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

And that's exactly as things ought to be.  When I got to Beaumont, TX, one of the first and most notorious of all judicial hell holes, I was appalled by what this lawyer/biochemist saw. Plaintiffs' experts were willing to testify to anything (for a fat fee) and were being allowed to do so as long as they promised to say that e.g. it was more probable than not that the plaintiff's pancreatic cancer was caused by formaldehyde from plywood in his trailer. Meanwhile, a defense expert, willing only to say that plaintiff had multiple risk factors for pancreatic cancer (like smoking) far more potent than formaldehyde and that plywood was at best a negligible factor, was not allowed to testify about any possible alternative causes at all since she refused to swear that any single possibly causative factor more likely than not actually caused plaintiff's cancer. The result was that plaintiff's experts, almost all of the Collegium Ramazzini-variety who passed the red-face test only because they believed that essentially every cancer was the result of exposure to man-made toxicants, could testify to anything, while more measured and critical-thinking experts could not testify at all.

"Causation must be pr oven on a more likely than not basis" said one judge over and over, and no argument to the effect that plaintiff bore the burden, and not the defendant, would change his mind. The result, I'm sorry to admit, was that we were forced to find experts as willing to sing whatever song paid for their supper as those employed by plaintiffs. Whatever the result it bore little relationship, if any, to our quest for truth.

The good news is that courts are starting to get it - that there are credentialed nitwits and judicial polymaths - and that the latter can see through the logical fallacies of the former though they haven't an alphabet soup of letters beyond J.D. Take Benkendorf v. Advanced Cardiac Specialists Charted, for example.

"Requiring defense experts to testify based only on reasonable medical probabilities would effectively prevent defendants in many cases from presenting testimony regarding causation unless their experts could declare that a particular alternate cause more probably than not was the cause of plaintiff's injury." The "inequities would abound" were a court to rule otherwise. "[W]e agree with the majority of jurisdictions that have addressed the issue and hold that an expert witness called by the defense to testify about causation ... may testify about 'possible' causes of the plaintiff's injury. A defendant ... need not prove another cause for plaintiff's injury, but may ... testify as to alternative causes tending to undercut the plaintiff's contention that the defendant's alleged negligence more probably than not caused the injury."

Benkendorf is a med/mal case but nails the burden of proof of causation. Tomorrow (assuming we get our response out to SCOTUS on something else) a Bayesian smackdown on why false positives grotesquely outnumber the false negatives in toxic tort / mass tort litigation.

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The conjunction paradox isn't one and doesn't require new standards of proof; rather, it's evidence that the asymmetry in the law markedly favors false positives, whatever some may say.

Cancer-causing H. pylori might find its way into you by hitching a ride in food borne yeasts.

Blame for obesity: BPA vs BUG.

The evidence that hormone replacement therapy "causes" breast cancer isn't as strong as you think.

Occupational exposure to animals: evidence for a causal link with cancer mounts.

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I authored an article on Texas' standard(s) for proof of causation that appeared in this week's Texas Lawyer and it contains an error. In discussing Merck v. Garza I somehow managed, during the process of editing the article down to the target word count, to associate the citation from the original appellate court opinion with the decidedly different conclusion reached by the Texas Supreme Court to which I was referring. My bad.

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The United States Court of Appeals, First Circuit, has delivered an opinion about the duty borne by trial courts to keep out flawed analyses by credentialed experts that is as keen in its reasoning as it is sharp in its prose. It's "Samaan v. St. Joseph Hospital".

Have you ever despaired of explaining that a 50% increased risk doesn't mean that half of  those exposed are going to come down with the ailment associated with the elevated risk? Or that a big increase in a tiny risk rarely has anything to say about causation? Take a copy of Samaan with you the next time it comes up and have the following to hand:

" When a person's chances of a better outcome are 50% greater with treatment (relative to the chances of those who were not treated), that is not the same as a person having a greater than 50% chance of experiencing the better outcome with treatment. The latter meets the required standard for causation; the former does not.

To illustrate, suppose that studies have shown that 10 out of a group of 100 people who do not eat bananas will die of cancer, as compared to 15 out of a group of 100 who do eat bananas. The banana-eating group would have an odds ratio of 1.5 or a 50% greater chance of getting cancer than those who eschew bananas. But this is a far cry from showing that a person who eats bananas is more likely than not to get cancer. Even if we were to look only at the fifteen persons in the banana-eating group who did get cancer, it would not be likely that any particular person in that cohort got it from the consumption of bananas. Correlation is not causation, and a substantial number of persons with cancer within the banana-eating group would in all probability have contracted the disease whether or not they ate bananas."

And then there's this:

"Many aspects of science are a mystery to laymen without the aid of experts. In the world of the blind, the one-eyed man is king; and Daubert relevancy is the sentry that guards against the tyranny of experts. As the gatekeeper, the trial judge has the duty to insulate the jury from expert testimony when reliance on authoritative studies and methods threatens to mask the lack of an adequate fit. An expert might be able to testify on the phases of the moon to prove that it was dark by a particular time, but he could not offer the same testimony to prove that a person was likely to act in an unusual manner on that night."

But best of all and a bit earlier on in the opinion the court makes it clear that evidence, rather than mere conjecture, is required before a citizen is relieved of his property:

"The reliable foundation requirement necessitates an inquiry into the methodology and the basis for an expert's opinion. To perform the required analysis, the district court must consider a number of factors, including but not limited to "the verifiability of the expert's theory or technique, the error rate inherent therein, whether the theory or technique has been published and/or subjected to peer review, and its level of acceptance within the scientific community." Ruiz-Troche, 161 F.3d at 81. Given the nature of this analysis, the expert's methodology is commonly the "central focus of a Daubert inquiry." Id.

The second requirement has attracted less attention. This requirement seeks to ensure that there is an adequate fit between the expert's methods and his conclusions. See Daubert, 509 U.S. at 591. This prong of the Daubert inquiry addresses the problem that arises when an expert's methods, though impeccable, yield results that bear a dubious relationship to the questions on which he proposes to opine." (Emphasis added).

So,  how to reconcile Saaman with Milward? I'm afraid it can't be done.

 

 

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The Supremes have added "substantial nexus" causation to but-for and proximate causation; Scalia provides a nice summary of proximate causation in his partial concurrence.

Tau hyperphosphorylation is a pretty common finding in young and middle-aged people with no cognitive impairment and has many causes, including physical and emotional ones.

More evidence that disruption of gut microbiota is exploited by pathogenic bacteria associated with autism.

Extrapleural pneumonectomy: runs up the damages, runs down the patient.

Chance: A new journal with a new editorial re: the need for openness and transparency in the reporting of statistical data and methods.

 

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Today the U.S. Supreme Court denied U.S. Steel's petition for writ of certiorari in Milward v. Acuity. As a result plaintiffs' expert is now free to testify about his untested and in fact untestable hypothesis.  It's a shame because the First Court of Appeals has apparently lost sight of what science, at least reliable science, is all about.

Consider "Trials and Errors:  Why Science is Failing Us".  The article describes what was deemed the shocking failure of torcetrapib - a drug designed to prevent so-called "good" cholesterol (HDL) from converting into "bad" cholesterol (LDL).  Noting that "[t]here was a vast amount of research" supporting the proposition that increasing the HDL:LDL ratio would prevent coronary artery disease, and given that "the cholesterol pathway is one of the best-understood biological feedback systems in the human body", scientists assumed that they knew how torcetrapib would act and that its effect would be positive.  Instead, "the drug appeared to be killing people."

Rather than a failure of science the story of torcetrapib should be viewed as a triumph, at least so long as science is viewed as a method for subjecting big ideas to the acid bath of skepticism rather than the hatching of seemingly clever notions.  Milward, by allowing an expert to base his causation opinion on nothing more than a plausible hypothesis consisting of a proposed biologic mechanism far less well understood than that of the cholesterol pathway, embraces the big idea view of science.

The debate is an old one but one in which common law countries have generally sided with the scientific method over mere idealism.  Perhaps it has something to do with the experience of French and English bridge designers.  The early French suspension bridges had an unfortunate tendency to collapse despite being beautiful whereas the English versions tended to be ugly but sturdy.  For the French designers the thought was "it must stand because it is so beautiful".  For the English the idea was "it must stand or I shall be fired". 

The opinions of experts should be no less tested and no less reliable than bridges as both have so much riding on them.

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It's that analytical gaps are bridged by evidence and there was no evidence that therapeutic doses of Tylenol cause cirrhosis of the liver. Rather than simply saying so the court in Ratner v. McNeil-PPC, Inc.  veered into the always unenlightening analytical gap width assessment:

"The plaintiff did not put forward any clinical or epidemiological data or peer reviewed studies showing that there is a causal link between the therapeutic use of acetaminophen and liver cirrhosis. Consequently, it was incumbent upon the plaintiff to set forth other scientific evidence based on accepted principles showing such a causal link. We find that the methodology employed by the plaintiff's experts, correlating long term, therapeutic acetaminophen use to the occurrence of liver cirrhosis, primarily based upon case studies, was fundamentally speculative (see Lewin v County of Suffolk, 18 AD3d 621), and that there was too great an analytical gap between the data and the opinion proffered. We emphasize that when an expert seeks to introduce a novel theory of medical causation without relying on a novel test or technique, the proper inquiry begins with whether the opinion is properly founded on generally accepted methodology, rather than whether the causal theory is generally accepted in the relevant scientific community."

Why not just say "plaintiff's experts have no evidence that their theory is true"? In the court's defense it was struggling to reconcile its ruling with Zito v Zabarsky in which it had previously held that in the case of a "new drug" plaintiffs need not wait for evidence (e.g. epidemiology) as otherwise:

" [a] strict application of the Frye test may result in disenfranchising persons entitled to sue for the negligence of tortfeasors. With the plethora of new drugs entering the market, the first users of a new drug who sustain injury because of the dangerous properties of the drug or inappropriate treatment protocols will be barred from obtaining redress if the test were restrictively applied.

(I am here reminded of a benzene / CML case I once tried in which plaintiff's counsel in closing bellowed "Mr. Oliver says that not enough workers have gotten CML to prove benzene is the cause of their cancers. I hope when it's his turn to speak that he answers this question: How high must the bodies be stacked before his client will admit that benzene was the cause?")

Anyway, as you can see the court was confronted with its prior opinion in which it had held that a well conceived hypothesis, though lacking utterly any evidence to support it, was enough to get a "new drug" case to the jury. Thus its effort to distinguish the two cases via "Tylenol is not a new drug" (more to the point would have been "there's been ample opportunity to test  your theory via retrospective epidemiological studies and yet still you have no evidence") and thereafter a retreat into the bushes of "analytical gaps".

Karl Popper said that science proceeds by conjecture and refutation. You think up a theory about how some aspect of nature works, determine what predictions follow from it, and then check  to see if the predictions hold up. That last part is what's called evidence. Without it you're left with nothing but a more or less educated guess; and that isn't enough to warrant depriving a citizen of life, liberty or property. That's what Daubert was all about.

Finally, does it look to you like "deduction" has a different meaning in New York? Here it seems to refer simultaneously to the method  by which a general rule is induced from observations and the method by which a causal association is inferred from the rule you've just induced, thus:

 "Generally, deductive reasoning or extrapolation, even in the absence of medical texts or literature that support a plaintiff's theory of causation under identical circumstances, can be admissible if it is based upon more than mere theoretical speculation or scientific hunch (see Zito v Zabarsky, 28 AD3d at 46; see also Black's Law Dictionary [9th ed 2009] [defining "extrapolation" as "(t)he process of estimating an unknown value or quantity on the basis of the known range of variables" and "(t)he process of speculating about possible results, based on known facts"]). Deduction, extrapolation, drawing inferences from existing data, and analysis are not novel methodologies and are accepted stages of the scientific process.

For example, in Zito v Zabarsky (28 AD3d 42), this Court expressly recognized that extrapolation or deduction is warranted in instances where the theory pertains to a new drug."

 Let me know. Thanks.

 

 

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The new IOM report, "Breast Cancer and the Environment: A Life Course Approach", again emphasizes the difference between how scientific panels go about making a causal inference and the approach too often approved of by credulous judges often insecure about their own ability to think critically and mesmerized by the jargon-laden pronouncements of credentialed experts. Beginning on page 82 under "Hierarchy of Studies" and followed by "Categories of Evidence" the report does a great job of detailing what counts as evidence and the methods and criteria used by organizations like the International Agency for Research on Cancer, the National Toxicology Program, the World Cancer Research Fund / American Institute for Cancer Research in going about collecting, assessing and weighing evidence when making causal judgments. They even put together a helpful summary of the classification systems (see Appendix C, "Classifications Systems Used in Evidence Reviews" at page 312).

Here are a couple of takeaways: (1) "The criteria aim to be explicit about the weight, or relative importance, given to studies in humans and in animals or other experimental systems"; and (2) "Strong and consistent positive epidemiologic evidence in rigorously conducted studies is prima facie evidence that the substance is a risk factor." You will quickly note upon reviewing the summary of systems of causal inference that none support anything like the notion embraced by the court in Milward v. Acuity that an expert weighing a subset of the data (each piece of which is either weak, irrelevant or inconsistent) upon the scales of his personal scientific judgment can by "reasoning to the best explanation" reliably reach a causal inference  - especially in the complete absence of any epidemiological evidence to support it. Indeed the "atomization" of evidence decried by the Milward court and those in the "public health movement" who promote mass tort litigation is exactly what IARC, IOM, NTP, EPA and WCRF/AICR do - they assess each piece of evidence, they do it transparently, they do it according to rules laid down before they even go looking for the evidence and then they weigh what's left; again, according to weighting systems that are explicit, consistent and established before the first piece of evidence is examined.

The idea that knowledge comes from scientists taking a "holistic approach to the data" and applying their personal judgment to it is, to be blunt, hooey. That may be a way to arrive at a testable conjecture but without the conjecture passing a test of its predictive power (e.g. a rigorous epidemiological study) it remains nothing but a bald, personal opinion with no foundation beyond the ipse dixit of the expert who induced it.

 

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Apparently every risk is foreseeable in Iowa now that they've adopted the Restatement

Antibiotics taken during pregnancy may cause diseases as varied as asthma and diabetes

More and more the evidence is pointing to a causal relationship between viruses and NHL

Vaccinating your daughters against measles may do more good than they know

Post cheeseburger ergo propter cheeseburger is not enough to win an E. coli case

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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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"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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In Moeller v. Garlock Sealing Technologies, LLC the 6th Circuit held that while the decedent's exposure to the defendant's gaskets "may have contributed to his mesothelioma, the record simply does not support an inference that it was a substantial cause of his mesothelioma. Given that the Plaintiff failed to quantify [decedent's] exposure to asbestos from [Defendant's gaskets] and that the Plaintiff concedes that [decedent] sustained massive exposure to asbestos from [other] sources, there is simply insufficient evidence to infer that [Defendant's] gaskets probably, as opposed to possibly, were a substantial cause of [decedent's] mesothelioma... On the basis of this record, saying that exposure to [Defendant's] gaskets was a substantial cause of [decedent's] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean's volume. Cf. Gregg. v V-J Auto Parts, Col, 943 A.2d 216, 223 (Pa. 2007)."

So what's the problem? The problem is that the court is not asking whether the exposure in question created a substantial risk - one that may have been (though we'll never know because there were other possible sufficient causes) the cause of plaintiff's injury. No, the court is asking whether the exposure was likely to have been the "actual cause" of plaintiff's injury. That's made clear when the court writes: "Substantial causation refers to the probable cause, as opposed to a possible cause". Thus, it's not an inquiry as to the conduct (i.e. did Defendant produce more than a de minimis risk) but rather an inquiry as to the amount of the exposure to Defendant's product relative to other exposures.

For defendants then, who increasingly face a litigation environment in which their product contributed a bucket of water into an ocean the size of a bathtub, a few more victories like Moeller v. Garlock threaten to utterly undo them.

Hat tip Nina Webb-Lawton

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Illinois' "consumer expectation test" does not excuse a plaintiff from proving causation.

Chinese chrysotile asbestos workers have more than a threefold increase in lung cancer risk.

What doesn't kill you makes you live longer.

Toxicology is rethinking recent dogma and its gaze is turning towards Goldilocks and hormesis.

Market economics explain otherwise inexplicable plant-fungi interactions.

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If an expert, or a panel of experts, renders an opinion in the face of considerable uncertainty ought she, or they, be subjected to liability if their opinion turns out to be wrong? When scientists in Italy got earthquake advice wrong, and were sued for damages and prosecuted for manslaughter, scientists from around the world demanded that legal systems understand just how little even experts know about how the world works and how tentative is their knowledge, and how often wrong are even the wisest among us. (Socrates must be smiling). See "Scientists On Trial: At Fault?"

Well, if experts shouldn't be subjected to liability when they opine about cutting edge and uncertain science why should defendants be subjected to liability for claims founded upon the very same unproved and highly uncertain opinions of expert witnesses? Maybe if expert witnesses could be fined or incarcerated for opinions that later turn out to be wrong we'd see a lot more humility, and honesty, among the experts who ply their trade down at the courthouse.

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That's what many have concluded about the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. When one of its reporters co-authored "The New Restatement's Top 10 Tort Tools" for "Trial" magazine the worst fears of those who had fretted that the new Restatement wasn't a restatement at all but rather a stealth effort to unleash new waves of litigation seemed to have been confirmed. Now a new law review article, "Reshaping the Traditional Limits of Affirmative Duties Under the Third Restatement of Torts", by Victor E. Schwartz and Christopher E. Appel, lays out the case.

Especially eye-opening is the discussion of the attempt to impose liability for insufficient risk reduction; and it doesn't just apply to "Bad Samaritans". An affirmative duty of care, the breach of which being a tort, may now be triggered by contracts and promises "which, if [the Restatement is] adopted, would likely [] lead to liability in situations in which a duty has never before been recognized." Of note to insurers is the explicit intention to impose a duty on anyone engaged in risk/loss prevention efforts. Not content with discouraging insurance companies from helping their insureds avoid accidents the Restatement proceeds to make employers think twice before running health screening for its employees to demonstrate they're not at risk of occupational illness.

And how can an insurer or an employer or any would-be Good Samaritan avoid undertaking such duties? It's not clear that they can, write the authors, noting the Reporters' Note to Section 42 tries to cut off Good Samaritans at the pass: "Statements denying an undertaking or about the limited purpose of the inspection must be read skeptically as they are not provisions that are bargained for by adversaries acting at arm's length and often are inserted only to diminish potential liability to third parties who are not parties to the contract."

Schwartz and Appel conclude that "... the new Restatement takes the rule of duty through undertaking in precisely the wrong direction. Public policy should encourage undertakings that help promote public safety and education, and not chill such action through an expansion of duty in tort law." Of course, that assumes that one purpose of the new Restatement was the common good. Oh well.

 

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Gina Kolata has another good read at the NYTimes in "The New Generation of Microbe Hunters". The word, as you can see, is quickly getting out; the old ways of thinking about the determinants of human health are crumbling as the discovery that we are "super-organisms", more bacterial than human - at least from a genetic perspective, sweeps away old notions about what makes us sick, what keeps us healthy and even what (and maybe who) we are.

For other dispatches from the revolution you might want to read about just how big a deal this is, how much we know, how much remains to be understood and the promise of biotherapeutics; or maybe, since there's a little Gilgamesh in each of us, how  changing the bacteria in the gut of mice makes the rodents live significantly longer;  then there's a dysregulated microbiome and rheumatoid arthritis; new insights into how H. pylori causes gastric cancer; and gut microbes can cause cancer of the liver and breast (in mice anyway); and changing the gut microbiota to treat type 2 diabetes and, and, and ... There's a torrent of literature but that'll give you an idea what's out there and what's coming.

None of that is to say "Eureka!" they've found the answer. Likely (as it's wise to hedge bets) the causation onion has many layers still uncovered. No, the point is twofold. First, the 40 year old idea championed by public health advocates pushing what they call social, or environmental, justice - that much if not most human suffering is due to bad industrial chemicals or the bad habits inculcated in consumers by nefarious corporations bent on selling them things they don't want or need - was never sound but now it's just silly. Second, if you've been paying attention, you'll understand that an awful lot of illness and suffering has been caused by stuff nobody, we presume, ever fretted about. But who knows? Maybe somebody somewhere has the disrupted microbiome version of the Sumner Simpson Papers. Wouldn't that be something?

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The Texas Supreme Court just decided Merck v. Garza. The relatively short opinion rolls along (1) reaffirming Havner; (2) apparently adding the further requirement of a second well done epidemiological study "statistically significant at the 95% confidence level" that shows a doubling of risk; (3) rejecting the "totality of the evidence" ipse dixit of plaintiff's expert; but then suddenly (4) utterly confounding us by holding "when parties attempt to prove general causation using epidemiological evidence, a threshold requirement of reliability is that the evidence demonstrate a statistically significant doubling of the risk". What?!

The whole purpose of the "doubling of the risk" requirement had been, we thought, to ensure that when a plaintiff has nothing but probabilistic evidence such evidence must actually support a "more likely than not" causal inference as to her specific illness. There are numerous agents that produce small effects (i.e. relative risks less than 2.0) and which are nevertheless unquestionably causative of human disease. Hopefully, the court meant "specific" where it wrote "general" regarding risk doubling.

Yet there's another problem on the very next page. Apparently courts are now to "examine the design and execution of epidemiological studies using factors like the Bradford Hill criteria to reveal any biases that might have skewed the results of the study." Again: What?! We thought (and we're pretty sure we're right) that Hill's list of factors were his way of assessing a given claim of general causation. And anyway, that's not how you look for bias. This is how you look for bias: "Excess Significance Bias in the Literature on Brain Volume Abnormalities".

In sum we liked, of course, the court's conclusion that when each piece of plaintiff's supposedly supportive evidence is flawed "a plaintiff cannot prove causation by presenting different types of unreliable evidence." Yet, recognizing that causal inference is hard (nearly maddening sometimes) and that statistical inference is complicated and counterintuitive, we wish the court had done a better job on this one. The deviations from standard analysis will only support those who complain that the current court is "merely results oriented".

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'Twere viral miRNAs that lighted way to dusty death?

North Dakota erionite is associated with pleural and interstitial changes.

Courts take note: "peer review is a coarse and fallible filter."

Is the Raybestos Manhattan friction-products factory food fight egged on by lawyers?

Tellingly, a perspective on the Food Safety Modernization Act fails to answer its own question.

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For more evidence that Milward v. Acuity is “one of the most significant toxic tort cases in recent memory” check out footnote 53 of "Introduction: The Third Restatement of Torts in a Crystal Ball" . To see what else is in the works check out those portions of the paper discussing the assault on the so-called shares defense and the effort to wholly expunge foreseeability from duty and therefore ensure that the ordinarily prudent person test is replaced with an any risk test.

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I've got to brag on my partner, Joe Lonardo. He just prevailed in a benzene/leukemia case before the Vermont Supreme Court and the opinion is well worth the time required to read and digest it. Building on its decision in Estate of George v. Vermont League of Cities and Towns the court embraced critical thinking and a Bayesian approach to causal reasoning and so held that empty evidence can't change prior, or baseline, beliefs and that  plaintiff's argumentum ad ignorantiam won't fly in Vermont. Here's how it went.

Plaintiff's claim can be distilled to the following:1) plaintiff has lymphoma of the central nervous system (CNS lymphoma); 2) CNS lymphoma is a subtype of non-Hodgkin's lymphoma (NHL); 3) benzene has been shown in some studies to double the risk of NHL; 4) plaintiff was exposed to benzene; 5) an alternate cause of CNS lymphoma was ruled out by his expert; so, 6) plaintiff's CNS lymphoma was caused by his benzene exposure. Q.E.D.

Not so fast, said the Vermont Supreme Court.

The vast majority of cases of CNS lymphoma "are of unknown etiology". Accordingly, our initial belief must be that plaintiff's CNS lymphoma is similarly likely to be of unknown etiology. So what evidence does plaintiff have that might reasonably move a sensible jury away from the belief that any given case of CNS lymphoma is due to some unknown cause and towards benzene? Plaintiff could have shown that he was exposed to a level of benzene that so increased his risk of CNS lymphoma that we ought to consider it as a likely cause. But this plaintiff couldn't show even by a rough approximation what his exposure might have been, much less that the dose experienced appreciably increased his risk of developing the disease. Then again, he could have shown that the manner or circumstances in which he was exposed, whatever the dose, has been found to the likely cause of CNS lymphoma in some similarly exposed group of individuals. But he had no evidence of that either. There was then nothing to cause a sensible person to move off the baseline belief - that plaintiff's was an ordinary disease of life.

Plaintiff next tried the differential diagnosis dance but got nowhere. The court clearly understood that an unweighed risk factor, abstract and disconnected from the circumstances (i.e. dose/exposure) in which it was detected is not the same thing as a potential cause to be weighed in a differential diagnosis or process of elimination exercise. Thus it held that any attempt to establish benzene as the cause of plaintiff's CNS lymphoma by ruling out everything else "must fail" because plaintiff couldn't demonstrate that his benzene exposure belonged among the potential causes to be considered in the first place.

The court then demonstrated that critical thinking isn't just for good scientists. Plaintiff had found an expert who could rule out one cause of CNS lymphoma and so he constructed the following argument: 1) plaintiff has CNS lymphoma; 2) some cases of CNS lymphoma are caused by an immunodeficiency disorder; 3) plaintiff doesn't have an immunodeficiency disorder; therefore, 4) benzene caused plaintiff's CNS lymphoma. That's about the purest form of the fallacy known as the appeal to ignorance and the Vermont Supreme Court would have none of it. (It's also, by the way, a sort of enthymeme, an argument with a hidden or unexcavated premise - here, that any benzene exposure is a potential cause of CNS lymphoma - and it lies at the heart of most "reasoning to the best explanation" seen at the courthouse). The court held that when the cause of most cases of a disease is unknown the ruling out of one cause cannot be evidence in favor of some other cause. 

Finally, and quite interestingly, the court briefly elaborated on its decision in George; an opinion which has come in for criticism from those hoping lower the barriers meant to keep out all but sound science (see e.g. "The 'Reshapement' of the False Negative Asymmetry in Toxic Tort Causation"). The court holds it seems to the same view as organizations like the National Academies of Science and the U.S. Preventive Services Task Force - that experts weighing scientific studies ought to be able to say how they did the weighing and to state "the weight given to each study". There is, after all, not much left of the scientific method without measurements and methods.

That's just my take. Go read it for yourself: Blanchard v. Goodyear

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Carl Cranor certainly understands the impact of Milward v. Acuity as you can see from his recent blog post at the Center for Progressive Reform. Over the coming days we'll examine several of Cranor's points but for today let's start with his enthusiastic approval of the appellate court's rejection of "an 'atomistic' study-by-study assessment of the scientific basis of expert testimony." 

In the sort of scientific induction that is the basis for most expert opinion in toxic tort cases, broad conclusions are drawn from specific data.  Thus in Milward, plaintiff's expert extrapolated from four particular sets of data to his conclusion that benzene is generally capable of causing acute promyelocytic leukemia (APL) in humans.  The trial court, however, reviewed each particular bit of data which supposedly supported the inference and found each to be wanting and so excluded the opinion.  But the US Court of Appeals for the First Circuit held that "[t]he district court erred in reasoning that because no one line of evidence supported a reliable inference of causation, an inference of causation based on the totality of the evidence was unreliable."  That court then went even further and adopted a view of how science is done that is advanced by just a small cadre of non-scientist academics. It approved Cranor's conception of scientific induction holding that "[t]he hallmark of the weight of the evidence approach is reasoning to the best explanation for all of the available evidence."  The problem, for those of us stuck in The Enlightenment, is that an argument founded on false premises cannot, save by sheer accident, lead to the truth.

Let's say there are four studies recording the incidence of some disease in a work force and the dose, or exposure, to the chemical in question sustained by the workers being studied.  The data, according to plaintiff's expert, looks like this:

From such data a scientist could reasonably infer that there is a relationship between dose and the incidence of disease and specifically that doubling the exposure doubles the risk of disease. Data like that is generally a powerful indicator of a true causal connection if subsequently confirmed by other studies.  But let's say that we examine the four data points and find that the expert has either misreported or misinterpreted the data and that it really looks like this:

What the appellate court has said in Milward is that somehow, based solely on the subjective weight given each bit of data and his interpretation of "the totality" of the data, an expert is free to testify to a conclusion that not only is unsupported by, but is completely at odds with, the premises from which it was derived.  What's going on here?  

What's up is that the Court has bought into, whether it recognizes it or not, the concept of "post-normal science".  It's an idea advanced by Jerome Ravitz and embraced by Carl Cranor and many in the movement that seeks to incorporate the precautionary principle into our laws.  The idea is explicated most clearly in "Towards a Non-Violent Discourse in Science" in which Ravitz explains that the Enlightenment's view of science which has prevailed to this day - that "in the natural sciences, whose conclusions are true and necessary and have nothing to do with human will" ... we must "give up this idea and this hope of [ours] that there may be men so much more learned, erudite and well-read than the rest of us as to be able to make that which is false become true in defiance of nature" (Galileo Galilei) - is yielding to a new conception of science necessitated by our modern scary world. A world in which "facts are uncertain, values in dispute, stakes high and decisions urgent". A world in which Enlightenment-style science too often serves "the morally dubious worlds of profit, power and privilege".

Essentially the idea is that science has become "authoritarian". It imposes what it claims to be truth on people who have genuinely held beliefs that lead them to a very different conception of how the universe works. And when it comes to risk, it ignores social constructions of risk that lead people like Cranor to believe that, for example, autism is linked to pharmaceuticals, alcohol and living too close to a freeway. Consequently, "housewife epidemiology" and the fervently held beliefs of activists ought to be weighed in the scales of judgment alongside the data and the test results of such theories.  (See "Legally Poisoned: How the Law Puts Us at Risk From Toxicants"). Most importantly it embraces the view that there are indeed people, experts, "so much more learned, erudite and well-read than the rest of us" as to hold a view of truth immune to, and indeed beyond the reach of, "normal science".

It's all, in our view, a dreadful misreading of Thomas Kuhn's "The Structure of Scientific Revolutions". It twists the conclusion that scientists are no happier to admit their errors than regular folks into a claim that all science is a sort of social construct - that there is no truth, and that what scientists really do is to weigh the facts they find relevant to a nicety in the scales of their subjective judgment. And by incorporating such a view into our law, originally, at least, derived from and founded upon the empiricism of the Enlightenment, we adopt a view in which the law exists not to guide our future actions as citizens but rather, typically ex post facto in the case of toxic torts, to support whatever fad or fear motivates us in the moment.

More in coming days.

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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.

 

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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".

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That quote comes from the conclusion of Judge Cecilia Altonaga's Order granting defendant's motion to exclude plaintiffs' experts in In Re Denture Cream Products Liability Litigation. If you're interested in the problem of causation in toxic tort cases this little gem would make a great primer.

Of particular interest are the following: (a) the court's dissection of the experts' arrangement of bits of unrelated data into what to the casual observer might appear to be a sound deductive argument; (b) the court's discussion of causal inference via induction and its implicit requirement that experts assess ( weigh) and then disclose the strength of their belief in each premise of the argument; and, (c) the court's recognition of the problem of selection bias when paid experts are allowed to opine as to causation using a so-called differential diagnosis or differential etiology approach - they tend, presumably subconsciously, to populate the line-up of suspect causes with the defendant's product and three or four easily ruled-out alternatives.

We especially liked the following about the opinion of plaintiffs' experts: "This theory is not ridiculous, but neither is it necessarily true; it is ripe for testing." That's what we said about Milward. All the plaintiff had was a plausible yet untested (because, said her expert, it was untestable) theory. Traditionally, that hadn't been nearly enough.

There's a clear split between the circuits with most requiring evidence that a theory's prediction has been confirmed at least once before it can go to a jury while a couple of others require only plausibility and an expert willing to say that it's so based on his or her scientific judgment. So it's the empiricists vs. the epistemological anarchists; Popper v. Feyerabend. If the Supremes decide to have a look it'll be a very big deal.

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A risk-based tax on rubber duckies?

Tumors are superorganisms.

Kentucky adopts the economic loss rule. (An especially well written opinion btw).

To be injured, you have to be injured. (Wis Ct of Appeals: another well-reasoned opinion worth reading)

Roggli shows that brake repair workers got their meso from commercial amphiboles.

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BIC Pen Corp. v. Carter has been decided, again, and seemingly for the last time. The court previously disposed of the design defect claims and this time the tragic case of a little girl severely burned as a consequence of her five-year-old brother playing with a lighter was before the court on the issues of manufacturing defect and causation.

Given that BIC's own tests of the lighter involved in the accident showed that a flame was produced more readily (because less force was required) than designed the court steamrolled over BIC's manufacturing defect arguments. It gave especially short shrift to the manufacturing variance argument (which actually has a lot of merit). Thus, by the time the opinion gets to causation, a defect for which liability may be imposed having just been found, to the reader things look pretty grim for BIC.

The court focused immediately on the issue that decides causation. Since lighters are designed to be child-resistant and not child-proof (as otherwise lots of adults could not operate them) how do we know that Carter's brother wouldn't have been able to light it anyway? Which is to ask how do we know that but for the defect Carter's brother would not have started the fire? Clearly Carter has to produce some evidence that her brother was enabled by the defect since even if a lighter meets the CPSC standard for lighters it may still be usable by 15% of children his age.

First the court looks at evidence that the brother was developing more slowly than a typical boy his age. The idea is that if the boy was cognitively more like a four-year-old than like a five-year-old then it's more likely that he was indeed enabled by the defect. The court quite rightly decided that it was an apples to oranges assertion because the defect was in a feature meant to physically deter children whereas there was no defect found in the mechanism meant to confound them. Next the court turned to Carter's contention that she could prove her brother was enabled by the defect using the reasoning of Havner.

Carter points to data indicating that low-force-to-operate levels in lighters such as the one in question quadruple the likelihood of a child being able to produce a flame. If Havner requires a doubling of the risk isn't a quadrupling more than enough? Before we get to how the court decided this issue let's run the numbers. As best we can tell there is at least one good test showing that the number of children able to active the lighter goes from 4% to 16% when the physical deterrent to ignition (force) is reduced. Now, assuming that the lighter in question produced a reduction in force necessary to produce a flame similar to the one used in the test then we can calculate how likely it was that Carter's brother was enabled by the defect. Using Bayes' Rule, the likelihoods of ignition for as-designed lighters and reduced force lighters and our knowledge that the lighter in question was in fact defective we can calculated that the likelihood that Carter's brother would not have been able to start the fire (i.e. was enabled by the defect) but for the defect is 75% - a result easily clearing the "more likely than not" hurdle.

Now, the court could have decided that the quadrupling of risk of ignition involved a different level of force (which, in fact, it did) and that plaintiff had zip, zero, nada evidence that the reduction in force at issue (a very tiny one) has ever been shown to double, much less quadruple, risk (which, apparently, it has not). That would have preserved and extended to manufacturing defect cases the rational decision-making approach to uncertain cases established by the court in Havner. Instead, the court decided that probabilistic reasoning can't be used in manufacturing defect cases and gave an extraordinarily weak rationale for doing so.

The court held that "[t]he nature of the injury-causing activities and testing that would have to be done to show causation in this case are not similar to, nor do they pose the practical difficulties posed by, those we considered in Havner. In this case, testing of J-26 lighters posed no unreasonable risk of injury to the test subjects as would have been the case if testing of the drug on humans had been performed under the facts of Havner ... In such instances, tests are done with surrogate lighters that do not pose a risk of harm to the participating children. And testing was also performed on the Subject Lighter itself that posed no risk of injury. Thus we decline to adopt a Havner-type analysis as to causation in this case where manufacturing defects are the basis for the liability claim."

So, because the test subjects tested lighters that didn't contain butane and because the lighter in question posed no risk of burning children when it was tested in a lab post accident, modern techniques for inferring causation aren't appropriate? With all due deference that makes no sense whatsoever.

Maybe the court was worried about permitting Havner-esque analysis in manufacturing defect cases because eventually it would be deployed in a case where the allegedly defective product had been lost or destroyed. If so, a defendant's product could indeed be found to have been more likely than not the cause of the accident even though the product was lost or destroyed. But for that to happen one of two things would have to hold true. Either the defect was responsible for a huge percentage of all such accidents or a huge percentage of the product had been manufactured defectively. In this case, for example, had the lighter been destroyed in the fire plaintiff could not show "more likely than not" (even assuming a quadrupling of the risk) unless she could also show that at least two-thirds of all lighters had the reduced-force defect. Either way, imposing liability when a defect is almost always the cause of an accident or when almost all of the product involved has been defectively manufactured hardly seems an injustice.

Case by case for more than a decade the Texas Supreme Court has worked to produce a coherent and just approach to causation by demanding sound science and utilizing modern decision theory approaches when reasoning out the cases before it. Hopefully, given our fondness for Havner, the true meaning of BIC Pen Corp. v. Carter is exceptio probat regulam in casibus non exceptis.

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Building up to the publication of the Restatement (Third) of Torts and now reaching what must surely be a crescendo has come one law review article after another assailing various courts' (re)adoption of the Enlightenment's view of causation and their (re)embrace of empiricism. Last Friday for example we posted a link to a recent paper making the case that loose causation standards (as opposed to those of "classical liberalism") in toxic tort cases are vital to the consolidation and empowerment of "the administrative state". And a couple of days before that we wrote about another new article that attempts to provide intellectual support for the proposition that the consequence of courts' application of strict causation standards has been to tip the scales in favor of defendants. Today we'll address an assertion from the second article.

On page 107 author Gold makes the following claim: "To the extent courts treat general and specific causation as separate elements requiring distinct proof, plaintiffs who already confront scientific uncertainty may be required to jump two hurdles instead of one - increasing the likelihood of false negative adjudications on causation." What he's done is to confuse what happens when we estimate the probability of the conjunction of two events (here: e.g. the likelihood that tetra-methyl death (TMD) can cause prostate cancer and the likelihood that plaintiff's prostate cancer was actually caused by TMD) with the manner in which false positives and negatives are identified and the manner in which the odds of being false negative or false positive are estimated. A simple illustration will hopefully suffice.

On chromosome 19, carried by both men and women, is a gene, KLK3, a variant of which is highly correlated with prostate cancer. There's a test for prostate cancer that looks for the KLK3 variant. Since both men and women carry the gene what happens to the number of false negatives (the KLK3 test shows they don't have the variant but later they're found to have prostate cancer after all) and false positives (the test says they have it but they really don't) if a general causation "hurdle" like "can women even get prostate cancer?" is placed before the KLK3 test? The number of false negatives is unchanged (good) and the number of false positives is cut in half (great).

What we suspect Gold is trying to complain about is the following: If we're 51% sure that TMD is a cause of toe cancer and 51% sure that of the possible causes of plaintiff's toe cancer TMD was actually the cause of it then across the set of toe cancer plaintiffs there will be some who recover nothing because of the extreme uncertainty in the science. But that's really just proof that the law is far too lenient towards plaintiffs in toxic tort cases.

What are the odds that our hypothetical toe cancer plaintiff actually got his toe cancer from TMD? Only 26.01% (51% x 51%) - hardly "more likely than not". Yet every court in the country will let a toxic tort plaintiff stack uncertainty upon uncertainty, "more likely than not" upon "more likely than not" to get to a cumulative "more likely than not" in spite of the fact that mathematically that ain't how it works. Furthermore, given the fact that courts will allow plaintiffs to establish both general and specific causation with a single study demonstrating a relative risk (RR) of 2.0 and given the fact that most published research findings with low (less than 4-ish) RRs are false anyway the odds that our toe cancer plaintiff waving his toe cancer - TMD peer reviewed paper actually got his cancer from TMD is no more than 13% (51% x 51% x 51%) and likely much lower - yet he'll get to a jury, meaning he'll be offered a settlement, in every courthouse in the land.

At the end of the day the "Reshapement" of toxic torts won't increase the odds of truly wronged plaintiffs being compensated but it will, where adopted, swamp unfavored companies with meritless claims - perhaps that's the whole point of it.

 

 

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 No need to prove toxic dose in a pharma case.

Tort law: ending classical liberalism and becoming "the administrative state's backdrop"?

Uranium ore harbors lots of happy bacteria.

Vitamin D lowers risk of cardiovascular disease in men but not women.

The innate immune system may explain the unpredictability of Stevens-Johnson syndrome.

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Want some more evidence that at least with regard to toxic tort cases the Restatement (Third) of Torts is nothing of the sort but rather an effort by "the academy" to impose its vision of what the law ought to be? Read "The 'Reshapement' of the False Negative Asymmetry in Toxic Tort Causation".

The central premise of the paper is that for a variety of reasons the law has decided to err on the side of letting victims of toxic chemicals go uncompensated (a sort of "false negative") rather than letting errors of judgment fall with equal frequency on the wrongly accused (the false positives). However, unlike say the science surrounding breast cancer and mammography the author presents no data to demonstrate that there are more victims on the Plaintiff side of the ledger than on the Defendant side. Instead, he argues in essence that because science (as opposed, somehow, to plaintiffs' retained scientist experts) plays it safe and errs on the side of false negatives. By adopting such methods the courts then necessarily put a thumb on the "D" scale.

Of course the real reason epidemiologists, toxicologists and the like have learned to go slow in the face of uncertainty is that the proportion of false positives to false negatives was enormous throughout the 70s, 80s and 90s. Small relative risks and the peculiar metabolism of mice launched false health scare after false health scare. Contrary to what the author suggests the vast majority of positive findings have turned out to have been false - that's why coffee alone has been falsely implicated in more cancers over the last forty years than has human carcinogenicity been confirmed in all chemicals combined.

There's lots to dissect in the paper and we'll be doing so in coming days. One topic we'll hit is the effort to sneak the so-called precautionary principle into the law via Comment "c" of Section 28, Liability for Physical and Emotional Harm. See page 1572 for the author's approving nod to the effort which had previously been denied by the comment's reporters.

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The case of Pluck v. BP Oil Pipeline Company, decided last week by the U.S. Sixth Circuit, turned on whether the opinions of plaintiffs' expert were properly excluded as unreliable and on whether his attempt to salvage them, by subsequently filing a supplemental report stating that upon using the court-approved "differential-diagnosis methodology" the identical evidence-free opinions had (not surprisingly) been reached, was timely. The court answered "yes" and "no", respectively.

Along the way to reaching its decision the court restated its view of the soundness of the differential-diagnosis methodology in deciding the cause of a individual's illness. Lots of courts have been saying the same thing of late. But all they're really saying is that using a decision tree to make a decision is OK.  That's like saying that using a digital calculator to calculate the length of the hypotenuse of a right triangle is OK. It doesn't, however, say anything about about whether the data used was accurate nor even about whether the determinative quantities had been measured in the first place.

When we think about differential diagnosis we ought to be thinking of something like this excellent example from Baylor College of Medicine's Radiology Club. Working from a variety of well established causes of a liver mass and precisely measured tests for the presence of each the physicians were able to rule in cholangiocarcinoma while methodically ruling out a variety of other potential causes. We'll save for another day the question of whether or not such a methodology was ever intended to, or is any more capable than cast dice or chicken entrails of, identifying heretofore unrecognized causes of a particular illness a la Milward.

Instead, here's what can happen when a court is satisfied with the utterance of the magic phrase "I used the differential-diagnosis method" and decides it's up to the jury to determine whether the expert's rulings-in and rulings-out are sound. We'll change the facts to those of a well-known example to protect the innocent and to keep us out of trouble with a certain court.

Consider the following, modified from "Judgment Under Uncertainty: Heuristics and Biases". The known, possible causes of plaintiff's illness are either "genes" or  "tetramethyl-death". Bad genes account for 85% of all cases while "tetramethyl-death" is only rarely indicted, accounting for just 15% of the cases. Plaintiff's expert says that plaintiff was exposed to "tetramethyl-death" and didn't have the bad genes. The court believes (perhaps because plaintiff's expert has made the mistake of going out on a Bayesian limb and giving an estimate of his faith in his estimation, hint, hint) that 80% of the time plaintiff's expert is able to accurately distinguish between cases caused by "tetramethyl-death" and those caused by bad genes. What then are the odds that plaintiff's illness was indeed caused by the chemical exposure rather than his genes?

Significantly less than 50%.

So the question becomes, essentially, should a verdict finding that one and one sums to three be upheld assuming the parties had a full and fair opportunity to cross examine the purveyor of such nonsense? A surprising number of jurists say "yes". That's what happens when you don't examine the alleged support for each branch of the decision tree; and that's what happens when you don't "get" percentages.

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There's been considerable buzz about Betz v. Pneumo Abex; an asbestos case pending before the Pennsylvania Supreme Court.  Recently several noted scientists underscored the importance of the case when they filed an amicus brief asking that the court reverse the Superior Court's ruling - a decision which would result in the plaintiff's expert being permitted to testify that each and every fiber of asbestos to which the plaintiff had been exposed was in fact a cause of his illness.  The brief itself is somewhat odd and doesn't read much like the other works of the scientists involved; some scientific concepts having seemingly been lost in translation.  They do however make one important point.  Unfortunately, they don't address the fundamental issue that bedevil this litigation.

The point they make clearly is that the assertion that every fiber of asbestos is the cause of a subsequent disease is not a scientific one.  Scientific claims require confirmation, which is to say that they're not merely hypotheses but are ideas that are testable, that have been tested and have survived those tests.  In the case of the "every fiber" claim the scientists note that there's no evidence for it and that multiple studies involving exposure to low levels of asbestos have repeatedly refuted the claim.  They make an especially strong plea for courts to remember the role that empiricism plays in the scientific method.

What remains unaddressed is what to do with a case in which the illness was allegedly caused by the aggregation of multiple small doses.  In other words, as the plaintiffs frame the question, what is to be done when a camel is found with a broken back and a pile of straw the cause?  Under what theory could any straw be absolved of blame?

Let's answer that question with some graphics.  First up a typical modern case in which a plaintiff with mesothelioma had a combination of exposures from very high to very low.  For the purposes of this discussion assume that 100 f yr/mL is a cumulative exposure that is recognized by plaintiffs and defendants as one that would have been sufficient to have caused plaintiff's illness.  Here's what one such scenario might look like:

 

Let's further define each exposure according to what we think the law is and ought to be with regard to what is called substantial factor analysis.  Those exposures which in and of themselves are sufficient to have caused the illness are necessarily substantial factors.  Those that pose a significantly increased risk, a question for the court and one that may vary  from jurisdiction to jurisdiction, are also substantial factors.  Those that produce only a remote or de minimis risk are not substantial factors.  The graphic looks like this:

Our slide titled "How It Might Play Out" shows a case in which the court has defined the limits of liability and the jury has thereafter determined which of the substantial factors were foreseeable, which is to say risky in their estimation.

The harder case is the one in which plaintiffs argue that exposures that were substantial as well as those that were de minimis can just as arbitrarily be grouped into a subset of exposures the aggregate dose from which could clearly have been causative.  It looks something like this:

As formerly peripheral defendants who were bit players in the asbestos industry have gone bankrupt we've increasingly seen cases with nothing but defendants whose conduct individually never produced more than a nearly infinitesimal risk of illness.  And given that trend this is what plaintiffs' cases will look like in the future:

Assuming arguendo that multiple small doses of asbestos which have never been shown to have caused any illness whatsoever are in the aggregate capable of producing mesothelioma, how do defendants argue that they ought not be liable?  The answer begins with the fact that an unwritten rule for asbestos litigation has evolved over the years. That rule is "causation equals liability".  That was never the rule.

Now however, as with the circumstance of Ms. Palsgraf in which she could not recover because the risk to her created by a guard trying to help a stumbling passenger was too remote, courts wrestling with asbestos litigation are beginning to come to grips with the fact that many of the defendants left in the litigation are being sued for producing risks that were orders of magnitude smaller than those posed by everyday facets of life such as taking a shower, shaking a stranger's hand or eating an extra slice of pizza. And some courts are starting to apply the same rules that they apply to other cases in which the conduct was ordinary and the outcome remote - that it cannot be the law that any action a person takes, however benign or ordinary, subjects her to being hauled into court should she be that one in a million person whose ordinary conduct produces an extraordinary outcome.

And thus to the camel's claim. Ultimately the question is whether some conduct is so common and so unexceptional as to not, as a matter of law, subject the actor to liability; even though by way of one of life's tragic chances her simple action one day manifests in harm to another. The Restatement (Third) of Torts answers "no, never".  On the other hand, in every context outside of asbestos litigation, American courts have overwhelmingly answered "yes".  "Yes", because they recognize that we all make our way, with rare exceptions, as best we can through a world of inevitable and mostly unknown risks. They hold that the extra straw added to the camel's load then, in every case, asbestos or otherwise, ought not subject she who added it to massive and equally unpredictable liability.

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When we first wrote about Milward we said it got causation wrong. The second time we wrote about it we took issue with the opinion for calling paid-for induction the scientific method. Now we address why we deem the opinion radical.

Should an educated guess, a hunch, especially one that's unverified and worse yet unverifiable, be admissible under Rule 702 of the Federal Rules of Evidence? Not if you're a fan of the Enlightenment and of the empiricism running from the likes of Bacon, Locke, Berekely and Hume to the Framers of our Consitution and all the way to Daubert. The idea that someone could be deprived of life, liberty or property on the basis of a mere guess, however impressive the credentials of the guesser, would we think shock the conscience of most Americans. But embracing without saying so the opposite of empiricism, something between Romanticism and and postmodernism, the First Circuit has said it's A-OK. That's pretty radical.

Defenders of the opinion might object to our claim that the opinion of Milward's expert was nothing but an unsupported and unsupportable conjecture. Didn't he offer five pieces of evidence after all? It depends on what you call evidence.

We all know what evidence for a theory looks like in the hard sciences. Albert Einstein makes a prediction about gravity and thereafter other scientists carry out experiments to see if the prediction pans out. Sometimes the answer comes in quickly and sometimes it takes a little longer but ultimately the conjecture stands or falls not on the reputation of the man but on the ability of his theory to withstand all attempts to refute it. Those attempts at refutation that instead confirm a theory's predictions are one form of evidence. In the somewhat softer science of biology including the study of human diseases such evidence tends to be harder to come by largely because biological systems are made up of so many different parts; the existence and complete function of many of which are still largely unknown.

That doesn't, however, mean that theories about biological function can't be tested. Lab animals as proxies for humans can be exposed to suspected carcinogens; their genes can even be manipulated to see if effects observed are the result of some interaction between agent and genome. Randomized controlled trials are the gold standard of drug testing evidence and though you can't experiment on humans by exposing them to known toxins you can certainly compare the outcomes of those exposed in the past to those not exposed to see if there's an association and if so how strong it is. So what sort of evidence did Milward's expert have to offer?

He offered five "bodies of evidence". First, he said that benzene is a known cause of AML. Ok, but plaintiff had APL. Just as the old expert witness canard "cancer is cancer" retreated to "blood cancer is blood cancer", the claim that all forms of AML are different but really the same when it comes to causation is, as the National Academy of Sciences has said, an assertion for which there is no evidence and one which seems odd given the fact that the various forms of AML have unique presentations, treatments and outcomes.

Second, he said that a particular mutation "is often in part" due to a chromosomal translocation in a precursor cell that can lead to all types of AML, that CML (which is almost certainly not caused by benzene) "often in part" has the same mutation and that APL and other AML subtypes with the mutation share "common genetic susceptibility factors", risk factors and incidence (after age 20). Therefore, they all share a common etiology. Hmmm. Well, ask Bruce Ames if all mutagens are carcinogens. And is there any evidence of causation beyond an association that a translocation "often in part" coincides that the mutation? No. Finally, sharing some risk factors some of the time during a certain period of life doesn't get you anywhere because risk factors after all are themselves nothing but reported associations. What we're left with then is as follows: APL shares some common characteristics with other subsets of AML and sometimes they have a common mutation which mutation is "often in part" caused by a translocation which may be caused by benzene. Thus, while "all AMLs have a common etiology" is an hypothesis that can be formed from such bits it's one for which no confirmatory evidence currently exists.

Third, benzene can cause damage to the chromosomes of stem cells in the bone marrow and that "leukemia cases associated with benzene exposure are more likely to contain clonal chromosome aberrations than leukemias arising in the general population." Presumably, though the opinion doesn't say so, benzene is at least sometimes associated with the translocation that "often in part" causes the mutation that supposedly causes APL. Good. At last something testable. If benzene is a potent APL-agen then people exposed to benzene ought to be at a much greater risk of APL.

Fourth, two benzene metabolites are topo II inhibitors and some topo II inhibitors cause so-called secondary APL cases. Fine. Benzene can be broken down into some things that act like other things that can cause APL. Good for hypothesis generation but where's the evidence that the two benzene metabolites survive to reach and act upon stem cells like chemotherapeutic drugs? Indeed Milward's expert admits that he has merely suggested a plausible mechanism.

Finally, there's a small increase in risk of APL (e.g. RR of 1.4) in one epidemiological study and a few others which which do not refute the notion that benzene may have something to do with APL because there isn't a complete absence of APL among those exposed to benzene. Well, here we are at the lick-log and there's nothing here but a proclamation that at least his hypothesis hasn't been refuted. Worst of all, Milward's expert claims that his theory isn't even testable, saying that the rarity of APL "makes it nearly impossible to perform a large enough study" to answer the question of whether or not benzene causes APL.

So that's it. The only test, an epidemiological study of people exposed to benzene, that could possibly refute his theory that benzene causes APL has produced results that are at best equivocal. Oh, and by the way, a test that would actually answer the question is impossible to do. The trial court concluded that without evidence from a test of his theory that verified its prediction (exposure to benzene causes more cases of APL than would otherwise occur) the expert had nothing more than a hypothesis. The First Circuit took a different view.

When we think of the scientific method we think about something very much like this chart. From the green box on down it's all about empiricism, testing, about "bending over backwards to show how you are maybe wrong" and about always publishing the results of any test of one's theory "whichever way it comes out." The First Circuit has however adopted a very different sort of view of the scientific method - one that stops at the yellow box, one that dispenses with the need for proof. One that trades verification for belief.

It's one thing to hold the philosophical view that there is something oppressive about the scientific method. It does, after all, have the well deserved reputation of going about willy-nilly stomping on all manner of cherished beliefs (e.g. the sun revolves around the earth, stress causes peptic ulcers - sorry A.B. Hill, vaccines produce autism, etc.). It's something else entirely though to let an unverified and unverifiable belief, pseudoscience in fact, be the basis upon which a citizen may lawfully be relieved of his hard-earned cash. Yet the view that objective truth does not exist, that fervent belief by a well-credentialed expert originating from nothing more than his subjective weighing of whatever he thinks relevant is enough and that testability, the demarcation between science and pseudoscience, is not a minimum requirement for the belief to be admissible has now made it from comment c, section 28 of the Restatement (Third) of Torts: Liability for Physical Harm to the First Circuit. Now that's radical.

 

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ASBESTOS AND SILICA LITIGATION.
HB 2034 by Rep. Doug Miller, R-New Braunfels and SB 1202 by Sen. Dan Patrick, R-Houston.

These bills would allow the judge assigned to the asbestos or silica MDL docket to dismiss without prejudice the tens of thousands of cases that have been pending for years without any action because the claimants have not shown medical impairment. It also would prevent "double dipping" by plaintiffs who apply to asbestos bankruptcy trusts only after trial against solvent defendants as a way of avoiding "settlement offsets."

TRESPASSER LIABILITY.
SB 1160 by Sen. Kel Seliger, R-Amarillo and HB 1971 by Rep. Jim Jackson, R-Carrollton.

Texas common law provides that a property owner owes no duty of care to a trespasser, except in very narrow and well-defined circumstances. These bills would codify these traditional common law rules to preempt courts from adopting liberal provisions of the new Restatement Third of Torts, which would dramatically expand trespasses’ rights to sue landowners and impose costly burdens on property owners.

ELIMINATING THE RESPONSIBLE THIRD PARTY PRACTICE.
HB 1427 by Rep. Tryon Lewis, R-Odessa

This bill would repeal Section 33.004(e) of the Civil Practice and Remedies Code as it is used to provide a means to circumvent limitations periods.
 

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I got an email today from the Texas Bar about an upcoming CLE titled "Proximate Cause Redefined: The Controversy Over Substantial Factor". The TPJC's new definition reads: "'Proximate cause' means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event."

Two things. First, right after it came out we predicted that the Texas Supreme Court's opinion in Transcontinental Insurance Company v. Crump would cause confusion and controversy. See "Substantial Confusion". We worried that by deploying a substantial factor analysis in a worker's comp setting (i.e. no fault / producing cause framework) it meant that the court had somehow gotten the idea that all "but for" causes could be subdivided into really really necessary causes and merely really necessary causes. And that, I think, is what the first sentence of the new definition tries to capture. Too bad no inquiry as to the necessary-ness of a necessary cause can be sensibly maintained. 

Maybe the court will use Bostic to put the train back on the rails and continue on with its longstanding and sensible approach to substantial factor. Specifically, that an assessment of whether or not a given "but for" cause was a substantial factor is an inquiry for the court and that the question of whether a substantial factor was of a sort  that would have caused an ordinarily prudent person to perceive the risk created is a question for the jury. 

Second, I'd be willing to bet that not one of the next 100 juries to consider this new TPJC definition of proximate cause will have any idea as to what concept it's trying to convey.

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The Restatement (Third) of Torts shrivels duty into an if-then statement executable by even obsolete jurists: if an actor's conduct creates a risk of physical harm then he owes a duty to exercise reasonable care.

Duty supposedly needed a new and simple algorithm because opinions turning on the question of duty were seen as incoherent and generally the result of a court having invaded the province of the fact finder (jury, hereafter). Foreseeability, the reporters decided, isn't the sort of legal or policy question judges decide - it's fact and case specific and thus something lay people relying upon common sense and communal norms of behavior ought to decide.

So that judges need not be completely replaced by computers the Restatement's reporters added that in exceptional cases a court may find that due to some other explicitly stated policy a defendant may not owe a duty. Furthermore, a court may on rare occasions properly find that reasonable people could not conclude that an outcome was foreseeable and so hold that the duty auto-generated by the new formulation had not been breached. Very simple indeed. But how's it working out?

If Nebraska (an early adopter of the Restatement's new duty formulation) is any indication the answer is "same results; different justification". Does a landlord who allows a renter to keep a pit bull owe a duty to a third party bitten by the dog? Sure; but it wasn't foreseeable so defendant wins. See Monica S. v. Nguyen. Does the owner of a road grader that can only be turned off while it's still in gear owe a duty to a mechanic called to fix it who twice accidentally bumps the ignition button causing it to start up and run over him? Sure; but it wasn't foreseeable so defendant wins. See Riggs v. Nickel.

What's going on? Look at the gold disk in my graphic. It contains all the acts, however remote, that created the risk of an injury that came to pass (e.g. the risk the road grader owner's great grandmother created by having his grandfather). American courts have pretty much uniformly taken the position that whatever risk the jury is to focus on should not be too remote. Whether because they recognized that "security is mostly a superstition" or that "a man sits as many risks as he runs" courts have in the past made essentially policy decisions to the effect that only a subset of all risks, those that aren't insubstantial, may be subjected to a foreseeability analysis. It's only for that subset of substantial risks that an actor assumes a duty and only for those risks that a jury may find to have been foreseeable that he can be made liable. Now in Nebraska (and Iowa) courts are finding a duty for every risk but then holding that whatever risks they would have formerly found to have been insubstantial are instead simply unforeseeable.

Rather than deciding the limits of tort liability those courts that have adopted the Third Restatement's concept of duty are instead engaged in the business of deciding the limits of human foresight. Hardly sensible and no improvement over the old rule: "you're under no duty to do the impossible i.e. guard against every 1-in-a-million risk you create". Oh well, at least it's frustrating what I suspect was the real purpose of the new duty formulation - to backdoor the Precautionary Principle into the law of torts.

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Plaintiff's expert reached his opinion that benzene is capable of causing acute promyelocytic leukemia (APL) in humans by employing a "weight of the evidence methodology. The U.S. Court of Appeals for the First Circuit decided that's ok. Consequently, since no researcher had previously reported an increased incidence of the illness following exposure, since the conjecture that benzene causes APL has never been tested, and since "even delusions are permitted as hypotheses" (see p. 19) in science it's fair to say that the First Circuit has adopted an "anything goes" approach to science in the courtroom (at least so long as your expert is bright enough or at least prepared enough to intone a few magic words). For today let's start with this "weight of the evidence methodology" business.

The court was impressed that plaintiff's expert reached his opinion using a process of elimination approach polished into the more formal-sounding "inference to the best explanation". Essentially the expert picked the evidence he thought was important, weighed it in the scales of his "professional judgment" and found that the theory advanced by his employer was the correct one. The court should have been shocked! Shocked! Instead it was satisfied that an expert weigher paid (as they all are in our advocacy-centric system) to have a thumb on the scale had fairly come to an admissible opinion thanks to his sound methodology. But is basic decision theory the sort of "method" the Supremes had in mind when they decided Daubert?

When you think of methodology, whether in the context of Bendectin or skid marks, you think about whether the expert used sound epidemiological principles or had a sound grasp of coefficients of friction and the relationship between force, mass and acceleration. If she got the methods right and from there opined as to why a justifiable conclusion is the correct one using a "weight of the evidence" approach then sure, let the jury decide. But if the expert chooses what to weigh you know that selection bias is at work; and when the data he decides to weigh is unsupported you know another sort of bias is at work; and when the only defensible items left in his scale are temporality and plausibility then you know that all he has is an untested hypothesis. What the court fails to understand is that the weighing of the evidence doesn't even begin until there is a "validly observed association". Otherwise, all plaintiff's expert has done is to propose a theory that ought to be tested.

When all you have is an untested hypothesis doesn't defendant win? Doesn't plaintiff yet carry the burden of proof? Not in the First Circuit, if Milward stands.

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I could write a long and tedious post about Milward v. Acuity Specialty Products Group, Inc. and that's why I'm having such a hard time writing a short and hopefully interesting blog post about it. The problem is that the opinion contains no formal arguments, eschews empiricism and denies the existence of objective facts. In other words, precisely because of the epistemological relativism it implicitly adopts, the attempt to blog about it has become a bit like trying to play croquet with a flamingo. But here goes - piecemeal fashion.

The trial court bifurcated the case into two phases. In the first phase the query was whether or not so-called "general causation" testimony by plaintiff's experts was admissible under Daubert. If such testimony proved to be admissible a trial on the rest of the case, including so-called "specific causation", would follow. Let's think about "general causation" and "specific causation".

The First Circuit's opinion refers us to comment c(3),section 28, of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm for the meaning of the supposed two types of causation in a toxic tort case; the former being "when a substance is capable of causing a disease" and the latter being when "when exposure to an agent caused a particular plaintiff's disease". Everyone seems to think this is obvious but is it and, if it is, what should follow from it?

I readily admit that by 1995 I had added the general/specific causation idea to a CLE presentation I'd started to give on causal inference, A.B. Hill's "criteria" and the inherent difficulty in proving that a particular plaintiff's illness, sans aplastic anemia, asbestosis, etc, was caused by some agent established by frequentist methods to be a carcinogen. Now I'm not so sure. Here's why.

We all agree that fired bullets generally cause holes in those they strike and in the toxin context that carbon monoxide (or cyanide, etc) generally causes chemical asphyxiation. But why do we so readily agree? Because everyone struck by a bullet or exposed to carbon monoxide will experience some degree of indentation or asphyxiation. Yet the vast majority of workers exposed to benzene or asbestos never develop any symptoms nor even any signs of prior exposure. Take the unibestos workers at Pittsburgh-Corning's Tyler, TX facility. It's true that 9% have developed mesothelioma but why haven't the other 91%, after almost 50 years, developed mesothelioma? You can ask the same question about benzene or radium dial workers and you'll get the same answer. You'll also find that the dose response curves flatten out. What does it mean?

It means that amosite asbestos causes mesothelioma in people susceptible to getting mesothelioma from amosite asbestos and that benzene causes AML in people susceptible to getting AML from benzene. In essence it means that there is no "general causation" and that all causation is specific to the individual. That's actually a good thing for plaintiffs because causation can then be established by means other than by epidemiology - by detecting biomarkers, asbestos bodies and the like.

But it also means that Milward has to prove that somebody, somewhere got the form of leukemia from which he suffered, APL, following benzene exposure. Milward's expert could find no such case. The best he could do was to say that in some studies of benzene-exposed workers some cases of APL (a rare yet widely found and naturally occurring blood cancer) had been found. He basically admitted that such evidence would fail the inferential tests of strength and consistency and said instead that the fact that cases of APL were found bolstered his opinion by demonstrating that it was not manifestly false.

Thus my first beef (I'll go page by page in the days to follow): asserting that a claim (here, that benzene causes APL) is probably true, or is more likely true, because it has not been proven false is in fact the logical fallacy known as argument from ignorance. Not pretty. Not pretty at all.

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It really will be The End of Toxic Tort Litigation in Texas (at least for any case involving multiple sources of exposure) if the Texas Supreme Court adopts the position on substantial factor causation urged by Georgia-Pacific in its recently filed Response in Georgia-Pacific Corporation v. Bostic. Let's hope the court begins and ends its analysis with exposure/risk as Bostic never proved more than a de minimis exposure to Georgia-Pacific's product.

Georgia-Pacific first says about substantial factor causation that the court's Flores opinion requires plaintiff to establish that "but for" his exposure to Georgia-Pacific's product he would not have developed mesothelioma if he's to carry his burden of proving substantial factor causation. To support this argument Georgia-Pacific says that the court adopted section 431 cmt. a (1965) of the Restatement (Second) of Torts when it decided the substantial factor causation issue in Flores. Georgia-Pacific quotes the comment emphasizing "it is not enough that the harm would not have occurred had the actor not been negligent ... [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm." Georgia-Pacific argues then that "under Flores, to prove substantial factor causation, a plaintiff must prove that the harm would not have occurred "but for" the defendant's conduct."

I think Georgia-Pacific has it wrong. "Substantial factor" causes are a subset of "but for" causes and not the other way around - a vital distinction when we get to what constitutes a "but for" cause in a toxic tort case.

Under the Restatement's formulation (and that of every other court that has put some thought into it) causes that are substantial factors are clearly a subset of all "but for" causes. In essence, some "but for" causes are not "substantial factors" as they are, for whatever reason, beyond the limits of liability. Think for example of Ms Palsgraf's case. If we make a set of all non-trivial "but for" causes of her injury we find within it (a) a running, stumbling passenger; (b) defective fireworks; (c) overly vigorous guards who jostle the passenger; and, (d) an unsecured scale. Remove any one of (a) - (d) and the accident would not have occurred. Each is thus a "but for" cause. However, we know that (c) at least is not a "substantial factor" or "legal cause" or "proximate cause" (depending on your jurisdiction) and thus not all "but for" causes are substantial causes.

Asbestos presents a very different problem. What, according to the parties in Bostic, are the non-trivial members of the set of "but for" causes of Mr. Bostic's mesothelioma? There's only one - (a) asbestos exposure. Asbestos exposure is the "but for" cause.

Now, since the identity of the fiber or group of fibers actually responsible for a plaintiff's disease is unknowable, the questions to be answered are: (a) do you impose liability for every fiber; and, (b) if not, how do distinguish between those for which a jury can reasonably impose liability and those for which they cannot? Flores answered those questions (a) "no"; and, (b) not by requiring that a plaintiff do the impossible - i.e. prove which subset of his asbestos exposure was responsible and that without it he would not have become ill - but rather by requiring that a plaintiff merely prove that the exposure complained of was more than de minimis and to do so not by his expert's ipse dixit but rather by some estimation of the range within which the particular dose fell along with evidence that exposure to such a dose posed more than a de minimis risk. A substantial factor in the toxic tort context in Texas is thus an exposure that was more than de minimis and so one that posed more than a de minimis risk.

Georgia-Pacific then goes even further. It argues that "a plaintiff must show that his exposure to a defendant's asbestos-containing product was sufficient to cause his injury ..." A sufficient cause is a complete cause. In other words, Georgia-Pacific is taking the position that plaintiff must show not only that the dose was more than de minimis but also that the dose for which it was allegedly responsible was sufficient, without any other exposures, to have caused the illness complained of. Think of it this way, if it took 100 fibers to cause mesothelioma and three defendants each exposed a plaintiff to 99 fibers for a total of 297 fibers no defendant could be held accountable because none supplied at least 100 fibers. Combine that with Georgia-Pacific's argument that all sufficient causes must also be "but for" causes and a plaintiff who could prove a defendant's product was more likely than not the cause of his illness would never win so long as there was another sufficient cause of exposure within his set of all asbestos exposures. To so hold the Texas Supreme Court would have to overturn decades of precedent as it has for half a century held that such a rule would make it "impossible for a plaintiff, though gravely injured, to secure relief in the nature of damages through a joint and several judgment by joining in one suit as defendants all wrongdoers whose independent tortious acts have joined in producing an injury to the plaintiff, which, although theoretically divisible, as a practical matter and realistically considered is in fact but a single indivisible injury." Demanding an obviously wronged plaintiff do something that logically cannot be done in order to recover from those undoubtedly at fault doesn't seem very fair and so I'm pretty sure the current Texas Supreme Court won't be overturning Landers.

In the end Georgia-Pacific should prevail because Bostic never proved more than a de minimis risk from Georgia-Pacific's products. That's enough. I just hope the court doesn't buy into those other arguments discussed above because if adopted they'd place insurmountable hurdles between many wrongly and preventably injured plaintiffs and the courtroom.

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My write up of Milward v. Acuity Specialty Products Group, Inc. is seven pages long yet far from finished.  Since it's very late I'll post just this for now. Whether the court intended it or not Milward, a benzene/APL case, is a radical opinion and a dramatic departure from Daubert v. Merrell Dow.

Milward adopts the "free for all" view of the scientific method favored by technophobes, chemophobes and especially plaintiff lawyers. Meanwhile, it drops the requirements of testability and falsifiability, turns Sir A.B. Hill from a fan of Hume and Popper into a verificationist with a list of things that don't actually matter, and concludes by holding that if an expert's opinion rests on four propositions, all of which are faulty, his opinion is nevertheless admissible so long as he says that "the totality of the evidence" informed his subjective judgment.

To help it understand the scientific method and how tort law should incorporate the concept the Milward court turned to the author of "Legally Poisoned: How the Law Puts Us at Risk from Toxicants" as well as a number of articles going at least back to 1982 that advocate against cost/benefit analysis and in favor of what is now known as the Precautionary Principle and the use of the tort system, once Daubert is out of the way, to effect its purpose. Throw in the court's understanding of comment c from section 28 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, then read "The Tyranny of Science" when it's released later this month and you'll understand what Milward is all about and why it's such a big deal.

In coming days I'll go through Milward item by item starting with the elevation of (paraphrasing) 'process of elimination through subjective judgment founded on concepts of society, collective duty and environmental justice' to a scientific method.

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The Texas Legislature is set to consider a bill to close a gaping loophole in asbestos litigation: forcing Plaintiffs to apply to asbestos bankruptcy settlement trusts BEFORE initiating litigation. There are dozens of bankruptcy trusts set up to pay people who have an asbestos-related disease. Many of these involve the largest asbestos companies in the country, such as Johns Manville, Celotex, H.K. Porter, etc. They are funded with billions of dollars.

Texas also has a statute to allow defendants to prove liability by third parties, including bankrupt companies. The plaintiffs have to submit applications to the bankruptcy trusts which allege exposure to the products of the bankrupt companies. The trust applications and dollar amounts paid are then admissible in the lawsuit. This works to make sure there isn’t a double recovery for one injury.

All that goes wrong, however, when the plaintiff waits until after their lawsuit is concluded before applying to the bankruptcy trusts. This becomes a big issue in Texas where we have a fast-track docket that allows dying individuals to have an expedited trial setting. There is a very real potential for a plaintiff to swear they have no idea who manufactured the insulation or gaskets or joint compound they were exposed to, or to not remember the brands of bankrupt entities. Then, after the lawsuit is over to suddenly remember and file the trust applications.

This loophole is finally being addressed.

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One day, out of the blue, a common and widely used chemical which had been tested many times on many different species of lab animals without effect caused a particular strain of mice to develop cancer. Government and industry got together, funded epidemiological and toxicological studies and then agreed on a new and dramatically lower occupational exposure limit. The system worked, right?

Soon those who produced the chemical, even those who produced its utterly innocuous precursors, those who made things with it and those who transported, bought, sold, released or disposed of it were all defending claims by plaintiffs who had been exposed to it decades before. But how could these claimants prove their cases when government and industry had tested the product repeatedly and had found no rat, mouse, dog or monkey that suffered any ill effect short of exposure levels in the range that would produce asphyxiation?

Easy! Find an article detailing the product's important metabolites, find an article suggesting that one of the metabolites is mutagenic, find an article showing that the metabolite was known to result from metabolism of the product, find an article showing that the particular strain of mouse in question was thought by someone, somewhere at some time to be a good model for human carcinogenesis and find an article suggesting an exposure protocol which wouldn't be used until years into the future but which would result in the metabolite otherwise not produced by traditional exposure methods. Having found such easily identified articles plaintiffs' counsel was able to claim that any good company truly interested in worker health would have discovered the product's carcinogenicity no later than 1964.

We went and deposed the authors of those old papers strung together to show that what was unknown was in fact knowable and they unanimously said "Ummm, no". No one cared about the product's metabolites because it wasn't considered to be a carcinogen and the metabolite in question was tested way back when because it was a metabolite of something else and that something else turned out not to be a carcinogen and oh by the way skin-painting and ingestion studies not what came two decades later were state of the art in the early 1960s. Whew.

Then we tried plaintiff's "duty to test / duty to discover" theory to three mock juries. Every one found for the plaintiffs and every one found that what would not be suspected, much less discovered, for another two decades was in fact knowable by the early 1960s. Indeed, the future was so obvious that one mock jury found "wanton indifference" and another decided exposing workers after 1960 amounted to an intentional tort.

Those thirty-six pretend jurors with an average education at about the tenth grade level were hardly oracles. Their extraordinary powers of foresight were, oddly, limited to the product in question. In breakout focus groups after the mock jury research they said that the internet, cell phones and air bags in cars were all unforeseeable in the 1960s (despite the fact that they either already existed or were being discussed in things like Popular Mechanics back then) but the carcinogenicity of the product, well, how could you miss it (despite the fact that it wasn't even hinted at back then precisely because of numerous tests that had come up negative)? So what granted them the power of perfect foresight though only for an obscure issue utterly tangential to their lives? Hindsight bias.

Courts in 2011 are starting to recognize the danger of unintentionally imposing a duty of omniscience if the faulty heuristic is not recognized and dealt with. See Rodriguez v. Stryker but also see Cristiani v. Money. Courts may be aware of the blindspot in our reasoning but how, within existing procedures, do you avoid it and how do you prove your jury was afflicted by it after the fact?

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Post hoc, ergo propter hoc. There'd be far fewer toxic tort claims if it weren't for that little logical fallacy which informs so many opinions.

Today there's word from Japan that the use of Prevnar and ActHIB has been suspended following the deaths of four children who died after immunization against bacterial meningitis and pneumonia. Though the vaccines came from separate lots indicating that contamination was not an issue and despite the fact that pneumonia and bacterial meningitis are dreadful diseases the news prompted the usual outpouring of vaccine denunciations.

Here in Houston the news produced claims that (a) the autism-derived and fact-free belief that children get too many shots or that they're given "too close together" means lazy doctors are to blame; (b) vaccines lower I.Q. and cause a 700% increase in cancer; (c) the U.S. Supreme Court has put us at the mercy of drug companies so that "you give those vaccines to your children at their peril"; and, (d) there's a dark conspiracy, in which the media is complicit, to bury stories about the harmful effects of vaccinations. See them all at "The MomHouston Blog".

You may not know people like these but they show up on your juries. Ignore them at your peril.

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Bruesewitz v. Wyeth has been decided. Though it starts out with a compelling pro-vaccine narrative the majority opinion quickly becomes a slog through proper grammar and the perils of reasoning from unproven premises. Breyer's concurrence at least digs into the danger to public health posed by the tort system though ultimately it's all about deferring to public health authorities rather than just acknowledging that you need neither a Ph.D nor an M.D. to understand that allowing the carrot of serial mega-verdicts to incentivize the trial bar into suing the vaccine makers out of business would be a catastrophe.

Things look to get interesting again once you get to the dissent. It begins by embracing the stick view of torts and economics. Specifically, that companies are not incentivized by the market to improve the safety of their products and thus they won't do so unless and until the stick of economic pain is applied to their backsides via the tort system. But then it too wanders off into an even more painful textual argument. The dissent only approaches the heart of the issue tangentially in footnote 25 when it touches upon but dismisses the risk to our vaccine system posed by something like the autism-vaccine hoax.

The dissent notes the 5,000 pending autism-vaccine claims but says that without "empirical data" worrying about such suits impacting the vaccine industry is purely speculative. The footnote goes on to happily imagine that state courts have decades of experience efficiently and effectively weeding out and disposing of meritless products liability claims summing up by saying that "doomsday predictions of ... a torrent of meritless lawsuits bankrupting manufacturers and causing vaccine shortages seems remote at best."

For some empirical data derived from past experiments with letting the tort system "regulate health care" the dissenters might try (gated) "The Negative Impact of Litigation on Women's Health Care" from the journal Gender Medicine (see also the Bendectin, breast implant and dozens of other product defect claims that drove safe and effective products off the market).

Anyway, that's it. No more design defect claims for childhood vaccines.

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MSNBC is reporting that another personal injury lawsuit has been filed arising out of a hospital-acquired B. cereus infection and that a number of would be plaintiffs are inquiring about their own claims. Meanwhile the difficulty in tracing the geneology of members of the bacillus family, and a new way forward, are coming into focus. See: "Bacillus Taxonomy in the Genomic Era Finds Phenotypes to be Essential Though Often Misleading".

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In today's news is a tragic story about the parents of a two-year old boy whose death from a nosocomial (hospital-acquired) infection they blame on alcohol wipes contaminated with Bacillus cereus.  According to the complaint filed February 13th in federal court here in Houston the Kothari's son developed bacterial meningitis following an otherwise uneventful craniotomy performed at Children's Memorial Hermann Hospital for a benign arachnoid cyst.  During the course of his treatment alcohol pads and swabs were used on his surgical wounds and within days he developed a B. cereus infection (established by positive cultures from cerebrospinal fluid) and died shortly thereafter. The next month Triad, alleged to have been the manufacturer of the alcohol pads and swabs, recalled the products saying they were potentially contaminated with B. cereus. Two days later the FDA announced a recall of all such Triad pads and swabs saying that their use "could lead to life-threatening infections, especially in at risk populations, including immune suppressed and surgical patients." 

It's estimated that in the U.S. two million patients are sickened and 80,000 are killed annually by nosocomial infections. Accordingly, it's a very big problem and so has the potential to be a very big mass tort.

Yet a big part of the problem, and the biggest impediment in the past to tort claims arising from these illnesses, are the twin issues of tracing the infection to a putative source and then establishing that the bacteria cultured from the victim are the descendants of bacteria found in the defendant's products or at its manufacturing facilities. Since most bacteria responsible for nosocomial infections, including B. cereus, are ubiquitous in the environment and were, until recently, impossible to distinguish phylogenetically, establishing causation has been essentially impossible. Now, thanks to epidemiology returning to its humble origins and genetic sequencing taking giant strides forward, it may be possible to trace an infection to its origin and conclusively establish ancestry.

Unfortunately the Kothari complaint does not reveal whether or not anything beyond a post hoc ergo propter hoc inference supports their claim. One allegation is that B. cereus infections are rare in hospitals and yet the first thing that pops up on PubMed is "Bacillus cereus Bacteremia Outbreak Due to Contaminated Hospital Linens". And as to the proposition that B. cereus infection is somehow unusual and thus more likely due to something gone astray see "Bacillus cereus, a Volatile Human Pathogen". Finally, as to the claim that B. cereus meningitis in children is exceedingly rare see (ungated) "Bacillus cereus Bacteremia and Meningitis in Immunocompromised Children".

Did the hospital have a record of B. cereus infections? Were catheters employed that B. cereus could have used as an escalator to infection? Was the strain identified identical to the one that prompted the recall? Were there other sources of that strain? If so, how is one deemed more likely the cause than the other?

Efforts to identify strains of disease-causing bacteria and to trace them back to their origin have put us on the verge of being able to identify and hopefully thereupon eradicate the causes of an enormous portion of human suffering. But we're not quite there yet as demonstrated by tonight's report of the National Academy of Sciences on the 2001 anthrax attacks. B. cereus is a cousin of B. anthracis - the causative agent of anthrax. B. anthracis was long thought to be less promiscuous than its cousins and so less likely to vary widely thus making its origin easier to identify. But it ain't so. See Chapter 5.2 "Identification of the B. anthracis Strain". The very same difficulties will likely hamper any attempt to match strains of B. cereus.

Establishing a common strain of bacteria and tracing it back to a particular defendant remains a very high hurdle for any plaintiff to clear. But when the day comes that both are readily doable "Katy bar the door" because the number of deaths from cancer, heart disease, diabetes, etc being laid at the feet of infectious agents is staggering and rising every day. Worst of all, thanks to the ability of these ancient predators to evolve at a fantastic rate. there's little anyone can do to predict where and from which formerly benign little bug the next onslaught is likely to arise.

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For the first time since enactment of the Toxic Substances Control Act (TSCA) the US EPA is threatening to remove confidentiality claims on studies of 14 chemicals.

Under the TSCA companies may claim that information submitted to the EPA should be treated as confidential business information (CBI) and not disclosed to the public. Companies that manufacture, process or distribute chemicals are required to immediately notify the EPA if they learn a chemical presents a substantial risk of injury to health or the environment. The reports are available on EPA’s website, but when the identity of the chemical has been claimed confidential by a company, the name of the chemical has been removed from the copy of the report that is made public.

In May 27, 2010, the EPA said it planned to generally deny confidentiality claims for and the identity of chemicals in health and safety studies filed under the TSCA, except in specified circumstances.

The EPA has begun reviewing past CBI claims for chemical identity in health and safety studies. When the EPA determines that the information is not eligible for confidential treatment under the law, it will notify companies of the determination and that it will make the information public on the 31st day after receiving the determination unless the company properly challenges the disclosure.

On February 10, 2011, the EPA notified five companies that the identities of 14 chemicals associated with a number of health and safety studies under TSCA are not eligible for confidential treatment. The companies that submitted the data in question are: Givaudan Fragrances Corporation, Japan Technical Information Center, Inc., JSR Micro, Inc., Nalco Company and Promerus LLC.

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On the matter of negligence in personal injury cases the first draft of the Restatement (Third) of Torts eliminated the element of duty altogether. After an uproar the authors eviscerated duty and stuck back in what was left. Ultimately, while they failed to restate the law as it pertains to duty they did manage to restate the era of unjustified fears and risk aversion that has persisted since about the time the Restatement (Second) was published.

The Restatement (Third) takes the position that case law as well as scholarship pertaining to duty is largely incoherent. The essence of the claim is that limits to liability couched in terms of relationships or foreseeability are nothing but ad hoc justifications for taking the real question, whether defendant breached a duty of reasonable care owed to society, out of the hands of the jury where it belongs. Thus, dismissing as insupportable judicial inquiries about the connectedness of plaintiff and defendant (the relational approach) as well as those as to the proximity of cause and effect (proximate cause), the Restatement (Third) of Torts, Liability for Physical and Emotional Harm Section 7(a) reads "[a]n actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." It goes on to add that save in "exceptional cases" judges "need not concern themselves with the existence or content of this ordinary duty." In other words, once it has been established that a defendant created a risk the court's work regarding duty is finished and the question of whether defendant's conduct was reasonable is exclusively for the jury to decide.

That's a very long way from either position taken in  Palsgraf v. The Long Island Railroad Company . On one side Chief Justice Cardozo for the majority wrote "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imparts relation; it is risk to another or to others within the range of apprehension". On the other Justice Andrews dissented writing both that "[e]very one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others" and yet that "there is one limitation (on liability). The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former." He continues "[w]hat we do mean by the word "proximate" is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point."

Cardozo marks the boundary of liability by a circle of close if fleeting relationships while Andrews bounds it within a circle of causes that are close to the injury producing event. Whether measured by the remoteness of the relationship or of the cause from effect both sides agreed that there was a limit to the duty of reasonableness even when a risk has been created. It's that idea of a limit on the duty of reasonableness that was cut out of duty in the Restatement (Third). Consequently foreseeability, the catchall for the various efforts to limit the scope of the duty of reasonable care, is said to have been purged from duty.

The objection that the collection of limitations on the duty of reasonable care (whether Cardozo's or Andrews' or the many iterations based on foreseeability) is incoherent is based, I suspect, on an understandable misunderstanding of what these jurists are trying to say. What I think they've been trying to say is that risk is an inevitable part of life and that some risks are so small that liability isn't warranted even if an injury should follow their creation.

But foreseeability doesn't sound much like risk. Isn't it about predicting the future; about foretelling future events based on what's already known? Yes, but that ex ante calculation of the effects that likely follow causes is what risk is all about.

But why limit liability by the degree of risk? And if a boundary is drawn how can it be done other than arbitrarily? Isn't it better that we follow the Precautionary Principle? Aren't we Addicted to Risk? Wouldn't the world be a better place if we quit taking risks?

To answer those questions let's go back to the railroad guards who created the risk that caused Ms Palsgraf's injury. As a train began to leave the station two men ran to catch it. One safely boarded but the other, "carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails." What might the future have looked like had the guards taken the time to consider all of the possibilities that might follow from their effort to keep the man from falling? What might the future have held for him assuming gravity acted upon him as it did upon his package? And what about the rest of us, if inaction were the only way for our fellow citizens to avoid being hauled into court?

For several decades now the merchants of fear have been telling us that everything we thought was progress is instead the cause of human suffering. Vaccines? Autism or worse. Electricity?  Electromagnetic fields, migraines, MS, cancer. Internal combustion engines? Global warming, pm2.5, etc. Plastics? Endocrine disruption, heart attacks, cancer. Pesticides (e.g. DDT) and herbicides? Sterility, cognitive deficits, cancer, overpopulation. Cars? Runaway acceleration, rollovers, fireballs. Computers? ADHD, too many choices, too little control. Shouldn't we have waited until all the kinks were worked out before acting? Click on the vaccines link in this paragraph and also consider the price of fear of regret as expressed by Benjamin Franklin.

It is, I'm afraid, a duty to stop and not act until you've considered all the possible consequences of every action, however improbable, that the Restatement (Third) ultimately embraces. It is an embrace of the Precautionary Principle - an embrace therefore of a political viewpoint; not a restatement of the law regarding duty.

When you think of foreseeability as risk you see what the law really has to say about the duty of reasonable care and the analysis of any claim that it was breached. What it truly says is that the court, taking an ex ante perspective, is to decide whether the risk created was one for which, if found unreasonable and causative by a jury, liability may fairly be imposed. Thereafter, for any act amenable to liability, it's for the jury to express their community's tolerance for risk. Risk, or foreseeability, is thus sensibly in two places. First in the law where the limits of liability are drawn and thereafter with the fact finder who considers the reasonableness of the conduct given the context in which the various factors played out. 

Is there some bright line that can be drawn? Not always though we're certainly arguing down here that in cases where good quantitative risk assessment is available it can be. For example, in one case involving a minute exposure to a carcinogen we can take the plaintiff expert's epidemiology studies and show that the exposure his industrial hygienist calculated produced, at most, a 1 in 13 million risk of death. Compared to other known risks you're much more likely to slip and fatally hit your head on the toilet than to die from the exposure of which plaintiff complains. Our argument is that it make sense then to have the law, i.e. the court, set some reasonable outer limit on liability - perhaps at the 1 in 1 million level. Otherwise we either open up toilet makers and everyone else to ruinous liability for creating risks running towards the impossible end of the spectrum or we without any sound reason decide that some one in a million risks of death are fine while others aren't.

Unsurprisingly it didn't take long for the simplicity and predictability arguments advanced in support of the new and hollow version of risk to run off the rails. Consider Feld v. Borkowski. Iowa's supreme court eagerly adopted the new conception of duty in 2009  (see Thompson v. Kaczinski) only to start tortuously creating exceptions to it less than a year later. (Slow pitch softball is a contact sport? Who knew? By the way, with all due deference to the Creighton coach I suspect angular momentum and early application of torque rather than recklessness answers the question). Rather than clarifying duty I'm afraid the Restatement (Third) has only created a risk of even more obscure and incoherent formulations of exceptions so as to avoid the consequences of duty without limit.

Anyway, whatever the facts and whatever the content of duty courts will in the end have to recognize the wisdom of another famous American, Henry David Thoreau, who wrote "A man sits as many risks as he runs." And that "if a man is alive, there is always a danger that he may die ..." It's exactly that essence of the inevitability of risk that the courts, if not the Restatement (Third), have been trying to express when they talk about duty.

 

 

 

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Whether a plaintiff is required to prove proximate cause in a FELA case appears to be the essence of CSX Transportation, Inc. v. McBride; a case the US Supreme Court has recently chosen to review. Specifically, the question CSX raises in its brief is whether evidence of "mere 'but for' causation" coupled with some disconnected negligent act by the railroad is enough to satisfy the requirement that plaintiff prove that the railroad's negligence was the legal cause of his injuries. However, given the growing movement to rediscover and understand anew the foundations of tort law, to think of Torts as Wrongs rather than tools to (a) allocate losses; (b) regulate on an ad hoc basis "negative externalities"; or, (c) redistribute wealth, the Court's opinion has a chance to be a very big deal should its reasoning extend beyond the interpretation of a century old statute.

If not all "but for" causes are proximate causes where does the line get drawn and why does it get drawn there? For a very long while there was no line here in Texas. Take for example the case of Dryden v. Gulf States Utilities Company - a case I monitored as a summer associate. My firm represented the workers compensation carrier which had paid indemnity and medical and was on the hook for lifetime future medical bills. It had intervened in the case to assert a lien such that were Dryden to recover by way of his "third party" action for lost wages and medical bills it would get two thirds of its money back. We played no role in the case having stipulated before trial to the amount of the lien and our recovery.

Being green and stuffed full of idealized law rather than practical law I was shocked that such a seemingly meritless case had even made its way to trial. The plaintiff was a painter and he had used what they called a pic-board, a sort of hanging scaffold with a cleat on one end of the 2" x 12" board and a hole for a rope in the other. With this setup he could pivot around and reach more places in need of paint. The day before the accident his helper saw an old rope in a trash pile and, it being much closer to hand than the one back in their truck, he retrieved it and used it to suspend the plaintiff's scaffold thirty feet up - much easier than carrying the pic-board down several flights of metal stairs and stowing it. The next morning the plaintiff saw the old thin rope supporting the pic-board and decided it wasn't sufficient so he went back to his truck and retrieved the good rope. Then he walked out on the scaffold, suspended only by the thin rope from the trash, on his way to reinforce the thin rope with the new one. The obvious happened next and the plaintiff's arm was broken in several places.

Ok, even if it was somehow negligent to discard an old rope in a temporary trash pile on its own premises how does it follow "as a natural and continuous sequence of events" that someone would fish the rope out of the trash, use it for a wholly improper purpose, be recognized as a danger and still be relied upon by a journeyman painter to prevent him from falling thirty feet to the ground? The jury found it quite foreseeable and they popped the defendant rope-discarder for $654,000. Amazingly, the jury also found that the rope failing was not foreseeable to the plaintiff even though the whole purpose of his retrieval of the good rope and walk out to the end of the pic-board was to shore up the trash rope. The court of appeals affirmed

If such an accident is foreseeable (to the deep pocketed party anyway) one has to wonder what isn't foreseeable given the common thinking error known as hindsight bias. And by the way, what is foreseeability, really?

Duty and breach, and cause and effect, are opposite sides of two different coins. To connect the two coins and so complete the tort you have to establish proximate cause which can I think be thought of as a "but for" cause such that, if it meets some criterion or criteria, the jury is permitted to apportion fault and decide damages.

If the connection is too automatic, too natural and continuous a sequence, then things are easy and the tort may even be called an intentional one. But at the other end of the train station where a tile is falling towards Mrs Palsgraf's head connections between the law and the facts, via foreseeability or otherwise, are much more difficult unless they're thought about in terms of risk. Instead the courts dance around the issue and try to come up with names for where acts fall on the spectrum of risk. A botched surgery in which the wrong kidney is removed is the easy case. A botched surgery in which the wrong kidney is removed leading to a transplant which leads to a stroke demands foreseeability. A botched surgery in which the wrong kidney is almost removed but isn't yet because the plaintiff arrives in his cab, supplied by the hospital, at an intersection one minute later than he would have had the mix-up not caused a one minute delay in the surgery, just in time for a runaway 18-wheeler to crash into him - well, that requires CSX v. McBride because the risk, ex ante, was incalculably small.

In CSX v. McBride the plaintiff didn't even try to concoct a story about foreseeability. The railroad allegedly hooked up the locomotives in a fashion which increased the risk of derailment. That was the first coin of negligence - a duty to try to avoid derailments and a breach (by the way, there was no derailment). Elsewhere, the plaintiff was driving a locomotive with which he wasn't familiar. His hand tired at the brake and eventually his reach exceeded his grasp and he hit his hand on the brake causing swelling and pain - that was the second coin - his hand was tired from working the new instruments and consequently he hit it on an unyielding metal bar after overuse. He has thus duty/breach and cause/effect. Under his theory of FELA law no connection between the two is needed. Essentially the railroad has a duty of omniscience.

The Court could, of course, decide the case strictly on whether some connection, some nexus, between duty/breach and cause/effect is required under the FELA. It produces a nice binary result. Or it could delve deeper. It could as it did in Industrial Union Department, AFL-CIO v. American Petroleum Institute, et al recognize that we live in a world of inevitable risks. That "a man sits as many risks as he runs".

Were it to do so, were the Court to find that there exists a realm of de minimis risks far beyond the mark where injury would be expected, a realm in which Americans are free to act silly (in the eyes of some) as they want so long as they don't impose a significant risk on their fellow citizens, it would be utterly revolutionary.

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Last Friday at the Texas asbestos MDL hearings Judge Davidson addressed arguments that preview what may be argued in the Bostic case currently pending in the Supreme Court of Texas.

At the hearing one of the defendants argued in essence that Ford Motor Co. v. Ledesma, a case that defined producing cause in a product liability case, overruled Borg-Warner v. Flores and requires that a plaintiff prove that but-for the defendant’s fiber inhaled by plaintiff, the plaintiff wouldn’t have developed mesothelioma. Ledesma stated that producing cause requires a defendant’s act or omission be a substantial factor in bringing about an injury and without which the injury would not have occurred. Ledesma was not a toxic tort case nor did it involve multi-tortfeasors. The central issue was whether a manufacturing defect triggered an axle displacement and caused the accident or whether the axle detached as a result of an accident. In Ledesma there was a causal chain of events which could be fairly tracked for a determination of which of the actions was or wasn’t a but-for cause.

Judge Davidson disagreed with this interpretation and stated that substantial contributing factor as annunciated by the Supreme Court of Texas in Borg-Warner didn’t require that a plaintiff prove but-for a defendant’s exposure the mesothelioma would not have developed. The proposed interpretation would require that but-for causation in asbestos cases must be shown by proving that a defendant’s product was a link in the actual chain of causation, i.e. the fiber that started or actually contributed to uncontrolled cell growth.

We believe the Supreme Court of Texas may reach the same result if it grants the petition for review in Bostic.  Strict but-for causation is simply not possible in a classic Summers v. Tice, multi-tortfeasor scenario. The high court in Borg-Warner clarified that in those situations which often arise in asbestos cases you need to examine the risk imposed on the plaintiff by the defendant’s conduct. Because in a toxic tort case with multiple exposures, it is practically impossible to determine which fiber or set of fibers are in the actual causal chain, risk becomes a proxy for cause. A but-for cause can then be proven by showing that an exposure increased the plaintiff’s risk to a point that it was likely a but-for cause. This is done in the first instance by quantifying the dose of exposure through an industrial hygienist. However, that is not the end of the inquiry. The Supreme Court of Texas in Borg-Warner also recognized that a defendant’s conduct must have been a substantial factor, which is shown by evidence that the risk imposed on the plaintiff by the defendant’s conduct was itself substantial.

Ledesma is of course important. An exposure must be a but-for cause, however, in toxic torts with multiple exposures, a strict factual set of causal links is pragmatically impossible. Risk has long been the proxy and should continue to be the necessary proxy.

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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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The answer is: maybe, but only when it comes to the really obvious stuff.

In this month's journal of Law and Human Behavior there's a new paper reporting on a study designed to test jurors' ability to discern and deal with bad science. It's titled "I Spy with My Little Eye: Jurors' Detection of Internal Validity Threats in Expert Evidence". The researchers hypothesized that mock jurors could spot glaring flaws but not subtle though equally fatal ones. They also hypothesized that jurors would, when unable to judge the soundness of a scientific paper, use its publication status as a sort of seal of approval for its validity. Their results confirmed their first hypothesis but partially rejected their second one and along the way seemed to confirm the view that the less people understand about science and the scientific method the less impressed they are with publication status. Indeed, unpublished science may well be viewed as "cutting edge" and so, like soap powder, "New! And Improved!"

It's a well done paper; infinitely better than so much of the Empirical Legal Silliness out there. It also provides a measure of hope about jurors' ability to deal with scientific issues. For example, these mock jurors were able to identify and discredit a study without a control group. Using data demonstrating  e.g. that 18% of type II diabetes patients taking drug X had heart attacks or strokes over the following decade to show that a particular plaintiff's heart attack was caused by drug X is of course just a version of the post hoc ergo propter hoc fallacy unless there's some similar group of type II diabetics not on drug X who didn't suffer such a high rate of heart disease and stroke.

On the other hand, more subtle but equally invalidating flaws like obvious confounders, biases and reversal of causation went undetected. These observations led the authors to conclude that "[o]ur results indicate that although jurors may be capable of identifying a missing control group, they struggle with more complex internal validity threats such as a confound and experimenter bias. As such, the role of traditional legal safeguards against junk science in court such as cross-examination, opposing expert testimony, and judicial instructions become increasingly important." These findings and others like them underscore the continuing need for judges to act as gatekeepers. Such objective findings also continue to undercut the fact-free reasoning behind Comment c. Toxic substances and disease, Section 28. Burden of Proof, Restatement (Third) of Torts and its effort to loosen the standards for admitting expert testimony in toxic tort cases.

But how are our judges doing? Are they starting, at last, to "get" science? Seventeen years ago in Daubert v. Merrell Dow Chief Justice Rehnquist wrote, concurring in part and dissenting in part, "I defer to no one in my confidence in federal judges, but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability" and I suspect some of them will be, too." That a Justice on the U.S. Supreme Court could not understand that the demarcation between science and pseudo-science had something to do with being able to test the theory being advanced was shocking in 1993. Surely judges are getting this concept first introduced in middle school. Alas that it is not so. One of the references in the paper above is to a study that found that only 5% of state court judges "demonstrated a clear understanding of falsifiability". Worse yet, 80% of the same judges were confident they were up to the task of gatekeeping.

What does it all mean? I think it means that the battle against junk science is far from over but that lay people are finally becoming a little more skeptical of scientific claims and are at last learning to distinquish between the junk and the science, at least on a rudimentary level.

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That's what a plaintiff's lawyer who's made a fortune filing asbestos claims in Texas announced recently. Could it be that the fifth decade of asbestos litigation in Texas will be its last? It's starting to look that way especially after a conversation I had over drinks last week.

I was talking with a long time adversary and asked what his firm's founder was up to and what he thought about tort reform, Borg-Warner v. Flores and the MDL. His response was an epiphany. He said that the old man is and has always been a businessman. He never had anything against the companies. "He just saw back when Texas was a blue state that the courts were going to start redistributing the wealth and that the middleman would get 1/3 of every dollar redistributed. Now that Texas is a red state he owns  [several business interests] 'cause that's where the easy money is being made nowadays."

Whatever their original intent the courts created a huge, unregulated and readily exploitable market in asbestos litigation. The entrepreneurs only played their part. Nothing personal, it was only business.

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A member of NIOSH's 1975 Benzene Task Force and long-time plaintiff expert, Infante has written essentially an editorial comment about IARC's determination that there is only limited evidence for benzene causing blood cancers other than AML (or ANLL or whatever it's called this week). It's published online first in the American Journal of Industrial Medicine as "The IARC October 2009 Evaluation of Benzene Carcinogenicity was Incomplete and Needs to be Reconsidered."

Infante was on plaintiff's team in the case that resulted in the biggest check ever written to a single plaintiff in a benzene case - Mason v. Texaco.

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The Center for Science in the Public Interest (CPSI) has sued McDonald's over their Happy Meals. The complaint argues that Happy Meals are "unhealthy" and cause obesity, that its marketing is "unfair" because it makes six year old lead plaintiff Maya pester her mother with her "clamor for Happy Meals" and that McDonald's seeks by way of its Happy Meals, like James Dean before it, "to subvert parental authority".

There is much in the complaint to blog about. Far too much actually given that I've got a brief due in the Texas Supreme Court by Friday. For now though consider the claim that Happy Meals provide too many calories for the typical, which is to say sedentary, child. When and how did the typical child get to be sedentary and so at risk of obesity? I'd argue that it has everything to do with turning schools into warehouses for children.

Want some evidence that even moderate exercise protects children from overeating or too much TV/video-gaming? See "Health Status and Behavior Among Middle-School Children in a Midwest Community: What are the Underpinnings of Childhood Obesity?" See also "The Fat-Mass and Obesity-Associated (FTO) Gene, Physical Activity, and Risk of Incident Cardiovascular Events in White Women". Apparently the "fat gene" only causes problems when combined with inactivity.

All in all it looks like the solution to childhood obesity is more about revving up the body's engine than starving it of fuel.

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Reading and re-reading and even re-re-re-reading the Nevada Supreme Court's opinion in Wyeth v. Rowatt only leaves me more perplexed about Nevada's take on causation in pharma/toxic tort cases. Typically a plaintiff must prove that if she hadn't been exposed to defendant's product she'd have been better off. In other words, defendant's product was a "but for" cause of her injury. There are of course cases that relieve plaintiff of having to prove to which of several defendants' identical products she was exposed (e.g. Sindell v. Abbott Laboratories) but she always has to prove, irrespective of who made it, that the product complained of is actually what made her ill.

The court in Wyeth v. Rowatt held that the following jury instruction was either OK or at least not harmful: "A legal cause of injury, damage, loss, or harm is a cause which is a substantial factor in producing or promoting the injury, damage, loss, or harm." Nevada has an instruction on "but for" causation and plaintiffs and defendant all requested it. However, the trial court instead gave a modified pattern jury instruction for substantial factor causation that reflected its understanding of the promoter theory of carcinogenesis - the idea that some things initiate cancer and other things propel or promote it, with hormone replacement therapy allegedly falling into the latter category - and stuck it not into the pattern instruction for "but for" causation but rather into the instruction on substantial factor causation. The pattern substantial factor causation instruction is to be used when the jury is confronted with two competing causes, either of which "would have been sufficient to cause the injury".

How can a promoter be a sufficient cause? It can't of course, but that's just a quibble about loose language. The real problem is that any sufficient cause, absent a superseding cause, is necessarily the "but for" cause and "substantial factor causation" is just "but for" causation + reasonableness so why not require the "but for" instruction in either instance unless you're watering down the causation standard?

In Texas we had an instruction similar to that used by the trial court in Rowatt. It was the old instruction for a "Producing cause" and years of jury trials and focus group experience conclusively demonstrated that the instruction - "Producing cause' means an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question. There may be more than one producing cause" - led jurors to believe that they were permitted to find causation whenever the putative cause might have or could have been one among a constellation of possible causes. The Texas Supreme Court finally made the instruction conform to the law in 2007 with it's opinion in Ford Motor Company v. Ledesma writing that the components of a producing cause are "that (1) the cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred."

Within the Rowatt opinion is a brief discussion of risk but rather than using it to inform the state's "substantial factor causation" jurisprudence the court instead held that a four-fold increase in risk claimed by plaintiff's expert somehow made the lack of the "but for" instruction harmless. So are they saying that anytime relative risk is above two, causation is established? They don't say anything like that and even if they did it still has to be (everywhere else) a "but for" cause. The big risk increase is just a way to satisfy the preponderance of the evidence burden on "but for" causation.

If you've got an insight into how Rowatt fits within a modern conception of causality in the law I'd appreciate it if you'd drop me an email re: same.

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Georgia-Pacific v. Bostic, which prompted us to write The End of Toxic Tort Litigation in Texas? may be on its way to the Texas Supreme Court. Here's Baron & Budd's Petition For Review. Bostic is a mesothelioma case in which plaintiff prevailed at trial against a peripheral defendant but lost the claim on appeal when the Fifth Court of Appeals held that she had failed to prove that her decedent's exposure to that peripheral defendant's product was a "but for" cause of his fatal cancer.

Bostic's best argument is that the application of a "but for" standard of causation to a particular exposure by the appellate court makes it impossible for any toxic tort plaintiff whose illness was allegedly caused by one or more of several exposures to prevail. Here, plaintiffs get it exactly right. Whenever plaintiff's injury has been proved to have been caused "but for" a bullet (as in the "one hit" case of Summers v. Tice) or "but for" a sufficiently high concentration of salt (as in a cumulative injury as in Landers v. Texas Salt Water Disposal Co.), and where each actor's conduct was tortious, plaintiff is relieved of the logically impossible task of proving that each tortfeasor's conduct was a "but for" cause. The Texas Supreme Court has already made this point in in the asbestos context in  Borg-Warner v. Flores.

Baron & Budd gets it wrong however when they argue that (1) Borg-Warner only demands a Lohrmann-esque frequency, regularity and proximity exposure qualification in malignancy cases in general and in mesothelioma cases in particular; (2) that dose, and therefore risk, quantification is only required when the parties dispute what, in general, caused plaintiff's injury (e.g. it ought not be required when the parties agree that asbestos exposure was responsible for a plaintiff's mesothelioma); and, (3) that the standard for substantial factor causation somehow changes according to the facts of the case.

The whole point of Borg-Warner and the almost two decades of Texas Supreme Court cases that preceded it is to put the requirement for demonstrating wrongful, unreasonable conduct back into the state's law of torts. For Georgia-Pacific to have prevailed on appeal it should have been because its product posed at most a de minimis risk of mesothelioma,.not because plaintiff couldn't prove that its asbestos contributed to Bostic's cancer.  

If all your product poses is a vanishingly small risk of harm, in this a world of inevitable and uncountable risks, then you've acted neither unreasonably nor wrongfully and the substantial factor test, which is a combined query about causation and legal responsibility, will decide the matter and you'll not be deprived of your property. It's precisely because calculations of risk (the measure of the reasonable man and which are derived from estimates of dose) often show peripheral defendants to have acted neither wrongfully nor unreasonably that plaintiffs' counsel hate dose estimation.

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Mass tort litigation is big business. In the past, thanks to rules prohibiting fee sharing with non-lawyers, it was a big business in which only lawyers could participate. Not anymore; at least not if you're in private equity, a hedge fund or are a bank. All it takes is cash, high tolerance for risk and an appetite for big returns.

Today the NYTimes has an excellent (save for one common misperception) article on the subject: "Putting Money on Lawsuits, Investors Share in the Payouts".  My quibble is with the claim that the money pouring into investments in contingent fee recoveries "... is helping to ensure that cases are decided by merit rather than resources ". It's not true and hasn't been for decades; at least not for the big dogs and not for mass tort cases. They already (a) have bigger and faster jets than the companies they're suing; (b) own or control their own banks; (c) only have to focus their efforts in one jurisdiction; and, (d) can readily syndicate really big cases within a network of very business savvy lawyers. Those entrepreneurial lawyers who started all this vowed long ago never to be outspent and I've yet to see it happen.

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Despite numerous attempts to blame anything and everything associated with a deep pocket for a cluster of childhood leukemia cases in Fallon, NM,  the strongest evidence by far supports the hypothesis that an infection, spread by the sudden mixing of two or more populations, was responsible. Now there's evidence that childhood leukemias previously blamed on nearby nuclear reactors are in fact strongly associated with population mixing. See "Childhood Leukaemia, Nuclear Sites, and Population Mixing".

That introducing lots of new workers to a formerly rural environment to build a military base or nuclear power plant often is accompanied by an increase in childhood leukemia cases is now confirmed by more than a dozen studies. That often unnoticed infections cause cancer is also well established. So, what duty, if any, is owed to the local children and to the children of its own employees when a business sets up say a slaughterhouse in rural North Carolina and staffs it with workers from a long way away? And if there is a duty, how is it to be fulfilled? To warn? Of what? To monitor? For what? To protect? With what?

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Last week in Robinson v. Crown Cork & Seal the Texas Supreme Court provided an in depth analysis of the constitutionality of retroactive laws and held that the “innocent successor” limit on liability for asbestos-related personal-injury claims included in House Bill 4 is an unconstitutional retroactive law. The Supreme Court concluded that Texas Civil Practice & Remedies Code Chapter 149, which the Legislature enacted as part of the 2003 tort reforms “significantly impacts a substantial interest” that Robinson had in a “well-recognized common law cause of action” for asbestos claims.

The Court also concluded that “the public interest served by Chapter 149 is slight,” rejecting the 14th Court of Appeals' holding that the purpose for which the statute was enacted is a valid exercise of the Legislature’s police power. In the opinion the Court compares this case to other analogous opinions which established that the constitutional prohibition against retroactive laws “protects settled expectations that rules are to govern the play and not simply the score, and prevents the abuses of legislative power that arise when individuals or groups are singled out for special reward or punishment.” The Supreme Court cited three factors to be considered in determining whether a statute violates the Texas Constitution’s prohibition against retroactive laws: 1) the nature and strength of the public interest the statute serves as evidenced by the Legislature’s factual findings; 2) the nature of the prior right that the statute impairs; and 3) the extent of the impairment of that right.

In a dissenting opinion Justice Wainwright wrote, “The Court’s new balancing test reaches the wrong result” and ignores an important principle. Justice Wainwright goes on to state that “[t]he constitutional retroactivity doctrine does not protect an asserted entitlement to property one does not own, and until a final judgment in the case, we do not know whether a claim will be vindicated or refuted.”

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Ever since Daubert , lawyers have been fending off motions to exclude by proclaiming that the scientific studies on which their experts relied were peer reviewed and thus unassailable. Sadly, judges tend to think that a peer reviewed paper must indeed be some incremental addition to the field's body of knowledge. But are the claims in a paper that's been peer reviewed guaranteed to be true? No. But surely they're at least likely to be true, right? No. In fact, the conclusions reported in most peer reviewed scientific literature are wrong. Even those papers published in the journals with the highest impact factors are either wrong or have never even been tested an alarming percentage of the time.

Peer review is not some sort of certification of a high truth value for someone's research. Peer review exists to make sure no paper gets published whose author had gone about measuring temperature with a yardstick.

Science these days isn't what it was 100 or even 25 years ago. Seldom is what's found in prominent journals simply the reporting of observations (e.g. mesothelioma in a 2 year old girl) or the results of laboratory experiments (e.g. drinking an petri dish of H. pylori and developing peptic ulcer). In recent decades "science" has come to mean in many, many cases the sifting and re-sifting of data until some result so unlikely to have been due to chance alone appears. That result is then deemed knowledge.

But how unlikely, how very rare, must the result have been before it's crowned "Truth"? As unlikely, as rare, as being dealt two pair in a 5 card poker hand.

If you've ever played poker and bet the house on such a hand you're probably homeless. On the other hand, if you've made a living peddling liability theories resting on such odds down at the courthouse you're likely to have several homes.

Anyway, if you want to read about how science went so wrong and why, you can't do better than "Lies, Damned Lies, and Medical Science" just published in The Atlantic. It's the best and most important article you'll read this year about the current state of medical science.

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It''s becoming apparent that Toxoplasma gondii is responsible for an awful lot of human suffering around the world. The parasitic organism causes birth defects and spontaneous abortions, neurolgical impairment, eye damage and is increasingly suspected in Alzheimer's, schizophrenia and Parkinson's.

T. gondii infects human cells and reproduces within them eventually setting up shop in cysts throughout the central nervous system, heart, muscle, bone marrow and other organs. Persons infected are infected for life. Human infection is most commonly the result of consuming un-/under-cooked cyst-bearing meat though contact with the feces of animals, especially cats, T. gondii's ultimate host, are another avenue of exposure.

While 11% of Americans are infected with the parasite, that figure rises to as high as 70% in some South American countries. The European Food Safety Authority, worried that foodborne infection by T. gondii is on the rise and is responsible for significant yet underreported and undetected diseases within the EU, has recommended Toxoplasma monitoring of lifestock. Recent estimates of the impact of T. gondii-induced disease reveal it to be "one of the most significant causes of foodborne disease worldwide."

The good news is that thanks to demand from sheep and goat producers there's a vaccine that works well in sheep and goats. The problem is that it's a live cell preparation like the Sabin vaccine discussed during oral argument in Bruesewitz, et al v. Wyeth, Inc.,. So what's the problem? The problem is that while it works really well, much better than bits of a dead organism, it's more likely to cause adverse effects. Meanwhile, finding all the bits of a dead organism that prime the immune system while weeding out those that might produce harm is a terribly complicated and expensive process. Add to that the threat posed by litigation over the inevitable errors in science's slow but steady progress through trial and error and it ought not be surprising that sheep and goats get protected while human suffering due to T. gondii spreads.

For a new, free and enlightening paper on the topic see "Vaccination Against Toxoplasma gondii: An Increasing Priority for Collaborative Research?"

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Bruesewitz, et al v. Wyeth, Inc., et al just had to be bloggable but at first glance the debate appeared to rest largely on the interpretation of a typically modern law in which Congress had produced (probably intentionally) an incoherent mess. Digging further into oral argument, the government's claim that the CDC regularly updates its advice on the best and most efficacious vaccines in its Morbidity and Mortality Weekly Report (MMWR) looked promising until I read a few issues. Perhaps the kindest thing that can be said is that the government significantly overstated its case. Yet finally, around page 55, I found something worth blogging about.

The question put to plaintiffs' appellate counsel was as follows: "Under your understanding of [the vaccine compensation] scheme, if a person suffered a very serious injury as a result of the Sabin vaccine during the period when the CDC recommended that over the Salk vaccine, would that injured person have a claim for desing defect if the person could produce experts who said the CDC was wrong ...?" "...but your answer to my question is that [under your interpretation] that would permit a lay jury relying on experts produced in court, [to find that] the CDC got this wrong; [that] the Salk vaccine was really the better one." To which plaintiffs' counsel responded "Yes, yes, that would be a viable design defect claim."

Wow. You should read up on the Sabin and Salk vaccines and why the OPV was recommended despite the attendant risks. Would the world really have been a better place with thousands more children in iron lungs? Would Congress really want the maker of a vaccine against a modern scourge like HPV subjected to jackpot justice so that other vaccine makers abandon the promising field of anti-cancer vaccines? Would the people?

I'm just glad I grew up in an age when common sense trumped hysteria so that I could get my sugar cube.

 

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What if there was a drug that could change a consequentialist into a deontologist? In other words, what if you gave this hypothetical drug to someone and he went from being a "needs of the many outweigh the needs of the few" sort of guy to a right v. wrong, rules sort of guy? Now what if that drug was prescribed based soley on the perfectly sound decision to relieve him of depression?

To grossly oversimplify, giving serotonin-boosting anti-depressants turned consequentialists (yes, I know there are more flavors of them than of ice cream at Baskin-Robbins but those flavors are just their common deontological side peeping through in different places) into right/wrong thinkers. Better (depending upon your perspective) yet, it made them more rational in "the greatest misfortune that may befall a man is great good fortune for his neighbor" sorts of experiments in which people are tested to see if they'd cut off their own noses to spite their neighbor's face. See: "Serotonin Selectively Influences Moral Judgment and Behavior Through Effects on Harm Aversion". ht: Marginal Revolution

Those are pretty big changes. They affect politics, friendships and so world views. I brought it up though not to discuss liability for making or prescribing such beneficial medicines but rather, I must admit, for a wholly different purpose - to very briefly discuss picking a jury. My number one rule of jury selection, from the defense perspective, is to identify and get rid of depressed veniremen. They tend not to care about rules and to be far too willing to cut off your client's ear and thereafter paint their masterpieces out of piles of her money.

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Without a randomized controlled trial we may never really know the answer to that question though maybe the complex systems / molecular biology people will get it worked out one of these days.

We will however get to find out if the data on which the RECORD trial (Rosiglitazone Evaluated for Cardiovascular Outcomes in Oral Agent Combination Therapy for Type 2 Diabetes - don't ask me how that works out to "RECORD") was based had been properly characterized before being analyzed. In "Regulatory Action on Rosiglitazone by the U.S. Food and Drug Administration", the announcement of new tighter restrictions on Avandia and the end of the TIDE trial, it was also disclosed that the FDA "is requiring an independent readjudication of end points at the patient level" of the RECORD trial's data. While the RECORD trial apparently established the noninferiority (NI) of Avandia versus the standard treatment, claims of design flaws that biased the results in favor of Avandia, data cherry-picking, and worse were subsequently raised (see "The Doctor Doth Protest Too Much, Methinks") .

What all this dredging and now reclassification-to-be-followed-by-redredging will reveal is anyone's guess and at best it will only lead to a posthumous vindication. The more important question is how will the battle between those who hold epidemiology to be a source of actionable knowledge and those who hold it to be a source of testable hypotheses play out. On one side of the debate, at least in the Avandia context, are idealistic academics. Their presentations to FDA were filled with lots of exclamation points, suspicions and worries about the rich and powerful exploiting the poor, sick and vulnerable. On the other side are the practitioners, pragmatists and industry scientists. They (to ruin my metaphor) played Spock to to the anti-Avandia group's Captain Kirk.

Will Avandia wind up with a pardon? If so, this episode may in hindsight turn out to have been the last stand for a methodology that for 40 years reliably generated the "knowledge" needed to support a particular world view; a methodology which has now gone decades without a big hit (e.g. asbestos). If not, and should Dr. Nissen's view prove to be the accepted one, the conclusion that the approval of Avandia was "one of the worst drug safety tragedies in our lifetime" resulting in up to 47,000 needless heart attacks could reignite a "science" that for three decades ushered in wave after wave of mass tort litigation. Whichever way it turns out I'm guessing it'll be Avandia's lasting legacy.

 

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Workers exposed to trichloroethylene (TCE) who carry at least one copy of the GSTT1 allele are reported to have an 88% increase in risk of renal cancer in the new paper "Occupational Trichloroethylene Exposure and Renal Carcinoma Risk: Evidence of Genetic Susceptibility by Reductive Metabolism Gene Variants." Those workers without the polymorphism had a slight decrease in risk. Given that the allele occurs on a gene coding for cysteine β-lyase, which plays an important role in the metabolism of TCE among other molecules, the finding demonstrates biologic plausibility as well as increased risk.

So back to yesterday's post about risk : which risk, if any, would be relevant in a TCE toxic tort case? The risk given to all workers collectively; the risk at a particular range of exposure; the risk given to those carrying the polymorphism; or, the risk to those with the polymorphism exposed at high levels? And could it be the case that one risk is relevant to the question of whether a defendant's conduct was reasonable while another was relevant to the question of causation? How would that work?

However it works, as the causes of individual susceptibility are identified expect these sorts of challenges to multiply. 

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Despite the fact that the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner wrote "[w]e do not hold, however, that a relative risk of more than 2.0 is a litmus test..." many lawyers and some courts believe that Havner (and even Daubert) require that plaintiff establish epidemiological evidence of a "doubling of the risk" before she can establish so-called specific causation. In my view all those two courts ever said was that if you wanted to play the game of epidemiological causal inference then you had to play by epidemiology's rules; and, furthermore, that if all you had was probabilistic evidence then that evidence had better show that defendant's product probably did it.

Whatever the interpretation, we mass tort lawyers often wind up fighting over whether there has been a doubling of the risk. One thing we're just beginning to fight over is "when do you measure the risk?" Take for instance the Women's Health Initiative and hormone replacement therapy (HRT).

Depending on when you decide to look HRT either caused an 80% increased risk (after one year of treatment) of coronary disease or a 30% decreased risk (after five years) of coronary disease. So how do you choose which risk is the "real" one?

In what promises to become an epidemiology blog posted for free at Epidemiology is a copy of "The Hazards of Hazard Ratios". In it the author makes the point that hazard ratios, an approximation of risk ratios, often vary over time and may be subject to biases, as when, hypothetically, over time the exquisitely sensitive, by virtue of suffering the malady earlier, manage to be deselected from subsequent years' calculations.

The phenomenon is well known to those doing benzene litigation. Had the study of the Pliofilm workers been done today the very same cohort would demonstrate a relative risk less than 2.0 quickly trending towards 1.0. The obvious retort is that "latency" somehow is responsible but that doesn't explain the fact that no member of the cohort has developed leukemia in decades. The most sensible answer is that those susceptible of getting it get it and those who aren't don't just fail to get it - they can't.

In other words, the distinction in toxic torts between "general causation" and "specific causation" is likely often (if not usually) a false one. Thanks to the laws of physics, bullets can reliably be said to be a general cause of bullet holes in people since all are susceptible to the effect. The same cannot, however, be said of benzene or HRT. Apparently they only increase the risk (perhaps to 1.0) in those people who, due to genetics, epigenetics, microbiota, environment or some other factor(s), are primed to produce the effect while simultaneously imposing an increase of 0.0 on everyone else.

So how, other than flawed post hoc "reasoning", do we determine whose injury was caused but for an exposure? Biomarkers have clearly failed of their promise. Now what? The way things have been going I bet it'll look something like this: "Discovering Graphical Granger Causality Using the Truncating Lasso Penalty" but maybe we'll get lucky and it'll look more like: "Causal Diagrams and Change Variable". In the meantime plaintiffs without biomarkers need to do a better job of demonstrating how they are like those in the time interval with the biggest risk.

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What does it mean to say that I've given someone a 1 in 1 million risk of death? Is he now just 99.9999% alive? Is he 0.0001% dead? Is either a "loss"? Must we await the verdict of the Fates to decide the reasonableness of my conduct? If so, why does some other agency decide whether an act in the past was good or bad?

What does it mean to say that I've given one million customers a 1 in 1 million risk of death? Is my conduct judged myopically on the basis of the one who died; or, shall we consider the 999,999 who wound up with a useful product and suffered no harm? And how is my conduct to be judged? Shall we add up all the good, subtract out the bad (consequence's books having been audited by the trial court), and have the jury decide whether my decision-making was, being Monday morning after all, "good" in light of the final tally?

If 1 in 1 million is too risky then so is getting out of bed in the morning. Yet 1 in 1 million is 300 American lives nonetheless. And if 1 in 1 million is a reasonable risk why isn't 1 in 100,000 or 1 in 1,000 or 1 in 10? Where do we draw the line, and why?

Does it, or should it, make any difference whether I actually knew the person on whom I imposed a risk? Does the answer change if the risk materializes? Does it, or should it, make any difference whether I actually estimated the risk before imposing it? Why do jurors punish the diligently knowledgeable while being far less wrathful towards the consciously ignorant? What, if anything, should the law do about it?

Ultimately, how should courts deal with the risks we impose on each other in this world of inevitable risks? A very good discussion can be found in "Statistical Knowledge Deconstructed".

I have one quibble and a few takes. First, the effort seems sometimes to be aimed at reconciling a Bayesian decision-making approach ("degress of belief" tending to sound rather appealingly deontological to me) with a consequentialist ex post assessment of the ultimate utility of an act. Consequentialism isn't generally thought to be informative on the ex ante side of decision-making - thus my objection to "... I mean to endorse an epistemic and (thusly) Bayesian conception of risk, not a frequentist conception". Second, his comments about cost/benefit analyses are dead on. Companies are abandoning the process and adopting "Nobody gets hurt, ever!" policies instead. One has to wonder about a legal system that advantages willful ignorance. Third, his suggestion that we let risk more openly inform determinations about where an act falls along the intentional - reckless - negligent - non-negligent spectrum would be especially helpful in mass tort cases in which risks are widely distributed.

Finally, we are in the midst of a scientific revolution in which the product of biological systems are being discovered to be unpredictable and invariably greater than the sum of their parts. Emergent phenomena arising out of vastly complex systems means that the balance sheets needed to make a consequentialist assessment of an act can never be closed nor the credits and debits ever intelligently summed. Perhaps then, like the earth's most ancient and successful organisms, we ought to have rules, or principles, as our guides rather than approaching every problem ad hoc. In that case, knowingly, or willfully ignorantly, imposing a significant risk on your fellow man that manifests might be such a rule for liability.

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In Wilcox v. Homestake Mining Company plaintiffs argued that in toxic tort cases involving an injury with multiple potential causes "causation in such cases may be proven through a substantial factor test, without regard to whether the injuries would likely have occurred in the absence of the defendant's actions." Plaintiffs further argued that a "but for" causation requirement would make recovery all but impossible in toxic tort cases. The court rejected those arguments.

All a plaintiff has to do to get to a jury is to develop testimony that that the putative cause (e.g. radiation) was more likely than not a necessary cause of her injury (e.g. bladder cancer) and if there are multiple tortious sources of that cause then she can avail herself of alternate causation approaches (e.g. Summers v. Tice)  to assert liability against a specific defendant. On the other hand, it's not enough merely to show that the defendant brought plaintiff into contact with one of the known causes of her injury and it's not enough to show that the putative cause is one of the more common causes of that such injuries.

That's helpful. "But for" goes with the first legal causation question: was it more likely than not that the exposure (e.g. 5 fiber/cc yrs amphibole asbestos) was a necessary cause of plaintiff's cancer (e.g. mesothelioma). So where does "substantial factor" go? The court doesn't say. Like most courts it doesn't even say what it is.

Where should "substantial factor" go? We think it makes sense for it to go with the second legal causation question which is "was the exposure (i.e. the risk imposed) unreasonable?" The ability to estimate the ex ante risk of cancer imposed by exposure to a carcinogen allows both qualitative and quantitative assessments of the reasonableness of the defendant's conduct and informs the question of whether a particular exposure was substantial (and thus a basis for liability) or merely de minimis (and so unable to support a liability claim).

As we argued in Borg-Warner and have argued since, in a toxic tort case the ex ante risk imposed is the best measure of the reasonableness of the man (or woman). And that's what "substantial factor" causation ought to be about - determining whether there's some notion of responsibility associated with the particular risk imparted.

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In Tamraz v. Lincoln Electric Company, et al the 6th Circuit held that an expert could not stack speculation about mechanisms upon unseen and undetected lesions in the plaintiff to get from manganese exposure to his Parkinson's disease. Furthermore, the court ruled that you can't reasonably arrive at a causation opinion using what's erroneously called a differential diagnosis (it's more properly called simply a process of elimination) when you've no sound basis for ruling anything either in or out.

On the other hand, there's growing evidence that vitamin D deficiency is strongly associated with Parkinson's. Best of all, it makes sense. It looks like the enteric nervous system is first to be degraded in Parkinson's and that system is exquisitely sensitive to the gut mediated immune system which in turn is adversely affected by vitamin D deficiency. See: "Parkinson Disease: Could Sunlight Offer Protection from Parkinson Disease?"

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If a plaintiff's cancer was caused by one molecule or one fiber damaging a single cell's DNA causing it to become malignant, and plaintiff was exposed to billions of molecules or fibers from multiple sources, how could he possibly prove that ,"but for" any single source of exposure or subset of exposures, he would not have developed his cancer? As stated, this is the Summers v. Tice problem traditionally resulting in burden shifting rather than dismissal so long as the conduct of each defendant was tortious.

Similarly, if plaintiff's cancer was caused by the cumulative effect of any one of several subsets of exposures from multiple sources, e.g. if three widgets were sufficient to cause cancer and plaintiff was exposed to one widget from each of A, B, C and D, she could never prove that "but for" A's widget she wouldn't have gotten cancer since the widgets of B, C and D were sufficient to have caused it; and the same would be true if she sued B, C or D. Again, the traditional answer to plaintiff's problem, assuming each defendant's conduct was tortious, has been to shift the burden of proof on causation. See Landers v. Texas Salt Water Disposal Co.

Suddenly the 5th Court of Appeals has in essence held that Borg-Warner v. Flores puts the burden of proof of causation back on plaintiff; doing so in a case in which the defendant stipulated so-called "general causation". See Georgia-Pacific v. Bostic. There's essentially no discussion of the rationale for imposing a "but for" causation proof burden on a toxic tort plaintiff nor is the impact of this monumental shift in Texas law even discussed so maybe the court didn't intend such a result. Indeed it did proceed to discuss substantial factor causation even after concluding that a "but for" burden was borne by a mesothelioma plaintiff with the result being that plaintiff's evidence was held insufficient to "provide quantitative evidence of [plaintiff's] exposure to asbestos fibers from [defendant's product] or to establish [plaintiff's] exposure was in amounts sufficient to increase his risk of developing mesothelioma."

So if you establish an increase in risk you've established substantial factor causation and that's the same as"but for" causation?! This case has a lot of lawyers scratching their heads.

It's time for a clearly articulated definition of "substantial factor" and it's time to get rid of the confusing and, in cancer cases, nonsensical "general causation" v. "specific causation" dichotomy. More on that after I get home.

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The Texas Supreme Court has just muddied the waters of its causation jurisprudence. For the last twenty years the court moved in a straight line towards a modern theory of legal causation. The court recognized the problem of causality; put fault back at the heart of torts - even in product liability cases; reaffirmed the counterfactual account of causation holding that plaintiffs must prove that "but for" the defendant's act or omission they'd be uninjured today; and, put reasonableness, and its best measure, the risk imposed, at the center of the calculus of how to define the limits of liability. Suddenly, everything (may have) changed.

In Transcontinental Insurance Company v. Crump, a worker's compensation case, the court held that a jury must not only be queried as to whether a putative cause was a "but for" cause, they must also be asked whether the alleged cause was a "substantial factor". As the court recognized years ago, in the context of causation in tort there's generally to be found the concept of substantiality "in which there always lurks the idea of responsibility.." Ok, but workers' comp is a no-fault scheme. What is "substantial factor" doing in a comp case then?

Maybe, just maybe, the court has come to think of "a substantial factor" as being a "big cause" - this is the idea that one or more necessary causes are somehow (despite them each being necessary) more significant than other (logically equal) necessary causes. They could have adopted something like a proximate cause concept (the idea of circumscribing those causes upon which liability may be predicated) but didn't - likely because the act itself uses the term "producing cause" long understood to mean a "but for" cause wherever it's found along the causal chain. As a result they may well have stripped "the idea of responsibility" from Texas' conception of "substantial factor".

If that's the case it's time for Texas' mass tort plaintiff lawyers to shake off the blues. A substantial factor test shorn of concern about responsibility means that Borg-Warner's test of reasonableness - risk, is now simply a test of whether or not the putative cause was a big one. And when it comes to, say, mesothelioma, what "bigger" cause is there than asbestos? There's now a good argument to be made that Judge Davidson's requirement that any putative cause be a sufficient cause in order to survive Borg-Warner sets the bar too high and that plaintiffs need only show that among all exposures adding up to .1 fiber/cc/yr the ones of which they complain are relatively "big". Good grief.

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The Texas Supreme Court just withdrew its previous opinion in Marks v. St Luke's and substituted a new one - or rather several new ones. At issue was the question of whether an improperly assembled hospital bed that caused an injury was a premises defect or an integral part of the patient's care and treatment such that the claim necessarily falls under the Medical Liability and Insurance Improvement Act (MLIIA). The second opinion, a plurality, determined that the claim, however pled, is really a health care claim subject to tort reform.

What has caused all the consternation, as far as I can discern, is that the court previously held in Diversicare v. Rubio that premises liability claims that don't have something to do with the provision of health care may still be pursued against health care providers. The problem is that no one seems to be able to figure out what set of facts could constitute such a claim. If a bed is an inextricable part of the health care provided by a hospital what isn't? Apparently something in a hospital isn't inextricably tied to the provision of care as otherwise the simpler rule would be to say that since a hospital is built from the ground up with provision of medical services in mind then everything in it is subject to to the MLIIA.

Until something's found in a hospital that has no connection to health care it's best to plead your claim as a health care claim and timely file your expert report.

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What has initially appeared to be a long litigation road to the answer of whether individuals have a private right of action to sue for climate change damages, may not be such a long road after all. Obama Admin Urges Supreme Court to Vacate Greenhouse Gas 'Nuisance' Ruling.  For some time, there appeared to be a 2-1 lead for advocates of a private right of action for climate change damages in light of the Second Circuit’s decision in AEP v. Connecticut and the Fifth Circuit decision in Comer v. Murphy to allow such claims against the Ninth Circuit district court decision in Native Village of Kivalina v. Exxon Mobil to dismiss such actions. But how quickly things can change. After granting a rehearing en banc, which automatically vacated the panel decision allowing the private right of action, the Fifth Circuit dismissed the district court appeal after it lost quorum due to a disqualified judge. Thus, only the AEP v. Connecticut Second Circuit decision remains in favor of a private right of action.

Yesterday, in a brief filed on behalf of the Tennessee Valley Authority, the acting United States Solicitor General agreed with the defendants in AEP v. Connecticut, stating that the U.S. EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim.  This position clearly supports allowing the EPA, and the lawsuits against the EPA, to set the tone and pace of climate change regulation, but also brings the preemption, or displacement as some are calling it, versus tort claims debate experienced in other areas of mass torts to the environmental field. It is hoped that the Supreme Court will take up this issue once again sooner (as in this Fall) rather than later.

It is interesting to note that one of the administration’s recent Supreme Court appointee’s, Sonia Sotomayor, served on the panel but did not sign the decision issued by the Second Circuit in AEP. Interesting indeed.

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What does it mean, in the law of torts, for one to have caused another's injury? The standard legal account of causality has been that of the counterfactual put forward by David Hume as follows: "where, if the first object had not been, the second never had existed." (1748, Section VII). In the law it's the "but for" test and for our purposes then the courts tend to attach legal liability (assuming the existence of a duty and its breach) only upon the following: had Defendant done otherwise, Plaintiff would today be uninjured. 

Generally speaking the "but for" test is easy to use and produces a nice clean binary answer of the sort favored by courts trying to resolve disputes. (e.g.  "But for" Defendant having run the red light Plaintiff would have passed through the intersection without incident and would not have suffered the broken leg of which she complains.) Of course there are innumerable "but for" causes of the accident, including the Defendant's mother having given birth to him and the rudeness of the fellow with a cart full of groceries in the "10 items or less" line who slowed Plaintiff down so that she wound up in the intersection at the same moment as Defendant. Nevertheless, and almost invariably without much analysis, the parties settle on just one among the countless posibilities as the sine qua non act (or omission) to be subjected to the "but for" test.

However, when deployed in a case in which plaintiff's injury was caused by only one of several identical and indistinguishable acts (see e.g.  Summers v. Tice) or by the cumulative effect of some subset of several identical and indistinguishable acts (see e.g. Landers v. East Texas Salt Water Disposal Co.) the "but for" test would, without some other rule, produce the jarring judgment that none of the defendants, considered individually, were more likely than not the sine qua non cause of the plaintiff's injury. In those cases, finding that the acts (divorced from the inquiry of whether they were actually causative) were tortious, the courts held that the defendants should bear the burden of proof that theirs was not the act that caused the plaintiff's injury. The instances in which such a rule would apply were surely few and even a century ago the idea of treating the defendants collectively and shifting the burden on to them was not unheard of. See 2 J. Wigmore, Select Cases on the Law of Torts Section 153, p. 865 (1912) ("When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that one of the two persons, or one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm.")

An effort to distill all judicial reasoning about causation down to its essence and to make a rule of it has been underway for some time. Probably the most cited rule, a form of which is incorporated into the Restatement (Third) of Torts, is the NESS test. NESS stands for "necessary element of a sufficient set". The NESS test is itself a restatement of an older test in which a singular putative cause is said to indeed be causative if it, though insufficient, is nevertheless a necessary element of a precipitating event which event, though perhaps itself unnecessary, would nevertheless have been sufficient to have produced the outcome under investigation (see "Causes and Conditions" by J.L. Mackie). What in the world does any of that mean? In Mackie's example investigators of a fire are satisfied that a short-circuit was the cause of a house fire when conditions were such that the short circuit existed, flammable rags were nearby and those rags once ignited were sufficient to cause a conflagration that would burn down the house. The short-circuit alone was insufficient to burn down the house but it was necessary (other causes having been ruled out) to catch nearby flammable rags on fire. Lots of things can ignite and so burn down a house (so burning rags are not necessary to have a burning house) but burning rags are sufficient to torch the place. Whew.

"But for", causal analysis seems then to be about ruling things out and settling on what's left (the short-circuit). On the other hand, the investigation of the product of the remaining thing(s) (sufficient set) seems aimed towards the propensity of one condition (burning rags) to lead to another (burning house). It is out of this second analysis, of the propensity for one thing to lead to another, that queries about reasonableness and foreseeability and risk arise. More on that later though when I get to risk.

Anyway, the reductionist effort itself precipitated a debate about whether the NESS test accounts for all judicial causal reasoning that continues to this day. Take for instance the hypothetical case of the desert traveler. The desert traveler set off to hike across the desert with just enough water to make it to the other side. Unbeknownst to the desert traveler, defendant "A" had poisoned his water such once that he'd consumed all of it he would surely die. Along his way across the desert however, defendant "B" stole the desert traveler's water bottle. The desert traveler was found dead in the desert. If defendant "A's" conduct was not the cause of his death, why not?

Such conundrums would normally make for nothing more than an obscure niche in the law in which a few academics could regularly generate tedious and unread papers. Then forty one years ago Clarence Borel, dying of mesothelioma, filed a products liability claim in Beaumont, TX culminating in an opinion that would usher in the age of mass torts. Concluding that as it was impossible "to determine with absolute certainty which particular exposure to asbestos dust resulted in injury" and because "each exposure may result in an additional and separate injury" the 5th Circuit held in Borel v. Fibreboard that a jury could reasonably conclude "that each defendant was the cause in fact" of Borel's injury.

Twenty seven years after Johns Manville sank under the wave of litigation unleashed by Borel the practical effect of the ruling continues to drive companies into bankruptcy. The Restatement (Third) of Torts was awkwardly silent on the issue of "the mother of all mass torts" but recent musings by its Reporters and others suggest that they thought rather a lot about it and that its impact on the restatement effort was in fact profound. The shame of it is that they almost got it exactly right. All that was needed was to distinguish between risk and causation and to embrace Palsgraf's true meaning: that the risk imparted is the measure of the reasonableness of the man.

Next time: Risk.

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Overcoming Bias and Barking Up The Wrong Tree are both commenting about the recent article "Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes". Four hundred eighty one lawyers were queried about their expectations for one of their cases set for trial. After all was said and done the actual outcomes were compared to the trial lawyers' ex ante predictions and they didn't too to well; not even the ones who'd been out for years. So what gives?

Do lawyers overpromise in order to attract business, as Robin Hanson suspects? I'm sure that's sometimes the case. I once had a front row seat, as it were, that afforded me the opportunity to witness (and my client, formerly the target defendant, to benefit from) another firm's Senior Trial Partner's  first jury trial (and believe me his client had to push him to the courthouse kicking and screaming). He was played like a fiddle by the plaintiffs' attorney and by the time he read his closing from across the room he looked like a cornered animal. The verdict was huge.

Yet I don't think overpromising by underperforming trial lawyers accounts for most of the poor predictions. Rather, they likely fell prey to all too common faulty heuristics. They've spent weeks building a narrative that fits the facts and the law and the story ends happily ever after for their clients. And the bad guys' story? They've spent as much time or more poking holes in it so that for every doubt imagined a counterpoint leaps effortlessly from memory. Why isn't this just the usual sort of programmed reasoning exercise that makes most people poor prognosticators?

Finally, how are cases resolved? If settled isn't it usually on terms that nobody's especially thrilled about? And if they're not settled the distribution of outcomes, at least in my experience, tends to be U-shaped with a bunch of $0 verdicts on the left and a bunch of "ring the bell" verdicts on the right and not too many "kiss your sister" verdicts in between. I had a young lawyer recently tell me what he estimated the expected value of his case ought to be. The problem, of course, is that once the bell rings twice (or whatever jurors do in your jurisdiction to signal they've got a verdict) you're about to be, like the owner of Schrodinger's cat, either really really happy or really really sad. When the possible is collapsing into the certain why should it be a surprise that lawyers usually get it wrong when the odds of getting it right are against them?

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Running sophisticated statistics software over a pile of data drawn from the opinions of an appellate court does not guarantee a sophisticated analysis of the court's decision-making. In fact, given what I've read in a couple of fairly recent law review articles, about the only thing it guarantees are unwarranted conclusions and no analysis whatsoever.

I had high hopes for the testing of hypotheses about legal reasoning. Take for example the work of Jeffrey Rachlinski. He was able to demonstrate that judges have some of the same cognitive blind spots as the rest of us; the most notable of which being hindsight bias. (See e.g. "Inside The Judicial Mind"). But this new fad of indiscriminately dredging for correlations and publishing uncritically the inferences generated thereby is very troublesome.

Let's take a suggestion from one law review article that a certain court is biased because the win/loss ratio for plaintiffs and defendants deviates significantly from what would be expected of an unbiased court. Specifically, that the defense prevailed in more than 68% of the cases tallied implying to the author that something significant was afoot since the observed distribution was more than one standard deviation beyond the expected. Upon what premise must such a conclusion rest? Either that justice is or ought to be decided by casting lots (in other words that the distribution of wins and losses should look like the results of flipping a coin a large number of times and so appear as a Gaussian distribution) or that cases appear randomly before the court. The former denies the existence of justice as we know it and the latter denies the facts - plaintiffs often press novel claims, seek to overturn or plead around statutes (like tort reform) or try to hold on to huge verdicts - all of which might reasonably be expected to influence the likelihood of success on appeal. Nevertheless, none of these assumptions or possible biases and confounders are discussed anywhere in the paper.

Another recent article demonstrates the misuse and abuse of statistics. In it the author claimed to have uncovered a power law behind certain judicial decision-making. Finding a hidden power law is considered very sexy these days. They're different than merely normal distributions; they explain an increasing number of natural phenomena (e.g. most prominently some economic  conditions in the current troubles - see: Pareto distribution); and, best of all, they allow you to torture your data with even more impressive-sounding statistical tools.

The problem however is that putting fancy tools in the hands of someone who doesn't know how to use them cannot lead to anything worthwhile. And so it was with the second paper that had me despairing. On a log-log plot a power law will reveal its distribution as a straight line. But while a straight line on a log-log plot may be necessary for the presence of a power law it's not sufficient; yet that's stated no where in the paper. But that's a minor quibble compared to the real problem with the analysis. Rather than plotting the data on a scatter graph and inferring that a power law might lie beneath, the author apparently put the data on a log-log plot, forgot it was a log-log plot and ran a linear regression on it thereby forcing a nice straight line where there was none - the result being a sort of tautology-by-statistics. 

Don't get me wrong. The discovery that certain behaviors could be explained and predicted mathematically would be a big deal. But when you see a vigorous debate in the scientific literature about whether bacterial foraging behavior (swim straight vs. tumble and then swim somewhere else) should be described by a power law curve rather than Gaussian bell curve it makes you wonder whether something as complicated as the administration of justice can ever be reduced to a simple formula. Human scale biological systems are fantastically complex and I'd expect that the approach a judge takes to her task of doing justice, the application of principles - our way of dealing with complexity and uncertainty, would be even moreso.

 

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Yuck! Tastes like CBPR.

CBPR? I hadn't heard of it either; not until this week anyway. It's "community-based participatory research" and the idea is to get activists and scientists together to do research into things like the cause of higher than average breast cancer rates in some high net worth communities. The activists want the scientists to prove that pesticides are causing breast cancer in their communities; and so the scientists promptly set out to falsify the activists' claims. Why wouldn't it turn out well?

The answer can be found in "A Review of Advocate/Scientist Collaboration in Federal Environmental Breast Cancer Research". It turns out that "effective" CBPR requires a different sort of "inquiry paradigm." You see "[t]he positivist paradigm remains dominant in much scientific research, emphasizing objective knowledge that is separate from the knower and can only be uncovered through a scientific method of inquiry that is neutral and bias-free." "CBPR challenges this paradigm by contextualizing scientific research within particular communities, including and legitimizing advocates' knowledge, understandings, and priorities regarding issues by which they are personally affected." (Ibid at pg 17).

So researchers, schooled in the long history of how biases, prejudices and failures to challenge closely held beliefs have thwarted science and medicine in the past, are to drop everything they hold dear? Or is it that advocates are to drop their beliefs, acquiesce to all the money they lobbied for being spent on an effort to falsify those beliefs; and, after seeing them falsified, to say "Nevermind", take the hit to their reputations and set about constructing a new narrative for their lives? The former rejects the scientific method; the latter, human nature. 

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Despite a steady drip drip drip of out-of-context memos, disconnected snippets of depositions and dire predictions that rose to a torrent last night, the FDA's panel of experts today voted 20 - 13 to keep Avandia on the market, though, most suggested, with more warnings. More significantly, despite vicious ad hominem attacks on respected academics and physicians, the panel also voted to complete the TIDE study - one of those "gold standard" studies that should in 2015 produce at last some definitive data on the questions of whether Avandia poses an unacceptable risk for diabetics and whether it produces a better outcome than a competitor.

Of all the objectives of those who lead such attacks their effort to declare science settled and to outlaw further experiments that might falsify their claims is the most frightening. On the other hand, when you consider what happened with the breast implant litigation you have to understand that by waiting for the truth those who fed The New York Times stray documents and quotes from discovery would only put their businesses at risk. Fama, malum qua non aliud velocius alium.

 

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Three years ago Dr. Steven Nissen published "Effect of Rosiglitazone on the Risk of Myocardial Infarction and Death from Cardiovascular Causes" in which he reported that those taking Rosiglitazone (Avandia) had about a 40% increased risk of acute myocardial infarction (heart attack). The study was a meta-analysis of published and unpublished data and drew extensively from the manufacturer's unpublished data.

The media simultaneously reported the findings and propagated the following narrative: The pharmaceutical companies collect vast quantities of data; publish only what supports their products; and are at best willfully ignorant of the risks of their products which risks are right before their eyes if only they would look. Dr. Nissen who "has a statistician’s zeal for drilling deep into clinical data, seeking signs that some widely used drugs pose undisclosed risks to patients" was made the hero of the drama. Congress got involved by beating the drums of safety and transparency and demanding that the FDA pay more attention to ensuring that pharmaceuticals are safe.

The FDA reassessed Avandia and panel members voted 21-3 to keep it on the market.

In February of this year, a Congressional investigation conferred near-martyr status on Dr. Nissen after it was revealed that he had secretly tape recorded a meeting with the representatives of the maker of Avandia. The same month, in European Heart Journal, he published the editorial "The Rise and Fall of Rosiglitazone". Meanwhile everyone was waiting for the results of a huge study of Avandia.

Last week that study, "Risk of Acute Myocardial Infarction, Stroke, Heart Failure, and Death in Elderly Medicare Patients Treated with Rosiglitazone or Pioglitazone" (interestingly, for several days JAMA made you click through an ad for a competitor's type 2 diabetes product to get to the article) was published. And what was the risk of heart attack among those elderly patients on Avandia? Essentially no different than those on the older medication - a statistically insignificant 1.06 increase - especially so given the fact that almost three quarters of all type 2 diabetics wind up dying of heart disease in any event. So, was Avandia cleared? Nope. In fact, the calls for removing it from the market have grown even louder.

The new study, while rejecting the original claim that Avandia causes heart attacks, raised the hypotheses that Avandia causes congestive heart failure and stroke and increases the rate of mortality overall. Yet even though the numbers of patients involved in the study (their records were simply culled from Medicare databases) was large (227,000) the increases were relatively small and by the time the increases appeared (after six to fifteen months of medication) only a small and rapidly decreasing fraction of the original cohort were actually still on one of the two medications.

At almost the same time Dr. Nissen published an updated meta-analysis ("Rosiglitazone Revisited: An Updated Meta-Analysis of Risk for Myocardial Infarction and Cardiovascular Mortality"  also free and also, though published in the Archives of Internal Medicine, only after an ad for the same competitor's type 2 diabetes product) that purports to show that Avandia increases the risk of heart attack but doesn't increase the risk of mortality. What? Hey, wait a second! How can ... So, siding with those advocating "safety over certainty" the New York Times quickly editorialized in favor of those demanding Avandia be removed from the market.

The LATimes went so far as to publish a piece calling for "an immediate moratorium on sales as soon as a credible study raises questions about safety." In that same piece the journalist was posed the following question by a researcher being interviewed: "Suppose a drug saves five people and kills one person. Do you keep it on the market?" His answer was "I know this: If that one person killed is my loved one - or yours - the answer is readily apparent."

Yikes. Really? If a data dredge shows any risk of a fatal outcome then the drug should be pulled from the market no matter how many people are killed in the process? We'll save for another day the question of how thinking about risk goes so badly astray. For now though consider how likely it is (yes likely - and in fact, if the number of endpoints examined are sufficiently large, how almost certain it is) that a risk will be found where none exists. Start with "Data Dredging, Bias, or Confounding: They Can All Get You Into the BMJ and the Friday Papers" and then for more on the perils of statistical deep drilling read "Your Intuitions Are Not Magic" and the links therein.

At the end of the day the issue isn't safety versus certainty. Claiming that pharmaceutical manufacturers are insisting upon certainty before warnings are issued or products are pulled is just a straw man argument. The usefulness of statistical analyses of medical outcomes has not been added to "death and taxes".The real question is which course is less uncertain - making vital judgments on the basis of large randomized controlled trials like the one due out on Avandia in 2015 or on the basis of data dredges? The answer ought to be obvious.

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The Texas Supreme Court has just decided an appeal we discussed last year in "Dyspepsia Time for Texas Trial Lawyers?" The court in Thomas O. Bennett, Jr. and James B. Bonham Corporation v. Randy Reynolds upheld punitive damages against the individual as well as against the corporate defendant holding that when a vice principal uses corporate authority over corporate employees on corporate land to commit a tort with corporate equipment it makes the corporation liable for punitive as well as actual damages. The court did, however, remand the case to the court of appeals for remittitur with instructions that it limit punitives to within, and likely somewhat below given that the wrong did not involve death or severe bodily harm, the "absolute constitutional limit [of 4:1 ]" (citing Gullo Motors).

Those doing asbestos litigation are likely to hear a lot about the court's "reprehensibility analysis" that led it to conclude that punitive damages were warranted - specifically this sentence: "We have previously held that certain cover-up efforts can show reprehensibility, as when a manufacturer of asbestos-containing products continues selling what it knows is dangerous."

The opinion concluded this quintessentially Texas case as follows: "We agree with the court of appeals that 'Texans know better than to steal cattle, an offense once redressed beneath a tree rather than inside a courtroom. That said, the 47:1 and 188:1 ratios here exceed the outermost limit permitted by due process. We thus remand to the court of appeals to reconsider exemplary damages in line with this opinion and prevailing ratio analysis.'"

Analysis of Bennett v. Reynolds

Continue Reading...

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On June 14, USEPA gave notice of a July 9, 2010 "listening session" related to its external review draft document entitled "EPA's Reanalysis of Key Issues Related to Dioxin Toxicity and Response to NAS Comments." The draft document includes new analyses on potential human effects from exposure to 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (TCDD). The draft document was also provided to EPA's Science Advisory Board for peer review.

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The LATimes is reporting that a 9-11 style fund will be established by BP and administered by Kenneth Feinberg to compensate those suffering losses as a result of the Macondo well spill.

Mass tort litigation may never be the same. Plaintiff firm business models will need to change to accommodate these "BOOM! Done" resolutions of mass claims. In the past the folks who got rich were those who commanded "magic" venues and those who could try cases. Now it looks like those who can round up the most plaintiffs stand to make the most. It makes you wonder how much Google will be getting for pay-per-click ads generated by the words "oil spill."

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“He whose stuff it is must keep it that it may not trespass.” So said Sir John Holt, Lord Chief Justice of England and Wales, in the case of Tenant v. Goldwin in 1704. (1704) 2 Lord Raymond’s Reports (Ld Raym) 1089, 1 Salkeld’s King’s Bench Report 21, 360. Chief Justice Holt was addressing the escape of “filth” from one property into another, and the cause of action for the damages caused by the “filth.” There is some dispute whether the cause of action sounded in trespass (Salkeld) or in private nuisance (Raymond). However, most scholars agree that the modern concept of strict liability traces its origins to Chief Justice Holt’s decision.

Yesterday, the Supreme Court of Ohio in effect resoundingly rejected the principal in Tenant v. Goldwin. In a 5-1 decision, the Court in Boley v. Goodyear Tire and Rubber Co. upheld and applied ORC 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005. The court found that the statute bars tort claims based on “take home” exposure from a workplace where the exposure takes place away from the property owner’s premises. The statute does not address liability of products liability defendants for take home exposures. In her concurring opinion, Justice O’Connor noted that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. The Supreme Court of Ohio’s announcement of the decision, written opinion, and a video of the oral argument before the Court can all be found here.

Sadly, it does not appear that the Court or the parties in Boley were concerned with the effect of the statute on Chief Justice Holt’s tort law legacy.

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In Collins v. Plant Insulation, a California appeals court has determined that under California law, a jury must determine the Navy’s fault in an asbestos wrongful death suit in order to determine the defendant’s percentage of fault. This holds even though the Navy is immune from suit and the plaintiff cannot recover from it.

Under California’s Proposition 51, the jury must determine each defendant’s responsibility in direct proportion to that defendant’s percentage of fault. The Court held that it was impossible for the jury to determine the defendants’ proportion of fault without considering the fault of the Navy, the premises where the plaintiff worked for a number of years.

This brings California law in line with that of Texas, where the jury must determine the fault of all potentially responsible parties, whether or not they are solvent or before the court. This is designed to keep those with deep pockets and small liability percentages from paying the whole of Plaintiff’s damages.

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Judge Mark Davidson, who presides over the Texas asbestos MDL denied summary judgment on the issue of whether a duty exists for take-home exposure to the spouse of a defendant’s employee. In Carrie Ramsey v. Borg Warner Morse Tec. Inc., et al, he issued a letter ruling in which he determined that DuPont owed a duty to the spouse of one of its workers who developed mesothelioma.

The plaintiff’s ex-husband had worked at a DuPont facility from 1964 to 1974. He worked as an operator and later as a supervisor who patrolled the plant, and worked in various areas during startups and shutdowns as needed. He did not work hands-on with any asbestos products but worked around those who did. Plaintiff laundered, on a daily basis, the clothes her ex-husband wore home his from DuPont. Before she placed his clothes in the washing machine she would shake the dust off his clothes, which she breathed. She was diagnosed with pleural mesothelioma in 2008.

According to Judge Davidson’s ruling, documents produced by DuPont indicated that DuPont knew of the dangers of asbestos by the early 1960s. DuPont knew of a link between small exposures to asbestos and cancer by June 2, 1966. A 1964 DuPont document authored by the director of DuPont's Haskell Laboratory for Toxicology and Industrial Medicine stated that cases of mesothelioma could be caused by "exposure to dust brought home by relatives working with asbestos.” This report also identified three types of exposures to asbestos that are recognized as leading to an increase of mesothelioma: 1) factory workers manufacturing asbestos textiles; 2) insulating materials; and 3) “exposure to dust brought home by relatives working with asbestos.”

A DuPont document dated May 21, 1968 detailed DuPont’s knowledge of asbestos dangers and that “Wives and children of asbestos workers are also being involved because of the dust laden clothes a man wears home at night.”

In his ruling, Judge Davidson stated that the evidence in this case went far beyond that in Behringer v. Alcoa in which the Dallas Court of Appeals held Alcoa owed no duty to an employee’s spouse who developed mesothelioma. Davidson stated the following:

“If this isn’t enough evidence to comply with Behringer, I really can’t imagine what is. Mr. Ramsey’s exposure continued for six years following the time interval DuPont documents show they were aware of the dangers to its employees’ families. The Behringer case held that the [sic] Alcoa had no knowledge of the dangers of household exposure in the 1950s, and that no duty existed in the absence of that knowledge. In this case, there is some evidence that the Defendant knew as early as 1964 and certainly by 1968. Exposure continued until 1974."

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The title is taken from a quote in a New York Times piece headlined: Safety Rules Can't Keep Up With Biotech Industry. The article details several accidents resulting in serious injury or death plus an alleged whistleblower's $1.4 million recovery. David Michaels, author of "Doubt is Their Product: How Industry's Assault on Science Threatens Your Health", and now Director of OSHA, is also quoted as saying "[w]orker safety cannot be sacrificed on the altar of innovation."

A new Rachel Carson and a new Erin Brockovich have already been proclaimed; now it seems there's also a new Karen Silkwood and a new Eula Bingham. The casting is complete. If this production has a run like the last one mass tort lawyers will be busy for years to come.

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In Quillen v. Safety-Kleen Systems, Inc., 2010 WL 2044508 (E.D.Ky.) the court determined that plaintiff's expert, Dr. George Rogers, could properly attribute a case of myelodysplastic syndrome (MDS) to benzene by doing a differential diagnosis. That some courts have taken to using differential diagnosis to identify the root cause of say splenomegaly rather than to distinguish histoplasmosis induced splenomegaly from Hodgkin's disease induced splenomegaly would likely set many physicians' eyes rolling.  Yet, that's apparently what the 6th Circuit said in Hardyman v. Norfolk & Western Railway Co., 243 F.3d255 (6th Cir. 2001) and thus the thinking by the Quillen court.

The point of doing a differential diagnosis, of course, is to rule out possible causes until just one is left - it's a process of elimination. But just because every other cause of splenomegaly has been ruled out in the case of a male patient that doesn't mean that it makes sense to conclude that the cause must be the remaining possibility - a metastatic ovarian cancer. To be considered for elimination in the first place the putative cause has to be one that makes sense. In Quillen though there was no effort to demonstrate that plaintiff's experience with benzene was the sort that would make benzene a reasonably plausible cause of his MDS.

Finally, please ponder the following. In response to the defendant's objection that plaintiff's expert had not ruled out ionizing radiation  the court wrote: "Defendant points to nothing in the record demonstrating that Quillen was ever exposed to a statistically significant amount of such radiation." Somewhere an epidemiologist just fell out of her chair.

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The Court of Appeals for the Federal Circuit recently drove what we hope is the last nail in the coffin of the vaccine/autism litigation. Rarely has a toxic tort had the potential to cause so much harm based on such shoddy science. The history of this tort and its shortcomings have been reported in great detail.

In short, the scientific evidence that vaccines cause autism came from a discredited article by Andrew J. Wakefield and two follow-up articles. Dr. Wakefield’s article created a public health crisis with parents, including celebrity parents Jenny McCarthy and Jim Carey, urging parents not to get their children vaccinated. As a result, formerly endemic childhood diseases which had become effectively eradicated in the developed world began to make a reemergence. Wakefield’s article was finally withdrawn from the Lancet earlier this year after 10 of the 12 co-authors disavowed it. Wakefield, himself, refuses to withdraw the article even though it was found that he committed scientific misconduct and lied in the article. The UK’s General Medical counsel’s Fitness to Practice Panel issued a judgment against him for his vaccine/autism paper. Wakefield continues to testify. Others testify based on his work.

Thankfully, the vaccine litigation was consolidated in the federal Vaccine Court pursuant to The Vaccine Act (passed in response to the health scare where the DTP vaccine was accused of causing neurological damage and in response to lawsuits, stopped being manufactured). Plaintiffs in three bellwether cases all failed on causation. The Special Masters wrote massive opinions eviscerating Wakefield and the causation theories of Plaintiffs.

Hopefully parents can now rest assured that vaccines are not a risk for autism. And, they can recognize the far greater risks to their children and society from not vaccinating.

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The EPA has just announced its final rule for greenhouse gas emissions from large fixed sources such as power plants and refineries. Starting in January of next year large facilities already required to obtain Clean Air Act permits for other emissions will have to seek a greenhouse gas permit if such admissions increase by 75,000 tons/yr or more. Six months later the requirements will expand to cover all new facilities with emissions of at least 100,000 tons/yr and older installations with modifications that result in increases of 75,000 tons/yr or more. The rule covers not only CO2 but also methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It's anticipated that the rules will be expanded to additional sources effective July 2013.

The EPA believes that these new standards will avoid overwhelming permitting burdens that otherwise would have fallen on the government and most sources of greenhouse gas. The EPA notes that without this rule the permitting and "best available control technology" burdens would fall on operations with emissions as low as 100 tons/yr producing "an absurd result" - not to mention an immense political backlash propelled by an impossible to administer regulatory scheme. Instead, conceding in essence the slippery slope objection, expansion of the regulations to smaller emitters will proceed "one-step-at-a-time". Had the rules become effective for all emitters at once an estimated 6 million U.S. farms and businesses would have suddenly become subject to the permitting process with the time from application to permit approval lengthening to a decade or more.

The CliffsNotes version is here: Fact Sheet and here's the Final Rule

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Eight years after issuing “draft” guidance on vapor intrusion, the EPA will issue an “interim” guidance this year that is supposed to move the organization closer to issuing a final guidance in 2012. This sudden rise in importance was prompted by an evaluation that the lack of final guidance on vapor intrusion by the organization impedes efforts to assess indoor air risks. Since 2002, more than half the states and other governmental bodies have issued their own vapor intrusion standards, leading to ad hoc and inconsistent standards across the board. So why not finalize the draft? Well, the times have changed and so has the EPA’s approach. This new risk based approach no longer supports some of the assumptions inherent in the draft guidance. For instance, the EPA will use updated toxicity values, beginning with trichloroethylene (TCE) and tetrachloroethylene (PCE) toxicity values, to determine at what level an indoor risk exists, and consider more significantly atmospheric and building specific effects. But, alas, there are many more than assessment questions to be answered in the final guidance. Again, not waiting for the answers, ASTM International announced last week that it will soon release its ASTM E 2600 Guide: Vapor Encroachment Screening standard for conducting due diligence for sale of properties where potential vapor intrusion is a concern, a revision of its 2008 standard that was criticized for being overbroad. The ASTM standard will focus on identifying potential sources in the surrounding areas of the real estate property rather than broad assessment of an existing vapor intrusion problem. Years after the 2002 guidance, many thought the final guidance would be immediately forthcoming, but it was not. While more certainty is definitely desired by all parties involved on this issue, what we hope is that the “interim” guidance does not dance to the same tune as the “draft” guidance…one step forward and two steps back!

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Yesterday a Los Angeles jury awarded $8.8M in compensatory damages and $200M in punitive damages in a take-home exposure case against CertainTeed and the Los Angeles Department of Water & Power (Evans v. A.W. Chesterton, et al). Plaintiff Rhonda Evans claimed that she contracted mesothelioma as a result of exposure to asbestos fibers that had been carried home on her husband’s clothing who cut asbestos pipes manufactured by CertainTeed for the Los Angeles Department of Water & Power.

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In Stolt-Neilsen S.A. v. Animalfeeds Int’l Corp., the US Supreme Court held that an arbitration panel may not determine that a class-action arbitration is allowable in the absence of an express provision in that arbitration clause.

The case stems from the global shipping price fixing practices uncovered by the US Department of Justice in 2003. Animalfeeds International ships raw ingredients to animal feed producers around the world. The standard shipping contract in issue, called the Vegoilvoy charter part, first adopted in 1950, has an arbitration clause which is silent as to class actions. And, no class action has ever been conducted based on the particular charter party arbitration provision.

Nonetheless, Animalfeeds sought class action arbitration in New York on behalf of all global shippers affected by the alleged price fixing. An arbitration panel was set up to determine in the first instance whether class-action arbitration was proper in this case. Relying on a public policy interpretation, the arbitration panel determined that it was.

The Supreme Court determined that in the absence of an arbitration provision allowing class action status or a state substantive law in the relevant jurisdiction allowing class action arbitration in the absence of express consent, the arbitration panel’s decision to allow the class-action arbitration exceeded its powers. Parties cannot be put into class-action arbitration unless they agree to it. And, arbitrators have no power to determine cases based on public policy.

This decision fits within recent Supreme Court jurisprudence on arbitrations. Recently, the Court decided that parties who contracted for arbitration could not also contract for judicial review. See Hall Street Assoc, LLC v. Mattel, 522 US 576, 128 S.Ct. 1396 (2008). In Hall Street, the Supreme Court’s decision seemed to say, “if you want arbitration, yet get arbitration. Don’t come complaining to us about the arbitrator.” In this case, the Court seemed to temper that somewhat.

In this case, the parties agreed to arbitration between them. The shipper did not agree to have Animalfeeds as the class representative of all its customers in one mass action against it. Such a class-action arbitration would bind parties who were not part of the arbitration agreement and likely reduce many of the benefits normally accorded to arbitration over litigation (cost vs. speed, finality vs. ability to appeal, etc.).

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Yesterday, the 9th Court of Appeals in Beaumont, Texas conditionally granted mandamus relief in Thompson v. Univar; a benzene/leukemia case. In the trial court Univar had moved to compel the production of settlement agreements. Discovery of such settlement agreements are seemingly expressly called for by Texas’ Rule of Civil Procedure 192.3(g). Nevertheless, some courts routinely refuse to compel their disclosure and that’s what happened here.

Plaintiffs had objected to the disclosure of the settlement agreements stating that they were subject to confidentiality clauses. Plaintiffs did agree to disclose, in aggregate, the total amount of money agreed to be paid by the settling defendants. Without reviewing the agreements the trial court accepted plaintiff’s representation and denied Univar’s motion to compel.

The appeal drew several amicus briefs, including some from former parties which had settled with plaintiffs, that argued against disclosure of settlement agreements.

Holding a plain reading of our discovery rules demonstrates that such agreements are discoverable; that they are additionally discoverable so as to uncover any potential bias on the part of any witness (e.g. agreements to cooperate or not cooperate); and that they ought to be timely discovered, the court of appeals ordered that the agreements be disclosed by the end of the week.

Trial begins Monday in Beaumont.

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The long-awaited proposed revisions to TSCA were introduced in the U.S. House and Senate last week. As expected, these proposals, referred to as the “Safe Chemicals Act of 2010” in the Senate and as the “Toxic Chemicals Safety Act of 2010” in the House, contain numerous similarities to REACH. For example, the precautionary principle will apply, manufacturers will need to submit data on each chemical produced and its use, the EPA will be required to prioritize chemicals based on risk, the EPA will be expected to address high risk chemicals quickly. Chemical information submitted will be publically available, the scope of confidential business information will be significantly narrowed, and there is a focus on using safer alternatives to chemicals of concern.

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Mr. Pryor played an indispensable role in starting up the chemical tort litigation that began (like everything else, seemingly) in Beaumont, TX. Read all about it in "Catching a Killer" and in "The Cancer Belt". In particular it was the butadiene litigation for which he'll be remembered by toxic tort lawyers. You can find his obituary in the Beaumont Enterprise.

 

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The Texas Supreme Court recently concluded that merely transporting goods through Texas does not create sufficient minimum contacts to establish specific jurisdiction in this state. In the case of Zinc Nacional, S.A. v. Bouché Trucking, Inc., a Mexican company (Zinc) sold paper to a company in New Mexico. Zinc transported the product to the Texas border, transferred the trailer to another truck company (Bouché), which transported the paper through Texas to New Mexico. Zinc does not have an office, agents or employees in Texas and does not sell paper to Texas manufacturers. During one particular shipment in 1999, the Bouché driver was injured when the contents of the trailer shifted and the truck overturned. The driver filed a negligence suit against Bouché.

Bouché sought third-party indemnification and contribution through Zinc, who filed a special appearance to challenge specific and general jurisdiction. The trial court denied Zinc’s special appearance. The Court of Appeals upheld the trial court’s opinion stating that “Zinc had purposefully availed itself to Texas benefits” and “had thereby established sufficient minimum contact for purposes of specific jurisdiction.” The Supreme Court disagreed finding that Zinc doesn’t have the minimum contacts necessary to establish specific jurisdiction, concluding that third-party shipment of goods through Texas “does not, by itself, constitute purposeful availment.” The Court reversed and remanded the case to the appellate court for determination of the general jurisdiction issue.

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The Texas Supreme Court recently delivered its opinion in Del Lago v. Smith, 53 Tex. Sup. Ct. J. 514 (2010). Smith was a patron of the Grandstand Bar which is part of the Del Lago resort on Lake Conroe, Texas. He was a member of a fraternity reunion that got into a brawl with a wedding party. The brawl erupted after ninety minutes of drunken threats between the two groups. The bar employees witnessed the hostility, did not call security or the police, did not throw anyone out, but did keep pouring drinks. Smith witnessed all of it but did not leave. When the fight started, Smith joined the fray and was eventually run into a wall by another man and his skull was fractured. Once the fight started, the bartender called security, who arrived within three minutes and broke up the fight. The jury found the bar 51% liable and Smith 49% liable and awarded almost a million and a half dollars in damages.

The most significant holding of the case can be found in this paragraph:

"We hold that Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night. When a landowner “has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent" to reduce or eliminate that risk.

The ruling drew two very lengthy dissents. They point out that the rule in Texas has always been that a possessor of land discharges his duty to protect an entrant, including an invitee, from a condition that poses an unreasonable risk of harm by giving an adequate warning. Yet the court now holds that “in some circumstances, no warning can be adequate.” The court, however, did not explain when and how such situations arise so that a landowner can take measures to reduce his risk. It also did not explain why no warning could have been adequate in this case (where the danger was obvious and Smith was a willing brawler who could have avoided his injury by simply leaving the bar at any time after trouble began to brew.

In his dissent Justice Wainwright examined Palsgraf v. Long Island Railroad and Texas' views about whether we follow an ordinary prudence rule or whether we impose on all actors a duty to the whole world and he concluded that Texas had always followed the lead of the majority opinion in Palsgraf.  

The majority gave short shrift to one of the key problems with this case.  While the case was presented to the jury on a premises liability theory (defect in the physical premises itself), one of the major factors in holding the bar liable was a negligent activity (serving drinks to belligerent people, omitting to call the police to break up the fracas).  Serving drinks in a bar cannot be a premises defect. That is what bars do.  However, serving them to drunk, belligerent customers can be negligent, as in a dram shop case.  This is a key distinction because obvious dangers and warnings are often not sufficient in negligent activity cases – it is not enough to warn someone that you are spraying the floor with oil in a grocery story as the person walks by and slips (this is the seminal fact pattern in a negligent activity case).  So instead, the majority has created an exception to premises liability law when it could have simply sent the case back to the trial court to be tried and presented to the jury under the appropriate tort – the negligent activity of serving drinks to drunk, belligerent customers and not calling the police.

How will this ruling affect toxic tort claims by contractor employees? Is it no longer enough to warn of the risk and to advise as to how it might be avoided? And if a hazard, such as an unguarded loading dock, is open and obvious is the premises owner now obligated to actively prevent the contractor from falling off? And what exactly is the something "more than a warning" that a prudent premises owner must now undertake to discharge this new duty?

Premises liability law, which had after many long years finally become understandable, predictable and workable has suddenly become very uncertain.

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In Buttitta v. Borg-Warner, et al a New Jersey appellate court appears to embrace the scientifically indefensible "no safe level" risk/causation conflation in upholding a huge award to a plaintiff with a lower asbestos burden than an average American; likely all of whom are exposed to chrysotile, a ubiquitous and naturally occurring mineral.

Clearly a new front in an old war has opened. Seemingly few are prepared for this post-epidemiological world.

Also of interest is the court's approval of prior decisions based on an Illinois appellate court's discussion of the substantial factor test:

"The substantial factor test is not concerned with the quantity of the injury-producing agent or force but rather with its legal significance... Where there is competent evidence that one or a de minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury". Citing Wehmeier v. UNR Industries, Inc., 572 N.E.2d 320, 337 (Ill. Ct. App. 1991).

That's pretty much the essence of the "redistributive justice" view of tort law in which the actor's conduct is not at issue but rather whether it contributed, however infinitesimally, to the plaintiff's injury. Practically speaking the litigation then will remain focused not on whether a defendant committed a wrong but rather on which defendant is most able to pay since asbestos fibers have been found on just about every surface and in countless products.

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Apparently forty really is the new thirty. In several (free) reviews of the state of current knowledge on aging you'll read that life expectancy hasn't, contrary to popular opinion, reached any preset limit and that those who reach "old age" in good health (Americans, Swiss and Japanese, anyway) not only have a lot of life left ahead of them but the accretion of extra life is accelerating. In the paper "Biodemography of Human Ageing" there's an especially eye-popping graph showing the age at which remaining life expectancy is either five or ten years for women. American women lead Swiss women and look to be pulling away, almost going straight up, at a rate similar to Japanese women.

That all this extra life will bring profound political and economic changes almost goes without saying. In personal injury litigation some of the changes wrought by significantly increased life expectancies are already here.

When I got out of law school a good liability wrongful death cancer claim by the children of an eighty-something decedent might have settled for $50,000.00.Typically there would have been little in the way of medical bills, nothing in the way of lost wages and the adult children would have been thought lucky to have had their parents around for so long. At one point I collected all the awards to grown-up and on-their-own children (40+) in toxic tort wrongful death cases for several years here in Texas and the average was $30,000/child with a median of about $25,000.

Recently I was involved in a case in which the decedent had been making $150,000/yr at age 80, incurred over $300,000 in medical bills and the family had already collected more than $1,000,000.00 settlements. And a focus group, in another matter, when asked "to what age should people reasonably expect to live" collectively picked 85 as the magic number though almost half said the number should be 100. One hundred. And do you know what? A child born today has better than even odds of living to 100 according to the actuaries.

Not only are damages going up, people are dodging things like heart attacks and strokes that used to kill them at much younger ages and so are living long enough to develop diseases with extraordinarily long latent periods. Expect to see more, and more different kinds of latent disease litigation.

Finally there's the future. First though imagine you're in a Navy shipyard in 1941 and someone tells you that the material you're using might kill you when you're in your eighties. Since your life expectancy is sixty or so you might not be too alarmed. In fact, you might be relieved since the eighty somethings you know are woefully decrepit. Now come back to 2010 and imagine someone just told you that using a common and ubiquitous material may cause you to die, prematurely, of cancer ... at 125. What would you do? What should we do?

All of the articles about aging (or ageing - blame the Brits) are free (and excellent) in this month's Nature Insight. If you're daunted by the science try the podcast instead.

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In a pair of decisions released on March 23, the Supreme Court of Ohio upheld RC 2745.01, which requires a showing of deliberate intent to make out a case of employment intentional tort for claims arising on and after April 7, 2005. This will make proof of employment intentional tort considerably more difficult in Ohio than under the prior standard, which required only a showing of knowledge of “substantial certainty” of injury. This ruling from the Supreme Court of Ohio is also notable in light of the Court’s prior decisions, striking down two prior tort reform efforts in this area. The two opinions, Stetter v. R.J. Corman Derailment Servs, LLC and Kaminsky v. Metal and Wire Prods Co., are available here.

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“There are certain things only a government can do. And one of those things is ensuring that the foods we eat are safe and do not cause us harm.”  

That's a quote from President Obama that appears on the FDA's food safety website and is undoubtedly an indication of increasing federal regulation of food in the years to come.  It's expected that by May of this year a bill to modernize the FDA will become law.  Both the House and Senate versions of the bill require the establishment of a tracing system for contaminated food back to its source within two days.  While tagging foods so that they can be traced back to their source may be onerous for industrial-scale producers, for farmers' markets, truck farmers, and the whole locally grown / sustainability movement this requirement may prove to be crippling. 

The final bill will likely incorporate some sort of requirement for studies or pilot projects to determine the most effective and least expensive method of traceback and recordkeeping.  Any obligations eventually imposed won't become effective for eighteen months to three years.  Expect to see considerable debate about these provisions in the next couple months.

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The Texas Supreme Court has just decided another arbitration issue in the case of East Texas Salt Water Disposal Company, Inc. v. Werline, 53 Tex. Sup. Ct. J. 410 (Tex. 2010). This time it has further defined the limits of trial court’s ability to review arbitration decisions.

Werline was an employee of East Texas Salt Water Disposal. He had an employment contract that directed arbitration over any employment disputes. He also had a severance provision if he was terminated without cause. Werline’s employment ceased and he sought to enforce the severance provision. The parties proceeded to a three-day arbitration hearing in front of an AAA arbitrator. The arbitrator awarded in favor of Werline. East Texas Salt Water Disposal petitioned the district court to vacate, modify or correct the award on the basis that it was so against the great weight of the evidence that the arbitrator manifested bias.

The trial court vacated the award, determined all the material facts and issues in East Texas Salt Water Disposal’s favor and directed another arbitration to confirm the facts the court had found. Werline appealed and the court of appeals reversed and rendered in favor of Werline. East Texas Salt Water Disposal appealed, arguing that the court of appeals had no jurisdiction to hear the appeal.

The Supreme Court held that the court of appeals did have jurisdiction to hear the appeal from the trial court’s obviously erroneous decision.

The Texas Supreme Court then took the opportunity to remind the parties, once again, that there is limited trial court review of arbitration awards. The review is limited to the grounds expressly enumerated by Texas Arbitration Act section 171.098(a). In this way, the Texas Supreme Court’s decision is consistent with the United States Supreme Court’s decision in Hall Street v. Mattel, 128 S.Ct. 1396 (2008) decided recently on similar issues under the Federal Arbitration Act, which the TAA is modeled after.

Justice Jefferson, leading the dissent, argued that the limited issue presented on appeal, the appealability of the trial court’s order, should have been decided differently. He held that there was not sufficient finality in the trial court’s order to make it appealable. However, this is inconsistent with the purpose of the TAA to make arbitration faster and cheaper than litigation. As the Fifth Circuit stated recently in Citigroup Global Markets, Inc. v. Bacon, arbitration should be the end, not the beginning of the litigation. If the trial court’s order were not appealable, multiple arbitrations would have occurred based on reasons not listed in the statute.

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Yesterday, the federal judge that presided over the Garner v. BP trial issued a memorandum opinion and final judgment in which he ruled that gross negligence was not proven by clear and convincing evidence by plaintiffs as a matter of law. Judge Kenneth Hoyt’s opinion set aside all exemplary damages awarded by the jury in the first trial of ten plaintiffs that claimed injuries as a result of chemical release in 2007. Judge Hoyt’s opinion stated that plaintiffs failed to satisfy the objective test for gross negligence which requires a showing of an extreme risk of harm – “one that involves both high probability and high potential severity” of an occurrence. In addition, plaintiffs failed to demonstrate the requisite specific intent that showed BP ignored an obvious or known risk and took no precautions that would minimize or arrest the harm anticipated. According to Judge Hoyt, BP had implemented safety precautions which included monitors on workers and at various locations on the plant to detect the presence of toxic chemicals.

The judgment found that BP was responsible for the chemical release and permitted plaintiffs to recover actual damages which totaled $340,659.77.

Plaintiffs’ counsel Tony Buzbee told the Houston Chronicle that the first trial was “just a skirmish in the war.” Over 130 plaintiffs have pending claims in this litigation which remain to be tried.
 

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"Tobacco smoking is responsible for one-third of the total cancer deaths among men." See "Estimation of Cancer Incidence and Mortality Attributable to Smoking in China". Secondary smoke exposure is said to be responsible for more than 11% of all cancer deaths in women.

Do you ever get the feeling that China is just going through what the U.S. went through in the 1960s, 1970s and 1980s when epidemiology and mass health panics were all the rage? If so, and if a "redistributional justice" model of tort law can be introduced in China, it may be deja vu all over again for classic mass tort litigation.

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A Madison County jury rendered a defense verdict in an asbestos trial that ended Friday. Plaintiffs Larry and Meta Williams claimed he developed mesothelioma from his work with friction products that contained asbestos. The lone defendant at trial was Ford.

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Claims that bisphenol A causes hormone disruption have been refuted again and again by large, independent studies the results of which have been published in peer reviewed papers. Yet, based on nothing more than an uninspired theory (that estrogen-like molecules ought to do what estrogen does) and a few, small, poorly controlled studies the results of which can't be reliably reproduced elsewhere, the effort to ban a product that prevents bacteria from infecting much of the food you consume continues to accelerate. How could this be?

You can find Richard M. Sharpe's answer in "Is It Time to End Concerns over the Estrogenic Effects of Bisphenol A?" published in the journal Toxicological Sciences (free access!).

Like the autism/vaccine, limb reduction/Bendectin controversies the bisphenol A panic has spread like a virus. And if those past controversies are any guide it'll be several more years before civilization's immune response, empiricism, is able to bring us collectively back to our senses. In the meantime expect opportunistic infections to take advantage of the situation.

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Yesterday the U.S. Supreme Court granted a petition for writ of certiorari in Bruesewitz v. Wyeth, Inc. and will review the Third Circuit’s holding that a plaintiffs’ design defect claims against the manufacturer of a vaccination were expressly preempted by the 1986 National Childhood Vaccination Injury Act (“NCVIA”) and that plaintiffs failed to establish a manufacturing defect or a warning defect claim under the Act.

In a footnote in the Bruesewitz opinion the Third Circuit had distinguished the Supreme Court’s opinion in Wyeth v. Levine in which the Court held that federal law did not preempt state tort claims that alleged that a drug manufacturer failed to adequately warn of the dangers associated with a drug on the basis that unlike the NCVIA, there was no express preemption provision in the Food, Drug, and Cosmetic Act (“FDCA”). Another distinguishing factor was Congress’ silence on the issue of preemption in the FDCA “coupled with its certain awareness of the prevalence of state tort litigation” which was “powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness” as the Court stated in Levine. In addition, the Third Circuit noted that Levine recognized that under federal law, a drug manufacturer could strengthen a drug’s label without preapproval from the FDA, which “stands in contrast to the FDA’s far-more extensive control and oversight of the drug’s design and alternation.”

Also the Third Circuit had disagreed with the interpretation of the Georgia Supreme Court on this issue. In American Home Products Corp. v. Ferrari (in which a petition for writ of certiorari is pending), the Georgia high court had ruled that the Vaccine Act “clearly did not preempt all design defect claims against vaccine manufacturers, but rather provides that such a manufacturer cannot be held liable for defective design, if it is determined, on a case-by-case basis, that a particular vaccine was unavoidably unsafe.” The Third Circuit noted in Bruesewitz that if the NCVIA was interpreted to permit a case-by-case analysis of whether “particular vaccine side effects are avoidable, every design defect claim is subject to evaluation by a court.”

It will be interesting to see how the Supreme Court resolves the split between the Third Circuit and the Georgia Supreme Court on this issue.

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Score one for transparency and fairness in the Mountain State.

The West Virginia Record reported in this article on March 3 that Circuit Judge Ronald Wilson has now ordered that all asbestos plaintiffs in West Virginia must henceforth disclose which bankruptcy trusts they have communicated with and against which trusts they might have a claim. The purpose of the order is to ensure that defendants in asbestos cases receive proper credit when plaintiffs are paid by trusts of bankrupt defendants.
 

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The case of Cull v. Perry Homes is long and winding and fits the old adage of being careful what you wish for; especially in litigation. Robert and Jane Cull of Mansfield, Texas bought a home from Perry Homes for $233,730. They alleged it had serious structural problems. They sued Perry Homes and two warranty companies in Texas District Court. One of the warranty companies moved to compel arbitration with the American Arbitration Association pursuant a contract clause. The Culls responded with a 79-page objection which called the AAA, among other things, “incompetent, biased, and fails to provide fair and appropriate arbitration panels.” The case proceeded in court. There was extensive discovery conducted, including 14 depositions and five motions to compel by the Culls. Four days before trial, the Culls moved to compel arbitration. The trial court agreed. The Supreme Court denied a petition for writ of mandamus blocking the move to arbitration.

The arbitrator gave the Culls an $800,000 award, including punitive damages and damages for mental anguish (things arbitration panels are supposed to protect litigants from versus jury trials).

Perry Homes appealed. The Texas Supreme Court reversed; not the arbitration award itself – for which the law is extremely deferential – but the trial court’s decision to go to arbitration.

The Supreme Court stated that the key issue was whether the party moving to compel arbitration had substantially invoked the litigation process. In this case, it clearly had. There is not much more that the Culls could have done to invoke litigation short of going through the trial itself. The plaintiff’s 79-page objection to the AAA seemed to have a large part in the Court’s decision.

On retrial, the jury awarded the Culls $51 million.

Perry Homes has incrementally gotten what it wished for (an arbitration set out in its contract, a new trial after the arbitration gave a bad result), with increasingly bad results. The Supreme Court’s 2008 opinion received lots of press for its seeming favoring of a well-connected defendant over even its historical favor of arbitration.

The case continually made for favoring arbitration is that it reduces cost and time. This frequently does not occur. Perhaps we should go back to favor arbitration only in cases where experts are needed to determine the outcome, not for run-of-the mill private litigation that has until recently been the purview of our public courts.

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We have been watching with interest recent developments in a solvents case currently pending in Summit County, OH: Widican v. Bridgestone/Firestone North American Tire, LLC, et al. A summary judgment order entered in that case may portend a serious body blow to employee "intentional tort" claims against Ohio employers for occupational illnesses with long latencies.

Beginning in 1939, worker's compensation was the exclusive remedy that Ohio workers could seek against their employers for injuries suffered in the course of their employment. That is to say, workers' compensation preempted employer tort liability. This involved the trade-off typical of most workers compensation systems: the employee received reliable compensation for workplace injuries without having to prove fault, and the employer in return received a predictable and reasonable cap on its liability for such injuries.

All that changed in 1982. That year, the Ohio Supreme Court held in Blankenship v. Cincinnati Milicon Chemicals, Inc. that there was an exception to worker's compensation preemption. If the employee could prove that the employer intended to harm him/her, he/she could recover both workers compensation and the full range of tort damages against his/her employer. Two years later, the Ohio Supreme Court in Jones v. VIP Development Company further expanded the exception, holding that "intentional tort" could be established by showing that the employer knew that injury to the employee was "substantially certain." The requisite "intent," the Court later explained in Fyffe v. Jeno's, Inc., was something more than "reckless" or "willful and wanton" conduct, but something less than specific intent to harm.

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In a perplexing opinion the Second Court of Appeals affirmed a summary judgment granted in favor of a manufacturer of asbestos-containing joint compound in a mesothelioma case. As we mentioned in our prior posting on this case, the appeal involved the review of the Texas asbestos MDL pre-trial court’s ruling that qualitative testimony of Dorman Smith’s use of a Kelly-Moore product “on a regular basis” was insufficient.

In Rosemary Smith, et al v. Kelly-Moore Paint Company, the appellate court first addressed and rejected plaintiffs’ contention that Borg-Warner only applied to asbestosis cases and did not apply to mesothelioma cases.

Second, in contrast to the pre-trial court’s ruling that plaintiffs’ qualitative evidence was insufficient, the appellate court reviewed the exposure testimony of fact witnesses, the opinions of plaintiff’s expert, and the opinion of a defense expert that opined that Dorman’s cumulative total exposure to asbestos amounted to 9 to 15 fibers/cc years over the course of his career and stated that “the Smiths at least raised a genuine issue of material fact as to the aggregate dose of Kelly-Moore asbestos-containing joint compound (and total asbestos fibers) to which Dorman was exposed.” The appellate court held that “the Smiths raised a genuine issue of material fact as to the Lohrmann factors.”

This holding is puzzling as the Texas Supreme Court made it clear in Borg-Warner that “proof of mere frequency, regularity, and proximity is necessary but not sufficient, as it provides none of the quantitative information necessary to support causation under Texas law.

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Yesterday in a unanimous opinion (Hertz Corp. v. Friend et al.) the U.S. Supreme Court held that the “nerve center” test will determine the location of a corporation’s “principal place of business” for ascertaining whether a federal court can exercise diversity jurisdiction.

The Supreme Court noted that since Congress codified that a corporation is a resident of the State in which it was incorporated and the State of its “principal place of business” appellate courts have adopted numerous approaches in determining the location of a corporation’s principal place of business. Some courts applied the “nerve center” test for corporations with “far-flung” business activities which focused on the location of the corporation’s decision-makers. Other courts focused more heavily on where a corporation’s actual business activities were located. The number of factors grew as courts combined aspects of the “nerve center” and “business activity” tests to look to a corporation’s “total activities,” sometimes to try to determine what has been described as the corporation’s “center of gravity.”

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Readers of The Wall Street Journal may recall the saga of the administrative law judge in NYC who sued a family-owned dry-cleaner for $57 million over a lost pair of pants. Dubbed “The Great American Pants Suit” by this WSJ article, the judge’s law suit was touted by some as emblematic of the flaws in our tort system. When the judge’s suit failed to produce a windfall verdict, dry cleaners everywhere presumably breathed a sigh of relief.

Recent word from EPA, however, may give much greater cause for alarm for the dry cleaning industry. Perchloroethylene, “perc,” PCE, TCE, tetrachloroethyene and tetracholorethylene are solvents used in dry cleaning. Approximately 28,000 U.S. dry cleaners use this family of chemicals, which are the only air toxic emitted from the dry cleaning process. PCE has been subject to limited EPA regulation under the Toxic Substances Control Act (TSCA), because it was in use long before TSCA was passed in 1976. However, according to this Columbus Dispatch article, EPA Administrator Lisa Jackson indicated in a speech in Columbus last week that she believes TSCA is “toothless,” and intends to press Congress for increased EPA authority to review chemicals. Among proposed changes in EPA regulation of PCE: classification as a “likely” carcinogen (rather than a “possible” carcinogen), and reduction in airborne limits. Litigation over injuries attributed to PCE and other chlorinated solvents is nothing new, of course. However, if Administrator Jackson’s proposed changes are implemented, exposure claims in general and cancer claims in particular are likely be significantly affected by the ensuing “hindsight bias” engendered by the new state of the art.

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Under current federal incentives for “green” energy sources, developers have been rushing to place wind turbines in many rural areas. Indeed, even before the Obama administration’s current emphasis on renewable energy, wind farm development has grown rather dramatically in the last decade, as shown by this time elapsed map of installed wind capacity.

In a recent ABA Journal article, the author notes that many neighbors of proposed wind farms have been challenging the placement of the giant turbines near their homes. Most such challenges have occurred before local land use authorities or state public utility boards, but some have been filed in court.

Most interesting from the mass tort perspective is this: at least some challenges to wind turbine developments have been based upon the purported human health effects of the turbines. Nearby homeowners claim that the low level sound, vibration and shadow flicker from the spinning turbines cause a host of non-specific complaints, such as sleep disruption, headaches, nausea and fatigue.

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In Hall v. Warren Pumps LLC, et al., the California Court of Appeals, Second Appellate District, Second Division, held last week that manufacturers of pumps and valves who did not manufacture, sell or distribute asbestos insulation applied to their products are not liable under California law for injuries caused by that insulation. In so holding, the Second Appellate District joins the First Appellate District (Taylor v. Elliott Turbomachinery Co., Inc.), and the Second Appellate District, Third Division (Merrill v. Leslie Control, Inc.), both of which reached the same conclusions.

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Hooray!

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Yesterday the Illinois Supreme Court issued an opinion in which they rejected statutory caps on non-economic damages in medical malpractice actions as unconstitutional under the state’s constitution. This isn’t entirely surprising as the Illinois Supreme Court had previously held in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997) that Section 2-115.1 which provided for caps on non-economic damages in all cases were unconstitutional as they violated the special legislation clause which was intended “to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis.” In Best, the court also noted that although the legislature may limit certain types of damages, such as damages recoverable in statutory causes of action, the limitation on damages in section 2–1115.1 violated the separation of powers clause.

Following its holding in Best, the Illinois high court found that the caps in the medical malpractice statute was an unconstitutional legislative remittitur that violates separation of powers. According the court, under the statute the trial court is “required to override the jury’s deliberative process and reduce any non-economic damages in excess of the statutory cap, irrespective of the particular facts and circumstances, and without the plaintiff’s consent. Section 2–1706.5 thus violates the separation of powers clause because it ‘unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law.’ Best, 179 Ill. 2d at 414. Section 2–1706.5, like section 2–1115.1, effects an unconstitutional legislative remittitur.”

The Court continued that “[t]he separation of powers clause prohibits one branch of government from exercising “powers properly belonging to another.” Ill. Const. 1970, art. II, §1. Thus, the inquiry under the separation of powers clause is not whether the damages cap is rationally related to a legitimate government interest but, rather, whether the legislature, through its adoption of the damages cap, is exercising powers properly belonging to the judiciary. In other words, does the statute unduly encroach on the judiciary’s ‘sphere of authority’….”
 

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A lot, actually. Or so it seems from this excellent and highly readable essay on practical jury selection. Be sure to read all the way through the jury consultant's response.

Hat tip: Marginal Revolution 

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Eight contract workers recently filed suit against BP Products North America Inc. and Pasadena Tank Corp. in Galveston County claiming they were exposed to “extremely high levels of benzene,” at BP’s Texas City refinery on Aug. 19, 2009. The exposure allegedly occurred when a damaged pipe began "spewing" chemicals in an area where the plaintiffs were working. According to the plaintiffs, they immediately evacuated the area and sought medical treatment where they learned they had been exposed to benzene.

The plaintiffs now seek $500 million in damages for pain and suffering, and mental anguish associated with being exposed to benzene, yet they make no claims of suffering from benzene-related illness. Notably, these allegations follow a $100 million verdict (mostly punitive damages) handed down against BP less than a month ago to workers who were briefly sickened by unexplained fumes (maybe CS2) at BP's Texas City refinery.  .

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The California Supreme Court will review an asbestos case against valve and pump manufacturers that will provide the opportunity to reconcile divergent California appellate court views on the issue of whether a manufacturer had a duty to warn of the dangers associated with the subsequent application of asbestos-containing materials to its products.

In O’Neil v. Crane Co., plaintiffs asserted mesothelioma claims of a naval officer that was exposed to asbestos during his military service on ships. A panel of the California Court of Appeal, First Appellate District reversed the trial court and permitted the case to proceed against manufacturers of pumps and valves for harm caused by asbestos-containing replacement packing and insulation which were used with their products but they didn't manufacture.

The appellate court disagreed with the reasoning of the California Court of Appeal, First Appellate District, in Taylor v. Elliott Turbomachinery Co., 171 Cal. App. 4th 564 (2009). Although the facts were very similar to O’Neil, the appellate court in Taylor rejected liability for pump and valve manufacturers as they were manufacturers of non-defective component parts of a greater whole, and they didn't manufacture the asbestos-containing products that caused the harm.

To further complicate the issue, a different panel of the Second Appellate District agreed with the reasoning in Taylor and held that valve manufacturer “owed no duty to warn against dangers in products, used in association with or as replacement parts of its valves, which it did not manufacture or supply.” For detailed write-up of the Second Appellate District's opinion, see our earlier post on Merrill v. Leslie Control, Inc.

 

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As my mentor used to say, "most people like to help others; and they really like to help when they can do it with someone else's money." 

$100 million is a lot of help.

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As part of its REACH effort the European Chemicals Agency (ECHA) has today launched what it describes as the "pilot form" of a webpage which, it is hoped, will ultimately "allow EU citizens to make informed decisions about the use of chemicals to which they may be exposed."

Today's press release has a link to the new database. When using the database search function be sure to check the "I accept the Terms and Conditions" box or it won't work. Gotta love lawyers. Anyway, when looking for something like benzene be sure to look in the "Pre-Registered Substances" directory because it won't be found in the "Registered Substances" directory and the search engine apparently doesn't look outside of whatever directory you're in.

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In the recently decided Pennsylvania case of Hicks v. Dana Companies, LLC  the appellate court considered whether the trial court had committed error in its handling of the following question posed by the jury after two-and-a-half hours of deliberations:

"Judge Lynn, can we please have verification as to what a 'factual cause' is? To determine such, do we consider each company's product individually or all collectively?"

Rather than answer the question, which actually got right to heart of the matter, the trial court read the following instruction:

"If you find that a defendant's asbestos-containing product was defective, the defendant is liable for all harm to the plaintiff caused by such defective condition. A defective condition is [sic] the defendant's asbestos-containing product is the factual cause of the mesothelioma suffered by the plaintiff if the mesothelioma would not have occurred without exposure to the defendant's defective product. That's factual cause."

Is it any wonder that jury questions are invariably found to be confusing and often result in jurors rendering verdicts they didn't mean or want to render?

Anyway, the jury's question was a profound one. In this age of peripheral defendants, typically none of whose products alone could have produced mesothelioma, is it fair to lay at any one defendant's feet "all harm to the plaintiff" when alone its product could have produced no harm at all?

The opinion is significant in at least two other respects. First it embraces the logical fallacy of conflating risk and causation by approving of causation testimony founded only on the observation that in a dose response disease each quantum of dose increases risk. Second it appears to support the contention that a defendant's application of a warning label to its product is a tacit admission that the product causes the harm warned of.

While the court goes out of its way to distinguish this case from the Pennsylvania Supreme Court's ruling in Gregg v. V-J Auto Parts Company it is difficult to see how it has in fact done anything other than accept the one fiber theory so long as plaintiff has an expert willing to swear to it.

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The Texas Supreme Court released its opinion today in the Whirlpool v. Camacho case. Joab Camacho, a minor, burned to death in a trailer fire allegedly caused by a defectively designed Whirlpool dryer. The plaintiffs’ expert, who had never examined the dryer as it had been discarded, nevertheless opined that lint from the dryer somehow collected in a corrugated exhaust shoot, backed up through the mechanical systems of the dryer, caught fire in the tumbler, smoldered when the dryer shut off, was reignited by oxygen when the door was opened and then ignited the clothes in the dryer. Plaintiffs claimed a safer alternative design would have utilized a smooth exhaust shoot. The sole support for the opinion of plaintiffs’ expert was a review of an allegedly similar dryer and Consumer Product Safety Commission (CPSC) reports of various dryer tests. The jury accepted the assessment and awarded $14 million in damages against Whirlpool.

The Texas Supreme Court conducted a full review of the expert evidence and found Plaintiff’s expert ultimately unreliable under Robinson v. Merrill-Dow. For example, plaintiffs’ expert had not conducted any tests on the dryer in question nor on any similar dryer and could not explain why tests to see if the model in question posed such a risk wasn’t feasible. Further, his opinions were made solely for litigation. Finally, the only data he did rely upon was not sufficiently similar to that for the dryer and circumstances in Camacho’s case to make it reliable.

With this opinion the Texas Supreme Court has again confirmed that the mere ipse dixit of an expert witness is not sufficient to establish the reliability of the Robinson relevance/reliability analysis.
 

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In a recent published opinion the California Court of Appeal, Second Appellate District opined that for a wife to pursue a claim against her husband’s employer for so-called take home exposures, her complaint should specify the chemicals involved and injuries alleged. (Oddone v. The Superior Court of Los Angeles County, Cal. Ct. App., No. B213784, Nov. 24, 2009).

The plaintiff had alleged that she was secondarily exposed to chemicals from her husband and his work clothes. She also asserted claims on behalf of her husband for his personal injuries which remain pending. Her husband had worked for 33 years processing motion picture film for Technicolor Inc. She specified in her complaint her husband’s injuries (glioblastoma multiforme and skin rashes) and specific chemicals that allegedly harmed him (formaldehyde and perchloroethylene), but she made vague allegations regarding her own personal injury claims against Technicolor. She alleged that she was injured from chemical substances that her husband brought home with him either on his body or clothes but failed to identify her specific injures or chemicals that caused her harm.

The defendant moved to dismiss her secondary exposure claim on the basis that it owed no duty to its employee’s wife. The trial court agreed and this appeal ensued.

The appellate court acknowledged that “[t]here appears to be no reported California decision addressing the scope of the defendant’s duty in a case where the plaintiff claims to have been injured as a result of secondary exposure to chemicals.” However, the court continued that “[g]iven appropriately specific allegations, this may be quite possible.”

The court explained that in this case “petitioner’s allegations simply do not establish any connection, much less a close connection, between the defendant’s conduct and her alleged (and unspecified) injuries.”

According to the court, a “close connection” is required because under Rowland v. Christian, 69 Cal.2d 108 (1968), it is one of several significant factors to consider when determining whether a duty exists to an injured party in this circumstance. Although the Rowland factors are to be balanced against one another, the court stated the “close connection” factor is especially important in a secondary exposure suit.

“That connection is only shown by setting forth specifically which chemicals cause which specified injuries,” said the court. “In a secondary exposure case, the allegation that as a result of the exposure the specified chemical entered the plaintiff's body is of particular importance. Central issues in such a case are whether secondary exposure to a specified chemical is even possible and, if it is, whether the exposure will result in the ingestion of the chemical into the plaintiff's body.”

As the plaintiff failed to identify a specific chemical or to specify any one of her alleged injuries she could not “connect any specified chemical or chemicals to a specific injury or injuries” and so, in this case, her take home claim failed.

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This afternoon the EPA announced that “greenhouse gases (GHG) threaten the public health and welfare of the American people.”

According to the press release the EPA’s final findings responded to the 2007 U.S. Supreme Court decision (Commonwealth of Massachusetts et al. v. Environmental Protection Agency, decided Apr. 2, 2007) that GHGs fit within the Clean Air Act definition of air pollutants. The findings allow EPA to finalize the GHG standards proposed earlier this year for new light-duty vehicles as part of the joint rulemaking with the Department of Transportation.

The EPA’s endangerment finding covers emissions of six gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

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Law.com is reporting that Philadelphia juries have awarded a total of $103 million in punitive damages alone to two women in separate breast cancer product liability trials. The women claimed that hormone replacement therapy (HRT) was responsible for their subsequent development of breast cancer.

In light of the recent controversy over the use of Bayesian decision-making approaches to mammography and Pap testing in which probabilities of outcomes are estimated and benefits are then weighed against costs (including other bad outcomes) I thought it might be of interest to see if such an approach had been applied to HRT. Sure enough, "Bayesian Meta-analysis of Hormone Therapy and Mortality in Younger Postmenopausal Women" was just published in The American Journal of Medicine.

So what does it show? It shows that across a number of randomized controlled trials of HRT in postmenopausal women under 60 those women had a reduced overall mortality compared to those postmenopausal women under 60 who weren't on HRT.

As is often the case in these modern times science does not yield a cure but does allow one to pick one's poison as it were; not to avoid death but to influence the odds of whether you die of stroke instead of breast cancer.

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The Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled, "Prioritizing Chemicals for Safety Determination," on Tuesday, November 17, 2009, in 2322 Rayburn House Office Building. The hearing examined the options for prioritizing chemicals for safety determinations in the event that the Committee amends the Toxic Substances Control Act (TSCA).

See the Energy and Commerce's website for the testimony that was given on Tuesday, Nov. 17, including testimony by the EPA.
 

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This evening a Broward Circuit Court jury rendered a mega verdict against Philip Morris USA consisting of $56.6 million in past and future medicals plus another $244 million in punitives for good measure. The plaintiff is a 61 year old wheelchair-bound emphysema sufferer.

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In Missouri Pacific Railroad v. Patricia Limmer, et al., the Texas Supreme Court held that state law tort liability for inadequate warnings was preempted when the railroad crossing improvements were federally funded because federal regulations specify what warning devices should be used.

After her husband was killed at a railroad crossing, Patricia Limmer and her two daughters brought a wrongful death action against the railroad company that maintained the crossing. The Limmers alleged that the crossbucks (black-and-white, X-shaped signs that read “RAILROAD CROSSING”) provided inadequate warning for the railroad crossing and that the railroad was negligent in failing to remove a gravel pile and vegetation that restricted drivers’ view of approaching trains. The railroad contended that Limmers’ claims were expressly preempted by the Federal Railroad Safety Act (FRSA) of 1970. The trial court concluded that federal regulations did not apply and a trial on the merits resulted in a $5.1 million verdict in favor of the Limmers, which the court of appeals affirmed.

On a petition for review, the Texas Supreme Court determined that when railroad crossing improvements were federally funded, federal regulations specify what warning devices should be used, and the United States Supreme Court had held that section 20106 of FRSA expressly preempted state tort law actions challenging the adequacy of these devices (Norfolk Southern Ry. v. Shanklin, 526 U.S. 344 (2000)). Similarly, the Limmers’ sight-restriction claim was preempted as it was simply a restatement of their claim that the warning at the crossing was inadequate. Accordingly, the court reversed the court of appeals and rendered a take nothing judgment.
 

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The House version of the health care bill, titled “Affordable Health Care for America Act,” includes a section (pgs. 1431-33) for incentive payments to be made to each State that has a compliant alternative medical liability law. For those of you short on time, scroll down to the bolded portion of Section 2531.

SEC. 2531. MEDICAL LIABILITY ALTERNATIVES.

(a) INCENTIVE PAYMENTS FOR MEDICAL LIABILITY REFORM.—

(1) IN GENERAL.—To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.

(2) DETERMINATION BY SECRETARY.—The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that—

(A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

(B) the law is effective; and

(C) the contents of the law are in accordance with paragraph (4).

(3) CONSIDERATIONS FOR DETERMINING EFFECTIVENESS.—In determining whether an alternative medical liability law is effective under paragraph (2)(B), the Secretary shall consider whether the law—

(A) makes the medical liability system more reliable through prevention of, or prompt and fair resolution of, disputes;

(B) encourages the disclosure of health care errors; and

(C) maintains access to affordable liability insurance.

(4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW.—The contents of an alternative liability law are in accordance with this paragraph if—

(A) the litigation alternatives contained in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys’ fees or impose caps on damages.

(b) USE OF INCENTIVE PAYMENTS.—Amounts received by a State as an incentive payment under this section shall be used to improve health care in that State.

(c) TECHNICAL ASSISTANCE.—The Secretary may provide technical assistance to the States applying for or receiving an incentive payment under this section.

(d) REPORTS.—Beginning not later than one year after the date of the enactment of this Act, the Secretary shall submit to the Congress an annual report on the progress States have made in enacting and implementing alternative medical liability laws in compliance with this section. Such reports shall contain sufficient documentation regarding the effectiveness of such laws to enable an objective comparative analysis of such laws.

(e) DEFINITION.—In this section—

(1) the term ‘‘Secretary’’ means the Secretary of Health and Human Services; and

(2) the term ‘‘State’’ includes the several States, District of Columbia, the Commonwealth of Puerto Rico, and each other territory or possession of the United States.

(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this section such sums as may be necessary, to remain available until expended.

No wonder it’s 1900+ pages long.

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The maxim “the dose makes the poison” is regularly offered by defendants in toxic tort cases as a premise for the assertion that a particular dose was too small to have been toxic. To demonstrate the concept examples of toxicity due even to essential substances like water are deployed. I’ve done it myself and the retort from plaintiff’s counsel has been invariably mocking. Here are sixteen million reasons why they should reconsider.

 

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The idea that there are two types of causation, one general and the other specific, is rarely enlightening but increasingly the source of confusion, mischief-making and legal bickering. Take for instance the recent per curiam and dissenting opinions in Huss v. Gayden.

In Huss the plaintiff claimed that the drug Terbutaline caused her to develop debilitating cardiomyopathy. At trial the court permitted some testimony by the defendant's expert to the effect that Terbutaline does not cause cardiomyopathy in humans but prevented him from testifying that Terbutaline did not cause Huss' cardiomyopathy. The holding on appeal was that the defendant's expert had not been allowed to fully express his views on general causation and so the case was reversed and remanded. The dissent vigorously objected, writing that the expert had indeed expressed to the jury all that needed to be said on the subject of general causation, that he was not, through education, training or experience, able to opine on the subject of specific causation and that the verdict should thereby stand.

The dissent, citing Tanner v. Westbrook, wrote that the court was required "to acknowledge the fundamental principle of the general-specific dichotomy: that a witness may be competent to testify about general causation but not specific causation." Now, before I discuss this "fundamental principle" (tomorrow) let's first think a bit about reasoning from the general to the specific.

Assume that Wilbur is a pig and the allegation is that Wilbur has been flying. My expert on pigs takes the stand and testifies "No pig can fly". This is of course a general statement about pigs; but Wilbur is a subset of pigs. My expert ought therefore be allowed to testify that Wilbur cannot fly, whether he's ever examined him or not, because what is true of pigs must necessarily be true of Wilbur. Imagine my dilemma if the dissent had its way and I was required to put on specific expert testimony to the effect that Wilbur hadn't been flying. Where exactly would I find someone with the education, training and expertise in recognizing (to paraphrase the test set out by the dissent) the prior flying habits of pigs "in a particular and unique case"?

Tanner on the other hand presents a distinctly different sort of issue. Let's go back to Wilbur. Now he's alleged to have incubated the H1N1 swine flu and given it to his owner, Zuckerman. The plaintiff's expert takes the stand and opines generally that pigs, being swine, are capable of incubating swine flu. He then concludes that Wilbur, being a pig, must have harbored the flu since he was capable of doing so and since Zuckerman now has the flu. Here the criterion of specificity is in order since not all pigs had the flu and since there were other possible non-swine vectors for Zuckerman's flu. Because plaintiff's expert never isolated antibodies to that flu strain from Wilbur's blood nor did he evince any expertise in the forensic diagnosis of H1N1 in pigs his specific causation testimony is unfounded and rightly excluded.

The real problem is that "the fundamental principle of the general-specific dichotomy" isn't fundamental because there's no real dichotomy. More on that tomorrow.

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John O'Quinn who did as much or more than anyone to change the nature of mass torts died today in an automobile accident in Houston.  I first saw Mr. O'Quinn try a lawsuit some twenty years ago when a client for whom we were preparing to defend three benzene leukemia cases sent me to watch the entire Skeen v. Monsanto trial.  O'Quinn already had a fearsome reputation and so, being a brand new lawyer and not knowing much about how lawsuits were really tried, I expected to see quite a spectacle.  Instead, I learned a lot about how to try a lawsuit.

I suppose I expected all-star wrestling but instead it was much more like a chess match.  By the time O'Quinn was done with voir dire the defendant was left with a panel ranging from bad to awful.  His command of the facts and ability to recall them in the minutest detail was amazing.  And every good cross-examination of one of his witnesses turned out, on re-direct, to have been a well-laid trap so that the witness was not only rehabilitated but the cross was made to appear disingenuous, at best.

Nevertheless, probably because I understood the defendant's case and the science behind it, I thought that the defendant would win.  So each week when I would call my Dad, who's been trying lawsuits for decades, and excitedly recount the week's events. I was always surprised when he would reply that it sounded to him as though the plaintiff was thoroughly thrashing the defendant.  He said that O'Quinn had spun a simple and emotive narrative into which all the pieces of the case easily fit whereas the defendant's story lacked a compelling theme and was overly complex. 

After closing arguments I made a wager with my Dad that the defendant would win.  My Dad predicted a verdict of $10 million dollars.  The jury awarded $100 million dollars in punitive damages alone.

A few years ago I was trying a mesothelioma case in Beaumont.  Down the hall O'Quinn was trying a Fen-phen case.  Suddenly there was a commotion in the hall and our judge sent the bailiff out to see what was happening.  She returned and handed the judge a note whereupon he asked the jurors to leave the courtroom.  After the jurors left Judge Sanderson said "they're not sure exactly how much it comes to but O'Quinn just got a verdict of more than $1 billion dollars for one wrongful death."

John O'Quinn's legendary trial skills need no further elaboration.  However, the impact on the law of his brand of mega-verdicts which posed existential threats to corporations has dramatically changed the practice and much remains to be said about it.  More thoughts on that in a future post.

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Two plaintiffs in Connecticut have sued Burger King, McDonalds and Friendly Ice Cream Corp. for failure to warn them that “well done grilled, or barbecued chicken contains chemicals known to cause cancer.” Plaintiffs, represented by the Cancer Project’s general counsel, allege that grilled chicken contains PhIP (2-Amino-1-methyl-6phenylimidazo [4,5-b]pyridine) a chemical that can increase a person’s risk of developing cancer even if consumed in very small amounts, according to a statement by the Cancer Project.

It is interesting to note that the plaintiffs seem not to have cancer. It is further interesting to note that the plaintiffs do not allege how much the risk of cancer is increased if consuming grilled chicken.

The crux of Plaintiffs’ alleged grief, as alleged in their complaint, is that if restaurants had truthfully informed consumers of the presence of a known carcinogen in their grilled chicken products, many consumers would have chosen to avoid the cancer risk by choosing healthier food options.

It seems that Plaintiffs should have to prove that they have actually been done some harm. If there is only an increased risk, that risk should be weighed against the risk of eating fried chicken, raw chicken, no chicken, a burger, or going hungry. Interestingly, the increased risk of cancer from grilled chicken may have to be juxtaposed against the risk of obesity from eating something fattier, though without PhIP.  Click here.

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Plaintiffs alleged that Dr. Stephen Guilder was exposed to chrysotile asbestos in the 1970’s and 1980’s when he remodeled an attic, worked in road construction, and repaired automobiles. He subsequently developed peritoneal mesothelioma and sued Honeywell as successor to Bendix, Borg-Warner, Honda, and other defendants that settled before trial.

Honeywell filed a motion in limine to exclude or redact a portion of a Bendix employee’s letter to an asbestos supplier which was written in the late 1960’s on the grounds of relevance, which the trial court denied. After Honeywell rested, plaintiffs sought and obtained a directed verdict on Honeywell’s claim that the verdict form should include third parties such as Honda and Honda and Borg-Warner as outlined by the Florida Supreme Court in Fabre v. Marin. The jury awarded plaintiffs over $24 million in damages which included $10.4 million for Guilder’s children for loss of parental consortium.

First, the appellate court addressed the letter written by a Bendix employee. Although the appellate court stated that the letter was relevant to proving Honeywell’s knowledge of the dangers of asbestos in its products, the appellate court agreed with Honeywell that the portion which stated, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause[,]” was unfairly prejudicial and the trial court erred by refusing to redact that portion.

Second, the appellate court mentioned that the Florida Supreme Court in Fabre v. Marin, stated that “the legislature intended that damages be apportioned among all participants to the accident” and that “the only means of determining a party’s percentage of fault is to compare that all of the other entities who contributed to the accident, regardless of whether they could have been joined as defendants.” Because Honeywell pleaded the fault of non-parties and presented sufficient evidence regarding two non-parties, the appellate court found that Honeywell satisfied Fabre, and was entitled to have those non-parties listed on the verdict form for apportionment of liability.

Next, the appellate court addressed the award of parental consortium damages. By statute, Florida provides for loss of parental consortium for “acts of negligence occurring on or after” the statute’s effective date of October 1, 1988. The appellate court held that the negligent act was Guilder’s last known exposure to asbestos which occurred in 1982. Because those acts were before the effective date of the parental consortium statute, the appellate court found that the loss of consortium damage award was improper.

Finally, the appellate court addressed whether Honeywell was entitled to an set-off for $2,820,000 in settlements the plaintiffs received. The appellate court held that the trial court erred by failing to set-off the settlement proceeds from the verdict before entering final judgment.

The appellate court reversed the final judgment and remanded for a new trial.  Honeywell International, Inc. v. Guilder.

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Yesterday, the Texas Silica MDL Court granted a defendant’s no evidence summary judgment motion in a case in which the plaintiff alleged that pipes specified by the defendant to be sandblasted offsite and thereafter installed on its premises were either defective products or somehow an extension of the defendant’s premises over which it retained and exercised control. Plaintiff had sandblasted the pipes but had never actually worked at defendant’s facility. He was subsequently diagnosed with silicosis and “silica related lupus”.

Plaintiff claimed that the defendant’s specifications for a particular surface finish on the pipes, which plaintiff argued could only be achieved by using high silica containing flint or other abrasive, meant that the defendant exercised enough control over the manner of plaintiff’s work that it could be held liable for his injury. The defendant argued that there was no legal duty to the plaintiff and that there was no control that would give rise to Chapter 95 liability.

The Texas MDL court rejected plaintiff’s attempt to use premise liability theories to maintain product liability or negligence claims when there was no product created, manufactured or sold by the defendant and none of the acts allegedly responsible for his injuries occurred on the defendant’s premises. Plaintiff had admitted that there was no Texas case law to support his theory.
 

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Forty years ago Clarence Borel, dying of mesothelioma, filed his landmark claim against the leading manufacturers of asbestos products.  Borel prevailed at trial and when the defendants appealed his $75,000 judgment saying he couldn't prove which defendant was responsible the 5th Circuit open the floodgates of mass toxic tort litigation by holding:  

“[I]t is impossible …to determine with absolute certainty which particular exposure to asbestos dust resulted in injury...” “[E]ach exposure may result in an additional and separate injury…. therefore … the jury could find that each defendant was the cause in fact of some injury…”

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Hurricane Katrina came and went but the landowners class action claims for damages caused by oil companies' greenhouse gases are still standing. On October 16, 2009, the Fifth Circuit Court of Appeals in Comer v. Murphy Oil held that plaintiff landowners had standing to assert causes of action for negligence, private and public nuisance, and trespass against oil companies for their release of greenhouse gases, which caused rising sea levels and increased the ferocity of Hurricane Katrina. In reversing the district court's dismissal of the property damage claims, the court ruled that plaintiffs’ Mississippi tort common law claims met the state’s liberal standing requirements, but also the federal standing requirements because their alleged injury could be traced to defendants’ greenhouse gas contributions. The U.S. Supreme Court’s decision in Massachusetts v. EPA played a critical role in the court’s analysis of the standing issue. The court also held that these claims did not present nonjusticiable political questions. While the standing issue is the beginning and not the end of how much liability, if any, the oil companies have for damages resulting from greenhouse gases in this case. This decision may signal the beginning of the expansion of liability for damages directly, or indirectly, related to a person, company or industry’s contributions of greenhouse gases.

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The oral argument in Rosemary Smith, et al v. Kelly-Moore Paint Company that took place October 15, 2009 before the Second Court of Appeals can be heard here.  The plaintiff appellant is asking the appellate court to hold that Borg-Warner v. Flores does not apply in a mesothelioma case because, they claim, there is "no safe level" for exposure to asbestos and because even minute exposures have been declared to be causative.  Accordingly they ask that in mesothelioma cases plaintiffs be excused from having to demonstrate quantatively the dose given by any particular defendants' product, premise, etc.

We’ll let you know when Second Court of Appeals reaches its decision.
 

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In Merrill v. Leslie Control, Inc., a California appellate court reversed and set aside a verdict in favor of plaintiffs and held that a defendant “owed no duty to warn against dangers in products, used in association with or as replacement parts of its valves, which it did not manufacture or supply.”

Richard Merrill filed suit for his mesothelioma that was allegedly caused by exposed to asbestos during his service in the Navy. The jury found that Leslie Controls valves were defective because it failed to warn of potential risks, the valves were defectively designed, and Leslie Controls was negligent.

Merrill had worked on Leslie Control valves that were used on ships on which he served. The valves had asbestos-containing internal gaskets which Leslie Controls did not manufacture. Leslie Controls instructed purchasers of its valves to insulate around its valves but it did not provide insulation and its field engineers were aware that asbestos insulation was applied to and removed from its valves and were even present when it was done. Leslie Controls also provided manuals for their valves and was aware that packing would be removed or added during maintenance and the manuals contained no warning of the dangers of asbestos.

The appellate court found that there was no evidence that Leslie Controls manufactured or supplied any asbestos-containing internal packing and gaskets to which Merrill was exposed, it did not manufacture or supply gaskets attached to the exterior of its valves, and it did not supply or manufacture asbestos-containing insulation used around the valves. Thus the appellate court held that Leslie Controls was not liable in strict liability “for failing to warn of hazards associated with the handling of these products.”

The Court stated that a manufacturer’s duty to warn is limited to its own products. The court also rejected liability premised on the component parts doctrine because Merrill could not provide evidence he removed the old internal packing that had been supplied by Leslie Controls in the valves.

Continue Reading...

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In a decision significant for its discussion of Texas’ Chapter 95 premises liability scheme the 1st Court of Appeals today reversed a $4+ million judgment against Union Carbide and Hexion arising out of a mesothelioma case tried to verdict in Galveston and rendered a take nothing judgment in favor of both defendants.

Essentially the court held that there was no evidence of control sufficient to support a verdict against Union Carbide. Providing asbestos-containing gaskets to the plaintiff contractor was not control – especially as any asbestos exposure arose out of the manner in which he used them rather than any intrinsic property. Specifying asbestos-containing insulation be applied by other contractors was not control, employing other contractors who stirred up dust was not control and requiring and holding mandatory safety meetings for plaintiff’s supervisors was not control.

Interestingly however, on page 9 at footnote 7, the court spends considerable time discussing a jury question the plaintiff didn’t request that would have led to a jury considering whether a premises owner exercised control over some other contractor, such as an insulator, which in turn led to the plaintiff’s exposure. There’s clearly a hint here that the court doesn’t think the control inquiry is limited to whether premises owner exercised control over the manner in which plaintiff did his work but extends to whether the premises owner controlled the manner of the work of some other contractor who in turn injured the plaintiff. But the plaintiff didn’t ask for the question so too bad.

Regarding the claims against Hexion, the plaintiff’s employer, they appear not to have been the usual Article 16 Section 26 workers’ comp avoiding effort we typically see in Texas. Instead the plaintiffs appear to have latched on to the idea that Hexion was not actually the plaintiff’s employer during that period of time during which plaintiff worked for Hexion’s predecessor so that the comp act’s bar to common law claims against employers for on the job injuries wouldn’t apply. The court basically held that public policy argued for an expansive view of worker’s comp coverage. The plaintiff made a last ditch plea to have the court adopt the “dual persona” doctrine, which would have separated Hexion into with and without coverage entities. Noting that no Texas court has ever done so as a means for imposing liability on a covered employer otherwise immune to suit the court declined the invitation.

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Private lawsuits to advance changes being sought by the executive branch? Undoubtedly the plaintiff bar is saying "Yes we can!"

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Williams Kherkher has filed their brief in Bailess v. Kaiser Gysum Company, Inc., et al. on appeal from the MDL court's granting of a summary judgment against their mesothelioma client.  According to the brief at the hearing on the motion for summary judgment the court stated that its ruling would be determined as follows:

This motion is going to be decided straight up on what Borg-Warner says and what Borg-Warner requires... If Borg-Warner requires that the dose from each defendant be enough by itself to be the substantial contributing factor, the motion must be granted.  If Borg-Warner does not require that, then the motion must be denied...

Having granted summary judgment the MDL court apparently settled on the former rather than the latter intrepretation of Borg-Warner.  In my opinion the premise doesn't reflect the true meaning of Borg-Warner.

Texas case law has refined and melded concepts of causality and culpability into a coherent and flexible scheme for determining whether or not liability ought to be imposed for the adverse consequences (negative externalities) of our actions. Essentially, a substantial contributing factor is a "but for" cause resulting from a risk imposed that was more than de minimis. The word "substantial" in "substantial contributing factor" relates, I think, to risk since any candidate cause must we know from Ford v. Ledesma be a "but for" cause and thus no more or less important than any other "but for" cause since without it, or any other such cause, the plaintiff would not have been injured.

The Bailess ruling then appears to impose a requirement that any candidate cause must be shown by plaintiff to be a sufficient cause - in other words, a cause which in and of itself, and without resort to other causes, would have brought about the plaintiff's injury. If so, this change would mark a dramatic shift in our law since in toxic tort cases, as well as in just about any other non-intentional tort case, plaintiff has always been able to recover despite the fact that her injury would not have occurred but for the actions of each of two or more tortfeasors; tortfeasors whose actions were necessary causes but not sufficient causes.  For a good discussion of the difference between sufficient cause and component "but for" causes which collectively produced the injury, see:  www.defendingscience.org/upload/Rothman-Greenland.pdf

I don't think that's where Texas case law is heading.  The question raised by Borg-Warner in a mesothelioma case is not "was defendant's asbestos a cause and if so how big a cause was it" but rather "was the exposure (i.e. the risk) from defendant's product substantial"? In other words, was the risk imposed by defendant's conduct so substantial that it can justly form the basis for liability assuming that it can never be determined which fiber or groups of fibers actually caused the plaintiff's cancer?

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In Bennett et al. v. Reynolds, No. 08-0074, Tex. 2009.  (Opinion of Court of Appeals, 242 S.W.3d 866), a wonderful only-in-Texas cattle rustling claim, the Texas Supreme Court has granted  defendant's/appellant's petition for review.  While actual damages awarded were only $5,327.11  the punitive damages came to $1,250,000.00.  Among the four issues the court will consider, mass tort lawyers will be most interested in the first two:

1. Was the evidence of malice legally insufficient to warrant punitive damages when the cattle
raiser merely sold some cattle that were not his, but did not cause or threaten “death, grievous
physical injury, or financial ruin”?

2. Is the $1.25 million punitive damages award—which is 235 times the compensatory damages
awarded—within the limits allowed by constitutional due process?

Stay tuned as this case has been set for oral argument on December 15, 2009.

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If an analysis of the most recent list of Google Adsense's highest paying search terms as compiled by CyberWyre is any indication of what the future holds, and where the money is, then I'm guessing it has something to do with mesothelioma.  The top two highest paying search terms are "mesothelioma treatment options" at $69.10/click and "mesothelioma risk" at $66.46/click.

Of the top twenty-five highest paying search terms, eighteen contain the word mesothelioma.   A number of the most expensive search phrases related to mesothelioma also contain words like "treatment", "doctor", "prognosis", "chemotherapy" and "cure".  An unscientific sampling of the results of such searches appears to generate far more links to lawyers than to physicians.  Go figure.

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