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

How do people decide what they decide? Usually the answer you get is something like this: "People who come to believe what we believe are smart; they gather information from the best sources, weigh the evidence and come to a rational decision". On the other hand, the people who don't believe what we believe are dim bulbs who rely on simplistic heuristics like the pronouncements of authorities or by choosing the answer that's most comforting.

But what if competing groups of partisans in a debate "get" cognition? In other words, they "engage in higher-level forms of reasoning" yet somehow still come to opposite conclusions. How could that be? It turns out that conflicting decisions about e.g. gun laws may arise not because one side is less committed to reason than the other but because both are equally skilled at problem solving - at solving a particular sort of problem - by quickly fitting all the factoids science is constantly raining down on us into their personal narratives about how it all works. That anyway is our take on "Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study" - an excellent paper through and through.

Our experience with juries tell us that in the course of even a long trial you're not likely to change most people's minds; but you can get jurors to select a different (and hopefully more helpful) narrative into which they'll fit the facts presented at trial (the real art of persuasion IOHO). And when it comes to bright jurors ... attempting to change their their minds is a hopeless endeavor. The great physicist Max Planck nailed it when he said "A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it."

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Rhetoric is an instrument of scientific discovery.

Groups are (for the most part) somewhat less susceptible to cognitive biases that skew decision-making than are individuals (including judges).

The debate over Palsgraf rages on.

It remains to be seen whether jurors are able to suspend the actions of neural circuits producing sympathy (or bias or prejudice) when instructed to do so by a judge.

Toxic tort Defendants should argue "the letter of the law" while plaintiffs should argue reasonable care and "the Defendant should have known better".

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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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Though it starts out as a discussion of the Collegium Ramazzini's call for "a global ban on asbestos" the interview with Dr. Lemen in this month's EHP quickly turns to new frontiers in the litigation (e.g. ovarian cancer), the nefarious impact of profits on corporations (and not individuals, apparently) , the implication that chrysotile is worse than amphibole asbestos, and an argument that we already know everything we need to know about asbestos and so shouldn't waste any more "research dollars" on studying the issue.

Read about it here or listen to the Podcast .

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It has been known for a couple of decades now that women who never have children (i.e. women who are nulliparous) and women who do have children but not until they are 30 or older suffer a striking increase in their risk of developing breast cancer. The evidence for the association between never giving birth or delaying having a child continues to accumulate and now it appears that the increased risk is focused on hornmone receptor-positive breast cancers. See "Associations of Breast Cancer Risk Factors With Tumor Subtypes: A Pooled Analysis From the Breast Cancer Association Consortium Studies" in the current issue of the Journal of the National Cancer Institute. So let's say you've got a nulliparous plaintiff alleging that your drug or device or chemical caused or accelerated her hormone receptor-positive breast cancer; how do you handle her status?

The first problem a defendant faces in such a case is the risk of inadvertently wandering into the minefield called "blaming the victim". The plaintiff has either freely made a choice or has tragically been unable to have a child. Either way the jury will react strongly and negatively to any discussion about parity status and causation that makes even the slightest trespass into the issue of fault. Keep the discussion limited to risk factors and their relative potency. But that leads to another problem.

In some of the jurisdictions in which I practice plaintiff's counsel will successfully argue to the trial court that only evidence about about the actual cause of plaintiff's injury is admissible. In other words, unless my expert is prepared to say e.g. that "to a reasonable degree of medical probability plaintiff's breast cancer was caused by her not having children when she was young" testimony about "mere risks" is irrelevant and so inadmissible. The practical effect of such a ruling is that only junk science is admissible on the issue of the actual cause of plaintiff's cancer since my experts tend to be modest about the claims science can make regarding the cause of any individual's cancer. We're stuck then trying to prove a negative, showing we acted reasonably and preserving error.

In this age in which much that was certain (e.g. that we've conquered infectious diseases) is proving not to be so it's time I think for courts to recognize not only that the reasonableness of actions can fairly and effectively be judged according to the risks they conferred but also that causation is in many cases most precisely weighed when competing risks are allowed to be compared against one another.

Finally, and hopefully still on topic, for more evidence of the complexity of causation see "Does Pregnancy Provide Vaccine-Like Protection Against Rheumatoid Arthritis?" Why would pregnancy protect against auto-immune disorders and what's the connection with breast cancer? There are a variety of hypotheses offered but so far no one knows.

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I was local counsel for a pesticide manufacturer in a cancer case some years back and got to be good friends with national counsel from New Jersey. He's a great guy with a razor sharp wit that left the other side's notorious pitbull of a toxicologist neutered and yelping at his deposition. However, when we mock tried the case to three different groups of southeast Texans they decided they all hated national counsel and most sympathized with the expert, parts of whose videotaped deposition had been shown. What happened?

What happened was that national counsel's slashing style had been perfected in a part of the country where sarcasm and irony are relished. Over in Beaumont the mock jurors clearly understood the points he was making but as one of them said "we just couldn't get past the fact that he was such an seven-letter-word-that-begins-with-a". And that pretty well summarized their deliberations.

National counsel was mortified, of course, and while he worked on toning down the sarcasm he never really understood their reaction. Could it be that that the use and perception of sarcasm varies geographically? Check the link. The answer is: apparently so.

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One of my pet theories is that people would desperately rather be considered right in their pronouncements (though actually wrong) than actually right (though considered wrong). It's all to do with signaling, I think, but more on that another day. If indeed people prefer being thought right to being in fact right, all other things being equal, what response would you expect when their beliefs are shaken? You'd expect them to dig in. And so they do.

In fact, shaking their world view typically turns them into advocate warriors for those very beliefs. So be mindful when approaching your jurors' beliefs head on. Best to find another approach that fits within their world views than unleash martyrs to their own causes on the rest of your jurors. See: "When In Doubt, Shout - Why Shaking Someone's Belief's Turns Them Into Stronger Advocates".

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