Mass Torts: State of the Art

Mass Torts: State of the Art

Category Archives: The Law

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What Is “Natural”? The FDA Thinks It Might Know.

Posted in Microbiology, Risk, The Law
By claiming on the label that their product is “natural”, manufacturers have helped themselves to 40 billion of consumer dollars each year, this claim being second most lucrative only to labeling products based on their fat content. While certain informative labeling serves a truly important function – helping consumers with celiac disease or with milk… Continue Reading

Robreno Tries to Tackle Sorites Paradox; Ford Fumbles Risk Factors

Posted in Causality, Epidemiology, Reason, Risk, The Law
Judge Robreno has done a heroic job of resolving the “elephantine mass” of asbestos litigation stuck in the federal system (MDL 875) but his attempt to resolve an ancient Greek paradox came up short. In a memorandum opinion (Mortimer v. A.O. Smith Corp., et al.) addressing Ford’s motions to exclude Plaintiff’s experts intent on opining that his renal cell cancer was caused… Continue Reading

Stacking Cans in Michigan

Posted in Reason, The Law
Streptococcus pneumoniae can cause middle ear infections. Middle ear infections can cause erysipelas (a bacterial skin infection). Streptococcus pneumoniae can cause erysipelas. Erysipelas can cause cellulitis. Cellulitis can cause bacteremia. Bacteremia can cause septicemia. Septicemia can cause pneumonia. That’s an quite a stack of cans when you’re trying to prove that a death from pneumonia was probably caused by a… Continue Reading

Robust Misinterpretation of Confidence Intervals by Courts

Posted in Reason, The Law
“How are courts doing when it comes to interpreting the statistical data that goes into their decision-making?” That was a question posed by someone in the audience at a presentation I gave recently. I was discussing, among other things related to the perils of litigating statistical inferences, the recent paper “Robust Misinterpretation of Confidence Intervals.”… Continue Reading

Texas: No More No No-Duty

Posted in Reason, The Law
Until last Friday an owner whose premises harbored some known or knowable danger could not avail itself of the argument that it had no duty either to warn invitees or to render its premises safe even when the danger was “open and obvious” and even when the invitee was aware it. The “no-duty” rule that had once meant “no money” for plaintiffs who slipped and fell in the very… Continue Reading

I Dreamed of Genie

Posted in The Law
A month has passed since the Texas Supreme Court delivered its opinion in Genie Industries, Inc. v. Matak. It’s the most thorough explication of Texas products liability jurisprudence that I’ve read in a good while. Nevertheless I struggled to come up with a blog post because I couldn’t quite be sure what to make of it. Did it really, as it seemed… Continue Reading

Dubious About Bringing Scientific Peer Review to Scientific Evidence

Posted in Reason, The Law
Bloomberg’s Toxics Law Reporter recently published a paper by Professor David L. Faigman titled “Bringing Scientific Peer Review to Scientific Evidence” that sets out an idea worth thinking about. Specifically, that the quality of scientific testimony presented to juries would be improved (and presumably the likelihood that justice is done would be increased) if the job of screening proposed testimony was shifted to, or at… Continue Reading


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