tort, products liability, scientific evidence, and evidence law
Appellate advocates are limited to trial court records. The judgment winner may raise arguments, based upon those factual records, which would support the judgment, whether they raised or made the arguments below, and regardless whether the court below actually considered the arguments.[1] The judgment loser, on the other hand, is strictly confined to the arguments […]
Both in acetaminophen litigation and in performative political assertion, the Prada Review has loomed large. As noted in an earlier post, one of the authors of the Prada Review was Andrea Baccarelli, who was also a key witness for plaintiffs in the acetaminophen MDL. FDA Commissioner Makary quoted a causal conclusion from Baccarelli’s litigation report […]
Most medico-legal controversies over causation resolve in the pages of medical journals and within the walls of state and federal courthouses. The claim that pregnant women’s ingestion of acetaminophen causes their children to have an increased risk of autism, however, has become a flash point in American political drama.[1] After the district court entered judgment […]
INTRODUCTION Two weeks ago, the Second Circuit reversed the summary judgment entered by Judge Denise Cote, in the acetaminophen autism litigation. Judge Cote had excluded the plaintiffs’ expert witnesses on causation, under Rule 702, in a lengthy, careful opinion that found numerous deviations from the standard of scientific care by the challenged witnesses.[1] Rule 702 […]
In 2010, almost 30 years after Ferebee was decided, the Solicitor General cited the case in an amicus brief before the Supreme Court case, in Matrixx Iniatives, Inc. v. Siracusano. The case was a securities fraud class action, which was dismissed initially by the trial court on consideration of the defendant’s motion that the complaint […]
The infamous Ferebee decision is certainly a contender to be a Dred Scott decision involving scientific evidence,[1] by declaring that science has no validity issues that the law is bound to respect.[2] The decision is often cited for its dictum, written with impressive rhetorical flourish, about how courts should not interfere with expert witness opinion testimony. The dictum, when […]
For those of us who litigate health effects claims, either as pursuers or defenders, the pathology of science is often as important and interesting as pristine methodology. Identifying the pathological epistemology (patho-epistemology) of our adversaries’ claims, in the facts and data relied upon, and the inferences drawn at every step in reasoning to a conclusion, […]
Over a decade ago, I wrote a post about the American Public Health Association (APHA) and its position papers opposing the Daubert regime of gatekeeping the validity of expert witness opinion testimony. I am updating the post, with some modifications, because the links to the APHA documents are broken. It appears that the APHA now keeps […]
Given the outsized role that IARC can sometimes take in litigation and regulation, lawyers and judges should pay some attention to, and give some critical thought about, how the Reference Manual on Scientific Evidence addresses IARC’s classifications and evaluations of putative carcinogens. The Reference Manual is published by the Federal Judicial Center and the National […]
The most recent edition of the Reference Manual on epidemiology distinguishes more carefully between Bayesian and frequentist approaches to statistical analyses than did its previous iterations. In past editions, the authors conflated confidence and credible intervals, an error that is studiously avoided in the text of the chapter on epidemiology, in the fourth edition.[1] The […]