Fighting Junk Science
in the Courts:
A View from the Trenches
Richard Wilson
Mallinckrodt Research Professor
of Physics
Harvard University
What is the problem?
Example: “A Civil Action”
(Movie with John Travolta)
At high doses Trichloroethylene
gives cancer to mice
TCE won’t easily give cancer to rats
Not known to give cancer to people
A cluster of Leukemias in
Woburn, MA
Levels of Leukemia in water
exceed EPA (one in a million) standard
calculated risk: one in 100,000
“Obviously” blame TCE!
Why did TCE get there?
WR Grace MAY have released it.
Grace settled for about $3 million
Erin Brokovich
was a movie about
Pacific Gas and Electric
and their incompetence in
defending a scientifically
incorrect lawsuit
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 consultants
not academics
The Award was the Largest in
State History
$280,000,000?
How do we cope with this
random redistribution of wealth?
In a courtroom witnesses must
confine themselves to what they
actually saw: not hearsay
EXCEPT EXPERT WITNESSES!!
What is an expert?
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”
1980s
Congress 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
Amici represented by
Atlantic Legal Foundation:
Bloembergen, Costa, Herschbach,
Karle, Langer, Leontief, Lindzen,
Lipscomb, Louria, Little, Moghissi,
Mossman, Nolan, Penzias, Seitz,
Spilhaus, Trichopoulos, Wilson
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
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 increase
This reanalysis was done specifically
for the lawsuit
The Supreme Court agreed that
the Federal Rules of Evidence
replaced Frye
They suggested six criteria, none
by themselves either necessary or
sufficient
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?
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
According to the
US Supreme Court:
the proffered evidence did not
“rise above subjective belief or
unsupported speculation”.
the proffered testimony must be
not only relevant but
also reliable.
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
Kumho Tire:
A tyre blew out after 90,000
miles when it was bald.
An “expert” who said it was inferior
construction was not allowed to testify
The Texas court of appeals
argued that Daubert did not apply
because “engineering is an art
and not a science”!
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
COVALT
v.
SAN DIEGO GAS and ELECTRIC
Suit for Damage from exposure to
Electromagnetic Fields
at intensities of
10 milliGauss!
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
A 22
Plus
LEONARD HAMILTON, DIMITRI TRICHOPOULOS
and PATRICIA BUFFLER
COVALT
v.
SAN DIEGO GAS and ELECTRIC
The Epidemiological Evidence Does Not
Demonstrate a Causal Association Between
Electromagnetic Fields and Cancer
Attributes of a Statistical Association to
Consider
(Sir Austen Bradford Hill)
1. Strength
2.Consistency
3.Specificity
4. Temporality
5. Biological gradient
6. Plausibility
7. Coherence
8. Experiment
9. Analogy
COMMONWEALTH OF
MASSACHUSSETS
SUPREME JUDICIAL COURT
No. SJC 08226
IN THE MATTER OF
THERESA CANAVAN'S CASE
MULTIPLE CHEMICAL
SYNDROME
Any one of a number of
symptoms
caused by exposure to any one of
a number of chemicals
separately or together
Workmens’ Compensation Case
Wide Latitude
but
MULTIPLE CHEMICAL
SYNDROME
is an
unprovabale and unrefutable
disease!
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
ALF position
The discipline of causation in
clinical medicine is founded on
medical science and the scientific
principles are the
same as in other areas of science
We (ALF) claimed:
The Court of Appeals panel was
incorrect in interpreting the
Daubert principles
and the
parallel State principles
with respect to:
reliability of the proffered evidence
Probability of Causation
=
(Risk calculated from exposure to
the particular agent)
/
(Risk calculated from all causes)
derived from Bayes therem
ALAS!
We lost on this one.
I am unclear why.
(it has gone back to the circuit
court with crazy evidence
admitted)
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)
In KENNEDY
Chronic Lymphocytic Leukemia was caused by
a plutonium in a “fuel flea”?
(Fragment of uranium fuel)
brought home by her husband from San Onofre NPP
No evidence that he brought one back
Evidence of miniscule maximum exposure
(probability of Causation less than 1 in 100,000)
3 week trial
Appeal succeeded in 3 man panel
reversed by full appeal court
Why was the evidence accepted in the first place?
CONCLUSIONS
Scientists must sometimes step out of the
ivory tower
the Action is not:
in scientific conferences
nor in the newspapers
nor in the agencies
It is in the courts.
GO THERE!