TORTINI

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

Frank Advocacy on Welding Health “Effects”

September 1st, 2014

Arthur L. Frank is a professor and the chair of Drexel University School of Public Health’s program in Environmental and Occupational Health. Frank testifies fairly extensively for plaintiffs in asbestos litigation. See, e.g., Frank Affidavit. He also has testified for plaintiffs in manganese fume litigation brought by welders, although he has no specialty training in movement disorder neurology.

Although Arthur Frank has testified for plaintiffs in asbestos cases, he does not appear to comply with professional association disclosure of conflicts, when he presents on asbestos issues. See, e.g.,More Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010). The same disregard for conflict disclosures seems to hold for his work on welding health outcomes.

Last year, in September 2013, Frank presented a poster at the 11th Inhaled Particles XI (IPXI) conference, organized by the British Occupational Hygiene Society (BOHS). Frank’s poster was entitled,Health Effects of Welding Fumes,” although the poster reported only a cross-sectional study without controls from Qingdao City, China. Frank provided no conflict-of-interest disclosure in the poster. Arthur Frank, Huanqiang Zhang, and Chunsheng Xu, “Health Effects of Welding Fumes,” Inhaled Particle XI Conference, Nottingham, U.K. (Sept. 2013). His current C.V., available online, reports this as an abstract from the Inhaled Articles conference. One does not need an epidemiologic study to see how scientists could choke on this article if inhaled.

Frank’s study was based upon an anonymous questionnaire to 505 steel welders, at state-owned, foreign-funded, and privately owned companies, in Qingdao City, China. No industrial hygiene exposure measurements or use of personal respiratory protection is reported. No physical examinations are reported. No statistical tests are reported. Frank reported a “symptom” of unsteady gait/difficulty walking of 1%, but he and his Chinese colleagues did not report whether this 1% had musculo-skeletal or neurological problems. The former would be fairly common among tradesmen such as welders whose work often puts them at risk of traumatic injury.

According to Frank, a “striking” finding was an 18% prevalence hand tremor among those working at least 15 years, with lower prevalence reported for less than 5 years (4%), at 5 years (3%), and at 10 years (5%). Frank offered no explanation of how these prevalence rates were ascertained in a cross-sectional questionnaire based study; nor did Frank offer any qualification as to whether these hand tremors were rest or action tremor, bilateral or unilateral, or of any particular kind. Notwithstanding the severe limitations of this “study,” Frank offers a conclusion that “[m]anganese from inhaled particles from welding fumes cause serious outcomes in welders. Welding fumes also cause other health effects. Workplace hygiene correlates with health outcome.”

Shortly after the Inhaled Particles conference, a colleague reported that Frank had testified in an asbestos case that he had submitted a “manganese in welding” manuscript to the Annals of Industrial Hygiene, which is the journal of the (BOHS). To date, no article by Frank has appeared in this, or any, journal.

Perhaps the only interesting aspect of this little cross-sectional study, based upon self-reported symptoms, is that workers employed by the communist state report a higher rate of symptoms than those employed by privately owned companies. More evidence that worker illness, if any there should be, is not necessarily the result of the “profit motive” of private corporations. The abstract also shows that at some scientific conferences, anything goes with respect to conflicts-of-interest disclosures and shameless advocacy.

Peer Review, PubPeer, PubChase, and Rule 702 – Candles in the Ear

August 28th, 2014

In deciding the Daubert case, the Supreme Court identified several factors to assess whether “the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” One of those factors was whether the proffered opinion had been “peer reviewed” and published. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993). The Court explained the publication factor:

“Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.”

Daubert, 509 U.S. at 593-94 (internal citations omitted). See, e.g., Lust v. Merrell Dow Pharms., Inc., 89 F. 3d 594, 597 (9th Cir. 1996) (affirming exclusion of Dr. Alan Done, plaintiffs’ expert witness in Chlomid birth defects case, in part because of the lack of peer review and publication of his litigation-driven opinions); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1406 (1996)  (noting that “the lack of peer review for [epidemiologist] Dr. Swan’s theories weighs heavily against the admissibility of Dr. Swan’s testimony”).

Case law since Daubert has made clear that peer review is neither necessary nor sufficient for the admissibility of an opinion. United States v. Mikos, 539 F.3d 706, 711 (7th Cir. 2008) (noting that the absence of peer-reviewed studies on subject of bullet grooving did not render opinion, based upon FBI database, inadmissible); In re Zoloft Prods. Liab. Litig. MDL No. 2342; 12-md-2342,  2014 U.S. Dist. LEXIS 87592; 2014 WL 2921648 (E.D. Pa. June 27, 2014) (excluding proffered testimony of epidemiologist Anick Bérard for arbitrarily selecting some point estimates and ignoring others in published studies).

As Susan Haack has noted, “peer review” has taken on mythic proportions in the adjudication of expert witness opinion admissibility.  Susan Haack, “Peer Review and Publication: Lessons for Lawyers,” 36 Stetson L. Rev. 789 (2007), republished in Susan Haack, Evidence Matters: Science, Proof, and Truth in the Law 156 (2014). Peer review, at best, is a weak proxy for the study validity, which is what is really needed in judicial proceedings. Proxies avoid the labor of independent, original thought, and so they are much favored by many judges.

In the past, some litigants oversold peer review as a touchstone of reliable, admissible expert witness testimony only to find that some very shoddy opinions show up in ostensibly peer-reviewed journals. SeeMisplaced Reliance On Peer Review to Separate Valid Science From Nonsense” (Aug. 14, 2011). Scientists often claim that science is “self-correcting,” but in some areas of research, there are few severe tests and little critical review, and mostly glib confirmations from acolytes.

Letters to the editor are sometimes held out as a remedy to peer-review screw ups, but such letters, which are not themselves peer reviewed, are subject to the whims of imperious editors who might wish to silence the views of those who would be critical of their judgment in publishing the article under discussion. Most journals have space only for a few letters, and unpopular but salient points of view can go unreported. Many scientists will not write letters to the editors, even when the published article is terribly wrong in its methods, data analyses, conclusions, or discussion.  Letters to the editor are often frowned upon in academic circles as not advancing affirmative research and scholarship agenda.

Letters to the editor often must be sent within a short time window of initial publication, often too short for busy academics to analyze a paper carefully and comment.  Furthermore, letters  and are often limited to a few hundred words, which length is often inadequate to develop a careful critique or exposition of the issues in the paper.  Moreover, such letters suffer from an additional procedural problem:  authors are permitted a response, and the letter writers are not permitted a reply. Authors thus get the last word, which they can often use to deflect or diffuse important criticisms.  The authors’ response can be sufficiently self-serving and misleading, with immunity from further criticism, that many would-be correspondents abandon the project altogether. See, e.g., PubPeer – “Example case showing why letters to the editor can be a waste of time” (Oct. 8, 2013).

Websites and blogs provide for dynamic content, with the potential for critical reviews that can be identified by search engines. See, e.g., Paul S. Brookes, “Our broken academic journal corrections system,” PSBLAB: Cardiac Mitochondrial Research in the Lab (Jan. 14, 2014). Mostly, the internet holds untapped potential for analysis, discussion, and debate on published studies.  To be sure, some journals provide “comment fields,” on their websites, with an opportunity for open discussion.  Often, full critiques must be developed and presented elsewhere. See, e.g., Androgen Study Group, “Letter to JAMA Asking for Retraction of Misleading Article on Testosterone Therapy” (Mar. 25, 2014).

PubPeer

Kate Yandell, in TheScientist, reports on the creation of PubPeer a few years ago, as a forum for post-publication review and discussion published scientific papers. Kate Yandell, “Concerns Raised Online Linger” (Aug. 25, 2014).  Billing itself as an “online journal club,” PubPeer has pointed out potentially serious problems, some of which have led to retractions and corrections. Another internet site of interest is PubChase, which monitors discussion of particular articles, as well as generating email alerts and recommendations for related articles.

One journal editor has taken notice and given notice that he will not pay attention to post-publication peer review.  Eric J. Murphy, the editor in chief of Lipids, posting a comment at PubPeer, illustrates that there will be a good deal of resistance to post-publication open peer review, out of the control of journal editors:

“As an Editor-in-Chief of a society journal, I have never examined PubPeer nor will I do so. First, there is the crowd or group mentality that may over emphasize some point in an irrational manner.  Just as using the marble theory of officiating is bad, one should never base a decision on the quantity of negative or positive comments. Second, if the concerned individual sent an e-mail or letter to me, then I would be duty bound to examine the issue.  It is not my duty to monitor PubPeer or any other such site, but rather to respond to queries sent to me.  So, with regards to Hugh’s point, I don’t support that position at all.

Mistakes happen, although frankly we try to limit these mistakes and do take steps to prevent publishing papers with FFP, it does happen.  Also, honest mistakes happen in science all the time, so[me] of these result in an erratum, while others go unnoticed by editors and reviewers.  In such a case, someone who does notice should contact the editor to put them on notice regarding the issue so that it may be resolved.  Resolution does not necessarily mean correction, but rather the editor taking a close look at the situation, discussing the situation with the original authors, and then reaching a decision.  Most of the time a correction will be made, but not always.”

Murphy’s comments are remarkable.  PubPeer provides a forum for post-publication comment, but it hardly requires editors, investigators, and consumers of scientific studies to evaluate published works by “nose counts” of favorable and unfavorable comments.  This is not, and never has been, a democratic enterprise.  Somehow, we might expect Murphy and others to evaluate the comments, on the merits, not on their prevalence.  Murphy’s declaration that he is duty-bound to investigate and evaluate letters or emails sent to him about published articles is encouraging, but the editors’ ability to ratify publication, in the face of a private communication, without comment to the scientific community, strips the community of making a principled decision on its own.  Murphy’s way, which seems largely the way of contemporary scientific publishing, ignores the important social dimension of scientific debate and resolution of issues.  Leaving control of the discussion in the hands of the editors who approved and published studies may be asking too much of editors. Nemo iudex in causa sua.

PubPeer has already tested the limits of free speech. Kate Yandell, “PubPeer Threatened with Legal Action” (Aug. 19, 2014). A scientist whose works were receiving unfavorable attention on PubPeer threatened a lawsuit.  Let’s hope that scientists can learn to be sufficiently thick skinned that there can be open discourse of the merits of their research, their data, and their conclusions.

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).

Conflict of Interest Regulations Apply Symmetrically

July 25th, 2014

Last week, a federal judge ruled that working as a plaintiffs’ expert witness in tobacco litigation or as consultants for pharmaceutical companies with tobacco-cessation medications was a conflict of interest, which invalidated a FDA report on menthol cigarettes. Lorillard Inc. et al. v. U.S. Food and Drug Administration, 1:11-cv-00440, D.D.C. (July 21, 2014).

The report was issued in 2011 by the agency’s Tobacco Products Scientific Advisory Committee (TPSAC).  Two tobacco companies sought an injunction against the FDA’s report because of the improper memberships on the TPSAC of Drs. Jonathan Samet and Neil Benowitz. Lorillard’s General Counsel also challenged agency pronouncements under the Data Quality Act.  Letter Request for Correction of Information Disseminated to the Public and the Tobacco Products Scientific Advisory Committee (March 16, 2011) (petition lodged under the Data Quality Act (DQA), 44 U.S.C. § 3516, and the related agency regulations of the Office of Management and Budget, Health and Human Services, and FDA).

Although the TPSAC report concluded that menthol cigarettes imparted no greater risk of lung cancer than the already deadly non-menthol cigarettes, the report claimed that studies show menthol flavoring increased usage among young people and African Americans.  The TPSAC recommended a ban on menthol cigarettes in the interest of public health. The district court held that the FDA’s decision that the disputed members had no conflict of interest violated the Administrative Procedures Act, and that the violation required the agency to reconstitute the TPSAC in compliance with the applicable ethics regulations.

What is remarkable about the case is its rejection of the delusion that advocacy for plaintiffs is not a potential conflict of interest, whereas advocacy for a company is.  An amicus brief filed on behalf of several medical and public health groups, including Public Citizen, Inc., American Cancer Society, American Medical Association, American Thoracic Society, and others, supported the agency’s motion to dismiss. Amici argued that balancing scientific opinions of experts on the committee would impair the integrity of advisory committees and would be unmanageable for courts. Given the obvious adversarial bias from service as an expert witness in tobacco litigation, the district court rejected amici’s arguments. Although amici’s position is understandable as a reaction to the callousness of tobacco marketing, the brief’s indifference to the ethical implications about conflicts of interest is surprising.  One can only imagine the hue and cry if there had been committee members who had been engaged as expert witnesses for the tobacco companies.

The implications of the Lorillard decision are considerable, especially for FDA advisory committees. See Glenn Lammi, “FDA Advisory Committee Not Rife with Conflicts of Interest? — ‛Please!’ Quips Federal Judge” (July 24, 2014) (discussing Lorillard case and detailing efforts to obtain FDA compliance with the Federal Advisory Committee Act). Industry representatives are typically non-voting members, but members who have been retained by the litigation industry have served in voting positions. In other contexts, expert witnesses for plaintiffs accuse scientists who testify for a defendant of “conflicts of interest,” but conveniently ignore and fail to disclose their own. SeeMore Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010) (Arthur Frank, Richard Lemen, and Barry Castleman); James Coyne, “Lessons in Conflict of Interest: The Construction of the Martyrdom of David Healy and The Dilemma of Bioethics,” 5 Am. J. Bioethics W3 (2005). The Lorillard case teaches that “white hat” bias is as disqualifying as “black hat” bias.

Discovery of Litigation Financing – The Jackpot Justice Finance Corporation

July 16th, 2014

Over two years ago, I wrote that courts and counsel have not done enough to adapt to the litigation industry’s use of third-party financing. SeeLitigation Funding” (May 8, 2012). A few days ago, Byron Stier, at the Mass Tort Litigation Blog, posted a short news item about a recent effort to modify discovery rules to take into account the litigation industry’s business model of seeking third-party litigation funding.  SeeIndustry Groups Seek Amendment of Rule 26 to Require Disclosure of Third Party Litigation Financing” (July 13, 2014).

Stier reported that the U.S. Chamber of Commerce Institute for Legal Reform, American Insurance Association, American Tort Reform Association, Lawyers for Civil Justice, and National Association of Manufacturers, back in April 2014, wrote a letter to the Committee on Rules of Practice and Procedure of the Administrative Office of the federal courts, to propose an amendment to Federal Rule of Civil Procedure 26(a)(1)(A). Their proposed new language is underscored, and follows 26(a)(1)(A)(i)-(iv):

“(v) for inspection and copying as under Rule 34, any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.”

This proposal is important and necessary to ensure that defendants can inquire about financial bias in jury voir dire, as well as identify bias among judges, special masters, and witnesses.  Other procedural rule reforms will be needed as well. Appellate briefs should disclose financiers that have a stake in the litigation. When courts limit counsel and parties’ communications to the media about a case, such limits should apply as well to insurers and third-party financiers of the litigation efforts. Third-party financiers provide a convenient way for the litigation industry to lobby regulators and legislators, and more expansive disclosure rules are needed to capture the activities of the litigation financiers.  Funding of litigation-related research by third-party financiers should be anticipated by journal editors with more expansive disclosure rules; journal editors should be alert to evolving financial markets that may influence research agendas and publications. Lawyers’ scrutiny of new clients for conflicts now requires inquiry into the veiled interests created by litigation financing.

NIEHS Transparency? We Can See Right Through You

July 10th, 2014

The recent issue of Environmental Health Perspectives contains several interesting articles on scientific methodology of interest to lawyers who litigate claimed health effects.[1] The issue also contains a commentary that argues for greater transparency in science and science policy, which should be a good thing, but yet the commentary has the potential to obscure and confuse. Kevin C. Elliott and David B. Resnik, “Science, Policy, and the Transparency of Values,” 122 Envt’l Health Persp. 647 (2014) [Elliott & Resnik].

David B. Resnik has a Ph.D., in philosophy from University of North Carolina, and his law degree from the on-line Concord University School of Law.  He is currently a bioethicist and the chairman of the NIEHS Institutional Review Board. Kevin Elliott received his doctorate in the History and Philosophy of Science (Notre Dame), and he is currently an Associate Professor in Michigan State University. Elliott and Resnik advance a plea for transparency that superficially is as appealing as motherhood and apple pie. The authors argue

“that society is better served when scientists strive to be as transparent as possible about the ways in which interests or values may influence their reasoning.”

The argument appears superficially innocuous.  Indeed, in addition to the usual calls for great disclosure of conflicts of interest, the authors call for more data sharing and less tendentious data interpretation:

“When scientists are aware of important background assumptions or values that inform their work, it is valuable for them to make these considerations explicit. They can also make their data publicly available and strive to acknowledge the range of plausible interpretations of available scientific information, the limitations of their own conclusions, the prevalence of various interpretations across the scientific community, and the policy options supported by these different interpretations.”

Alas, we may as well wish for the Kingdom of Heaven on Earth!  An ethos or a requirement of publicly sharing data would indeed advance the most important transparency, the transparency that would allow full exploration of the inferences and conclusions claimed in a particular study.  Despite their high-mindedness, the authors’ argument becomes muddled when it comes to conflating scientific objectivity with subjective values:

“In the past, scientists and philosophers have argued that the best way to maintain science’s objectivity and the public’s trust is to draw a sharp line between science and human values or policy (Longino 1990). However, it is not possible to maintain this distinction, both because values are crucial for assessing what counts as sufficient evidence and because ethical, political, economic, cultural, and religious factors unavoidably affect scientific judgment (Douglas 2009; Elliott 2011; Longino 1990; Resnik 2007, 2009).”

This argument confuses pathology of science with what actually makes science valuable and enduring.  The Nazis invoked cultural arguments, explicitly or implicitly to reject “Jewish” science; religious groups in the United States invoke religious and political considerations to place creationism on an equal or superior footing with evolution; anti-vaccine advocacy groups embrace case reports over rigorous epidemiologic analyses. To be sure, these and other examples show that “ethical, political, economic, cultural, and religious factors unavoidably affect scientific judgment,” but yet science can and does transcend them.  There is no Jewish or Nazi science; indeed, there is no science worthy of its name that comes from any revealed religion or cult.  As Tim Minchin has pointed out, alternative medicine is either known not to work or not known to work because if alternative medicine is known to work, then we call it “medicine.” The authors are correct that these subjective influences require awareness and understanding of prevalent beliefs, prejudices, and corrupting influences, but they do not, and they should not, upset our commitment to an evidence-based world view.

Elliott and Resnik are focused on environmentalism and environmental policy, and they seem to want to substitute various presumptions, leaps of faith, and unproven extrapolations for actual evidence  and valid inference, in the hope of improving the environment and reducing risk to life.  The authors avoid the obvious resolution: value the environment, but acknowledge ignorance and uncertainty.  Rather than allow precautionary policies to advance with a confession of ignorance, the authors want to retain their ability to claim knowledge even when they simply do not know, just because the potential stakes are high. The circularity becomes manifest in their ambiguous use of “risk,” which strictly means a known causal relationship between the “risk” and some deleterious outcome.  There is a much weaker usage, popularized by journalists and environmentalists, in which “risk” refers to something that might cause a deleterious outcome.  The might in “risk” here does not refer to a known probabilistic or stochastic relationship between the ex ante risk and the outcome, but rather to an uncertainty whether or not the relationship exists at all. We can see the equivocation in how the authors attempt to defend the precautionary principle:

“Insisting that chemicals should be regulated only in response to evidence from human studies would help to prevent false positive conclusions about chemical toxicity, but it would also prevent society from taking effective action to minimize the risks of chemicals before they produce measurable adverse effects in humans. Moreover, insisting on human studies would result in failure to identify some human health risks because the diseases are rare, or the induction and latency periods are long, or the effects are subtle (Cranor 2011).”

Elliott & Resnik at 648.

If there is uncertainty about the causal relationship, then by calling some exposures a “risk,” the authors prejudge whether there will be “adverse effects” at all. This is just muddled.  If the relationship is uncertain, and false positive conclusions are possible, then we simply cannot claim to know that there will be such adverse effects, without assuming what we wish to prove.

The authors compound the muddle by introducing a sliding scale of “standards of evidence,” which appears to involve both variable posterior probabilities that the causal claim is correct, as well as variable weighting of types of evidence.  It is difficult to see how this will aid transparency and reduce confusion. Indeed, we can see how manipulative the authors’ so-called transparency becomes in the context of evaluating causal claims in pharmaceutical approvals versus tort claims:

“Very high standards of evidence are typically expected in order to infer causal relationships or to approve the marketing of new drugs. In other social contexts, such as tort law and chemical regulation, weaker standards of evidence are sometimes acceptable to protect the public (Cranor 2008).”

Remarkably, the authors cite no statute, no case law, no legal treatise writer for the proposition that the tort law standard for causation is somehow lower than for a claim of drug efficacy before the Food and Drug Administration.  The one author they cite, Carl Cranor, is neither a scientist nor a lawyer, but a philosophy professor who has served as an expert witness for plaintiffs in tort litigation (usually without transparently disclosing his litigation work). As for the erroneous identification of tort and regulatory standards, there is of course, much real legal authority to the contrary[2].

The authors go on to suggest that demanding

“the very highest standards of evidence for chemical regulation—including, for example, human evidence, accompanying animal data, mechanistic evidence, and clear exposure data—would take very long periods of time and leave the public’s health at risk.”

Elliott & Resnik at 648.

Of course, the point is that until such data are developed, we really do not know whether the public’s health is at risk.  Transparency would be aided not by some sliding and slippery scale of evidence, but by frank admissions that we do not know whether the public’s health is at risk, but we choose to act anyway, and to impose whatever costs, inconvenience, and further uncertainty by promoting alternatives that are accompanied by even greater risk or uncertainty.  Environmentalists rarely want to advance such wishy-washy proposals, devoid of claims of scientific knowledge that their regulations will avoid harm, and promote health, but honesty and transparency require such admissions.

The authors advance another claim in their Commentary:  transparency in the form of more extensive disclosure of conflicts of interest will aid sound policy formulation.  To their credit, the authors do not limit the need for disclosure to financial benefits; rather they take an appropriately expansive view:

“Disclosures of competing financial interests and nonfinancial interests (such as professional or political allegiances) also provide opportunities for more transparent discussions of the impact of potentially implicit and subconscious values (Resnik and Elliott 2013).”

Elliott & Resnik at 649.  Problematically, however, when the authors discuss some specific instances of apparent conflicts, they note industry “ties,” of the authors of an opinion piece on endocrine disruptors[3], but they are insensate to the ties of critics, such as David Ozonoff and Carl Cranor, to the litigation industry, and of others to advocacy groups that might exert much more substantial positional bias and control over those critics.

The authors go further in suggesting that women have greater perceptions of risk than men, and presumably we must know whether we are being presented with a feminist or a masculinist risk assessment. Will self-reported gender suffice or must we have a karyotype? Perhaps we should have tax returns and a family pedigree as well? The call for transparency seems at bottom a call for radical subjectivism, infused with smug beliefs that want to be excused from real epistemic standards.



[1] In addition to the Elliott and Resnick commentary, see Andrew A. Rooney, Abee L. Boyles, Mary S. Wolfe, John R. Bucher, and Kristina A. Thayer, “Systematic Review and Evidence Integration for Literature-Based Environmental Health Science Assessments,” 122 Envt’l Health Persp. 711 (2014); Janet Pelley, “Science and Policy: Understanding the Role of Value Judgments,” 122 Envt’l Health Persp. A192 (2014); Kristina A. Thayer, Mary S. Wolfe, Andrew A. Rooney, Abee L. Boyles, John R. Bucher, and Linda S. Birnbaum, “Intersection of Systematic Review Methodology with the NIH Reproducibility Initiative,” 122 Envt’l Health Persp. A176 (2014).

[2] Sutera v. The Perrier Group of America, 986 F. Supp. 655, 660 (D. Mass. 1997); In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 781 (E.D.N.Y. 1984) (Weinstein, J.), aff’d, 818 F.2d 145 (2d Cir. 1987); Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 198 (5th Cir. 1996) (distinguishing regulatory pronouncements from causation in common law actions, which requires higher thresholds of proof); Glastetter v. Novartis Pharms. Corp., 107 F. Supp. 2d 1015, 1036 (E.D. Mo. 2000), aff’d, 252 F.3d 986 (8th Cir. 2001);  Wright v. Willamette Indus., Inc., 91 F.3d 1105 (8th Cir. 1996); Siharath v. Sandoz Pharms. Corp., 131 F. Supp. 2d 1347, 1366 (N.D. Ga. 2001), aff’d, 295 F.3d 1194 330 (11th Cir. 2002).

[3] Daniel R. Dietrich, Sonja von Aulock, Hans Marquardt, Bas Blaauboer, Wolfgang Dekant, Jan Hengstler, James Kehrer, Abby Collier, Gio Batta Gori, Olavi Pelkonen, Frans P. Nijkamp, Florian Lang, Kerstin Stemmer, Albert Li, KaiSavolainen, A. Wallace Hayes, Nigel Gooderham, and Alan Harvey, “Scientifically unfounded precaution drives European Commission’s recommendations on EDC regulation, while defying common sense, well-established science and risk assessment principles,” 62 Food Chem. Toxicol. A1 (2013)

 

NIEHS Study – CHARGE Failure to Disclose Conflicts of Interest

June 23rd, 2014

At midnight, the Environmental Health Perspectives (EHP) posted an “in-press” paper on autism and pesticides, slated for full publication in the next few weeks.  Janie F. Shelton, Estella M. Geraghty, Daniel J. Tancredi, Lora D. Delwiche, Rebecca J. Schmidt, Beate Ritz, Robin L. Hansen, and Irva Hertz-Picciotto, “Neurodevelopmental disorders and prenatal residential Proximity to Agricultural pesticides: the CHARGE Study,” Envt’l Health Persp. (advanced publication: June 23, 2014).

The paper was embargoed until midnight, but the principal investigator, Prof. Irva Hertz-Picciotto, violated that embargo by talking about the study’s results in a YouTube video, posted two weeks ago. SeeSelective Leaking — Breaking Ingelfinger’s Rule” (June 20, 2014).

The paper is already attracting media attention. Predictably, the coverage trades on inaccurate and misleading terms, such as “links” and “increased risks.”  See, e.g., Agence France-Presse, “Study finds link between pesticides and autism,” (Yahoo news story claiming “link” in headline, but in text, noting that the study findings “do not show cause-and-effect.”); Arielle Duhaime-Ross (The Verge), “Study further confirms link between autism and pesticide exposure: Living near farms and fields can put a foetus at risk,”  (June 23, 2014 12:01 am) (filed one minute after the embargo was officially lifted, and declaring that “neurotoxins, which include everything from pesticides, to mercury and diesel, are thought to alter brain development in foetuses. Now, a new study further confirms this link by showing that pregnant women who live within a mile of farms and fields where pesticides are employed see their risk of having a child with autism increase by 60 percent — and that risk actually doubles if the exposure occurs in the third trimester”); Zoë Schlanger (Newseek), “Autism Risk Much Higher for Children of Pregnant Women Living Near Agricultural Pesticide Areas” (June 23, 2014).

There are few more incendiary issues than autism or brain damage and environmental exposures.  The media is unlikely to look very critically at this paper.  News reports talk of “links” and “increased risks,” but they do not look at methodological problems and limitations.  They should.

The media should also look at conflicts of interest (COIs). Well, in an ideal world, the media and everyone else would stop trying to use COIs as a proxy for interpreting study validity. The reality, however, is that much of the media treats corporate financial interests as sufficient reason to discount or disregard a study.  If the media want to avoid being hoisted with their own hypocritical petard, they will look closely at the undisclosed COIs in this new paper by Shelton, et al.

First, they will note that the authors disclose that they have no COIs:

“Competing financial interests: The authors have no competing financial interests.”

Second, the media will note that EHP provides explicit instructions to authors on COI disclosures:

Competing Financial Interests

EHP has a policy of full disclosure. Authors must declare all actual or potential competing finan­cial interests involving people or organizations that might reasonably be perceived as relevant. Disclosure of competing interests does not imply that the information in the article is questionable or that conclusions are biased. Decisions to pub­lish or reject an article will not be based solely on a declaration of a competing interest.

***

Employment of any author by a for-profit or nonprofit foundation or advocacy group or work as a consultant also must be indicated on the CFID form.”

EHP Instructions to authors (2013).

Third, the media will ask whether the COI disclosure (“none”) was proper.  The study is one in a series of papers that comes out of research funded by the federal government, THE CHARGE STUDY: CHILDHOOD AUTISM RISKS FROM GENETICS AND THE ENVIRONMENT (2R01ES015359-06). Journalists may want to look, in the first instance, to the principal investigator, Irva Hertz-PicciottoHertz-Picciotto is an epidemiologist at the University of California, Davis, where she is the chief of the Division of Environmental and Occupational Health, Department of Public Health Sciences.

Fourth, the media may want to ask whether Dr. Hertz-Picciotto’s COI disclosure complied with the journal’s requirements.  Recall that EHP requires authors to disclose work or consultancy for a “nonprofit foundation or advocacy group… .” Dr. Hertz-Picciotto sits on the advisory board of Autism Speaks, an advocacy group. More telling, Hertz-Picciotto also serves on the advisory board of the radically anti-chemical Healthy Child, Healthy World organization, located in California (12100 Wilshire Blvd. Suite 800, Los Angeles CA 90025).  According to its website, Healthy Child Healthy World is a California non-profit corporation that advocates to:

“  •  Demand corporate accountability
•  Engage communities for collective action
•  Support safer chemicals and products
•  Influence legislative and regulatory reform.”

Both organizations would seem to come under the EHP COI disclosure policy, but these memberships are not disclosed in the on-line article. Certainly, these affiliations are every bit as potentially enlightening about the principal investigator’s motivations and methodological choices as corporate sponsorship. Of course, it is possible that Dr. Hertz-Picciotto made these disclosures, but the EHP editors chose not to make them public.  If so, shame on the editors.

Most important, the media should provide critical review of the substance of the Shelton paper, and certainly more than sound bites on COIs or “links.” For one thing, even a quick review shows that there are four exposure periods (pre-conception, and three trimesters of pregnancy), two outcome variables (autism spectrum disorder and developmental delay), five exposure substances, and three exposure proximities, for 120 comparisons.  The statistical analysis in the paper uses an alpha of 0.05, which provides a study-wise Type I error rate, and cannot be used to evaluate any one of the 120 comparisons.  The paper’s use of “statistical significance” terminology should be taken with a grain of salt.[1] For another thing, many of the risk factors identified in other studies are not addressed here. See, e.g., Xin Zhang, Cong-Chao Lv, Jiang Tian, Ru-Juan Miao, Wei Xi, Irva Hertz-Picciotto, and Lihong Qi, “Prenatal and Perinatal Risk Factors for Autism in China,” 40 J. Autism Dev. Disord. 1311 (2010) (“In the adjusted analysis, nine risk factors showed significant association with autism: maternal second-hand smoke exposure, maternal chronic or acute medical conditions unrelated to pregnancy, maternal unhappy emotional state, gestational complications, edema, abnormal gestational age (<35 or >42 weeks), nuchal cord, gravidity >1, and advanced paternal age at delivery (>30 year-old)). Ultimately, a more demanding inquiry may be required to investigate the extent to which anti-pesticide advocacy groups have actually created an apparent increase in autism rates by informational, political, and environmental campaigns.


[1] See United States v. Harkonen, No. C 08–00164 MHP, 2010 WL 2985257, at *1 (N.D. Cal. July 27, 2010), aff’d, 510 F. App’x 633, 636 (9th Cir. Mar. 4, 2013)(affirming wire fraud conviction for author of press release who failed to disclose that endpoint was not prespecified, and failed to adjust for multiple comparisons), cert. denied, ___ U.S. ___ (Dec. 16, 2013).

 

Sand in My Shoe – CERTainly

June 17th, 2014

Late last week, the California Court of Appeals reversed a dismissal on the pleadings in a claimed silicosis case. Uriarte v. Scott Sales Co., NO. B244257, California Ct. App. (2d Dist. Div. June 13, 2014)(certified for publication).

The defendants supplied silica sand to plaintiff’s employer for use as sandblasting media. Plaintiff, Mr. Francisco Uriarte, alleging that he developed lung fibrosis from sandblasting, sued the defendants.  Rather than defending on the ground of adequate warning, common knowledge, employer knowledge, plaintiff’s knowledge, and the like, defendants moved to dismiss on the pleadings on the grounds of the component parts doctrine, by which a “manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.” Id.  The California Court of Appeals reversed, and held that the component parts doctrine does not apply.  Fairly predictable, and probably correct to leave the defendants to their important, substantive defenses.

The appeal, however, is noteworthy for another reason, which received no comment from the California appellate court. The Council for Education and Research on Toxics (“CERT”), along with a list of physicians and scientists, filed an amicus brief in support of reversal. The individual amici[1] and CERT sought an opportunity to participate as

“a public benefit organization whose charitable purposes are education and research regarding toxic substances… . The other amici are all physicians. epidemiologists, scientists, and scholars of science and the history of science and public health.”

Amicus Brief for CERT at 1 (Oct. 10, 2013).  This participation is their right, but the amici avow that:

“None of the amici has any financial or other similar interest in the outcome of this lawsuit.”

Id. at 1.  This claim is not so clear. The Appendix to the Amicus Brief provides background on the individual amici. Although it may well be correct that none has a financial interest in the Uriarte case itself, most of the amici have been active as testifying expert witnesses, exclusively or nearly so for claimants, in cases just like the appeal.  The individual amici have been financially compensated for their witnessing. The brief fails to mention the amici’s advocacy roles, their testifying for remuneration, or their positional, political, and professional conflicts of interest.

The appearance of impropriety, however, is much greater than suffering the court system to have expert witnesses become advocates in disguise as neutral scientists, in a silicosis case. The CERT organization, one of the amici, is a non-profit California corporation, EIN: 42-1571530, founded in 2003, with a business address at:

401 E Ocean Blvd., Ste. 800, Long Beach, California 90802-4967,

and a telephone number: 

1-877-TOX-TORT

The person answering a telephone call to this number identified “The Metzger Law Group,” which makes CERT seem like the alter ego of The Metzger Law Group.

CERT’s mission statement? Furthering scientific understanding of toxins. But lawyer Ralph Metzger is noted as the contact person for CERT!  That is the same Ralphael Metzger, with the same Metzger Law Group, at the same Long Beach, California, address, who is the attorney for Mr. Uriarte in this case. Metzger apparently controls CERT, and he appears to be involved in CERT as a corporate officer.

Representing a party, and being a corporate officer in an amicus that attempts to influence an appellate court as a neutral entity, would seem to offend fundamental fairness in the appellate process.  In Uriarte, there was probably no harm, but surely the participation of amici in appellate proceedings needs to be policed more vigilantly.


[1] Richard W. Clapp*, Ronald Crystal, David A. Eastman*, Arthur L. Frank*, Robert J. Harrison*, Ronald Melnick*, Lee Newman, Stephen M. Rappaport*, Joseph Ross, and Janet Weiss*.  An asterisk indicates that the amicus was also an amicus in a brief filed by CERT, in the Milward case. SeeCERT” (July 9, 2013).

The Outer Limits (and Beyond?) of Ex Parte Advocacy of Federal Judges

May 23rd, 2014

As every trial lawyer knows, people sometimes reveal important facts in curious ways, incorporated in their own biased narrative of events.  Recently, I heard a recorded lecture about expert witnesses, by a plaintiffs’ lawyer, who revealed a damning fact about a judge.  The lawyer clearly thought that this fact was commendatory, but in fact revealed another effort of scientific advocates and zealots to subvert the neutrality of federal judges.  See In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992) (describing effort by plaintiffs’ lawyers and the late Dr. Irving Selikoff to corrupt state and federal judges with one-sided ex parte presentations of their views at the so-called Third-Wave Conference).

Anthony Z. Roisman is the Managing Partner of the National Legal Scholars Law Firm.  This firm has a roster of affiliated law professors who serve as consultants for plaintiffs in environmental and tort cases. (Some other participants in this law firm include Jay M. Feinman, Lucinda M. Finley, Neil Vidmar, and Richard W. Wright.) Roisman has been active in various plaintiff organizations, including serving as the head of the ATLA Section on Toxic, Environmental & Pharmaceutical Torts (STEP). 

Roisman lectures frequently for the American Law Institute on expert witness issues. Recently, I was listening to an mp3 recording of one of Roisman’s lectures on expert witnesses in environmental litigation.  Given Roisman’s practice and politics, I was not surprised to hear him praise Judge Rothstein’s opinion that refused to exclude plaintiffs’ expert witnesses’ causation opinions in the PPA litigation.  See In re Phenylpropanolamine Prod. Liab. Litig., 289 F. 2d 1230 (2003).  What stunned me, however, was his statement that Judge Rothstein issued her opinion “fresh from a seminar at the Tellus Institute,” which he described as “organization set up by scientist trying to bring common sense to interpretation of science.”

Post hoc; ergo propter hoc?

Judge Rothstein’s PPA decision stands as a landmark of judicial gullibility.  Judge Rothstein conducted hearings and entertaining extensive briefings on the reliability of plaintiffs’ expert witnesses’ opinions, which were based largely upon one epidemiologic study, known as the “Yale Hemorrhagic Stroke Project (HSP).”  In the end, publication in a prestigious peer-reviewed journal proved to be a proxy for independent review: “The prestigious NEJM published the HSP results, further substantiating that the research bears the indicia of good science.” Id. at 1239 (citing Daubert II for the proposition that peer review shows the research meets the minimal criteria for good science). The admissibility challenges were refused.

Ultimately, the HSP study received much more careful analysis before juries, which uniformly returned verdicts for the defense. After one of the early defense verdicts, plaintiffs’ counsel challenged the defendant’s reliance upon underlying data in the HSP, which went behind the peer-reviewed publication, and which showed that the peer review failed to prevent serious errors.  The trial court rejected the plaintiffs’ request for a new trial, and spoke to the significance of challenging the superficial significance of peer review of the key study relied upon by plaintiffs in the PPA litigation:

“I mean, you could almost say that there was some unethical activity with that Yale Study.  It’s real close.  I mean, I — I am very, very concerned at the integrity of those researchers.”

“Yale gets — Yale gets a big black eye on this.”

O’Neill v. Novartis AG, California Superior Court, Los Angeles Cty., Transcript of Oral Argument on Post-Trial Motions, at 46 -47 (March 18, 2004) (Hon. Anthony J. Mohr)

Roisman’s endorsement of the PPA decision may have been purely result-oriented jurisprudence, but what of his enthusiasm for the “learning” that Judge Rothstein received at the Tellus Institute.  Tell us, what is this Tellus Institute?

In 2003, roughly contemporaneously with Judge Rothstein’s PPA decision, SKAPP published a jeremiad against the Daubert decision, with support from none other than the Tellus Group. See Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of;  A Publication of the Project on Scientific Knowledge and Public Policy, coordinated by the Tellus Institute (2003). The Tellus Institute website tells us very little specific detail about the Institute’s projects, other than stating some vague and pious goals.  The alignment, however, of the Tellus Institute with David Michael’s SKAPP, which was created with plaintiffs’ lawyers’ funding, certainly seems like a dubious indicator of neutrality and scientific commitment.  SeeSkapp a Lot” (April 30, 2010).

We might get a better idea of the organization from the Tellus membership.

Richard Clapp and David Ozonoff are both regular testifiers for plaintiffs in so-called toxic tort and environmental litigation. In an article published about the time of the PPA decision, Clapp and Ozonoff acknowledged having benefited from discussions with colleagues at the Tellus Institute.  See Richard W. Clapp & David Ozonoff, “Environment and Health: Vital Intersection or Contested Territory?” 30 Am. J. L. & Med. 189, 189 (2004) (“This Article also benefited from discussions with colleagues in the project on Scientific Knowledge and Public Policy at Tellus Institute, in Boston, Massachusetts.”).

In the infamous case of Selikoff and Motley and their effort to subvert the neutrality of Judge James M. Kelly in the school district asbestos litigation, the conspiracy was detected in time for a successful recusal effort. In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992).  Unfortunately, in the PPA litigation, there was no disclosure of the efforts by the advocacy group, Tellus Institute, to undermine the neutrality of a federal judge. 

Outside observers will draw their own inferences about whether Tellus was an “honest broker” of scientific advice to Judge Rothstein. One piece of evidence may be SKAPP’s website, which contains a page about Richard Clapp’s courtroom advocacy in the PPA litigation. Additional evidence comes from Clapp’s leadership role in Physicians for Social Responsibility, and his own characterization of himself as a healthcare professional advocate. Clapp, a member of Tellus, was an expert witness for plaintiffs in PPA cases.

Was Clapp present at the Tellus Institute meeting attended by Judge Rothstein? History will judge whether the Tellus Institute participated in corrupting the administration of justice.

The Capture of the Public Health Community by the Litigation Industry

February 10th, 2014

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

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

How could anyone be against the APHA?

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

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

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

 

APHA Policy

Comment

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

 

What follows from these contentions? 

“Therefore, APHA:”

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

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

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

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

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

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

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

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

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

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

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

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

* * * * * * *

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

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



[1] See Schachtman, Silica Litigation: Screening, Scheming & Suing; Washington Legal Foundation Critical Legal Issues Working Paper Series No. 135 (Dec. 2005) (exploring the ethical and legal implications of the entrepreneurial litigation in which Levy and others were involved). See also Lofgren v. Motorola, Inc., 1998 WL 299925, No. CV 93-05521 (Ariz. Super. Ct., Maricopa Cty. June 1, 1998); Harman v. Lipari, N.J. L. Div. GLO-L-1375-95, Order of Nov. 3, 2000 (Tomasello, J.) (barring the use of Barry Levy in class action for medical monitoring damages); Castellow v. Chevron USA, 97 F.Supp. 2d 780, 793-95 (S.D. Tex. 2000); Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007); Watts v. Radiator Specialty Co., 990 So. 2d 143 (Miss. 2008); Aurand v. Norfolk So. Ry., 802 F.Supp.2d 950 (2011); Mallozzi v. Ecosmart Technologies, Inc., 2013 WL 2415677, No. 11-CV-2884 (SJF)(ARL) (E.D.N.Y. May 31, 2013).