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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 »

Center for Truth in Science

February 2nd, 2021

The Center for Truth in Science

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

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

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

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

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

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

Susan Haack on Judging Expert Testimony

December 19th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3]  Haack at 21.

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

[5]  Haack at 21.

[6]  Haack at 22.

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

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

[9]  Haack at 23.

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

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

[12]  Haack at 24.

[13]  Haack at 24.

[14]  Haack at 25.

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

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

Is Your Daubert Motion Racist?

July 17th, 2020

In this week’s New York Magazine, Jonathan Chait points out there is now a vibrant anti-racism consulting industry that exists to help white (or White?) people to recognize the extent to which their race has enabled their success, in the face of systematic inequalities that burden people of color. Chait acknowledges that some of what this industry does is salutary and timely, but he also notes that there are disturbing elements in this industry’s messaging, which is nothing short of an attack on individualism as racist myth that ignores that individuals are subsumed completely into their respective racial group. Chait argues that many of the West’s most cherished values – individualism, due process, free speech and inquiry, and the rule of law – are imperiled by so-called “radical progressivism” and “identity politics.”[1]

It is hard to fathom how anti-racism can collapse all identity into racial categories, even if some inarticulate progressives say so. Chait’s claim, however, seems to be supported by the Smithsonian National Museum of African American History & Culture, and its webpages on “Talking about Race,” which provides an extended analysis of “whiteness,” “white privilege,” and the like.

On May 31, 2020, the Museum’s website published a graphic that presented its view of the “Aspects & Assumptions of Whiteness and White Culture in the United States,” which made many startling claims about what is “white,” and by implication, what is “non-white.” [The chart is set out below.] I will leave it to the sociologists, psychologists, and anthropologists to parse the discussion of “white-dominant culture,” and white “racial identity,” provided in the Museum’s webpages. In my view, the characterizations of “whiteness” were overtly racist and insulting to all races and ethnicities. As Chait points out, with an abundance of irony, Donald Trump would seem to be the epitome of non-white, by his disavowal of the Museum’s identification of white culture’s insistence that “hard work is the key to success.”

The aspect of the graphic summary of whiteness, which I found most curious, most racist, and most insulting to people of all colors and ethnicities, is the chart’s assertion that white culture places “Emphasis on the Scientific Method,” with its valuation of “[o]bjective, rational linear thinking; “[c]ause and effect relationships”; and “[q]uantitative emphasis.” The implication is that non-whites do not emphasize or care about the scientific method. So scientific method, with its concern over validity of inference, and ruling out random and systematic errors, is just white privilege, and a microaggression against non-white people.

Really? Can the Smithsonian National Museum of African American History & Culture really mean that scientific punctilio is just another manifestation of racism and cultural imperialism. Chait seems to think so, quoting Glenn Singleton, president of Courageous Conversation, a racial-sensitivity training firm, who asserts that valuing “written communication over other forms” is “a hallmark of whiteness,” as is “scientific, linear thinking. Cause and effect.”

The Museum has apparently removed the graphic from its website, in response to a blitz of criticism from right-wing media and pundits.[2]  According to the Washington Post, the graphic has its origins in a 1978 book on White Awareness.[3] In response to the criticism, museum director Spencer Crew apologized and removed the graphic, agreeing that “it did not contribute to the discussion as planned.”[4]

The removal of the graphic is not really the point. Many people will now simply be bitter that they cannot publicly display their racist tropes. More important yet, many people will continue to believe that causal, rational, linear thinking is white, exclusionary, and even racist. Something to remember when you make your next Rule 702 motion.

   

[1]  Jonathan Chait, “Is the Anti-Racism Training Industry Just Peddling White Supremacy?” New York Magazine (July 16, 2020).

[2]  Laura Gesualdi-Gilmore “‘DEEPLY INSULTING’ African American museum accused of ‘racism’ over whiteness chart linking hard work and nuclear family to white culture,” The Sun (Jul 16 2020); “DC museum criticized for saying ‘delayed gratification’ and ‘decision-making’ are aspects of ‘whiteness’,” Fox News (July 16, 2020) (noting that the National Museum of African American History and Culture received a tremendous outcry after equating the nuclear family and self-reliance to whiteness); Sam Dorman, “African-American museum removes controversial chart linking ‘whiteness’ to self-reliance, decision-making The chart didn’t contribute to the ‘productive conversation’ they wanted to see,” Fox News (July 16, 2020); Mairead McArdle, “African American History Museum Publishes Graphic Linking ‘Rational Linear Thinking,’ ‘Nuclear Family’ to White Culture,” Nat’l Rev. (July 15, 2020).

[3]  Judy H. Katz, White Awareness: Handbook for Anti-Racism Training (1978).

[4]  Peggy McGlone, “African American Museum site removes ‘whiteness’ chart after criticism from Trump Jr. and conservative media,” Wash. Post (July 17, 2020).

Posted in Causation, Cognitive Biases, Rule 702, Scientific Evidence | Comments Off on Is Your Daubert Motion Racist?

Sharpiegate – Trump’s Assault on Scientific Expertise

July 10th, 2020

Trump lies so often, so irresponsibly, so ruthlessly, that the American people have become numb to the assault on truth. Remarkably, Trump’s lies are frequently casual, random, non-ideological, and wanton. When the lies are about scientifically verifiable processes and outcomes, the lies are particularly reprehensible because they further dumb the American people’s shaky aptitude for scientific discourse.

Take Trump’s lie last September that Hurricane Dorian would hit Alabama much harder than had been anticipated. Thousands of lies later, perhaps only a few may remember the doctored weather map, on which a falsified projection had been drawn with a sharpie pen, to suggest that the hurricane was moving towards southeastern Alabama. A few days later, the National Oceanic and Atmospheric Administration (NOAA) issued a statement that purported to support Trump’s bogus forecast.[1]

Now, almost a year later, the Inspector General for the Commerce Department, Peggy Gustafson, has issued a report that lambasts the White House (Trump and cronies) for pressuring the NOAA into issuing its unscientific, unsupportable statement.[2] The Inspector General found that the NOAA had politicized a straightforward scientific assessment, backed the Trumpian forecast, criticized the agency’s own scientists, and eroded public trust in the agency, by succumbing to pressure from the White House.

Of course, 40 percent of the United States’ electorate will not care, as long as they have their theocracy. Ms. Gustafson’s days are numbered, even as the End Times draw nigh for Trump. You may not need a weatherman to know which way the blows, but you do if you want to know which way the wind will blow.

Remember, that 40 percent could be on your jury. And there may be another 40% that blows the other way. Sharpiegate is a poignant reminder that abuse of science occurs in all three branches of government.

[1]  Andrew Freedman & Jason Samenow, “Investigation rebukes Commerce Department for siding with Trump over forecasters during Hurricane Dorian: Report confirms Commerce officials responded to orders from the White House,” Wash. Post (July 9, 2020).

[2]  Gustafson, Evaluation of NOAA’s September 6, 2019, Statement about Hurricane Dorian Forecasts (June 26, 2019).

Posted in Scientific Evidence, Scientific Misconduct | Comments Off on Sharpiegate – Trump’s Assault on Scientific Expertise

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

ACGIH TLVs Lack Scientific Integrity & Transparency – The Mica NIC

June 2nd, 2020

The American Conference of Governmental Industrial Hygienists (ACGIH®) is a non-profit corporation established in 1938, to advance occupational and environmental health.  The corporation’s motto, included in its logo, hubristically announces:  “Defining the Science of Occupational and Environmental Health.”

Philosophers of science may demur from “the” in “the Science,” as well as from the intellectual arrogance in suggesting that this private organization has any such ability to commandeer the complex social nature of scientific knowledge. And yet, in the small area of setting permissible exposure limits to potential environmental or occupational toxic substances, the ACGIH is in the business of “defining” safety. Starting in 1941, the group started to review and recommend “exposure limits.” In 1956, the group coined (literally and figuratively) the term “threshold limit values” (TLVs®), and started to publish documentation for its recommended values.

From the beginning, the ACGIH has asserted that TLVs® are not standards; rather they are guidelines for use, with other information, in determining safe levels of workplace and environmental exposure. The ACGIH maintains that its TLVs are based upon published, peer-reviewed scientific studies in industrial hygiene, toxicology, occupational medicine, and epidemiology, without consideration for economic or technical feasibility.

Beginning in the 1980s, “the Lobby”[1] started to throw brushback pitches at the ACGIH to bully the organization out of positions that the Lobby thought were too comforting to manufacturing industry.[2]  The result was a dramatic shift in the ACGIH’s perspective. The bullying created a “white-hat” bias that operates as a one-way ratchet to push the ACGIH always to lower TLVs, regardless whether there was a scientific warrant for doing so. Efforts to curb ACGIH overreach by litigation have generally failed. The TLVs have becoming increasingly controversial and non-evidence-based.[3]

What follows is what a hypothetical stakeholder might submit in response to a recent ACGIH Notice of Intended change for its TLV for mica dust. Like other mineral dusts, mica when inhaled in large quantities over long time periods, causes a pneumoconiosis. Documenting a “reasonable safe” level requires studies with adequate quantification of exposure. I will leave the reader to decide whether the ACGIH has that evidence in hand, based upon the following.

[1]  F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997); see “The Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research” (Feb. 19, 2013).

[2]  Barry I. Castleman & Grace E. Ziem, “Corporate influence on threshold limit values,” 13 Am. J. Indus.  Med. 531 (1988); Grace Ziem & Barry I. Castleman, “Threshold limit values: historical perspectives and current practice,” 31 J. Occup. Med. 910 (1989); S.A. Roach & S.M. Rappaport, “But they are not thresholds:  a critical analysis of the documentation of Threshold Limit Values,” 17 Am. J. Indus. Med. 727 (1990).

[3]  Philip E. Karmel, “The Threshold Limit Values Controversy,” N.Y. L. J. (Jan. 3, 2008).

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

These comments are in response to the proposed change in the ACGIH® TLV® for Mica, as explained in the ACGIH “Mica: TLV® Chemical Substances Draft Documentation, Notice of Intended Change” (“NIC”).  For the reasons stated below, the change in the Mica TLV-TWA (time-weighted average) in the NIC is not warranted and the existing Mica TLV should not be changed.

The ACGIH® TLVs® are important non-governmental standards, largely because a number of government entities incorporate TLVs by reference into regulations and thus give TLVs the force of law.[4]  For example, some states and Canadian provinces simply adopt TLVs as state or provincial occupational exposures levels, and some states have established “maximum allowable ambient concentrations” or similar limits on “toxic air contaminants” based entirely or in part on TLVs.  The U.S. Mine Safety and Health Administration (MSHA) uses the 1973 ACGIH TLV for crystalline silica (quartz) as a legally enforceable permissible exposure level.[5]  The U.S. Occupational Health and Safety Administration (OSHA) Hazard Communication Standard requires that ACGIH TLVs be disclosed in required Safety Data Sheets.  The process by which the ACGIH develops TLVs is critically important, and furthermore, given the regulatory and legal significance of the ACGIH TLVs, the ACGIH has the burden to support proposed changes in TLVs by an adequate process, which includes transparency and evidence sufficient to support any proposed change.

The flaws in the ACGIH TLV setting process are well known and the subject of several publications, most recently in paper titled “142 ACGIH Threshold Limit Values® established from 2008-2018 lack consistency and transparency.”

The following specific comments address the ACGIH’s process disclosed in the ACGIH’s NIC in support of its proposed change for the TLV-TWA for mica, which illustrate the process problem — the ACGIH NIC for the proposed Mica TLV-TWA change does not support the change proposed by the ACGIH.   Again, the ACGIH TLVs have regulatory and legal significance; therefore, the ACGIH should not make TLV changes arbitrarily and capriciously.  Instead, the changes should be made pursuant to a transparent process, and the ACGIH should support the proposed changes with the weight of the available evidence, and the evidence in support of and the reasons for the proposed change should be publicly disclosed.  It has not done that in this case, and its own NIC makes it clear that it has not:

  1. There is no evidence that “mica is an important cause of disabling occupational pneumoconiosis” as stated in the NIC. 

The NIC provides no citation or other supporting evidence for this conclusion; it merely states the conclusion as “fact” and a premise for the proposed change.[6] The NIC fails to estimate the number of workers currently potentially exposed to mica in the U.S. (or elsewhere), what industries these workers work in, what forms of mica these workers may be exposed to, what levels of respirable mica these workers may be exposed to, and to what extent pneumoconiosis caused by the inhalation of respirable mica exists.[7]

  1. The NIC proposes to materially lower the TLV for mica, but, other than noting that there are “nine different major species”, does not adequately address the mineralogical differences between the different species of mica, makes no attempt to assess the potential adverse health effects for the different species of mica, does not examine the “dose-response” data (as inadequate as it is) for the different species of mica, and so on. 

The “Chemical and Physical Properties” section of the NIC suggests the wide variety of materials that fall within the general term “mica”.  In spite of this, the ACGIH appears to have ignored differences and concluded that the TLV for “mica” as a general category of substances should be applicable to all forms of mica, with no support for this conclusion in the NIC.[8]

  1. The human studies (sic) cited in the NIC are inadequate to support a decision to change the mica TLV and do not support the mica TLV proposed.

The first cited study involved four employees in a muscovite milling plant, with an alleged exposure to respirable mica (as muscovite) dust between 1.86 and 5.77 mg/m3.

The second cited study involved a (one) South African man who worked in a mica milling factory.  As noted in the NIC, “[q]uantitative exposure data were not reported.”

The third cited study involved a (one) 65-year old who worked in the rubber industry for 40 years, where he was exposed to numerous dusts, including mica.  There was no exposure data reported.

The fourth study involved a (one) 62-year old woman allegedly exposed to “pure mica” for seven years; no quantitative exposure data were available.

The NIC cites the case of a worker who bagged mica flake for 36 years.  In this case, there were, apparently, two dust samples taken – one at the time of a medical exam of the worker at age 54, total dust of 0.2 mg/m3 — and one taken 17 years earlier – 0.7 mg/m3.  The bulk mica samples disclosed 7.1% to 8.4% silica (presumably, respirable crystalline silica as quartz).  The reference to the silica content of the “bulk samples” suggests that there was no analysis of the material collected in the two air samples taken.

The NIC cites the case of two British men who worked as “grinders of imported muscovite,” one starting in 1957. The “workplace dust concentrations were not quantified.”

The next paper cited in the NIC was from 1940 and involved employees who were exposed to the dust caused by “mica-scrap” grinding.  There was actually an attempt to quantify mica exposures (the data from before 1940), but it was done by particle count.  The NIC notes that the available information regarding mica health effects may be “limited by potential uncertainty converting from mppcf (million particles per cubic foot) to mg/m3 (which might not apply to all dust exposure scenarios).”  The difficulties associated with converting from mppcf to mg/m3 are well known in the cases of minerals far more extensively studied than mica (e.g., crystalline silica as quartz).  In addition to the conversion factor issue, there are other concerns raised by relying upon a paper published in 1940 to support a TLV today, such as, the quality of the sampling, the quality of the chest x-rays, and issues with the classification of the chest x-rays.  With that said, the NIC noted that “[n]one of the workers exposed at less than 10 mppcf (1.8 mg/m3), irrespective of employment duration, developed pneumoconiosis.”

The remaining studies cited in the NIC are similar.  But, to close this section of the comments, I will refer to the last study, a study of 71 South African workers employed in mica milling.  Twelve personal and static samples were taken during the course of the study.  The results of the personal samples indicated a range of respirable dust (or was it mica?) between 0.4 to 1.68 mg/m3.  The radiologic examination disclosed that 19 of the 71 workers had changes consistent with one or more of asbestos, silica and/or mica.  “The specific dust concentrations to which the individuals presenting with lung changes were exposed were not reported.”

The ACGIH is proposing a reduction in the mica TLV based on the studies as described in the NIC.  We submit that this is a process and transparency problem – there is simply no way to conclude that a reduction in the mica TLV is warranted based on the Human Studies (the “evidence”) cited in the NIC.  In most cases, the Human Studies are simply case reports involving one, two, or a few people, with no quantitative exposure data.  The studies with exposure data are inadequate, i.e., date from before 1940, and among other things measured exposure as mppcf, with one study literally including two samples.  Given the legal and regulatory significance of ACGIH TLVs, the evidence cited in support of the change in the mica TLV, and the reasonable conclusion that can be drawn from the evidence cited, should exceed some threshold and meet some burden.  The evidence in the NIC is grossly insufficient to support the proposed change.

  1. The NIC for mica does not disclose any evidence to support the proposed TLV of a TWA of 0.1 mg/m3. 

The comparison to OSHA’s notice of proposed rulemaking for occupational exposure to respirable crystalline silica (RCS) is instructive.  The supporting documentation sets forth a preliminary quantitative risk assessment outlining life-time risks for various disease end points associated with occupational exposure to RCS at various levels.  The preliminary quantitative risk assessment disclosed all of the underlying studies and methodology, sufficient to allow a reader to understand the basis for the risk assessment conclusions and agree or disagree with the conclusions.  Based on the risks (and other factors not considered by the ACGIH) set forth in the documentation, OSHA proposed a PEL (permissible exposure level) for RCS.

By contrast, the ACGIH simply contends for its proposed mica TLV: “Consequently, a TLV-TWA of 0.1 mg/m3 measured as respirable fraction (containing no asbestos and <1% crystalline silica) is recommended.”  The materials preceding “[c]consequently”, which in normal reading would be expected to support the conclusion following, are not a risk assessment or anything similar to one, and in no way even superficially support the conclusion – the recommendation – stated.[9]  Therefore, the ACGIH proposed a TLV-TWA of 0.1. The NIC materials do not support a TLV of 0.1 mg/m3, any more than they support a TLV of 0.0001 or 10.  It cannot be stated too emphatically that the NIC is devoid of any evidence to support any TLV, including the recommended TLV-TWA of 0.1 mg/m3.

Of course, the ACGIH TLV process is not a federal rulemaking.  And readers should be aware of the ACGIH Position Statement regarding TLVs (“TLVs … are not quantitative levels of risk at different exposure levels…”). But the same Position Statement notes that “TLVs®…represent conditions under which ACGIH® believes that nearly all workers may be repeatedly exposed without adverse health effects.”  So, presumably, the ACGIH concluded that its proposed mica TLV was that level, and yet there is simply no evidence in the NIC to support that conclusion.  Given the regulatory and legal significance of TLVs, the process of establishing TLVs should have some basis in science and evidence.

References

ACGIH® TLV/BEI® Position Statement, available at: https://www.acgih.org/tlv-bei-guidelines/policies-procedures-presentations/tlv-bei-position-statement

ACGIH® TLV/BEI® Policy Statement, available at: https://www.acgih.org/tlv-bei-guidelines/policies-procedures-presentations/tlv-bei-policy-statement

30 C.F.R. § 56.5001 (MSHA exposure to airborne contaminants)

29 C.F.R. § 1910.1200 (OSHA Hazard Communications)

D. Davies & R. Cotton, “Mica pneumoconiosis,” 40 Br. J. Indus. Med. 22 (1983)

Subhabrata Moitra, “Mica pneumoconiosis: a neglected occupational lung disease – letter,” 6 The Lancet Respir. Med. e39 (2018), available at: https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(18)30178-4/fulltext

Notice of Proposed Rule Making (NPRM) for Occupational Exposure to Respirable Crystalline Silica, 56 Fed. Reg. 56273 (Sept. 12, 2013)

Knut R. Skulburg, “Mica pneumoconiosis – a literature review,” 11 Scand. J. Work & Envt’l Health 65 (1985)

Carl J. Smith & Thomas A. Perfetti, “142 ACGIH Threshold Limit Values® (TLV®s) established from 2008-2018 lack consistency and transparency,” 3 Toxicol. Research & Application 1 (2019)

[4] ACGIH states that TLVs are not intended to be legal standards, but the ACGIH recognizes the broad use of TLVs and should reasonably anticipate that TLVs will be used in ways beyond the scope of the legal disclaimers that the ACGIH publishes.

[5] 30 C.F.R. 56.5001

[6] The problems cited by Moitra — illegally operated mica mines exploiting vulnerable populations to work without protections in India and some African countries — speak to the need to eliminate illegal mining and protect vulnerable populations from exploitation, not the adequacy or inadequacy of any TLV.

[7] By comparison, see the OSHA documentation for the NPRM for Occupational Exposure to Respirable Crystalline Silica published September 12, 2013.  The citation to the 1985 Skulberg article (in “Major Sources of Exposure”) is inadequate on its face in 2020; the article summarizes world mica use from 1905-1981, and provides no information regarding use post-1981.  Likewise, the citation to the “Campaign for Safe Cosmetics” does not provide information on occupational exposure.

[8] The case of crystalline silica again provides a useful contrast.  There is no ACGIH TLV for “crystalline silica,” which as a general term includes many polymorphs.

[9] Actually, the materials that precede “consequently” explicitly refute the conclusion stated by the ACGIH (the TLV-TWA of 0.1 mg/m3) — “the published literature has established an association between mica exposure and pneumoconiosis typically at concentrations in the range of 1-6 mg/m3,”  and “no cases were observed among workers exposed to mica dusts at concentrations of 1.8 mg/m3 or less….”

Posted in Cognitive Biases, Scientific Evidence | Comments Off on ACGIH TLVs Lack Scientific Integrity & Transparency – The Mica NIC

Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent

June 2nd, 2020

The Advisory Committee notes to the year 2000 amendment to Federal Rule of Evidence 702 included a comment:

“A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a ‘seachange over federal evidence law’, and ‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system’.”[internal citation omitted]

In stating its review of the caselaw, perhaps the Committee was attempting to allay the anxiety of technophobic judges. But was the Committee also attempting to derive an “ought” from an “is”?  Before the Supreme Court decided Daubert in 1993, virtually every admissibility challenge to expert witness opinion testimony failed. The trial courts were slow to adapt and to adopt the reframed admissibility standard. As the Joiner case illustrated, some Circuits were even slower to permit trial judges the discretion to assess the validity vel non of expert witnesses’ opinions.

The Committee’s observation about the “exceptional” nature of exclusions was thus unexceptional as a description of the case law before and shortly after Daubert was decided. And even if the Committee were describing a normative view, it is not at all clear how that view should translate into a ruling in a given case, without a very close analysis of the opinions at issue, under the Rule 702 criteria. In baseball, most hitters are thrown out at first base, but that fact does not help an umpire one whit in calling a specific runner “safe” or “out.”  Nonetheless, courts have repeatedly offered the observation about the exceptional nature of exclusion as both an explanation and a justification of their opinions to admit testimony.[1] The Advisory Committee note has thus mutated into a mandate to err on the side of admissibility, as though deliberately committing error was a good thing for any judge to do.[2] First rule: courts shall not err, not intentionally, recklessly, or negligently.

Close Calls and Resolving Doubts

Another mutant offspring of the “exception, not the rule” mantra is that “[a]ny doubts regarding the admissibility of an expert’s testimony should be resolved in favor of admissibility.”[3] Why not resolve the doubts and rule in accordance with the law? Or, if doubts remain, then charge them against the proponent who has the burden of showing admissibility? Unlike baseball, in which a tie goes to the runner, in expert witness law, a tie goes to the challenger because the defender of the motion has failed to show a preponderance in favor of admissibility. A better mantra: “exclusion when it is the Rule.”

Some courts re-imagine the Advisory Committee’s about exceptional exclusions as a recommendation for admitting Rule 702 expert witness opinion testimony as a preferred outcome. Again, that interpretation reverses the burden of proof and makes a mockery of equal justice and scientific due process.

Yet another similar judicial mutation is the notion that courts should refuse Rule 702 motions when they are “close calls.”[4] Telling the litigants that the call was close might help assuage the loser and temper the litigation enthusiasms of the winner, but it does not answer the key question: Did the proponent carry the burden of showing admissibility? Residual doubts would seem to weigh against the proponent.

Not all is lost. In one case, decided by a trial court within the Ninth Circuit, the trial judge explicitly pointed to the proponent’s failure to identify his findings and methodology as part of the basis for exclusion, not admission, of the challenged witness’s opinion testimony.[5] Difficulty in resolving whether the Rule 702 predicates were satisfied worked against, not for, the proponent, whose burden it was to show those predicates.

In another case, Judge David G. Campbell, of the District of Arizona, who has participated in the Rules Committee’s deliberations, showed the way by clearly stating that the exclusion of opinion testimony was required when the Rule 702 conditions were not met:

“Plaintiffs have not shown by a preponderance of the evidence that [the expert witness’s] causation opinions are based on sufficient facts or data to which reliable principles and methods have been applied reliably… .”[6]

Exclusion followed because the absent showings were “conditions for admissibility,” and not “mere” credibility considerations.

Trust Me, I’m a Liberal

One of the reasons that the Daubert Court rejected incorporating the Frye standard into Rule 702 was its view that a rigid “general acceptance” standard “would be at odds with the ‘liberal thrust’ of the Federal Rules.”[7] Some courts have cited this “liberal thrust” as though it explained or justified a particular decision to admit expert witness opinion testimony.[8]

The word “liberal” does not appear in the Federal Rules of Evidence.  Instead, the Rules contain an explicit statement of how judges must construe and apply the evidentiary provisions:

“These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”[9]

A “liberal” approach, construed as a “let it all in” approach would be ill-designed to secure fairness, eliminate unjustifiable expense and time of trial, or lead to just and correct outcomes.  The “liberal” approach of letting in opinion testimony and let the jury guess at questions of scientific validiy would be a most illiberal result.  The truth will not be readily ascertained if expert witnesses are permitted to pass off hypotheses and ill-founded conclusions as scientific knowledge.

Avoiding the rigidity of the Frye standard, which was so rigid that it was virtually never applied, certainly seems like a worthwhile judicial goal. But how do courts go from the Justice Blackmun’s “liberal thrust” to infer a libertine “anything goes”? And why does liberal not connote seeking of the truth, free of superstitions? Can it be liberal to permit opinions that are based upon fallacious or flawed inferences, invalid studies, or cherry-picked data sets?

In reviewing the many judicial dodges that are used to avoid engaging in meaningful Rule 702 gatekeeping, I am mindful of Reporter Daniel Capra’s caveat that the ill-advised locutions used by judges do not necessarily mean that their decisions might not be completely justifiable on a carefully worded and reasoned opinion that showed that Rule 702 and all its subparts were met. Of course, we could infer that the conditions for admissibility were met whenever an expert witness’s opinions were admitted, and ditch the whole process of having judges offer reasoned explanations. Due process, however, requires more. Judges need to specify why they denied Rule 702 challenges in terms of the statutory requirements for admissibility so that other courts and the Bar can develop a principled jurisprudence of expert witness opinion testimony.

[1]  See, e.g., In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (“‘[R]ejection of expert testimony is the exception, rather than the rule,’ and we will generally permit testimony based on allegedly erroneous facts when there is some support for those facts in the record.”) (quoting Advisory Committee Note to 2000 Amendments to Rule 702); Citizens State Bank v. Leslie, No. 6-18-CV-00237-ADA, 2020 WL 1065723, at *4 (W.D. Tex. Mar. 5, 2020) (rejecting challenge to expert witness opinion “not based on sufficient facts”; excusing failure to assess factual basis with statement that “the rejection of expert testimony is the exception rather than the rule.”); In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (committing naturalistic fallacy; “[A] review of the case law … shows that rejection of the expert testimony is the exception rather than the rule.”): Frankenmuth Mutual Insur. Co. v. Ohio Edison Co., No. 5:17CV2013, 2018 WL 9870044, at *2 (N.D. Ohio Oct. 9, 2018) (quoting Advisory Committee Note “exception”); Wright v. Stern, 450 F. Supp. 2d 335, 359–60 (S.D.N.Y. 2006)(“Rejection of expert testimony, however, is still ‘the exception rather than the rule,’ Fed.R.Evid. 702 advisory committee’s note (2000 Amendments)[.] . . . Thus, in a close case the testimony should be allowed for the jury’s consideration.”) (internal quotation omitted).

[2]  Lombardo v. Saint Louis, No. 4:16-CV-01637-NCC, 2019 WL 414773, at *12 (E.D. Mo. Feb. 1, 2019) (“[T]he Court will err on the side of admissibility.”).

[3]  Mason v. CVS Health, 384 F. Supp. 3d 882, 891 (S.D. Ohio 2019).

[4]  Frankenmuth Mutual Insur. Co. v. Ohio Edison Co., No. 5:17CV2013, 2018 WL 9870044, at *2 (N.D. Ohio Oct. 9, 2018) (concluding “[a]lthough it is a very close call, the Court declines to exclude Churchwell’s expert opinions under Rule 702.”); In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (suggesting doubts should be resolved in favor of admissibility).

[5]  Rovid v. Graco Children’s Prod. Inc., No. 17-CV-01506-PJH, 2018 WL 5906075, at *13 (N.D. Cal. Nov. 9, 2018), app. dism’d, No. 19-15033, 2019 WL 1522786 (9th Cir. Mar. 7, 2019).

[6]  Alsadi v. Intel Corp., No. CV-16-03738-PHX-DGC, 2019 WL 4849482, at *4 -*5 (D. Ariz. Sept. 30, 2019).

[7]  Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579, 588 (1993).

[8]  In re ResCap Liquidating Trust Litig., No. 13-CV-3451 (SRN/HB), 2020 WL 209790, at *3 (D. Minn. Jan. 14, 2020) (“Courts generally support an attempt to liberalize the rules governing the admission of expert testimony, and favor admissibility over exclusion.”)(internal quotation omitted); Collie v. Wal-Mart Stores East, L.P., No. 1:16-CV-227, 2017 WL 2264351, at *1 (M.D. Pa. May 24, 2017) (“Rule 702 embraces a ‘liberal policy of admissibility’, under which it is preferable to admit any evidence that may assist the factfinder[.]”); In re Zyprexa Prod. Liab. Litig., 489 F. Supp. 2d 230, 282 (E.D.N.Y. 2007); Billone v. Sulzer Orthopedics, Inc., No. 99-CV-6132, 2005 WL 2044554, at *3 (W.D.N.Y. Aug. 25, 2005) (“[T]he Supreme Court has emphasized the ‘liberal thrust’ of Rule 702, favoring the admissibility of expert testimony.”).

[9]  Federal Rule of Evidence Rule 102 (“Purpose and Construction”) (emphasis added).

Posted in Evidence, Rule 702, Scientific Evidence | Comments Off on Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent

Practical Solutions for the Irreproducibility Crisis

March 3rd, 2020

I have previously praised the efforts of the National Association of Scholars (NAS) for its efforts to sponsor a conference on “Fixing Science: Practical Solutions for the Irreproducibility Crisis.” The conference was a remarkable event, with a good deal of diverse view points, civil discussion and debate, and collegiality.

The NAS has now posted a follow up to its conference, with a link to slide presentations, and to a You Tube page with videos of the presentations. The NAS, along with The Independent Institute, should be commended for their organizational efforts, and their transparency in making the conference contents available now to a wider audience.

The conference took place on February 7th and 8th, and I had the privilege of starting the event with my presentation, “Not Just an Academic Dispute: Irreproducible Scientific Evidence Renders Legal Judgments Unsafe”.

Some, but not all, of the interesting presentations that followed:

Tim Edgell, “Stylistic Bias, Selective Reporting, and Climate Science” (Feb. 7, 2020)

Patrick J. Michaels, “Biased Climate Science” (Feb. 7, 2020)

Daniele Fanelli, “Reproducibility Reforms if there is no Irreproducibility Crisis” (Feb. 8, 2020)

On Saturday, I had the additional privilege of moderating a panel on “Group Think” in science, and its potential for skewing research focus and publication:

Lee Jussim, “Intellectual Diversity Limits Groupthink in Scientific Psychology” (Feb. 8, 2020)

Mark Regnerus, “Groupthink in Sociology” (Feb. 8, 2020)

Michael Shermer, “Giving the Devil His Due” (Feb. 8, 2020)

Later on Saturday, the presenters turned to methodological issues, many of which are key to understanding ongoing scientific and legal controversies:

Stanley Young, “Prevention and Management of Acute and Late Toxicities in Radiation Oncology”

James E. Enstrom, “Reproducibility is Essential to Combating Environmental Lysenkoism”

Deborah Mayo, “P-Value ‘Reforms’: Fixing Science or Threats to Replication and Falsification?” (Feb. 8, 2020)

Ronald L. Wasserstein, “What Professional Organizations Can Do To Fix The Irreproducibility Crisis” (Feb. 8, 2020)

Louis Anthony Cox, Jr., “Causality, Reproducibility, and Scientific Generalization in Public Health” (Feb. 8, 2020)

David Trafimow, “What Journals Can Do To Fix The Irreproducibility Crisis” (Feb. 8, 2020)

David Randall, “Regulatory Science and the Irreproducibility Crisis” (Feb. 8, 2020)

Posted in Scientific Evidence, Scientific Misconduct, Scientific Publishing, statistical evidence | Comments Off on Practical Solutions for the Irreproducibility Crisis

Science Journalism – UnDark Noir

February 23rd, 2020

Critics of the National Association of Scholars’ conference on Fixing Science pointed readers to an article in Undark, an on-line popular science site for lay audiences, and they touted the site for its science journalism. My review of the particular article left me unimpressed and suspicious of Undark’s darker side. When I saw that the site featured an article on the history of the Supreme Court’s Daubert decision, I decided to give the site another try. For one thing, I am sympathetic to the task science journalists take on: it is important and difficult. In many ways, lawyers must commit to perform the same task. Sadly, most journalists and lawyers, with some notable exceptions, lack the scientific acumen and English communication skills to meet the needs of this task.

The Undark article that caught my attention was a history of the Daubert decision and the Bendectin litigation that gave rise to the Supreme Court case.[1] The author, Peter Andrey Smith, is a freelance reporter, who often covers science issues. In his Undark piece, Smith covered some of the oft-told history of the Daubert case, which has been told before, better and in more detail in many legal sources. Smith gets some credit for giving the correct pronunciation of the plaintiff’s name – “DAW-burt,” and for recounting how both sides declared victory after the Supreme Court’s ruling. The explanation Smith gives of the opinion by Associate Justice Harry Blackmun is reasonably accurate, and he correctly notes that a partial dissenting opinion by Chief Justice Rehnquist complained that the majority’s decision would have trial judges become “amateur scientists.” Nowhere in the article will you find, however, the counter to the dissent: an honest assessment of the institutional and individual competence of juries to decide complex scientific issues.

The author’s biases eventually, however, become obvious. He recounts his interviews with Jason Daubert and his mother, Joyce Daubert. He earnestly reports how Joyce Daubert remembered having taken Bendectin during her pregnancy with Jason, and in the moment of that recall, “she felt she’d finally identified the teratogen that harmed Jason.” Really? Is that how teratogens are identified? Might it have been useful and relevant for a scientific journalist to explain that there are four million live births every year in the United States and that 3% of children born each year have major congenital malformations? And that most malformations have no known cause? Smith ingenuously relays that Jason Daubert had genetic testing, but omits that genetic testing in the early 1990s was fairly primitive and limited. In any event, how were any expert witnesses supposed to rule out base-line risk of birth defects, especially given weak to non-existent epidemiologic support for the Daubert’s claims? Smith does answer these questions; he does not even acknowledge the questions.

Smith later quotes Joyce Daubert as describing the litigation she signed up for as “the hill I’ll die on. You only go to war when you think you can win.” Without comment or analysis, Smith gives Joyce Daubert an opportunity to rant against the “injustice” of how her lawsuit turned out. Smith tells us that the Dauberts found the “legal system remains profoundly disillusioning.” Joyce Daubert told Smith that “it makes me feel stupid that I was so naïve to think that, after we’d invested so much in the case, that we would get justice.”  When called for jury duty, she introduces herself as

“I’m Daubert of Daubert versus Merrell Dow … ; I don’t want to sit on this jury and pretend that I can pass judgment on somebody when there is no justice. Please allow me to be excused.”

But didn’t she really get all the justice she deserved? Given her zealotry, doesn’t she deserve to have her name on the decision that serves to rein in expert witnesses who outrun their scientific headlights? Smith is coy and does not say, but in presenting Mrs. Daubert’s rant, without presenting the other side, he is using his journalistic tools in a fairly blatant attempt to mislead. At this point, I begin to get the feeling that Smith is preaching to a like-minded choir over there at Undark.

The reader is not treated to any interviews with anyone from the company that made Bendectin, any of its scientists, or any of the scientists who published actual studies on whether Bendectin was associated with the particular birth defects Jason Daubert had, or for that matter, with any birth defects at all. The plaintiffs’ expert witnesses quoted and cited never published anything at all on the subject. The readers are left to their imagination about how the people who developed Bendectin felt about the litigation strategies and tactics of the lawsuit industry.

The journalistic ruse is continued with Smith’s treatment of the other actors in the Daubert passion play. Smith describes the Bendectin plaintiffs’ lawyer Barry Nace in hagiographic terms, but omits his bar disciplinary proceedings.[2] Smith tells us that Nace had an impressive background in chemistry, and quotes him in an interview in which he described the evidentiary rules on scientific witness testimony as “scientific evidence crap.”

Smith never describes the Daubert’s actual affirmative evidence in any detail, which one might expect in a sophisticated journalistic outlet. Instead, he described some of their expert witnesses, Shanna Swan, a reproductive epidemiologist, and Alan K. Done, “a former pediatrician from Wayne State University.” Smith is secretive about why Done was done in at Wayne State; and we learn nothing about the serious accusations of perjury on credentials by Done. Instead, Smith regales us with Done’s tsumish theory, which takes inconclusive bits of evidence, throws them together, and then declares causation that somehow eludes the rest of the scientific establishment.

Smith tells us that Swan was a rebuttal witness, who gave an opinion that the data did not rule out “the possibility Bendectin caused defects.” Legally and scientifically, Smith is derelict in failing to explain that the burden was on the party claiming causation, and that Swan’s efforts to manufacture doubt were beside the point. Merrell Dow did not have to rule out any possibility of causation; the plaintiffs had to establish causation. Nor does Smith delve into how Swan sought to reprise her performance in the silicone gel breast implant litigation, only to be booted by several judges as an expert witness. And then for a convincer, Smith sympathetically repeats plaintiffs’ lawyer Barry Nace’s hyperbolic claim that Bendectin manufacturer, Merrell Dow had been “financing scientific articles to get their way,” adding by way of emphasis, in his own voice:

“In some ways, here was the fake news of its time: If you lacked any compelling scientific support for your case, one way to undermine the credibility of your opponents was by calling their evidence ‘junk science’.”

Against Nace’s scatalogical Jackson Pollack approach, Smith is silent about another plaintiffs’ expert witness, William McBride, who was found guilty of scientific fraud.[3] Smith reports interviews of several well-known, well-respected evidence scholars. He dutifully report Professor Edward Cheng’s view that “the courts were right to dismiss the [Bendectin] plaintiffs’ claims.” Smith quotes Professor D. Michael Risinger that claims from both sides in Bendectin cases were exaggerated, and that the 1970s and 1980s saw an “unbridled expansion of self-anointed experts,” with “causation in toxic torts had been allowed to become extremely lax.” So a critical reader might wonder why someone like Professor Cheng, who has a doctorate in statistics, a law degree from Harvard, and teaches at Vanderbilt Law School, would vindicate the manufacturers’ position in the Bendectin litigation. Smith never attempts to reconcile his interviews of the law professors with the emotive comments of Barry Nace and Joyce Daubert.

Smith acknowledges that a reformulated version of Bendectin, known as  Diclegis, was approved by the Food and Drug Administration in the United States, in 2013, for treatment of  nausea and vomiting during pregnancy. Smith tells us that Joyce is not convinced the drug should be back on the market,” but really why would any reasonable person care about her view of the matter? The challenge by Nav Persaud, a Toronto physician, is cited, but Persaud’s challenge is to the claim of efficacy, not to the safety of the medication. Smith tells us that Jason Daubert “briefly mulled reopening his case when Diclegis, the updated version of Bendectin, was re-approved.” But how would the approval of Diclegis, on the strength of a full new drug application, somehow support his claim anew? And how would he “reopen” a claim that had been fully litigated in the 1990s, and well past any statute of limitations?

Is this straight reporting? I think not. It is manipulative and misleading.

Smith notes, without attribution, that some scholars condemn litigation, such as the cases involving Bendectin, as an illegitimate form of regulation of medications. In opposition, he appears to rely upon Elizabeth Chamblee Burch, a professor at the University of Georgia School of Law for the view that because the initial pivotal clinical trials for regulatory approvals take place in limited populations, litigation “serves as a stopgap for identifying rare adverse outcomes that could crop up when several hundreds of millions of people are exposed to those products over longer periods of time.” The problem with this view is that Smith ignores the whole process of pharmacovigilance, post-registration trials, and pharmaco-epidemiologic studies conducted after the licensing of a new medication. The suggested necessity of reliance upon the litigation system as an adjunct to regulatory approval is at best misplaced and tenuous.

Smith correctly explains that the Daubert standard is still resisted in criminal cases, where it could much improve the gatekeeping of forensic expert witness opinion. But while the author gets his knickers in a knot over wrongful convictions, he seems quite indifferent to wrongful judgments in civil action.

Perhaps the one positive aspect of this journalistic account of the Daubert case was that Jason Daubert, unlike his mother, was open minded about his role in transforming the law of scientific evidence. According to Smith, Jason Daubert did not see the case as having “not ruined his life.” Indeed, Jason seemed to approve the basic principle of the Daubert case, and the subsequent legislation that refined the admissibility standard: “Good science should be all that gets into the courts.”

[1] Peter Andrey Smith, “Where Science Enters the Courtroom, the Daubert Name Looms Large: Decades ago, two parents sued a drug company over their newborn’s deformity – and changed courtroom science forever,” Undark (Feb. 17, 2020).

[2]  Lawyer Disciplinary Board v. Nace, 753 S.E.2d 618, 621–22 (W. Va.) (per curiam), cert. denied, 134 S. Ct. 474 (2013).

[3] Neil Genzlinger, “William McBride, Who Warned About Thalidomide, Dies at 91,” N.Y. Times (July 15, 2018); Leigh Dayton, “Thalidomide hero found guilty of scientific fraud,” New Scientist (Feb. 27, 1993); G.F. Humphrey, “Scientific fraud: the McBride case,” 32 Med. Sci. Law 199 (1992); Andrew Skolnick, “Key Witness Against Morning Sickness Drug Faces Scientific Fraud Charges,” 263 J. Am. Med. Ass’n 1468 (1990).

Posted in Causation, Evidence, Expert Witness Hall of Shame, Expert Witnesses, Rule 702, Scientific Evidence, Scientific Misconduct | Comments Off on Science Journalism – UnDark Noir

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