Scientific evidence plays a crucial role in virtually all mass torts cases (whether prescription drugs, environmental exposures, or consumer products), and so, when the National Research Council and the Federal Judicial Center published the Third Edition of the Reference Manual on Scientific Evidence, lawyers took note. Apart from Supreme Court opinions — which these days often raise more questions than they answer, which is partly why Daubert is still the leading case twenty years later — the Manual is likely the primary reference federal judges use to guide them in deciding what scientific evidence they allow into a jury trial.

Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.

Defense lawyers think judges too easily allow in “junk science” from plaintiffs, citing the silicon breast implant litigation, which resulted in over $3 billion in settlements and compensation for autoimmune injuries that most scientists now agree weren’t caused by the implants. Plaintiff’s lawyers, in turn, think the silicon implant case is the exception that proves the rule, and that courts these days more frequently use Daubert and Frye to destroy plaintiffs’ cases by wrongly excluding from trial valid scientific and medical testimony (here’s an example involving vinyl chloride and cancer, and another involving Tylenol and liver damage, and don’t forget Kumho Tire’s indefensible exclusion of an eminently qualified tire tread separation expert), while allowing defendants to bring in all kinds of unscientific nonsense (like the natural forces nonsense in shoulder dystocia lawsuits that’s allowed everywhere except New York).

(In the criminal context, prosecutors complain about the “CSI Effect,” the claim that jurors today expect forensic evidence in every case, while criminal defense lawyers counter that the forensic evidence offered is often garbage and speculation from people with a diploma mill degree.)

As far as I can tell, mostly defense lawyers took note of the Reference Manual publicly, and they took a starkly negative view of it. Nathan Schachtman says “there is a good deal of equivocation between encouraging judges to look at scientific validity, and discouraging them from any meaningful analysis by emphasizing inaccurate proxies for validity, such as conflicts of interest.” David Oliver has been on the warpath, claiming “the fix is in” and most recently criticizing the chapter, “How Science Works,” written by David Goodstein, Professor of Physics and Applied Physics at CalTech.

Oliver complains:

Avoiding any pretense of humility the Reference Manual dismisses as woefully naive and inadequate those claims about the essence of the scientific endeavor that were ingrained in us in school. … Unsurprisingly the Reference Manual, operating on the view that objectivity is an illusion, that you can never prove anything is false and that you can never prove anything is true (“the apparent asymmetry between falsification and verification that lies at the heart of Popper’s theory thus vanishes”) and thus without any track to follow, quickly careens into post-modernism. … So all the great thinkers were wrong. Objectivity is out. Testability is out. Keeping an open mind is out. Skepticism is right out. The appeal to authority is not a logical fallacy but fundamental to science.

I think Oliver has misunderstood the purpose of the chapter.  Continue Reading The Difference Between Scientific Evidence And The Scientific Method

[Update, September 2014: I wrote the below post in February 2012, when a prominent economist and blogger seriously claimed “The most plausible route to the death of football starts with liability suits.” In a mere two-and-a-half years, the tide has turned considerably, and it had nothing to do with liability suits. Jason Kottke recently collected multiple articles by die-hard football fans explaining why they won’t watch the sport any more. More and more people can’t handle the greed, the violence, and the damage — just today, Esquire had a piece on the league’s disgraceful handling of Ray Rice’s domestic abuse. Professional football is dying, and it has nothing to do with lawsuits.]


Tyler Cowen, an economist at George Mason University, has made a name for himself explaining how important it is that things stay just the way they are. (Cf. David Hume) Earlier this week, for example, he was in the New York Times opining that our banking oligarchy can’t be broken up because smaller banks “could make mistakes or take on bad risks without being punished very much in terms of capitalization revenue,” as if we didn’t just loan $1.2 trillion and directly pay $182 billion to bail out these same big banks precisely because they “made mistakes or took on bad risks.” As Paul Krugman aptly summed up one of Tyler’s critiques of a model of macroeconomics,

There’s something about macro that seems to invite this sort of thing: more even than the rest of economics, macro seems afflicted with people who mistake confusion for insight, who think their own failure to understand basic ideas reflects a failure of those ideas rather than their own limitations.

“Mistaking confusion for insight” is one of the hallmarks of attacks on our legal system, with nary a day going by without a prominent politician or the like making a hopelessly ignorant comment about the law, like Rick Santorum’s passionate argument in favor of scrapping the Constitution and replacing it with the Articles of Confederation.

Grantland, launched last year, was premised on the crazy idea that there existed a sizable market of readers who appreciated both long-form journalism and the world of sports. I haven’t a clue if the website is doing well financially, but they’ve been a journalistic success, with fascinating articles like this article on a boxing match in 1810 that set the stage for almost every fighting trope you see today. Just when I think the site is the go-to resource for sports reporting, I see Tyler Cowen (along with Kevin Grier, another economist) bring his ipse dixit style to the subject of tort lawyers and football:

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

In other words, the old trial lawyers are taking the fun out of everything argument. It’s often trotted out to claim that lawyers are responsible for taking the fun out of playgrounds, so it was only inevitable before someone claimed that trial lawyers posed the greatest threat to our nation: as Cowen and Grier claim, because of lawyers, “American people … might actually start calling ‘soccer’ by the moniker of ‘football.'”

The horror!

Continue Reading Brain Injuries, Not Lawyers, May Spell The End Of Football

The lines between conscious sedation, monitored anesthesia care, general anesthesia, and life-threatening central nervous system depression are blurry and thin.  As the death of Michael Jackson and prosecution of his personal physician has brought back into the spotlight (I hope), anesthesia medications like propofol are frighteningly dangerous if used improperly.  It’s not like taking an antihistamine and going to sleep for a couple hours. Even the “long acting” procedural sedation agents like Versed and Fentanyl work for at most an hour, whereas the short-acting agents like Propofol last for only a couple minutes.  They have to be constantly administered and the patient has to be constantly monitored.

We review a lot of medical malpractice cases, so it feels like I see the same tragic story once a month, either in the press or in cases at our firm. Recently, “parents of student who died after dental surgery sue for malpractice“:

The parents of a Woodstock teen who died 10 days after losing oxygen during a routine wisdom tooth surgery March 28 in Columbia are suing the anesthesiologist and the oral surgeon involved for medical malpractice, according to court records filed Nov. 30.

The suit claims that Dr. Krista Michelle Isaacs, the anesthesiologist, and Dr. Domenick Coletti, the oral surgeon, were negligent in their care of Olenick and failed to resuscitate her after her heart rate slowed to a “panic level” of 40 beats per minute and her body began losing oxygen.

Yahoo has an article examining the merits of wisdom tooth removal, but it seems the type of surgery wasn’t really the problem, nor the use of improper surgical techniques.  It happened to involve dental surgery, but it could have been any type of surgery; Ms. Olenick’s death was perhaps another example of anesthesia malpractice:

According to Dr. David Fowler, the state’s chief medical examiner, Olenick was first given a standard dose of anesthesia during the procedure that did not “get her deep enough so she was fully anesthetized.” More anesthesia was then administered by Isaacs, which was also standard procedure, Fowler said in an interview.

At approximately 8:05 a.m., Olenick began to experience bradycardia, or a slowing of her heart rate, according to the lawsuit. “A little while later, the oxygen saturation in her blood started dropping,” Fowler said. Shortly thereafter, according to the autopsy report, Olenick went into hypoxic arrest.

The part of Ms. Olenick’s story that raised my eyebrows is how the patient showed bradycardia and then a little later showed a drop in oxygen saturation followed by hypoxia and cardiac arrest.  Bradycardia is a known side-effect of many anesthesia agents (consider this 1997 study on propofol), including Versed, which was likely used in the oral surgery procedure.  (On a comment on a blog called “No Midazolam,” it appears Ms. Olenick’s mother confirmed that Versed was one of the drugs used.)

Once a patient under anesthesia shows bradycardia, that’s a medical emergency, and action needs to be taken immediately. Here’s a medical malpractice case from Texas describing a similar situation:

[D]uring surgery, Mark had progressive bradycardia, an abnormally slow beating of the heart, which is a condition that is consistent with inadequate ventilation. This condition can lead to cardiac arrest. According to Dr. Fromm, if Mark was in good health before the operation and if he had been well-ventilated during surgery, he would have survived a sudden cardiac arrest during the surgery.

Adequate ventilation is critical during any surgery under general surgery, and I suspect that it contributed to Ms. Olenick’s brain damage, but another issue jumps out at me.

Continue Reading Anesthesia Complications In Routine Surgery

One of the most common situations I see as a personal injury lawyer involves people injured at work because their employer blatantly disregarded OSHA safety regulations. Most everyone knows that workers’ compensation laws provide employers with legal immunity from negligence claims, but common sense suggests that employers remain accountable for reckless or intentional wrongdoing. The law, however, doesn’t always line up with our common sense of ethicals and morals. We’ve been successful in the past holding employers and other companies fully accountable despite the workers’ compensation laws, but unfortunately employers sometimes can get away with manslaughter.

Over at reddit yesterday, a user posted a question under the title My mother was brutally killed at work, is there no chance for justice?

My mother was crushed to death at work, the OSHA report indicates 3 SERIOUS violations on the part of her company and a dozen minor violations. Total Fine: ~$15,000. She was alone when it happened, it wasn’t her duty to be anywhere near the storage area, the guy whose job it was to move the product quit a few days prior and she was essentially told to do his job (without ANY training) or else. Wtf? Its been 7 months now, I’ve spoken to 11 different lawyers with my step father, all of whom said that it wasn’t possible to file a case against them because of labor laws… We just found out today that as of last year the KY legislature passed a bill that stopped any death benefit payments because in a few months my step dad will be 62(age of retirement). My mom was only 50. So not only can we not pursue legal action against the company, but the government death benefit is out the window too.

Am I … insane? Is this some third world Chinese factory? Wtf… Why is this allowable in the US? So this multi-million dollar company pays just 15k in fines and that’s it. No other punitive damages. We cannot pursue any legal action?

It’s a depressingly common situation that we see all the time: some industrial plant or construction site flagrantly violates OSHA safety rules, kills or maims a dedicated employee, and then pays a fine somewhere around the price of a compact car.

Recall the Notre Dame football practice tragedy. Indiana’s Department of Labor, Occupational Safety and Health Administration found that Notre Dame had committed multiple safety violations in the training and use of its scissor lifts to videotape football practice, including:

Knowing violation – By directing its untrained student employee videographers to use the scissor lifts during a period of time when the National Weather Service had issued an active Wind Advisory with sustained winds and gusts in excess of the scissor lift’ s manufacturer’s specifications and warnings, the university knowingly exposed its employees to unsafe conditions.

Serious violation – Notre Dame did not properly train the student employees in the operation and use of the scissor lifts used during football practice.

Serious violation – The scissor lift noted in this incident – owned by Notre Dame – had not been given an annual, monthly, or weekly inspection for more than one year.

Serious violation – Notre Dame did not have the scissor lift it owned serviced as required by the preventive maintenance schedule in the operator’s manual.

Serious violation – Notre Dame did not have an operator’s manual kept on the unit it owned in the weather proof box.

Serious violation –The scissor lift noted in this incident – owned by Notre Dame – was missing some of its warning labels and some labels were faded and weathered.

Total fine? $77,500. And that’s in an egregious, high-profile case that killed a 20-year-old. It was one of the highest fines the Indiana OSHA had levied in years.

It’s thus no surprise to me that the company that killed the reddit poster’s mother was fined only $15,000 for three serious violations. As the federal OSHA website explains:

Serious Violation – A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.

Up to $7,000 for a serious violation that could — and did — kill someone. In this case it seemed the company ordered an untrained employee to handle, alone, some hazardous chemical or equipment, and the penalty is less than the cost of a new Mazda 3.

Which brings us to the core of the redditor’s complaint: that there’s nothing at all they can do to hold the employer accountable.  Continue Reading When Workers’ Compensation Isn’t Enough After A Wrongful Death

Between our catastrophic injury and birth injury practices, we spend a lot of time at the firm immersed in the science and medicine of brain damage. Just as consciousness and dualism have vexed philosophers for ages (* see my comment), the real causes and treatment of brain injury have remained elusive for generations. There’s a reason for the phrase ‘not exactly brain surgery‘ — brain surgery is notoriously unpredictable.

After reading Jane Rosett’s compelling article in The New York Times about ‘starting again’ after injuring her right temporal lobe in a car accident (sample: “traumatic brain injuries destroy connections between and within people — so how are we to build a self-empowering community?”), and Diane Wyzga’s post about the Going the Distance documentary, I thought I’d write about some of the latest developments in the field. Rosett’s article (and David L. Brown’s documentary) seems to be part of a larger trend in the diagnosing, treatment, and public perception of brain injuries.

Traumatic brain injuries (TBI) are particularly difficult to treat in a meaningful way. Even treatments that seem obvious, like reducing intracranial pressure, don’t work the way we think they should. In April this year, the New England Journal of Medicine published a study that randomly assigned 155 diffuse traumatic brain injury patients to either undergo decompressive craniectomy or standard treatment. The results were surprising: the patients’ intracranial pressure went down and they left the intensive care unit faster, but six months later they scored lower on the Extended Glasgow Outcomes Scale. Sometimes it seems we haven’t progressed much since ancient trepanation: cut a hole in the patient’s head and hope that makes them feel better.

Three months after that study, the Harvard Gazette reported on two studies which may have identified some of the reasons why TBI doesn’t respond to the sorts of mechanical treatments (like surgery to reduce pressure, placing a shunt, etc.) we assume would fix the problem. In short, TBI doesn’t just damage the structures of the brain, it damages the cells on a cellular level:

Bioengineers at Harvard have, for the first time, explained how the blast of an exploding bomb can translate into subtly disastrous injuries in the nerve cells and blood vessels of the brain. …

Papers published in the journals Proceedings of the National Academy of Sciences (PNAS) and the Public Library of Science’s PLoS One provide the most comprehensive explanation to date of how abrupt mechanical forces cause catastrophic physiological changes within the brain’s neurons and vasculature. …

When the brain encounters a jarring force, such as an exploding roadside bomb, its delicate tissue slams against the skull. The result, if the patient survives, can be a temporary concussion, a more dangerous hemorrhage, or long-term TBI, which can lead to the early onset of Parkinson’s or Alzheimer’s diseases. …

Parker’s research has demonstrated that the forces unleashed by an explosion physically disrupt the structure of the focal adhesion complex, setting off a chain reaction of destructive molecular signals within the nerve cells of the brain.

The papers themselves are available online: A Possible Role for Integrin Signaling in Diffuse Axonal Injury and Blast-induced phenotypic switching in cerebral vasospasm.

It’s more than a little surprising to see that an explosion could, in some instances, not injure the structures of the brain, and not even break up the cell, but nonetheless cause changes in the way the cell operates, but that seems to be the case:

The blast from an explosion creates a surge in blood pressure, which stretches the walls of the blood vessels in the brain. To study this, Parker’s team of bioengineers built artificial arteries, made of living vascular cells, and used a specialized machine to rapidly stretch them, simulating an explosion. While this stretching did not overtly damage the cellular structure, it did cause an immediate hypersensitivity to the protein endothelin-1.

That might also explain why war veterans have a higher rate of dementia: not only have they suffered TBI, but they’ve suffered blast-induced TBI, which causes a cerebral vasospasm that induces the protein hypersensitivity. Even better, the researchers identified potential treatments, at least for the integrin disruption, in the form of an enzyme inhibitor administered soon after the blast.  Continue Reading The New Science of Traumatic Brain Injury Treatment

In retrospect, it’s obvious: battering your brain and sustaining concussions on a regular basis as part of your job can have severe long-term consequences. I remember back when I played football in school that there was already a long-standing debate over the apparent safety of big, heavy helmets with wire face masks. At first blush, it seemed the answer to the broken noses, broken jaws, and facial and head laceration that had long plagued football was to use modern plastic injection-molding techniques and build bigger helmets with bigger face masks. More padding is safer than less padding, right?

The helmets, though, opened up an entirely new set of tactics in which players would use their own heads — shielded by the hard helmets and face masks — as weapons. If you’re a coach or an owner, why limit players to shoving opponents around when they can use their helmets as a battering ram? The NCAA and NHSFF both quickly picked up on the technique and banned initial contact of the head in blocking and tackling, but the NFL declined.

The effect, in terms of brain injury, was to convert football from a grappling sport like rugby or wrestling characterized by limb and torso fractures into a striking sport like boxing characterized by closed head injuries. Like when boxing started putting on bigger and bigger gloves, the sport is a lot less bloody but a lot more dangerous. As ugly as mixed martial arts fights get, truth is, they’re safer on the brain (PDF of “Incidence of Injury in Professional Mixed Martial Arts Competitions” in the Journal of Sports Science and Medicine) because there are only so many times that you can punch someone in the face with an ungloved hand without giving up because of the pain or because of a broken hand. (“I broke his hand with my face” is more than just a schoolyard excuse.) In contrast, there’s no limit on how many times someone wearing large, soft boxing gloves can batter their opponent’s brain, and a large number of fights today end with a knockout — and the concussion that causes a fighter to stay down for ten seconds.

But, no matter how obvious it may have even been at the time, the NFL continued to deny any connection between routine closed head injuries in football and long-term consequences like dementia or early-onset Alzheimer’s disease. Players believed them; the NFL is undoubtedly in the better position to know.

That all started to change two years ago. From the new Easterling et al. v. National Football League putative class action:

On September 30, 2009, as a part of its continuing active role in disputing and covering up the causative role of repeated concussions suffered by NFL players and long-term mental health disabilities and illnesses, the defendant disputed the results of a scientific study that it funded. On the aforementioned date, newspaper accounts were published detailing (an unreleased) a study commissioned by the NFL to assess the health and well-being of retired players, which found that the players had reported being diagnosed with dementia and other memory-related diseases at a rate significantly higher than that of the general population. Despite the findings of this study, showing that 6.1 percent of retired NFL players age 50 and above reported being diagnosed with dementia, Alzheimer’s disease and other memory related illnesses, compared to a 1.2 percent for all comparably aged U.S. men, the defendant’s agents disputed these findings and continued the mantra in the Press that there is no evidence connecting concussions, concussion like symptoms, NFL football and long-term brain illness or injury, including but not limited to Chronic Traumatic Encephalopathy (CTE), dementia, etc.

The issue was then dramatically brought back into headlines by the suicide of Dave Duerson, who, in an ironic mixture of mental illness and rational foresight, donated his brain to Boston University so they could test it for brain damage. They did, and found signs of chronic traumatic encephalopathy.

The Plaintiffs in the new action — seven former NFL players, including Jim McMahon — allege that the NFL knowingly kept the sport violent and dangerous (which, some commentators argue, is what NFL fans want) and want to establish a class action for:

All former NFL players who sustained a concussion(s) or suffered concussion like symptoms while in the NFL league, and who have, since leaving the NFL, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player.

The lawsuit seeks money damages, declaratory relief, and “the establishment of a medical monitoring class.”

And that’s where they’ll have a problem. Continue Reading NFL Players’ Brain Injury Medical Monitoring Class Action Already In Trouble


[Update, May 31, 2013: The Pennsylvania Superior Court, reviewing the case on appeal, ordered the trial court to further explain the basis for entering nonsuit against the plaintiffs. It’s not a victory, exactly, but it’s a step in the right direction, and perhaps a prelude to reversal (or the trial judge reconsidering his opinion).]


Everyone remembers the “just one word” of advice in The Graduate: “plastics.”
Most everyone has also heard the term “junk science,” coined as a smear against plaintiff’s experts in environmental contamination cases. The purpose the “junk science” campaign was obvious: huge corporations were finally being made responsible for the massive damage they caused, and so they and their insurers needed an aggressive propaganda campaign aimed at academia and scientific research, at lobbying legislators, and at influencing potential jurors. (In case you were wondering about the real dangerous of hazardous chemical exposures, consider that just last week the American Academy of Pediatrics released a new report arguing that the Toxic Substances Control Act is nowhere nearly strong enough.)If you throw enough mud up against the wall, some of it will stick, which is why, for example, the link between cigarette smoking and cancer was successfully denied for decades after it was scientifically proven. All studies which shows that a big corporation is responsible for giving people cancer is “junk” and a “fraud,” while all “research” paid-for by those corporations, no matter how flimsy, is upheld as gospel. The tradition continues today, with a court holding last week that vinyl chloride cannot be proven to have caused brain cancer. We’ll come back to that in a moment.


Billions of dollars have been spent on plastics since The Graduate, but they have their downside, particularly in the toxins used and produced in their manufacturing. The bulk of plastics are made with vinyl chloride somewhere in the process, particularly monomer vinyl chloride, which is used to made polymers like polyvinyl chloride, which consumers better know as “PVC,” like PVC pipe.


Problem is, vinyl chloride monomer has been known for over eighty years to be a carcinogen. The first study on it in 1930 (literally performed on guniea pigs), showed that even a single dose could cause liver damage. Since the 1970s a growing body of scientific literature have specifically shown a link to cancers and tumors, particularly angiosarcoma of the liver.


Every Material Safety Data Sheet (MSDS) lists it as a carcinogen. The International Agency for Research on Cancer, National Toxicology Program, and the Occupational Safety and Health Administration (OSHA) all list vinyl chloride as a carcinogen. The Centers for Disease Control and Prevention puts vinyl chloride at #4 on its priority list of hazardous substances, just below mercury and just above polychlorinated biphenyls.


In short: it’s bad. It messes with animal DNA and cells, including those of humans. That means cancer.


But big chemical companies like Dow and Rohm & Haas don’t admit anything other than the eighty-year-old link to liver cancer. It shouldn’t be much of a stretch to say that a known carcinogen which causes liver cancer could cause other cancers, but they’ll have none of it. Leukemia? Lymphoma? Lung Cancer? Bone cancer? Brain cancer? No way, they say. Not our problem. Maybe in another fifty years they’ll admit it.


First rule of insurance defense: deny, deny, deny.


That’s the position they took in Branham v. Rohm & Haas, and it paid off:


The first case brought by Illinois residents alleging that brain tumors were caused by exposure to a toxic chemical has been thrown out of court after a Philadelphia judge found that the plaintiff’s experts did not establish causation. …

In a 49-page opinion that quoted reams of testimony by the plaintiffs’ experts, [the Philadelphia Common Pleas Court Judge] said that the plaintiffs have not produced — nor could they produce — evidence that is “legally competent” to establish causation and thus liability against Dow-owned Rohm & Haas. …


Proof in these “cancer cluster” toxic tort cases is generally done through a two-prong approach. On the one prong, a pathologist identifies the specific type of case suffered by the plaintiffs of their decedents, and on the second prong an epidemiologist compares the rates of those types of cancer in the “cancer cluster” area versus the rate across that state or across the United States.


From there it’s math, e.g., the odds of these neighbors all having the same rare brain cancer by chance are under 1-in-a-million. Thus, we can argue — and let the jury decide if we’re correct — that they had all the same cause. In this case, that purported “cause” was the nearby plastics manufacturing plant’s groundwater contamination and air exposure.


Out around McCullom Lake, “statistics taken from the first 23 plaintiffs indicated that nineteen had or have brain or nerve cancer, nine had or have glioblastoma multiforme, five had or have oligodendroglioma, two had or have meningioma, and one each had or has schwannoma and hemangioblastoma. Additionally, three had or have pituitary gland tumors, and one had or has cryptogenic cirrhosis.” Pretty unlikely for a village of 1,000 people.


But there was a problem at trial:


As Neugebauer was reviewing his notes and attempting to answer questions, the court directed Neugebauer to revisit his 2008 report because he testified that one of four observed cases of brain cancer that he relied upon for his analysis should not have been included, which led Neugebauer to revise his calculations for the 2008 study.


Oops. So he fixed the problem overnight, but came to the same conclusion: three of these rare brain cancers in the same area, in the same time frame, still indicated “there is strong epidemiological evidence that rates of brain cancer are elevated in the area of McCullom Lake.” The same was the conclusion in a separate 2010 analysis.


The Judge struck the testimony entirely, stating “it is as close as I have come sitting on the bench for 20-plus years to having a report that may be tantamount to fraud on the court.” Rohm & Haas’ defense lawyers piled on, arguing “plaintiff’s counsel invented the brain cancer cluster claim for the courtroom” and that Neugebauer’s analysis of the alleged brain cancer cluster was an “elaborate ruse that rested on deception, manipulation of data, and patently false assumptions.”


Strong words. The irony here, of course, is that the “fraudulent” link between vinyl chloride and brain cancer has already been demonstrated in the scientific literature, like in this metastudy, which noted “sound evidence for a causal association between VC-PVC exposure and liver cancer, as well as tumors of the brain, lung and hemolymphopoietic system,” before concluding “Our reanalysis has revealed a significantly elevated risk for all causes of death among exposed blue collar workers compared to unexposed technicians and clerks.” In other words, everyone who was exposed to vinyl chloride had higher rates of everything — liver cancer, leukemia, lymphoma, lung cancer, and brain cancer.


Work-related injury lawyers have known of these risks for a while, and they’re not a surprise to anyone familiar with the Sass / Castleman / Wallinga study, which found systematic downplaying of the risks of vinyl chloride:


When the U.S. Environmental Protection Agency (EPA) finalized its 2000 update of the toxicological effects of vinyl chloride (VC), it was concerned with two issues: the classification of VC as a carcinogen and the numerical estimate of its potency. In this commentary we describe how the U.S. EPA review of VC toxicology, which was drafted with substantial input from the chemical industry, weakened safeguards on both points. First, the assessment downplays risks from all cancer sites other than the liver. Second, the estimate of cancer potency was reduced 10-fold from values previously used for environmental decision making, a finding that reduces the cost and extent of pollution reduction and cleanup measures. We suggest that this assessment reflects discredited scientific practices and recommend that the U.S. EPA reverse its trend toward ever-increasing collaborations with the regulated industries when generating scientific reviews and risk assessments.


As they wrote,


Downplaying risk to nonliver cancer sites leaves the public and exposed workers inadequately informed of the health threat posed by exposure to VC-containing products, processes, and pollution. Medical professionals are less likely to suspect a link to VC exposures in patients with nonliver cancers, and thus causal links are more likely to be overlooked. Downplaying of nonliver cancer risks by the U.S. EPA may also have important implications in litigation of compensation cases, because claims for cancers at sites other than the liver are vigorously disputed in the courts.


So it goes here. Deny, Deny, Deny. Eventually they’ll find a judge or jury willing to listen that an expert is a “fraud” for suggesting, as research has repeatedly confirmed, that vinyl chloride causes brain cancer.


Maybe the case can be salvaged on appeal. It seems harsh to me to grant a mistrial over a numerical error in one of many expert reports; typically, such a problem turns into a great cross examination, not a compulsory nonsuit, but that’s up to the appellate court now.


One other point: part of those corporate and insurance propaganda efforts has included calling Philadelphia a “judicial hellhole,” but here we have another instance, in Philadelphia, where a plaintiff came to court with the facts, the law, and the scientific evidence on their side, but left empty-handed, before a jury could even decide the case. Now their lawyer is facing sanctions for making an argument of unquestionable scientific validity.

[Update: Unfortunately, the “Fair Share Act” passed. Stuart Carpey has some details.]


It’s that time of year again. As The Legal Intelligencer and other sources report, Pennsylvania’s joint and several liability laws — which ensure that the economic damage caused by negligent companies falls on insurers and other defendants proven to have been at fault rather than on injured plaintiffs — are on the chopping block again at the Pennsylvania General Assembly:

At press time, the state House of Representatives was on its third consideration of House Bill 1, called the “Fair Share Act.” The act would change Pennsylvania’s doctrine of joint and several liability so that defendants that are apportioned responsibility for causing a plaintiff’s injuries at 60 percent or less would only pay the portion they were found liable for, rather than being on the hook if other liable defendants can’t pay their portion of the plaintiff award. Joint and several liability would still be in place for defendants found more than 60 percent liable. The state Senate is still considering its own version of the bill, Senate Bill 2.

If the legislation passes the Senate, it would likely become law. During his budget address in March, Gov. Tom Corbett, a Republican, said that he would sign legislation abrogating the doctrine of joint and several liability, arguing legal liability scares jobs away and leaves minor players stuck paying the full price of lawsuits.


I like how it’s “House Bill 1.” There was nothing more important on their agenda than boosting insurance company profits at the expense of the serious injured.

It’s hard for me to accept that joint and several liability in personal injury lawsuits has a negative effect on the local economy, since I read publications like Insurance Journal, which says that Pennsylvania’s insurance companies — the companies that bear the brunt of joint and several liability’s effects — are doing just fine, even in this weak economy:

Six years ago, Harleysville Group was in need of a big change. The Pennsylvania-based insurer had just come out of the worst performing year in its history. That’s when newly appointed CEO Michael Browne — who declared the company’s performance in 2003 was “totally unacceptable” —stepped in and began his plan to execute a turnaround at the stumbling insurer.

But turnarounds take time, and with the benefit of hindsight, it’s clear that the decisions made by Browne and the rest of the management are paying off for Harleysville. Since Browne’s first full year on the job, Harleysville’s return on equity has exceeded 12 percent annually among the highest in the property casualty industry. It’s also seen increased premium volume and even upgrade — to “A” — from A.M. Best, an increasingly rare feat in the last two years.

Since eliminating joint and several liability has nothing to do with improving the economy, let’s consider what they’re really driving at in cases like this one:

Authorities say a roofer wasn’t wearing a safety harness when he fell and died in a roof collapse at a prestigious eastern Pennsylvania private school.

Montgomery County Coroner Walter Hofman says Kevin Sensenig had climbed on to the roof to show three workers what needed to be done when a roof collapsed Monday morning at The Hill School in Pottstown.

Sensenig was the vice president of R.L. Sensenig Co. of Ephrata. Hofman told the Reading Eagle newspaper Sensenig was the only worker not wearing a safety harness.

A second worker was trapped for more than an hour before emergency workers freed him. Hofman says his injuries don’t appear to be life-threatening.

Officials from the Occupational Safety and Health Administration are investigating.

Let’s assume, hypothetically, that a jury in a subsequent wrongful death lawsuit determines that the fall accident was caused:

  • 40% by the worker for not wearing a harness;
  • 30% by a construction company which negligently installed the support beams incorrectly; and,
  • 30% by a roofing company which defectively designed and manufactured the roof.

Under any of these scenarios, if the construction company and roofing company are both adequately insured, then the family for the worker killed on the job collects 60% of the jury verdict evenly from the construction company’s and roofing company’s insurers. Joint and several liability never plays a role.

Joint and several liability, however, comes in the play when one of the defendants is inadequately insured and otherwise unable to pay for their liability. Let’s assume that in the above example the construction company has an insurance policy which exceeds the total liability for the case, but the roo was so dangerous and defectively designed that they’ve exhausted their product liability insurance and are going through a structured bankruptcy reorganization.

Then what? Under the current joint and several liability laws, the injured plaintiff can collect the whole 60% from the construction company’s insurance policy, but the story doesn’t end there. The insurance company can then seek “contribution” from the roofing company, and recover up to the full 30%, if funds are available.

Is that so unfair? That we allow injured people to recover from whichever defendant proven to have been negligent has the funds, after which that paying defendant then bears the burden of recovering the overpayment from other defendants?

According to the Republicans in the Pennsylvania General Assembly and Governor Corbett, though, it’s unfair to put injured plaintiffs before negligent defendants and their insurers. They think the workers’ family should be the ones chasing the roofing company in bankruptcy, rather than the construction company’s insurance company. After all, they say, why burden a poor, helpless insurance company with paying its in-house lawyers to file a routine bankruptcy claim when they can stick it to a family that just lost their breadwinner? “Fairness,” they call it.

That’s the case under both the “Fair Share Act” in the House and Senate Bill 500. SB 500, though, at least limits this unfairness to situations in which the plaintiff played a substantial negligent role in causing their injuries. The “Fair Share Act,” however, with its “60% or less” line, would create a situation in which, if the construction company and roofing company were each found 50% liable, and the worker was found 0% liable, his family would nonetheless not be able to enforce anything over 50% against either company, making them — wholly innocent in the entire process — bear the risk of financial loss over an insurance company whose insured company was found to be half responsible for the accident in the first place.

This issue boils down to a simple question about whom you think should bear the risk of a negligent defendant being uninsured or bankrupt: the injured workers or negligent defendants’ insurance companies. If you live in Pennsylvania, call your legislator and let them know what you think.


A tragic story:

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?

Continue Reading Proving Bacterial Infection Injuries Through Circumstantial Evidence

We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,'” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)


Continue Reading Proving Intoxication In Auto Accident Lawsuits Despite Legal Blood-Alcohol Levels