Mass Torts: State of the Art

Mass Torts: State of the Art

Category Archives: The Law

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

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

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

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

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

Yet Another Opinion in Which a Court Mistakes Hypothesis for Theory

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

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

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

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

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

Bostic Oral Argument: Plaintiffs Play A Clever Tune

Posted in Causality, The Law
Notwithstanding the briefs of Georgia-Pacific and numerous amici, appellant Bostic, appellee Georgia-Pacific and (seemingly) most of the justices appeared by the end of oral argument on Monday to reach at least partial agreement on the big issue. Specifically, that somehow or another it ought not be the law when multiple defendants create conditions each independently… Continue Reading

Alas, The Maryland Court of Appeals Has Reversed Ford v. Dixon

Posted in The Law
Sound science and, more importantly, sound reasoning about science have slowly been making their way into appellate decisions for two decades now, but last year’s Ford v. Dixon was something special. We called it the best causation opinion of 2012 and without saying so thought it a Palsgraf for this age of Big Data. Acknowledging the data available for estimating a… Continue Reading

Foreseeably Pointless

Posted in The Law
Georgia Pacific v. Farrar went up to the Maryland Court of Appeals on two issues. The first was whether in 1968 Georgia Pacific owed a duty to the granddaughter of a mechanic whose clothes were contaminated at work with asbestos due to the mixing and sanding of its product by nearby drywall workers (she was… Continue Reading

Lawyers Have Learned To Distort Pharmacovigilance Signals

Posted in Causality, Epidemiology, The Law
The goal of pharmacovigilance is to detect the subtle signal of a causal effect otherwise buried amongst the noise of all the maladies which by coincidence alone happened to manifest after a drug was taken. The FDA Adverse Event Reporting System (FAERS) gathers reports of these adverse events and presents them in a database that can be analyzed for just such signals.… Continue Reading

But Generic Sulindac Isn’t Bag O’Glass

Posted in The Law
The U.S. Supreme Court decided Mutual Pharmaceutical Co. v. Bartlett  this morning and it was another win for manufacturers of generic pharmaceuticals – once again thanks to "impossiblity preemption". The case had been appealed from the First Circuit which had held that strict liability schemes like New Hampshire’s (where the case originated) are about compensation and not regulation. Accordingly a generic drug manufacturer who… Continue Reading

A Duty To Mine Big Data

Posted in Causality, Epidemiology, The Law
We had another jury trial and thus were offline for a few weeks but it didn’t take long to dig up something I hope you’ll find of interest. I ran across it in a recent opinion by the district court in the In Re Fosamax Product Liability Litigation. What is it? It’s a duty to actively mine… Continue Reading

Is It Liability All The Way Down?

Posted in The Law
Back to the Burks problem from the last post. Is there something wrong with shifting one element of plaintiff’s burden of proof (defendant-specific "but for" causation in the case of alternative liability) to the defendants when nature may well have been, but probably wasn’t, the cause of plaintiff’s injury? The trial court in Burks didn’t think so. After… Continue Reading

The Texas Supreme Court Has Decided To Hear Bostic

Posted in The Law
Here’s some good news. Though at first they decided not to hear plaintiff’s appeal, the Texas Supreme Court has reconsidered. Hopefully that means there’ll be an argument about the Dallas Court of Appeals’ interpretation of Borg-Warner v. Flores in its Bostic opinion wherein it held that every putative cause to which liability may legally attach must be a "but for" cause. The problem with Bostic,… Continue Reading

Sam Hammared

Posted in The Law
Yet another court has sent packing Dr. Sam Hammar and his "every exposure", "every breath" method of causal attribution in asbestos/mesothelioma cases. This time it was a USDC in Utah (Central Division) that ordered such testimony be excluded; essentially by adopting the late Popperian view that "an untested and potentially untestable hypothesis" isn’t the same thing as the "scientific knowledge" required by… Continue Reading

Virginia Adopts the Davidson Rule (Hopefully)

Posted in The Law
Virginia’s highest court is the latest  to wrestle with causation in asbestos/mesothelioma cases. Ultimately reversing a judgment in favor of Plaintiff and remanding the case for a new trial, the court in Ford v. Boomer decided that the substantial factor (or here, substantial contribution) test is unreliable and in any event inconsistent with Virginia law. The court embraced the… Continue Reading

Mass Torts Made A Surprise Appearance In The MOOC I’m Taking

Posted in The Law
The MOOC (massive open online course) is PH207x: Health in Numbers: Quantitative Methods in Clinical and Public Health Research and it’s fabulous. The lectures are concise (they’re often called "chunks") and for the most part do a fine job, step by step, of explaining the statistical tools for testing hypotheses and making inferences from data collected in public health research. The… Continue Reading

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

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

Bostic Asks For A Rehearing And “But For” Causation Takes Center Stage

Posted in The Law
Kudos (despite their being a longtime and bitter foe) to Baron & Budd for doing a masterful job of demonstrating the flawed thinking behind, and absurd results implied by, Georgia-Pacific v. Bostic. As you know, the Texas Supreme Court recently denied Bostic’s Petition for Review. Now Bostic has filed a Motion for Rehearing and this time has narrowed her focus to the… Continue Reading

The Court Of Appeals of New Mexico Came Thiiiiiiiiis Close To Reconciling Palsgraf With The Restatement (Third) Of Torts

Posted in The Law
Rodriguez v. Del Sol Shopping Center Associates presented New Mexico’s appellate court with the sort of facts that makes judging hard. A mother, her young child and a health clinic receptionist were killed when a pickup truck crashed through the clinic’s glass wall and into its reception area. The truck had been known by its driver to have a bad throttle… Continue Reading

Breaking Bread

Posted in The Law
Will the plaintiffs’ bar be able to break “Big Food”? Will added sugar be “the tobacco of the 21st century”? Is it true that “we make our food very similar to cocaine now”?  Has food overtaken smoking as the biggest preventable cause of morbidity and mortality in America? Science supporting such claims is woefully lacking and what little there… Continue Reading

Whither The Fungal Meningitis Litigation?

Posted in The Law
We were interviewed a few days ago for an article published in Business Insurance News and asked for our thoughts about the future course of the fungal meningitis litigation. What follows is an elaboration on our published comments. With the death toll at 28, and with 377 confirmed cases of meningitis (plus nine other cases of peripheral joint infection) among those who received… Continue Reading