Mass Torts: State of the Art

Mass Torts: State of the Art

Category Archives: Reason

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Posted in Microbiology, Reason, Risk, The Law
The Supreme Court of Connecticut adopts the duty triggering rule “if an outcome made possible by the act is foreseeable then any outcome made possible by the act is foreseeable” – and in the process proves that it doesn’t understand physics (the case involved a child dropping an 18 lb piece of cinder block from the third floor of a… Continue Reading

A Seat Belt Case Illustrates Why Risk Beats Causation as an Explanation of Tort Liability

Posted in Reason, Risk, The Law
The Texas Supreme Court has finally done away with the prohibition on seat-belt evidence in auto accident cases. See Nabors Well Services, LTD. et al v. Romero, et al. I recall thinking in law school just how odd it was that a defendant couldn’t introduce evidence of plaintiff’s failure to wear his seat belt. After all, the… Continue Reading

Dreadful Sentence of the Week

Posted in Causality, Epidemiology, Reason
“… 62 of the plaintiffs … had statistically significantly higher rates of genitourinary and reproductive illness and procedures compared to the rest of the county.” That’s from Whitlock v. Pepsi Americas, a hexavalent chromium case, and it was part of the reasoning that went into the court’s decision to grant plaintiff leave to supplement her… Continue Reading

“It is indicative of a lack of understanding of the scientific method among many scientists”

Posted in Causality, Molecular Biology, Reason
For several years now we’ve been trying to spread the word to the legal community that a great many people who hold themselves out as scientists, including more than a few who’ve published papers in the most prestigious peer reviewed journals around, aren’t really doing science. They’re not coming up with hypotheses and testing them. Instead of avoiding that pitfall which humans are… Continue Reading

Chance Is Not A Thing: So you can’t lose it

Posted in Causality, Reason, The Law, Uncategorized
Conceptually the loss-of-a chance doctrine recently reaffirmed in Rash v. Providence Health & Services appears to make sense. The typical facts in such cases include (1) a usually fatal disease (e.g. certain cancers); (2) that was diagnosed later than was possible with proper care (or that a less effective treatment was used); and where (3) the… Continue Reading

About The Virus That Makes You Dumb

Posted in Causality, Microbiology, Reason
A colleague asked me yesterday what I thought about a story she’d seen in the media regarding a virus often found in algae. Supposedly it can impair human cognition. I told her that as a matter of fact I’d been working up a brief blog post on the topic because of its implications for mass tort litigation, gave her… Continue Reading

Yet Another Opinion in Which a Court Mistakes Hypothesis for Theory

Posted in Causality, Epidemiology, Reason, The Law
While some may imagine that scientific hypotheses are the product of highly educated people with brilliant minds drawing straightforward inferences from compelling evidence the fact remains that all scientific hypotheses are nothing more than guesses; and as every middle schooler taught the scientific method knows, even the best pedigreed hypotheses are usually false. On the… Continue Reading

A Plaintiff Win and a Very Good Daubert Opinion from the U.S. Ninth Court of Appeals

Posted in Reason
… we have a universally recognized Supreme Court, to which all disputes are taken eventually, and from whose verdict there is no appeal. I refer, of course, to direct experimental observation of the facts.  E. T. Jaynes, physicist, in Foundations of  Probability Theory, Statistical Inference, and Statistical Theories of Science (1976) Recently we’ve been grousing about Daubert-invoking opinions that… Continue Reading

Three Straw Men on a Witch Hunt

Posted in Reason
He who is accused of sorcery should never be acquitted, unless the malice of the prosecutor be clearer than the sun; for it is so difficult to bring full proof of this secret crime, that out of a million witches not one would be convicted if the usual course were followed! - 17th century French… Continue Reading

The Human Cost of Bad Science

Posted in Reason
Because of the aggressiveness of a disease, its stage when detected and/or the requirement that patients enrolled in clinical trials not simultaneously pursue multiple treatments "patients with progressive terminal illness may have just one shot at an unproven but promising treatment." Too often their last desperate shots are wasted on treatments that had no hope of… Continue Reading

A Memorandum Opinion And The Methods That Aren’t There At All

Posted in Causality, Reason, The Law
You’d think that courts would be leery about dressing their Daubert gatekeeping opinions in the "differential etiology method". After all, as you can see for yourself by running the query on PubMed, the U.S. National Library of Medicine / National Institute of Health’s massive database of scientific literature, apparently nobody has ever published a scientific paper containing the phrase "differential etiology… Continue Reading


Posted in Reason
Back in the day expert witnesses attacked with their credentials and parried with their jargon. Nowadays they’re "wonkish". The result is typically something like this recent affidavit of Dr. Arthur Frank – a beyond encyclopedic recitation of the scientific literature and the conclusions he believes obviously flow from it. Yet Dr. Frank is a piker when it comes to wonky reports. Plaintiffs’… Continue Reading

Five Beagles Refused To Die

Posted in Reason
Thinking about Harris v. CSX Transportation, Inc. and trying to understand how a court could come to believe that an educated guess that has never been tested, or one that has been repeatedly tested and serially refuted, could nevertheless constitute scientific knowledge I thought I’d reread Milward v. Acuity Specialty Products: Advances in General Causation Testimony… Continue Reading

The West Virginia Supreme Court of Appeals Doesn’t Get The Scientific Method

Posted in Reason, The Law
Milward v. Acuity has spawned another troubling anti-science opinion: Harris v. CSX Transportation, Inc. Whereas Milward held that credentialed wise men should be allowed to testify that an effect that has never been observed (indeed one that could not be detected by any analytical method known to man) actually exists, Harris holds that such seers may further testify that an effect that would be… Continue Reading

Painting By Numbers

Posted in Causality, Epidemiology, Reason
It’s hard to argue with the decision of the U.S. Court of Appeals for the Seventh Circuit in Joann Schultz v. Akzo Nobel Paints, LLC; a benzene/AML (acute myelogenous leukemia) wrongful death claim filed by the wife of a painter. The opinion frames the question before the court as follows: Is the fact that plaintiff’s… Continue Reading

Squeak Squeak

Posted in Molecular Biology, Reason, Toxicology
In the run up to the trial of a case in which we’re arguing that the B6C3F1 mouse ain’t a man and 1,3 butadiene ain’t a human carcinogen just because it causes cancer in the B6C3F1 mouse, out comes "Mice Fall Short as Test Subjects for Humans’ Deadly Ills" by Gina Kolata of the NYTimes. And it’s a bombshell. Kolata reports… Continue Reading


Posted in Epidemiology, Microbiology, Reason
The hedgehog: actually it’s lots of little things. Some say being overweight protects against many diseases of aging, some those studies are biased. Father of the bride, and future defendant in 47 A. butzleri cases? "…it is now possible to determine with great precision the cellular origin of solid tumours in mice." Imagine what it… Continue Reading

Be Careful What You Wish For When You Wish For A Standardless Standard Like Lohrmann

Posted in Causality, Reason, The Law
As promised we’re weighing in on Holcomb v. Georgia Pacific,  et  al – the most recent effort by a court, this time Nevada’s supreme court, to paint a fig leaf over the judicial embarrassment that is modern asbestos litigation. To recap, by 1989 (twenty years after Clarence Borel filed the complaint that launched the mother of all mass… Continue Reading

Foragers, Farmers, Fabricators

Posted in Reason
The toxic tort litigation directed against the chemical industry has been propelled by more than just the proclivity of the rat zymbal gland to turn cancerous, the ease with which associations can be generated by dredging epidemiological data, and the scent of deep pockets. Essential to the success of the litigation has been the widely held belief that humankind’s attempt to harness… Continue Reading

“Science Is The Belief In The Ignorance Of Experts”

Posted in Reason
The title is a quote from the speech, "What is Science?" given by Richard Feynman at the fifteenth annual meeting of the National Science Teachers Association in 1966. We thought of it today upon reading that an Italian court has found seven members of the country’s National Commission for the Forecast and Prevention of Major Risks guilty of manslaughter. They were… Continue Reading

Remember All The Hubbub About Corexit in City of Orange Beach, AL? Well, Nevermind.

Posted in Reason
Not long after certain groups decided to panic residents of the Gulf Coast about Corexit, a mixture of chemicals used to disperse oil from the Deepwater Horizon/Macondo disaster, worried residents of City of Orange Beach, AL started collecting dirty water from local waterways and a nearby lab quickly confirmed that Corexit had indeed washed up on their shores. Since… Continue Reading

Is Reasoning Just A Way To Convince Others That The World Is The Way You Want It To Be?

Posted in Reason
That, to our minds, is the gist of the debate about the reason for reason going on at "The Stone" at The New York Times. We have a different, though perhaps no less cynical, take. While observing and thereafter interviewing more than a few juries we’ve noticed something peculiar. Most people would rather be wrong, but thought right, than right,… Continue Reading

Causation is Hard: Multiverse Edition

Posted in Reason, Risk, The Law
While we wait to critique Steve Gold’s upcoming defense of Milward v. Acuity (the paper is available at SSRN but, alas, it’s flagged as a work in progress, neither to be quoted nor cited) we’ll have a go at his new paper on causation titled "When Certainty Dissolves Into Probability: A Legal Vision of Toxic Tort Causation for the… Continue Reading