April 27, 2008

More about a Key Source in that WaPo Story on BPA

In working up the post below about The Washington Post's story, "Studies on Chemicals in Plastics Questioned," we were struck by that quote from David Michaels:

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

That's a vague identifier that raises questions: a federal regulator in the Clinton administration. Wonder where? From his bio:

Nominated by President Clinton and confirmed by the US Senate, Dr. Michaels served as the Department of Energy's Assistant Secretary for Environment, Safety and Health from 1998 through January 2001. In this position, he had primary responsibility for protecting the health and safety of workers, the neighboring communities and the environment surrounding the nation's nuclear weapons facilities.

The Project on Scientific Knowledge and Public Policy's homepage is www.defendingscience.org. There's a recent paper on the studies of BPA by Sarah Vogel, entitled, "Battles Over Bisphenol A," which makes the basic argument accepted as the thesis in today's Post story.

For decades, industry trade associations and their lawyers staved off the regulation of unsafe products like tobacco, lead and asbestos by arguing that scientific uncertainty precluded government action. [41] Similarly, the plastics and chemical industries seek to deny, delay, and dismiss the low dose research on bisphenol A.

And there's also a study on diacetyl and "popcorn workers lung," another favorite target of the trial bar.

Wonder who's financing the Project on Scientific Knowledge and Public Policy, aka SKAPP? To its credit, the group explains:

Funding: Major support for SKAPP is provided by the Open Society Institute and the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation. The opinions expressed on the DefendingScience website are ours alone. We do not provide our funders advance notice or the opportunity to review or approve the content of this site or any documents produced by the project.

A major point raised in the Post's story is that the chemical industry finances studies, a notable if not objectionable conflict of interest. And when a left-wing billionaire and trial lawyers finance counterstudies, that doesn't warrant a mention?

April 9, 2008

Recent opinion roundup

• Third Circuit affirms preemption in split decision in Colacicco v. Apotex Inc.. [Beck/Herrmann; Legal Intelligencer/law.com via TortsProf; Pharmalot; earlier: Dec. 2007]
• More on McLaughlin v. American Tobacco Co. (Apr. 3) decision. [Scheuerman; Sebok @ FindLaw; NYLJ/law.com; Class Action Defense blog; NY Times; NY Sun]
• Seventh Circuit affirms dismissal of scheme liability allegation. [Pugh v. Tribune Co. via Roberts]
• L.R. writes us: "In Egelhof v. Szulik, 2008 WL 352668 (N.C. Super. Feb. 4, 2008) a NC state court banned Robbins Umeda & Fink (one of the leading plaintiffs firms for derivative suits - Robbins is the brother of the Robbins at Coughlin Stoia) from appearing in NC courts for five years because of their mishandling of a derivative case against Red Hat. Notably, they put up a plaintiff with whom they had had virtually no contact and who was obviously unsuited to bring the case." [Triangle Business Journal]
• Split decision in Tenth Circuit: okay to sue expert for testimony that hurts your case. (The expert changed his mind at a deposition after opposing counsel showed him evidence that the propounding attorney chose to conceal from the expert in soliciting his opinion.) Dissent from recently appointed Judge Gorsuch correctly bemoans effect on truth-seeking function of judicial system. [Pace v. Swerdlow; Overlawyered roundup of links]
• Aside from the Scruggs disqualification, two Katrina decisions, both of them good for the rule of law and contract: Sher v. Lafayette Insurance Co. (La.) reverses court decision declaring flood exclusion ambiguous; Fifth Circuit reverses JMOL and vacates punitive damages in Broussard v. State Farm (see earlier discussion Jan. 2007). (Updated to add: the whole point of this bullet point was to highlight the continued excellent blogging of David Rossmiller, and I somehow failed to do so. Apologies.)
• Perhaps less good for the Rule of Law: SCOTUS rules that Federal Arbitration Act is not sufficiently flexible to permit parties to voluntarily contract for additional judicial review of arbitral decisions. Why the arbitration industry thought this would be a good result is beyond me: the point of arbitration is to permit parties to contractually select rules of decision outside of the default rules, not to create a second inflexible default. [Hall Street Assoc. LLC v. Mattel, Inc.; Sarah Cole on other problems] However, the National Arbitration Forum suggests that a recent Judge Posner opinion, Edstrom Industries, Inc. v. Companion Life Insurance Co., 516 F.3d 546, 550 (7th Cir. 2008), shows that the Hall Street ruling is narrow, because parties have other mechanisms to contract around the limited judicial review to ensure review of legal decisionmaking.

March 15, 2008

Georgia high court upholds expert witness rules

Per Sheila Scheuerman at TortsProf, the "Georgia Supreme Court on Monday upheld the expert witness section (Section 7) of Georgia's 2005 tort reform law." The constitutional attack on the law had focused on its holding of expert evidence in civil litigation to a more demanding standard than that in criminal proceedings. If the real point were to address the disadvantage such an anomaly might pose to criminal defendants -- as opposed to just reaching for a convenient argument in hopes of derailing the civil reform law -- wouldn't the better course would have been to challenge the criminal-side admissibility rules as unconstitutionally lax?

March 14, 2008

Plaintiffs' requests for expert evidence exclusion, cont'd

The other day Ted instanced one example of how rigorous standards for admission of expert evidence often help plaintiffs, who are given a better shot at fighting studies proffered by the defense that they see as dubious. Here's another instance, this time from New Jersey, in which plaintiffs in a low-speed auto collision sought to exclude the defense's introduction of studies finding no chronic health conditions to result from soft-tissue injury in controlled accidents. In this case an appeals court ordered the tests thrown out as lacking in scientific reliability, but the New Jersey Supreme Court reversed, ruling that it was not an abuse of discretion for the trial judge to have admitted them in a case which eventuated in a low jury verdict.

March 6, 2008

AP: "Carpal tunnel cases are plummeting"

The AP reports that since the 1990s, the height of concern over the issue, "carpal tunnel cases have plummeted, declining 21 percent in 2006 alone, according to the Bureau of Labor Statistics. Among workers in professional and business services, the number of carpal tunnel syndrome cases fell by half between 2005 and 2006." Researchers are concluding that while repetitive stress injury, to use another catch-phrase, is indeed a serious job hazard for some workers who engage in physically demanding tasks like meat-cutting, mattress-flipping, and so forth, it was greatly overdiagnosed or misdiagnosed as a malady afflicting computer keyboard users. (Ergonomic improvements such as wrist rests for mouse pads have undoubtedly helped, but are unlikely to explain the whole drop, especially since time devoted to keyboarding among the population seems to be rising steadily.) "A 2001 study by the Mayo Clinic found heavy computer users (up to seven hours a day) had the same rate of carpal tunnel as the general population. Harvard University headlined a 2005 press release 'Computer use deleted as carpal tunnel syndrome cause.'"

The AP account is worth reading in full, but it entirely omits one of the explanatory variables that might be salient. At one point, RSI-carpal tunnel-cumulative trauma was seen as one of the more promising product liability mass torts, with lawyers around the country filing thousands of claims; the favored targets were deep-pocket equipment makers such as IBM and Apple. The suits gathered steam and moved forward for several years but suffered a crushing setback when a federal appeals court in 1993 reversed an order consolidating many such cases (In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d Cir. 1993)). When pursued individually most of the cases fared poorly, and the prospect of a "bet your company" mass verdict was no longer there to serve as leverage to get defendants to the settlement table. The result was a rout for plaintiffs and an unusually thorough win for defendants: RSI-carpal tunnel litigation has subsided and is no longer seen as a threat to the financial health of computer makers, and most lawyers have given up on it.

But what if the Second Circuit had acted differently in 1993 and allowed the mass cases to move forward as a consolidation? What if rather than risk a "bet your company" trial, defendants had one by one begun signing up for a settlement fund to compensate sufferers? What if -- after the lawyers and experts took their billions -- billions were left over for persons who could produce a doctor's note attesting that after they used computers their joints ached in certain ways? Is there really any doubt that the number of newly reported cases would today be far higher, and perhaps would not have declined at all? Is there any doubt that a large body of opinion would now angrily reject the reassuring Mayo and Harvard findings, on the grounds that -- to quote a phrase heard in both the silicone-implant and autism-vaccine episodes -- "We are the evidence."

Some, of course, will draw from all this the conclusion that carpal tunnel is just as real and frequent an ailment as ever but is now being seriously underdiagnosed because workers are ever more discouraged from even so much as reporting it, knowing there will be no remedy. Others will conclude that our legally driven compensation system is quite good at calling forth subjective or hard-to-disprove claims of injury, and that we owe the Second Circuit thanks for a narrow escape, not only from a gigantic and spurious episode of mass tort litigation, but indeed from a whole spurious public health epidemic that would otherwise be raging on to the present.

P.S. Welcome visitors from Carter Wood's NAM Shop Floor blog, here and here.

March 5, 2008

Expert evidence standards help plaintiffs, too

Tort reform is often accused of slanting the field against plaintiffs when, in fact, many reforms are facially neutral and simply improve the accuracy of the justice system—which should only concern plaintiffs to the extent they wish for the justice system to be inaccurate. While the organized plaintiffs' bar is fighting hard against Daubert-style standards that act as a gatekeeper for scientifically unsound evidence, others recognize that it could require defendants to meet sound science standards. The Wall Street Journal covers one set of cases involving the "Fake Bad Scale," a 43-question true-false exam that purports to measure the likelihood that a plaintiff claiming injury is malingering. A Florida judge ruled that the test failed to meet expert evidentiary standards and excluded its use in a trial over injuries stemming from a 2004 trucking accident. (The psychologist who created the test, Paul Lees-Haley, stands by its validity, and there does seem to be at least some peer-reviewed literature supporting him. Lees-Haley argues that plaintiffs fake injury far more often than one would think.)

January 7, 2008

Correction: Thomas Baldwin testimony

In my talk on the panel today, I mistakenly said that Judge Fallon of the MDL ruled that Dr. Thomas Baldwin could testify as to specific causation. Though Judge Fallon made the initial ruling permitting Baldwin to testify in contravention of Daubert, two weeks later, he later agreed with Merck that Baldwin's testimony as to specific causation violated Daubert and should be excluded.

I regret the error about the specific ruling on the specific expert. I stand by the larger point that Judge Fallon and the trial judges in the two Texas trials committed reversible error in permitting expert testimony in violation of Daubert and the Texas analogue to Daubert.

December 31, 2007

Maryland court rejects experts in thimerosal case

It's another setback for vaccines-cause-autism campaigners, as the court (applying Maryland's Frye-Reed standard, as opposed to Daubert) excludes a team of experts led by the controversial Dr. Mark Geier. Kathleen Seidel has details; see also AutismDiva @ Autism Speaks. Earlier here, here, etc.

P.S. Oh, well, at least the campaigners still have Donald Trump and the Huffington Post on their side.

November 28, 2007

"I think my daughter’s high school science fair projects are more scientific than this....”

Daubert strikes again, as a Texas federal judge throws out a test video relied on by the plaintiffs' expert in a case against Ford. Of the video, produced by an accident reconstructionist and styled as a "sanity test" of rear sensors intended to prevent collisions with children while backing up, the judge commented (PDF, via Hutchinson): “It wasn’t at all the quality experiment that I would expect” and “to say I wasn’t impressed is an understatement”; it “is, in my estimate, an embarrassment to the scientific community.” A Fifth Circuit panel has upheld the exclusion.

November 25, 2007

Florida Supreme Court Welcomes Junk Science

In Marsh v. Valyou, the Florida Supreme Court (1)reiterated that Florida follows the Frye general acceptance test; (2) held that Frye doesn't apply to a medical expert's "opinion" testimony regarding causation; (3) held that even if Frye did apply, it should be applied only to the issue of whether the technique of "differential diagnosis" is generally accepted in the medical community, regardless of whether the technique was used in a generally accepted way; and (4) implicitly rejected the notion that Florida Rule of Evidence 702, modeled on the federal rule that led to the Daubert Supreme Court opinion, provides a "backup" reliability test for causation testimony.

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