Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

How confident should courts be in the opinions of expert witnesses testifying at the bleeding edge of science when the life, liberty or property of a citizen hangs in the balance? Not very, if a new study is any indication. The authors of Conflicting Biomedical Assumptions for Mathematical Modeling: The Case of Cancer Metastasis wanted to build an exemplar mathematical model of cancer metastasis and open it up for testing and systematic evaluation. Instead they found that none of the twenty-eight leading academic experts in metastasis could agree on even the basics of the process. There were, in fact, as many opinions about the course of metastasis as there were researchers.

The authors found that a wide range of incompatible assumptions are held by scientists studying the same subject and that no two experts advanced identical scenarios for cancer metastasis. Most tellingly, the differences were largely invisible to the experts themselves.

As the authors wrote: "In their description of metastasis, experts grouped the same symbols/events differently, they varied their ordering of events, and often suggested recurrent events absent in the outline that we showed them (the 'textbook' version of cancer metastasis). While some disagreements were minor, such as proposing that 'some unknown extra steps occur between these events', others were substantial." They went on to write: "It was clear after 28 interviews that despite similarities, experts think differently about metastasis."

So what to make of it?  If nothing else the paper supports the view that (1) finding an expert whose views on an uncertain area of science align with your client's pleadings is probably no more challenging than going through the buffet line at your local cafeteria and picking out what you want; and, (2) a given expert's opinion, made under such conditions of uncertain science, is almost certainly wrong.
 

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Aggregate settlements are all about the Benjamins, whatever the ALI may say.

Some cases of multiple myeloma and MDS/AML share a common etiology.

Trial by mathematics: better reasoning, not abdication of the duty to reason.

Third generation cephalosporin-resistant E. coli may make the MRSA problem look easy.

Individual genetic susceptibility explains beryllium sensitization at very low exposure levels.

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Back in 1987 right after I'd gotten out of law school and passed the bar one of the first things I worked on was objecting to a request by plaintiff's counsel for all of the death certificates gathered by the University of Texas School of Public Health for its study of our client's refinery. Plaintiffs' retained epidemiologist wanted to do his own "unbiased" study, he claimed.

"Have you heard of the Texas Sharpshooter?", asked the school's biostatistician when I met with him for the first time. No, I hadn't. But I would soon understand that when you get to draw your target after you see where your shots have struck, your accuracy improves dramatically. And that was exactly what happened when plaintiffs' expert did his study. Suddenly big risks appeared where none had been found by other investigators.

The problem, of course, was that the expert's hypothesis was generated by the litigation, and not by scientific curiosity. He knew who had developed leukemia and so, after reviewing payroll records and depositions, honed in on the inevitable commonalities among the afflicted workers. Thus he discovered what tasks must, in his mind, have lead to the causative exposures; and, sure enough, his unpublished study showed that that there was a big increase in leukemia among those with work histories like our plaintiffs.

Yet even in Beaumont, even in the bad old days, the judge who usually gave us fits (admitting the Sumner Simpson papers against defendants who'd never heard of them, much less participated in the alleged conspiracy) recognized the fallacy embedded in the claims of plaintiffs' expert and excluded his ex post epi study (though he had let plaintiffs get the death certificates). You can always find something that events have in common after they've occurred, the court held. The trick, and the real test of a scientific theory, is whether it can predict those events before the test is run (or the Texas sharpshooter's shots are fired).

According to the scientific method a sound test is one designed to test a theory's predictions and not just to verify the investigator's preconceived notions. Sadly, that distinction was overlooked by the New York appellate court in Nonnon II. Nevertheless, all surely cannot be lost when such things go better in Illinois. The very point missed by the court in Nonnon II was seized upon by an Illinois trial court. It examined the findings of the same expert doing the very same sort of ex post epi study who arrived at the same conclusion (which again flew in the face of objective, blinded studies done by the state) and, deciding enough was enough, threw out plaintiffs' claims. Looking at the two rulings it appears we haven't come very far in the last 25 years. On one side is the emotive power of claims fanned by fears of childhood leukemia clusters and on the other the cold hard facts and a whole lot of uncertainty. Not much of anything has changed I suppose.

Note to readers: We're coming up on 800 posts and I've just now learned that I routinely fail to check the "Send Notification" box upon posting. Thus those of you who've signed up haven't gotten notifications of the vast majority of our musings. I apologize and promise to check the box henceforth. h/t Laura K. Deen.

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"The exploration of the viral universe has only just begun."

People support evidence-based decision-making only so long as it supports their prior decisions.

Recurrence of SJS and TEN suggests predisposing factors.

Which came first, the C. albicans or the oral cancer?

In New York, the strength of a single epidemiological study is enough to support a causal inference.

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Well, the Reference Manual on Scientific Evidence: Third Edition is out. And the fix is in.

Think we exaggerate? How about this little gem from the Preface: "Judges and juries, however, must consider financial conflicts of interest when assessing scientific testimony. The threshold for pursuing the possibility of bias must be low. In some instances, judges have been frustrated in identifying expert witnesses who are free of conflict of interest because entire fields of science seem to be co-opted by payments from industry"?

Or how about the first section of the first chapter of the Manual: "A. Atomization"? Citing our least favorite case, Milward v. Acuity, the Manual frowns on the effort of courts to examine the premises, and the evidence allegedly supporting those premises, of an expert when determining whether his causal inference is warranted. Noting, very slyly and without disclosing their demand for transparency and accountability, that certain well known and respected authorities have concluded that ultimately the determination of causation is a matter of scientific judgment "reflecting the weight of the evidence", the Manual chastises those who might cock an eyebrow when it turns out that none of the "evidence" proffered by an expert actually supports his opinion. What duties would be left to a gatekeeper obliged to accept the mere ipse dixit of a well credentialed academic? The Manual, unsurprisingly, doesn't say.

Worse yet, and indicative of who, and what cause, was behind the effort, the Manual goes on to cite the new-ish Milward three more times. Once for the proposition that the unproveability of a theory is proof of the theory; once to support the rubber stamping of an expert's personalized and unexamined - weighing in the scales of his scientific judgment - "methodology"; and, once to reject the idea that statistical significance testing - the "it might be so" hurdle for hypothesis generation from statistics - is any business of federal judges.

The first chapter tellingly concludes that "there are serious concerns about whether ... the guidelines have resulted in trial judges encroaching on the province of the jury to ... judge the overall credibility of  ... scientific theories." We thought the whole point of Daubert was to ensure a better approximation of the truth by at least limiting the theories to be considered by lay juries to those that have a decent chance of being true. Guess not.

Anyway, the next chapter, as with the Second Edition, goes on to roll its eyes at the Popperian view of science embraced by the court in Daubert. Its author, again, is "Peak Oil" advocate David Goodstein. More on that later.

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