The LitiGator

Signing off

Sun, 21 Mar 2004 03:28:59 GMT

This will be the last post on this weblog. We have been at it for about 20 months now, and it has been a rewarding experience. But the technical problems with Radio have proven to be intolerable. For the second time in a month, we have found that new postings and/or edited postings have not been posted to the site for several days after they were created. There is no reason that a user should have to accept such a poor level of service.

The subscription is good until July 2004, so these pages will be up until then.

We may decide to set this site up with another service, and if we do, we will post a pointer here. For now, though, thank you and good night.

Disputed forensic evidence

Sat, 20 Mar 2004 15:31:26 GMT

Two reports in recent days involving forensic evidence disputes:

Cardiologist: FenPhen Trust Conspired To Destroy Her

A physician who was named as a defendant by the Settlement Trustee in the Fen-Phen cases, and accused of falsifying numerous echocardiograms, has filed a counterclaim alleging that:

Specific cases that she had identified as showing a compensable injury are now being used by the trust to train its examiners to reject legitimate claims, despite the fact that the trust's own overreads confirmed them as legitimate.

The dispute arises from an obsolete and unscientific definition of "moderate mitral regurgitation" as used in the Settlement Agreement. She alleges that she is being targeted because she followed the definition used in the Agreement. (Source: LexisOne)

Dog-handler pleads guilty

Woman admits in Detroit court to planting bones at crimes scenes across Michigan, U.S

An internationally known handler of a cadaver dog admitted she planted bones and other phony evidence at crime scenes across Michigan and Ohio. Sandra Marie Anderson of Sanford and her Doberman-German short-hair dog, Eagle, participated in hundreds of searches, including at the World Trade Center after September 11 and at mass graves in Bosnia and Panama. Anderson, 43, searched dozens of historical sites — from a Nebraska Native American burial ground to a Mackinac Island golf course, hunting for remains of soldiers killed in 1812.

But she has admitted she planted evidence for Eagle to find in at least a half-dozen cases. Lawyers for Azizul Islam of Plymouth, convicted in the 1999 murder and dismembering of his wife, have asked for a new trial based on the disclosure.

(Source: Detroit News)

Putting the fun back in

Wed, 10 Mar 2004 02:55:01 GMT

A group in Britain has published The Dead Good Funerals Book, providing ideas for alternative services for those who believe that funerals are too damned somber. They are sponsoring a contest to see who can come up with a better coffin design. Numerous different disposal alternatives are described, but I see nothing about setting Viking longboats aflame.

Too narrow a view

Wed, 10 Mar 2004 02:51:11 GMT

Last week, on her radio show, I heard Laura Ingraham repeat a fallacy commonly voiced by those who do not fully understand the First Amendment's guarantees of free speech. The free speech guarantee should not apply to pornography, she said (referring to all forms of sexual expression and not just to the much more narrow concept of obscenity) because the Founders intended the free speech clause to protect political speech and certainly did not intend it to protect speech, expression, or conduct describing sexual acts.

The fallacy of her position may be demonstrated by considering a couple of hypotheticals. Suppose that the State of Ohio were to pass a law prohibiting the sale of science fiction novels. All other forms of fiction would be permitted without restriction, but science fiction would be prohibited outright.

Suppose further that the State of Indiana were to prohibit any written or graphic depiction of people eating food, as well as any photos or drawings depicting human mouths, tongues, or lips. Perhaps the courts would limit such prohibitions to depictions designed to appeal to the esurient interest.

In each case, there is no aspect of political speech that is involved. Neither would be protected under the limited concept of freedom of speech that Ingraham envisions. But both statutes would be clearly unconstitutional, inconsistent with guarantees of free speech as we understand them.

Vigilante justice

Tue, 09 Mar 2004 03:38:09 GMT

Cops Kill Man Breaking into Sex Offender's Home - "Police shot and killed a knife-wielding man attempting to break into the home of a registered sex offender who police warned neighbors might still be abusing children. Authorities on Monday defended their decision to circulate a flier in a Bakersfield neighborhood identifying Vincent Verdile as a registered sex offender even though the information was 'completely unsubstantiated...' On Saturday, police shot and killed Gabriel Angel Garcia, who was attempting to kick in Verdile's front door. Police had not yet established a motive for why Garcia, a 20-year-old neighbor of Verdile, was trying to break into the man's home. But several weeks ago, Bakersfield police circulated a flier around Verdile's neighborhood with a picture of Verdile on it and listing his height, weight, hair color and race under a banner that read, 'Serious Sex Offender...'" - Mercury News (US)

One of the major objections to a sex offender registry is the possibility that someone will decide to take justice into his own hands. Perhaps ordinary citizens don't much care if that happens to a child molester, but the indiscriminate nature of the listings in many states, including our own, mean that the same thing can happen to people guilty of no more than youthful indiscretions.

The missing key

Sun, 22 Feb 2004 13:51:51 GMT

The key most needed by Windows users. (Source: Mercury/Digital Res)

Misfortune follows exploitation

Sat, 21 Feb 2004 03:37:04 GMT

Gongwer reports the following:

Court Of Appeals Orders Child Support From Sex Abuse Victim -- A man who was the victim of criminal sexual conduct when he was 14 years old has been ordered by a panel of the Court of Appeals to pay child support to the child conceived as a result of the relations with a married woman.

The case, Evelyn v Shire, is reported here. An excerpt:

Respondent argued that he was the victim of an act of criminal sexual conduct committed by Evelyn because he was fourteen years old when she induced him to have sexual intercourse. He reasoned that because he was under the age of consent, his participation was legally involuntary. This argument confuses two distinct legal concepts. Because of his age at the time of the sexual conduct, the law refuses to permit the adult in the relationship to claim consent as a defense. People v Gengels, 218 Mich 632, 641; 188 NW 398 (1922) (“Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting.”); People v Bennett, 45 Mich App 127; 205 NW2d 831 (1973) (fourteen-year-old boy incapable of giving legal consent to act of taking indecent liberties). Therefore, even if respondent was a willing participant in the sexual intercourse, Evelyn could still have been charged with, at least, third-degree criminal sexual conduct. MCL 750.520d(1)(a) (victim between 13 and 16 years old).

However, the issue presented by this case is not Evelyn’s criminal culpability for criminal sexual conduct, or whether respondent was – or could have been – a “consensual” participant in that activity. Rather, we are concerned with whether respondent may be liable for child support for the child that resulted from the sexual activity. Child support is not imposed to penalize or victimize either parent. “The purpose of child support is to provide for the needs of the child.” Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002), citing Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989).

San Francisco Follies

Thu, 19 Feb 2004 01:07:33 GMT

Isn't it interesting that it is a city executive and not a judge who is the activist in San Francisco? Even more interesting is the fact that so many conservative commentators are criticizing the judges who are hearing the cases challenging the mayor's actions for taking the cautious, non-activist approach rather than jumping right in to make a big splash with a quick ruling.

When I was in college, a couple I knew (a man and a woman) held a marriage ceremony and thereafter lived together as husband and wife. The only trouble was, they had never applied for a marriage license and thus the ceremony was of no legal effect. A couple of years later, that made the "divorce" quite easy.

The same thing is happening in San Francisco. A bunch of people are going through a ceremony of no legal effect, one which will not create a relationship which will be recognized anywhere. I have a hard time getting all that worked up about it.

Pseudonymous weblogging

Tue, 17 Feb 2004 02:15:30 GMT

Earlier this month, Nick Confessore of TAPPED wrote "In Defense of No-Name Bloggers", responding to what he called a "very weak attack" by Salon's Christopher Farah against those who post on weblogs under assumed names. Confessore notes a critical distinction in correcting Farah's reference to them as "anonymous" authors, observing:

That's incorrect. They're pseudonymous, like, say, the authors of The Federalist Papers. And it's an important distinction. Anonymous writing can indeed be poisonous, because it frees the writer from any consequences whatsoever for his ideas. . .

Blogging continuously under a pseudonym, however, is a very different matter. Someone like Atrios or TMFTML has an intellectual identity and a reputation to defend.

A very good point. (Credit NetLawBlog for the pointer.)

My Backword

Mon, 16 Feb 2004 12:51:09 GMT

Peter Nordberg of Blog 702 has some favorable words about these last two postings and some thoughtful comments on the criteria that can be used to judge what he describes as the "ethics" of legal and political discourse.

In my series of longish postings on the "John Edwards - cerebral palsy - junk science" topic over the last three weeks, I have made clear my disagreements with Walter Olson on certain key points on this topic, but I would be remiss if I did not observe at the same time that Olson and his colleagues with the Manhattan Institute have made major contributions to the overall topic of abuse in and abuse of the court system and its participants over the last ten years. The Overlawyered site, in particular, continues to be a cornucopia of craziness, a fountain effusively overflowing with the fatuousness and folly that permeates our legal system. (I watched a Dennis Miller performance last night, and I just can't help myself.)

I do think that Olson's mission is ultimately political and not legal, and thus he and his colleagues do tend to describe in terms of sharp black and white ideas and concepts that I view in shades of grey. But that is the nature of political discourse, and that fact has to be accepted. Olson has been very gracious in linking to my comments and in responding, and even was good-humored about the fact that I did at one point confound his own comments about Edwards with those offered in a guest editorial by his MI colleague, Jim Copland [NRO, January 26], and thereby did perhaps engage in a bit of caricature myself. I would echo Nordberg's thoughts on the markers of quality in discourse, and borrow from a well-worn phrase in commenting that we can disagree with those we respect, and do so without being disagreeable.

No-fault compensation for birth-related injuries

Sun, 15 Feb 2004 11:32:17 GMT

The fact that only 10% or 20% of cases of cerebral palsy are related to perinatal hypoxia does not mean that only 10% to 20% of the lawsuits making this claim are valid, for a number of reasons. Nonetheless, I will be the first to acknowledge that only a minority of these claims are in fact meritorious, and that most cases that are filed on the basis of this causation claim do not hold water medically. Yet they commonly result in verdicts for the plaintiff when they reach the trial stage, and they more commonly result in generous pretrial settlements because the defendants do not want to see what might happen when they reach the trial stage.

As I stated earlier, this militates in favor of some alternative to the tort system for these injuries. There are two states which have adopted similar no-fault plans covering birth-related injuries, and each has been in effect for more than a decade.

In the State of Florida, a Florida Birth Related Neurological Injury Compensation Act (sometimes referred to as NICA), was passed to allow families to recover compensation for certain catastrophic birth injuries without consideration of fault. Signficantly, only certain type of injuries are eligible, and it must be established that the injuries were caused by events during the intrapartum period (i.e., during labor and delivery - contrast "perinatal" events, which may include anything in the last few months of pregnancy). The Fund covers claims for treatment and intervention, including medical and rehabilitation expenses, equipment, drugs, etc.; up to $100,000 to the parents; and attorneys' fees. It does not award any compensation to the child for non-economic damages such as pain and suffering, disfigurement, or disability, or for economic losses relating to the inability to work.

Physicians join the fund on a voluntary basis, and contributions to the fund by hospitals are mandatory. Contributions to the fund come from participating physicians, all hospitals, and liability insurance carriers. In 2003, the contribution for participating obstetricians was $5,000 per year, and the assessment on non-participating physicians is $250 per year. Hospitals are assessed $50 for each birth, with an annual maximum of $150,000. There is provision for an assessment on liability carriers if needed to ensure the financial viability of the program, but it has not been invoked.

A participating physiciain is immune from tort liability, and the immunity extends to all health care providers who were involved in the delivery. The fund has per-occurrence and annual aggregate limits, and the physician may still be liable for payments which exceed those limits.

The statute was passed in 1988, so it has been in effect for more than ten years in Florida. A report shows that, as of June 2002, 161 claims have been approved for benefits.

The Virginia Birth-Related Neurological Injury Compensation Act was passed in 1987. Eligibility factors are essentially identical to those in Florida. Funding is similar, but there is an actual assessment on liability carriers.

The Virginia statute differs from Florida's in the payment to the family. There is no compensation for the parents, but Virginia does compensate families for the child's lost earnings, described as "loss of earnings from age 18 to 65 calculated at 50% of the average weekly wage of private sector, nonfarm workers".

The Virginia Legislature created a Joint Legislative Audit and Review Commission to evaluate the program in 2002. It reported that 75 children were participants in the program, and the average yearly benefits paid were $62,000. The fund was reported to be not actuarially sound at that time, holding about $84 million in assets against unfunded liabilities of $88 million. In other words, some adjustments of assessments will need to be made; the program is not in imminent danger of collapse.

An amendment to the statute was passed in 2003 to add an additional payment, up to $100,000 in the discretion of the commission, to the family of an infant who dies within 180 days of birth, to compensate for "sorrow, mental anguish, solace, grief associated with the death of the infant, and all other material factors that are relevant".

Reports

An overview of both programs can be found at the web site of the State of Connecticut.

With a grant from the Robert Wood Johnson Foundation, the Duke University Medical Center undertook a study and evaluation of the systems in both states. A short-form report is available. The findings as listed in the report were:

The Florida and Virginia no-fault programs achieved their primary objective, which was to maintain the availability of affordable obstetrical liability coverage for physicians.
Administration of no-fault is less expensive than under the tort system, and the speed of resolving no-fault cases, once filed, is very high.
No-fault claimants generally expressed satisfaction with the programs.
Only a small portion of potential claimants seeks compensation under either no-fault or tort.
The Florida and Virginia programs are too limited in scope to achieve many of the goals that proponents ascribe to the no-fault system — such as broader access to compensation and increased prevention of medical injuries.

The findings and detailed reports were published in a number of medical journals:

Bovbjerg RR and Sloan FA. "No-Fault for Medical Injury: Theory and Evidence." University of Cincinnati Law Review. 67 (Fall): 53-125, 1998.

Bovbjerg RR, Sloan FA, and Rankin PJ. "Administrative Performance of 'No-Fault' Compensation for Medical Injury." Law and Contemporary Problems. 60 (Winter & Spring): 35-70, 1997.

Sloan FA, Whetten-Goldstein K, Entman SS, Kulas E, and Stout E. "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ." Law and Contemporary Problems. 60 (Winter & Spring): 71-115, 1997.

Sloan FA, Whetten-Goldstein K, and Hickson GB. "The Influence of Obstetric No-Fault Compensation on Obstetricians' Practice Patterns." American Journal of Obstetrics and Gynecology. 179 (September): 671-676, 1998.

Sloan FA, Whetten-Goldstein K, Stout EM, Entman SS, and Hickson GB. "No-Fault System of Compensation for Obstetric Injury: Winners and Losers." Obstetrics & Gynecology. 91 (March): 437-443, 1998.

Whetten-Goldstein K, Kulas E, Sloan F, Hickson G, and Entman S. "Compensation for Birth-Related Injury: No-Fault Programs Compared with Tort System." Archives of Pediatrics & Adolescent Medicine. 153 (January): 41-48, 1999.

Comments

Both states' compensation programs require that the claimant establish the causation element that we have been discussing. The numbers discussed above reflect the claimants who have been found to be eligible. The Robert Wood Johnson report disclosed that about half of the claims in Florida were rejected for failure to establish causation.

Junk science and cerebral palsy cases, re-revisited

Sat, 14 Feb 2004 21:02:31 GMT

In response to my posting of February 1, in which I took the position that the obstetrics malpractice cases pursued by John Edwards when he was a plaintiff's trial attorney in North Carolina were not based on "junk science" as that term is used and understood in current parlance, Walter Olson responded on February 2.

Recall that the cases in question reportedly involved claims for damages for cerebral palsy allegedly arising from perinatal hypoxia - deprivation of oxygen to the newborn, before or during delivery. The "causation hypothesis" under discussion is that cerebral palsy is or can be caused by perinatal hypoxia, sometimes also called intrapartum asphyxia.

Olson's responsive posting cited two sources from the political rather than from the medical literature:

"A two-volume report from the Institute of Medicine, entitled Medical Professional Liability and the Delivery of Obstetrical Care, in the course of exploring its subject, built a substantial case that many obstetricians were being wrongly sued. It appeared in 1989. In his widely reviewed book Galileo's Revenge, which was and remains the leading popular work assailing "junk science", my Manhattan Institute colleague Peter Huber accords a central role (and a full chapter) to cases charging obstetricians with causing cerebral palsy."

The Institute of Medicine's report had this to say:

"Until recently, cerebral palsy was thought to be linked to abnormal parturition, difficult labor, premature birth, and hypoxia or asphyxia of the infant. The committee evaluated more recent data that cast serious doubt on the correlation between presumed hypoxia and later cerebral palsy."

The publication went on to cite the many studies published by Nelson and Ellenberg (the most active researchers in this area) in the 1980s and their conclusions, including the following specific items. We will correlate the statements with the reverse and deductive conclusions that are not mentioned:

"Of the cases studied, 69% [of the cases of CP] did not have even one clinical marker of asphyxia [at birth]."
(This means that 31% did. The conclusion, one with which all will agree: other things may also cause CP.)

"Of the 21% that did [note the mathematical error], 58% had an alternative explanation."
(This means that for 42% of those which did show asphyxia, it was the only factor. The presence of two or more alternative factors complicates the analysis for the 58%, which explains why OB malpractice cases are so complex.)

It then quotes directly from Nelson and Ellenberg, including the following:

"[The] results suggest a relatively small role for factors of labor and delivery in accounting for cerebral palsy."

A "relatively small" role is not the same as "no role".

Galileo's Revenge, published in 1991, was a well-written book, but it has been subjected to some criticism of its own. A review of the author's carefully-chosen language is instructive. At p. 82, Huber cites to a well-known 1986 study published in the New England Journal of Medicine for the proposition that:

"More than half [of babies later diagnosed with cerebral palsy] who display at least one sign of asphyxia at birth also exhibit some more important risk factor, like congenital malformation, low birth weight, or microcephaly."

This language, though, means that nearly half of the CP babies who showed evidence of perinatal asphyxia did not have any other associated risk factor.

The various sources cited by Huber did not conclude that hypoxia at birth does not cause cerebral palsy. What they concluded and declared was that hypoxia at birth is not the only thing that causes cerebral palsy. That is a different thing entirely.

Huber (who is an engineer, not a physician) stated the following as a conclusion, made without any citation to medical authority:

"Yes, it is possible for asphyxia to cause cerebral palsy, but only if the asphyxia is especially severe and prolonged."

For a critical evaluation of Huber's book, see "Galileo's Retort: Peter Huber's Junk Scholarship", 42 Am. Univ. Law Rev. 1637 (Summer 1993) by Kenneth J. Chesebro, and "Junk Scholarship In Search Of Junk Science" by William F. Gallagher. In the latter, Gallagher commented:

"Huber's treatment of the cerebral palsy cases would embarrass even a first year law student. He argues that obstetric malpractice accounts for a negligible number of cerebral palsy cases, and consequently most suits brought by plaintiffs that allege medical malpractice as the cause of infant cerebral palsy are frivolous, and efforts to reduce cerebral palsy by improving obstetrical care are nothing more than a cruel and expensive hoax. Huber asserts that most cerebral palsy babies are doomed long before an obstetrician comes near them. His argument relies most heavily on an article appearing in 1986 in the New England Journal of Medicine, Karin B. Nelson and Jonas H. Ellenberg, Antecedents of Cerebral Palsy: Multivariate Analysis of Risk, 315 New Eng. J. Med. 81 (1986). Huber claims that this study brings to a definitive end the century long debate over the causes of cerebral palsy.

"However, Huber fails to inform the reader that the editors of the New England Journal of Medicine, in the very issue that published the Nelson and Ellenberg article, noted significant analytical flaws in the article. In an unusual step, the editors paired the publication of the Nelson and Ellenberg study, which they obviously regarded as provocative, with their own critique of the article's underlying analytical premise. The author of the editorial, Dr. Nigel Paneth, of Columbia University College of Physicians and Surgeons, stated concern that the methods used by Nelson and Ellenberg could have obscured the asphyxia. Birth and the Origins of Cerebral Palsy, 315 New Eng. J. Med. 124, 125 (1986). Dr. Paneth criticized Nelson and Ellenberg's study for confounding prediction with cause: the fact that certain pre-birth conditions unrelated to delivery may predict cerebral palsy does not mean that physicians cannot overcome these problems through state of the art birth procedures that can ensure a healthy baby. Thus, failure to use these procedures may constitute a proximate cause of cerebral palsy.

"Moreover, Huber fails to acknowledge that one of the co-authors of the Nelson and Ellenberg study essentially recanted her conclusion two years later. See, Karen B. Nelson, What Proportion of Cerebral Palsy is Related to Birth Asphyxia? 112 J. Pediatrics 572, 573 (1988). Huber's failure to even apprise the reader of either Dr. Paneth's editorial or Nelson's disavowal of her earlier study is incomprehensible. If he did it in a Connecticut court, he would probably end up before the grievance committee. Huber can hardly claim inadvertence. He was well aware of both the editorial criticism and the Nelson recantation because he cited both sources earlier in his chapter as background on the problem of cerebral palsy."

I do not venture to say whether Huber's analysis or Gallagher's is more sound. I simply point out that there are many views clamoring to be heard.

Medical sources

Each of the sources cited by Olson has some useful information, but I prefer to refer to medical sources when discussing medical issues. Edwards practiced in North Carolina from 1977 to 1998, so the medical sources which were extant during that time period should be considered.

The following is the entry from Williams Obstetrics, 17th edition, 1985, p. 794:

"Cerebral palsy may result from preterm birth complicated by asphxia in utero [i.e., cord compression] or in the newborn period, from severe hyperbilirubinemia, from cerebral and cerebellar malformations, and from infections acquired in utero. . ."

It then goes on to note an early study (dated 1982) that raised some questions about the causation issue, but still found a causal association in a certain number of cases.

"Holm has provided a review of 142 cases of cerebral palsy. One half were the consequence of events that occurred before labor and delivery. No more than 10 percent were considered to be caused by labor and the method of delivery."

Again, a 10% correlation is not the same as no correlation.

Compare later developments in the fields of obstetrics and pediatrics. The entry from the 1997 edition of Williams is much more detailed and much more reserved on this issue, but it still supports the causation hypothesis in certain specified cases. The following is language based on a study done under the joint auspices of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics in the mid-1990s:

"In order to establish that hypoxia near delivery was severe enough to cause hypoxic ischemic encephalopathy [brain damage caused by oxygen deprivation], all of the following must be met:

[The text then goes on to list highly technical names and descriptions for what we can identify in shorthand somewhat-plain English as

1. Cord pH less than 7.0
2. Apgars at 3 or less after five minutes
3. Neurologic problems
4. Dysfunction of several organs]

In the section entitled "Brain Disorders", the author notes a number of studies that call some of the previously-held conclusions into question, but the ultimate conclusion repeats the factors listed in the ACOG-AAP consensus criteria stated above.

The conclusion is that, in those cases in which the listed factors are present, the medical profession today accepts a causal relationship between intrapartum asphyxia and neonatal brain damage that can later manifest as cerebral palsy. A graphic figure taken from a 1985 study shows the following:

For babies with mild to moderate brain damage at birth, 12% had fetal hypoxia as a risk factor.
For those with severe brain damage at birth, 22% were associated with fetal hypoxia.

I will repeat my statement. The state of medical thought on the causation issue has seen a lot of development over the last 20-30 years. I believe that the position in favor of a causal connection was not by any means "junk science" during the 1980s and 1990s, and even today there is still widespread controversy on the topic. A conclusion that birth defects are caused by maternal use of Bendectin (as an example) can accurately be called "junk science", because (1) there is no reliable medical evidence demonstrating the connection and (2) the medical profession as a whole does not accept the connection as having been scientifically established. By contrast, the belief that there are causal connections between perinatal asphyxia and cerebral palsy has been accepted by the medical profession in the past and continues to be accepted today, though in a more narrow range of cases.

This issue is enormously complicated from both a medical and legal perspective. It is one which is also enormously important, given the amount of money which passes from the medical profession to professional liability claimants in these cases. The causation issue does not lend itself well to the simple statements and overarching accusations which tend to be used in political commentary.

Targeting frivolous filings

Sat, 14 Feb 2004 12:59:52 GMT

The Ohio State Medical Association is soliciting its members to submit examples of frivolous lawsuits against doctors, with the hope of using a few egregious test cases to seek redress from the litigants and/or the attorneys filing the cases. It has already received 40 candidate cases, and expects more. The focus of OSMA's efforts appears to be "shotgun" filings, cases in which nearly every health care provider who had contact with a patient is sued, with the intent to winnow out the true targets later. (Source: American Medical News)

New freedoms in Massachusetts

Sat, 07 Feb 2004 04:01:52 GMT

The opinion of the Massachusetts Supreme Court entitled OPINIONS OF THE JUSTICES TO THE SENATE *, which has recently been in the news, is based solely on the Massachusetts Constitution, and thus should be impervious to any appeal to the U.S. Supreme Court. For reasons that I have mentioned earlier at this site, there is no constitutional basis for any amendment to the U.S. Constitution to overturn this decision. The folks in Massachusetts, in my opinion, should have to live with the results of their Supreme Court's decision, unless and until appropriate processes under the laws of the Commonwealth can counter it.

A quote from the opinion:

The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.

(Quaere which same-sex couples are not homosexual.)

My favorite comment is that by Pat Buchanan, who of course deems this ruling an "outrage" and would surely favor invasion of Massachusetts by Federal troops:

"By next June, we'll have a bevy of blushing brides with beards and mustaches."

------------------------------------------------

* We have applied a tinyURL to the opinion, since the original URL is as follows:

http://weblinks.westlaw.com/Search/default.wl?RP=%2FWelcome%2FFrameless%2FSearch%2Ewl&;n=3&ACTION=SEARCH&bhcp=1&bQlocfnd=True&CFID=0&DB=MA%2DORSLIP&Method=TNC&query=to%28allsct+allsctrs+allsctoj%29+&RLT=CLID%5FQRYRLT564462&sp=MassOF%2D1001&ssl=n&strRecreate=no&sv=Split&RS=WEBL2.92&VR=2.0&SPa=MassOF-1001&serialnum=2004108962

A little more, and then quiet for a while

Mon, 02 Feb 2004 04:52:39 GMT

This will be my last comment on these issues for a few days.

Among the discussions engaged in by Walter Olson, Peter Nordberg, David Bernstein and I over the last week about the legitimacy of the claims made in some of the cases John Edwards pursued as a North Carolina plaintiff’s trial lawyer – essentially, that errors made by delivering physicians led to intrapartum hypoxia causing cerebral palsy in the neonate – it seems that I have neglected to address one important issue: whether Edwards had any reason to disbelieve the theories he was advancing on behalf of his clients. In so doing, I fear that I have given too much credence to Olson's initial criticisms of Edwards. Those who have read my comments on the obligation of strong advocacy by the trial lawyer for his client may perceive that, by leaving it unchallenged, I have accepted Olson's position that Edwards's obstetrical malpractice cases were founded on "junk science".

Nordberg and I have not addressed the question of whether the weight of scientific evidence supported those causation theories. By contrast, Bernstein poses the question based on an extreme assumption:

I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be "junk science."

This is the classic "straw man" argument. Bernstein proceeds from the premise that Edwards was a showman and a charlatan, that he knew as a lawyer that the theories he espoused were fallacious, and that he knowingly advanced them despite that knowledge. Olson likewise suggests (putting it very bluntly) that Edwards knew that he was slinging bullshit in the courtroom, but knowingly chose to do so, despite the harm it caused to the obstetricians he sued, because it made him wealthy.

Olson's criticism is, as I have suggested, a political rather than a legal or medical argument, since that is his job.

In fact, the theory that perinatal hypoxia or perinatal "asphyxia" can cause cerebral palsy has been an hotly debated issue in the fields of obstetrics and maternal-fetal medicine for the last 25 years. It was not until a year ago that some authoritative declarations were made in this area. Even those, however, are still far from definitive on this issue.

The report of the ACOG Task Force on Neonatal Encephalopathy and Cerebral Palsy was released almost exactly one year ago today, on January 30, 2003. That is the first release of what can be characterized as a "consensus" view within the obstetrics profession on this vital issue. For 25 or more years prior to that report, the issue of whether and to what extent depriving the neonate of oxygen can result in neurological deficits was an open question, one which was widely debated and highly controversial during that time. Indeed, a review of most of the medical literature and authorities published during the 1980s and 1990s shows a preponderance of belief in favor of the association. Although some studies questioning this long-held belief began to emerge, it is accurate to say that many level-headed and disciplined scientific minds were persuaded that such an association existed during the last quarter of the 20^th century, including the entire time that John Edwards was practicing law.

Indeed, even the 2003 report does not dissociate the two completely. Instead, it differentiates those forms of CP which can be from those which are not associated with intrapartum asphyxia:

Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events. Spastic quadriplegia is not specific to intrapartum hypoxia. Hemiparetic cerebral palsy, hemiplegic cerebral palsy, spastic diplegia, and ataxia are unlikely to result from acute intrapartum hypoxia.

Some translation is needed:

"Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events."

This means that there is a known association between deprivation of oxygen at birth and both spastic quadriplegia and dyskinetic CP.

"Spastic quadriplegia is not specific to intrapartum hypoxia."

This means that other things cause spastic quadriplegia, too.

This is far from a resounding declaration that the causation hypothesis is regarded as laughable by the profession.

As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.

For further consideration in this area, look at the CDC’s publication on cerebral palsy, including the section entitled "What causes cerebral palsy? Can it be prevented?", which was current as of October 2002. It can fairly be said that the CDC tries to be even-handed on these hotly-contested causation issues. The following is the first paragraph under that section:

Cerebral palsy is caused by brain damage that affects a child's ability to control his or her muscles. The part of the brain that is damaged determines what parts of the body are affected. There are many possible causes of the brain damage. Some causes affect how the child's brain develops during the first 6 months of pregnancy. These causes include genetic conditions and problems with the blood supply to the brain. Other causes of cerebral palsy happen after the brain has developed. These causes can occur during later pregnancy, delivery, or the first years of the child's life. They include bacterial meningitis and other infections, bleeding in the brain, lack of oxygen, severe jaundice, and head injury.

One can criticize John Edwards for many things. As far as I know from the evidence available to me, participation in legal charlatanry is not one of them.

Demonizing a political opponent is splashy and makes for good theater, but in the end it is not too far removed from the scene of Geoff Fieger depicting Richard Thompson, the Oakland County prosecutor of Jack Kevorkian, as a caricature of a clown with a big red nose before the television cameras. I prefer to think of my political opponents and my courtroom opponents as human beings who in many ways are like myself. I find that I understand them better and can oppose them more effectively if I do.

More on Edwards and effective advocacy

Sun, 01 Feb 2004 10:50:06 GMT

Walter Olson responds to us and to Blog 702. In so doing, he misses one mark but makes a side point.

In noting our position and that of the Blog702 author, he says,

A theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of "zealous advocacy". . . We ourselves aren't buying this line of reasoning, but it has some articulate advocates. . .

My first thought is that Olson is obviously not a lawyer if he does not accept this line of reasoning. Not that there's anything wrong with that.™ Olson does not need to be a lawyer to be a knowledgeable commentator on the legal system, but one would expect that he would at least have some appreciation of the nature of the duty owed by a lawyer to his client before offering criticism.

In his posting, Olson points to an earlier item, written in July 2003. That earlier comment and the points made deserve some thoughtful consideration, although in the end they do not make Olson's point for him.

The July item noted a proposal made by the State Bar of Arizona to amend that state's Rules of Professional Conduct to remove the word "zealous" from its provisions, and to substitute in its place an obligation to "act honorably in the furtherance of a client’s interests". The thinking, as Olson notes, based on the comments of an unnamed member of the committee, was that "The term 'zealous'. . . was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent".

The Arizona committee has an excellent point, one that is quite well appreciated here in the home state of Geoffrey Fieger. The lawyer's obligation to be "zealous" can be properly interpreted or it can be misinterpreted. The proper understanding requires that the lawyer work hard for his client’s best interests, that he serve the client well, and (most important for our considerations here) that he advance all arguments on behalf of his client that will accomplish his client's goal. The limitation is that the positions advanced must be either well-founded under law or (as the formulation is commonly phrased) supported by a good-faith argument for extension or revision of existing law.

The standard of "zealous advocacy" does not in any way require or support hostile, belligerent, or improper conduct. It does not permit the lawyer make an effort to bribe the judge, to tamper with the jury, or to use sneaky tactics to introduce obviously improper evidence before the jury. The standard does not justify any of Geoff Fieger's actions:

It does not require or even condone the lawyer appearing on television, putting fake red noses on a caricature of the prosecutor to depict him as a clown.
It does not require or condone taking to the airwaves to call judges who have ruled against the client's position "idiots", "clowns", or "Nazis".

The standard of zealous advocacy does not excuse the lawyer who utilizes such tactics or in any way shield him from the legal or ethical repercussions of his misconduct.

But there is no evidence in any of the reports that Edwards was guilty of any such misconduct. Indeed, he has been described by those who observed his handling of trials as a very effective advocate, one who could persuasively argue his client’s case before a jury and who could articulate complicated medical issues in a way that a lay jury could understand.

Under our system, whether or not the term "zealous" is used, all lawyers and judges understand that a lawyer is not only permitted, he is required to use the current rules of evidence to introduce whatever admissible evidence is going to assist his client’s position in the case. As long as the system allows that evidence to be used, it is proper to use it, and it is the mark of an effective advocate that it be used well in his hands.

The difficulty of having lay juries sit in judgment on complicated issues of professional negligence and of having them sort out and attempt to differentiate between sound science and half-baked theories of causation and other elements of "junk science" may well argue in favor of some process other than the tort system for redressing claims and injuries caused by professional negligence, but there is no legally justified basis to criticize a lawyer who works within that system for using that system and its rules to work for the goal of his client. That is his job, it is what the courts and society expect of him. If that reality is to be changed, it will be necessary to change the system.

Of course, the criticisms that are being leveled against Edwards are being made in the political arena, where neither the legal rules nor the rules of common sense and fair play apply. In the political arena, in the end it is all caricature.

My bomb

Sun, 01 Feb 2004 02:39:47 GMT

Now on iTunes: the January 27 release of "Baby Monkey" by Voodoo Child (he who may be you-know-who). I have downloaded the album and will be firing it up to play once I finish this post.

Apple has tapped into a reality that P.C. Connection used to excel at, and which no other vendor (listening, Jeff?) has yet appreciated: the key to geek happiness is instant gratification.

Baby Monkey
Voodoo Child

Nothin' subtle about this one

Tue, 27 Jan 2004 01:13:19 GMT

Source: boing boing

Nordberg on Olson on Edwards and junk science

Mon, 26 Jan 2004 12:52:38 GMT

The excellent Blog702, which focuses on issues relating to Daubert and the admissibility of scientific evidence, has something important to say about the criticism leveled against John Edwards by Walter Olson and others, criticizing his use of "junk science" in cases he pursued as a plaintiff's trial attorney:

So it's worth mentioning that the expert evidence Edwards has been criticized for using was ruled admissible, in lawsuits in which Edwards's clients prevailed. Litigators, after all, do owe their clients a duty of zealous advocacy. It wasn't Edwards's job to adjudicate his clients' claims himself. It was his duty to present the strongest legally legitimate evidence on their behalf to a court and jury, in furtherance of the clients' interests under applicable law. There's no scandal in that. What would have been scandalous is telling a client that although expert evidence admissible under prevailing legal standards would support a verdict in the client's favor, Edwards personally disagreed with the evidence, or believed it should not be admissible, and therefore wouldn't offer it. . . Offering admissible evidence on behalf of his client was not some moral or ethical failing. It was his job.

I would only add that it was also his job, under the rule of "zealous advocacy", to push for admissibility of this evidence whenever possible. A plaintiff's attorney is not expected to simply use admissible expert evidence when the law clearly allows it. He is expected to argue for and urge the acceptance of expert evidence favoring his client whenever the circumstances would suggest it.

The lawyers for the parties are not the gatekeepers under Daubert and under similar state laws. That is the job of the trial judge.

A more fruitful area for inquiry might be: Who were the witnesses on whose testimony Edwards built his cases? Were they known to be honest, or were they known to be less than honest? The judges who heard his cases and the defense lawyers who opposed Edwards would know. And a trial lawyer is known by the company he keeps.

Another textualist conundrum

Mon, 26 Jan 2004 02:45:08 GMT

The Grand Rapids Press reports today that the Michigan Supreme Court is being asked to address the case of David Sanchez, an illegal alien who was seriously injured on the job in 1998 at Eagle Alloy, a Muskegon foundry, and who drew workers' compensation benefits for about a year until his illegal status and his use of forged documents was discovered.

The issues in the case, as described by the Press:

Lawyers for Sanchez maintain he's entitled to benefits even after he was fired since state law provides that "aliens" are covered as well as citizens.

But a provision of the law exempts employers from paying compensation if a worker cannot work because of imprisonment or "commission of a crime." Eagle Alloy maintains it's not required to pay compensation because Sanchez -- by virtue of his fraudulent application and illegal status -- committed a crime.

This will be an interesting case for our textualist-minded Justices. The section in question is MCL 418.361, which provides for the payment of wage loss benefits and then carves out an exception:

However, an employer shall not be liable for compensation under section 351, 371(1), or this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.

This section does nothing to disqualify a worker, including an alien, from receiving workers' compensation benefits if he committed a crime in securing the job (falsifying his papers) or in continuing to work. This section is designed to prohibit a worker who is eligible for benefits for receiving those benefits while imprisoned or while otherwise unable to work as a result of a criminal act. Unlike the driver thrown in jail for OUIL while receiving benefits, this man is not physically or otherwise "unable to. . . perform work because of" a criminal act. The article does not suggest that Sanchez is currently imprisoned, under a deportation order, or otherwise unable to work as a result of his illegal status. Indeed, it discloses that he is currently working:

As he awaits a decision in his case, he is working another factory job. Sanchez said he's not looking for any special help to make in here. He expects to earn his way. "I need to work," he said.

But even if he is regarded as ineligible for employment because employing him would be a crime, that does not make him unable to perform work because of "commission of a crime". The "inability" to perform work would be a result of the need to avoid committing a new crime.

Textualism isn't as easy as it sounds, is it?

Political mavens take note

Mon, 26 Jan 2004 00:03:23 GMT

It took Instapundit to point it out to us: The Detroit News is seeking volunteer weblog authors for 30-day runs during the 2004 election season. I would consider participating, but the News would want to publish my photo, which would tend to diminish the reputation I have so carefully crafted.

Case against airline can continue

Sun, 25 Jan 2004 23:46:30 GMT

Friday's Free Press reports that Judge Gerald Rosen of the Eastern District of Michigan has declined to dismiss a case against Northwest Airlines alleging that it failed to supervise an 11-year-old girl who was traveling alone, allowing her to be molested by another passenger. Rosen rejected the argument that the case must fail under previous Michigan cases holding that businesses have no general duty to protect their customers from the criminal acts of others, noting that the girl's parents had paid a special $40 fee to allow her to travel alone, and also noting that the airline's web site had represented that payment of the fee would provide a "safe, comfortable, and fun flight" for an unaccompanied child.

What happened at Tuskegee?

Thu, 22 Jan 2004 12:49:18 GMT

Richard Schweder, writing in Tuskegee Re-Examined at the Spiked Science section of the Spiked Online site, reports on the Tuskegee study, popularly mischaracterized as a racist and genocidal experiment in which black men were deliberately kept from receiving treatment for syphilis. In many accounts it is falsely claimed that they were deliberately infected with syphilis for the study. Schweder looked into the study in the interest of learning what did occur, and found that things are not as they are commonly portrayed in the media and elsewhere.

Some highlights:

Accusations of racism, egregious harm and betrayal (lack of informed consent) are common features of the horror-story account. A sober representation in this genre might state that the Tuskegee syphilis study was 'a US Public Health Service experiment that allowed 400 black males of Tuskegee to go unknowingly without syphilis medication for 40 years simply to satisfy the medical profession's curiosity about what happens to people when they aren't cured of venereal disease' (3).

The implication of that statement, of course, is that the syphilis infections of the residents of Macon County in 1932 could have been cured, yet vulnerable black men were kept ignorant of their condition and left to suffer because of the racist attitudes at the Public Health Service - and that all this was done in the name of callous science by researchers who had no real interest in the public good or the welfare of members of a poor minority group in the South.

* * *

I also learned that the therapies of that era were in fact so weak, hazardous, lengthy, costly and difficult to administer that very few people with syphilis were willing to tolerate the drugs for the full course of the treatment. Most patients (perhaps 85 per cent) simply voted with their feet and gave up on the 'therapy'. Of those who did suffer through the full treatment (it could take more than a year and required carefully monitored intravenous administration of the drug) relatively few patients were ever cured of the syphilis infection or protected against its potentially damaging effects because of those therapies.

Indeed, one of the most astonishing facts about the disease (at least to those of us who are not medical scientists, or who naively associate syphilis with the demise and devastation of Frederick Nietzsche) is that, after the early stages of infection, the vast majority of people who have untreated syphilis either remain asymptomatic all of their lives or else spontaneously recover from the disease. For most people, a syphilis infection is either a self-limiting or self-correcting disease, and in the 1930s the degree to which doing something (a year of protoplasmic arsenic poisoning) was better than doing nothing at all was at the very least uncertain, and was thus a matter of urgent medical and scientific concern.

* * *

I also learned that the study emerged out of a liberal progressive public health movement concerned about the health and wellbeing of the African-American population. The study was done with the full knowledge, endorsement and participation of African-American medical professionals, hospitals and research institutes.

Schweder's introduction is worth reprinting for consideration:

Some of the intellectual virtues we associate with a Thucydides, or with a Socrates (a principled commitment to explore the other side) are at risk of being sacrificed in our contemporary public policy forums. All too often these days one witnesses the triumph of identity politics over critical reason. All too often a rhetoric of evil and moral horror demanding protective public interventions has produced a rush to judgement about matters of great consequence.

Clinton in Qatar

Wed, 21 Jan 2004 01:32:45 GMT

And while we bask in the glow of positive comments on our adversaries, check out the column by Ralph Peters in the New York Post, describing Bill Clinton's speech to a conference in Qatar. Peters was surprised at how forceful and how positive Clinton was.

As soon as he took the podium, Clinton began taking stands as brave as they were necessary. With virtuoso skill, he led the audience where they needed to go - while convincing them it was where they had wanted to end up all along. His sense not only of what required saying, but of how best to express it to that complex, contrary audience was almost supernatural. . . He didn't pander. He made America's case and made it well. Beginning with a sometimes-rueful look at the progress his administration had failed to make and noting that the wars that plague the world are begun by men his own age or older, but paid for in blood by the young, he refused to direct one syllable of blame at the Bush administration. Accepted as a citizen of the world, he spoke as a convinced American.

Asked by an eager-to-Bush-bash delegate if he, Bill Clinton, would have behaved differently after 9/11, our former president said he would have followed an identical course, pursuing our enemies into Afghanistan and beyond. Queried about his position on Iraq, he stated that any disagreements he might have would be most appropriately expressed at home in the U.S., not before a foreign audience.

The contrast between the former President, speaking confidently and positively to a group that would not be expected to be friendly, and the bunch of nattering nabobs of. . . well, you know, who want to have the chance to run for President could not be more striking.

Mackinac Center on the Gov

Tue, 20 Jan 2004 23:35:25 GMT

The Mackinac Center for Public Policy, a conservative think tank based in Midland, has issued a report card, grading Gov. Granholm after her first year in office. The verdict, perhaps a bit surprising: a B-.

The report compliments Granholm for avoiding the prevailing liberal tendency to resort immediately to tax increases to counter declining revenues, the approach used by Gov. Bob Taft of Ohio. She has cut spending at many levels of state government, including the Executive Branch, and the report notes that this is a sharp contrast to the President's push for "massive hikes in domestic, nondefense spending at more than double the rate the Clinton administration delivered". She has even sought modest reductions in K-12 education, a "sacred cow" of politics in any state.

One key observation:

While we applaud many aspects of Gov. Granholm’s handling of the state budget deficit this year, we know that a new and important test on that front may be coming soon. What will the governor do when the nascent economic turnaround begins to yield higher revenues for Lansing? Will all the talk about reinventing government give way to pleasing traditional constituencies, throwing money at one perceived problem or another, expanding state programs that the citizenry would do better without? Will she set state government once again on the course of more spending, thereby making it all the more difficult for Michigan to weather the next downturn, whenever it comes? This remains to be seen.

The report identifies several areas in which Granholm has faltered, including the debacle over charter schools in Detroit, but overall a grade of B- is a pretty favorable rating for a Governor from "the other side of the aisle".