Mesothelioma plaintiff lawyers will no longer be able to mockingly ask their clients "Have you ever been to Cappadocia, Turkey?" That's because it turns out there's plenty of erionite in the USA. For more info see, just published in the Proceedings of the National Academy of Sciences of the United States of America: "Erionite Exposure in North Dakota and Turkish Villages With Mesothelioma".
The Science and Technology Committee of the UK's House of Commons has just published "Peer Review in Scientific Publications" and it does little to bolster the view that peer review is any sort of a seal of approval of sound science. "We found that despite the many criticisms and the little solid evidence on the efficacy of pre-publication editorial peer review, it is considered by many as important and not something that can be dispensed with." It's a safety blanket at best and one that, with the advent of the internet, is yielding to calls for more transparency rather than better editorial gatekeepers. Critical thinking FTW.
Courts must scrutinize experts because they so often suffer from the God complex.
Full-time work is associated with telomere shortening in women.
Nonarchetypal simian virus 40 (wtSV40) infects and transforms human mesothelial cells.
Catheter-associated UTIs are way down and continue to fall.
A germ-free mouse is an unhappy mouse (great summary article re: impact of gut microbiota).
As we've discussed previously, the Dallas Court of Appeals in Bostic made it logically impossible for a plaintiff injured as the result of multiple potentially causative exposures to recover from any of those responsible for the exposures. They did so by holding that a plaintiff must not only show that the aggregate dose was the "but for" cause of his injury, but also that each defendant's component dose was the "but for" cause of his injury. Thus, if plaintiff were exposed to two doses, each sufficient to have caused his injury, both defendants could argue with equal force under a "but for" standard "had my product never existed plaintiff would still have been injured because of the other guy's product and so my product cannot possibly have been the 'but for' cause of plaintiff's injury".
The source of the problem seems to originate in confusion over what the Texas Supreme Court means by "substantial factor", We've been arguing since our amicus in Borg-Warner that the essence of every court's discussion of foreseeability or proximate cause is risk. Since, as the National Academies put it in Science and Decisions, "[v]irtually every aspect of life involves risk", what courts have been doing is drawing boundaries between those risks for which the imposition of liability would be just and those for which the imposition of liability would be unjust. Substantial factor then means substantial risk and in toxic tort cases risk is measured by exposure, or dose. A plaintiff need only show that "but for" his exposure to asbestos (in the aggregate) he would not have developed mesothelioma but if he's to carry his burden of showing substantial factor causation he must estimate dose for each defendant's contribution to the overall dose. And that's what we thought Borg-Warner said.
Bostic argues in her brief however that any requirement that a plaintiff show what the dose received from an individual defendants product or premises was likely to have been would make it "scientifically impossible" for any plaintiff to prevail. She says that her expert Dr. Longo testified "that it would be scientifically impossible for him to calculate the precise dose of asbestos" that Bostic experienced as a result of his use of Georgia-Pacific's products. Of course Borg-Warner specifically says that a plaintiff is not required to state with mathematical precision the dose-contribution of each defendant. A supportable approximation is good enough. Bostic further implies that coming up with even an approximation of dose is impossible. Is it?
In 1995 Harvey Checkoway wrote: "Quantitative estimation of exposure has become a central focus in occupational epidemiology over the past decade as a result of the increasing emphasis put on exposure-response characterisation for occupational hazards." He concluded by writing: "Methods of assessment of exposure have been given much more attention in recent years. As a result, increasingly sophisticated approaches to retrospective assessment have been developed ... Nevertheless, no amount of foresight and prospective monitoring will replace the need for sound approaches to retrospective estimation of exposure, and the variety of methods now available provide a basis for that work." Not only have such methods been available to expert witnesses for years their use in benzene and other toxic tort litigation is nowadays utterly unexceptional.
Of course a supportable retrospective dose estimation is possible and it's done all the time. The attempt to substitute Dr. Longo's estimation of the highest dose from a one time use of Georgia-Pacific's product for Bostic's estimated total dose from its product is akin to substituting the amount of tar and other particulate generated by one cigarette for a plaintiff's pack-years of smoking - it evades the real question of "what was the risk?" and answers instead another question "was there any risk?" It's an effort to conflate risk and causation and so, without saying so, to get the Texas Supreme Court to adopt the Restatement (Third) of Torts and its attempt to substitute any risk for a substantial risk as the outer boundary of liability. Should they prevail they'll have knocked the cover off the ball.
The Supreme Court decided CSX v. McBride and here's our take. The majority held that whatever proximate cause might be it isn't a hurdle an FELA plaintiff must clear. Instead, without saying so, the court concluded that such a plaintiff has only the causation obstacle set out by the dissent in Palsgraf to deal with. Specifically, "but for", or counterfactual, causation plus the act of a not ordinarily prudent railroad company (requiring foreseeability of some, though not necessarily the, harm). A railroad company thus owes a duty not to the whole world but to its employees' whole future. Put another way, should a railroad do something "wrong" that produces not the harm the apprehension of which would have counseled a different course but which instead puts the employee in a place he otherwise wouldn't be so that he subsequently suffers a completely unforeseeable injury, the railroad is on the hook for the damages.
We are sad of course that the Court didn't take the opportunity to consider legal causation to be properly understood as "but for" causation plus risk. However, given the fact that the Court was interpreting a statute half a century old (one that Congress, by its steadfast refusal to change the Act's language regarding the causation standard, apparently doesn't consider to be the source of absurd or unjust results) the outcome isn't surprising. And it didn't help that the jury instruction on causation requested by CSX, "any cause which, in natural or probable sequence, produced the injury complained of", would shed no light on the distinction between pure "but for" causation and legal causation anyway. Most if not all proximate cause instructions indeed appear to be little more than, as one of our mock jurors muttered of the instruction, "typical lawyer BS".
Had Ms Palsgraf been an employee of the Long Island RR (and had the FELA's "played any part" causation standard been around) she would have prevailed. Bad news for the railroads but good news for anyone else not stuck with the FELA causation standard since whatever the court thinks proximate cause might be at least it's more than "played any part".
The ICNIRP (International Commission on Non-Ionizing Radiation Protection) Standing Committee on Epidemiology recently analyzed published research related to cell phones and brain cancer. This review concludes that evidence from a growing number of studies does not support the theory that cell phones raise the risk of brain cancer.
It's interesting to note that early on D. Savitz, a member of the ICNIRP Standing Committee on Epidemiology, was in the EMF causes childhood leukemia camp. In 1993 with the accumulation of additional data Savitz was able to concluded that “the evidence falls short of demonstrating a causal association between electric and magnetic fields and cancer.”
In 2004 the same members of the ICNIRP Standing Committee on Epidemiology published a detailed review of epidemiological studies of health effects from exposure to radio waves. The reviewers concluded that "results of these studies to date give no consistent or convincing evidence of a causal relation between RF exposure and any adverse health effect."
In 2009 the ICNIRP Standing Committee on Epidemiology published an update of their 2004 review. They noted that the number of papers on this topic had grown since 2004, but concluded that the available data does not suggest a causal association between mobile phone use and fast growing tumours in the brain such as malignant glioma. The similar absence of an association for slow growing tumours such as meningioma and acoustic neuroma is far less conclusive because the period of observation is simply too short.
With ICNIRP’s caveat “the possibility of a small or a longer term effect cannot be ruled out", I’m sure this isn't the end of the story. We’ll keep you posted.
When a speaker selects and puts forward the premises that are to serve as foundation for his argument, he relies on his hearers’ adherence to the propositions from which he will start.
- Perelman and Olbrechts-Tyteca “The New Rhetoric”
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