animal); Anderson v. Halverson, 126 Iowa 125, 127, 101 N.W. 781 (1904) (reversing judgment for defendant dog owner because although plaintiff could not show which defendant’s dog killed which sheep, the jury should have been allowed to consider defendant’s liability with proper instructions on apportionment), Denny v. Correll, 9 Ind. 72, 73 (1857) (per curiam) (reversing joint judgment against defendant dog owners); Dyer v. Hutchins, 87 Tenn. 198, 199, 10 S.W. 194 (1889)(each defendant dog owner is responsible only for the depradations of his own animal).

The validity of the apportionments made for separate harms in dog and sheep cases continued into the second half of the 20th century, as evidenced by the following illustration in the Second Restatement:

“Five dogs owned by A and B enter C’s farm and kill ten of C’s sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity.”

Second Restatement § 433A, illustration 3. Based upon these facts, the Second Restatement would hold A liable for the value of six of the sheep, and B liable for four. Id.

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In Powers v. Kindt, 13 Kan. 74 (1874), the plaintiff sued for the damage inflicted to his crops by cattle belonging to two unrelated parties. Noting that the plaintiff had suffered a single injury to his property, the court held that the damages for the single injury should be apportioned by the relative number of each defendant’s cattle. Id. at 83. In Wood v. Snider, 187 N.Y. 28, 79 N.E. 858 (1907), the plaintiff sued an owner of cattle, which had trespassed along with the cattle belonging to other persons, on the plaintiff’s land. Id. at 36, 79 N.E. 858. The court noted that the cattle were all on the plaintiff’s land and that they all caused equal damage to the plaintiff, and, therefore, each cattle owner was liable for his proportionate share of the entire damages. Id. Accord Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079 (1904) (the proper measure of plaintiff’s damages was the value of pasturage consumed by defendant’s sheep, not the mischief done by animals belonging to other persons); Hill v. Chappel Brothers of Montana, 93 Mont. 92, 103, 18 P. 2d 1106 (1933) (jury allowed to make the best possible estimate of the portion of damages attributable to the defendant’s horses).

Other courts, in considering animal trespass cases, have not emphasized whether they viewed the plaintiff’s injury as single or several. Rather, these courts, simply have stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly. Westgate v. Carr, 43 Ill. 450, 454-44 (1867) (each defendant cattle owner is liable only for the damage done by his cattle); State v. Wood, 59 N.J.L. 112, 113-14, 35 A. 654 (1896) (each dog’s trampling of the plaintiff’s cabbage patch is a separate harm; each owner is liable only for the harm his dog caused); King v. Ruth, 136 Miss. 377, 381,101 So. 500 (1924) (each dog owner is liable only for the damages done by his animals’ separate and distinct trespass). See also Cogswell v. Murphy, 46 Iowa 44 (1877) (reversing judgment against defendant cattle owners because of misjoinder of parties).

Apportionments of damages for indivisible harms are routinely made in cases involving the flooding of land from multiple sources. In Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296 (1952), a typical joint-flooding case, the plaintiff sued for damage to his peach orchard, caused by excessive underground water seepage from one defendant’s irrigation of an adjacent rice paddy, and from another defendant’s nearby canal. Id. at 638, 241 P.2d 296. The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Id. Both parties appealed. On appeal, the plaintiff claimed that each defendant was the proximate cause of the entire harm, and therefore, she was entitled to a judgment for the entire amount of damages proved at trial. Relying on Restatement of Torts Section 881, the predecessor to Section 433A of the Second Restatement, the Griffith court rejected the plaintiff’s contention that damage and liability were entire. Id. at 639, 241 P.2d 296. The appellate court was satisfied that the estimates of the relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages. Id.

The defendants[2] in Griffith also appealed on grounds that the expert witness testimony given at trial established that no exact apportionment was possible. Because of this lack of precision, the defendants contended that the plaintiff had failed to carry his burden of proving each defendant’s causal role. Id. at 640, 241 P.2d 296. The appellate count expressly rejected the defendants’ contention and held that the expert witness’s estimate was a sufficient basis for the apportionment. Id.

The holdings in Griffith are based upon well-established precedents and principle of justice. Joint and several liability in such a case would allow “a plaintiff to overwhelm a defendant with claims for damages out of all proportion to his wrongdoing …” William Tackaberry Co. v. Sioux City Service Co.,154 Iowa 358, 377-78, 132 N.W. 945 (1911) (extensively reviewing authorities and rejecting joint and several liability for property damage caused by flooding from multiple causes; Boulger v. Northern Pacific Railroad Co., 41 N.D. 316, 324, 171 N.W. 632, (1918) (imposing entire liability on a party responsible for only a portion of the harm caused by a flood would be contrary to law and justice).

In Sellick v. Hall, 47 Conn. 260 (1879), the court held that regarding parties that independently damaged plaintiff’s property by flooding as joint tortfeasors was error. Id. at 273. Each party can be liable only for that portion of the harm, which he caused. Id. at 274. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. Id. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.” Id.

The common law saw that any hardship to the plaintiff in not being able to assert joint and several liability was fairly mitigated by plaintiff’s being relieved of the requirement to prove the precise damage inflicted by each defendant. William Tackaberry Co. v. Sioux City Service, Co. 154 Iowa at 377, 132 N.W. 945; Griffith v. Kerrigan, 109 Cal. App. 2d. at 640, 241 P.2d 296. A reasonable basis for apportioning the single harm among multiple causes is sufficient to support an apportionment of damages. Sloggy v. Dilworth, 38 Minn. 179, 185, 36 N.W. 451 (1888) (rejecting entire liability; apportionment for damage to plaintiff’s crops caused by flooding from multiple causes may be based on the relative contribution of each party): Blaisdell v.Stephens, 14 Nev. 17, 19 (1879)(reversing joint judgment in a flooding case); Verheyen v. Dewey, 27 Idaho 1, 11-12, 146 P. 1116 (1915)(reversing joint judgment; each party should be responsible only for that portion of the flood that damaged plaintiff’s property): Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059, 1061 (1925) (rejecting joint liability for independent flooders of plaintiff’s land); Miller v. Highland Ditch Co., 87 Cal. 430, 431, 23 P. 550 (1891)(reversing joint judgment against defendants, whose irrigation ditches independently overflowed and deluged plaintiff’s land).

When two or more independent tortfeasors separately pollute the air or water and the consequences combine to form a single injury, each tortfeasor will be liable only for the consequences of his independent tortious act and will not be liable for the entire injury. Oakwood Homeowners Assoc. v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567 (Mich. App. 1981). In Oakwood, the appellate court sustained the trial court’s jury instruction that the jury should separate the injuries caused to the plaintiff by the defendant from the injuries caused by other tortfeasors if they could do so.

“If two or more persons acting independently tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused.”

Oakwood Homeowners, 305 N.W.2d at 569.

In Maas v. Perkins, 42 W.2d 38, 253 P.2d 427 (Wash. 1953), the Supreme Court of Washington held that, while two alleged tortfeasors, accused of having contributed to the damage caused by oil sludge draining onto plaintiffs’ property, could be joined in one action, their liability was several and not joint. Plaintiffs would not be relieved of their burden that a particular defendant caused damage of a specified amount. Although the court admitted of the difficulty of such proof, the court required some basis for the allocation of the total damage. 42 W.2d 38, 253 P.2d at 430. The Maas decision followed the rule previously set out in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941, where a downstream farmer alleged that a municipality and a slaughterhouse discharged refuse into the Little Klickitat River. The court affirmed the rule that tortfeasors independently contributing to the pollution of a stream cannot be held jointly liable for the common injury. The basis of the court’s decision was fairness.

“[I]t might work great injustice to hold one responsible for the entire injurious effect of the pollution of a stream brought about by himself and others in varying degrees.”

Snavely, 117 P.2d at 224.

Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness. Courts have been unwilling to impose liability on one tortfeasor for the acts of another over which the first had no control and where the only logical connection was some similarity of consequences.

In Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920), the Supreme Court of Appeals of West Virginia held that six separate mine operators, alleged to have polluted with slag, cinder and sewage the stream on which plaintiff’s farm was situated, could not be jointly liable for damage caused by the pollution:

“In the actual infliction of the injury there was nothing more than a combination, effected by natural causes of the consequences or results or the wrongful acts, in which the parties did not act. This of course does not absolve them from liability, but it does away with the ground or basis of joint liability and liability for entire damages. Each is liable only for the consequences of his own wrong and must be sued alone for the damages.”

Farley, 102 S.E. at 268.

Similarly, the court in Watson v. Pyramid Oil Co., 198 Ky. 135, 248 S.W. 227 (1923), was moved by considerations of fairness to adopt the rule of apportionment and several liability. Watson held that several refining companies could not be liable for the damage caused by each other’s operations. Otherwise, it reasoned “a defendant who had contributed to the injury in the slightest degree would be liable for all the damage caused by the wrongful acts of all the others.” 198 Ky. 135, 248 S.W. at 228.

In a case concerning noise pollution, the Georgia Court of Appeals held that a city operating an airport and the airlines using it were not jointly liable for damage caused to the plaintiff by a low flying aircraft. City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951).

The Florida Supreme Court has held that joint liability would not be imposed on up-river phosphate producers despite the intermingling of the consequences of their tortious acts for the downstream riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (Fla. 1913); Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (Fla. 1913).

Apportionment, with burden on the plaintiff, was applied in personal injuries as well, at common law. In City of Mansfield v. Brister, 76 Ohio 270, 81 N.E. 631 (1907), the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run. Ritter’s Run was found to have been fouled by five sewers, only one of which had been constructed by the city. The trial court instructed that jury that it was unnecessary to find that the city had caused the entire injury in order to find it liable for the damage. The Ohio Supreme Court deemed this error, and reversed. In a thoughtful opinion, the court discussed the contemporary authority. The court found the difficulty of apportionment presented no compelling reason to relieve the plaintiff from the obligation of proving that the damages sought from a defendant sprung from the act of that defendant:

“Each is liable only to the extent of the wrong committed by him. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tortfeasor should be liable for act of others with whom he is not acting in concert.”

City of Mansfield, 76 Ohio 270, 81 N.E. at 633.

The suggestion of legal scholars that causal apportionment was a 20th century reform seems misguided. The mantra of “joint and several” has often clouded consideration of the fairness and practicality of causal apportionment in many kinds of personal injury cases.


[1] Michael D. Green, “Second Thoughts about Apportionment in Asbestos Litigation,” 37 Southwestern Univ. L. Rev. 531 (2008) (“The idea that liability is not all or nothing—a basic tenet of the common law—but could be apportioned in a fine-grained manner—that is using a scale of 100, whether you call it comparative negligence, fault, responsibility, or causation—is a reform of the twentieth century and one of the most influential in tort law of that century.”).

[2] Interesting how the procedure at that time put the defendants into the position that plaintiffs today take with respect to apportionment.

Big Blue & The Sophisticated User and Intermediary Defenses

September 26th, 2014

Two particularly perfidious myths perpetrated by the asbestos litigation industry is that crocidolite was not used in the United States, and that chrysotile is as potent in causing mesothelioma as is crocidolite. Both myths are untrue, but they have become current articles of faith among the “The Lobby.” SeeSelikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010).

Because of the flagrant falsehoods imbedded in the Lobby’s mythology, I am always fascinated to see incontrovertible evidence of the use of crocidolite. Crocidolite is a blue fiber, and Johns-Manville (JM) was the “Big Blue” of the North American asbestos industry. JM used crocidolite in several products, but perhaps best known is its incorporation of blue fiber into asbestos cement products, known as Transite. One of JM’s manufacturing facilities, where crocidolite was used, was in Stockton, California, a.k.a. Fat City.

The JM Stockton plant was the situs of a recent sophisticated intermediary case, which is set for argument soon before the California Supreme Court. Webb v. Special Electric Company, Inc., 214 Cal. App. 4th 595, 153 Cal. Rptr. 3d 882, 888 (2013). See Monica Williams Monroe “Is There a Duty to Warn Even the Most Sophisticated User?”(July 23, 2014); “California Supreme Court Set To Untangle Webb” (July 7, 2013). The JM Stockton facility was, at one time, the largest consumer of asbestos in California, for use in making Transite (asbestos-cement) pipe products. See Asbestos:  The Magic Mineral (JM Brochure). In 1982, JM sold the Stockton facility to the J-M Manufacturing Co., and the J-M A/C Pipe Corp., which were unaffiliated with JM. “Johns-Manville Sells Pipe Unit” N.Y. Times (Dec. 21, 1982)[1].

Back in April 2001, the Kazan firm obtained a substantial jury verdict against J-M A/C Pipe Company, on behalf an employer who had worked there since 1959. Hardcastle v. J-M A/C Pipe Corp., Alameda County Superior Court No. 830058-2 (Jury verdict, April 21, 2001). The employer claimed untruthfully that it had never been sued, and had to confront allegations that it had cheated on air quality testing. The jury found J-M A/C Pipe Co. liable for negligence, with actual malice.

Given the actual knowledge and sophistication of the employer, one would expect that there was no need for an outside vendor of asbestos to warn the employer of its hazards, especially not after the early 1960s. Such a defense appears to have been interposed in one unreported California case. Ransom v. Calaveras Asbestos Ltd., No. B207018 (Cal. App. 2d Dist., Div. 5) (Mar. 4, 2009) (unpublished). Plaintiff claimed that his lung cancer was related to occupational exposure at the Stockton plant. Dr. Samuel Hammar, a pathologist, testified conclusorily that “each and every occupational exposure to asbestos” was a substantial factor. Dr. B.S. Levy offered testimony on epidemiology of asbestos fiber types. Somehow the court got the idea that “there were no distinctions in the effect of the types of asbestos to which plaintiff was exposed.” Id. Mistakes were made, and not much seems to have come of the sophisticated intermediary defense.

The sophisticated user defense seems to have gone better in a jury trial that ended with a defense verdict last month. Plaintiffs sued Special Electric for having brokered South African crocidolite fiber to the Stockton facility, and for having caused plaintiff’s mesothelioma. SeeSpecial Electric Secures Defense Verdict In San Francisco Asbestos Trial” (Sept. 24, 2014). Plaintiffs called a physician, Barry Horn, M.D., and an industrial hygienist, William Ewing, CIH, as expert witnesses, to support their consumer expectations test for design defect. The defense called no witness, but defended on theory that the plaintiff, Mr. Dennis Hill, had been trained in, and aware of, the hazards of asbestos by the mid-1970s. Martha Joan Hill v. A.C.& S. Inc., et al., San Francisco County Superior Court (trial Sept. 2 through 10, with verdict returned Sept. 10, 2014) (Hon. Richard B. Ulmer, Dept. 624, and a jury).

It is a safe bet that Mr. Hill, and his union, had known about asbestos hazards for much longer than acknowledged. Mr. Hill’s demise is sad outcome to the crocidolite tragedy, for which his employer was and should have responsible. Almost as sad is forcing a remote supplier of crocidolite to defend itself for having brokered asbestos to the one of the world’s most knowledgeable users of the natural material.


[1] The Stockton plant was organized by the Machinists District Lodge 115, Local Lodge 1549, from 1958, on. Johns-Manville Sales Corp. v. National Labor Relations Board, 906 F.2d 1428 (10th Cir. 1990). The sale of the facility took place on the heels of a violent strike, in which the union showed it, too, could act maliciously and violently.

Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter

September 19th, 2014

In Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014), the Maryland Court of Appeals missed an opportunity to place causal apportionment of damages in asbestos cases on a sound legal and factual basis. Instead, the Court misinterpreted the law to be about fault instead of causation, and it failed to come to terms with the facts that supported apportionment.

Carter was a consolidation of four lung cancer cases for trial before a single jury. All plaintiffs had substantial smoking histories, with varying degrees of asbestos exposure. None of the plaintiffs had been an insulator or worked in an asbestos factory. In one of the cases, involving Roger C. Hewitt, Sr., defendant Wallace & Gale Asbestos Settlement Trust[1] proffered a report of its expert witness, Dr. Gerald R. Kerby, who opined that the Mr. Hewitt’s lung cancer and death was apportionable, 3:1, between two causes, smoking and asbestos. 96 A.3d at 151-52.

The plaintiffs’ expert witness, Dr. Steven Zimmet provides the catechistic testimony, based upon the Mt. Sinai scriptures. Zimmet testified that “he could not differentiate between the two causes because the two exposures [asbestos and tobacco] are ‛not just additive, they are synergistic which means they multiple exposures’.” Id. at 151. Of course, Zimmet’s profession of ignorance was hardly probative of whether an apportionment could be made. The distinction, however, between knowledge that something cannot be done, and ignorance as to how it might be done, was lost upon the trial judge, who was wildly dismissive of the proffered opinion from Dr. Kerby:

“No, I understand there is a statistical basis for likelihood of risk. But in a given—with a given plaintiff, I don’t know how you can apportion it. But, you know, I guess, the witness can say what he says if he is qualified to say it. But I’m not going to give an instruction on this because it is not — I don’t perceive it at this point to be the law in these types of cases.

* * *

You can apportion risk. I don’t know how, in an individual plaintiff[‘s] case, you can apportion damages. I don’t know. It is a mystery to me. We’ll find out. The doctor will show up and we will hear about it.”

Id. at 151.

The trial judge excluded Dr. Kerby’s apportionment opinion, based upon a filed offer of proof, and refused to charge the jury on apportionment of damages. As for the jury instruction on apportionment, the trial judge ventured that the defendant was asking to the jury to make “a very unscientific wild guess.” Id. at 151. Of course, allowing the jury to decide any causation claim upon evidence of increased risk sanctions wild guesses and unscientific speculation. Risk is not causation. See, e.g., Guinn v. AstraZeneca Pharms., 602 F.3d 1245, 1255 (11th Cir. 2010) (“An expert, however, cannot merely conclude that all risk factors for a disease are substantial contributing factors in its development. ‘The fact that exposure to [a substance] may be a risk factor for [a disease] does not make it an actual cause simply because [the disease] developed.’”) (internal citation omitted). See also Richard Doll, “Proof of Causality: Deduction from Epidemiological Observation,” 45 Perspectives in Biology & Medicine 499, 500 (2002) (“That asbestos is a cause of lung cancer in this practical sense is incontrovertible, but we can never say that asbestos was responsible for the production of the disease in a particular patient, as there are many other etiologically significant agents to which the individual may have been exposed, and we can speak only of the extent to which the risk of the disease was increased by the extent of his or her exposure.”). Given that courts have put juries into the business of making wild guesses, the trial court failed to explain why it could not make a guess based upon the same sort of increased risk evidence that would support a finding of causation against the asbestos defendant alone.

The jury returned verdicts for all four plaintiffs, and the defendant appealed. The Maryland Special Court of Appeals reversed and remanded the Hewitt case for a new trial.[2] Wallace & Gale Trust v. Carter, 65 A.3d 749, 752 (Md. App. 2013). The Maryland Court of Appeals, however, took the plaintiff’s appeal, and reinstated the verdict in favor of the Hewitt family[3].

The Court of Appeals did not fuss over the general statement of Maryland law of apportionment of damages, which has adopted the American Law Institute’s Restatement (Second) of Torts § 433A (1965), which provides:

“(1) Damages for harm are to be apportioned among two or more causes where

          (a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each  cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.”

Id. at 157-58, quoting the Restatement. The Court did not explain why it was relying upon a portion of the Restatement, which has been superseded by the Restatement Third of Torts: Apportionment of Liability § 26 (2000).

In any event, the Court of Appeals did recognize that the crucial issue was whether there was a reasonable basis for determining the contribution of each cause to a single harm. On this issue, the Carter court took its lead from antiquated dicta from a treatise, 30 years out of date. W. Page Keeton, et al., Prosser and Keeton on Torts § 52, at 345 (5th ed. 1984). See Georgetown Law Library, “Torts Law Treatises” (“This classic hornbook on torts is no longer up-to-date… .”). The Court quoted:

“The distinction is one between injuries which are reasonably capable of being separated and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule devised for that purpose. If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries; and the same of course is true for wounds negligently inflicted…. Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

96 A.3d at 158, quoting Prosser and Keeton on Torts § 52, at 345-47 (5th ed. 1984) (internal citations omitted). As can be seen from the language quoted by Court, the venerable, but out-dated text never even considered an apportionment of an injury where the only information about causation was the existence of ex ante risks. Conspicuously absent from the hornbook are any examples of cases in which causation itself is predicated upon quantitative risk estimates, which in turn could readily supply the basis for apportionment.

As for the science, the Court of Appeals cited a textbook written by plaintiffs’ lawyers:

“asbestos and tobacco smoke are complex carcinogens that can affect multiple steps in the multistage process of cancer evolution, and that the combined effects will depend on the relative magnitude of each carcinogen at each stage. As reported in different studies, the interactive effect ranges from less than additive to supramultiplicative [sic] but the model for insulation workers approximates a multiplicative effect. If the multistage model of carcinogenesis holds, and asbestos and smoking act at different stages, then a multiplicative relationship follows.”

96 A.3d at 160-61, quoting from George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and Litigation, 13 The Sourcebook on Asbestos Diseases: Medical, Legal, and Technical Aspects 149 (1996). Peters and Peters is a consulting and law firm in Santa Monica. Barbara J. Peters is a lawyer and a member of the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys Association of California, and the Association of Trial Lawyers of America.

If the Court of Appeals had even bothered to read the plaintiffs’ lawyer tract, it would have seen that even the Peters had qualified their opinion, in their 1996 book, by suggesting that the “model for insulation workers approximates a multiplicative effect.” Id. (emphasis added). Mr. Hewitt had been a crane operator, which hardly involves the same level of exposure as an asbestos insulator, and the evidence for multiplicative synergy is sorely lacking outside a few, heavily exposed cohorts such as insulation workers. In any event, the Court of Appeals failed to explain or justify why a multiplicative model, even if it were appropriate, is decisive of the issue whether or not there was a reasonable basis for apportionment.

While we might excuse the Court of Appeals’ missteps in interpreting scientific evidence, even if filtered through funnels created by the plaintiffs’ expert witness Zimmet and the law firm of Peters & Peters, harder to forgive is the Court’s bobbling the interpretation of apportionment in New Jersey courts. The Special Court of Appeals had relied upon the New Jersey Dafler case, which affirmed a jury’s apportionment of damages in an asbestos and smoking lung cancer case. Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App. Div.1992), aff’d 132 N.J. 96, 622 A.2d 1305 (1993) (per curiam). In Dafler, the plaintiff’s expert witness made the usual protestations that the outcome, lung cancer, was indivisible, and the defense expert witness opined that smoking was the sole cause. The New Jersey appellate courts held that it would be manifestly unjust to attribute 100% of the lung cancer to smoking when no expert witness testified to such an allocation.

The Court of Appeals correctly pointed out that New Jersey cases are not binding upon it and that it would choose not to do so, which was its wont. The Court then proceeded to ignore that the Dafler holding was explicitly adopted by the New Jersey Supreme Court, and that the holding was based upon a causal, not a fault-based, apportionment. Indeed, the Court of Appeals went as far as to declare that the Dafler case was based upon fault principles because the Appellate Division there had stated that “apportionment is also consistent with the principles of the Comparative Negligence Act.” 96 A.3d at 155, quoting from Dafler, 259 N.J.Super. at 35, 611 A.2d at 145 (emphasis added). What the Maryland Court of Appeals failed to realize, however, was that the Dafler case was tried in New Jersey’s regime of hyper-strict asbestos liability, in which evidence of fault is excluded. Of necessity, the evidence and the verdict in Dafler were based exclusively upon causal determinants, not fault principles. Indeed, the Appellate Division’s “also” emphasized here in the quote from Dafler makes clear that the Appellate Division was merely noting that New Jersey juries are asked to make similar assessments of comparative contributions in fault, and that making such an assessment is not beyond the jury’s function or competence.

Two judges, in Carter, dissented in a polite, factual opinion that tore away at the majority opinion. The dissent noted that in Maryland, as in most states, workman’s compensation judges apportion causal shares to single injuries all the time. 96 A.3d at 173. And the dissent dug deeper into New Jersey law, as well as other foreign states, to expose the majority’s poor scholarship:

“Death may be indivisible as to result, but it is not per se incapable of apportionment. Many courts around the country have permitted apportionment in death cases. See e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 655 (1988) (permitting apportionment of damages in a wrongful death action based on smoking history and asbestos exposure); Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (same); see also Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679, 687 (2000) (concluding that while death is indivisible as to result, it is capable of apportionment in terms of causation). … In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault. See Restatement (Third) of Torts: Physical and Emotional Harm § 28, cmt. d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”); see also Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L. 549, 568–69 (1995) (stating that although “comment i [to the Restatement (Second) of Torts § 443A] states that death is the quintessential indivisible harm … deaths attributable to toxic causes, as when a plaintiff dies from lung cancer brought about by the combined effects of smoking and asbestos exposure, each of the contributing causes can be compared and the harm apportioned on that basis.”).

Id. at 173.

The dissent saw clearly that the characterization of apportionment in New Jersey law, relied upon by the intermediate appellate court, was not a mere matter of opinion. The majority of the Court of Appeals was wrong, as a matter of fact, in claiming that apportionment of damages in New Jersey was based upon fault. Id. at 174, citing Poliseno v. General Motors Corp., 328 N.J.Super. 41 55-56, 744 A.2d 679, 687-88 (2000), for clear distinguishing between apportionment based upon causation as opposed to fault.

The dissent also called out the majority for the disturbing partisanship in adopting plaintiffs’ lawyers’ and plaintiffs’expert witness’s opinions on apportionment, without any consideration of the excluded expert witness’s contrary opinions. See Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envt’l L. 549, 555 (1995) (cited by dissenters for his conclusion that “[i]f the plaintiff’s asbestos exposure and his smoking are both shown to be causal factors in the plaintiff’s lung cancer, then the loss is necessarily capable of apportionment on the basis of the relative risks demonstrated for each kind of toxic exposure.”).

The Carter case comes about a year after the Court of Appeals reversed a careful opinion of the Special Court of Appeals, and held that plaintiffs’ expert witnesses may testify that each exposure, however small, represents a substantial contributing factor to a plaintiff’s asbestos-related disease. Dixon v. Ford Motor Co., 433 Md. 137 (2013). Science seems not to play well in asbestos cases before the high court of Maryland.


[1] Apparently, the Trust was inappropriately named a Settlement Trust, probably by plaintiffs’ counsel creditors who had apparently hoped it would simply be a cash delivery device.

[2] Colleen K. O’Brien, “Trial Court Erred by Excluding Defense Expert Testimony on Cigarette Smoking As Contributing to Plaintiff’s Lung Cancer” (May 2013); Arlow M. Linton, “Maryland: Failure to Allow Apportionment of Causes of Lung Cancer is Reversible Error” (Oct. 28, 2013).

[3] Colleen K. O’Brien, “Trial Court Properly Excluded Defense Expert Testimony on Cigarette Smoking as Contributing to Plaintiff’s Lung Cancer in Asbestos Case” (Aug. 19, 2014).


				

Railroading Scientific Evidence of Causation in Court

August 31st, 2014

Harold Tanfield spent 40 years or so working for Consolidated Rail Corporation (and its predecessors), from 1952 to 1992.  Mr. Tanfield’s widow sued Conrail, under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.A. §§ 51-60, for negligently overexposing her late husband to diesel fumes, which allegedly caused him to develop lung cancer. Tanfield v. Leigh RR, No. A-4170-12T2, New Jersey Superior Court, App. Div. (Aug. 11, 2014) Slip op. at 3. [cited below as Tanfield].

The trial court granted Conrail summary judgment on grounds that plaintiff failed to show that Conrail had breached a duty of care.  The appellate court reversed and remanded for trial. The Appellate Division’s decision is “per curiam,” and franked “not for publication without the approval of the Appellate Division.” Only two of the usual three appellate judges participated.  The panel decided the case one week after it was submitted.

The plaintiff relied upon two witness, a co-worker of her husband, and an expert witness, Steven R. Tahan, M.D.  Dr. Tahan is a pathologist, an Associate Professor, Department of Pathology, Harvard Medical School, and the Director of Dermatopathology, Beth Israel Deaconess Medical Center.  Dr. Tahan’s website lists melanoma as his principal research interest. A PubMed search reveals no publications on diesel fume, occupational disease, or lung cancer.  Dr. Tahan’s principal research interest, skin pathology, was decidedly not at issue in the Tanfield case.

The panel of the Appellate Division quoted from the relevant paragraphs of Tahan’s report:

“Mr. Tanfield was a railroad worker for 35 years, where he was exposed to a large number of carcinogenic chemicals and fumes, including asbestos, antimony, arsenic, benzene, beryllium, cadmium, carbon disulfide, cyanide, DDT, diesel fumes, diesel fuel, dioxins, ethylbenzene, lead, methylene chloride, mercury, naphthalene, petroleum hydrocarbon, polychlorinated biphenyls, polynuclear aromatic hydrocarbons, toluene, vinyl acetate, and other volatile organics.

I have reviewed the cytology and biopsy slides from the right lung and confirm that he had a poorly differentiated malignant non-small cell carcinoma with both adenocarcinomatous and squamous features.  I have reached the following conclusions to a reasonable degree of medical certainty based on review of the above materials, my education, training, and experience, and review of published studies.

Mr. Tanfield’s more than 35 year substantial occupational exposure to an extensive array of carcinogens and diesel fumes without provision of protective equipment such as masks, respirators, and other filters created a long-term hazard that substantially multiplied his risk for developing lung cancer over the baseline he had as a former smoker.  It is more likely than not that his occupational exposure to diesel fumes and other carcinogenic toxins present in his workplace was a significant causative factor for his development of lung cancer and death from his cancer.”

Tanfield at 6-7.

Mr. Tanfield’s co-worker testified to what appeared to him to be excessive diesel fumes in the workplace, but there is no mention of any quantitative or qualitative evidence to any other lung carcinogen.  The Appellate Division states that the above three paragraphs represent the substance of Dr. Tahan’s report, and so it appears that there is no quantification of Tanfield’s smoking abuse, or the length of time between his discontinuing his smoking and the diagnosis of his lung cancer.  There is no discussion of any support for the alleged interaction between risks, or for any quantification of the extent of his increased risk from his lifestyle choices as opposed to his workplace exposure(s). There is no discussion of what Dr. Tahan visualized in his review of cytology and pathology slides, which permitted him to draw inferences about the actual causes of Mr. Tanfield’s lung cancer.

The trial judge proceeded on the assumption that there was an adequate proffer of expert opinion on causation, but that Dr. Tahan’s opinions on the failure to provide masks or respirators was a “net opinion,” a bit out of Tahan’s area of expertise.  Tanfield at 8. The Appellate Division apparently thought having a skin pathologist opine about the duty of care for a railroad was good enough for government work.  The appellate court gave the widow the benefit of the lower evidentiary threshold for negligence under FELA, which supposedly excuses the lack of an industrial hygiene opinion.  Tanfield at 10.  According to the two-judge panel, “[t]he doctor’s [Tahan’s] opinions are backed by professional literature and by his own considerable years of research and experience.” Tanfield at 11.  The Panel’s statement is all the more remarkable given that Tahan had never published on lung cancer, exposure assessments, or industrial hygiene measures; the vaunted experience of this witness was irrelevant to the issues in the case. Perhaps even more disturbing are the gaps in the proofs concerning the lack of causal connection between many of the alleged exposures and lung cancer generally, any discussion that the level of exposure to diesel fumes, from 1952 to 1992, was such that the railroads knew or should have known that that level of diesel fume caused lung cancer in workers.  And then there is the lurking probability that Mr. Tanfield’s smoking was the sole cause of his lung cancer.

Over 50 years ago, the New York Court of Appeals rejected a claim for leukemia, based upon allegations of benzene exposure, without any quantification of risk from the alleged exposure.  Miller v. National Cabinet Co., 8 N.Y.2d 277, 283-84, 168 N.E.2d 811, 813-15, 204 N.Y.S.2d 129, 132-34, modified on other grounds, 8 N.Y.2d 1025, 70 N.E.2d 214, 206 N.Y.S.2d 795 (1960). It is time to raise the standard for New Jersey courts’ consideration of epidemiologic evidence.

Pritchard v. Dow Agro – Gatekeeping Exemplified

August 25th, 2014

Robert T. Pritchard was diagnosed with Non-Hodgkin’s Lymphoma (NHL) in August 2005; by fall 2005, his cancer was in remission. Mr. Pritchard had been a pesticide applicator, and so, of course, he and his wife sued the deepest pockets around, including Dow Agro Sciences, the manufacturer of Dursban. Pritchard v. Dow Agro Sciences, 705 F.Supp. 2d 471 (W.D.Pa. 2010).

The principal active ingredient of Dursban is chlorpyrifos, along with some solvents, such as xylene, cumene, and ethyltoluene. Id. at 474.  Dursban was licensed for household insecticide use until 2000, when the EPA phased out certain residential applications.  The EPA’s concern, however, was not carcinogenicity:  the EPA categorizes chlorpyrifos as “Group E,” non-carcinogenetic in humans. Id. at 474-75.

According to the American Cancer Society (ACS), the cause or causes of NHL cases are unknown.  Over 60,000 new cases are diagnosed annually, in people from all walks of life, occupations, and lifestyles. The ACS identifies some risk factors, such as age, gender, race, and ethnicity, but the ACS emphasizes that chemical exposures are not proven risk factors or causes of NHL.  See Pritchard, 705 F.Supp. 2d at 474.

The litigation industry does not need scientific conclusions of causal connections; their business is manufacturing certainty in courtrooms. Or at least, the appearance of certainty. The Pritchards found their way to the litigation industry in Pittsburgh, Pennsylvania, in the form of Goldberg, Persky & White, P.C. The Goldberg Persky firm sued Dow Agro, and then put the Pritchards in touch with Dr. Bennet Omalu, to serve as their expert witness.  A lawsuit ensued.

Alas, the Pritchards’ lawsuit ran into a wall, or at least a gate, in the form of Federal Rule of Evidence 702. In the capable hands of Judge Nora Barry Fischer, Rule 702 became an effective barrier against weak and poorly considered expert witness opinion testimony.

Dr. Omalu, no stranger to lost causes, was the medical examiner of San Joaquin County, California, at the time of his engagement in the Pritchard case. After careful consideration of the Pritchards’ claims, Omalu prepared a four page report, with a single citation, to Harrison’s Principles of Internal Medicine.  Id. at 477 & n.6.  This research, however, sufficed for Omalu to conclude that Dursban caused Mr. Pritchard to develop NHL, as well as a host of ailments he had never even sued Dow Agro for, including “neuropathy, fatigue, bipolar disorder, tremors, difficulty concentrating and liver disorder.” Id. at 478. Dr. Omalu did not cite or reference any studies, in his report, to support his opinion that Dursban caused Mr. Pritchard’s ailments.  Id. at 480.

After counsel objected to Omalu’s report, plaintiffs’ counsel supplemented the report with some published articles, including the “Lee” study.  See Won Jin Lee, Aaron Blair, Jane A. Hoppin, Jay H. Lubin, Jennifer A. Rusiecki, Dale P. Sandler, Mustafa Dosemeci, and Michael C. R. Alavanja, “Cancer Incidence Among Pesticide Applicators Exposed to Chlorpyrifos in the Agricultural Health Study,” 96 J. Nat’l Cancer Inst. 1781 (2004) [cited as Lee].  At his deposition, and in opposition to defendants’ 702 motion, Omalu became more forthcoming with actual data and argument.  According to Omalu, the Lee study “the 2004 Lee Study strongly supports a conclusion that high-level exposure to chlorpyrifos is associated with an increased risk of NHL.’’ Id. at 480.

This opinion put forward by Omalu bordered on scientific malpractice.  No; it was malpractice.  The Lee study looked at many different cancer end points, without adjustment for multiple comparisons.  The lack of adjustment means at the very least that any interpretation of p-values or confidence intervals would have to modified to acknowledge the higher rate of random error.  Now for NHL, the overall relative risk (RR) for chlorpyrifos exposure was 1.03, with a 95% confidence interval, 0.62 to 1.70.  Lee at 1783.  In other words, the study that Omalu claimed supported his opinion was about as null a study as can be, with reasonably tight confidence interval that made a doubling of the risk rather unlikely given the sample RR.

If the multiple endpoint testing were not sufficient to dissuade a scientist, intent on supporting the Pritchards’ claims, then the exposure subgroup analysis would have scared any prudent scientist away from supporting the plaintiffs’ claims.  The Lee study authors provided two different exposure-response analyses, one with lifetime exposure and the other with an intensity-weighted exposure, both in quartiles.  Neither analysis revealed an exposure-response trend.  For the lifetime exposure-response trend, the Lee study reported an NHL RR of 1.01, for the highest quartile of chloripyrifos exposure. For the intensity-weighted analysis, for the highest quartile, the authors reported RR = 1.61, with a 95% confidence interval, 0.74 to 3.53).

Although the defense and the district court did not call out Omalu on his fantasy statistical inference, the district judge certainly appreciated that Omalu had no statistically significant associations between chloripyrifos and NHL, to support his opinion. Given the weakness of relying upon a single epidemiologic study (and torturing the data therein), the district court believed that a showing of statistical significance was important to give some credibility to Omalu’s claims.  705 F.Supp. 2d at 486 (citing General Elec. Co. v. Joiner, 522 U.S. 136, 144-46 (1997);  Soldo v. Sandoz Pharm. Corp., 244 F.Supp. 2d 434, 449-50 (W.D. Pa. 2003)).

Figure 3 adapted from Lee

Figure 3 adapted from Lee

What to do when there is really no evidence supporting a claim?  Make up stuff.  Here is how the trial court describes Omalu’s declaration opposing exclusion:

 “Dr. Omalu interprets and recalculates the findings in the 2004 Lee Study, finding that ‘an 80% confidence interval for the highly-exposed applicators in the 2004 Lee Study spans a relative risk range for NHL from slightly above 1.0 to slightly above 2.5.’ Dr. Omalu concludes that ‘this means that there is a 90% probability that the relative risk within the population studied is greater than 1.0’.”

705 F.Supp. 2d at 481 (internal citations omitted); see also id. at 488. The calculations and the rationale for an 80% confidence interval were not provided, but plaintiffs’ counsel assured Judge Fischer at oral argument that the calculation was done using high school math. Id. at 481 n.12. Judge Fischer seemed unimpressed, especially given that there was no record of the calculation.  Id. at 481, 488.

The larger offense, however, was that Omalu’s interpretation of the 80% confidence interval as a probability statement of the true relative risk’s exceeding 1.0, was bogus. Dr. Omalu further displayed his lack of statistical competence when he attempted to defend his posterior probability derived from his 80% confidence interval by referring to a power calculation of a different disease in the Lee study:

“He [Omalu] further declares that ‘‘the authors of the 2004 Lee Study themselves endorse the probative value of a finding of elevated risk with less than a 95% confidence level when they point out that ‘this analysis had a 90% statistical power to detect a 1.5–fold increase in lung cancer incidence’.”

Id. at 488 (court’s quoting of Omalu’s quoting from the Lee study). To quote Wolfgang Pauli, Omalu is so far off that he is “not even wrong.” Lee and colleagues were offering a pre-study power calculation, which they used to justify their looking at the cohort for lung cancer, not NHL, outcomes.  Lee at 1787. The power calculation does not apply to the data observed for lung cancer; and the calculation has absolutely nothing to do with NHL. The power calculation certainly has nothing to do with Omalu’s misguided attempt to offer a calculation of a posterior probability for NHL based upon a subgroup confidence interval.

Given that there were epidemiologic studies available, Judge Fischer noted that expert witnesses were obligated to factor such studies into their opinions. See 705 F.Supp. 2d at 483 (citing Soldo, 244 F.Supp. 2d at 532).  Omalu sins against Rule 702 included his failure to consider any studies other than the Lee study, regardless of how unsupportive the Lee study was of his opinion.  The defense experts pointed to several studies that found lower NHL rates among exposed workers than among controls, and Omalu completely failed to consider and to explain his opinion in the face of the contradictory evidence.  See 705 F.Supp. 2d at 485 (citing Perry v. Novartis Pharm. Corp. 564 F.Supp. 2d 452, 465 (E.D. Pa. 2008)). In other words, Omalu was shown to have been a cherry picker. Id. at 489.

In addition to the abridged epidemiology, Omalu relied upon an analogy between the ethyl-toluene and other solvents that contained benzene rings and benzene itself to argue that these chemicals, supposedly like benzene, cause NHL.  Id. at 487. The analogy was never supported by any citations to published studies, and, of course, the analogy is seriously flawed. Many chemicals, including chemicals made and used by the human body, have benzene rings, without the slightest propensity to cause NHL.  Indeed, the evidence that benzene itself causes NHL is weak and inconsistent.  See, e.g., Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (2007) (affirming the exclusion of Dr. B.S. Levy in a case involving benzene exposure and NHL).

Looking at all the evidence, Judge Fischer found Omalu’s general causation opinions unreliable.  Relying upon a single, statistically non-significant epidemiologic study (Lee), while ignoring contrary studies, was not sound science.  It was not even science; it was courtroom rhetoric.

Omalu’s approach to specific causation, the identification of what caused Mr. Pritchard’s NHL, was equally spurious. Omalu purportedly conducted a “differential diagnosis” or a “differential etiology,” but he never examined Mr. Pritchard; nor did he conduct a thorough evaluation of Mr. Pritchard’s medical records. 705 F.Supp. 2d at 491. Judge Fischer found that Omalu had not conducted a thorough differential diagnosis, and that he had made no attempt to rule out idiopathic or unknown causes of NHL, despite the general absence of known causes of NHL. Id. at 492. The one study identified by Omalu reported a non-statistically significant 60% increase in NHL risk, for a subgroup in one of two different exposure-response analyses.  Although Judge Fischer treated the relative risk less than two as a non-dispositive factor in her decision, she recognized that

“The threshold for concluding that an agent was more likely than not the cause of an individual’s disease is a relative risk greater than 2.0… . When the relative risk reaches 2.0, the agent is responsible for an equal number of cases of disease as all other background causes. Thus, a relative risk of 2.0 … implies a 50% likelihood that an exposed individual’s disease was caused by the agent. A relative risk greater than 2.0 would permit an inference that an individual plaintiff’s disease was more likely than not caused by the implicated agent.”

Id. at 485-86 (quoting from Reference Manual on Scientific Evidence at 384 (2d ed. 2000)).

Left with nowhere to run, plaintiffs’ counsel swung for the bleachers by arguing that the federal court, sitting in diversity, was required to apply Pennsylvania law of evidence because the standards of Rule 702 constitute “substantive,” not procedural law. The argument, which had been previously rejected within the Third Circuit, was as legally persuasive as Omalu’s scientific opinions.  Judge Fischer excluded Omalu’s proffered opinions and granted summary judgment to the defendants. The Third Circuit affirmed in a per curiam decision. 430 Fed. Appx. 102, 2011 WL 2160456 (3d Cir. 2011).

Practical Evaluation of Scientific Claims

The evaluative process that took place in the Pritchard case missed some important details and some howlers committed by Dr. Omalu, but it was more than good enough for government work. The gatekeeping decision in Pritchard was nonetheless the target of criticism in a recent book.

Kristin Shrader-Frechette (S-F) is a professor of science who wants to teach us how to expose bad science. S-F has published, or will soon publish, a book that suggests that philosophy of science can help us expose “bad science.”  See Kristin Shrader-Frechette, Tainted: How Philosophy of Science Can Expose Bad Science (Oxford U.P. 2014)[cited below at Tainted; selections available on Google books]. S-F’s claim is intriguing, as is her move away from the demarcation problem to the difficult business of evaluation and synthesis of scientific claims.

In her introduction, S-F tells us that her book shows “how practical philosophy of science” can counteract biased studies done to promote special interests and PROFITS.  Tainted at 8. Refreshingly, S-F identifies special-interest science, done for profit, as including “individuals, industries, environmentalists, labor unions, or universities.” Id. The remainder of the book, however, appears to be a jeremiad against industry, with a blind eye towards the litigation industry (plaintiffs’ bar) and environmental zealots.

The book promises to address “public concerns” in practical, jargon-free prose. Id. at 9-10. Some of the aims of the book are to provide support for “rejecting demands for only human evidence to support hypotheses about human biology (chapter 3), avoiding using statistical-significance tests with observational data (chapter 12), and challenging use of pure-science default rules for scientific uncertainty when one is doing welfare-affecting science (chapter 14).”

Id. at 10. Hmmm.  Avoiding statistical significance tests for observational data?!?  If avoided, what does S-F hope to use to assess random error?

And then S-F refers to plaintiffs’ hired expert witness (from the Milward case), Carl Cranor, as providing “groundbreaking evaluations of causal inferences [that] have helped to improve courtroom verdicts about legal liability that otherwise put victims at risk.” Id. at 7. Whether someone is a “victim” and has been “at risk” turns on assessing causality. Cranor is not a scientist, and his philosophy of science turns of “weight of the evidence” (WOE), a subjective, speculative approach that is deaf, dumb, and blind to scientific validity.

There are other “teasers,” in the introduction to Tainted.  S-F advertises that her Chapter 5 will teach us that “[c]ontrary to popular belief, animal and not human data often provide superior evidence for human-biological hypotheses.”  Tainted at 11. Chapter 6 will show that“[c]ontrary to many physicists’ claims, there is no threshold for harm from exposure to ionizing radiation.” Id.  S-F tells us that her Chapter 7 will criticize “a common but questionable way of discovering hypotheses in epidemiology and medicine—looking at the magnitude of some effect in order to discover causes. The chapter shows instead that the likelihood, not the magnitude, of an effect is the better key to causal discovery.” Id. at 13. Discovering hypotheses — what is that about? You might have thought that hypotheses were framed from observations and then tested.

Which brings us to the trailer for Chapter 8, in which S-F promises to show that “[c]ontrary to standard statistical and medical practice, statistical-significance tests are not causally necessary to show medical and legal evidence of some effect.” Tainted at 11. Again, the teaser raises lots of questions such as what could S-F possibly mean when she says statistical tests are not causally necessary to show an effect.  Later in the introduction, S-F says that her chapter on statistics “evaluates the well-known statistical-significance rule for discovering hypotheses and shows that because scientists routinely misuse this rule, they can miss discovering important causal hypotheses. Id. at 13. Discovering causal hypotheses is not what courts and regulators must worry about; their task is to establish such hypotheses with sufficient, valid evidence.

Paging through the book reveals that a rhetoric that is thick and unremitting, with little philosophy of science or meaningful advice on how to evaluate scientific studies.  The statistics chapter calls out, and lo, it features a discussion of the Pritchard case. See Tainted, Chapter 8, “Why Statistics Is Slippery: Easy Algorithms Fail in Biology.”

The chapter opens with an account of German scientist Fritz Haber’s development of organophosphate pesticides, and the Nazis use of related compounds as chemical weapons.  Tainted at 99. Then, in a fevered non-sequitur and rhetorical flourish, S-F states, with righteous indignation, that although the Nazi researchers “clearly understood the causal-neurotoxic effects of organophosphate pesticides and nerve gas,” chemical companies today “claim that the causal-carcinogenic effects of these pesticides are controversial.” Is S-F saying that a chemical that is neurotoxic must be carcinogenic for every kind of human cancer?  So it seems.

Consider the Pritchard case.  Really, the Pritchard case?  Yup; S-F holds up the Pritchard case as her exemplar of what is wrong with civil adjudication of scientific claims.  Despite the promise of jargon-free language, S-F launches into a discussion of how the judges in Pritchard assumed that statistical significance was necessary “to hypothesize causal harm.”  Tainted at 100. In this vein, S-F tells us that she will show that:

“the statistical-significance rule is not a legitimate requirement for discovering causal hypotheses.”

Id. Again, the reader is left to puzzle why statistical significance is discussed in the context of hypothesis discovery, whatever that may be, as opposed to hypothesis testing or confirmation. And whatever it may be, we are warned that “unless the [statistical significance] rule is rejected as necessary for hypothesis-discovery, it will likely lead to false causal claims, questionable scientific theories, and massive harm to innocent victims like Robert Pritchard.”

Id. S-F is decidedly not adverting to Mr. Pritichard’s victimization by the litigation industry and the likes of Dr. Omalu, although she should. S-F not only believes that the judges in Pritchard bungled their gatekeeping wrong, she knows that Dr. Omalu was correct, and the defense experts wrong, and that Pritchard was a victim of Dursban and of questionable scientific theories that were used to embarrass Omalu and his opinions.

S-F promised to teach her readers how to evaluate scientific claims and detect “tainted” science, but all she delivers here is an ipse dixit.  There is no discussion of the actual measurements, extent of random error, or threats to validity, for studies cited either by the plaintiffs or the defendants in Pritchard.  To be sure, S-F cites the Lee study in her endnotes, but she never provides any meaningful discussion of that study or any other that has any bearing on chlorpyrifos and NHL.  S-F also cited two review articles, the first of which provides no support for her ipse dixit:

“Although mutagenicity and chronic animal bioassays for carcinogenicity of chlorpyrifos were largely negative, a recent epidemiological study of pesticide applicators reported a significant exposure response trend between chlorpyrifos use and lung and rectal cancer. However, the positive association was based on small numbers of cases, i.e., for rectal cancer an excess of less than 10 cases in the 2 highest exposure groups. The lack of precision due to the small number of observations and uncertainty about actual levels of exposure warrants caution in concluding that the observed statistical association is consistent with a causal association. This association would need to be observed in more than one study before concluding that the association between lung or rectal cancer and chlorpyrifos was consistent with a causal relationship.

There is no evidence that chlorpyrifos is hepatotoxic, nephrotoxic, or immunotoxic at doses less than those that cause frank cholinesterase poisoning.”

David L. Eaton, Robert B. Daroff, Herman Autrup, James Bridges, Patricia Buffler, Lucio G. Costa, Joseph Coyle, Guy McKhann, William C. Mobley, Lynn Nadel, Diether Neubert, Rolf Schulte-Hermann, and Peter S. Spencer, “Review of the Toxicology of Chlorpyrifos With an Emphasis on Human Exposure and Neurodevelopment,” 38 Critical Reviews in Toxicology 1, 5-6(2008).

The second cited review article was written by clinical ecology zealot[1], William J. Rea. William J. Rea, “Pesticides,” 6 Journal of Nutritional and Environmental Medicine 55 (1996). Rea’s article does not appear in Pubmed.

Shrader-Frechette’s Criticisms of Statistical Significance Testing

What is the statistical significance against which S-F rails? She offers several definitions, none of which is correct or consistent with the others.

“The statistical-significance level p is defined as the probability of the observed data, given that the null hypothesis is true.8

Tainted at 101 (citing D. H. Johnson, “What Hypothesis Tests Are Not,” 16 Behavioral Ecology 325 (2004). Well not quite; attained significance probability is the probability of data observed or those more extreme, given the null hypothesis.  A Tainted definition.

Later in Chapter 8, S-F discusses significance probability in a way that overtly commits the transposition fallacy, not a good thing to do in a book that sets out to teach how to evaluate scientific evidence:

“However, typically scientists view statistical significance as a measure of how confidently one might reject the null hypothesis. Traditionally they have used a 0.05 statistical-significance level, p < or = 0.05, and have viewed the probability of a false-positive (incorrectly rejecting a true null hypothesis), or type-1, error as 5 percent. Thus they assume that some finding is statistically significant and provides grounds for rejecting the null if it has at least a 95-percent probability of not being due to chance.

Tainted at 101. Not only does the last sentence ignore the extent of error due to bias or confounding, it erroneously assigns a posterior probability that is the complement of the significance probability.  This error is not an isolated occurrence; here is another example:

“Thus, when scientists used the rule to examine the effectiveness of St. John’s Wort in relieving depression,14 or when they employed it to examine the efficacy of flutamide to treat prostate cancer,15 they concluded the treatments were ineffective because they were not statistically significant at the 0.05 level. Only at p < or = 0.14 were the results statistically significant. They had an 86-percent chance of not being due to chance.16

Tainted at 101-02 (citing papers by Shelton (endnote 14)[2], by Eisenberger (endnote 15) [3], and Rothman’s text (endnote 16)[4]). Although Ken Rothman has criticized the use of statistical significance tests, his book surely does not interpret a p-value of 0.14 as an 86% chance that the results were not due to chance.

Although S-F previous stated that statistical significance is interpreted as the probability that the null is true, she actually goes on to correct the mistake, sort of:

“Requiring the statistical-significance rule for hypothesis-development also is arbitrary in presupposing a nonsensical distinction between a significant finding if p = 0.049, but a nonsignificant finding if p = 0. 051.26 Besides, even when one uses a 90-percent (p < or = 0.10), an 85-percent (p < or = 0.15), or some other confidence level, it still may not include the null point. If not, these other p values also show the data are consistent with an effect. Statistical-significance proponents thus forget that both confidence levels and p values are measures of consistency between the data and the null hypothesis, not measures of the probability that the null is true. When results do not satisfy the rule, this means merely that the null cannot be rejected, not that the null is true.”

Tainted at 103.

S-F’s repeats some criticisms of significance testing, most of which involve their own misunderstandings of the concept.  It hardly suffices to argue that evaluating the magnitude of random error is worthless because it does not measure the extent of bias and confounding.  The flaw lies in those who would interpret the p-value as the sole measure of error involved in a measurement.

S-F takes the criticisms of significance probability to be sufficient to justify an alternative approach: evaluating causal hypotheses “on a preponderance of evidence,47 whether effects are more likely than not.”[5] Here citations, however, do not support the notion that an overall assessment of the causal hypothesis is a true alternative of statistical testing, but rather only a later step in the causal assessment, which presupposes the previous elimination of random variability in the observed associations.

S-F compounds her confusion by claiming that this purported alternative is superior to significance testing or any evaluation of random variability, and by noting that juries in civil cases must decide causal claims on the preponderance of the evidence, not on attained significance probabilities:

“In welfare-affecting areas of science, a preponderance-of-evidence rule often is better than a statistical-significance rule because it could take account of evidence based on underlying mechanisms and theoretical support, even if evidence did not satisfy statistical significance. After all, even in US civil law, juries need not be 95 percent certain of a verdict, but only sure that a verdict is more likely than not. Another reason for requiring the preponderance-of-evidence rule, for welfare-related hypothesis development, is that statistical data often are difficult or expensive to obtain, for example, because of large sample-size requirements. Such difficulties limit statistical-significance applicability. ”

Tainted at 105-06. S-F’s assertion that juries need not have 95% certainty in their verdict is either a misunderstanding or a misrepresentation of the meaning of a confidence interval, and a conflation of two very kinds of probability or certainty.  S-F invites a reading that commits the transposition fallacy by confusing the probability involved in a confidence interval with that involved in a posterior probability.  S-F’s claim that sample size requirements often limit the ability to use statistical significance evaluations is obviously highly contingent upon the facts of case, but in civil cases, such as Pritchard, this limitation is rarely at play.  Of course, if the sample size is too small to evaluate the role of chance, then a scientist should probably declare the evidence too fragile to support a causal conclusion.

S-F also postulates that that a posterior probability rather than a significance probability approach would “better counteract conflicts of interest that sometimes cause scientists to pay inadequate attention to public-welfare consequences of their work.” Tainted at 106. This claim is a remarkable assertion, which is not supported by any empirical evidence.  The varieties of evidence that go into an overall assessment of a causal hypothesis are often quantitatively incommensurate.  The so-called preponderance-of-the-evidence described by S-F is often little more than a subjective overall assessment of weight of the evidence.  The approving citations to the work of Carl Cranor support interpreting S-F to endorse this subjective, anything-goes approach to weight of the evidence.  As for WOE eliminating inadequate attention to “public welfare,” S-F’s citations actually suggest the opposite. S-F’s citations to the 1961 reviews by Wynder and by Little illustrate how subjective narrative reviews can be, with diametrically opposed results.  Rather than curbing conflicts of interest, these subjective, narrative reviews illustrate how contrary results may be obtained by the failure to pre-specify criteria of validity, and inclusion and exclusion of admissible evidence. Still, S-F asserts that “up to 80 percent of welfare-related statistical studies have false-negative or type-II errors, failing to reject a false null.” Tainted at 106. The support for this assertion is a citation to a review article by David Resnik. See David Resnik, “Statistics, Ethics, and Research: An Agenda for Education and Reform,” 8 Accountability in Research 163, 183 (2000). Resnik’s paper is a review article, not an empirical study, but at the page cited by S-F, Resnik in turn cites to well-known papers that present actual data:

“There is also evidence that many of the errors and biases in research are related to the misuses of statistics. For example, Williams et al. (1997) found that 80% of articles surveyed that used t-tests contained at least one test with a type II error. Freiman et al. (1978)  * * *  However, empirical research on statistical errors in science is scarce, and more work needs to be done in this area.”

Id. The papers cited by Resnik, Williams (1997)[6] and Freiman (1978)[7] did identify previously published studies that over-interpreted statistically non-significant results, but the identified type-II errors were potential errors, not ascertained errors, because the authors made no claim that every non-statistically significant result actually represented a missed true association. In other words, S-F is not entitled to say that these empirical reviews actually identified failures to reject fall null hypotheses. Furthermore, the empirical analyses in the studies cited by Resnik, who was in turn cited by S-F, did not look at correlations between alleged conflicts of interest and statistical errors. The cited research calls for greater attention to proper interpretation of statistical tests, not for their abandonment.

In the end, at least in the chapter on statistics, S-F fails to deliver much if anything on her promise to show how to evaluate science from a philosophic perspective.  Her discussion of the Pritchard case is not an analysis; it is a harangue. There are certainly more readable, accessible, scholarly, and accurate treatments of the scientific and statistical issues in this book.  See, e.g., Michael B. Bracken, Risk, Chance, and Causation: Investigating the Origins and Treatment of Disease (2013).


[1] Not to be confused with the deceased federal judge by the same name, William J. Rea. William J. Rea, 1 Chemical Sensitivity – Principles and Mechanisms (1992); 2 Chemical Sensitivity – Sources of Total Body Load (1994),  3 Chemical Sensitivity – Clinical Manifestation of Pollutant Overload (1996), 4 Chemical Sensitivity – Tools of Diagnosis and Methods of Treatment (1998).

[2] R. C. Shelton, M. B. Keller, et al., “Effectiveness of St. John’s Wort in Major Depression,” 285 Journal of the American Medical Association 1978 (2001).

[3] M. A. Eisenberger, B. A. Blumenstein, et al., “Bilateral Orchiectomy With or Without Flutamide for Metastic [sic] Prostate Cancer,” 339 New England Journal of Medicine 1036 (1998).

[4] Kenneth J. Rothman, Epidemiology 123–127 (NY 2002).

[5] Endnote 47 references the following papers: E. Hammond, “Cause and Effect,” in E. Wynder, ed., The Biologic Effects of Tobacco 193–194 (Boston 1955); E. L. Wynder, “An Appraisal of the Smoking-Lung-Cancer Issue,”264  New England Journal of Medicine 1235 (1961); see C. Little, “Some Phases of the Problem of Smoking and Lung Cancer,” 264 New England Journal of Medicine 1241 (1961); J. R. Stutzman, C. A. Luongo, and S. A McLuckey, “Covalent and Non-Covalent Binding in the Ion/Ion Charge Inversion of Peptide Cations with Benzene-Disulfonic Acid Anions,” 47 Journal of Mass Spectrometry 669 (2012). Although the paper on ionic charges of peptide cations is unfamiliar, the other papers do not eschew traditional statistical significance testing techniques. By the time these early (1961) reviews were written, the association that was reported between smoking and lung cancer was clearly accepted as not likely explained by chance.  Discussion focused upon bias and potential confounding in the available studies, and the lack of animal evidence for the causal claim.

[6] J. L. Williams, C. A. Hathaway, K. L. Kloster, and B. H. Layne, “Low power, type II errors, and other statistical problems in recent cardiovascular research,” 42 Am. J. Physiology Heart & Circulation Physiology H487 (1997).

[7] Jennie A. Freiman, Thomas C. Chalmers, Harry Smith and Roy R. Kuebler, “The importance of beta, the type II error and sample size in the design and interpretation of the randomized control trial: survey of 71 ‛negative’ trials,” 299 New Engl. J. Med. 690 (1978).

Contra Parascandola’s Reduction of Specific Causation to Risk

August 22nd, 2014

Mark Parascandola is a photographer who splits his time between Washington DC, and Almeria, Spain.  Before his career in photography, Parascandola studied philosophy (Cambridge), and did graduate work in epidemiology (Johns Hopkins, MPH). In 1997 to 1998, he studied the National Cancer Institute’s role in determining that smoking causes some kinds of cancer.  He went on to serve as a staff epidemiologist at NCI, at its Tobacco Control Research Branch, in the Division of Cancer Control and Population Sciences (DCCPS).

Back in the 1990s, Parascandola wrote an article, which is a snapshot and embellishment of arguments given by Sander Greenland, on the use and alleged abuse of relative risks to derive a “probability of causation.” See Mark Parascandola, “What’s Wrong with the Probability of Causation?” 39 Jurimetrics J. 29 (1998)[cited here are Parascandola]. Parascandola’s article is a locus of arguments that have recurred from time to time, and worth revisiting.

Parascandola offers an interesting historical factoid, which is a useful reminder to those who suggest that the RR > 2 argument was the brainchild of lawyers:  The argument was first suggested in 1959, by Dr. Victor P. Bond, a physician with expertise in medical physics at the Brookhaven National Laboratory.  See Parascandola at 31 n. 6 (citing Victor P. Bond, The Medical Effects of Radiation (1960), reprinted in NACCA 13th Annual Convention 1959, at 126 (1960).

Unfortunately, Parascandola is a less reliable reporter when it comes to the judicial use of the relative risk greater than two (RR > 2) argument.  He argues that Judge Jack Weinstein opposed the RR > 2 argument on policy grounds, when in fact, Judge Weinstein rejected the anti-probabilistic argument that probabilistic inference could never establish specific causation, and embraced the RR > 2 argument as a logical policy compromise that would allow evidence of risk to substitute for specific causation in a limited fashion. Parascandola at 33-34 & n.20. Given Judge Weinstein’s many important contributions to tort and procedural law, and the importance of the Agent Orange litigation, it is worth describing Judge Weinstein’s views accurately. See In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785, 817, 836 (E.D.N.Y. 1984) (“A government administrative agency may regulate or prohibit the use of toxic substances through rulemaking, despite a very low probability of any causal relationship.  A court, in contrast, must observe the tort law requirement that a plaintiff establish a probability of more than 50% that the defendant’s action injured him. … This means that at least a two-fold increase in incidence of the disease attributable to Agent Orange exposure is required to permit recovery if epidemiological studies alone are relied upon.”), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988); see also In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223, 1240, 1262 (E.D.N.Y. 1985)(excluding plaintiffs’ expert witnesses), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).[1]

Parascandola’s failure to cite and describe Judge Weinstein’s views raises some question of the credibility of his analyses, and his assertion that “[he] will demonstrate that the PC formula is invalid in many situations and cannot fill the role it is given.” Parascandola at 30 (emphasis added).

Parascandola describes basic arithmetic of probability of causation (PC) in terms of a disease for which we “expect cases” and for which we have “excess cases.” The rate of observed cases in an exposed population divided by the rate of expected cases in an unexposed population provides an estimate of the population relative risk (RR). The excess cases can be obtained simply from the difference between observed cases in the exposed group and the expected cases in the unexposed group.  The attributable fraction is the ratio of excess cases to total cases.

The probability of causation “PC” = 1 – (1/RR).

Heterogeneity Yields Uncertainty Argument

The RR describes a group statistic, and an individual’s altered risk will almost certainly not be exactly equal to the group’s average risk. Parascandola notes that sometimes this level of uncertainty can be remedied by risk measurements for subgroups that better fit an individual plaintiff’s characteristics.  All true, but this is hardly an argument against RR > 2.  At best, the heterogeneity argument is an expression of inference skepticism of the sort that led Judge Weinstein to accept RR > 2 as a reasonable compromise. The presence of heterogeneity of this sort simply increases the burden upon plaintiff to provide RR statistics from studies that very tightly resemble plaintiff in terms of exposure and other characteristics.

Urning for Probablistic Certainty

Parascandola describes how the PC formula arises from a consideration of the “urn model” of disease causation.  Suppose in group of sufficient size there were expected 200 stomach cancer cases within a certain time, but 300 were observed. We can model the situation with an urn of 300 marbles, 200 of which are green, and 100 are red. Blindfolded or colorblind, we pull a single marble from the urn, and we have only a 1/3 chance of obtaining a red, “excess” marble case. Parascandola at 36-37 (borrowing from David Kaye, “The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation,” 7 Am. Bar Fdtn. Res. J. 487, 501 (1982)).

Parascandola argues that the urn model is not necessarily correct.  Causation cannot always be reduced to a single cause. Complex etiologic mechanisms and pathways are common.  Interactions between and among causes frequently occur.  Biological phenomena are sometimes “over-determined.” Parascandola asks us to assume that some of the non-excess cases are also “etiologic cases,” which were caused by the exposure but which would not have occurred but for the exposure.  Id. at 37. Borrowing from Greenland, Parascandola asserts that “[a]ll excess cases are etiologic cases, but not vice versa.” Id. at 38 & n.37 (quoting from Sander Greenland & James M. Robins, “Conceptual Problems in the Definition and Interpretation of Attributable Fractions,” 128 Am. J. Epidem. 1185, 1185 (1988)).

Parascandola’s argument, if accepted, proves too much to help plaintiffs who hope to establish specific causation with evidence of increased risk. His argument posits a different, more complex model of causation, for which plaintiffs usually have no evidence.  (If they did have such evidence, then they would have nothing to fear in the assumptions of the simplistic urn model; they could rebut those assumptions.) Parascandola’s argument pushes the speculation envelope by asking us to believe that some “non-excess” cases are etiologic cases, but providing no basis for identifying which ones they are.  Unless and until such evidence is forthcoming, Parascandola’s argument is simply uncontrolled multi-leveled conjecture.

Again borrowing from Sander Greenland’s speculation, Parascandola advances a variant of the argument above by suggesting that an exposure may not increase the overall number of excess cases, but that it may accelerate the onset of the harm in question. While it is true that the element of time is important, both in law and in life, the invoked speculation can be, and usually is, tested by time windows or time series analyses in observational epidemiology and clinical trials.  The urn model is “flat” with respect to the temporal dimension, but if plaintiffs want to claim acceleration, then they should adduce Kaplan-Meier curves and the like.  But again, with the modification of the time dimension, plaintiffs will still need hazard ratios or other risk ratios greater than two to make out their case, unless there is a biomarker/fingerprint of individual causation. The introduction of the temporal element is important to an understanding of risk, but Parascandola’s argument does not help transmute evidence of risk in a group to causation in an individual.

Joint Chancy Causation

In line with his other speculative arguments, Parascandola asks:  what if a given cancer in the exposed group is the product of two causes rather than due to one or another of the two causes? Parascandola at 40. This question restates the speculative argument in only slightly different terms.  We could multiply the possible causal sets by suggesting that the observed effect resulted from one or the other or both or none of the causes.  Parascandola calls this “joint chancy causation,” but he manages to show only that the inference of causation from prior chance or risk is a very chancy (or dicey) step in his argument.  Parascandola argues that we should not assume that the urn model is true, when multiple causation models are “plausible and consistent” with other causal theories.

Interestingly, this line of argument would raise the burden upon plaintiffs by requiring them to specify the applicable causal model in ways that (1) they often cannot, and (2) they now, under current law, are not required to do.

Conclusion

In the end, Parascandola realizes that he has raised, not lowered, the burden for plaintiffs.  His counter is to suggest, contrary to law and science, that “the existence of alternative hypotheses should not prevent the plaintiff’s case from proceeding.” Parascandola at 41 n.50.  Because he says so. In other words, Parascandola is telling us that irrespective of how poorly established a hypothesis is, or of how speculative an inference is, or of the existence and strength of alternative hypotheses,

“This trial must be tried.”

W.S. Gilbert, Trial by Jury (1875).

With bias of every kind, no doubt.

That is not science, law, or justice.


[1] An interesting failure or lack of peer review in a legal journal.

 

Silicosis, Lung Cancer, and Evidence-Based Medicine in North America

July 4th, 2014

According to her biographies[1], Madge Thurlow Macklin excelled in mathematics, graduated from Goucher College, received a fellowship to study physiology at Johns Hopkins University, and then went on graduate with honors from the Johns Hopkins Medical School, in 1919.  Along the way, she acquired a husband, Charles C. Macklin, an associate professor of anatomy at Hopkins, and had her first child.

In 1921, the Macklins moved to London, Ontario, to take positions at the University of Western Ontario.  Charles received an appointment as a professor of histology and embryology, and went on to distinguish himself in pulmonary pathology. Madge Macklin received an appointment as a part-time instructor at Western, but faced decades of resistance because of her sex and her marriage to a professor. She was never promoted beyond part-time assistant professor, at Western.

Despite the hostile work environment, Madge Macklin published and lectured on statistical and medical genetics.  Her papers made substantial contributions to the inheritable aspects of human cancer and other diseases.

Macklin advocated tirelessly for the inclusion of medical genetics in the American medical school curriculum. See, e.g., Marge T. Macklin, “Should The Teaching Of Genetics As Applied To Medicine Have A Place In The Medical Curriculum?” 7 J. Ass’n Am. Med. Coll. 368 (1932); “The Teaching of Inheritance of Disease to Medical Students: A Proposed Course in Medical Genetics,” 6 Ann. Intern. Med. 1335 (1933). Her advocacy largely succeeded both in medical education and in the recognition of the importance of genetics for human diseases.

Macklin’s commitment to medical genetics led her to believe that physicians had a social responsibility to engage in sensible genetics counseling, and reasonable guidance on procreation and birth control. In 1930, Macklin helped found the Eugenics Society of Canada, and went on to serve as its Director in 1935. Her writings show none of the grandiosity or pretensions that lie in creating a master race, as much as avoiding procreation among imbeciles. See, e.g., Madge Macklin, “Genetical Aspects of Sterilization of the Mentally Unfit,” 30 Can. Med. Ass’n J. 190 (1934).

Some of her biographers suggest that Macklin lost her position at Western due to her views on eugenics, and others suggest that her trenchant criticisms of the inequity of the University’s sexism led her to go to Ohio State University in 1946, as a cancer researcher, funded by the National Research Council. Macklin taught genetics at Ohio State, something that Western never permitted her to do. In 1959, three years before her death, Macklin was elected president of the American Society for Human Genetics.

By all accounts, Macklin was an extraordinary woman and a gifted scientist, but my interest in her work stems from her recognition in the 1930s and 1940s, for the need for greater rigor in drawing etiological inferences in medical science.  Well ahead of her North American colleagues, Macklin emphasized the need to rule out bias, confounding, and chance before accepting apparent associations as causal. She wrote with unusual clarity and strength on the subject, decades before Sir Austin Bradford Hill. Her early mathematical prowess served her well in rebutting case reports and associations that were often embraced uncritically.

 *  *  *  *  *  *  *

In 1939, Professor Max Klotz of the University of Toronto, reported a very crude analysis from which he inferred a putative association between silicosis and lung cancer. Max O. Klotz, “The Association of Silicosis and Carcinoma of the Lung, 35 Am. J. Cancer 38 (1939). Klotz was a pathologist, and he worked with autopsy series, without statistical tools or understanding, as was common at the time. Macklin wrote a thorough refutation, which amply illustrates her abilities and her clear thinking:

“Another type of improper control for analysing cancer data arises through ignoring the fact that every cancer has a specific age incidence, and sex predilection. I have already mentioned breast, uterine and prostatic cancers, but other types of cancer, not of the generative organs,  have marked sex predilection. Cancer of the lung is a good example. It occurs four times as frequently in the male as in the female. If we desire to make any study of causative factors in lung cancer we must be sure that our control group is comparable to our experimental group. Again I will take an example from the literature. A worker was investigating the possible role of silicosis in inducing lung cancer. He compared the incidence of lung cancer in a group of 50 cases of silicosis, and in a large necropsy group of 4500 ‘unselected’ cases from a general hospital. He found that lung cancer was 7 times as frequent in the silicosis group as in the unselected necropsies. This is an excellent example of misunderstanding as to what is meant by ‘random’ sample. Because the 4500 necropsies were ‘unselected’ the worker thought that he had a good control group. As a matter of fact, in order to have a good control, he needed to select very carefully from these 4500 necropsies, those which he was to use as his standard. He forgot two things:

(1) that lung cancer is 4 times as common in the male as in the female and that all his silicosis cases were males, therefore his unselected necropsies should have been highly selected to contain only males. Assuming that half of his 4500 necropsies were females, and that among them one fifth of the lung cancers occurred, one can easily show that had his control group been all males as was his silicosis group, lung cancer would have been only 4.8 times as common among the silicosis patients as among the general necropsy group instead of 7 times as he found it.

(2) The second thing he forgot is that silicosis does not develop until 15 or 20 years of exposure have passed by. That placed all his silicosis patients in the late forties or early fifties, just when lung cancer becomes most common. Many of his general necropsy group were in the age range below 45, hence not in the lung cancer age. He should have selected only those males from the necropsy group who matched the age distribution of his silicosis patients. If he then found a significantly higher percentage of lung cancer among his silicosis patients he could have suggested a relationship between the two. Until that control group is properly studied, his results are valueless.”

****

SUMMARY

* * *

“The second point to be noted is that the control group should correspond as nearly as possible in all respects with the group under investigation, with the single exception of the etiologic factor being investigated. If silicosis is being considered as a causative agent in lung cancer, the control group should be as nearly like the experimental or observed group as possible in sex, age distribution, race, facilities for diagnosis, other possible carcinogenic factors, etc. The only point in which the control group should differ in an ideal study would be that they were not exposed to free silica, whereas the experimental group was. The incidence of lung cancer could then be compared in the two groups of patients.

This necessity is often ignored; and a ‘random’ control group is obtained for comparison on the assumption that any group taken at random is a good group for comparison. Fallacious results based on such studies are discussed briefly.”

Madge Thurlow Macklin, “Pitfalls in Dealing with Cancer Statistics, Especially as Related to Cancer of the Lung,” 14 Diseases Chest 525 532-33, 529-30 (1948).

The recognition that uncontrolled, or improperly controlled, research was worthless was a great advance in thinking about medical causation.  In the 1940s, Macklin was ahead of her time; indeed, if she were alive today, she would be ahead of many contemporary epidemiologists.

——

[1]Barry Mehler, “Madge Thurlow Macklin,” from Barbara Sicherman and Carl Hurd Green, eds., Notable American Women: The Modern Period 451-52 (1980); Laura Lynn Windsor, Women in Medicine: An Encyclopedia 134 (2002).

 

 

 

 

 

 



[1] Barry Mehler, “Madge Thurlow Macklin,” from Barbara Sicherman and Carl Hurd Green, eds., Notable American Women: The Modern Period 451-52 (1980); Laura Lynn Windsor, Women in Medicine: An Encyclopedia 134 (2002).

 

Zoloft MDL Excludes Proffered Testimony of Anick Bérard, Ph.D.

June 27th, 2014

Anick Bérard is a Canadian perinatal epidemiologist in the Université de Montréal.  Bérard was named by plaintiffs’ counsel in the Zoloft MDL to offer an opinion that selective serotonin reuptake inhibitor (SSRI) antidepressants as a class, and Zoloft (sertraline) specifically, cause a wide range of birth defects. Bérard previously testified against GSK about her claim that paroxetine, another SSRI antidepressant is a teratogen.

Pfizer challenged Bérard’s proffered testimony under Federal Rules of Evidence 104(a), 702, 703, and 403.  Today, the Zoloft MDL transferee court handed down its decision to exclude Dr. Bérard’s testimony at the time of trial.  In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL 2342, Document 979 (June 27, 2014).  The MDL court acknowledged the need to consider the selectivity (“cherry picking”) of studies upon which Dr. Bérard relied, as well as her failure to consider multiple comparisons, ascertainment bias, confounding by indication, and lack of replication of specific findings across the different SSRI medications, and across studies. Interestingly, the MDL court recognized that Dr. Bérard’s critique of studies as “underpowered” was undone by her failure to consider available meta-analyses or to conduct one of her own. The MDL court seemed especially impressed by Dr. Bérard’s having published several papers that rejected a class effect of teratogenicity for all SSRIs, as recently as 2012, while failing to identify anything that was published subsequently that could explain her dramatic change in opinion for litigation.