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 ratsNot 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 Brokovichwas 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 States293F.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”

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

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 increaseThis reanalysis was done specifically

for the lawsuit

The Supreme Court agreed that the Federal Rules of Evidence

replaced FryeThey 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 ELECTRICSuit for Damage from exposure to

Electromagnetic Fieldsat intensities of10 milliGauss!

A 22

Amici for COVALT v. SAN DIEGO GAS and ELECTRIC

ROBERT K. ADAIR, NICOLAAS BLOEMBERGENDAVID BODANSKY, ALLAN CORMACK

WALTER GILBERT, SHELDON LEE GLASHOWDAVID HAFEMEISTER, JAMES H. MERRITT

JOHN E. MOULDER, ROBERT L. PARK,ROBERT V. POUND, GLENN T. SEABORG

ROSALYN YALOW, and RICHARD WILSON

PlusLEONARD 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. Plausibility7. Coherence

8. Experiment9. 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 chemicalsseparately or together

Workmens’ Compensation CaseWide Latitude

butMULTIPLE CHEMICAL

SYNDROMEis 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 theparallel 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 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 back

Evidence of miniscule maximum exposure (probability of Causation less than 1 in 100,000)

3 week trialAppeal 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!