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David Egilman, Rest in Peace – Part 1

April 26th, 2024

After close to a 40 year career as a testifying expert witness, David Egilman died earlier this month.[1] He was a work horse of the lawsuit industry.  Although he made plenty of money as a retained witness, Egilman was motivated by his political agenda. As he noted in a 2004 lecture at the Center for Science in the Public Interest: “my bias is ideological.”[2]

By the mid-1980s, Egilman was actively engaged in medico-legal testimonial adventures. In 1986, he was sued for negligence and fraud in connection with medical reports he wrote to support worker compensation claims filed against the Dayton-Walther Corporation. Thanks to the excellent lawyering of Frank Woodside and others, the case was ultimately dismissed on grounds that the alleged fraud was not legally cognizable as pleaded.[3]

Not long after Egilman dodged the Ohio fraud case, he testified for a claimant in a disability case against the Norfolk & Western Railroad. The administrative tribunals found the claim “was not fully credible or supported by substantial evidence in the record.”[4] By 1990, testifying in the Virgin Islands, Egilman had appeared upon the asbestos scene. [5] And then, Egilman seemed to be everywhere.

With the decision in Daubert, Egilman became gun shy, and he would not appear in courtrooms in which he faced a substantial risk of being excluded.  Egilman submitted reports in the cases before Judge Jones, in the District of Oregon, but after the court appointed technical advisors, Egilman decided to stay on the east coast. Egilman also sat out the hearings before Judges Weinstein and Baer, and Justice Lobis, in Brooklyn, in October 1996.

Up to the fall of 1996, Egilman had never showed up in any my cases. As I was preparing for the hearing before Judge Weinstein, I received a letter by telecopy and post, from David Egilman. The circumstances surrounding this letter were nothing less than bizarre. Earlier in the winter of 1996, George Gore (Al’s cousin) tried a silicone breast implant case for Bristol Myers Squibb in Oregon state court. I was there for the trial, mostly to monitor the proceedings, and help with witness preparation. Tragically, George’s father died during the trial, and for want of a better candidate, I substituted for him while he had to be away. When George returned (after a detour to be invested as President of the IADC), he wanted his case back.  After some tussling, we agreed to share the remaining witnesses, but George was adamant that he wanted to present the closing argument.

With the jury out, the defense prospects did not look promising, and George vamoosed again. The case had been bifurcated, and there was a punitive damages phase still to go. Once again, I re-entered the fray and tried the second phase of the case. In its deliberations on the second phase, the jury deadlocked, and the parties were left to fight what the Oregon requirement of a unified jury meant.

And then, in late September 1996, a faxed letter came across my desk, from none other than David Egilman. I had a breast implant case, set for trial in Middlesex County, New Jersey, and Egilman was one of the main  causation expert witnesses for the plaintiff, represented by the Wilentz firm. Perhaps the only way to tell what happened is simply to share with you what Egilman wanted from me, and then to share with you my response to the Wilentz firm. Very shortly after I wrote my letter, Chris Placitella, the Wilentz trial lawyer, withdrew Egilman from the case, and I never got another opportunity to take his deposition or to cross-examine him.

 

And my response directed to the firm that represented the plaintiff:

 

 

 

[1] Clay Risen, “David Egilman, Doctor Who Took On Drug Companies, Dies at 71,” N.Y. Times (Apr. 15, 2024).

[2] David Egilman and Susanna Rankin Bohme, “The suppression of science: How corporate interests hide the truth & how to stop them” CSPI Conference (July 2004).

[3] Dayton-Walther Corp. v. Kelly, 42 Ohio App. 3d 184 (1987).

[4] Freels v. U.S. RR Retirement Bd., 879 F.2d 335 (1989).

[5] Dunn v. Owens-Corning Fiberglas, 774 F. Supp. 929 (D.V.I. 1991).

Posted in Asbestos, Cognitive Biases, Expert Witness Hall of Shame, Public Nuisances | 2 Comments »

The Dodgy Origins of the Collegium Ramazzini

November 15th, 2023

Or How Irving Selikoff and His Lobby (the Collegium Ramazzini) Fooled the Monsanto Corporation

Anyone who litigates occupational or environmental disease cases has heard of the Collegium Ramazzini. The group is named after a 17th century Italian physician, Bernardino Ramazzini, who is sometimes referred to as the father of occupational medicine.[1] His children have been an unruly lot. In Ramazzini’s honor, the Collegium was founded just over 40 years old, to acclaim and promises of neutrality and consensus.

Back in May 1983, a United Press International reporter chronicled the high aspirations and the bipartisan origins of the Collegium.[2] The UPI reporter noted that the group was founded by the late Irving Selikoff, who is also well known in litigation circles. Selikoff held himself out as an authority on occupational and environmental medicine, but his actual training in medicine was dodgy. His training in epidemiology and statistics was non-existent.

Selikoff was, however, masterful at marketing and prosyletizing. Selikoff would become known for misrepresenting his training, and creating a mythology that he did not participate in litigation, that crocidolite was not used in products in the United State, and that asbestos would become a major cause of cancer in the United States, among other things.[3] It is thus no surprise that Selikoff successfully masked the intentions of the Ramazzini group, and was thus able to capture the support of two key legislators, Senators Charles Mathias (Rep., Maryland) and Frank Lautenberg (Dem., New Jersey), along with officials from both organized labor and industry.

Selikoff was able to snooker the Senators and officials with empty talk of a new organization that would work to obtain scientific consensus on occupational and environmental issues. It did not take long after its founding in 1983 for the Collegium to become a conclave of advocates and zealots.

The formation of the Collegium may have been one of Selikoff’s greatest deceptions. According to the UPI news report, Selikoff represented that the Collegium would not lobby or seek to initiate legislation, but rather would interpret scientific findings in accessible language, show the policy implications of these findings, and make recommendations. This representation was falsified fairly quickly, but certainly by 1999, when the Collegium called for legislation banning the use of asbestos.  Selikoff had promised that the Collegium

“will advise on the adequacy of a standard, but will not lobby to have a standard set. Our function is not to condemn, but rather to be a conscience among scientists in occupational and environmental health.”

The Adventures of Pinocchio (1883); artwork by Enrico Mazzanti

Senator Mathias proclaimed the group to be “dedicated to the improvement of the human condition.” Perhaps no one was more snookered than the Monsanto Corporation, which helped fund the Collegium back in 1983. Monte Throdahl, a Monsanto senior vice president, reportedly expressed his hopes that the group would emphasize the considered judgments of disinterested scientists and not the advocacy and rent seeking of “reporters or public interests groups” on occupational medical issues. Forty years in, those hopes are long since gone. Recent Collegium meetings have been sponsored and funded by the National Institute for Environmental Sciences, Centers for Disease Control, National Cancer Institute, and Environmental Protection Agency. The time has come to cut off funding.

[1] Giuliano Franco & Francesca Franco, “Bernardino Ramazzini: The Father of Occupational Medicine,” 91 Am. J. Public Health 1382 (2001).

[2] Drew Von Bergen, “A group of international scientists, backed by two senators,” United Press International (May 10, 1983).

[3] “Selikoff Timeline & Asbestos Litigation History” (Feb. 26, 2023); “The Lobby – Cut on the Bias” (July 6, 2020); “The Legacy of Irving Selikoff & Wicked Wikipedia” (Mar. 1, 2015). See also “Hagiography of Selikoff” (Sept. 26, 2015);  “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); “Irving Selikoff – Media Plodder to Media Zealot” (Sept. 9, 2014).; “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014); “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010); “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

Posted in Asbestos, Conflicts of Interest, Public Nuisances, Scientific Misconduct, Scientific Publishing | 3 Comments »

Tenpenny Down to Tuppence

August 22nd, 2023

Over two years ago, an osteopathic physician by the name of Sherri Tenpenny created a stir when she told the Ohio state legislature that Covid vaccines magnetize people or cause them to “interface with 5G towers.”[1] What became apparent at that time was that Tenpenny was herself a virulent disease vector of disinformation. Indeed, in its March 2021 report, the Center for Countering Digital Hate listed Tenpenny as a top anti-vaccination shyster. As a social media vector, she is ranked in the top dozen “influencers.”[2] No surprise, in addition to bloviating about Covid vaccines, someone with such quirkly non-evidence based opinions turns up in litigation as an expert witness.[3]

 

At the time of Tenpenny’s ludicrous testimony before the Ohio state legislature, one astute observer remarked that the AMA Ethical Guidelines specify that medical societies and medical licensing boards are responsible for maintaining high standards for medical testimony, and must assess “claims of false or misleading testimony.”[4] When the testimony is false or misleading, these bodies should discipline the offender “as appropriate.”[5]

The State Medical Board of Ohio stepped up to its responsibility. After receiving hundreds (roughly 350) complaints about Tenpenny’s testimony, the Ohio Board launched an investigation of Tenpenny, who was first licensed as an osteopathic physician in 1984.[6]  The Board’s investigators tried to contact Tenpenny, who apparently evaded engaging with them. Eventually, Thomas Renz, a lawyer for Tenpenny informed the Board that Tenpenny “[d]eclin[ed] to cooperate in the Board’s bad faith and unjustified assault on her licensure, livelihood, and constitutional rights cannot be construed as an admission of any allegations against her.”

After multiple unsuccessful attempts to reach Tenpenny, the Board issued a citation, in 2022, against her for stonewalling the investigation. Tenpenny requested an administrative hearing, set for April 2023, when she would be able to submit her defense in writing. The Board refused to let Tenpenny evade questioning, and suspended her license for failure to comply with the investigation. According to the Board’s Order, “Dr. Tenpenny did not simply fail to cooperate with a Board investigation, she refused to cooperate. *** And that refusal was based on her unsupported and subjective belief regarding the Board’s motive for the investigation. Licensees of the Board cannot simply refuse to cooperate in investigations because they decide they do not like what they assume is the reason for the investigation.”[7]

According to the Board’s Order, Tenpenny has been fined $3,000, and she must satisfy the Board’s conditions before applying for reinstatement. The Ohio Board’s decision is largely based upon a procedural ruling that flowed from Tenpenny’s refusal to cooperate with the Board’s investigation. Most state medical boards have done little to nothing to address the substance of physician misconduct arising out of the COVID pandemic. This month, American Board of Internal Medicine (ABIM) announced that it was revoking the board certifications of two physicians, Drs. Paul Marik and Pierre Kory, members of the Front Line COVID-19 Critical Care Alliance, for engaging in promoting disinformation and invalid opinions about therapies for COVID-19 opinions.[8] Ron Johnson, the quack senator from Wisconsin, predictably and transparently criticized the ABIM’s action with an ad hominem attack on the ABIM as the action of a corporate cabal. Quack physicians of course have a first amendment right to say whatever, but their licensure and their board certification are contingent on basic competence. Both the state boards and the certifying private groups have the right and responsibility to revoke licenses and privileges when physicians demonstrate incompetence and callousness in the face of a pandemic. There is no unqualified right to professional licenses or certifications.

[1] Andrea Salcedo, “A doctor falsely told lawmakers vaccines magnetize people: ‘They can put a key on their forehead. It sticks’,” Washington Post (June 9, 2021); Andy Downing, “What an exceedingly dumb time to be alive,” Columbus Alive (June 10, 2021); Jake Zuckerman, “She says vaccines make you magnetized. This West Chester lawmaker invited her testimony, chair says,” Ohio Capital Journal (July 14, 2021).

[2] The Disinformation Dozen (2021),

[3] Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009) (excluding expert witness opinion testimony from Tenpenny).

[4]  “Epistemic Virtue – Dropping the Dime on Tenpenny” Tortini (July 18, 2021).

[5] A.M.A. Code of Medical Ethics Opinion 9.7.1.

[6] Michael DePeau-Wilson, “Doc Who Said COVID Vax Magnetized People Has License Suspended,” MedPageToday (Aug. 11, 2023); David Gorski, “The Ohio State Medical Board has finally suspended the medical license of antivax quack Sherri Tenpenny,” Science-Based Medicine (Aug, 14, 2023).

[7] In re Sherri J. Tenpenny, D.O., Case No. 22-CRF-0168 State Medical Board of Ohio (Aug. 9, 2023).

[8] David Gorski, “The American Board of Internal Medicine finally acts against two misinformation-spreading doctors,” Science-Based Medicine (Aug. 7, 2023).

Posted in Expert Witnesses, Public Nuisances, Scientific Evidence, Scientific Misconduct | No Comments »

Mass Tortogenesis

January 22nd, 2023

Mass torts are created much as cancer occurs in humans. The multistage model of tortogenesis consists of initiating and promoting events. The model describes, and in some cases, can even predict mass torts. The model also offers insights into prevention.

INITIATION

Initiating events can take a variety of forms. A change in a substance’s categorization in the International Agency for Research on Cancer’s treatment of cancer “hazards” will often initiate a mass tort by stirring interest in the lawsuit industry. A recent example of an IARC pronouncement’s initiating mass tort litigation is its reclassification of glyphosate as a “probable” human carcinogen.  Although the IARC monograph was probably flawed at its inception, and despite IARC’s specifying that its use of “probable” has no quantitative meaning, the IARC glyphosate monograph was a potent initiator of mass tort litigation against the manufacturer of glyphosate.

Regulatory rulemaking will often initiate a mass tort. Asbestos litigation existed as workman’s compensation cases from the 1930s, and as occasional, isolated cases against manufacturers, from the late 1950s.[1] By 1970, federal regulation of asbestos, in both occupational and environmental settings, however, helped create a legal perpetual motion machine that is still running, half a century later.

Publication of studies, especially with overstated results, will frequently initiate a mass tort. In 2007, the New England Journal of Medicine published a poorly done meta-analysis by Dr. Steven Nissen, on the supposed risk of heart attack from the use of rosiglitazone (Avandia).[2] Within days, lawsuits were filed against the manufacturer, GlaxoSmithKline, which ultimately paid over six billion dollars in settlements and costs.[3] Only after the harm of this mass tort was largely complete, the results of a mega-trial, RECORD,[4] became available, and the FDA changed its regulatory stance on rosiglitazone.[5]

More recently, on October 17, 2022, the Journal of the National Cancer Institute, published an observational epidemiologic study, “Use of Straighteners and Other Hair Products and Incident Uterine Cancer.”[6] Within a week or two, lawsuits began to proliferate. The authors were equivocal about their results, refraining from using explicit causal language, but suggesting that specific (phthalate) chemicals were “driving” the association:

“Abstract

Background

Hair products may contain hazardous chemicals with endocrine-disrupting and carcinogenic properties. Previous studies have found hair product use to be associated with a higher risk of hormone-sensitive cancers including breast and ovarian cancer; however, to our knowledge, no previous study has investigated the relationship with uterine cancer.

Methods

We examined associations between hair product use and incident uterine cancer among 33947 Sister Study participants aged 35-74 years who had a uterus at enrollment (2003-2009). In baseline questionnaires, participants in this large, racially and ethnically diverse prospective cohort self-reported their use of hair products in the prior 12 months, including hair dyes; straighteners, relaxers, or pressing products; and permanents or body waves. We estimated adjusted hazard ratios (HRs) and 95% confidence intervals (CIs) to quantify associations between hair product use and uterine cancer using Cox proportional hazard models. All statistical tests were 2-sided.

Results

Over an average of 10.9 years of follow-up, 378 uterine cancer cases were identified. Ever vs never use of straightening products in the previous 12 months was associated with higher incident uterine cancer rates (HR= 1.80, 95% CI = 1.12 to 2.88). The association was stronger when comparing frequent use (> 4 times in the past 12 months) vs never use (HR=2.55, 95% CI = 1.46 to 4.45; P trend=.002). Use of other hair products, including dyes and permanents or body waves, was not associated with incident uterine cancer.

Conclusion

These findings are the first epidemiologic evidence of association between use of straightening products and uterine cancer. More research is warranted to replicate our findings in other settings and to identify specific chemicals driving this observed association.”

The JNCI article might be considered hypothesis generating, but we can observe the article, in real time, initiating a mass tort. A petition for “multi-district litigation” status was filed not long after publication, and the lawsuit industry is jockeying for the inside post in controlling the litigation. Although the authors acknowledged that their findings were “novel,” and required more research, the lawsuit industry did not.

PROMOTION OF INITIATED MASS TORTS

As noted, within days of publication of the JNCI article on hair straighteners and uterine cancer, lawyers filed cases against manufacturers and sellers of hair straighteners. Mass tort litigation is a big business, truly industrial in scale, with its own eco-system of litigation finance, and claim finding and selling. Laws against champerty and maintenance have gone the way of the dodo. Part of the ethos of this eco-system is the constant deprecation of manufacturing industry’s “conflicts of industry,” while downplaying the conflicts of the lawsuit industry.

Here is an example of an email that a lawsuit industry lawyer might have received last month. The emphases below are mine:

“From:  ZZZ

To:  YYYYYYYYY

Date:  12/XX/2022
Subject:  Hair relaxer linked to cancer

Hi,

Here is the latest information on the Hair Relaxer/Straightener tort.

A recent National Institute of Health sister study showed proof that hair straightener products are linked to uterine cancer.

Several lawsuits have been filed against cosmetic hair relaxer companies since the release of the October 2022 NIH study.

The potential plaintiff pool for this case is large since over 50,000 women are diagnosed yearly.

A motion has been filed with the Judicial Panel on Multi District Litigation to have future cases moved to a class action MDL.

There are four cosmetic hair relaxers that are linked to this case so far.  Dark & Lovely, Olive Oil Relaxer, Motions, and Organic Root Stimulator.

Uterine fibroids and endometriosis have been associated with phthalate metabolites used in hair relaxers.

Are you looking to help victims in this case

ZZZ can help your firm sign up these thousands of these claimants monthly with your hair relaxer questionnaire, criteria, retainer agreement, and Hippa without the burden of doing this in house at an affordable cost per signed retainer for intake fees.

  • ZZZ intake fees are as low as $65 dollars per signed based upon a factors which are criteria, lead conversion %, and length of questionnaire.  Conversion rates are averaging 45%.
  • I can help point you in the right direction for reputable marketing agencies if you need lead sources or looking to purchase retainers.  

Please contact me to learn more about how we can help you get involved in this case.

Thank you,

ZZZ”

As you can see from ZZZ’s email, the JNCI article was the tipping point for the start of a new mass tort. ZZZ, however, was a promoter, not an initiator. Consider the language of ZZZ’s promotional efforts:

“Proof”!

As in quod erat demonstrandum.

Where is the Department of Justice when you have the makings of a potential wire fraud case?[7]

And “link.” Like sloppy journalists, the lawsuit industry likes to link a lot.

chorizo sausage links (courtesy of Wikipedia)[8]

And so it goes.

Absent from the promotional email are of course, mentions of the “novelty” of the JNCI paper’s finding, its use of dichotomized variables, its multiple comparisons, or its missing variables. Nor will you see any concern with how the JNCI authors inconsistently ascertained putative risk factors. Oral contraception was ascertained for over 10 years before base line, but hair straightener use was ascertained only for one year prior to baseline.

SYSTEMIC FAILURES TO PREVENT MASS TORTOGENESIS

Human carcinogenesis involves initiation and promotion, as well as failure of normal defense mechanisms against malignant transformation. Similarly, mass tortogenesis involves failure of defense mechanisms. Since 1993, the federal courts have committed to expert witness gatekeeping, by which they exclude expert witnesses who have outrun their epistemic headlights. Gatekeeping in federal court does not always go well, as for example in the Avandia mass tort, discussed above. In state courts, gatekeeping is a very uneven process.

Most states have rules or law that looks similar to federal law, but state judges, not uncommonly, look for ways to avoid their institutional responsibilities. In a recent decision involving claims that baby foods allegedly containing trace metals cause autism, a California trial judge shouted “not my job”[9]:

 “Under California law, the interpretation of epidemiological data — especially data reported in peer-reviewed, published articles — is generally a matter of professional judgment outside the trial court’s purview, including the interpretation of the strengths and weaknesses of a study’s design. If the validity of studies, their strengths and weaknesses, are subject to ‘considerable scientific interpretation and debate’, a court abuses its discretion by ‘stepping in and resolving the debate over the validity of the studies’. Nor can a court disregard ‘piecemeal … individual studies’ because it finds their methodology, ‘fully explained to the scientific community in peer-reviewed journals, to be misleading’ – ‘it is essential that… the body of studies be considered as a whole’. Flaws in study methodology should instead be ‘explored in detail through cross-examination and with the defense expert witnesses’ and affect ‘the weight[,] not the admissibility’ of an expert’s opinions.”

When courts disclaim responsibility for ensuring validity of evidence used to obtain judgments in civil actions, mass tortogenesis is complete, and the victim, the defendants, often must undergo radical treatment.

[1] The first civil action appears to have been filed by attorney William L. Brach on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957, in LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.).

[2] Steven E. Nissen, M.D., and Kathy Wolski, M.P.H., “Effect of Rosiglitazone on the Risk of Myocardial Infarction and Death from Cardiovascular Causes,” 356 New Engl. J. Med. 2457, 2457 (2007).

[3] In re Avandia Marketing, Sales Practices and Product Liability Litigation, 2011 WL 13576, *12 (E.D. Pa. 2011) (Rufe, J.).  See “Learning to Embrace Flawed Evidence – The Avandia MDL’s Daubert Opinion” (Jan. 10, 2011). Failed expert witness opinion gatekeeping promoted the mass tort into frank mass tort.

[4] Philip D. Home, Stuart J Pocock, et al., “Rosiglitazone Evaluated for Cardiovascular Outcomes in Oral Agent Combination Therapy for Type 2 Diabetes (RECORD),” 373 Lancet 2125 (2009) (reporting hazard ratios for cardiovascular deaths 0.84 (95% C.I., 0·59–1·18), and for myocardial infarction, 1·14 (95% C.I., 0·80–1·63). See “Revisiting the Avandia Scare: Results from the RECORD Trial” DiaTribe Learn (updated Aug. 14, 2021).

[5] FDA Press Release, “FDA requires removal of certain restrictions on the diabetes drug Avandia” (Nov. 25, 2013). And in December 2015, the FDA abandoned its requirement of a Risk Evaluation and Mitigation Strategy for Avandia. FDA, “Rosiglitazone-containing Diabetes Medicines: Drug Safety Communication – FDA Eliminates the Risk Evaluation and Mitigation Strategy (REMS)” (Dec. 16, 2015).

[6] Che-Jung Chang, Katie M O’Brien, Alexander P Keil, Symielle A Gaston, Chandra L Jackson, Dale P Sandler, and Alexandra J White, “Use of Straighteners and Other Hair Products and Incident Uterine Cancer,”114 J.Nat’l Cancer Instit. 1636 (2022).

[7] See, e.g., United States v. Harkonen, 2010 WL 2985257, at *5 (N.D. Calif. 2010) (denying defendant’s post–trial motions to dismiss the indictment, for acquittal, or for a new trial), aff’d, 510 Fed. Appx. 633, 2013 WL 782354, 2013 U.S. App. LEXIS 4472 (9th Cir. March 4, 2013), cert. denied 134 S.Ct. 824 (2013).

[8] See https://en.wikipedia.org/wiki/List_of_sausages.

[9] NC v Hain Celestial Group, Inc., 21STCV22822, Slip op. sur motion to exclude expert witnesses, Cal. Super. Ct. (Los Angeles May 24, 2022) (internal citations omitted).

Posted in Public Nuisances, Rule 702, Scientific Evidence, Scientific Publishing | 2 Comments »

The Rise of Agnothology as Conspiracy Theory

July 19th, 2022

A few egregious articles in the biomedical literature have begun to endorse explicitly asymmetrical standards for inferring causation in the context of environmental or occupational exposures. Very little if anything is needed for inferring causation, and nothing counts against causation.  If authors refuse to infer causation, then they are agents of “industry,” epidemiologic malfeasors, and doubt mongers.

For an example of this genre, take the recent article, entitled “Toolkit for detecting misused epidemiological methods.”[1] [Toolkit] Please.

The asymmetry begins with Trump-like projection of the authors’ own foibles. The principal hammer in the authors’ toolkit for detecting misused epidemiologic methods is personal, financial bias. And yet, somehow, in an article that calls out other scientists for having received money from “industry,” the authors overlooked the business of disclosing their receipt of monies from one of the biggest industries around – the lawsuit industry.

Under the heading “competing interests,” the authors state that “they have no competing interests.”[2]  Lead author, Colin L. Soskolne, was, however, an active, partisan expert witness for plaintiffs’ counsel in diacetyl litigation.[3] In an asbestos case before the Pennsylvania Supreme Court, Rost v. Ford Motor Co., Soskolne signed on to an amicus brief, supporting the plaintiff, using his science credentials, without disclosing his expert witness work for plaintiffs, or his long-standing anti-asbestos advocacy.[4]

Author Shira Kramer signed on to Toolkit, without disclosing any conflicts, but with an even more impressive résumé of pro-plaintiff litigation experience.[5] Kramer is the owner of Epidemiology International, in Cockeysville, Maryland, where she services the lawsuit industry. She too was an “amicus” in Rost, without disclosing her extensive plaintiff-side litigation consulting and testifying.

Carl Cranor, another author of Toolkit, takes first place for hypocrisy on conflicts of interest. As a founder of Council for Education and Research on Toxics (CERT), he has sterling credentials for monetizing the bounty hunt against “carcinogens,” most recently against coffee.[6] He has testified in denture cream and benzene litigation, for plaintiffs. When he was excluded under Rule 702 from the Milward case, CERT filed an amicus brief on his behalf, without disclosing that Cranor was a founder of that organization.[7], [8]

The title seems reasonably fair-minded but the virulent bias of the authors is soon revealed. The Toolkit is presented as a Table in the middle of the article, but the actual “tools” are for the most part not seriously discussed, other than advice to “follow the money” to identify financial conflicts of interest.

The authors acknowledge that epidemiology provides critical knowledge of risk factors and causation of disease, but they quickly transition to an effort to silence any industry commentator on any specific epidemiologic issue. As we will see, the lawsuit industry is given a complete pass. Not surprisingly, several of the authors (Kramer, Cranor, Soskolne) have worked closely in tandem with the lawsuit industry, and have derived financial rewards for their efforts.

Repeatedly, the authors tell us that epidemiologic methods and language are misused by “powerful interests,” which have financial stakes in the outcome of research. Agents of these interests foment uncertainty and doubt about causal relationships through “disinformation,” “malfeasance,” and “doubt mongering.” There is no correlative concern about false claiming or claim mongering..

Who are these agents who plot to sabotage “social justice” and “truth”? Clearly, they are scientists with whom the Toolkit authors disagree. The Toolkit gang cites several papers as exemplifying “malfeasance,”[9] but they never explain what was wrong with them, or how the malfeasors went astray.  The Toolkit tactics seem worthy of Twitter smear and run.

The Toolkit

The authors’ chart of “tools” used by industry might have been an interesting taxonomy of error, but mostly they are ad hominem attack on scientists with whom they disagree. Channeling Putin on Ukraine, those scientists who would impose discipline and rigor on epidemiologic science are derided as not “real epidemiologists,” and, to boot, they are guilty of ethical lapses in failing to advance “social justice.”

Mostly the authors give us a toolkit for silencing those who would get in the way of the situational science deployed at the beck and call of the lawsuit industry.[10] Indeed, the Toolkit authors are not shy about identifying their litigation goals; they tell us that the toolkit can be deployed in depositions and in cross-examinations to pursue “social justice.” These authors also outline a social agenda that greatly resembles the goals of cancel culture: expose the perpetrators who stand in the way of the authors’preferred policy choices, diminish their adversaries’ their influence on journals, and galvanize peer reviewers to reject their adversaries’ scientific publications. The Toolkit authors tell us that “[t] he scientific community should engage by recognizing and professionally calling out common practices used to distort and misapply epidemiological and other health-related sciences.”[11] What this advice translates into are covert and open ad hominem campaigns as peer reviewers to block publications, to deny adversaries tenure and promotions, and to use social and other media outlets to attack adversaries’ motives, good faith, and competence.

None of this is really new. Twenty-five years ago, the late F. Douglas K. Liddell railed at the Mt. Sinai mob, and the phenomenon was hardly new then.[12] The Toolkit’s call to arms is, however, quite open, and raises the question whether its authors and adherents can be fair journal editors and peer reviewers of journal submissions.

Much of the Toolkit is the implementation of a strategy developed by lawsuit industry expert witnesses to demonize their adversaries by accusing them of manufacturing doubt or ignorance or uncertainty. This strategy has gained a label used to deride those who disagree with litigation overclaiming: agnotology or the creation of ignorance. According to Professor Robert Proctor, a regular testifying historian for tobacco plaintiffs, a linguist, Iain Boal, coined the term agnotology, in 1992, to describe the study of the production of ignorance.[13]

The Rise of “Agnotology” in Ngram

Agnotology has become a cottage sub-industry of the lawsuit industry, although lawsuits (or claim mongering if you like), of course, remain their main product. Naomi Oreskes[14] and David Michaels[15] gave the agnotology field greater visibility with their publications, using the less erudite but catchier phrase “manufacturing doubt.” Although the study of ignorance and uncertainty has a legitimate role in epistemology[16] and sociology,[17] much of the current literature is dominated by those who use agnotology as propaganda in support of their own litigation and regulatory agendas.[18] One lone author, however, appears to have taken agnotology study seriously enough to see that it is largely a conspiracy theory that reduces complex historical or scientific theory, evidence, opinion, and conclusions to a clash between truth and a demonic ideology.[19]

Is there any substance to the Toolkit?

The Toolkit is not entirely empty of substantive issues. The authors note that “statistical methods are a critical component of the epidemiologist’s toolkit,”[20] and they cite some articles about common statistical mistakes missed by peer reviewers. Curiously, the Toolkit omits any meaningful discussion of statistical mistakes that increase the risk of false positive results, such as multiple comparisons or dichotomizing continuous confounder variables. As for the Toolkit’s number one identified “inappropriate” technique used by its authors’ adversaries, we have:

“A1. Relying on statistical hypothesis testing; Using ‘statistical significance’ at the 0.05 level of probability as a strict decision criterion to determine the interpretation of statistical results and drawing conclusions.”

Peer into the hearings of any federal court so-called Daubert motion, and you will see the lawsuit industry, and its hired expert witnesses, rail at statistical significance, unless of course, there is some subgroup that has nominal significance, in which case, they are all in for endorsing the finding as “conclusive.” 

Welcome to asymmetric, situational science.

[1] Colin L. Soskolne, Shira Kramer, Juan Pablo Ramos-Bonilla, Daniele Mandrioli, Jennifer Sass, Michael Gochfeld, Carl F. Cranor, Shailesh Advani & Lisa A. Bero, “Toolkit for detecting misused epidemiological methods,” 20(90) Envt’l Health (2021) [Toolkit].

[2] Toolkit at 12.

[3] Watson v. Dillon Co., 797 F.Supp. 2d 1138 (D. Colo. 2011).

[4] Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016). See “The Amicus Curious Brief” (Jan. 4, 2018).

[5] See, e.g., Sean v. BMW of North Am., LLC, 26 N.Y.3d 801, 48 N.E.3d 937, 28 N.Y.S.3d 656 (2016) (affirming exclusion of Kramer); The Little Hocking Water Ass’n v. E.I. Du Pont De Nemours & Co., 90 F.Supp.3d 746 (S.D. Ohio 2015) (excluding Kramer); Luther v. John W. Stone Oil Distributor, LLC, No. 14-30891 (5th Cir. April 30, 2015) (mentioning Kramer as litigation consultant); Clair v. Monsanto Co., 412 S.W.3d 295 (Mo. Ct. App. 2013 (mentioning Kramer as plaintiffs’ expert witness); In re Chantix (Varenicline) Prods. Liab. Litig., No. 2:09-CV-2039-IPJ, MDL No. 2092, 2012 WL 3871562 (N.D.Ala. 2012) (excluding Kramer’s opinions in part); Frischhertz v. SmithKline Beecham Corp., 2012 U.S. Dist. LEXIS 181507, Civ. No. 10-2125 (E.D. La. Dec. 21, 2012) (excluding Kramer); Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d 314 (2002) (affirming admissibility of Kramer’s opinions in absence of Rule 702 standards).

[6]  “The Council for Education & Research on Toxics” (July 9, 2013) (CERT amicus brief filed without any disclosure of conflict of interest). Among the fellow travelers who wittingly or unwittingly supported CERT’s scheme to pervert the course of justice were lawsuit industry stalwarts, Arthur L. Frank, Peter F. Infante, Philip J. Landrigan, Barry S. Levy, Ronald L. Melnick, David Ozonoff, and David Rosner. See also NAS, “Carl Cranor’s Conflicted Jeremiad Against Daubert” (Sept. 23, 2018); Carl Cranor, “Milward v. Acuity Specialty Products: How the First Circuit Opened Courthouse Doors for Wronged Parties to Present Wider Range of Scientific Evidence” (July 25, 2011).

[7] Milward v. Acuity Specialty Products Group, Inc., 664 F. Supp. 2d 137, 148 (D. Mass. 2009), rev’d, 639 F.3d 11 (1st Cir. 2011), cert. den. sub nom. U.S. Steel Corp. v. Milward, 565 U.S. 1111 (2012), on remand, Milward v. Acuity Specialty Products Group, Inc., 969 F.Supp. 2d 101 (D. Mass. 2013) (excluding specific causation opinions as invalid; granting summary judgment), aff’d, 820 F.3d 469 (1st Cir. 2016).

[8] To put this effort into a sociology of science perspective, the Toolkit article is published in a journal, Environmental Health, an Editor in Chief of which is David Ozonoff, a long-time pro-plaintiff partisan in the asbestos litigation. The journal has an “ombudsman,”Anthony Robbins, who was one of the movers-and-shakers in forming SKAPP, The Project on Scientific Knowledge and Public Policy, a group that plotted to undermine the application of federal evidence law of expert witness opinion testimony. SKAPP itself now defunct, but its spirit of subverting law lives on with efforts such as the Toolkit. “More Antic Proposals for Expert Witness Testimony – Including My Own Antic Proposals” (Dec. 30, 2014). Robbins is also affiliated with an effort, led by historian and plaintiffs’ expert witness David Rosner, to perpetuate misleading historical narratives of environmental and occupational health. “ToxicHistorians Sponsor ToxicDocs” (Feb. 1, 2018); “Creators of ToxicDocs Show Off Their Biases” (June 7, 2019); Anthony Robbins & Phyllis Freeman, “ToxicDocs (www.ToxicDocs.org) goes live: A giant step toward leveling the playing field for efforts to combat toxic exposures,” 39 J. Public Health Pol’y 1 (2018).

[9] The exemplars cited were Paolo Boffetta, MD, MPH; Hans Olov Adami, Philip Cole, Dimitrios Trichopoulos, Jack Mandel, “Epidemiologic studies of styrene and cancer: a review of the literature,” 51 J. Occup. & Envt’l Med. 1275 (2009); Carlo LaVecchia & Paolo Boffetta, “Role of stopping exposure and recent exposure to asbestos in the risk of mesothelioma,” 21 Eur. J. Cancer Prev. 227 (2012); John Acquavella, David Garabrant, Gary Marsh G, Thomas Sorahan and Douglas L. Weed, “Glyphosate epidemiology expert panel review: a weight of evidence systematic review of the relationship between glyphosate exposure and non-Hodgkin’s lymphoma or multiple myeloma,” 46 Crit. Rev. Toxicol. S28 (2016); Catalina Ciocan, Nicolò Franco, Enrico Pira, Ihab Mansour, Alessandro Godono, and Paolo Boffetta, “Methodological issues in descriptive environmental epidemiology. The example of study Sentieri,” 112 La Medicina del Lavoro 15 (2021).

[10] The Toolkit authors acknowledge that their identification of “tools” was drawn from previous publications of the same ilk, in the same journal. Rebecca F. Goldberg & Laura N. Vandenberg, “The science of spin: targeted strategies to manufacture doubt with detrimental effects on environmental and public health,” 20:33 Envt’l Health (2021).

[11] Toolkit at 11.

[12] F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997). See “The Lobby – Cut on the Bias” (July 6, 2020).

[13] Robert N. Proctor & Londa Schiebinger, Agnotology: The Making and Unmaking of Ignorance (2008).

[14] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010); Naomi Oreskes & Erik M. Conway, “Defeating the merchants of doubt,” 465 Nature 686 (2010).

[15] David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception (2020); David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (2008); David Michaels, “Science for Sale,” Boston Rev. 2020; David Michaels, “Corporate Campaigns Manufacture Scientific Doubt,” 174 Science News 32 (2008); David Michaels, “Manufactured Uncertainty: Protecting Public Health in the Age of Contested Science and Product Defense,” 1076 Ann. N.Y. Acad. Sci. 149 (2006); David Michaels, “Scientific Evidence and Public Policy,” 95 Am. J. Public Health s1 (2005); David Michaels & Celeste Monforton, “Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health and Environment,” 95 Am. J. Pub. Health S39 (2005); David Michaels & Celeste Monforton, “Scientific Evidence in the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory Ssytem,” 13 J. L. & Policy 17 (2005); David Michaels, “Doubt is Their Product,” Sci. Am. 96 (June 2005); David Michaels, “The Art of ‘Manufacturing Uncertainty’,” L.A. Times (June 24, 2005).

[16] See, e.g., Sibilla Cantarini, Werner Abraham, and Elisabeth Leiss, eds., Certainty-uncertainty – and the Attitudinal Space in Between (2014); Roger M. Cooke, Experts in Uncertainty: Opinion and Subjective Probability in Science (1991).

[17] See, e.g., Ralph Hertwig & Christoph Engel, eds., Deliberate Ignorance: Choosing Not to Know (2021); Linsey McGoey, The Unknowers: How Strategic Ignorance Rules the World (2019); Michael Smithson, “Toward a Social Theory of Ignorance,” 15 J. Theory Social Behavior 151 (1985).

[18] See Janet Kourany & Martin Carrier, eds., Science and the Production of Ignorance: When the Quest for Knowledge Is Thwarted (2020); John Launer, “The production of ignorance,” 96 Postgraduate Med. J. 179 (2020); David S. Egilman, “The Production of Corporate Research to Manufacture Doubt About the Health Hazards of Products: An Overview of the Exponent BakeliteVR Simulation Study,” 28 New Solutions 179 (2018); Larry Dossey, “Agnotology: on the varieties of ignorance, criminal negligence, and crimes against humanity,” 10 Explore 331 (2014); Gerald Markowitz & David Rosner, Deceit and Denial: The Deadly Politics of Industrial Revolution (2002).

[19] See Enea Bianchi, “Agnotology: a Conspiracy Theory of Ignorance?” Ágalma: Rivista di studi culturali e di estetica 41 (2021).

[20] Toolkit at 4.

Posted in Causation, Cognitive Biases, Conflicts of Interest, Public Nuisances, Scientific Evidence, Scientific Misconduct, Scientific Publishing, statistical evidence | No Comments »

The American Tort Law Museum

March 14th, 2022

Last year, Professor Christopher J. Robinette wrote a blog post about the American Tort Law Museum. I had not heard of it, but I was curious. I have stopped by the Museum’s website on a few occasions to learn more.

The Museum’s website describes itself as “the nationally acclaimed American Museum of Tort Law,” which seems hyperbolic. I suppose as long as it is the only museum of tort law, it might as well call itself “the” museum of tort law.

Other than Professor Robinette, I have not read anything about this museum, but perhaps I was somehow left in the dark. The museum’s physical location is in Winsted, Connecticut, about 40 km. northwest of downtown Hartford, in the middle of nowhere.  Hardly a place for a nationally acclaimed museum, although Although Congressman John B. Larson is apparently very happy to have this museum in the boondocks of Connecticut.[1]

The website states that the museum seeks to “educate, inform and inspire Americans about two things: Trial by jury; and the benefits of tort law.” Well, “trial by jury” is like God and apple pie, but I am an atheist and I prefer blueberry pie. Trial by jury is great when the Crown is trying to take your property or your life, but I am a skeptic when it comes to juries’ deciding technical and scientific issues. And the “benefits of tort law”? Well, there are some, but does the museum inform about the many detriments and harms of tort law?

Browsing the website quickly answers the questions. There are case studies of what at least plaintiffs’ tort lawyers might consider benefits ($$$) of tort law, with call out to notable cases that resulted in large awards, and perhaps a few that may have led to safer products. The “nationally acclaimed” museum has nothing, at least in its online presence, about the detriments, irrationality, or failures of tort law. You will not find anything about crime and fraud among the ranks of plaintiffs’ lawyers; nor will you find anything about successful defenses that shut down entire litigations. Nothing here about Dickie Scruggs in prison garb, or about John Edwards’ love child. Hmm, you may be getting a sense that this is a lopsided, partisan effort. Indeed, the museum is a temple to the Lawsuit Industry, and with the exception of one anomalous defense lawyer, its “founders” are the muckety mucks of the plaintiffs’ bar.

Among the founders are Peter Angelos, F. Scott Baldwin, Frederick Baron, Thomas V. Girardi, Robert L. Habush, James F. Humphreys, Tommy Jacks, Joseph D. Jamail Jr., and various rent-seeking organizations, such as Center for Study of Responsive Law, Public Citizen, Public Safety Institute, and Safety Systems Foundation.

You can see who else is associated with this propaganda effort. For education about civics and the right to a jury trial, I prefer the House of Terror, in Budapest.

[1] John B. Larson, “Recognizing the American Museum of Tort Law’s Second Anniversary,” Cong. Rec. E1475 (Nov. 1, 2017).

Posted in Public Nuisances | No Comments »

Epistemic Virtue – Dropping the Dime on Tenpenny

July 18th, 2021

When Marjorie Taylor Greene came under fire for propagating lies about Jewish space lasers and other fantastical conspiracy theories, she did not apologize. Rather she turned the opproprium into a grievance about being “allowed” to believe the lies. Blaming the media, Greene complained: “I was allowed to believe things that weren’t true… .”[1]

In a stunning show of bad faith, Greene attempted to redirect fault to the media. Beneath the failed attempt was a stratagem that appears to have prevalent appeal in this day of electronic and social media. There are some people who believe that telling a lie may be a moral failing, but believing a lie simply means you have been victimized. And being a victim is the ticket for admission into our grievance society.

Greene’s transparent attempt to foist blame on those who would allow her to believe hateful and crazy sidesteps her personal responsibility for her beliefs, and ignores that she chose to propagate the pernicious claims. Greene’s metaphor of passivity is essentially false in failing to come to grips with how we form beliefs, curate them, test, and verify them, even before we take to the social media “airways” to publish or re-publish them.

For the last few years, there has been scholarly and popular criticism of social media for its ability to propagate falsehoods, lies, conspiracy theories, and dis-, mis-, and mal-information.[2] Clearly, social media can do these things, but is it really surprising that social media can be an information cesspool? Descriptively, we can acknowledge that people are influenced by false claims made on social media platforms. Prescriptively, we can, and should, hold people to higher standards.

Earlier this week, the United States Surgeon General, Dr. Vivek Murthy proclaimed health misinformation on social media to be “urgent threat.”[3] Dr. Murthy stated that tech and social media companies needed to fight information rot more aggressively, and the Surgeon General’s office issued an advisory about “building a healthy information environment.”[4] Later last week, President Biden criticized social media companies for their failure to control misinformation, and announced a plan for government to participate in fact checking claims made on social media.[5] Biden’s initiative may be creating the state action needed for the yutzballs on the right and the left to make out state action in their claims of unconstitutional censorship.

I hate to play the “what about” game that was made so popular during the Trump Administration, but I have moments of weakness. What about governmental platforms for speech? After centuries of allowing any willing, able, and marginally qualified person, with a reasonable pretense to expertise, to give opinions in court, the federal judicial system cracked down on unsound, poorly supported expert witness opinion testimony. Most state courts dragged their judicial feet, but at least uttered in dicta that they were concerned.

Legislative platforms for speech have no gatekeeper. Any quack can show up, and she does. Take Sherri Jane Tenpenny.  Please.

Sherri Tenpenny is an osteopathic physician who is a well-known, virulent disease vector of disinformation. In its March 2021 report, The Disinformation Dozen, the Center for Countering Digital Hate identified Tenpenny as a top anti-vaccination shyster. As a social media vector, she is ranked in the top dozen “influencers.”[6]

Tenpenny is an anti-vaccination osteopathic physician, who shakes down fearful parents at vaccination bootcamps, and hangs out with internet hoodlums such as Alex Jones, and the plumped-up pillow purveyor, Mike Lindell. She is the author of the 2008 book, Saying No to Vaccines: A Resource Guide for all Ages, where you can find hyperbolic claims, such as “[t]he skyrocketing autism epidemic, controversy surrounding mercury and thimerosal, and the rampant childhood epidemics — asthma, allergies, eczema, attention deficit disorders (ADD), attention deficit hyperactivity disorders (ADHD) and cancer — have been linked to vaccines.”

In federal court, Tenpenny has been blocked from disseminating her malarkey at the gate. In one case, Tenpenny served as an expert witness in support of a claim that a man’s receipt of a hepatitis B vaccination caused him to develop Guillain-Barré syndrome. The Special Master incorrectly wrote that the law required him to presume the admissibility of Tenpenny’s proffered testimony. The law actually requires the proponent to show the admissibility of his expert witness’s opinion testimony. But even with the non-existent presumption, Tenpenny’s opinion was ultimately found to be worth less than a plugged nickel, when the Special Master found her methodology “so divergent from the scientific method as to be nonsensical and confusing.”[7]

In other branches of government, a Tenpenny can go a lot further. Last month, the Ohio legislature invited Tennpenny to testify in support of House Bill 248, Enact Vaccine Choice and Anti-Discrimination Act (June 8, 2021). Introduced into the Ohio House of Representatives by Republican member Jennifer Gross, Bill 248 would “prohibit mandatory vaccinations and vaccination status disclosures.” Indeed, the proposed legislation would prohibit requiring, or creating incentives for, any vaccines, not just vaccinations against SARS-CoV-2. Tenpenny’s testimony did not fail to disappoint.

Tenpenny claimed that vaccines “magnetize” people, such that keys and spoons will stick to their bodies:

“I’m sure you’ve seen the pictures all over the Internet of people who have had these shots and now they’re magnetized. They can put a key on their forehead. It sticks. They can put spoons and forks all over them and they can stick, because now we think that there’s a metal piece to that.”

Tenpenny did not, however, discuss the obvious issue of polarity, and whether people would line up “north” to “south,” when together in a crowd. She vaguely suggested that “[t]here’s been people who have long suspected that there’s been some sort of an interface, yet-to-be-defined interface, between what’s being injected in these shots and all of the 5G towers.”[8]

The fallout from the Tenpenny testimony has been amusing. After the hearing, another Republican, Representative Scott Lipps, blamed Gross for having invited Tenpenny. During the hearing, however, none of the legislators strongly pushed back. Republican legislators thanked her for testifying, and praised her work as “enlightening.” The bill sponsor, Jennifer Gross, who trained as a nurse, told Tennpenny that it was “an honor to have you here.” According to some media reports (sorry), Gross previously compared businesses’ requiring vaccination to the Holocaust. Importantly, none of the legislators asked her for the studies upon which she relied.

Why would anyone think that Facebook, Twitter, or YouTube would act with more epistemic virtue than the Ohio Legislature? The Tenpenny phenomenon raises other interesting and important questions. Tenpenny has been licensed in Ohio as a “D.O.” (Doctor of Osteopathy), no. 34.003789, since 1984. Her online record shows no “board actions” taken or pending. Apparently, the state of Ohio, the American Osteopathic Association, and other professional and regulatory bodies do not see a problem with Tenpenny’s performance in the Ohio House of Representatives.

The American Medical Association (AMA) recognizes that medical evidence in legal and administrative proceedings is critical, and that physicians have a duty to assist.[9] Testifying for a legislative committee would certainly qualify for a legal proceeding. Testifying is the practice of medicine, and physicians who testify must do so “honestly,” with “continuous self-examination to ensure that their testimony represents the facts of the case,” and “only in areas in which they have appropriate training and recent, substantive experience and knowledge.”[10] The AMA Ethical Guidelines further provide that a testifying physician has a responsibility to ensure that his or her testimony “reflects current scientific thought and standards of care that have gained acceptance among peers in the relevant field.”[11]

Perhaps most important, the AMA Ethical Guidelines specify that medical societies and medical licensing boards are responsible for maintaining high standards for medical testimony, and must assess “claims of false or misleading testimony.” When the testimony is false or misleading, these bodies should discipline the offender “as appropriate.”[12]

Where are the adults in the room?

[1] Josh K. Elliott, “GOP’s Marjorie Taylor Greene regrets being ‘allowed’ to believe hoaxes,” Global News Canada (Feb. 4, 2021).

[2] See, e.g., Catherine D. Tan, “Defending ‘snake oil’: The preservation of contentious knowledge and practices,” 51 Social Studies of Science 538 (2021).

[3] Sheryl Gay Stolberg & Davey Alba, “Surgeon General Assails Tech Companies Over Misinformation on Covid-19,” N.Y. Times (July 15, 2021).

[4] Vivek H. Murthy, Health Misinformation: The U.S. Surgeon General’s Advisory on

Building a Healthy Information Environment (2021).

[5] The Associated Press, “Biden Slams Social Media Companies for Pandemic Misinformation,” N.Y. Times (July 16, 2021).

[6] Jonathan Jarry, “A Dozen Misguided Influencers Spread Most of the Anti-Vaccination Content on Social Media: The Disinformation Dozen generates two thirds of anti-vaccination content on Facebook and Twitter,” McGill Univ. Office for Science & Soc’y (Mar. 31, 2021).

[7] Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009).

[8] Andrea Salcedo, “A doctor falsely told lawmakers vaccines magnetize people: ‘They can put a key on their forehead. It sticks.’,” Wash. Post (June 9, 2021); Andy Downing, “What an exceedingly dumb time to be alive,” Columbus Alive (June 10, 2021); Jake Zuckerman, “She says vaccines make you magnetized. This West Chester lawmaker invited her testimony, chair says,” Ohio Capital Journal (July 14, 2021).

[9] A.M.A. Code of Medical Ethics Opinion 9.7.1.

[10] Id.

[11] Id.

[12] Id.

Posted in Expert Witness Hall of Shame, Expert Witnesses, Public Nuisances, Scientific Misconduct | 1 Comment »

Carl Cranor’s Inference to the Best Explanation

February 12th, 2021

Carl Cranor pays me the dubious honor of quoting my assessment of weight of the evidence (WOE) pseudo-methodology as used by lawsuit industry expert witnesses, in one of his recent publications:

“Take all the evidence, throw it into the hopper, close your eyes, open your heart, and guess the weight. You could be a lucky winner! The weight of the evidence suggests that the weight-of-the-evidence (WOE) method is little more than subjective opinion, but why care if it helps you to get to a verdict!”[1]

Cranor’s intent was to deride my comments, but they hold up fairly well. I have always maintained that if were wrong, I would eat my words, but that they will be quite digestible. Nothing to eat here, though.

In his essay in the Public Affairs Quarterly, Cranor attempts to explain and support his advocacy of WOE in the notorious case, Milward, in which Cranor, along with his friend and business partner, Martyn Smith, served as partisan, paid expert witnesss.[2] Not disclosed in this article is that after the trial court excluded the opinions of Cranor and Smith under Federal Rule of Evidence 702, and plaintiff appealed, the lawsuit industry, acting through The Council for Education and Research on Toxics (CERT) filed an amicus brief to persuade the Court of Appeals to reverse the exclusion. The plaintiffs’ counsel, Cranor and Smith, and CERT failed to disclose that CERT was founded by the two witnesses, Cranor and Smith, whose exclusion was at issue.[3] Many of the lawsuit industry’s regular testifiers were signatories, and none raised any ethical qualms about the obvious conflict of interest, or the conspiracy to pervert the course of justice.[4]

Cranor equates WOE to “inference to the best explanation,” which reductively strips science of its predictive and reproducible nature. Readers may get the sense he is operating in the realm of narrative, not science, and they would be correct. Cranor goes on to conflate WOE methodology with “diagnostic induction,” and “differential diagnosis.”[5] The latter term is well understood in both medicine and in law to involve the assessment of an individual patient’s condition, based upon what is already known upon good and sufficient bases. The term has no accepted or justifiable meaning for assessing general causation. Cranor’s approach would pretermit the determination of general causation by making the disputed cause a differential.

Cranor offers several considerations in support of his WOE-ful methodology. First, he notes that the arguments for causal claims are not deductive. True, but indifferent as to his advocacy for WOE and inference to the best explanation.

Second, Cranor describes a search for relevant evidence once the scientific issue (hypothesis?) is formulated. Again, there is nothing unique about this described step, but Cranor intentionally leaves out considerations of validity, as in extrapolations between high and low dose, or between species. Similarly, he leaves out considerations of validity of study designs (such as whether any weight would be given to case studies, cross-sectional, or ecological studies) or of validity of individual studies.

Cranor’s third step is the formulation of a “sufficiently complete range of reasonable and plausible explanations to account for the evidence.” Again, nothing unique here about WOE, except that Cranor’s WOE abridges the process by ignoring the very real possibility that we do not have the correct plausible explanation available.

Fourth, according to Cranor, scientists rank, explicitly or implicitly, the putative “explanations” by plausibility and persuasiveness, based upon the evidence at hand, in view of general toxicological and background knowledge.[6] Note the absence of consideration of the predictive abilities of the competing explanations, or any felt need to assess the quality of evidence or the validity of study design.

For Cranor, the fifth consideration is to use the initial plausibility assessments, made on incomplete understanding of the phenomena, and on incomplete evidence, to direct “additionally relevant /available evidence to separate founded explanations from less well-founded ones.” Obviously missing from Cranor’s scheme is the idea of trying to challenge or test hypotheses severely to see whether withstand such challenges.

Sixth, Cranor suggests that “all scientifically relevant information” should be considered in moving to the “best supported” explanation. Because “best” is determined based upon what is available, regardless of the quality of the data, or the validity of the inference, Cranor rigs his WOE-ful methodology in favor of eliminating “indeterminate” as a possible conclusion.

In a seventh step, Cranor points to the need to “integrate, synthesize, and assess or evaluate,” all lines of “available relevant evidence.” There is nothing truly remarkable about this step, which clearly requires judgment. Cranor notes that there can be convergence of disparate lines of evidence, or divergence, and that some selection of “lines” of evidence may be endorsed as supporting the “more persuasive conclusion” of causality.[7] In other words, a grand gemish.

Cranor’s WOE-ful approach leaves out any consideration of random error, or systematic bias, or data quality, or study design. The words “bias” and “confounding” do not appear in Cranor’s essay, and he erroneously discusses “error” and “error rates,” only to disparage them as the machinations of defense lawyers in litigation. Similarly, Cranor omits any serious mention of reproducibility, or of the need to formulate predictions that have the ability to falsify tentative conclusions.

Quite stridently, Cranor insists that there is no room for any actual weighting of study types or designs. In apparent earnest, Cranor writes that:

“this conclusion is in accordance with a National Cancer Institute (NCI) recommendation that ‘there should be no hierarchy [among different types of scientific methods to determine cancer causation]. Epidemiology, animal, tissue culture and molecular pathology should be seen as integrating evidences in the determination of human carcinogenicity.”[8]

There is much whining and special pleading about the difficulty, expense, and lack of statistical power of epidemiologic studies, even though the last point is a curious backdoor endorsement of statistical significance. The first two points ignore the availability of large administrative databases from which large cohorts can be identified and studied, with tremendous statistical power. Case-control studies can in some instances be assembled quickly as studies nested in existing cohorts.

As I have noted elsewhere,[9] Cranor’s attempt to level all types of evidence starkly misrepresents the cited “NCI” source, which is not at all an NCI recommendation, but rather a “meeting report” of a workshop of non-epidemiologists.[10] The cited source is not an official pronouncement of the NCI, the authors were not NCI scientists, and the NCI did not sponsored the meeting. The meeting report appeared in the journal Cancer Research as a paid advertisement, not in the NCI’s Journal of the National Cancer Institute as a scholarly article:

“The costs of publication of this article were defrayed in part by the payment of page charges. This article must therefore be hereby marked advertisement in accordance with 18 U.S.C. Section 1734 solely to indicate this fact.”[11]

Tellingly, Cranor’s deception was relied upon and cited by the First Circuit, in its Milward, decision.[12] The scholarly fraud hit its mark. As a result of Cranor’s own dubious actions, the Milward decision has both both ethical and scholarship black clouds hovering over it.  The First Circuit should withdraw the decision as improvidently decided.

The article ends with Cranor’s triumphant view of Milward,[13] which he published previously, along with the plaintiffs’ lawyer who hired him.[14] What Cranor leaves out is that the First Circuit’s holding is now suspect because of the court’s uncritical acceptance of Cranor’s own misrepresentations and CERT’s omissions of conflict-of-interest disclosures, as well as the subsequent procedural history of the case. After the Circuit reversed the Rule 702 exclusions, and the Supreme Court denied the petition for a writ of certiorari, the case returned to the federal district court, where the defense lodged a Rule 702 challenge to expert witness opinion that attributed plaintiff’s acute promyelocytic leukemia to benzene exposure. This specific causation issue was not previously addressed in the earlier proceedings. The trial court sustained the challenge, which left the plaintiff unable to show specific causation. The result was summary judgment for the defense, which the First Circuit affirmed on appeal.[15] The upshot of the subsequent proceedings, with their dispositive ruling in favor of the defense on specific causation, is that the earlier ruling on general causation is no longer necessary to the final judgment, and not the holding of the case when all the proceedings are considered.

In the end, Cranor’s WOE leaves us with a misdirected search for an “explanation of causation,” rather than a testable, tested, reproducible, and valid “inference of causation.” Cranor’s attempt to invoke the liberalization of the Federal Rules of Evidence ignores the true meaning of “liberal” in being free from dogma and authority. Evidence does not equal eminence, and expert witnesses in court must show their data and defend their inferences, whatever their explanations may be.

——————————————————————————————————–

[1]  Carl F. Cranor, “How Courts’ Reviews of Science in Toxic Tort Cases Have Changed and Why That’s a Good Thing,” 31 Public Affairs Q. 280 (2017), quoting from Schachtman, “WOE-fully Inadequate Methodology – An Ipse Dixit by Another Name” (May 1, 2012).

[2]  Milward v. Acuity Specialty Products Group, Inc., 639 F. 3d 11 (1st Cir. 2011), cert. denied, 132 S.Ct. 1002 (2012).

[3]  See “The Council for Education and Research on Toxics” (July 9, 2013).

[4] Among the signatures were Nachman Brautbar, David C. Christiani, Richard W. Clapp, James Dahlgren, Arthur L. Frank, Peter F. Infante, Philip J. Landrigan, Barry S. Levy, David Ozonoff, David Rosner, Allan H. Smith, and Daniel Thau Teitelbaum.

[5]  Cranor at 286-87.

[6]  Cranor at 287.

[7]  Cranor at 287-88.

[8]  Cranor at 290.

[9]  “Cranor’s Defense of Milward at the CPR’s Celebration” (May 12, 2013).

[10]  Michelle Carbone, Jack Gruber, and May Wong, “Modern criteria to establish human cancer etiology,” 14 Semin. Cancer Biol. 397 (2004).

[11]  Michele Carbone, George Klein, Jack Gruber and May Wong, “Modern Criteria to Establish Human Cancer Etiology,” 64 Cancer Research 5518 (2004).

[12]  Milward v. Acuity Specialty Products Group, Inc., 639 F. 3d 11, 17 (1st Cir. 2011) (“when a group from the National Cancer Institute was asked to rank the different types of evidence, it concluded that ‘[t]here should be no such hierarchy’.”), cert. denied, 132 S.Ct. 1002 (2012).

[13]  Cranor at 292.

[14]  See “Wake Forest Publishes the Litigation Industry’s Views on Milward” (April 20, 2013).

[15]  Milward v. Acuity Specialty Products Group, Inc., 969 F. Supp. 2d 101 (D. Mass. 2013), aff’d sub nom. Milward v. Rust-Oleum Corp., 820 F.3d 469 (1st Cir. 2016).

Posted in Causation, Conflicts of Interest, Public Nuisances, Scientific Evidence, Scientific Misconduct, Systemic Bias | 1 Comment »

A TrumPence for Your Thoughts

November 21st, 2020

Trigger Warning: Political Rant

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

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

♂, ♀, ✳, †, ∞

Person, woman, man, camera, TV

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post-Script

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

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

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

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

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

All, singing while dancing in a circle conga line:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Plague and Quackery Right & Left

June 19th, 2020

Earlier this week, the U.S. Food and Drug Administration announced the revocation of its emergency use authorization for chloroquine and hydroxychlorine (HCQ).[1] The FDA had originally granted the emergency use authorization for HCQ, on March 28, 2020, but its continued review found that the drug was “unlikely to be effective at treating COVID-19” and the potential risks of HCQ use outweigh any potential benefits. The Agency action was in line with the evolving standard of care for COVID-19, and the available evidence from clinical trials. The medical community applauded, but the Trump Administration, which had been stockpiling HCQ, labeled the revocation as “a Deep State blindside by bureaucrats who hate the administration they work for more than they’re concerned about saving American lives.”[2]

For weeks, Donald John Trump, the short-fingered vulgarian, the Orange Man, the loser of the 2016 popular vote, the Narcissist-in-Chief of the United States, has been hawking the anti-malarial medication HCQ as a potential therapy for COVID-19. Trump’s first public endorsement of HCQ came on March 19, 2020, after its use had been thoroughly scientifically vetted for a few days by talking heads at Fox News.[3] Foxy Laura Ingraham interviewed lawyer Gregory Rigano, author of one of the HCQ papers, who announced to Laura that HCQ can “just get rid of [the virus] completely.”

On April 24, the FDA “issued an alert warning doctors against prescribing the drug for COVID-19 outside of hospitals and research settings because of the risks of serious side effects and death.” Although Trump may be stupid, he is strong and resolute. On May 18, 2020, the nominal President of the United States, announced that he is taking hydroxychloroquine (HCQ), an anti-malaria medication that he had been hyping for months as a potential treatment for COVID-19.[4] When pressed for why he was taking HCQ for prophylaxis, Trump explained his basis:

“Here we go. Are you ready? Here’s my evidence. I get a lot of positive calls about it.”

Although Drs. Anthony Fauci and Deborah Birx have clearly explained that there was insufficient evidence to conclude that HCQ was efficacious in treating COVID-19, and no evidence that HCQ was preventative, Agent Orange followed the playbook he inherited early in life from Roy Cohen: never apologize, never acknowledge you have been wrong, just change the conversation.[5]

Trump’s embrace of HCQ was peculiar in the face of his usual disregard for prophylactics. Of course, Agent Orange’s advocacy for HCQ arose in the context of another lie: virus denial. Trump acolyte Rush Limbaugh has asseverated that the viral agent behind COVID-19 is

“‘the common cold’ that’s being ‘weaponized’ against Trump.”

* * * * * * * * * * * * * * * * * * * * * * * *

“Now, I want to tell you the truth about the coronavirus. … Yeah, I’m dead right on this. The coronavirus is the common cold, folks.”[6]

In the United Kingdom, men who have contributed greatly to an activity and who have gained national and international respect are knighted by the Queen and become Knight Commanders of the Most Excellent Order of the British Empire. In the United States, the President awards the National Medal of Freedom. During this year’s state-of-the-union address, Trump, while ignoring warnings of the COVID-19 pandemic, awarded the Medal to master trash-talker Rush Limbaugh. Remarkably, the toxicity of Agent Orange is manifested in support for both virus denial and for a bogus therapy.

Evidence is never really necessary for opinion, as Trump has taught us. For his endorsement of HCQ, Trump has, however, the opinion of “experts,” at the Association of American Physicians & Surgeons (AAPS). The AAPS has been stridently championing the cause of HCQ with what can be called only scientific propaganda,[7] including the debunked study by Didier Raoult, which has drawn a statement of concern from the scientific group, International Society of Antimicrobial Chemotherapy (ISAC), which publishes the journal in which Raoult’s results appeared.[8] The AAPS also relied upon claims made Vladimir Zelenko about 1,554 patients, for which he had “published no data, described no study design, and reported no analysis.” And since no quackfest would be complete without hard evidence from Mehmet Cengiz Öz, commonly known as Dr. Oz, the AAPS has dutifully reported that Oz had two patients to whom he gave HCQ, and both survived.

The HCQ issue is not the AAPS’s first quack rodeo. Those who follow the organization will sense déjà vu.[9] A sampler of AAPS’ scientific contributions to public policy debates include:

Abortion and Breast Cancer. The AAPS, on shoddy evidence, jumped on the issue whether abortion causes breast cancer, in 2002, to equate abortion for a teenager as “child abuse,” because the procedure will cause a “30% risk of breast cancer in her lifetime.” The AAPS ignored better and fairly definitive evidence of no association.

Vaccination and Austim. The AAPS has unrepentantly engaged in anti-vaccination propaganda. While acknowledging the scientific consensus against the claim that vaccines cause autism, the group raised hyperbolic doubts and threw itself in with conspiracy theorists to oppose mandatory vaccination.[10] When a measles outbreak occurred in Florida, in 2015, the AAPS issued a news release that “linked” autism with the measles vaccine.

HIV and AIDS. Despite the careful and well-documented conclusion of the National Academy of Science, in 1988, that AIDS was caused by a virus, HIV, the AAPS remains unconvinced. As recently as 2015, the AAPS, through its Executive Director Jane Orient, has questioned the connection and the standard-of-care treatment for HIV infection.

Barak Obama and Hypnotic Induction. In 2008, the AAPS website published an article that condemned Obama’s use of covert hypnotic techniques, which the group traced to Milton H. Erickson’s so-called neurolinguistic programming. The AAPS cited to “An Examination of Obama’s Use of Hidden Hypnosis Techniques in His Speeches,” a 67-page, unpublished, unsigned manuscript, on a right-wing conspiracy website, which no longer seems to have this masterpiece. Fortunately, the “proof” is still available online.

If the AAPS appears to trade in all manner of scientific quackery with a distinctive Republican flavor, then you will not be surprised that its General Counsel is Andrew Schafly, son of the late Phyllis Schafly (1924-2016). Mom was the Grand Dame of the know-nothing Republican party after she helped kill off the Nelson Rockefeller wing of the G.O.P.

Under Andrew Schafly’s deft legal guidance, the AAPS sued the FDA,[11] on June 2, 2020 to end “its arbitrary interference with the use of hydroxychloroquine.”[12] Schafly proudly cited his support for HCQ, which President Trump and other world leaders have taken as a prophylaxis against COVID-19.

The June 2nd AAPS Press Release generously cites and quotes Andrew Schafly’s pronouncements that

“that if everyone [sic] was allowed to take hydroxychloroquine, there would be no need for any social distancing or restrictions on mass gatherings”

and

“Entrenched, politically biased officials at the FDA should not be allowed to interfere with Americans’ right to access medication donated to the federal government for public use. … By preventing Americans’ use of HCQ as a prophylaxis, the FDA is infringing on First Amendment rights to attend religious services or participate in political events such as political conventions, town halls, and rallies in an important election year.”[13]

The litigious Mr. Schafly claims that “[t]here is no legal or factual basis for the FDA to limit use of HCQ,” and that the agency’s restrictions on HCQ are indefensible. The FDA was unmoved and proceeded yesterday to remove its emergency use authorization for HCQ.

We really did not need a plague to learn that Don Trumpolino and his acolytes were liars and buffoons. Still, the plague was, like so many other events, a great Rorschach epistemic test about care for the truth. In the 1980s, I thought that the toxicity of Agent Orange was exaggerated, but now that the theocons have dropped this weaponized Russian Agent Orange on the White House, I see that I was wrong. The entire country is suffering post-trumpatic stress disorder. We have all stepped in Tweety Turd. But why does truth have to be the first casualty?

The plague has, however, revealed the tenuous connection many United States citizens have with the truth. For anyone who has toiled in the American litigation stables, fragility of respect for truth is a given. Kurt Andersen’s book Fantasyland shows how exceptional Americans are when it comes to cults, conspiracies, fanaticism, fantasies, superstitions, and the like.[14] Andersen makes the point that more cults and new religions are spawned in the USA than in Europe or any else. No surprise then, when Andrew Wakefield was run out of the U.K., he found a warm embrace in the USA from RFK Jr. and Jenny McCarthy. Maybe the truth, small t, never had a chance in the United States, the land of Truth, big T, with its conspiracies and unbounded credulity.

Is American exceptionalism just another instance of the American public’s credulity? I would like to believe that our exceptionalism is real and tied to our great principles and the implicit promise that someday the promise of those principles will be kept.[15] Today, American exceptionalism looks more like an excuse to avoid our own Vergangenheitsbewältigung over slavery and genocide. We have an entrenched minority who adore the Confederacy and its pantheon of losers, traitors, and racists.

Even so, there are traps of untruthfulness on the left, as we see in the New Woke Times’ reinventing history to make slavery into an abuse of capitalism, when in fact slavery was the ultimate alienation of human beings from their labor through force, feudalism, and religion. Apologists for Southern chattel slavery criticized Northern “free labor” capitalism, but woke scholarship finds this inconvenient. Today, facts seem disposable on the left as well, with much needed calls for racial justice and police reform, larded down with virtue signaling and hand-waving excuse mongering for looting and failure to insist that all people stop resisting arrest. These are tough times for the truth.

[1]  FDA Press Release, “Coronavirus (COVID-19) Update: FDA Revokes Emergency Use Authorization for Chloroquine and Hydroxychloroquine” (June 15, 2020); Molly Walker, “HCQ No Longer Approved Even a Little for COVID-19 – Study after study showed no benefit, and now the FDA has had enough,” MedPage Today (June 15, 2020).

[2]  Sheryl Gay Stolberg, “A Mad Scramble to Stock Millions of Malaria Pills, Likely for Nothing,” N.Y. Times (June 16, 2020) (quoting Trump’s Trade Advisor Peter Navarro). Curiously, the Administration has ignored the emerging potentially good news about the efficacy of dexamethasone in treating seriously ill COVID-19 patients, as shown in a randomized clinical trial, which is not yet peer reviewed and published. Benjamin Mueller & Roni Caryn Rabin, “Common Drug Reduces Coronavirus Deaths, Scientists Report,” N.Y. Times (June 16, 2020).

[3]  Philip Bump, “The rise and fall of Trump’s obsession with hydroxychloroquine – Forty days of promotion, hype – and eventual retreat,” Wash. Post (April 24, 2020).

[4]  “Remarks by President Trump in a Roundtable with Restaurant Executives and Industry Leaders” (May 18, 2020).

[5]   Andrew Solender, “All The Times Trump Has Promoted Hydroxychloroquine” Forbes (May 22, 2020).

[6]   Allyson Chiu, “Rush Limbaugh on coronavirus: ‘The common cold’ that’s being ‘weaponized’ against Trump,” Wash. Post (Feb. 25, 2020); See also “The corona virus is the common cold”; “Rush Limbaugh: coronavirus a ‘common cold’ being ‘weaponised’ against Trump,” The Guardian (Feb. 25, 2020). See generally Anthony Bardon, “Science Denial,” chap. 2, in The Truth About Denial: Bias and Self-Deception in Science, Politics, and Religion (2019) (exploring the role of cognitive dissonance, motivated reasoning, and confirmation bias, in science denialism).

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

[8]   The ISAC reported that Raoult’s work “does not meet the Society’s expected standard,” and that the ISAC was concerned “regarding the content, the ethical approval of the trial and the process that this paper underwent.”

[9]  David Gorski, “The Association of American Physicians and Surgeons: Ideology trumps science-based medicine,” Science-Based Med. (June 23, 2008).

[10]   AAPS, “Statement on Federal Vaccine Mandates” (Feb. 26, 2019).

[11]   The AAPS complaint is available at its website: http://aapsonline.org/judicial/aaps-v-fda-hcq-6-2-2020.pdf

[12]   “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine,” AAPS (June 2, 2020).

[13]    Id.

[14]  Kurt Andersen, Fantasyland: How America Went Haywire – A 500-Year History (2017).

[15]  See, e.g., People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811) (Kent, C.J.) (holding that common law of crime prohibited blasphemy but only for blasphemy against Chancellor Kent’s own religious superstitions).

Posted in Public Nuisances, Scientific Evidence | Comments Off on The Plague and Quackery Right & Left

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