John Edwards & "Junk Science"

[BPSCG]

Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Wrong end of the stick. I will not assume Ms. Coulter is accurate until proven otherwise. I assume her inaccuracy until someone else can provide independent support.

Basically, I don't believe she does a good job of fact-checking. It would certainly be sufficient for her to have her facts right, but it would also be surprising.

So, she says doctor error as a major cause of CP has been debunked.

You don't believe her.

She quotes a NY Times article to back her up. Of all the sources Ann Couleter would call on as an authority, you'd think the Times would be the last. Evidently, she believes even the Times gets it right now and then.

You still don't believe her.

Okay, you appear to have a pretty high standard of proof for an Ann Coulter claim. Just curious as to what it might be. I mean, it's not like she's alleging she has a unicorn tied up in her back yard. Or do you believe that CP is often caused by medical malpractice?

 

[BPSCG]

Re: Re: Re: Re: Re: John Edwards & "Junk Science"

I take it, then, that your criticism is that Edwards was doing his own job instead of the trial judge's?

Doesn't the lawyer's job include going beyond simply deciding he thinks he can win? Doesn't he have any obligation to decide whether his client's case really has some merit?

Otherwise, what's to stop a lawyer from figuring, "Well, this case has no scientific merit, but I know a judge who's a real bonehead - he's into astrology and pyramids and all that garbage - and if Cochrane can find a jury that'll acquit O.J. I can find one that'll buy into my medical error song-and-dance"? This is getting into areas beyond the scope of this thread, FWIW.

 

[anonimouse]

Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

So, she says doctor error as a major cause of CP has been debunked.

It has now. I did some checking on PubMed and there was still a lot of pro/con argument about the subject in the early to mid-80's. The theory Edwards presented turned out to be wrong, but it wasn't junk science by the standards of the day. The judge certainly didn't think so - even before Daubert raised the bar significantly, there were certainly significant standards for scientific evidence.

The "what was accepted 20 years ago isn't accepted now" phenomenon is not uncommon in such cases - you can probably look at a number of different product liability lawsuits and medical malpractice lawsuits and see people found liable based on scientific evidence that was later proven to be false.

It's unfortunate to be sure, but you can't expect lawyers to be clairvoyant, not even John Edwards.

Okay, you appear to have a pretty high standard of proof for an Ann Coulter claim. Just curious as to what it might be. I mean, it's not like she's alleging she has a unicorn tied up in her back yard. Or do you believe that CP is often caused by medical malpractice?

We know NOW that the vast majority of CP has nothing to do with medical malpractice. At the time, it was a far more grey area.

In some ways, it's like the DTP hysteria of a couple of decades ago. (tying this back to vaccination, which is my only strong suit ) The legal and governmental reaction to claims of DTP causing widespread neurological damage were legitimate, appropriate reactions based on the available evidence at the time, even though many claims were later found to lack merit.

 

[anonimouse]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Double post. Yuck.

 

[BPSCG]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

It has now. I did some checking on PubMed and there was still a lot of pro/con argument about the subject in the early to mid-80's. The theory Edwards presented turned out to be wrong, but it wasn't junk science by the standards of the day.

Okay, then. As promised, he gets a pass (which I'm sure makes his day...).

 

[drkitten]

Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Doesn't the lawyer's job include going beyond simply deciding he thinks he can win? Doesn't he have any obligation to decide whether his client's case really has some merit?

He does, but that obligation does not extend to issues of subtle scientific interpretation. There's a difference between "this case has no merit whatsoever" and "this case hinges on a scientific theory that has been disputed." As a lawyer, Edwards isn't expected to be up to date on medical theory and practice, as that's what expert witnesses are for. There's simply no way that he could have won such cases without putting witnesses on the stand, and if the theory that he was presenting was utterly meritless, then the experts shouldn't (as in, wouldn't) have let him present it. After all, it's their professional reputations on the line as well, and they would have gotten hung out to dry during cross-examination, if the judge had let them testify at all.

Spinning it around, if the experts tell him
that the theory is valid, then yes, he has a duty as the client's advocate to present that theory. The lawyer isn't the medical expert, and a lawyer who overrules his experts is usually the one who loses.

In order for a nut-case theory to win at trial, at least three separate things have to happen that are beyond the lawyer's control:

• First, the judge has to agree that the expert's opinions are of sufficient scientific merit as to be admissible at all, as otherwise the theory will never be presented to the jury.
• Second, the expert witness has to be able to make a believable and understandable case, in the teeth both of the opposing counsel and expert witnesses, who can be expected to refute every possible point. A simple question like "are you familiar with any published journal articles that would argue against your theory, Doctor?" followed by "Are you familiar with this list of 200 journal articles, written by over 500 respected doctors, that argue against your point?" would be devastating --- and easily prepared by the defense expert if the theory is as uncontroversial as you make it.
• Third, the jury has to believe the "bad guy's" expert(s) and not the "good guy's," which is unlikely if the opposing counsel is any good and the available evidence is that one-sided.

And then, finally, the judgement will almost certainly have to survive appeal, which will against almost certainly include an examination of the first point above.

What more do you want the lawyer to do? Are you really saying that a lawyer should put his personal judgement in an area outside of his expertise ahead of what the people whose job it is to make these calls say?

 

[anonimouse]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Originally posted by drkitten
He does, but that obligation does not extend to issues of subtle scientific interpretation. There's a difference between "this case has no merit whatsoever" and "this case hinges on a scientific theory that has been disputed." As a lawyer, Edwards isn't expected to be up to date on medical theory and practice, as that's what expert witnesses are for. There's simply no way that he could have won such cases without putting witnesses on the stand, and if the theory that he was presenting was utterly meritless, then the experts shouldn't (as in, wouldn't) have let him present it. After all, it's their professional reputations on the line as well, and they would have gotten hung out to dry during cross-examination, if the judge had let them testify at all.

Actually, the Daubert decision changes that way of thinking, as judges are instructed to follow more closely to accepted science and enlist the judgement of reputable organizations to determine the validity of a scientific argument. That wasn't the case 20 years ago, although there was a standard judges were expected to use wrt scientific evidence.

Spinning it around, if the experts tell him
that the theory is valid, then yes, he has a duty as the client's advocate to present that theory. The lawyer isn't the medical expert, and a lawyer who overrules his experts is usually the one who loses.

I'm sure there are "medical experts" who will tell lawyers that vaccination is lethal and kills people. (See Wakfield, T.) The standard, even back then, was whether the scientific theory had to have a reasonable level of acceptance and the experts presented had the appropriate credentials.

 

[drkitten]

Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Originally posted by drkitten

I'm sure there are "medical experts" who will tell lawyers that vaccination is lethal and kills people. (See Wakfield, T.) The standard, even back then, was whether the scientific theory had to have a reasonable level of acceptance and the experts presented had the appropriate credentials.

But you're missing the a central point. The _Daubert_ test (and the earlier _Frye_ test) establish a standard that scientific theories must meet in order to be presented as evidence in court.

But it's the judge's job, not the lawyer's, to hold the (in this case) Frye hearing and to make the decision about whether a particular set of theories makes that standard. Unless the Frye case is obviously unwinnable, the lawyer has a duty to present whatever evidence (or proto-evidence) might help his client.

Let me restate that. In the case of "questionable" scientific evidence, the lawyer, as part of his job as client's advocate, should attempt to present that evidence if there is any chance at all that the evidence will be accepted (and doesn't involve fraud, perjury, et cetera). To do otherwise is to fail his duty to represent the client to the best of his ability. It is specifically not his job to make the decision that the evidence "isn't good enough."

 

[Segnosaur]

Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

In the case of a vaccination issue, there's no way that a lawyer, or anyone else for that matter, could "know" that the argument is wrong. The lawyer may have his personal belief, but that's not the same thing as knowledge. He neither has the personal experience to present as a "fact," nor the medical expertise to present an "opinion" that vaccines don't harm children.

He simply doesn't know. The question of whether a child was harmed by a vaccine is a factual issue, and as such should be decided by a jury, and as such it becomes his duty to present the question to the jury in such a way that they can answer it.

Maybe lawyers are legally obliged to follow a different set of rules when it comes to deciding whether there is valid science in a complaint. However, I know that I, as a layperson, am more than capable of reading some of the literature on the subject.

If someone came to me and claimed that their kid was harmed by vaccine, or developed cerebral palsy as a result of doctor's activities, I could look up the latest information on the subects and decide whether something "wrong" was done. (I do realize that a small number of people do get harmed by vaccines, through no fault of the doctors involved, but I myself would probably feel comfortable enough saying "look, it was a bad reaction to a vaccine with happens in > 1% of cases".)

Do lawyers have to give up all ability to seek out independent scientific information and decide on the validity of the case based on what they find out?

Of course, the jury can also make an incorrect decision. But I find it rather odd to assume that a lawyer's snap decision about a question of scientific validity is presumed to be more likely to be correct than the deliberative decision of a jury that have been carefully presented all sides of a genuine controversy.

Well, I'd say a lawyer who makes it a point to keep abreast with scientific findings on a regular bases is more likely to make a correct decision (even if its a "snap" decision... after all, the "snap" decision could be based on days/weeks of research) is more likely to come to a correct decision than a jury member who's only exposure to a subject is just what's presented at trial. (And, lets face it, what's presented at trial could be a bit "warped".)

 

[drkitten]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Do lawyers have to give up all ability to seek out independent scientific information and decide on the validity of the case based on what they find out?

No. But an ethical lawyer has a much lower standard for "validity" than you do.

A "valid" case is not one that will be won. A "valid" case is one that could be won, for which there is a reasonable, supportable, and justifiable theory under which that side of the case can be demonstrated.

I find odd the idea that you, as a layman, can "read some of the literature" and instantly lay to rest controversies that are still being discussed and debated in this same literature by practicing specialists in the field. If there's absolutely no debate on the issue, if the theory is completely and utterly out-of-the-box wrong, then of course the case is unwinnable and should not be taken. If the case is taken, it will almost certainly be thrown out by the judge.

But, frankly, that level of certainty does not apply to active research areas, by definition. The very fact that it continues to be researched means that people, including practicing scientists and funding agencies, are still exploring the question. If you really think you know better than the National Science Foundation, I can put you in touch with the appropriate people so you can correct their errors. I'm sure they'll understand how three years of law school is a better background for biochemistry than seven years of graduate school in biochem.

 

[anonimouse]

Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Let me restate that. In the case of "questionable" scientific evidence, the lawyer, as part of his job as client's advocate, should attempt to present that evidence if there is any chance at all that the evidence will be accepted (and doesn't involve fraud, perjury, et cetera). To do otherwise is to fail his duty to represent the client to the best of his ability. It is specifically not his job to make the decision that the evidence "isn't good enough."

I don't dispute that. Edwards was doing his job as an advocate for his clients to the best of his ability, and it wasn't his responsibility to be an expert on cerebral palsy.

The original post had to do with a supposed link between Edwards and defending "junk science" - and my point still stands - not only was Edwards well within his rights to make that defense, the theory he presented was not considered "junk science" at the time.

If Edwards were to take on a class action lawsuit against drug companies claiming that children were being poisoned by vaccines and becoming autistic as a result - and then brought Harold Buttram and Tim Wakefield as his "expert witnesses" - I'd be far more inclined to think that Edwards was exploiting junk science for the sake of a dollar.

EDIT: And even then, he'd probably still be entitled to take the case and present his theory to a judge. He'd be laughed out of the courtroom most likely, but he'd still be allowed to do it.

 

[BPSCG]

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

The original post had to do with a supposed link between Edwards and defending "junk science" - and my point still stands - not only was Edwards well within his rights to make that defense, the theory he presented was not considered "junk science" at the time.

I find this troubling. My understanding is that since liability is not a criminal issue, the plaintiff doesn't have to prove his case beyond a reasonable doubt. All he has to do is "tip the balance" - persuade the jury that even if he hasn't completely made his case, it's more likely that his side is right than the defendant's. That may be fine on "Judge Judy", where the amounts involved are a couple of hundred dollars and the producers of the show actually pay the winner. But when you're talking about millions of dollars in damages being paid out by the doctor (or his insurance company), and you don't aren't even sure where the truth lies...

Then ten years later you find out that, whoops, it turns out that the plaintiff's claim is bogus.

But they get to keep the money, don't they?

I don't know what the solution is, but this just ain't right.

Edwards claims to have some medical tort reform ideas (and what I've heard makes some sense to me, at least on first blush). Anyone know what he's been doing to press them these last six years he's been in the Senate?

 

[Segnosaur]

Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

I find odd the idea that you, as a layman, can "read some of the literature" and instantly lay to rest controversies that are still being discussed and debated in this same literature by practicing specialists in the field. If there's absolutely no debate on the issue, if the theory is completely and utterly out-of-the-box wrong, then of course the case is unwinnable and should not be taken. If the case is taken, it will almost certainly be thrown out by the judge.

The question is, what do you consider "debate"? Probably more than 99% of scientists believe vaccines are safe, 99% now believe that cerebral palsy is not usually caused during the birth procedure, 99% of scientists believe in evolution, etc. Does the less than 1% of the scientific community who "disagrees" constitute a "debate" on the issue?

I'm not trying to say I'm "better than the experts". I'm also not talking about "cutting edge" science. I'm talking about long established scientific principles that a majority of experts have long decided upon. I can read long-established studies that say "no statistical link has been found between vaccines and autism", and if I see a lawyer arguing a case in court that a vaccine did cause autism, then it makes me question either the lawyer's ethics or his critical thinking skills.

And perhaps you have more faith in the legal system than I do that such bogus claims will be "thrown out" by the judge. However, there are cases where the legal system has failed. (And even if the case is "thrown out", there are still costs to the defendant.)

And I have a question.... if (in the past) people won settlements because scientists hadn't reached a conclusion (like the causes of cerebral palsy) but the courts decided for the plantifs, and then later on scientists end up deciding "no, cerebral palsy typically isn't caused during birth", then do the people who have won the settlements have to give the money back?

 

[anonimouse]

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

I find this troubling. My understanding is that since liability is not a criminal issue, the plaintiff doesn't have to prove his case beyond a reasonable doubt...

But when you're talking about millions of dollars in damages being paid out by the doctor (or his insurance company), and you don't aren't even sure where the truth lies...

Then ten years later you find out that, whoops, it turns out that the plaintiff's claim is bogus.

But they get to keep the money, don't they?

I don't know what the solution is, but this just ain't right.

It's a thorny issue, to be sure.

I don't think raising the standard for liability is the answer - you would see far too many legitimately liable entities walk away from lawsuits scot free. It would almost undoubtedly lower the standards for product safety and quality - like it or not, the fear of lawsuits is a big driver for that sort of thing.

The problem with science-based claims is that it's possible that a claim that appeared to be reasonably valid in 1985 turns out to be hogwash in 2005. That's certainly unfortunate in cases where innocent people and companies are unfairly villified. Look at how many years companies who produced silicon breast implants were crucified in the media, sued out the wazoo - and now we find out that those darn breast implants were safe after all.

As much as that sucks, though, I'm not sure the alternative is any better, and might be worse. Companies who made truly shoddy and inferior products would be more difficult to sue if the liability standards were significantly changed.

And while one could argue that plantiffs whose claims are found decades later found to be meritless should "give the money back", I'm not sure that ripping judgements is a humane thing to do. It might be the right thing to do in a purely technical sense, but is it really necessary to take money from people who have (in many cases) already suffered greatly?

 

[HopkinsMedStudent]

Just because it's been proven to be inaccurate 20 years later doesn't mean that he's got any culpability, just as you wouldn't complain that sports titles won 50 years ago are illegitimate because the rules were different then.

thats the whole point though. Edwards NEVER presented clear and compelling scientific evidence of anything.

This comes down to what burden of proof is required. Is the burden of proof on the plaintiff's experts to show that the science backs up their claim? Or is their burden of proof simply to show that there COULD BE a way for the injury to happen, and let the jury sort out the details? There is a huge difference in those thresholds.

Edwards used the latter approach. His trials were full of speculation about what happened. There was never any firm science backing up his view, but he was allowed to present his version as a "possibility" and let the jury decide if it had any merit or not.

 

[HopkinsMedStudent]

I think that's a key issue. "The judge believed the scientific evidence presented was reasonably credible."

Just because the judge believed it is irrelevant. They are just as incapable of judging science as a layperson jury is.

System should be changed so that the people in charge of deciding the extent/nature of true vs fraudulent claims have a basis in scientific judgment. Studying the law for 50 years does not give a judge some brilliant insight into how science works.

We should use special panels to evaluate claims of med malpractice. These people should have no financial incentive to be biased one way or the other (thats NOT the case in the current system). It should include people with both medical and legal training.

 

[HopkinsMedStudent]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

We know NOW that the vast majority of CP has nothing to do with medical malpractice. At the time, it was a far more grey area.

This is EXACTLY why the burden of proof should be raised. Instead of plaintiffs presenting "possible" theories in a sea of gray, they should be required to base their claims on scientific consensus.

After all, if the science cant decide whats going on to a reasonable degree of certainty, what business do lawyers have positing theories in such a myriad of uncertainty? Their threshold should require a higher burden than "its scientifically possible for this injury to occur."

 

[HopkinsMedStudent]

Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

[*]Third, the jury has to believe the "bad guy's" expert(s) and not the "good guy's," which is unlikely if the opposing counsel is any good and the available evidence is that one-sided.

You are giving juries too much credit. They are often incapable of deciding logically based on competiting experts. Given such uncertainty, its not uncommon for them to give it to the plaintiff on the grounds that "this doctor is rich" or "the insurance company can afford it" or "we feel bad for the little girl."

 

[HopkinsMedStudent]

Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

But it's the judge's job, not the lawyer's, to hold the (in this case) Frye hearing and to make the decision about whether a particular set of theories makes that standard. Unless the Frye case is obviously unwinnable, the lawyer has a duty to present whatever evidence (or proto-evidence) might help his client.

Let me restate that. In the case of "questionable" scientific evidence, the lawyer, as part of his job as client's advocate, should attempt to present that evidence if there is any chance at all that the evidence will be accepted (and doesn't involve fraud, perjury, et cetera). To do otherwise is to fail his duty to represent the client to the best of his ability. It is specifically not his job to make the decision that the evidence "isn't good enough."

This is unacceptable. Judges are no more capable of judging the quality of scientific theories than juries are. It always comes down to dueling experts. Its not that hard to find an "expert" who will say whatever you want him to say, especially when these "experts" get paid tens of thousands of dollars just to review claims.

Thats why there should be special medical courts, composed of a panel of experts with training in both science and the law.

 

[Dr. Imago]

Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

You are giving juries too much credit. They are often incapable of deciding logically based on competiting experts. Given such uncertainty, its not uncommon for them to give it to the plaintiff on the grounds that "this doctor is rich" or "the insurance company can afford it" or "we feel bad for the little girl."

I'd take it a step farther and say that they the people of the jury more often than not have little ability to understand the techinical merits of a case on even the remotest level, let alone what competing experts are telling them. Anyone who may understand medicine is often voir dired off the jury by the plaintiff in the first place. The jury's decision is probably 99.9% based on who they like or don't like in the plaintiff and defendant camps along with their "gut" feeling about the case. The concept of "trial by your peers" in a medmal case is a complete joke.

-TT