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Access to a Study Protocol & Underlying Data Reveals a Nuclear Non-Proliferation Test

April 8th, 2024

The limits of peer review ultimately make it a poor proxy for the validity tests posed by Rules 702 and 703. Published peer review articles simply do not permit a very searching evaluation of the facts and data of a study. In the wake of the Daubert decision, expert witnesses quickly saw that they can obscure the search for validity by the reliance upon published studies, and frustrate the goals of judicial gatekeeping. As a practical matter, the burden shifts to the party that wishes to challenge the relied upon facts and data to learn more about the cited studies to show that the facts and data are not sufficient under Rule 702(b), and that the testimony is not the product of reliable methods under Rule 702(c). Obtaining study protocols, and in some instances, underlying data, are necessary for due process in the gatekeeping process. A couple of case studies may illustrate the power of looking under the hood of published studies, even ones that were peer reviewed.

When the Supreme Court decided the Daubert case in June 1993, two recent verdicts in silicone-gel breast implant cases were fresh in memory.[1] The verdicts were large by the standards of the time, and the evidence presented for the claims that silicone caused autoimmune disease was extremely weak. The verdicts set off a feeding frenzy, not only in the lawsuit industry, but also in the shady entrepreneurial world of supposed medical tests for “silicone sensitivity.”

The plaintiffs’ litigation theory lacked any meaningful epidemiologic support, and so there were fulsome presentations of putative, hypothetical mechanisms. One such mechanism involved the supposed in vivo degradation of silicone to silica (silicon dioxide), with silica then inducing an immunogenic reaction, which then, somehow, induced autoimmunity and the induction of autoimmune connective tissue disease. The degradation claim would ultimately prove baseless,[2] and the nuclear magnetic resonance evidence put forward to support degradation would turn out to be instrumental artifact and deception. The immunogenic mechanism had a few lines of potential support, with the most prominent at the time coming from the laboratories of Douglas Radford Shanklin, and his colleague, David L. Smalley, both of whom were testifying expert witnesses for claimants.

The Daubert decision held out some opportunity to challenge the admissibility of testimony that silicone implants led to either the production of a silicone-specific antibody, or the induction of t-cell mediated immunogenicity from silicone (or resulting silica) exposure. The initial tests of the newly articulated standard for admissibility of opinion testimony in silicone litigation did not go well.[3]  Peer review, which was absent in the re-analyses relied upon in the Bendectin litigation, was superficially present in the studies relied upon in the silicone litigation. The absence of supportive epidemiology was excused with hand waving that there was a “credible” mechanism, and that epidemiology took too long and was too expensive. Initially, post-Daubert, federal courts were quick to excuse the absence of epidemiology for a novel claim.

The initial Rule 702 challenges to plaintiffs’ expert witnesses thus focused on  immunogenicity as the putative mechanism, which if true, might lend some plausibility to their causal claim. Ultimately, plaintiffs’ expert witnesses would have to show that the mechanism was real by showing that silicone exposure causes autoimmune disease through epidemiologic studies,

One of the more persistent purveyors of a “test” for detecting alleged silicone sensitivity came from Smalley and Shanklin, then at the University of Tennessee. These authors exploited the fears of implant recipients and the greed of lawyers by marketing a “silicone sensitivity test (SILS).” For a price, Smalley and Shanklin would test mailed-in blood specimens sent directly by lawyers or by physicians, and provide ready-for-litigation reports that claimants had suffered an immune system response to silicone exposure. Starting in 1995, Smalley and Shanklin also cranked out a series of articles at supposedly peer reviewed journals, which purported to identify a specific immune response to crystalline silica in women who had silicone gel breast implants.[4] These studies had two obvious goals. First, the studies promoted their product to the “silicone sisters,” various support groups of claimants, as well as their lawyers, and a network of supporting rheumatologists and plastic surgeons. Second, by identifying a putative causal mechanism, Shanklin could add a meretricious patina of scientific validity to the claim that silicone breast implants cause autoimmune disease, which Shanklin, as a testifying expert witness, needed to survive Rule 702 challenges.

The plaintiffs’ strategy had been to paper over the huge analytical gaps in their causal theory with complicated, speculative research, which had been peer reviewed and published. Although the quality of the journals was often suspect, and the nature of the peer review obscure, the strategy had been initially successful in deflecting any meaningful scrutiny.

Many of the silicone cases were pending in a multi-district litigation, MDL 926, before Judge Sam Pointer, in the Northern District of Alabama. Judge Pointer, however, did not believe that ruling on expert witness admissibility was a function of an MDL court, and by 1995, he started to remand cases to the transferor courts, for those courts to do what they thought appropriate under Rules 702 and 703. Some of the first remanded cases went to the District of Oregon, where they landed in front of Judge Robert E. Jones. In early 1996, Judge Jones invited briefing on expert witness challenges, and in face of the complex immunology and toxicology issues, and the emerging epidemiologic studies, he decided to appoint four technical advisors to assist him in deciding the challenges.

The addition of scientific advisors to the gatekeeper’s bench made a huge difference in the sophistication and detail of the challenges that could be lodged to the relied-upon studies. In June 1996, Judge Jones entertained extensive hearings with viva voce testimony from both challenged witnesses and subject-matter experts on topics, such as immunology and nuclear magnetic resonance spectroscopy. Judge Jones invited final argument in the form of videotaped presentations from counsel so that the videotapes could be distributed to his technical advisors later in the summer. The contrived complexity of plaintiffs’ case dissipated, and the huge analytical gaps became visible. In December 1996, Judge Jones issued his decision that excluded the plaintiffs’ expert witnesses’ proposed testimony on grounds that it failed to satisfy the requirements of Rule 702.[5]

In October 1996, while Judge Jones was studying the record, and writing his opinion in the Hall case, Judge Weinstein, with a judge from the Southern District of New York, and another from New York state trial court, conducted a two-week Rule 702 hearing, in Brooklyn. Judge Weinstein announced at the outset that he had studied the record from the Hall case, and that he would incorporate it into his record for the cases remanded to the Southern and Eastern Districts of New York.

Curious gaps in the articles claiming silicone immunogenicity, and the lack of success in earlier Rule 702 challenges, motivated the defense to obtain the study protocols and underlying data from studies such as those published by Shanklin and Smalley. Shanklin and Smalley were frequently listed as expert witnesses in individual cases, but when requests or subpoenas for their protocols and raw data were filed, plaintiffs’ counsel stonewalled or withdrew them as witnesses. Eventually, the defense was able to enforce a subpoena and obtain the protocol and some data. The respondents claimed that the control data no longer existed, and inexplicably a good part of the experimental data had been destroyed. Enough was revealed, however, to see that the published articles were not what they claimed to be.[6]

In addition to litigation discovery, in March 1996, a surgeon published the results of his test of the Shanklin-Smalley silicone sensitivity test (“SILS”).[7] Dr. Leroy Young sent the Shanklin laboratory several blood samples from women with and without silicone implants. For six women who never had implants, Dr. Young submitted a fabricated medical history that included silicone implants and symptoms of “silicone-associated disease.” All six samples were reported back as “positive”; indeed, these results were more positive than the blood samples from the women who actually had silicone implants. Dr. Young suggested that perhaps the SILS test was akin to cold fusion.

By the time counsel assembled in Judge Weinstein’s courtroom, in October 1996, some epidemiologic studies had become available and much more information was available on the supposedly supportive mechanistic studies upon which plaintiffs’ expert witnesses had previously relied. Not too surprisingly, plaintiffs’ counsel chose not to call the entrepreneurial Dr. Shanklin, but instead called Donard S. Dwyer, a young, earnest immunologist who had done some contract work on an unrelated matter for Bristol-Myers Squibb, a defendant in the litigation.  Dr. Dwyer had filed an affidavit previously in the Oregon federal litigation, in which he gave blanket approval to the methods and conclusions of the Smalley-Shanklin research:

“Based on a thorough review of these extensive materials which are more than adequate to evaluate Dr. Smalley’s test methodology, I formed the following conclusions. First, the experimental protocols that were used are standard and acceptable methods for measuring T Cell proliferation. The results have been reproducible and consistent in this laboratory. Second, the conclusion that there are differences between patients with breast implants and normal controls with respect to the proliferative response to silicon dioxide appears to be justified from the data.”[8]

Dwyer maintained this position even after the defense obtaining the study protocol and underlying data, and various immunologists on the defense side filed scathing evaluatons of the Smalley-Shanklin work.  On direct examination at the hearings in Brooklyn, Dwyer vouched for the challenged t-cell studies, and opined that the work was peer reviewed and sufficiently reliable.[9]

The charade fell apart on cross-examination. Dwyer refused to endorse the studies that claimed to have found an anti-silicone antibody. Researchers at leading universities had attempted to reproduce the findings of such antibodies, without success.[10] The real controversy was over the claimed finding of silicone antigenicity as shown in t-cell or the cell-mediated specific immune response. On direct examination, plaintiffs’ counsel elicited Dwyer’s support for the soundness of the scientific studies that purported to establish such antigenicity, with little attention to the critiques that had been filed before the hearing.[11] Dwyer stuck to his unqualified support he had expressed previously in his affidavit for the Oregon cases.[12]

The problematic aspect of Dwyer’s direct examination testimony was that he had seen the protocol and the partial data produced by Smalley and Shanklin.[13] Dwyer, therefore, could not resist some basic facts about their work. First, the Shanklin data failed to support a dose-response relationship.[14] Second, the blood samples from women with silicone implants had been mailed to Smalley’s laboratory, whereas the control samples were collected locally. The disparity ensured that the silicone blood samples would be older than the controls, which was a departure from treating exposed and control samples in the same way.[15] Third, the experiment was done unblinded; the laboratory technical personnel and the investigators knew which blood samples were silicone exposed and which were controls (except for samples sent by Dr. Leroy Young).[16] Fourth, Shanklin’s laboratory procedures deviated from the standardized procedure set out in the National Institute of Health’s Current Protocols in Immunology.[17]

The SILS study protocol and the data produced by Shanklin and Smalley made clear that each sample was to be tested in triplicate for t-cell proliferation in response to silica, to a positive control mitogen (Con A), and to a negative control blank. The published papers all claimed that the each sample was tested in triplicate for each of these three response situations (silica, mitogen, and nothing).[18] Shanklin and Smalley described their t-cell proliferation studies, in their published papers, as having been done in triplicate. These statements were, however, untrue and never corrected.[19]

The study protocol called for the tests to be run in triplicate, but they instructed the laboratory that two counts may be used if one count does not match the other counts, which is to be decided by a technical specialist on a “case-by-case” basis. Of data that was supposed to be reported in triplicate, fully one third had only two data points, and 10 percent had but one data point.[20] No criteria were provided to the technical specialist for deciding which data to discard.[21] Not only had Shanklin excluded data, but he discarded and destroyed the data such that no one could go back and assess whether the data should have been excluded.[22]

Dwyer agreed that this exclusion and discarding of data was not at all a good method.[23] Dwyer proclaimed that he had not come to Brooklyn to defend this aspect of the Shanklin work, and that it was not defensible at all. Dwyer conceded that “the interpretation of the data and collection of the data are flawed.”[24] Dwyer tried to stake out a position that was incoherent by asserting that there was “nothing inherently wrong with the method,” while conceding that discarding data was problematic.[25] The judges presiding over the hearing could readily see that the Shanklin research was bent.

At this point, the lead plaintiffs’ counsel, Michael Williams, sought an off-ramp. He jumped to his feet and exclaimed “I’m informed that no witness in this case will rely on Dr. Smalley’s [and Shanklin’s] work in any respect.” [26] Judge Weinstein’s eyes lit up with the prospect that the Smalley-Shanklin work, by agreement, would never be mentioned again in New York state or federal cases. Given how central the claim of silicone antigenicity was to plaintiffs’ cases, the defense resisted the stipulation about research that they would continue to face in other state and federal courts. The defense was saved, however, by the obstinence of a lawyer from the Weitz & Luxenberg firm, who rose to report that her firm intended to call Drs. Shanklin and Smalley as witnesses, and that they would not stipulate to the exclusion of their work. Judge Weinstein rolled his eyes, and waved me to continue.[27] The proliferation of the t-cell test was over. The hearing before Judges Weinstein and Baer, and Justice Lobis, continued for several more days, with several other dramatic moments.[28]

In short order, on October 23, 1996, Judge Weinstein issued a short, published opinion, in which he granted partial summary judgment on the claims of systemic disease for all cases pending in federal court in New York.[29] What was curious was that the defendants had not moved for summary judgment. There were, of course, pending motions to exclude plaintiffs’ expert witnesses, but Judge Weinstein effectively ducked those motions, and let it be known that he was never a fan of Rule 702. It would be many years later, before Judge Weinstein allowed his judicial assessment see the light of day. Two decades and some years later, in a law review article, Judge Weinstein gave his judgment that

“[t]he breast implant litigation was largely based on a litigation fraud. …  Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”[30]

Judge Weinstein’s opinion was truly a judgment from which there can be no appeal. Shanklin and Smalley continued to publish papers for another decade. None of the published articles by Shanklin and others have been retracted.

[1] Reuters, “Record $25 Million Awarded In Silicone-Gel Implants Case,” N.Y. Times at A13 (Dec. 24, 1992) (describing the verdict returned in Harris County, Texas, in Johnson v. Medical Engineering Corp.); Associated Press, “Woman Wins Implant Suit,” N.Y. Times at A16 (Dec. 17, 1991) (reporting a verdict in Hopkins v. Dow Corning, for $840,000 in compensatory and $6.5 million in punitive damages); see Hopkins v. Dow Corning Corp., 33 F.3d 1116 (9th Cir. 1994) (affirming judgment with minimal attention to Rule 702 issues).

[2] William E. Hull, “A Critical Review of MR Studies Concerning Silicone Breast Implants,” 42 Magnetic Resonance in Medicine 984, 984 (1999) (“From my viewpoint as an analytical spectroscopist, the result of this exercise was disturbing and disappointing. In my judgement as a referee, none of the Garrido group’s papers (1–6) should have been published in their current form.”). See also N.A. Schachtman, “Silicone Data – Slippery & Hard to Find, Part 2,” Tortini (July 5, 2015). Many of the material science claims in the breast implant litigation were as fraudulent as the health effects claims. See, e.g., John Donley, “Examining the Expert,” 49 Litigation 26 (Spring 2023) (discussing his encounters with frequent testifier Pierre Blais, in silicone litigation).

[3] See, e.g., Hopkins v. Dow Corning Corp., 33 F.3d 1116 (9th Cir. 1994) (affirming judgment for plaintiff over Rule 702 challenges), cert. denied, 115 S.Ct. 734 (1995). See Donald A. Lawson, “Note, Hopkins v. Dow Corning Corporation: Silicone and Science,” 37 Jurimetrics J. 53 (1996) (concluding that Hopkins was wrongly decided).

[4] See David L. Smalley, Douglas R. Shanklin, Mary F. Hall, and Michael V. Stevens, “Detection of Lymphocyte Stimulation by Silicon Dioxide,” 4 Internat’l J. Occup. Med. & Toxicol. 63 (1995); David L. Smalley, Douglas R. Shanklin, Mary F. Hall, Michael V. Stevens, and Aram Hanissian, “Immunologic stimulation of T lymphocytes by silica after use of silicone mammary implants,” 9 FASEB J. 424 (1995); David L. Smalley, J. J. Levine, Douglas R. Shanklin, Mary F. Hall, Michael V. Stevens, “Lymphocyte response to silica among offspring of silicone breast implant recipients,” 196 Immunobiology 567 (1996); David L. Smalley, Douglas R. Shanklin, “T-cell-specific response to silicone gel,” 98 Plastic Reconstr. Surg. 915 (1996); and Douglas R. Shanklin, David L. Smalley, Mary F. Hall, Michael V. Stevens, “T cell-mediated immune response to silica in silicone breast implant patients,” 210 Curr. Topics Microbiol. Immunol. 227 (1996). Shanklin was also no stranger to making his case in the popular media. See, e.g., Douglas Shanklin, “More Research Needed on Breast Implants,” Kitsap Sun at 2 (Aug. 29, 1995) (“Widespread silicone sickness is very real in women with past and continuing exposure to silicone breast implants.”) (writing for Scripps Howard News Service). Even after the Shanklin studies were discredited in court, Shanklin and his colleagues continued to publish their claims that silicone implants led to silica antigenicity. David L. Smalley, Douglas R. Shanklin, and Mary F. Hall, “Monocyte-dependent stimulation of human T cells by silicon dioxide,” 66 Pathobiology 302 (1998); Douglas R. Shanklin and David L. Smalley, “The immunopathology of siliconosis. History, clinical presentation, and relation to silicosis and the chemistry of silicon and silicone,” 18 Immunol. Res. 125 (1998); Douglas Radford Shanklin, David L. Smalley, “Pathogenetic and diagnostic aspects of siliconosis,” 17 Rev. Environ Health 85 (2002), and “Erratum,” 17 Rev Environ Health. 248 (2002); Douglas Radford Shanklin & David L Smalley, “Kinetics of T lymphocyte responses to persistent antigens,” 80 Exp. Mol. Pathol. 26 (2006). Douglas Shanklin died in 2013. Susan J. Ainsworth, “Douglas R. Shanklin,” 92 Chem. & Eng’g News (April 7, 2014). Dr. Smalley appears to be still alive. In 2022, he sued the federal government to challenge his disqualification from serving as a laboratory director of any clinical directory in the United States, under 42 U.S.C. § 263a(k). He lost. Smalley v. Becerra, Case No. 4:22CV399 HEA (E.D. Mo. July 6, 2022).

[5] Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Ore. 1996); see Joseph Sanders & David H. Kaye, “Expert Advice on Silicone Implants: Hall v. Baxter Healthcare Corp., 37 Jurimetrics J. 113 (1997); Laurens Walker & John Monahan, “Scientific Authority: The Breast Implant Litigation and Beyond,” 86 Virginia L. Rev. 801 (2000); Jane F. Thorpe, Alvina M. Oelhafen, and Michael B. Arnold, “Court-Appointed Experts and Technical Advisors,” 26 Litigation 31 (Summer 2000); Laural L. Hooper, Joe S. Cecil & Thomas E. Willging, “Assessing Causation in Breast Implant Litigation: The Role of Science Panels,” 64 Law & Contemp. Problems 139 (2001); Debra L. Worthington, Merrie Jo Stallard, Joseph M. Price & Peter J. Goss, “Hindsight Bias, Daubert, and the Silicone Breast Implant Litigation: Making the Case for Court-Appointed Experts in Complex Medical and Scientific Litigation,” 8 Psychology, Public Policy &  Law 154 (2002).

[6] Judge Jones’ technical advisor on immunology reported that the studies offered in support of the alleged connection between silicone implantation and silicone-specific T cell responses, including the published papers by Shanklin and Smalley, “have a number of methodological shortcomings and thus should not form the basis of such an opinion.” Mary Stenzel-Poore, “Silicone Breast Implant Cases–Analysis of Scientific Reasoning and Methodology Regarding Immunological Studies” (Sept. 9, 1996). This judgment was seconded, over three years later, in the proceedings before MDL 926 and its Rule 706 court-appointed immunology expert witness. See Report of Dr. Betty A. Diamond, in MDL 926, at 14-15 (Nov. 30, 1998). Other expert witnesses who published studies on the supposed immunogenicity of silicone came up with some creative excuses to avoid producing their underlying data. Eric Gershwin consistently testified that his data were with a co-author in Israel, and that he could not produce them. N.A. Schachtman, “Silicone Data – Slippery and Hard to Find, Part I,” Tortini (July 4, 2015). Nonetheless, the court-appointed technical advisors were highly critical of Dr. Gershwin’s results. Dr. Stenzel-Poore, the immunologist on Judge Jones’ panel of advisors, found Gershwin’s claims “not well substantiated.” Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387 (D. Ore. 1996). Similarly, Judge Pointer’s appointed expert immunologist Dr. Betty A. Diamond, was unshakeable in her criticisms of Gershwin’s work and his conclusions. Testimony of Dr. Betty A. Diamond, in MDL 926 (April 23, 1999). And the Institute of Medicine committee, charged with reviewing the silicone claims, found Gershwin’s work inadequate and insufficient to justify the extravagent claims that plaintiffs were making for immunogenicity and for causation of autoimmune disease. Stuart Bondurant, Virginia Ernster, and Roger Herdman, eds., Safety of Silicone Breast Implants 256 (1999). Another testifying expert witness who relied upon his own data, Nir Kossovsky, resorted to a seismic excuse; he claimed that the Northridge Quake destroyed his data. N.A. Schachtman, “Earthquake Induced Data Loss – We’re All Shook Up,” Tortini (June 26, 2015); Kossovsky, along with his wife, Beth Brandegee, and his father, Ram Kossowsky, sought to commercialize an ELISA-based silicone “antibody” biomarker diagnostic test, Detecsil. Although the early Rule 702 decisions declined to take a hard at Kossovsky’s study, the U.S. Food and Drug Administration eventually shut down the Kossovsky Detecsil test. Lillian J. Gill, FDA Acting Director, Office of Compliance, Letter to Beth S. Brandegee, President, Structured Biologicals (SBI) Laboratories: Detecsil Silicone Sensitivity Test (July 15, 1994); see Gary Taubes, “Silicone in the System: Has Nir Kossovsky really shown anything about the dangers of breast implants?” Discover Magazine (Dec. 1995).

[7] Leroy Young, “Testing the Test: An Analysis of the Reliability of the Silicone Sensitivity Test (SILS) in Detecting Immune-Mediated Responses to Silicone Breast Implants,” 97 Plastic & Reconstr. Surg. 681 (1996).

[8] Affid. of Donard S. Dwyer, at para. 6 (Dec. 1, 1995), filed in In re Breast Implant Litig. Pending in U.S. D. Ct, D. Oregon (Groups 1,2, and 3).

[9] Notes of Testimony of Dr. Donnard Dwyer, Nyitray v. Baxter Healthcare Corp., CV 93-159 (E. & S.D.N.Y and N.Y. Sup. Ct., N.Y. Cty. Oct. 8, 9, 1996) (Weinstein, J., Baer, J., Lobis, J., Pollak, M.J.).

[10] Id. at N.T. 238-239 (Oct. 8, 1996).

[11] Id. at N.T. 240.

[12] Id. at N.T. 241-42.

[13] Id. at N.T. 243-44; 255:22-256:3.

[14] Id. at 244-45.

[15] Id. at N.T. 259.

[16] Id. at N.T. 258:20-22.

[17] Id. at N.T. 254.

[18] Id. at N.T. 252:16-254.

[19] Id. at N.T. 254:19-255:2.

[20] Id. at N.T. 269:18-269:14.

[21] Id. at N.T. 261:23-262:1.

[22] Id. at N.T. 269:18-270.

[23] Id. atN.T. 256:3-16.

[24] Id. at N.T. 262:15-17

[25] Id. at N.T. 247:3-5.

[26] Id. at N.T. at 260:2-3

[27] Id. at N.T. at 261:5-8.

[28] One of the more interesting and colorful moments came when the late James Conlon cross-examined plaintiffs’ pathology expert witness, Saul Puszkin, about questionable aspects of his curriculum vitae. The examination was revealed such questionable conduct that Judge Weinstein stopped the examination and directed Dr. Puszkin not to continue without legal counsel of his own.

[29] In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996). The opinion did not specifically address the Rule 702 and 703 issues that were the subject of pending motions before the court.

[30] Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (emphasis added).

Posted in Data Sharing, Expert Witness Hall of Shame, Rule 702, Rule 703, Scientific Misconduct, Scientific Publishing | 6 Comments »

Dipak Panigrahy – Expert Witness & Putative Plagiarist

March 27th, 2024

Citing an IARC monograph may be in itself questionable, given the IARC’s deviations from good systematic review practice. Taking the language of an IARC, monograph, and passing it off as your own, without citation or attribution, and leaving out the qualifications and limitations stated in the monograph, should be disqualifying for an expert witness.

And it in one federal court, it is.

Last week, on March 18, Senior Judge Roy Bale Dalton, Jr., of Orlando, Florida, granted defendant Lockheed Martin’s Rule 702 motion to exclude the proffered testimony of Dr. Dipak Panigrahy.[1] Panigraphy had opined in his Rule 26 report that seven substances[2] present in the Orlando factory cause eight different types of cancer[3] in 22 of the plaintiffs. Lockheed’s motion asserted that Panigrahy copied IARC verbatim, except for its qualifications and limitations. Judge Dalton reportedly found Panigraphy’s conduct so “blatant that it represents deliberate lack of candor” and an “unreliable methodology.” Although Judge Dalton’s opinion is not yet posted on Westlaw or Google Scholar,[4] the report from Legal Newsline quoted the opinion extensively:

“Here, there is no question that Dr. Panigrahy extensively plagiarized his report… .”

“And his deposition made the plagiarism appear deliberate, as he repeatedly outright refused to acknowledge the long swaths of his report that quote other work verbatim without any quotation marks at all – instead stubbornly insisting that he cited over 1,100 references, as if that resolves the attribution issue (it does not).”

“Indeed, the plagiarism is so ubiquitous throughout the report that it is frankly overwhelming to try to make heads or tails of just what is Dr. Panigrahy’s own work – a task that neither he nor Plaintiffs’ counsel even attempts to tackle.”

There is a wide-range of questionable research practices and dubious inferences that lead to the exclusion of expert witnesses under Rule 702, but I would have thought that Panigraphy was the first witness to have been excluded for plagiarism. Judge Dalton did, however, cite cases involving plagiarism by expert witnesses.[5] Although plagiarism might be framed as a credibility issue, the extent of the plagiarism by Panigraphy represented such an egregious lack of candor that it may justify exclusion under Rule 702.

Judge Dalton’s gatekeeping analysis, however, did not stop with the finding of blatant plagiarism from the IARC monograph. Panigraphy’s report was further methodologically marred by reliance upon the IARC, and his confusion of the IARC hazard evaluation with the required determination of causation in the law of torts. Judge Dalton explained that

“the plagiarism here reflects even deeper methodological problems because the report lifts a great deal of its analysis from IARC in particular. As the Court discussed in the interim causation Order, research agencies like IARC are, understandably, focused on protecting public health and recommending protective standards, rather than evaluating causation from an expert standpoint in the litigation context. IARC determines qualitatively whether substances are carcinogenic to humans; its descriptors have “no quantitative significance” such as more likely than not. Troublingly, Dr. Panigrahy did not grasp this crucial distinction between IARC’s classifications and the general causation preponderance standard. Because so much of Dr. Panigrahy’s report is merely a wholesale adoption of IARC’s findings under the guise of his own expertise, and IARC’s findings in and of themselves are insufficient, he fails to reliably establish general causation.”[6]

Dr. Panigraphy was accepted into medical school at the age of 17. His accelerated education may have left him without a firm understanding of the ethical requirements of scholarship.

Earlier this month, Senior Judge Dalton excluded another expert witness’s opinion testimony, from Dr. Donald Mattison, on autism, multiple sclerosis, and Parkinson’s disease, but permitted opinions on the causation of various birth defects.[7] Judge Dalton’s decisions arise from a group of companion cases, brought by more than 60 claimants against Lockheed Martin for various health conditions alleged to have been caused by Lockheed’s supposed contamination of the air, soil, and groundwater, with chemicals from its weapons manufacturing plant.

The unreliability of Panigraphy’s report led to the entry of summary judgment against the 22 plaintiffs, whose cases turned on the Panigraphy report.

The putative plagiarist, Dr. Panigraphy, is an assistant professor of pathology, at Harvard Medical School, in the department of pathology, Beth Israel Deaconess Medical Center, in Boston. Panigraphy has a profile at the “Expert Institute,” sort of an employment agency for expert witnesses. His opinions were excluded in the federal multi-district litigation concerning Zantac/ranitidine.[8]  Very similar opinions were permitted over defense challenges, in a short, perfunctory order, even shorter on reasoning, in the valsartan multi-district litigation.[9]

[1] John O’Brien, “‘A mess’: Expert in Florida toxic tort plagiarizes cancer research of others, tries to submit it to court,” Legal News Line (Mar. 25, 2024).

[2] trichloroethylene, tetrachloroethylene, formaldehyde, arsenic, hexavalent chromium, trichloroethylene, and styrene.

[3] cancers of the kidney, breast, thyroid, pancreas, liver and bile duct, testicles, and anus, as well as Hodgkin’s lymphoma, non-Hodgkin’s lymphoma, and leukemia.

[4] Henderson v. Lockheed Martin Corp., case no. 6:21-cv-1363-RBD-DCI, document 399 (M.D. Fla. Mar. 18, 2024) (Dalton, S.J.).

[5] Henderson Order at 6, citing Moore v. BASF Corp., No. CIV.A. 11-1001, 2012 WL 6002831, at *7 (E.D. La. Nov. 30, 2012) (excluding expert testimony from Bhaskar Kura), aff’d, 547 F. App’x 513 (5th Cir. 2013); Spiral Direct, Inc. v. Basic Sports Apparel, Inc., No. 6:15-cv-641, 2017 WL 11457208, at *2 (M.D. Fla. Apr. 13, 2017); 293 F. Supp. 3d 1334, 1363 n. 20 (2017); Legier & Materne v. Great Plains Software, Inc., No. CIV.A. 03-0278, 2005 WL 2037346, at *4 (E.D. La. Aug. 3, 2005) (denying motion to exclude proffered testimony because expert witness plagiarized a paragraph in his report).

[6] Henderson Order at 8 -10 (internal citations omitted), citing McClain v. Metabolife Internat’l, Inc., 401 F.3d 1233, 1249 (11th Cir. 2005) (distinguishing agency assessment of risk from judicial assessment of causation); Williams v. Mosaic Fertilizer, LLC, 889 F.3d 1239, 1247 (11th Cir. 2018) (identifying “methodological perils” in relying extensively on regulatory agencies’ precautionary standards to determine causation); Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996) (noting that IARC’s “threshold of proof is reasonably lower than that appropriate in tort law, which traditionally makes more particularized inquiries into cause and effect and requires a plaintiff to prove that it is more likely than not that another individual has caused him or her harm”); In re Roundup Prods. Liab. Litig., 390 F. Supp. 3d 1102, 1109 (N.D. Cal. 2018) (“IARC classification is insufficient to get the plaintiffs over the general causation hurdle.”), aff’d, 997 F.3d 941 (9th Cir. 2021).

[7] John O’Brien, “Autism plaintiffs rejected from Florida Lockheed Martin toxic tort,” Legal Newsline (Mar. 15, 2024).

[8][8] In re Zantac (ranitidine) Prods. Liab. Litig., MDL NO. 2924 20-MD-2924, 644 F. Supp. 3d 1075, 1100 (S.D. Fla. 2022).

[9] In re Valsartan, Losartan, and Irbesartan Prods. Liab. Litig., Case 1:19-md-02875-RBK-SAK, document 1958 (D.N.J. Mar. 4, 2022).

Posted in Causation, Expert Witness Hall of Shame, Expert Witnesses, Rule 702, Scientific Misconduct | 4 Comments »

Collegium Ramazzini & Its Fellows – The Lobby

November 19th, 2023

Back in 1997, Francis Douglas Kelly Liddell, a real scientist in the area of asbestos and disease, had had enough of the insinuations, slanders, and bad science from the minions of Irving John Selikoff.[1] Liddell broke with the norms of science and called out his detractors for what they were doing:

 “[A]n anti-asbestos lobby, based in the Mount Sinai School of Medicine of the City University of New York, promoted the fiction that asbestos was an all-pervading menace, and trumped up a number of asbestos myths for widespread dissemination, through media eager for bad news.”[2]

What Liddell did not realize is that the Lobby had become institutionalized in the form of an organization, the Collegium Ramazzini, started by Selikoff under false pretenses.[3] Although the Collegium operates with some degree of secrecy, the open and sketchy conduct of its members suggest that we could use the terms “the Lobby” and “the Collegium Ramazzini,” interchangeably.

Ramazzini founder Irving Selikoff had an unfortunate track record for perverting the course of justice. Selikoff conspired with Ron Motley and others to bend judges with active asbestos litigation dockets by inviting them to a one-sided conference on asbestos science, and to pay for their travel and lodging. Presenters included key expert witnesses for plaintiffs; defense expert witnesses were conspicuously not invited to the conference. In his invitation to this ex parte soirée, Selikoff failed to mention that the funding came from plaintiffs’ counsel. Selikoff’s shenanigans led to the humiliation and disqualification of James M. Kelly,[4] the federal judge in charge of the asbestos school property damage litigation,

Neither Selikoff nor the co-conspirator counsel for plaintiffs ever apologized for their ruse. The disqualification did lead to a belated disclosure and mea culpa from the late Judge Jack Weinstein. Because of a trial in progress, Judge Weinstein did not attend the plaintiffs’ dog-and-pony show, Selikoff’s so-called “Third Wave” conference, but Judge Weinstein and a New York state trial judge, Justice Helen Freedman, attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[5]

Judge Weinstein’s false statement that Selikoff “had never testified”[6] not only reflects an incredible and uncharacteristic naiveté by a distinguished evidence law scholar, but the false statement was in a journal, Judicature, which was, and is, widely circulated to state and federal judges. The source of the lie appears to have been Selikoff himself in the ethically dodgy ex parte meeting with judges actively presiding over asbestos personal injury cases.

The point apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s having never testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book.[7] I have no doubt that Judge Weinstein did not intend to mislead anyone; like many others, he had been duped by Selikoff’s deception.

There is no evidence that Selikoff was acting as an authorized agent for the Collegium Ramazzini in conspiring to influence trial judges, or in lying to Judge Weinstein and Justice Freedman, but Selikoff was the founder of the Collegium, and his conduct seems to have set a norm for the organization. Furthermore, the Third-Wave Conference was sponsored by the Collegium. Two years later, the Collegium created an award in Selikoff’s name, in 1993, not long after the Third Wave misconduct.[8] Perhaps the award was the Collegium’s ratification of Selikoff’s misdeeds. Two of the recipients, Stephen M. Levin, and Yasunosuke Suzuki, were “regulars,” as expert witnesses for plaintiffs in asbestos litigation. The Selikoff Award is funded by the Irving J. Selikoff Endowment of the Collegium Ramazzini. The Collegium can fairly be said to be the continuation of Selikoff’s work in the form of advocacy organization.

Selikoff’s Third-Wave Conference and his lies to two key judges would not be the last of efforts to pervert the course of justice. With the Selikoff imprimatur and template in hand, Fellows of the Collegium have carried on, by carrying on. Collegium Fellows Carl F. Cranor and Thomas Smith Martyn Thomas served as partisan paid expert witnesses in the notorious Milward case.[9]

After the trial court excluded the proffered opinions of Cranor and Smith, plaintiff appealed, with the help of an amicus brief filed by The Council for Education and Research on Toxics (CERT). The plaintiffs’ counsel, Cranor and Smith, CERT, and counsel for CERT all failed to disclose that CERT was founded by the two witnesses, Cranor and Smith, whose exclusion was at the heart of the appeal.[10] Among the 27 signatories to the CERT amicus brief, a majority (15) were fellows of the Collegium Ramazzini. Others may have been members but not fellows. Many of the signatories, whether or not members or fellows of the Collegium, were frequent testifiers for plaintiffs’ counsel.

None raised any ethical qualms about the obvious conflict of interest on how scrupulous gatekeeping might hurt their testimonial income, or their (witting or unwitting) participation in CERT’s conspiracy to pervert the course of justice.[11]

The CERT amici signatories are listed below. The bold  names are identified as Collegium fellows at its current website. Others may have been members but not fellows. The asterisks indicate those who have testified in tort litigation; please accept my apologies if I missed anyone.

Nicholas A. Ashford,
Nachman Brautbar,*
David C. Christiani,*
Richard W. Clapp,*
James Dahlgren,*
Devra Lee Davis,
Malin Roy Dollinger,*
Brian G. Durie,
David A. Eastmond,
Arthur L. Frank,*
Frank H. Gardner,
Peter L. Greenberg,
Robert J. Harrison,
Peter F. Infante,*
Philip J. Landrigan,
Barry S. Levy,*
Melissa A. McDiarmid,
Myron Mehlman,
Ronald L. Melnick,*
Mark Nicas,*
David Ozonoff,*
Stephen M. Rappaport,
David Rosner,*
Allan H. Smith,*
Daniel Thau Teitelbaum,*
Janet Weiss,* and
Luoping Zhang

This D & C (deception and charade) was repeated on other occasions when Collegium fellows and members signed amicus briefs without any disclosures of conflicts of interest. In Rost v. Ford Motor Co.,[12] for instance, an amicus brief was filed by by “58 physicians and scientists,” many of whom were Collegium fellows.[13]

Ramazzini Fellows David Michaels and Celeste Monforton were both involved in the notorious Project on Scientific Knowledge and Public Policy (SKAPP) organization, which consistently misrepresented its funding from plaintiffs’ lawyers as having come from a “court fund.”[14]

Despite Selikoff’s palaver about how the Collegium would seek consensus and open discussions, it has become an echo-chamber for the rent-seeking mass-tort lawsuit industry, for the hyperbolic critics of any industry position, and for the credulous shills for any pro-labor position. In its statement about membership, the Collegium warns that

“Persons who have any type of links which may compromise the authenticity of their commitment to the mission of the Collegium Ramazzini do not qualify for Fellowship. Likewise, persons who have any conflict of interest that may negatively affect his or her impartiality as a researcher should not be nominated for Fellowship.”

This exclusionary criterion ensures lack of viewpoint diversity, and makes the Collegium an effective proxy for the law industry in the United States.

Among the Collegium’s current and past fellows, we can find many familiar names from the annals of tort litigation, all expert witnesses for plaintiffs, and virtually always only for plaintiffs. After over 40 years at the bar, I do not recognize a single name of anyone who has ever testified on behalf of a defendant in a tort case.

Henry A. Anderson

Barry I. Castleman      

Martin Cherniack

David Christiani 

Arthur Frank

Lennart Hardell 

David G. Hoel

Stephen M. Levin

Ronald L. Melnick

David Michaels

Celeste Monforton

Albert Miller

Brautbar Nachman

Christopher Portier

Steven B. Markowitz

Christine Oliver                 

Colin L, Soskolne

Yasunosuke Suzuki

Daniel Thau Teitelbaum

Laura Welch

[1] “The Lobby – Cut on the Bias” (July 6, 2020).

[2] F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997).

[3] See “The Dodgy Origins of the Collegium Ramazzini” (Nov. 15, 2023).

[4] In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, “Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992),” 38 Villanova L. Rev. 1219 (1993); Bruce A. Green, “May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy,” 29 Fordham Urb. L.J. 941, 996-98 (2002).

[5] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994) (emphasis added).

[6] “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

[7] See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would   never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”).

[8] See also “The Selikoff – Castleman Conspiracy” (Mar. 13, 2011).

[9] Milward v. Acuity Specialty Products Group, Inc., 664 F.Supp.2d 137, 140 (D.Mass.2009), rev’d, 639 F. 3d 11 (1st Cir. 2011), cert. denied, 132 S.Ct. 1002 (2012).

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

[11] “Carl Cranor’s Inference to the Best Explanation” (Dec. 12, 2021).

[12] Rost v. Ford Motor Co., 151 A.3d 1032, 1052 (Pa. 2016).

[13] “The Amicus Curious Brief” (Jan. 4, 2018).

[14] See, e.g., “SKAPP A LOT” (April 30, 2010); “Manufacturing Certainty” (Oct. 25, 2011); “David Michaels’ Public Relations Problem” (Dec. 2, 2011); “Conflicted Public Interest Groups” (Nov. 3, 2013).

Posted in Asbestos, Conflicts of Interest, Scientific Misconduct | 5 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 »

Judicial Flotsam & Jetsam – Retractions

June 12th, 2023

In scientific publishing, when scientists make a mistake, they publish an erratum or a corrigendum. If the mistake vitiates the study, then the erring scientists retract their article. To be sure, sometimes the retraction comes after an obscene delay, with the authors kicking and screaming.[1] Sometimes the retraction comes at the request of the authors, better late than never.[2]

Retractions in the biomedical journals, whether voluntary or not, are on the rise.[3] The process and procedures for retraction of articles often lack transparency. Many articles are retracted without explanation or disclosure of specific problems about the data or the analysis.[4] Sadly, however, misconduct in the form of plagiarism and data falsification is a frequent reason for retractions.[5] The lack of transparency for retractions, and sloppy scholarship, combine to create Zombie papers, which are retracted but continue to be cited in subsequent publications.[6]

LEGAL RETRACTIONS

The law treats errors very differently. Being a judge usually means that you never have to say you are sorry. Judge Andrew Hurwitz has argued that that our legal system would be better served if judges could and did “freely acknowledged and transparently corrected the occasional ‘goof’.”[7] Alas, as Judge Hurwitz notes, very few published decisions acknowledge mistakes.[8]

In the world of scientific jurisprudence, the judicial reticence to acknowledge mistakes is particularly dangerous, and it leads directly to the proliferation of citations to cases that make egregious mistakes. In the niche area of judicial assessment of scientific and statistical evidence, the proliferation of erroneous statements is especially harmful because it interferes with thinking clearly about the issues before courts. Judges believe that they have argued persuasively for a result, not by correctly marshaling statistical and scientific concepts, but by relying upon precedents erroneously arrived at by other judges in earlier cases. Regardless of how many cases are cited (and there are many possible “precedents”), the true parameter does not have a 95% probability of lying within the interval given by a given 95% confidence interval.[9] Similarly, as much as judges would like p-values and confidence intervals to eliminate the need to worry about systematic error, their saying so cannot make it so.[10] Even a mighty federal judge cannot make the p-value probability, or its complement, substitute for the posterior probability of a causal claim.[11]

Some cases in the books are so egregiously decided that it is truly remarkable that they would be cited for any proposition. I call these scientific Dred Scott cases, which illustrate that sometimes science has no criteria of validity that the law is bound to respect. One such Dred Scott case was the result of a bench trial in a federal district court in Atlanta, in Wells v. Ortho Pharmaceutical Corporation.[12]

Wells was notorious for its poor assessment of all the determinants of scientific causation.[13] The decision was met with a storm of opprobrium from the legal and medical community.[14] No scientists or legal scholars offered a serious defense of Wells on the scientific merits. Even the notorious plaintiffs’ expert witness, Carl Cranor, could muster only a distanced agnosticism:

“In Wells v. Ortho Pharmaceutical Corp., which involved a claim that birth defects were caused by a spermicidal jelly, the U.S. Court of Appeals for the 11th Circuit followed the principles of Ferebee and affirmed a plaintiff’s verdict for about five million dollars. However, some members of the medical community chastised the legal system essentially for ignoring a well-established scientific consensus that spermicides are not teratogenic. We are not in a position to judge this particular issue, but the possibility of such results exists.”[15]

Cranor apparently could not bring himself to note that it was not just scientific consensus that was ignored; the Wells case ignored the basic scientific process of examining relevant studies for both internal and external validity.

Notwithstanding this scholarly consensus and condemnation, we have witnessed the repeated recrudescence of the Wells decision. In Matrixx Initiatives, Inc. v. Siracusano,[16] in 2011, the Supreme Court, speaking through Justice Sotomayor, wandered into a discussion, irrelevant to its holding, whether statistical significance was necessary for a determination of the causality of an association:

“We note that courts frequently permit expert testimony on causation based on evidence other than statistical significance. See, e.g., Best v. Lowe’s Home Centers, Inc., 563 F. 3d 171, 178 (6th Cir 2009); Westberry v. Gislaved Gummi AB, 178 F. 3d 257, 263–264 (4th Cir. 1999) (citing cases); Wells v. Ortho Pharmaceutical Corp., 788 F. 2d 741, 744–745 (11th Cir. 1986). We need not consider whether the expert testimony was properly admitted in those cases, and we do not attempt to define here what constitutes reliable evidence of causation.”[17]

The quoted language is remarkable for two reasons. First, the Best and Westberry cases did not involve statistics at all. They addressed specific causation inferences from what is generally known as differential etiology. Second, the citation to Wells was noteworthy because the case has nothing to do with adverse event reports or the lack of statistical significance.

Wells involved a claim of birth defects caused by the use of spermicidal jelly contraceptive, which had been the subject of several studies, one of which at least yielded a nominally statistically significant increase in detected birth defects over what was expected.

Wells could thus hardly be an example of a case in which there was a judgment of causation based upon a scientific study that lacked statistical significance in its findings. Of course, finding statistical significance is just the beginning of assessing the causality of an association. The most remarkable and disturbing aspect of the citation to Wells, however, was that the Court was unaware of, or ignored, the case’s notoriety, and the scholarly and scientific consensus that criticized the decision for its failure to evaluate the entire evidentiary display, as well as for its failure to rule out bias and confounding in the studies relied upon by the plaintiff.

Justice Sotomayor’s decision for a unanimous Court is not alone in its failure of scholarship and analysis in embracing the dubious precedent of Wells. Many other courts have done much the same, both in state[18] and in federal courts,[19] and both before and after the Supreme Court decided Daubert, and even after Rule 702 was amended in 2000.[20] Perhaps even more disturbing is that the current edition of the Reference Manual on Scientific Evidence glibly cites to the Wells case, for the dubious proposition that

“Generally, researchers are conservative when it comes to assessing causal relationships, often calling for stronger evidence and more research before a conclusion of causation is drawn.”[21]

We are coming up on the 40th anniversary of the Wells judgment. It is long past time to stop citing the case. Perhaps we have reached the stage of dealing with scientific evidence at which errant and aberrant cases should be retracted, and clearly marked as retracted in the official reporters, and in the electronic legal databases. Certainly the technology exists to link the scholarly criticism with a case citation, just as we link subsequent judicial treatment by overruling, limiting, and criticizing.

[1] Laura Eggertson, “Lancet retracts 12-year-old article linking autism to MMR vaccines,” 182 Canadian Med. Ass’n J. E199 (2010).

[2] Notice of retraction for Teng Zeng & William Mitch, “Oral intake of ranitidine increases urinary excretion of N-nitrosodimethylamine,” 37 Carcinogenesis 625 (2016), published online (May 4, 2021) (retraction requested by authors with an acknowledgement that they had used incorrect analytical methods for their study).

[3] Tianwei He, “Retraction of global scientific publications from 2001 to 2010,” 96 Scientometrics 555 (2013); Bhumika Bhatt, “A multi-perspective analysis of retractions in life sciences,” 126 Scientometrics 4039 (2021); Raoul R.Wadhwa, Chandruganesh Rasendran, Zoran B. Popovic, Steven E. Nissen, and Milind Y. Desai, “Temporal Trends, Characteristics, and Citations of Retracted Articles in Cardiovascular Medicine,” 4 JAMA Network Open e2118263 (2021); Mario Gaudino, N. Bryce Robinson, Katia Audisio, Mohamed Rahouma, Umberto Benedetto, Paul Kurlansky, Stephen E. Fremes, “Trends and Characteristics of Retracted Articles in the Biomedical Literature, 1971 to 2020,” 181 J. Am. Med. Ass’n Internal Med. 1118 (2021); Nicole Shu Ling Yeo-Teh & Bor Luen Tang, “Sustained Rise in Retractions in the Life Sciences Literature during the Pandemic Years 2020 and 2021,” 10 Publications 29 (2022).

[4] Elizabeth Wager & Peter Williams, “Why and how do journals retract articles? An analysis of Medline retractions 1988-2008,” 37 J. Med. Ethics 567 (2011).

[5] Ferric C. Fanga, R. Grant Steen, and Arturo Casadevall, “Misconduct accounts for the majority of retracted scientific publications,” 109 Proc. Nat’l Acad. Sci. 17028 (2012); L.M. Chambers, C.M. Michener, and T. Falcone, “Plagiarism and data falsification are the most common reasons for retracted publications in obstetrics and gynaecology,” 126 Br. J. Obstetrics & Gyn. 1134 (2019); M.S. Marsh, “Separating the good guys and gals from the bad,” 126 Br. J. Obstetrics & Gyn. 1140 (2019).

[6] Tzu-Kun Hsiao and Jodi Schneider, “Continued use of retracted papers: Temporal trends in citations and (lack of) awareness of retractions shown in citation contexts in biomedicine,” 2 Quantitative Science Studies 1144 (2021).

[7] Andrew D. Hurwitz, “When Judges Err: Is Confession Good for the Soul?” 56 Ariz. L. Rev. 343, 343 (2014).

[8] See id. at 343-44 (quoting Justice Story who dealt with the need to contradict a previously published opinion, and who wrote “[m]y own error, however, can furnish no ground for its being adopted by this Court.” U.S. v. Gooding, 25 U.S. 460, 478 (1827)).

[9] See, e.g., DeLuca v. Merrell Dow Pharms., Inc., 791 F. Supp. 1042, 1046 (D.N.J. 1992) (”A 95% confidence interval means that there is a 95% probability that the ‘true’ relative risk falls within the interval”) , aff’d, 6 F.3d 778 (3d Cir. 1993); In re Silicone Gel Breast Implants Prods. Liab. Litig, 318 F.Supp.2d 879, 897 (C.D. Cal. 2004); Eli Lilly & Co. v. Teva Pharms, USA, 2008 WL 2410420, *24 (S.D.Ind. 2008) (stating incorrectly that “95% percent of the time, the true mean value will be contained within the lower and upper limits of the confidence interval range”). See also “Confidence in Intervals and Diffidence in the Courts” (Mar. 4, 2012).

[10] See, e.g., Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d 307, 311-12 (5th Cir. 1989) (“Fortunately, we do not have to resolve any of the above questions [as to bias and confounding], since the studies presented to us incorporate the possibility of these factors by the use of a confidence interval.”). This howler has been widely acknowledged in the scholarly literature. See David Kaye, David Bernstein, and Jennifer Mnookin, The New Wigmore – A Treatise on Evidence: Expert Evidence § 12.6.4, at 546 (2d ed. 2011); Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 86-87 (2009) (criticizing the blatantly incorrect interpretation of confidence intervals by the Brock court).

[11] In re Ephedra Prods. Liab. Litig., 393 F.Supp. 2d 181, 191 (S.D.N.Y. 2005) (Rakoff, J.) (“Generally accepted scientific convention treats a result as statistically significant if the P-value is not greater than .05. The expression ‘P=.05’ means that there is one chance in twenty that a result showing increased risk was caused by a sampling error — i.e., that the randomly selected sample accidentally turned out to be so unrepresentative that it falsely indicates an elevated risk.”); see also In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 289 F.Supp. 2d 1230, 1236 n.1 (W.D. Wash. 2003) (“P-values measure the probability that the reported association was due to chance… .”). Although the erroneous Ephedra opinion continues to be cited, it has been debunked in the scholarly literature. See Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 65 (2009); Nathan A. Schachtman, “Statistical Evidence in Products Liability Litigation,” at 28-13, chap. 28, in Stephanie A. Scharf, George D. Sax, & Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (2d ed. 2021).

[12] Wells v. Ortho Pharm. Corp., 615 F. Supp. 262 (N.D. Ga.1985), aff’d & modified in part, remanded, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986).

[13] I have discussed the Wells case in a series of posts, “Wells v. Ortho Pharm. Corp., Reconsidered,” (2012), part one, two, three, four, five, and six.

[14] See, e.g., James L. Mills and Duane Alexander, “Teratogens and ‘Litogens’,” 15 New Engl. J. Med. 1234 (1986); Samuel R. Gross, “Expert Evidence,” 1991 Wis. L. Rev. 1113, 1121-24 (1991) (“Unfortunately, Judge Shoob’s decision is absolutely wrong. There is no scientifically credible evidence that Ortho-Gynol Contraceptive Jelly ever causes birth defects.”). See also Editorial, “Federal Judges v. Science,” N.Y. Times, December 27, 1986, at A22 (unsigned editorial) (“That Judge Shoob and the appellate judges ignored the best scientific evidence is an intellectual embarrassment.”);  David E. Bernstein, “Junk Science in the Courtroom,” Wall St. J. at A 15 (Mar. 24,1993) (pointing to Wells as a prominent example of how the federal judiciary had embarrassed American judicial system with its careless, non-evidence based approach to scientific evidence); Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge,” 72 Texas L. Rev. 715, 733-34 (1994) (lawyers and leading scientist noting that the district judge “found that the scientific studies relied upon by the plaintiffs’ expert were inconclusive, but nonetheless held his testimony sufficient to support a plaintiffs’ verdict. *** [T]he court explicitly based its decision on the demeanor, tone, motives, biases, and interests that might have influenced each expert’s opinion. Scientific validity apparently did not matter at all.”) (internal citations omitted); Bert Black, “A Unified Theory of Scientific Evidence,” 56 Fordham L. Rev. 595, 672-74 (1988); Paul F. Strain & Bert Black, “Dare We Trust the Jury – No,” 18 Brief  7 (1988); Bert Black, “Evolving Legal Standards for the Admissibility of Scientific Evidence,” 239 Science 1508, 1511 (1988); Diana K. Sheiness, “Out of the Twilight Zone: The Implications of Daubert v. Merrill Dow Pharmaceuticals, Inc.,” 69 Wash. L. Rev. 481, 493 (1994); David E. Bernstein, “The Admissibility of Scientific Evidence after Daubert v. Merrell Dow Pharmacueticals, Inc.,” 15 Cardozo L. Rev. 2139, 2140 (1993) (embarrassing decision); Troyen A. Brennan, “Untangling Causation Issues in Law and Medicine: Hazardous Substance Litigation,” 107 Ann. Intern. Med. 741, 744-45 (1987) (describing the result in Wells as arising from the difficulties created by the Ferebee case; “[t]he Wells case can be characterized as the court embracing the hypothesis when the epidemiologic study fails to show any effect”); Troyen A. Brennan, “Causal Chains and Statistical Links: Some Thoughts on the Role of Scientific Uncertainty in Hazardous Substance Litigation,” 73 Cornell L. Rev. 469, 496-500 (1988); David B. Brushwood, “Drug induced birth defects: difficult decisions and shared responsibilities,” 91 W. Va. L. Rev. 51, 74 (1988); Kenneth R. Foster, David E. Bernstein, and Peter W. Huber, eds., Phantom Risk: Scientific Inference and the Law 28-29, 138-39 (1993) (criticizing Wells decision); Peter Huber, “Medical Experts and the Ghost of Galileo,” 54 Law & Contemp. Problems 119, 158 (1991); Edward W. Kirsch, “Daubert v. Merrell Dow Pharmaceuticals: Active Judicial Scrutiny of Scientific Evidence,” 50 Food & Drug L.J. 213 (1995) (“a case in which a court completely ignored the overwhelming consensus of the scientific community”); Hans Zeisel & David Kaye, Prove It With Figures: Empirical Methods in Law and Litigation § 6.5, at 93(1997) (noting the multiple comparisons in studies of birth defects among women who used spermicides, based upon the many reported categories of birth malformations, and the large potential for even more unreported categories); id. at § 6.5 n.3, at 271 (characterizing Wells as “notorious,” and noting that the case became a “lightning rod for the legal system’s ability to handle expert evidence.”); Edward K. Cheng , “Independent Judicial Research in the ‘Daubert’ Age,” 56 Duke L. J. 1263 (2007) (“notoriously concluded”); Edward K. Cheng, “Same Old, Same Old: Scientific Evidence Past and Present,” 104 Michigan L. Rev. 1387, 1391 (2006) (“judge was fooled”); Harold P. Green, “The Law-Science Interface in Public Policy Decisionmaking,” 51 Ohio St. L.J. 375, 390 (1990); Stephen L. Isaacs & Renee Holt, “Drug regulation, product liability, and the contraceptive crunch: Choices are dwindling,” 8 J. Legal Med. 533 (1987); Neil Vidmar & Shari S. Diamond, “Juries and Expert Evidence,” 66 Brook. L. Rev. 1121, 1169-1170 (2001); Adil E. Shamoo, “Scientific evidence and the judicial system,” 4 Accountability in Research 21, 27 (1995); Michael S. Davidson, “The limitations of scientific testimony in chronic disease litigation,” 10 J. Am. Coll. Toxicol. 431, 435 (1991); Charles R. Nesson & Yochai Benkler, “Constitutional Hearsay: Requiring Foundational Testing and Corroboration under the Confrontation Clause,” 81 Virginia L. Rev. 149, 155 (1995); Stephen D. Sugarman, “The Need to Reform Personal Injury Law Leaving Scientific Disputes to Scientists,” 248 Science 823, 824 (1990); Jay P. Kesan, “A Critical Examination of the Post-Daubert Scientific Evidence Landscape,” 52 Food & Drug L. J. 225, 225 (1997); Ora Fred Harris, Jr., “Communicating the Hazards of Toxic Substance Exposure,” 39 J. Legal Ed. 97, 99 (1989) (“some seemingly horrendous decisions”); Ora Fred Harris, Jr., “Complex Product Design Litigation: A Need for More Capable Fact-Finders,” 79 Kentucky L. J. 510 & n.194 (1991) (“uninformed judicial decision”); Barry L. Shapiro & Marc S. Klein, “Epidemiology in the Courtroom: Anatomy of an Intellectual Embarrassment,” in Stanley A. Edlavitch, ed., Pharmacoepidemiology 87 (1989); Marc S. Klein, “Expert Testimony in Pharmaceutical Product Liability Actions,” 45 Food, Drug, Cosmetic L. J. 393, 410 (1990); Michael S. Lehv, “Medical Product Liability,” Ch. 39, in Sandy M. Sanbar & Marvin H. Firestone, eds., Legal Medicine 397, 397 (7th ed. 2007); R. Ryan Stoll, “A Question of Competence – Judicial Role in Regulation of Pharmaceuticals,” 45 Food, Drug, Cosmetic L. J. 279, 287 (1990); Note, “A Question of Competence: The Judicial Role in the Regulation of Pharmaceuticals,” Harvard L. Rev. 773, 781 (1990); Peter H. Schuck, “Multi-Culturalism Redux: Science, Law, and Politics,” 11 Yale L. & Policy Rev. 1, 13 (1993); Howard A. Denemark, “Improving Litigation Against Drug Manufacturers for Failure to Warn Against Possible Side  Effects: Keeping Dubious Lawsuits from Driving Good Drugs off the Market,” 40 Case Western Reserve L.  Rev. 413, 438-50 (1989-90); Howard A. Denemark, “The Search for Scientific Knowledge in Federal Courts in the Post-Frye Era: Refuting the Assertion that Law Seeks Justice While Science Seeks Truth,” 8 High Technology L. J. 235 (1993)

[15] Carl Cranor & Kurt Nutting, “Scientific and Legal Standards of Statistical Evidence in Toxic Tort and Discrimination Suits,” 9 Law & Philosophy 115, 123 (1990) (internal citations omitted).

[16] 131 S.Ct. 1309 (2011) [Matrixx]

[17] Id. at 1319.

[18] Baroldy v. Ortho Pharmaceutical Corp., 157 Ariz. 574, 583, 760 P.2d 574 (Ct. App. 1988); Earl v. Cryovac, A Div. of WR Grace, 115 Idaho 1087, 772 P. 2d 725, 733 (Ct. App. 1989); Rubanick v. Witco Chemical Corp., 242 N.J. Super. 36, 54, 576 A. 2d 4 (App. Div. 1990), aff’d in part, 125 N.J. 421, 442, 593 A. 2d 733 (1991); Minnesota Min. & Mfg. Co. v. Atterbury, 978 S.W. 2d 183, 193 n.7 (Tex. App. 1998); E.I. Dupont de Nemours v. Castillo ex rel. Castillo, 748 So. 2d 1108, 1120 (Fla. Dist. Ct. App. 2000); Bell v. Lollar, 791 N.E.2d 849, 854 (Ind. App. 2003; King v. Burlington Northern & Santa Fe Ry, 277 Neb. 203, 762 N.W.2d 24, 35 & n.16 (2009).

[19] City of Greenville v. WR Grace & Co., 827 F. 2d 975, 984 (4th Cir. 1987); American Home Products Corp. v. Johnson & Johnson, 672 F. Supp. 135, 142 (S.D.N.Y. 1987); Longmore v. Merrell Dow Pharms., Inc., 737 F. Supp. 1117, 1119 (D. Idaho 1990); Conde v. Velsicol Chemical Corp., 804 F. Supp. 972, 1019 (S.D. Ohio 1992); Joiner v. General Elec. Co., 864 F. Supp. 1310, 1322 (N.D. Ga. 1994) (which case ultimately ended up in the Supreme Court); Bowers v. Northern Telecom, Inc., 905 F. Supp. 1004, 1010 (N.D. Fla. 1995); Pick v. American Medical Systems, 958 F. Supp. 1151, 1158 (E.D. La. 1997); Baker v. Danek Medical, 35 F. Supp. 2d 875, 880 (N.D. Fla. 1998).

[20] Rider v. Sandoz Pharms. Corp., 295 F. 3d 1194, 1199 (11th Cir. 2002); Kilpatrick v. Breg, Inc., 613 F. 3d 1329, 1337 (11th Cir. 2010); Siharath v. Sandoz Pharms. Corp., 131 F. Supp. 2d 1347, 1359 (N.D. Ga. 2001); In re Meridia Prods. Liab. Litig., Case No. 5:02-CV-8000 (N.D. Ohio 2004); Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1177 (E.D. Wash. 2009); Doe v. Northwestern Mutual Life Ins. Co., (D. S.C. 2012); In re Chantix (Varenicline) Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1286, 1288, 1290 (N.D. Ala. 2012); Farmer v. Air & Liquid Systems Corp. at n.11 (M.D. Ga. 2018); In re Abilify Prods. Liab. Litig., 299 F. Supp. 3d 1291, 1306 (N.D. Fla. 2018).

[21] Michael D. Green, D. Michal Freedman & Leon Gordis, “Reference Guide on Epidemiology,” 549, 599 n.143, in Federal Judicial Center, National Research Council, Reference Manual on Scientific Evidence (3d ed. 2011).

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Oreskes Excluded as Historian Expert Witness in Mann Case

February 28th, 2023

“It has been said that though God cannot alter the past, historians can; it is perhaps because they can be useful to Him in this respect that He tolerates their existence.”    

                Samuel Butler, Erewhon Revisited, ch. 14

 

It has been a while since I have written about the scientist defamation case of brought by climate scientist and advocate, Michael E. Mann, against National Review magazine, the Competitive Enterprise Institute, and Mark Steyn.[1] Back in 2014, I commented upon the oddity of a scientist’s claim of defamation against lay people for criticizing a scientist’s work.[2] Mann took umbrage to statements, critical of his work that generated a “hockey-stick” model of global temperature rises. Defendants apparently accused Mann of “molest[ing] and tortur[ing] data in the service of politicized science[,]” “engaging in data manipulation[,]” and creating the “fraudulent climate-change ‘hockey-stick’ graph[.]”[3] Mann naturally claims that the defendants’ statements are false and defamatory; the defendants contend that their statements are true.

In the hurly burly of work and life, I lost touch with the proceedings in Mann, but recently I became aware of interesting gatekeeping rulings, issued in 2021.[4] I was particularly intrigued by the activity of Naomi Oreskes, qua historian, who sought to offer an expert witness opinion in the Mann case. On July 26, 2021, Judge Alfred S. Irving, Jr., dashed Oreskes’ hopes of testifying as an historian, and told her not to bother coming to Washington for trial.[5]

Naomi Oreskes is a “professor of the History of Science, in Harvard University. She teaches and writes about the history of science. When not riding political hobby horses, Oreskes has written about the Idiocracy’s rejection of science,[6] but she has also shown herself to be untutored in the basics of scientific and statistical method.[7]

She is an advocate who, along with her posse, frequently weighs in against oil companies in litigation.[8] Oreskes has also written extensively to demonize industry’s motives and to advance her conspiracy theories in which manufacturing industry (but not lawsuit industry) is responsible for suppressing the truth of positions that Oreskes believes fervently.[9] She has decried the political discrediting of science, while participating in a political strategy to discredit her scientific opponents.[10] The line between trust and credulity can sometimes be hard to locate.

The defendants had moved in limine to exclude Oreskes’ proferred historian testimony,[11] under the District of Columbia’s standard for admitting and excluding expert witness opinion testimony.[12] Oreskes’ opinion, at issue in the Mann case, was on

  • the general basis for finding scientific research to be reliable, and
  • that “think-tanks” (including the defendant CEI) “ignore, misrepresent, or reject” principled scientific thought on environmental issues.

On the general issue of reliability, Oreskes proferred an opinion that scientific research is made reliable by

“the collective vetting and critical interrogation of claims through scientific workshop, meetings, conferences, and above all, publication in peer-reviewed journals, formal scientific assessments and reports of government scientific agencies and laboratories.”

Even on superficial review, this description appears woefully inadequate and incomplete. For Oreskes, scientific reliability seems to be all about meetings, publications, and governmental reviews, with no room for actual data gathered in attempts to refute hypotheses, or room for interrogating the data and their quality. Nonetheless, on this general issue of reliability, the Court found her opinion to acceptable but redundant to scientific witnesses who had first-hand knowledge of Mann’s work (as opposed to an historian). On the first part of her proferred opinion, Judge Irving expressed his skepticism that Oreskes’ opinion would be helpful to the jury; Oreskes’ testimony might give the jury a framework that could be used to assess whether Mann’s work was fraudulent or not. Judge Irving held, however, that Oreskes’ testimony ran afoul of the law in failing to “to use a scientific technique which applies reliable methodologies.”[13]

On the second proferred opinion, the ad hominem attack on the bona fides of CEI and similar “think-tanks,” Judge Irving found Oreskes, in her report, failed to provide any explanation of her methodology.[14]

As was the case with several of Plaintiff’s proffered experts, Dr. Oreskes’ report was devoid of any discussion of her methodologies. Mann’s lawyers sought to remedy the omission by adverting to Oreskes’ description, in her deposition testimony, of her “content analysis” methodology, as applied to the public statements of the CEI:

“So we read the documents. And as I said before, we applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.

                           * * * * *

In the case of ExxonMobil, we had the opportunity to do this analysis because the company itself had made public these documents. And they claimed in public that if you read these documents, you would see that everything was fine and that ExxonMobil had done nothing wrong.

We applied a well-established method in social science, which is broadly accepted as being, you know, a reputable method of analyzing something, content analysis, in order to show that there was this fairly substantial disparity between what the company scientists were saying in their private reports and publishing in peer-reviewed scientific literature which was essentially consistent with what other scientists were saying versus what the company was saying in public in advertisements that were aimed at the general public.”[15]

Alas, it turned out that this jargon-laden description of method was irrelevant because Oreskes admitted that she had not performed a “content analysis” in the Mann case.[16] When pressed to explain the methodology actually used in the Mann case, she candidly explained:

“If you want me to tell you what my method is, it’s reading and thinking. We read. We read documents. And we think about them.”[17]

The court found this explanation more than a little problematic. “Reading and thinking about documents” are not the sort of methodologies that are beyond the ken of the jury. Oreskes’ best effort to explain what she had done left “the Court is unable to distinguish why Dr. Oreskes is more capable than the average juror, who can also read and think about documents.”[18]

The court’s inability to fathom what Oreskes might offer was not due to any judicial disability. Oreskes’ “reading and thinking” had never been peer-reviewed, had no known success rate, and could not be replicated by other experts in her field. The court saw that Oreskes’ opinion had not come from scientific method, and that her opinion would be aptly characterized “as a historical narrative or research compilation than scientific testimony.”[19] Oreskes’ opinion could not be justified as expert experiential opinion because it was not based upon her personal experience; rather, her opinion was based upon her review of documents and reports of others.

Oreskes’ “expert” witness report regaled the court with her take on CEI’s previous actions and statements. Oreskes offered the opinion that CEI has a history of opposing “progressive” policies and that it regularly advocates against “valid and widely accepted scientific research.” Judge Irving recognized that these opinions were nothing more than Oreskes’ subjective historical summary of CEI’s actions, no doubt with a heavy dose of Oreskes’ personal animus against the CEI. As Judge Learned Hand declared almost 100 years ago, “[a]rgument is argument whether in the box or at the bar, and its proper place is the last.”[20]

As for methodology, the court found none. The court agreed with the CEI that “Dr. Oreskes made no effort to compile or catalogue CEI’s publications according to an objectively defined set of metrics.” Oreskes was thus excluded from the litigation in July 2021.[21]

The plaintiff and Naomi Oreskes were not content to leave matters as they were decided in Judge Irving’s order. Mann moved for reconsideration of Oreskes’ exclusion, with a more limited proffer of testimony that would address the “importance of scientific expertise and the significance of the scientific method and peer review process in scientific debate.”[22]

In this requested do-over, Mann submitted a supplemental declaration from Oreskes, in which she elaborated upon her methodology of “contextual exposition.” Mann further argued that Oreskes should be “permitted to testify regarding scientific principles to permit the jury to understand those principles and to apply them to facts without running afoul of the general rules relating to opinion testimony.”

To this end, Oreskes would give the jury a “contextual exposition…of the character and nature of scientific research.” Mann contended that this foundational opinion testimony was “crucial to enable the jury to reach its conclusions concerning the truth or falsehood of Defendants’ objectively verifiable statements of fact about Dr. Mann and his scientific research which produced the Hockey Stick Graph.”

Essentially, Mann was seeking to have Oreskes’ testimony admitted as a “teaching expert witness,” who would not provide her own personal opinion, but who would give the jury the relevant scientific principles that they may apply to the facts of the case as they find. Judge Irving accepted this more limited proffer, and modified his earlier ruling to permit Oreskes to give the so-called “contextual information” that renders scientific research reliable, such as the peer review process.[23] As noted above, this aspect of the Oreskes’ proffered testimony appears incomplete, with emphasis on “social control,” at the expense of valid inference and data quality and integrity. 

Judge Irving’s reconsideration gave Oreskes a very limited remit to testify at trial. His Honor emphasized, however, that most of what she had originally proposed for her testimony was “unreliable and irrelevant.” Oreskes will not be allowed to give her opinion over the history of “the debate over anthropogenic climate change,” or hold forth with opinions about the history and character of CEI’s “agenda.” Judge Irving reiterated his finding that Oreskes’ opinions on these matters “are not demonstrably the product of any scientific principle or method, and are largely irrelevant.”[24]

Furthermore, Oreskes will not be allowed to discuss Mann’s work, or whether or not his methodology is valid, or whether there is evidence or not of data manipulation or fraudulent behavior. As Judge Irving summarized the matter:

“Dr. Oreskes’ opinion in that regard would be entirely speculative given that she has not demonstrated any particular expertise or experience regarding Dr. Mann’s research. Neither her original expert report nor her supplemental declaration indicates any intimate knowledge of Dr. Mann’s work. Further, Dr. Oreskes’ expert report identifies her as an expert in the history of science and in geology, not as an expert in climate reconstruction. Dr. Oreskes has not demonstrated any specialized knowledge or experience concerning the substantive or factual aspects of the MBH research.”

Judge Irving also excised Oreskes’ claim, made in her belated supplemental declaration, that there is a consensus about the cause of climate change, or that there is a political and ideological basis for CEI’s opposition to the consensus. After all, Mann’s work could have been fraudulent, even if other, sound scientific work came to the same conclusion, and even if that conclusion were widely shared.[25]

The choice of Naomi Oreskes to serve as an expert witness was dubious on several fronts.  First, as a partisan in the climate science debates, Oreskes hardly brought objectivity to the courtroom to support plaintiff Michael Mann. While attacking CEI for political and ideological bias, Oreskes’ helped showcase her own biases, which have long been on display.[26] Mann would be more effectively served by presenting an expert on scientific method who was not such an extreme advocate. Second, as shown by her misidentification of the burden of proof with the coefficient of confidence, Oreskes previously had shown a lack of understanding of scientific and statistical method.[27] Mann might have considered that his case would be better supported by someone who had not made such glaring mistakes, in front of a national audience.

As for whether the historian aspect of Oreskes’ testimony could ever have succeeded, I am more doubtful. Historians who “read and think” often have little to offer beyond what lawyers can accomplish using documents presented to the trier of fact for interpretation.[28]

Presenting historian “expert” witnesses is a commonplace in occupational exposure litigations, involving silicosis or claimed asbestos-related diseases.[29] The use of such expert witnesses leads to serious abuses, by which argument and advocacy are surreptitiously presented as history.[30] Judge Irving’s exclusion of Naomi Oreskes is a valuable precedent for bench and bar.

Trial is set for June 12, 2023.

[1] Michael E. Mann v. National Review, CA 008263 B (filed in 2012, in the Washington, DC Superior Court, Civil Division).

[2] See “Climategate on Appeal” (Aug. 17, 2014).

[3] Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1262-64 (D.C. 2016), as amended (Dec. 13, 2018), cert denied 140 S. Ct. 344 (2019).

[4] There is a useful compendium of rulings available through the CEI website.

[5] See District of Columbia Superior Court Order on Expert Witnesses (July 26, 2021) [Order]. T.C. Kelly, “Expert Testimony Excluded in Michael Mann Defamation Lawsuit,” Expert Pages (Aug. 11, 2021).

[6] Naomi Oreskes, Why Trust Science? (2019).

[7] See “Playing Dumb on Statistical Significance” (Jan. 4, 2015); “ The Rhetoric of Playing Dumb on Statistical Significance – Further Comments on Oreskes” (Jan. 20, 2015); “Significance Levels Made Whipping Boy on Climate Change Evidence; Is 0.05 too Strict?” Error Statistics (Jan. 4, 2015).

[8] See, e.g., Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, and Geoffrey Supran in Support of Appellees and Affirmance, County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503, 18-16376 at 2 (9th Cir. 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, City of Oakland v. B.P. PLC, No. No. 18-16663 (9th Cir. Mar. 20, 2019); Brief of Amici Curiae Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran and the Union of Concerned Scientists, Mayor and City Council of Baltimore  v BP PLC, No. 19-1644 (4th Cir. Sept. 3, 2019).

[9] 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). See also Geoffrey Supran & Naomi Oreskes, “Assessing ExxonMobil’s climate change communications (1977–2014),” 12 Envt’l Research Letters (Aug. 2017). Remarkably, Oreskes declared no conflicts of interest in this publication.

[10] Zoë Corbyn, “Naomi Oreskes: ‘Discrediting science is a political strategy’,” The Guardian (Nov. 2019).

[11] See Defendants Competitive Enterprise Institute and Rand Simberg’s Motion in Limine to Exclude the Expert Testimony of Dr. Naomi Oreskes (“MIL Oreskes”), filed on March 3, 2021.

[12] The standard is substantially the same as that articulated in Federal Rule of Evidence 702; see Motorola Inc. v. Murray, 147 A.3d 751 (D.C. Ct. App. 2016) (applying standard to case involving claims of brain cancer from the use of mobile telephones).

[13] Order at 23-24.

[14] Judge Irving noted that failure to explain methodology was a fatal flaw, citing Sacchetti v. Gallaudet Univ., 344 F. Supp. 3d 233, 250-51 (D.D.C. 2018).

[15] Plaintiff’s Opposition, Oreskes Deposition v.2 at 55:12-56:5.

[16] Id. at 33:5-15.

[17] Id. at 34:13-15.

[18] Order at 24-25 (citing Parsi v. Daioleslam, 852 F. Supp. 2d 82, 89 (D.D.C. 2012) (rejecting an expert opinion based solely on the experts “reading and viewing” and finding that reading, alone, does not constitute an acceptable methodology).

[19] Id. The court acknowledged that expert witness opinion could be “experiential,” but such a case, the witness must explain “how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.” Id. (citing Arias v. DynCorp., 928 F. Supp. 2d 10, 15-16 (D.D.C 2013).

[20] Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930).

[21] Order at 25.

[22] Court Order on Expert Witnesses, in Michael E. Mann v. National Review, CA 008263 B, Washington, D.C, Superior Court, Civil Division (Jan. 22, 2022)

[Order II at 20].

[23] Order II at 22.

[24] Order II at 22-23.

[25] Order II at 23-24.

[26] See, e.g., Naomi Oreskes  & Erik M. Conway, The Big Myth: How American Business Taught Us to Loathe Government and Love the Free Market (2023).

[27] Oreskes, in the past, has shown a stunning disregard for the meaning of scientific and statistical concepts.[27]

[28] See, e.g., Quester v. B.F. Goodrich Co., Cuyahoga Cty., Ohio, C.P. Case No. 03-509539 (Jan. 12, 2008) (excluding historian Gerald Markowitz’s testimony as impermissible attempt to introduce expert witness opinion on defendants’ intent and motive) (Sweeney, J.).

[29] Nathan A. Schachtman, “On Deadly Dust and Histrionic Historians: Preliminary Thoughts on History and Historians as Expert Witnesses,” 2 Mealey’s Silica Litigation Report Silica 1, 2 (November 2003); Nathan Schachtman & John Ulizio, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” in: Brian Dolan & Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012); Scott Kozak, “Use and Abuse of ‘Historical Experts’ in Toxic Tort Cases,” in Toxic & Hazardous Substances Litigation (March 2015).

[30] See How Testifying Historians Are Like Lawn-Mowing Dogs” (May 15, 2010); “Courting Clio: Historians and Their Testimony in Products Liability Litigation” (May 24, 2010);  A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010); “Narratives & Historians for Hire” (Dec. 15, 2010); “Courting Clio: Historians Under Oath – Part 1” (Dec. 17, 2011); “Courting Clio: Historians Under Oath – Part 2” (Dec. 17, 2011); “What Happens When Historians Have Bad Memories” (Mar. 15, 2014); “Too Many Narratives – Historians in the Dock” (July 14, 2014); Historians Noir (Nov. 18, 2014); “Lawyers as Historians” (Feb. 2, 2016); “Succès de scandale – With Thanks to Rosner & Markowitz” (Mar. 26, 2017); “More Rosner-Markowitz Faux History of Workplace Safety” (July 9, 2020).

Posted in Historian Testimony, Scientific Misconduct | 5 Comments »

Doctor Moline – Why Can’t You Be True?

December 18th, 2022

Doctor Moline, why can’t you be true?

Oh, Doc Moline, why can’t you be true?

You done started doing the things you used to do.

Mass torts are the product of the lawsuit industry, and since the 1960s, this industry has produced tort claims on a truly industrial scale. The industry now has an economic ally and adjunct in the litigation finance industry, and it has been boosted by the desuetude of laws against champerty and maintenance. The way that mass torts are adjudicated in some places could easily be interpreted as legalized theft.

One governor on the rapaciousness of the lawsuit industry has been the requirement that claims actually be proven in court. Since the Supreme Court’s ruling in Daubert, the defense bar has been able, on notable occasions, to squelch some instances of false claiming. Just as equity often varies with the length of the Chancellor’s foot, gatekeeping of scientific opinion about causation often varies with the scientific acumen of the trial judge. From the decision in Daubert itself, gatekeeping has been under assault form the lawsuit industry and its allies. I have, in these pages, detailed the efforts of the now defunct Project on Scientific Knowledge and Public Policy (SKAPP) to undermine any gatekeeping of scientific opinion testimony for scientific or statistical validity. SKAPP, as well as other organizations, and some academics, in aid of the lawsuit industry, have lobbied for the abandonment of the requirement of proving causation, or for the dilution of the scientific standards for expert opinions of causation.[1] The counter to this advocacy has been, and continues to be, an insistence that the traditional elements of a case, including general and specific causation, be sufficiently proven, with opinion testimony that satisfies the legal knowledge requirement for such testimony.

Alas, expert witness testimony can go awry in other ways besides merely failing to satisfy the validity and relevance requirements of the law of evidence.[2] One way I had not previously contemplated is suing for defamation or “product disparagement.”

We are now half a century since occupational exposures to various asbestos fibers came under general federal regulatory control, with regulatory requirements that employers warn their employees about the hazards involved with asbestos exposure. This federally enforced dissemination of information about asbestos hazards created a significant problem for the asbestos lawsuit industry.  Cases of mesothelioma have always occurred among persons non-occupationally exposed to asbestos, but as occupational exposure declined, the relative proportion of mesothelioma cases with no obvious occupational exposures increased. The lawsuit industry could not stand around and let these tragic cases go to waste.

Cosmetic talc variably has some mineral particulate that comes under the category of “elongate mineral particles,” (EMP), which the lawsuit industry could assert is “asbestos.” As a result, this industry has been able to reprise asbestos litigation into a new morality tale against cosmetic talc producers and sellers. LTL Management LLC was formerly known as Johnson & Johnson Consumer Inc. [J&J], a manufacturer and seller of cosmetic talc. J&J became a major target of the lawsuit industry in mesothelioma (and ovarian cancer) cases, based upon claims that EMP/asbestos in cosmetic talc caused their cancers. The lawsuit industry recruited its usual retinue of expert witnesses to support its litigation efforts.

Standing out in this retinue was Dr. Jacqueline Moline. On December 16, J&J did something that rarely happens in the world of mass torts; it sued Dr. Moline for fraud, injurious falsehood and product disparagement, and violations of the Lanham Act (§ 43(a), 15 U.S.C. § 1125(a)).[3] The gravamen of the complaint is that Dr. Moline, in 2020, published a case series of 33 persons who supposedly used cosmetic talc products and later developed malignant mesothelioma. According to her article, the 33 patients had no other exposures to asbestos, which she concluded, showed that cosmetic talc use can cause mesothelioma:

“Objective: To describe 33 cases of malignant mesothelioma among individuals with no known asbestos exposure other than cosmetic talcum powder.

Methods: Cases were referred for medico-legal evaluation, and tissue digestions were performed in some cases. Tissue digestion for the six ases described was done according to standard methodology.

Results: Asbestos of the type found in talcum powder was found in all six cases evaluated. Talcum powder usage was the only source of asbestos for all 33 cases.

Conclusions: Exposure to asbestos-contaminated talcum powders can cause mesothelioma. Clinicians should elicit a history of talcum powder usage in all patients presenting with mesothelioma.”[4]

Jacqueline Moline and Ronald Gordon both gave anemic conflicts disclosures: “Authors J.M. and R.G. have served as expert witnesses in asbestos litigation, including talc litigation for plaintiffs.”[5] Co-author Maya Alexandri was a lawyer at the time of publication; she is now a physician practicing emergency medicine, and also a fabulist. The article does not disclose the nature of Dr. Alexandri’s legal practice.

Dr. Moline is a professor and chair of occupational medicine at the Zucker School of Medicine at Hofstra/Northwell. She received her medical degree from the University of Chicago-Pritzker School of Medicine and a Master of Science degree in community medicine from the Mount Sinai School of Medicine. She completed a residency in internal medicine at Yale New Haven Hospital and an occupational and environmental medicine residency at Mount Sinai Medical Center. Dr. Moline is also a major-league testifier for the lawsuit industry.  Over the last quarter century, she has testified from sea to shining sea, for plaintiffs in asbestos, talc, and other litigations.[6]

According to J&J, Dr. Moline was listed as an expert witness for plaintiff, in over 200 talc mesothelioma cases against J&J.  There are, of course, other target defendants in this litigation, and the actual case count is likely higher. Moline has testified in 46 talc cases against J&J, and she has testified in 16 of those cases.[7] J&J estimates that she has made millions of dollars in service of the lawsuit industry.[8]

The authors’ own description of the manuscript makes clear the concern over the validity of personal and occupational histories of the 33 cases: “This manuscript is the first to describe mesothelioma among talcum powder consumers. Our case study suggest [sic] that cosmetic talcum powder use may help explain the high prevalence of idiopathic mesothelioma cases, particularly among women, and stresses the need for improved exposure history elicitation among physicians.”[9]

The Complaint alleges that Moline knew that her article, testimony, and public statements about the absence of occupational asbestos exposure in subjects of her case series, were false.  After having her testimony either excluded by trial courts, or held on appeal to be legally insufficient,[10] Moline set out to have a peer-reviewed publication that would support her claims. Because mesothelioma is sometimes considered, uncritically, as pathognomonic of amphibole asbestos exposure, Moline was obviously keen to establish the absence of occupational exposure in any of the 33 cases.

Alas, the truth appears to have caught up with Moline because some of the 33 cases were in litigation, in which the detailed histories of each case would be discovered. Defense counsel sought to connect the dots between the details of each of the 33 cases and the details of pending or past lawsuits. The federal district court decision in the case of Bell v. American International Industries blew open the doors of Moline’s alleged fraud.[11]  Betty Bell claimed that her use of cosmetic talc had caused her to develop mesothelioma. What Dr. Moline and Bell’s counsel were bound to have known was that Bell had had occupational exposure to asbestos. Before filing a civil action against talc product suppliers, Bell filed workers’ compensation against two textile industry employers.[12] Judge Osteen’s opinion in Bell documents the anxious zeal that plaintiffs’ counsel brought to bear in trying to suppress the true nature of Ms. Bell’s exposure. After Judge Osteen excoriated Moline and plaintiffs’ counsel for their efforts to conceal information about Bell’s occupational asbestos exposures, and about her inclusion in the 33 case series, plaintiffs’ counsel dismissed her case.

Another of the 33 cases was the New Jersey case brought by Stephen Lanzo, for whom Moline testified as an expert witness.[13] In the course of the Lanzo case, the defense developed facts of Mr. Lanzo’s prior asbestos exposure.  Crocidolite fibers were found in his body, even though the amphibole crocidolite is not a fiber type found in talc. Crocidolite is orders of magnitude more potent in causing human mesotheliomas than other asbestos fiber types.[14] Despite these facts, Dr. Moline appears to have included Lanzo as one of the 33 cases in her article.

And then there were others, too.

[1] See “Skappology” (May 26, 2020);  “SKAPP A LOT” (April 30, 2010); “Manufacturing Certainty” (Oct. 25, 2011); “David Michaels’ Public Relations Problem” (Dec. 2, 2011); “Conflicted Public Interest Groups” (Nov. 3, 2013).

[2] See, e.g., “Legal Remedies for Suspect Medical Science in Products Cases – Part One” (June 2, 2020); “Part Two” (June 3, 2020); “Part Three” (June 5, 2020); “Part 4” (June 7, 2020); “Part 5” (June 8, 2020).

[3] LTL Management LLC v. Dr. Jacqueline Miriam Moline,

Adv. Proc. No. 22- ____, in Chap. 11, Case No. 21-30589, Bankruptcy Ct., D.N.J. (Dec. 16, 2022) [Complaint]

[4] Jacqueline Moline, Kristin Bevilacqua, Maya Alexandri, and Ronald E. Gordon, “Mesothelioma Associated with the Use of Cosmetic Talc,” 62 J. Occup. & Envt’l Med. 11 (Jan. 2020) (emphasis added) [cited as Moline]

[5] Dr. Gordon has had other litigation activities of interest. See William C. Rempel, “Alleged Mob Case May Best Illustrate How Not to Play the Game : Crime: Scheme started in a Texas jail and ended with reputed mobsters charged in $30-million laundering scam,” L.A. Times (July 4, 1993).

[6] See., e.g., Fowler v. Akzo Nobel Chemicals, Inc., 251 N.J. 300, 276 A. 3d 1146 (2022); Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 254 A.3d 691 (App. Div. 2021); Fishbain v. Colgate-Palmolive Co., No. A-1786-15T2 (N.J. App. Div. 2019); Buttitta v. Allied Signal, Inc., N.J. App. Div. (2017); Kaenzig v. Charles B. Chrystal Co., N.J. App. Div. (2015); Anderson v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 3 A.3d 545 (App. Div. 2010); Cioni v. Avon Prods., Inc., 2022 NY Slip Op 33197(U) (2022); Zicklin v. Bergdorf Goodman Inc., 2022 NY Slip Op 32119(U) (N.Y.Sup. N.Y. Cty. 2022); Nemeth v. Brenntag North America, 183 A.D.3d 211, 123 N.Y.S.3d 12 (2020), rev’d, 38 N.Y.3d 336, 345 (2022) (Moline’s testimony insufficient); Olson v. Brenntag North America, Inc., 2020 NY Slip Op 33741(U) (N.Y.Sup. N.Y. Cty. 2020), rev’d, 207 A.D.3d 415, 416 (N.Y. 1st Dep’t 2022) (holding Moline’s testimony on causation insufficient).; Moldow v. A.I. Friedman, L.P., 2019 NY Slip Op 32060(U) (N.Y.Sup. N.Y. Cty. 2019); Zoas v BASF Catalysts, LLC., 2018 NY Slip Op 33009(U) (N.Y.Sup. N.Y. Cty. 2018); Prokocimer v. Avon Prods., Inc., 2018 NY Slip Op 33170(U) (Dec. 11, 2018); Shulman v. Brenntag North America, Inc., 2018 NY Slip Op 32943(U) (N.Y.Sup. N.Y. Cty. 2018); Pistone v. American Biltrite, Inc., 2018 NY Slip Op 30851(U) (2018); Evans v. 3M Co., 2017 NY Slip Op 30756(U) (N.Y.Sup. N.Y. Cty. 2017); Juni v. A.O. Smith Water Prods., 48 Misc.3d 460, 11 N.Y.S.3d 416 (2015), aff’d, 32 N.Y.3d 1116, 116 N.E.3d 75, 91 N.Y.S.3d 784 (2018); Konstantin v. 630 Third Ave. Associates, 121 A.D. 3d 230, 990 N.Y.S. 2d 174 (2014); Lopez v. Gem Gravure Co., 50 A.D.3d 1102, 858 N.Y.S.2d 226 (2008); Lopez v. Superflex, Ltd., 31 A.D. 3d 914, 819 N.Y.S. 2d 165 (2006); DeMeyer v. Advantage Auto, 9 Misc. 3d 306, 797 N.Y.S.2d 743 (2005); Amorgianos v. National RR Passenger Corp., 137 F. Supp. 2d 147 (E.D.N.Y. 2001), aff’d, 303 F. 3d 256 (2d Cir. 2002); Chapp v. Colgate-Palmolive Co., 2019 Wisc. App. 54, 935 N.W.2d 553 (2019); McNeal v. Whittaker, Clark & Daniels, Inc., 80 Cal. App. 853 (2022); Burnett v. American Internat’l Indus., Case No. 3:20-CV-3046 (W.D. Ark. Jan. 27, 2022); McAllister v. McDermott, Inc., Civ. Action No. 18-361-SDD-RLB (M.D.La. Aug. 14, 2020); Hanson v. Colgate-Palmolive Co., 353 F. Supp. 3d 1273 (S.D. Ga. 2018); Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F. 3d 1260 (9th Cir. 1998); Carroll v. Akebono Brake Corp., 514 P. 3d 720 (Wash. App. 2022).

[7] Complaint ¶15.

[8] Complaint ¶19.

[9] Moline at 11.

[10] See, e.g., In re New York City Asbestos Litig. (Juni), 148 A.D.3d 233, 236-37, 239 (N.Y. App. Div. 1st Dep’t 2017), aff’d, 2 N.Y.3d 1116, 1122 (2018); Nemeth v. Brenntag North America, 183 A.D.3d 211, 123 N.Y.S.3d 12 (N.Y. App. Div. 2020), rev’d, 38 N.Y.3d 336, 345 (2022); Olson v. Brenntag North America, Inc., 2020 NY Slip Op 33741(U) (N.Y.Sup. Ct. N.Y. Cty. 2020), rev’d, 207 A.D.3d 415, 416 (N.Y. App. Div. 1st Dep’t 2022).

[11] Bell v. American Internat’l Indus. et al., No. 1:17-CV-00111, 2022 U.S. Dist. LEXIS 199180 (M.D.N.C. Sept. 13, 2022) (William Lindsay Osteen, Jr., J.). See Daniel Fisher, “Key talc/cancer study cited by plaintiffs hid evidence of other exposure, lawyers say” (Dec. 1, 2022).

[12] According to the Complaint against Moline, Bell had filed workers’ compensation claims with the North Carolina Industrial Commission, back in 2015, declaring under oath that she had been exposed to asbestos while working with two textile manufacturing employers, Hoechst Celanese Corporation and Pillowtex Corporation. Complaint at ¶102. As frequently happens in civil actions, the claimant dismisses worker’s compensation without prejudice, to pursue the more lucrative payday in a civil action, without the burden of employers’ liens against the recovery. Complaint at 102.

[13] See “New Jersey Appellate Division Calls for Do-Over in Baby Powder Dust Up” (May 22, 2021).

[14] David H. Garabrant & Susan T. Pastula, “A comparison of asbestos fiber potency and elongate mineral particle (EMP) potency for mesothelioma in humans,” 361 Toxicology & Applied Pharmacol. 127 (2018) (“relative potency of chrysotile:amosite:crocidolite was 1:83:376”). See also D. Wayne Berman & Kenny S. Crump, “Update of Potency Factors for Asbestos-Related Lung Cancer and Mesothelioma,” 38(S1) Critical Reviews in Toxicology 1 (2008).

Posted in Expert Witness Discovery, Expert Witnesses, Rule 702, Scientific Evidence, Scientific Misconduct, Underlying Data | 22 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 »

Madigan’s Shenanigans & Wells Quelled in Incretin-Mimetic Cases

July 15th, 2022

The incretin-mimetic litigation involved claims that the use of Byetta, Januvia, Janumet, and Victoza medications causes pancreatic cancer. All four medications treat diabetes mellitus through incretin hormones, which stimulate or support insulin production, which in turn lowers blood sugar. On Planet Earth, the only scientists who contend that these medications cause pancreatic cancer are those hired by the lawsuit industry.

The cases against the manufacturers of the incretin-mimetic medications were consolidated for pre-trial proceedings in federal court, pursuant to the multi-district litigation (MDL) statute, 28 US Code § 1407. After years of MDL proceedings, the trial court dismissed the cases as barred by the doctrine of federal preemption, and for good measure, excluded plaintiffs’ medical causation expert witnesses from testifying.[1] If there were any doubt about the false claiming in this MDL, the district court’s dismissals were affirmed by the Ninth Circuit.[2]

The district court’s application of Federal Rule of Evidence 702 to the plaintiffs’ expert witnesses’ opinion is an important essay in patho-epistemology. The challenged expert witnesses provided many examples of invalid study design and interpretation. Of particular interest, two of the plaintiffs’ high-volume statistician testifiers, David Madigan and Martin Wells, proffered their own meta-analyses of clinical trial safety data. Although the current edition of the Reference Manual on Scientific Evidence[3] provides virtually no guidance to judges for assessing the validity of meta-analyses, judges and counsel do now have other readily available sources, such as the FDA’s Guidance on meta-analysis of safety outcomes of clinical trials.[4] Luckily for the Incretin-Mimetics pancreatic cancer MDL judge, the misuse of meta-analysis methodology by plaintiffs’ statistician expert witnesses, David Madigan and Martin Wells was intuitively obvious.

Madigan and Wells had a large set of clinical trials at their disposal, with adverse safety outcomes assiduously collected. As is the case with many clinical trial safety outcomes, the trialists will often have a procedure for blinded or unblinded adjudication of safety events, such as pancreatic cancer diagnosis.

At deposition, Madigan testified that he counted only adjudicated cases of pancreatic cancer in his meta-analyses, which seems reasonable enough. As discovery revealed, however, Madigan employed the restrictive inclusion criteria of adjudicated pancreatic cancer only to the placebo group, not to the experimental group. His use of restrictive inclusion criteria for only the placebo group had the effect of excluding several non-adjudicated events, with the obvious spurious inflation of risk ratios. The MDL court thus found with relative ease that Madigan’s “unequal application of criteria among the two groups inevitably skews the data and critically undermines the reliability of his analysis.” The unexplained, unjustified change in methodology revealed Madigan’s unreliable “cherry-picking” and lack of scientific rigor as producing a result-driven meta-analyses.[5]

The MDL court similarly found that Wells’ reports “were marred by a selective review of data and inconsistent application of inclusion criteria.”[6] Like Madigan, Wells cherry picked studies. For instance, he excluded one study, EXSCEL, on grounds that it reported “a high pancreatic cancer event rate in the comparison group as compared to background rate in the general population….”[7] Wells’ explanation blatantly failed, however, given that the entire patient population of the clinical trial had diabetes, a known risk factor for pancreatic cancer.[8]

As Professor Ioannidis and others have noted, we are awash in misleading meta-analyses:

“Currently, there is massive production of unnecessary, misleading, and conflicted systematic reviews and meta-analyses. Instead of promoting evidence-based medicine and health care, these instruments often serve mostly as easily produced publishable units or marketing tools.  Suboptimal systematic reviews and meta-analyses can be harmful given the major prestige and influence these types of studies have acquired.  The publication of systematic reviews and meta-analyses should be realigned to remove biases and vested interests and to integrate them better with the primary production of evidence.”[9]

Whether created for litigation, like the Madigan-Wells meta-analyses, or published in the “peer-reviewed” literature, courts will have to up their game in assessing the validity of such studies. Published meta-analyses have grown exponentially from the 1990s to the present. To date, 248,886 meta-analyses have been published, according the National Library of Medicine’s Pub-Med database. Last year saw over 35,000 meta-analyses published. So far, this year, 20,416 meta-analyses have been published, and we appear to be on track to have a bumper crop.

The data analytics from Pub-Med provide a helpful visual representation of the growth of meta-analyses in biomedical science.

 

Count of Publications with Keyword Meta-analysis in Pub-Med Database

In 1979, the year I started law school, one meta-analysis was published. Lawyers could still legitimately argue that meta-analyses involved novel methodology that had not been generally accepted. The novelty of meta-analysis wore off sometime between 1988, when Judge Robert Kelly excluded William Nicholson’s meta-analysis of health outcomes among PCB-exposed workers, on grounds that such analyses were “novel,” and 1990, when the Third Circuit reversed Judge Kelly, with instructions to assess study validity.[10] Fortunately, or not, depending upon your point of view, plaintiffs dropped Nicholson’s meta-analysis in subsequent proceedings. A close look at Nicholson’s non-peer reviewed calculations shows that he failed to standardize for age or sex, and that he merely added observed and expected cases, across studies, without weighting by individual study variance. The trial court never had the opportunity to assess the validity vel non of Nicholson’s ersatz meta-analysis.[11] Today, trial courts must pick up on the challenge of assessing study validity of meta-analyses relied upon by expert witnesses, regulatory agencies, and systematic reviews.

[1] In re Incretin-Based Therapies Prods. Liab. Litig., 524 F.Supp.3d 1007 (S.D. Cal. 2021).

[2] In re Incretin-Based Therapies Prods. Liab. Litig., No. 21-55342, 2022 WL 898595 (9th Cir. Mar. 28, 2022) (per curiam)

[3]  “The Treatment of Meta-Analysis in the Third Edition of the Reference Manual on Scientific Evidence” (Nov. 15, 2011).

[4] Food and Drug Administration, Center for Drug Evaluation and Research, “Meta-Analyses of Randomized Controlled Clinical Trials to Evaluate the Safety of Human Drugs or Biological Products – (Draft) Guidance for Industry” (Nov. 2018); Jonathan J. Deeks, Julian P.T. Higgins, Douglas G. Altman, “Analysing data and undertaking meta-analyses,” Chapter 10, in Julian P.T. Higgins, James Thomas, Jacqueline Chandler, Miranda Cumpston, Tianjing Li, Matthew J. Page, and Vivian Welch, eds., Cochrane Handbook for Systematic Reviews of Interventions (version 6.3 updated February 2022); Donna F. Stroup, Jesse A. Berlin, Sally C. Morton, Ingram Olkin, G. David Williamson, Drummond Rennie, David Moher, Betsy J. Becker, Theresa Ann Sipe, Stephen B. Thacker, “Meta-Analysis of Observational Studies: A Proposal for Reporting,” 283 J. Am. Med. Ass’n 2008 (2000); David Moher, Alessandro Liberati, Jennifer Tetzlaff, and Douglas G Altman, “Preferred reporting items for systematic reviews and meta-analyses: the PRISMA statement,” 6 PLoS Med e1000097 (2009).

[5] In re Incretin-Based Therapies Prods. Liab. Litig., 524 F.Supp.3d 1007, 1037 (S.D. Cal. 2021). See In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig. (No. II) MDL2502, 892 F.3d 624, 634 (4th Cir. 2018) (“Result-driven analysis, or cherry-picking, undermines principles of the scientific method and is a quintessential example of applying methodologies (valid or otherwise) in an unreliable fashion.”).

[6] In re Incretin-Based Therapies Prods. Liab. Litig., 524 F.Supp.3d 1007, 1043 (S.D. Cal. 2021).

[7] Id. at 1038.

[8] See, e.g., Albert B. Lowenfels & Patrick Maisonneuve, “Risk factors for pancreatic cancer,” 95 J. Cellular Biochem. 649 (2005).

[9] John P. Ioannidis, “The mass production of redundant, misleading, and conflicted systematic reviews and meta-analyses,” 94 Milbank Quarterly 485 (2016).

[10] In re Paoli R.R. Yard PCB Litig., 706 F. Supp. 358, 373 (E.D. Pa. 1988), rev’d and remanded, 916 F.2d 829, 856-57 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991). See also Hines v. Consol. Rail Corp., 926 F.2d 262, 273 (3d Cir. 1991).

[11] “The Shmeta-Analysis in Paoli” (July 11, 2019). See  James A. Hanley, Gilles Thériault, Ralf Reintjes and Annette de Boer, “Simpson’s Paradox in Meta-Analysis,” 11 Epidemiology 613 (2000); H. James Norton & George Divine, “Simpson’s paradox and how to avoid it,” Significance 40 (Aug. 2015); George Udny Yule, “Notes on the theory of association of attributes in statistics,” 2 Biometrika 121 (1903).

Posted in Causation, Expert Witness Hall of Shame, Meta-analysis, Rule 702, Scientific Evidence, Scientific Misconduct, statistical evidence | No Comments »

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