Archive | Junk Science and Quackspertise

Nathan Schachtman on the Elite Defense Bar and Expert Evidence

Posted with permission from the SchachtmanLaw blog.

A couple of months ago, Professor David Bernstein posted to the Volokh Conspiracy, a short piece about some of the missteps and mistakes committed by “elite defense counsel” in litigating expert witness issues. Professor Bernstein makes some interesting points about questionable positions taken by “elite defense counsel” (read: “highly paid, large firm lawyers”). For instance, according to Bernstein:
1. elite defense lawyers missed the boat early on by arguing that statistical evidence (observational epidemiology) was inadmissible or insufficient to prove general or specific causation;
2. defense counsel missed the significance of the Supreme Court’s opinion in Daubert;
3. defense counsel continued to press for Frye rule in state courts, although the Frye rule had been shown inadequate and unavailing as a rule to control medical causation opinions; and
4. defense bar has grown soft on Rule 702.

Although the charges seem at points overstated, Bernstein has presented an important indictment of the defense bar. At the very least, the charges deserve a full exploration by a wider audience. Defense lawyers who are self-critical about their practice should certainly be concerned that someone as persistently pro-702 has taken aim at them.
On the first point, many of the early scientific causation battles were fought in tobacco litigation, in which defendants and their counsel were forced to deny and contest the obvious, the causal role for tobacco in carcinogenesis, at all costs. The tobacco defense bar, however, should not be confused with the defense bar, generally. Defense lawyers in Bendectin, silicone, and asbestos cases developed arguments against specious use of epidemiologic evidence, as well as sophisticated, affirmative use of epidemiologic evidence to show lack of association. Even so, we should keep in mind that it often requires a large body of epidemiologic evidence

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What Julia Ioffe Has Against Jenny McCarthy

Julia Ioffe writes on having pertussis, aka “whooping cough,” in The New Republic:

At this writing, I have been coughing for 72 days. Not on and off coughing, but continuously, every day and every night, for two and a half months. And not just coughing, but whooping: doubled over, body clenched, sucking violently for air, my face reddening and my eyes watering. Sometimes, I cough so hard, I vomit. Other times, I pee myself. Both of these symptoms have become blessedly less frequent, and I have yet to break a rib coughing—also a common side effect. Nor do I still have the fatigue that felled me, often, at my desk and made me sleep for 16 hours a night on the weekends. Now I rarely choke on things like water, though it turns out laughing, which I do a lot of, is an easy trigger for a violent, paralyzing cough that doctors refer to not as a cough, but a paroxysm.

She’s upset, and angry — angry at celebrities and others who have stoked unfounded fears of vaccination, encouraging families to forego vaccination resulting in a loss of herd immunity in parts of the United States.

Led by discredited doctors and, incredibly, a former Playmate, the movement has frightened new parents with claptrap about autism, Alzheimer’s, aluminum, and formaldehyde. The movement that was once a fringe freak show has become a menace, with foot soldiers whose main weapon is their self-righteousness. For them, vaccinating their children is merely a consumer choice, like joining an organic food co-op or sending their kids to a Montessori school or drinking coconut water.

The problem is that it is not an individual choice; it is a choice that acutely affects the rest of us. Vaccinations work by creating something called herd

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The Elite Defense Bar and Expert Evidence

I was recently discussing with someone the record of the elite defense bar with regard to the law of expert testimony, and it’s not a happy history. Elite defense lawyers have often steered their clients in the wrong direction, to wit:

(1) In the early 1980s, when toxic tort cases were just beginning, defense lawyers argued (publicly and not just in court in specific cases) that statistical evidence of causation should not be admitted. They, like many others, seem to have been taken in by the late 1970s/early 1980s hysteria over toxic waste dumps and the like. As it turns out, only rarely have plaintiffs been able to present sound statistical evidence of causation. Fortunately, courts mostly held that statistical evidence is admissible to prove causation [and indeed many courts have held that it’s the most important evidence a party can provide, and some courts have held it’s necessary], which means it’s also admissible to prove lack of causation. This has saved defendants in many instances, including the Bendectin and breast implant litigation, where speculative plaintiffs’ evidence was ultimately ruled inadmissible thanks to contrary statistical data. Defense epidemiological evidence was especially important before and just after Daubert, when many courts held that speculative plaintiffs’ evidence is admissible unless the defendants have sound rebuttal evidence, usually in the form of negative epidemiological studies. (A couple of recent federal courts have continued to apply this standard, even though it lacks any basis in the current version of Federal Rule of Evidence 702).

(2) When the Supreme Court was deciding Daubert, many amicus defense briefs argued for retention of the Frye general acceptance standard. Fortunately, the main attorneys for Merrell Dow understood that (a) Frye was never the strict, demanding test that some lawyers came to believe it was–indeed, it was [...]

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Adversarial Bias Among Forensic Psychologists

In my recent academic work on expert testimony, I’ve emphasized the problem of “adversarial bias,” bias that arises because experts are chosen (and paid) by a partisan party to the litigation. Adversarial bias could involve a “hired gun,” an individual who unconsciously biases his testimony to be a good member of the team, or an outlier chosen because his fringe views happen to coincide with the needs of a litigant.

Here’s the abstract of an interesting study of adversarial bias that seems to primarily involve unconscious bias, though it’s possible that some of experts in question are trying to play the role of hired gun:

How objective are forensic experts when they are retained by one of the opposing sides in an adversarial legal proceeding? Despite long-standing concerns from within the legal system, little is known about whether experts can provide opinions unbiased by the side that retained them. In this experiment, we paid 108 forensic psychologists and psychiatrists to review the same offender case files, but deceived some to believe that they were consulting for the defense and some to believe that they were consulting for the prosecution. Participants scored each offender on two commonly used, well-researched risk-assessment instruments. Those who believed they were working for the prosecution tended to assign higher risk scores to offenders, whereas those who believed they were working for the defense tended to assign lower risk scores to the same offenders; the effect sizes (d) ranged up to 0.85. The results provide strong evidence of an allegiance effect among some forensic experts in adversarial legal proceedings.

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Bendectin is Back

Thirty years after Merrell Dow Pharmaceuticals pulled the morning sickness drug Bendectin off the American market in response to a waive of junk science-inspired claims that it caused limb reduction birth defects, the product is returning to the market under a new name with a new manufacturer.  Contrary to what one might reasonably surmise from the linked report, the FDA never pulled Bendectin from the market; rather, no one was willing to market the drug given the litigation climate in the United States.  American women who wanted the drug, which still has no substitute, have had to either make a homemade concoction from its ingredients, as some doctors recommended, or get it from Canada.  This has meant, in practice, that few American women have used it.  The result has been much needless suffering, including a hospitalization rate for morning sickness double in the U.S. compared to Canada. Ironically, the absence of Bendectin may have even led to an increase in the rate of birth defects because some women with morning sickness are unable to keep food down and give their babies proper nutrition.  I discuss the Bendectin litigation and the negative health ramifications it caused in some detail in an article in the Michigan Law Review.

The only positive aspect of the Bendectin litigation is that the contrast between jury verdicts for plaintiffs and the overwhelming contrary scientific evidence was such that it led several federal courts to issue decisions radically (for the time) limiting plaintiffs” ability to proffer dubious causation evidence, which in turn led to the Supreme Court’s “Daubert Trilogy” and amended Federal Rule of Evidence 702.  By tightening the rules for the admissibility of expert testimony, these changes have made a recurrence of the tragedy of the Bendectin litigation unlikely.

In related news, I [...]

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Science, Political Ignorance, and Deference to “Authoritative” Experts

Economist David Friedman has an insightful post on the problems inherent in deferring to the views of “authoritative” scientific bodies:

A pattern I have observed in a variety of public controversies is the attempt to establish some sort of official scientific truth, as proclaimed by a suitable authority—a committee of the National Academy of Science, the Center for Disease Control, or the equivalent. It is, in my view, a mistake, one based on a fundamental misunderstanding of how science works. Truth is not established by an authoritative committee but by a decentralized process which (sometimes) results in everyone or almost everyone in the field agreeing.

Part of the problem with that approach is that, the more often it is followed, the less well it will work….

The first time it might work, although even then there is the risk that the committee established to give judgement will end up dominated not by the most expert but by the most partisan. But the more times the process is repeated, the greater the incentive of people who want their views to get authoritative support to get themselves or their friends positions of influence within the organization, to keep those they disapprove of out of such positions, and so to divert it from its original purpose to becoming a rubber stamp for their views. The result is to subvert both the organization and the scientific enterprise, especially if support by official truth becomes an important determinant of research funding.

I. The Dangers of Deference to Biased Experts.

Friedman makes two important points here. Scientific truth cannot be established by the endorsement of an authoritative body such as the NAS or the CDC. And if people start to take the pronouncements of such expert bodies as gospel, there is an obvious potential for abuse. [...]

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How Not to Label Biotech Foods

In November, Californians will vote on Proposition 37, a ballot initiative to impose a mandatory labeling requirement on all foods produced with or from genetically modified organisms (GMOs). For reasons I discuss in this New Atlantis article, this requirement is unnecessary, unwise and potentially unconstitutional.

The effort has been endorsed by numerous progressive organizations and the California Democratic Party. Of note, those who usually police the misuse or politicization of science have been strangely quiet about the misleading and inaccurate scientific claims made by Prop. 37 proponents. Although the proposition warns of “adverse health consequences” from genetic engineering of foods, there is not a single documented case of adverse health consequences due to the use of GMOs. Yet about traditional crop-breeding techniques, we can say no such thing. It’s no wonder that the National Academy of Sciences has issued numerous reports concluding that the use of modern genetic modification techniques, in themselves, have no bearing on the relative safety of a food product. What was done to a specific GMO matters more than whether specific modification techniques were used.

It is even misleading to single out crops and other organisms modified by modern genetic modification techniques as “genetically engineered. Many common crops are “genetically engineered” in that they are the result of direct human modification. Corn, for example, does not exist naturally. It was “engineered” by humans, albeit using less precise breeding methods centuries ago.

The organizers of the effort claim consumers have a “right to know” whether their foods contain GMOs. But nothing stops consumers from obtaining such information. Organic producers and others who wish to cater to those who dislike GMOs are free to label their products accordingly (and, in my view, should be able to do so without some of the excessive disclaimers urged by [...]

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Williams and the New Wigmore

Earlier this week, the Supreme Court issued a fractured opinion in Williams v. Illinois, a Confrontation Clause case. The bad news (for just about everyone) is that this opinion hopelessly muddles things. The good news (for me and my co-authors) is that four different Justices cited the treatise I co-authored with Penn State’s David Kaye and UCLA’s Jennifer Mnookin, The New Wigmore: Expert Evidence. The further bad news is that we agree with the dissent.

I use “we”, but authorship credit for the relevant section goes to Jennifer, and editing credit to David. In other words, I had nothing to do with it.

I am, however, hoping that Williams will get the treatise some attention. It can’t hurt that Justice Kagan called The New Wigmore “the principal modern treatise on evidence.”

I’d provide an Amazon link for the volume but there isn’t one for the second edition (marketing the volume beyond library sales has not been the publisher’s strength). It is, however, possible to buy the volume directly from the publisher.

There is a lot of neat and useful material in the volume, including, e.g., a uniquely detailed discussion of the admissibility of so-called learned treatises, a topic to which other treatises devote at best a few paragraphs. Also, unlike other evidence treatises that either focus on either federal law or specific state rules, we cover the evidence law across the U.S. As a result, we extensively discuss state rules such as the Frye general acceptance test for the admissibility of expert testimony, which remains the law in many populous states including California, New York, and Florida. [...]

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No Vaccines? You’re Fired!

When my younger daughter was getting some of her first vaccinations, I asked our pediatrician how he would feel if we refused to have her vaccinated. His reply: “I’d ask you to find another doctor.” This point of view appears to be spreading. As the WSJ reports there is an apparent increase in the number of doctors “firing” patients who refuse vaccinations.

Medical associations don’t recommend such patient bans, but the practice appears to be growing, according to vaccine researchers.

In a study of Connecticut pediatricians published last year, some 30% of 133 doctors said they had asked a family to leave their practice for vaccine refusal, and a recent survey of 909 Midwestern pediatricians found that 21% reported discharging families for the same reason.

By comparison, in 2001 and 2006 about 6% of physicians said they “routinely” stopped working with families due to parents’ continued vaccine refusal and 16% “sometimes” dismissed them, according to surveys conducted then by the American Academy of Pediatrics.

Vaccination rates have declined in recent years, largely due to completely unfounded fears that vaccines cause autism or other problems. Non-immunized children aren’t the only ones at risk when vaccines are refused. Lower vaccination rates make disease outbreaks more likely as herd immunity is compromised. Many experts suspect recent outbreaks of measles and whooping cough are the result of declines in vaccination. Perhaps if more doctors insist on vaccinations as a condition for care, more parents will get the message. [...]

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Brilliant Man, Dumb Choice


In his last years, Steven P. Jobs veered from exotic diets to cutting-edge treatments as he fought the cancer that ultimately took his life, according to a new biography to be published on Monday. His early decision to put off surgery and rely instead on fruit juices, acupuncture, herbal remedies and other treatments — some of which he found on the Internet — infuriated and distressed his family, friends and physicians, the book says.

Really? A man on the cutting edge of technology like Jobs eschewed scientifically proven treatments (at least initially) for new age nonsense? How disappointing, and sad for him and his family. [...]

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Bachmann Embraces Irresponsible Anti-Vaccine Views

Going on the offensive against Texas Governor Rick Perry for issuing an executive mandate that young girls receive a vaccine against HPV, Rep. Michele Bachman embraced the fringe (and thoroughly discredited) claim that vaccination can cause mental retardation.  Details here and here.  It is understandable that a parent whose child experiences difficulties will be distraught and search for answers, but to give credence to the claim that vaccination causes mental retardation, autism, or other disabilities is thoroughly irresponsible.  It is one thing to debate whether a state government should mandate that children are vaccinated against something like HPV, and whether a voluntary opt-out provision is protective enough of parental prerogatives.  It is quite another to suggest that mandated vaccination creates serious health risks when there is no evidence to support such a claim.

For what it’s worth, I criticized Senator John McCain for a similar offense in 2008.

UPDATE: Henry Miller reports some additional things Rep. Bachmann should know about the HPV vaccine.  Even if Gov. Perry was wrong to order the vaccinations, there’s absolutely no basis for suggesting the vaccine is a threat to children. [...]

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Brian Leiter on Freud Again

I foolishly managed to once again entangle myself in a debate with Brian Leiter. There is at least one good reason not to try to engage in a reasoned blog debate with Leiter, which is that he doesn’t believe in it:

I am sometimes presented with the following criticism: “Your rhetorical style won’t persuade anyone who doesn’t already agree with you.” That is no doubt true, but, as we’ve just remarked, it is quite rare to persuade anyone by a careful, reasoned argument–indeed, so rare, that I don’t see it as worth the effort to try to do so on a blog….

Nevertheless, since I started it, I suppose I should respond. (And at least I got a laugh out of being called an ideologue by the to-the-left-of-Noam-Chomsky Brian Leiter.)

The issue at controversy is my original claim in a brief comment to this blog post on the pseudo-scientific nature of Marxism, that Freud’s “work (or at least the vast majority of it) can’t stand up to the scientific method,” to which Leiter responded that my claim is “wholly false.”

It’s rather well-established that Freud’s work generally didn’t follow the scientific method, e.g., Freud did not reach his conclusions via testing, replication, and other indicia of scientific inquiry. Moreover, Freud’s followers for decades argued that his work shouldn’t be subject to empirical testing. One could argue that Freud’s theories were still better than ones preceded it (though my understanding is that the triumph of Freudian theory extinguished some other promising lines of research), but the hostility of Freudians to scientific methodologies then retarded further progress in psychiatry for decades.

Leiter instead argues that some of Freud’s “theory of the mind” has recently been empirically validated by OTHERS who did use the scientific method. If all Leiter is arguing that [...]

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District Judge: I Don’t Trust Psychologists, Who Are “All Over the Board” — But My Guess About Genetics “Fifty Years From Now” Is Rock-Hard Science

OK, that’s a bit of an exaggeration of what the district judge said, but not much. Prof. Nita Farahany (Law & Biosciences Digest) has the scoop, and a link to the decision (which came in late January). An excerpt from Prof. Farahany’s post:

The Defendant in this case, convicted of possession of child pornography, was given an “unreasonable” sentence based on the judge’s invented genetic theory that the defendant’s incorrigible genes made him act the way he did, and that there was nothing he could do about it…. [The Second Circuit] took the extraordinary measure of vacating the sentence and remanding the case to a different judge.

Note that the Second Circuit expressly said that the judge didn’t have to trust psychologists if he didn’t want to, and could look at the evidence that this defendant was indeed likely to repeat his offenses (there was some in the record). Nor did the Circuit hold that real evidence of a defendant’s genetic predisposition couldn’t be used (an interesting question on which I don’t think there’s a settled answer). But the court rightly said that speculation about what genetics will find 50 years from now can’t be part of the decision. [...]

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