Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)
Posts Tagged ‘Daubert’
Anthrax vaccination pseudoscience
Ninth Circuit gun decision
Eugene Volokh has extensive commentary in several posts on the recent Ninth Circuit 2-1 decision holding gun manufacturers potentially liable because a mentally ill bigot, Buford Furrow, went on a shooting rampage. (David Kravets, AP, Nov. 20) (via Bashman). Furrow is not one of the thirteen defendants.
Trivia not noted elsewhere: the two judges in the majority opinion, Richard Paez (see Kausfiles, Sep. 17) and Sidney Thomas, had some notoriety a couple of months ago when they were two thirds of a panel that made nationwide headlines by trying to enjoin the California recall election before an en banc panel of the Ninth Circuit overturned them in an 11-0 decision. Among the problems with this decision: it forces California standards upon defendants in other states in violation of the Commerce Clause; and, like the punchcard case, the judges impose a new judicially-created rule on their public-policy say-so without any thought as to real-world consequences, which Professor Volokh effectively elucidates. The lead attorney for the plaintiffs, Peter Nordberg (who is better known to readers of this site for his Blog 702, see July 5), is quoted by the AP as saying “I believe this is the first federal court of appeals decision to sustain a claim like this one.” Does it make me an old fogey already because I remember when calling a position “unprecedented” was an argument against its judicial adoption? (UPDATE: Peter Nordberg responds.)(& welcome Kausfiles readers)
UPDATE: As part of a lengthy criticism of the opinion, Clayton Cramer notes the absurdity of the following allegation: “Plaintiffs also allege that the defendants intentionally produced more firearms than the legitimate market demands with the intent of marketing their firearms to illegal purchasers who buy guns on the secondary market.” (Nov. 20) (via Volokh). That same logic of liability can, of course, be used to hit the manufacturers of any product that can be misused: alcohol, cigarettes, slot machines or casinos (the market of “legitimate gamblers” as opposed to addicts), prescription medications, sugar, SUVs, telephones. Congress is considering action to undo the decision. (Jason Hoppin, “9th Circuit Takes Aim at Gun Companies”, The Recorder, Nov. 21).
Expert batting averages
Daubert debate
Peter Nordberg and David Bernstein debate the study on Daubert discussed in this post. If I can take up Mr. Nordberg’s challenge to identify problems with the SKAPP report, I’ll just identify a handful that immediately came to mind as I read it. (This is long, so I’ve moved it off the main page. Click the link below.)
Daubert
It’s the tenth anniversary (plus four days) of the Daubert v. Merrill Dow Pharmaceuticals opinion that limited in federal trials the use of expert testimony that is not scientifically reliable. Peter Nordberg’s Daubert on the Web is one of the more comprehensive sites on the web on any subject; he has started a blog that promises to be fascinating.
Along with recent Supreme Court jurisprudence on punitive damages in cases such as BMW v. Gore and the expansion of interlocutory review of class action certification, Daubert has been one of the few brakes on the expansion of tort liability in the last ten years. As my former Brandeis colleague and GMU Law professor David Bernstein points out, however, Daubert did not stop the use of junk science to extract billions from breast implant manufacturers, and now some of that money is being used to fund efforts to weaken Daubert.