Fighting Junk Science in the Courts: A View from the Trenches

1
Fighting Junk Science in the CourtsA View from
the Trenches

• Richard Wilson
• Mallinckrodt Research Professor
• of Physics
• Harvard University

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What is the problem?Example A Civil
Action(Movie with John Travolta)At high doses
Trichloroethylene gives cancer to miceTCE wont
easily give cancer to ratsNot known to give
cancer to people
3
A cluster of Leukemias in Woburn, MALevels of
Leukemia in water exceed EPA (one in a million)
standardcalculated risk one in 100,000
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Obviously blame TCE!Why did TCE get
there?WR Grace MAY have released it.Grace
settled for about 3 million
5
Erin Brokovichwas a movie about Pacific Gas and
Electric and their incompetence in defending a
scientifically incorrect lawsuit
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Power station cooling pipes cleaned with
chromate solution.Chromic Acid aerosols have
given lung cancer Small exposures to perhaps a
dozen homes. Exceeded conservative state
standards. Calculated risk is miniscule The
state was informed but people were not.The San
Francisco lawyer agreed to arbitration!!Experts
were industry consultantsnot academics
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The Award was the Largest in State
History280,000,000?How do we cope with this
random redistribution of wealth?
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In a courtroom witnesses must confine themselves
to what they actually saw not hearsay

• EXCEPT EXPERT WITNESSES!!
• What is an expert?

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About 1870 it became an issue in cases involving
science 1923 Frye Vs. United States

• 293F.1013,1014 (DC Circuit 1923)
• Expert opinion based upon scientific technique
  is admissable if it is generally accepted as a
  reliable technique in the scientific community

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1980sCongress enacted FEDERAL RULES OF EVIDENCE

• Did they supersede FRYE?What do they mean?
• The Supreme Court decided in DAUBERT (1992)
• About 90 Briefs of amicus curiae

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Amici represented by Atlantic Legal Foundation

• Bloembergen, Costa, Herschbach, Karle, Langer,
  Leontief, Lindzen, Lipscomb, Louria, Little,
  Moghissi, Mossman, Nolan, Penzias, Seitz,
  Spilhaus, Trichopoulos, Wilson

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Part of ALF presentation

• None of the rules proposed would have stopped
  Galileo saying what he wanted, because Galileo
  was not talking about a civil dispute
• Publication and peer review is useful and can
  create a rebuttable presumption

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Jason Daubert was born with a birth defect.His
parents blamed it on a drug

• BENDECTIN taken during pregnancy.No single
  (PUBLISHED) study showed an increase of birth
  defects.Several studies taken together showed a
  0.8 standard deviation increaseThis reanalysis
  was done specifically for the lawsuit

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The Supreme Court agreed that the Federal Rules
of Evidence replaced FryeThey suggested six
criteria, none by themselves either necessary or
sufficient
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Has the theory been tested or can it be tested?
In other words,is it falsifiable? Has the theory
been peer reviewed and published? What is the
known or potential risk of error? Has the theory
been generally accepted in the relevant
scientific community? Is the theory based on
facts or data of a type reasonably relied upon by
experts in the field? Does the testimony have
probative value that is greater than, or not
outweighed by, a danger of unfair prejudice,
confusion of issues, or misleading the jury?
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Joiner was an engineer who had worked with
transformer oil containing PCBs, and who alleged
that the PCBs were the cause of his small-cell
lung cancer.Only animal data and no exposure
evidence were proffered
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According to the US Supreme Courtthe proffered
evidence did not rise above subjective belief or
unsupported speculation. the proffered
testimony must be not only relevant but also
reliable.
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A lower court may on its own motion or on the
motion of any party appoint an expert to serve
on behalf of the court.Or hold a Daubert Hearing
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Kumho TireA tyre blew out after 90,000 miles
when it was bald. An expert who said it was
inferior construction was not allowed to
testifyThe Texas court of appeals argued that
Daubert did not apply because engineering is an
art and not a science!
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Stephen N. Bobo, Donald G. Carter, William
J. Coad, Ernest L. Daman, John D. Graham,
Nathan H. Hurt, A. Alan Moghissi, Francesco
Pompei, James R. Wallace and Richard Wilson
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COVALT v. SAN DIEGO GAS and ELECTRICSuit for
Damage from exposure to Electromagnetic Fieldsat
intensities of10 milliGauss!
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A 22
Amici for COVALT v. SAN DIEGO GAS and
ELECTRIC ROBERT K. ADAIR, NICOLAAS
BLOEMBERGEN DAVID BODANSKY, ALLAN CORMACK
WALTER GILBERT, SHELDON LEE GLASHOW DAVID
HAFEMEISTER, JAMES H. MERRITT JOHN E. MOULDER,
ROBERT L. PARK, ROBERT V. POUND, GLENN T.
SEABORG ROSALYN YALOW, and RICHARD
WILSON Plus LEONARD HAMILTON, DIMITRI
TRICHOPOULOS and PATRICIA BUFFLER
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COVALT v. SAN DIEGO GAS and ELECTRICThe
Epidemiological Evidence Does Not Demonstrate a
Causal Association Between Electromagnetic Fields
and Cancer
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Attributes of a Statistical Association to
Consider(Sir Austen Bradford Hill)1. Strength
2.Consistency

3.Specificity4. Temporality 5. Biological
gradient 6. Plausibility7. Coherence 8.
Experiment9. Analogy
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COMMONWEALTH OF MASSACHUSSETSSUPREME JUDICIAL
COURT No. SJC 08226IN THE MATTER OF
THERESA CANAVAN'S CASE
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MULTIPLE CHEMICAL SYNDROMEAny one of a number
of symptoms caused by exposure to any one of a
number of chemicalsseparately or together
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Workmens Compensation CaseWide
LatitudebutMULTIPLE CHEMICAL SYNDROMEis an
unprovabale and unrefutable disease!
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IN THE SUPREME COURT OF THE STATE OF OREGON

NANCY R. JENNINGS

Trial Court No. A 9405-03148

Plaintiff-Appellant
Respondent on Review
C.A. No. A92690


v. BAXTER
HEALTHCARE CORP. a Delaware corporation
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ALF positionThe discipline of causation in
clinical medicine is founded on medical science
and the scientific principles are thesame as in
other areas of science
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We (ALF) claimed The Court of Appeals panel was
incorrect in interpreting the Daubert
principles and theparallel State principles
with respect to reliability of the proffered
evidence
31
Probability of Causation (Risk calculated
from exposure to the particular agent) / (Risk
calculated from all causes)derived from Bayes
therem
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ALAS!We lost on this one. I am unclear
why.(it has gone back to the circuit court with
crazy evidence admitted)
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The decision of the Court in ASHLAND, written by
Circuit Judges Dennis and Fallon. Judge Davis
dissenting) was based on the proposition that
Clinical medicine is not a "hard science," that
its methodology is not that of "hard science,"
and that consequently the evidentiary standards
enunciated by the Supreme Court in Daubert v
Merrell Dow Pharmaceuticals are not applicable.
Yet Daubert was clinical medicine!(later Kumho
Tire dealt with the issue)
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In KENNEDYChronic Lymphocytic Leukemia was
caused by a plutonium in a fuel flea?
(Fragment of uranium fuel) brought home by her
husband from San Onofre NPPNo evidence that he
brought one backEvidence of miniscule maximum
exposure (probability of Causation less than 1
in 100,000)3 week trialAppeal succeeded in 3
man panelreversed by full appeal courtWhy was
the evidence accepted in the first place?
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CONCLUSIONSScientists must sometimes step out
of the ivory towerthe Action is not in
scientific conferences nor in the newspapersnor
in the agencies It is in the courts.GO THERE!