Wednesday, May 16, 2007

Medical Blogging and the tragedy of the commons

I have been thinking about medical blogs since Flea deleted his. Fat Doctor has deleted hers too, and unfortunately I don't think we will see their blogs reappear. I think the risks are too high. I think that all of the medical bloggers are going to disappear or go private in a month or less. I have no doubt that there are lawyers right now, trying to figure out who various medical bloggers are and who their patients are, so they can file suit against the doctors for "privacy violations" and then "settle" instead of going to trial. (aka as "legal extortion" (to non-lawyers)). Settling for $10k, $30k, even $50k, is much cheaper than going to trial for $200k.

Once that becomes common (i.e. happens even once) we will see US medical blogs disappear. It will be a shame when that happens.

Medical malpractice insurance isn't at a state where it can accommodate blogging. There isn't enough experience with it to be able to set premiums other than exorbitantly. There isn't enough income associated with blogging to support even modest premiums.

The UK medical blogs will stay up because in the UK legal system the loser pays the legal bills of the winner. If the US were to adopt that policy, marginal lawsuits would disappear in the US too. But then so would marginal lawyers. As a non-lawyer cynic, I say that will never happen.

But hey, when a judge can demand $65 million for a lost pair of pants, what does anyone expect? Certainly not "justice".

It is what is known as a "tragedy of the commons". When a resource is not privately controlled, the first to exploit it can liquidate it and acquire what ever the liquidated value is. The liquidated value of medical blogging might be a few hundred $k (liquidated by "legal extortion" that is). The non-liquidated value to everyone collectively might be higher, but who ever liquidates it first gets all the liquidated value.

With such a time pressure to be first, I think it will happen within a month.

39 comments:

Sarabeth said...

Don't you think that Flea was on shaky ground blogging about an on-going wrongful death court case?

daedalus2u said...

Shaky ground about what? The facts of the case were not affected by what Flea wrote. Flea wasn't trying to prejudice a jury pool, or influence witnesses, or the judge. Flea didn't talk about the facts of the case, only his feelings about what was going on, and the hoops he was being forced to jump through. Not surprisingly, Flea's feelings were that he didn't want to be there, not a surprise. Why does that matter? By what basis does what Flea wrote affect the trial?

If the legal system worked as it was "supposed to", Flea blogging about it shouldn't have made any difference at all.

The "problem" as I perceive it, is that the US legal system is broken. A big part of the "problem" comes from the very basic roots of the adversarial legal system we have. It was originally derived from "might makes right", and if you had a dispute, you fought it out and "God" would ensure that who ever was in the right would win. Then it became trial by champions, and finally the system we have now, trial by lawyers.

I suppose what we have is better than having people fight each other to the death. I think we could do a lot better.

A lawyer is supposed to do anything and everything (short of something illegal) so that his/her client will "win". That includes proposing "theories" to the jury that the lawyer knows are false but which he can find "evidence" for.

It isn't about "justice", it isn't about being "fair", it is about "winning", it is about money.

But lawyers don't want a "fair" system. If the legal system was "fair", then a plain vanilla lawyer would be as good as any other. The outcome would depend on the facts and the evidence, not on how the lawyers can spin things.

Lawyers want a legal system where a "good lawyer" (ie one who can spin and distort and "win" in spite of bad facts and being in the wrong) gets paid big bucks.

How is that for a perverse incentive? The "best" lawyer is one who can "win" for his client when in a just world his client would lose.

Sarabeth said...

By shaky ground I meant that even his feelings, if discovered by the plaintiffs or the plaintiff's attorney, could be detrimental to his image in terms of how the jury perceived the doctor. Flea himself explained that impressions of the jury about the doctor are important when trying a case. It's not what I think that matters; it is what that jury thinks and how an attorney can color their perceptions with blog entries.

Yes, he didn't want to be there. One person may infer that the entire process is egregious to the doctor. Another may infer that Flea is arrogant, believes he has done no wrong, and could care less that a child has died. Everything, in a court room especially, is up for interpretation.

My point is not about the legal system, but Flea's individual case. He has young children to consider. If he loses this case, his life will be irreparably changed. I've known doctors who have been successfully sued in a wrongful death case. They are never the same.

daedalus2u said...

Flea's feelings are not data about the case. There is no way that Flea's feelings should be put into evidence. If Flea committed malpractice, that malpractice occurred before the person died. It did not occur years later when Flea blogged about his feelings about being sued.

I don't doubt that Flea's blogs will be used against him.

Even if Flea is an arrogant SOB and didn't care about the child (which I don't believe for a second), what relevance does that have on the facts of the malpractice case? None that I can see.

How many hours have Flea's lawyers likely spent on his blog now? At $400+ per hour? 10? 20? 50?

It wouldn't surprise me if the plaintif goes for a mistrial because of Flea's blog. Not that it has any relevance to the trial, but by doing so it gives them another "whack" at him, drives his legal bills up, makes his insurance company want to settle, gives Flea ulcers and makes him sick. Exactly the state the plaintif wants Flea to be in.

I think Flea's life is already irreparably changed. I think Flea will never blog again. I think that is a tremendous shame, a tremendous waste, a tremendous loss for all of us. It is part of the "price" that we pay for the type of legal system that we have. A "price" that I think is needlessly and grotesquely high and provides nothing of value.

Anne said...

Whoa, I mised this whole thing! I wonder what happened?

What, Flea was blogging about his own malpractice case? Yeah, his lawyers would have to advise him against it, just in case something he said could be construed as some kind of admission.

Matt said...

" I have no doubt that there are lawyers right now, trying to figure out who various medical bloggers are and who their patients are, so they can file suit against the doctors for "privacy violations" and then "settle" instead of going to trial."

You say you have no doubt - what exactly would be the statute or common law principle one would rely on to do this? And given that anonymous case studies in both law and medicine are published literally every day, and no one has yet prevailed on any claim on these anonymous studies, it would seem that your conclusion is a little weak.

As to whether med mal can accomodate blogging, what does that even mean? You've stretched Flea's case, such as it is, to incredible proportions. Flea's example is a purely evidentiary issue, and we don't even know how much of one since it consisted of a single question.

As for the judge suing someone, simply because a case gets filed means little. People file BS claims pro-se all over this country every day. Doesn't mean they go anyhere.

As for "loser pays", we already have a form of that in most states. And it's not universal in the UK, and indeed by most accounts, isn't significantly different from what most states have over here.

The sky is not falling yet, chicken little. A simple dose of common sense - ie., don't blog, talk, or write in the public domain about ongoing litigation, is all that is required.

Matt said...

"If the legal system worked as it was "supposed to", Flea blogging about it shouldn't have made any difference at all."

And it might not have - but Flea didn't give us the chance to find out, did he? He was asked one question: "are you Flea?"

"But lawyers don't want a "fair" system. If the legal system was "fair", then a plain vanilla lawyer would be as good as any other."

What's a plain vanilla lawyer? Is it your contention that a person who primarily does probate work ought to win a complex malpractice case just as easily as someone who is regularly in court? Even though they likely haven't even seen the Rules of Evidence since law school? Is the medical system "unfair" because all doctors don't have the same level of talent?

As to your history lesson on the adversarial process, suffice to say it is not grounded in fact.

daedalus2u said...

Well Matt, it is pretty clear where your sympathies lie. Everyone is "equal", and is entitled to just as much "justice" as they can afford to hire lawyers to get. If you are a lawyer and can represent yourself, hey, some are just more "equal" than others.

Did you even read the judge's pants article? The defendants offered to settle for 10 times the cost of an entire new suit. They have already spent a huge amount on legal fees. By what "legal theory" will they be able to recover them? BFD, they "win" the case by not having to pay $65,462,500.00 for a frigging pair of pants. At what cost? A couple hundred thousand in legal fees? That is "justice"? What planet are you on?

Earth to Matt, the sky is falling. It just came crashing down on Ki, Jin and Soo Chung.

Ever hear the expression "The power to tax is the power to destroy" by Justice John Marshall? The current legal system gives that power to destroy to anyone with enough money to hire lawyers to file lawsuits. In that sense, we are all "equal". If you are a lawyer and don't need to hire anyone, hey, some people are more "equal" than others.

All doctors are looking for the same thing, the proper diagnosis. The "best" doctor simply gets to the proper diagnosis the fastest. What are lawyers looking for? Certainly not the same thing, certainly not "justice" for their client. They are looking for a "win" for their client. The "best" lawyer gets the "win", irrespective of the facts, the law, what is fair, what is just, or what would make the world a better place.

That you and other lawyers are unable to even see that there is a problem shows just how deep the disconnect is. What is the operator of a dry cleaners supposed to do to avoid a $65,000,000.00 lawsuit over a pair of pants? You say nothing, that "As for the judge suing someone, simply because a case gets filed means little. People file BS claims pro-se all over this country every day. Doesn't mean they go anywhere." Right, just pay the couple hundred k for the legal work, and you will "win" the BS claim.

You really don't get it.

Matt said...

"Earth to Matt, the sky is falling. It just came crashing down on Ki, Jin and Soo Chung."

How so? They've had a complaint filed against them. End of story. Happens every day - business partners sue each other, people sue their insurers, businesses sue customers that won't pay their bill. What's your point chicken little?

The case isn't even over. They may well get this guy sanctioned and get an award of attorneys' fees. You literally know hardly any of the facts, and yet you're taking this one case filed by one person representing themself which is barely underway and declaring it the end of Western Civilization. Get ahold of yourself.

"What are lawyers looking for? Certainly not the same thing, certainly not "justice" for their client. They are looking for a "win" for their client. The "best" lawyer gets the "win", irrespective of the facts, the law, what is fair, what is just, or what would make the world a better place. "

Really? Tell me, how many cases have you tried? How many trials have you watched start to finish? Please, tell us the extent of your research that has allowed you to reach such damning conclusions.

"Right, just pay the couple hundred k for the legal work, and you will "win" the BS claim."

A couple hundred thousand? Are you drunk? What an ignorant thing to say. The guy filed a complaint, the defense filed an answer denying it, and the discovery process may be underway. No expert witnesses are required, no accident reconstructionists are necessary, where are you getting this $100K figure? It's probably not even going to be a jury trial, which is more expensive than one tried before a judge.

You've lost touch with reality, or you're just spouting off about things you literally know nothing about

daedalus2u said...

Matt, was my statment incorrect? Isn't it a lawyer's "duty" to get a "win" for their client? By any "legal" means? If it happens in one trial, it can happen in any trial.

Who decides if it is a jury trial?

"Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

$65,000,000 exceeds $20, so the plantiff can demand a jury trial. BFD if it costs more, it doesn't cost HIM more. It costs the people who have to hire lawyers more. More reason for him to demand it, more reason for them to settle. They already offered $12k which was turned down. No doubt he thinks he can get more.

Maybe it won't be a jury trial, and maybe monkeys will start flying out of my ass, fly down and carry this judge off to the Wicked Witch of the west. Or maybe not.

Maybe they will get "reasonable" legal fees. I can see it now. "This is obviously such a frivilous case that it could be handled in a few hours. Reasonable legal fees set at $600."

Will they be compensated for their lost time? Of course not. Will they be compensated for interest, aggravation, pain and suffering? Of course not.

Will they be made "whole"? Of course not. BFD if he get "sanctioned". Is that "sanctioning" going to include a requirement that he make them "whole"? Of course it won't.

"Happens every day". Gives me all kinds of warm fuzzies about the legal system.

Matt said...

Without knowing the theory he filed on, we can't know if it will be a jury trial - he may have filed a statutory claim which does not allow for a jury trial.

Either way, you've just reached a lot of conclusions about a whole system, which adjudicates thousands of cases a day, on a few anecdotes where you clearly don't know all the facts.

I hope you don't make all your decisions in that manner

daedalus2u said...

Huh? What "conclusion"? That win, lose or draw, the dry cleaners have lost a hundred times more than the value of the judge's pants?

What "conclusion"? that a system that can be so easily hijacked by a vengeful raging lawyer is broken? That a system that can destroy lives on a whim is broken?

Since I am so ignorant and naive, and you obviously know so much more about the legal system than I do, perhaps you could enlighten me as to what the dry cleaners should have done differently so as to have avoided this mess.

My own ignorant perspective is that there is nothing they could have done. That there, but for the grace of God, and the whims of capricious vengeful raging lawyers could go anyone.

My perspective is that any system that can be used this way is “broken”. If any system but the legal system worked this badly, those responsible would be held accountable for their negligence.

Matt said...

"That win, lose or draw, the dry cleaners have lost a hundred times more than the value of the judge's pants?"

You have no idea if they'll be out of pocket a dime. No one knows at this point.

If you can think of a system where claims can be denied or determined valid BEFORE they are filed, though, I'd love to hear it - sort of a legal "Minority Report" I guess.

"That there, but for the grace of God, and the whims of capricious vengeful raging lawyers could go anyone."

You do realize that unless filing in their own name, which the plaintiff in the case that has you in a lather did, lawyers file on behalf of their clients. And really, the fact that this guy is a lawyer means little - any person can file a pro-se claim, regardless of profession. Again, unless you've got some way to sort claims BEFORE they're even filed, I'm not sure what we could do differently other than bar all claims of any kind.

" any system but the legal system worked this badly, those responsible would be held accountable for their negligence."

Again, he may well be. YOU DON'T KNOW at this point. I believe one report said steps have already been taken to remove him from his position as an administrative law judge.

Anne said...

As a lawyer, I agree with you that the legal system is too adversarial. There have been attempts to use less adversarial methods of conflict resolution, but the adversarial tends to creep back in. The way the system is, I don't think getting rid of lawyers would even the playing field. But I would say that.

daedalus2u said...

The problem is that the "best" lawyer is one who can "win" for the client when in a just world the client would lose.

The "best" lawyers don't want to give up that power. Being able to "game the system" and "win" for their client them highly sought after and makes them lots of money. Changing the "system" so it couldn't be "gamed" would mean such a loss in income that it just won't happen. It would be killing the goose that lays the golden eggs.

There are conspiracists who feel that there are lots of "cures" for cancer, heart disease, diabetes, etc. that medical science has "found", but which it is sitting on because to cure all those diseases would cause a large reduction in doctor incomes.

However, there are some diseases which medical science actually has "cured", and essentially eliminated, smallpox, polio, many childhood diseases through vaccination, dental caries has been greatly reduced through fluoridation. Preventative medicine reduces doctor incomes by treating at an early stage and at low cost disorders that will progress into diseases that require more costly treatment.

Why are there no conspiracists believing that lawyers are maintaining the status quo adversarial legal system to maintain their incomes?

Perhaps because it is just so obvious and blatant that it does not qualify as a conspiracy.

Matt said...

"The problem is that the "best" lawyer is one who can "win" for the client when in a just world the client would lose. "

Who determines what is "just"? You? Based on newspaper articles? If it's not a jury of 12 people, tell me, what way do you have? Who is this incorruptible, all knowing soul who has the ability to determine the objective truth in any situation?

You talk about "gaming the system" and such. I would bet you've never even seen a trial start to finish, much less tried a case, even in small claims court. Having been to some of the best trial ad schools around, I can tell you I've never once heard any instructor teach anyone to "trick" a jury.

What legal system do you have experience with that is so much better than ours?

I think you're yammering on with criticisms about a subject you have only the most meager understanding of.

daedalus2u said...

So you were never taught this?

"I was reminded of that old saw on advice to new lawyers as they start their practice: If the law is on your side, stress the law; if the facts are on your side, stress the facts; if neither is on your side, pound the table and shout."

Ray Wannall, former top intelligence chief of the FBI,

daedalus2u said...

Well Matt, how about the question does silicone cause disease? That seems like a pretty clear question that could have an objective truthful answer don't you think? Knowing if silicone does cause any disease would be a good thing to know before putting a company that makes silicone into bankruptcy? Do you think? I would think so, but apparently the court doesn't.

"A little more than a year after the class action was settled, a scientific panel appointed by the court overseeing the settlement released the results of its breast-implant study, finding that there was no sufficient scientific basis to link silicone implants to cancer, connective tissue diseases, immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of the National Academy of Sciences issued a congressionally funded report that reached the same conclusion."

Huh? Reach a decision before the scientific panel releases the results of its study?

Oh, but the "lawyers" and the "jury" and the "court" had already "proven" that Dow Corning should be destroyed because silicone causes so many diseases (oops it doesn't), and anyway Dow Corning was a bad company for making such a dangerous material (oops it isn't dangerous), and any way the lawyers made a lot of money (but the Dow Corning shareholders lost everything). But "justice" was served!

But I guess lawyers, jurors and judges who don't know or understand science are exactly the ones to determine just how "truthy" something is.

Scientific answers are not determined that way. It is too bad that legal "truthy" ones are. Maybe the legal system can get its act together and not sentence so many innocent people to death. But no doubt the juries thought their decision was "truthy" enough to execute them.

Matt said...

""I was reminded of that old saw on advice to new lawyers as they start their practice: If the law is on your side, stress the law; if the facts are on your side, stress the facts; if neither is on your side, pound the table and shout."

No, you're not taught that. That's an old joke. You haven't been in many courts if you think judges let you just pound and shout through a trial.

Have you been in any courts?

How's that 30 day prediction coming?

Matt said...

"Huh? Reach a decision before the scientific panel releases the results of its study?"

The silicone implant cases are part of a global SETTLEMENT. The PARTIES settled. As to decisions before this or that panel meets, a court can only rule on evidence before it at the time. What were they supposed to do, go back and rule on it?

Do juries and courts make bad decisions now and again? Of course. They are human, and humans err. What human endeavor is mistake free that you know of?

Tell me, you're chock full of criticisms - what are your solutions? What system would you have us emulate based on your exhaustive review of our system and others?

Have you ever watched a trial of any kind, even non-jury, from start to finish?

daedalus2u said...

Actually, reviewing a case that is an obvious miscarriage of justice would seem like a good idea to me. A "perfect" idea? perhaps not, but perhaps a better idea than doing nothing, or adding in additional injustices.

If the scientific literature has a mistake, it does get corrected. If the legal system makes a mistake, you just throw up your hands and say nothing can be done about it.

But a court has to make a ruling, so they will make the "truthiest" ruling they can make, and then not be a flip-flopper about it. Because being a flip-flopper isn't very "truthy".

Matt said...

"Actually, reviewing a case that is an obvious miscarriage of justice would seem like a good idea to me"

You're right, it is. That's why we have appeals courts in this system you know so little about but loath so much! Of course, you determining what is an "obvious miscarriage of justice" from a newspaper article is about like diagnosing medical malpractice from a newspaper article.

daedalus2u said...

Actually Matt, I was going by the Institute of Medicine report, and other scientific literature which I can read and understand. I understand lawyers can't read and understand complex scientific issues (not because they are stupid, but because they don't have the background) which is why they hire "experts" to tell them what they want to hear. I don't go by "newspaper accounts", which I agree are unreliable. They are unreliable primarily because newspaper reporters don't understand the science and they might have an agenda. Statements by lawyers are unreliable for the same reasons, they don't understand the science, and they most definitely do have an agenda, to get the "win" for their client by any "legal" means. The lawyers in the case will only hire "experts" who will tell them "facts" or "theories" that support what the lawyer is trying to "prove".

Lawyers don't want truth, they want "truthy". If they don't really understand the issues, and get "experts" to tell them what they want to hear to support their "theory", they can be realy "truthy" without actually lying.

My understanding of "appeals courts" is that they can only "correct" errors of law, not errors of fact. That if a jury decides a "fact", erroneously, that is just too bad and the victim of the error is just SOL.

Anne said...

I hear the legal system in India is pretty bad, too.

From Lowering the Bar, "Bar Association: Lawyer-Administered Beatings May be Unethical" -

"In India on Wednesday, the Agra Bar Association said it would be looking into the details of an attack by several lawyers on a litigant there. According to reports, the lawyers claim that the man refused to marry the niece of one of the lawyers, a dispute that (for reasons that were not clear to me) ended up in court. Actually, I guess it ended up out of court, because when the man arrived to discuss settlement, the lawyers instead grabbed him, tied him to a tree, tore off his shirt and cut various bald patches into his hair.

For a closing argument, they also beat him up."

But seriously, Daedalus2u, if lawyers "don't want the truth" because they don't understand science and experts tell them what they want to hear, doesn't that make scientists just as bad, if not worse? They at least do understand science, but they tell lawyers what they want to hear anyway!

Any party can demand a jury trial in a case where jury trials are available. A party demand is how it happens.

Findings of fact can be rejected by an appellate court if they are not supported by the evidence or are "clearly erroneous."

daedalus2u said...

Anne, that doesn't seem to be a problem with the Indian legal system, just with some Indians who happen to be lawyers.

As I understand it, the criteria for findings of fact to be rejected as "clearly erroneous" only relates to whether it follows from the evidence presented. If an "expert" says something that is factually wrong that is not contradicted by other testimony, a "finding of fact" that relies on that factually wrong testimony is not subject to rejection as clearly erroneous (even if it is in light of actual reality). The only "reality" that matters is what is laid out in the testimony.

I am not sure which is worse, hiring someone because they make up "facts" that you want to hear, or making up "facts" because someone hired you to do so. In both cases, it is individuals that do so, not entire groups such as lawyers or scientists. However, (IMO) it is the legal system that encourages such behavior.

A case that is affecting my thinking on this, was the case of a man on trial for raping and murdering a young girl. He had offered to plead guilty, and disclose where he hid her body in exchange for no death penalty. The prosecutors turned down the offer. During the trial, his lawyer had an "expert" who testified as to the "theoretical impossibility" of a portion of the evidence, which both his lawyer and the prosecutors knew was actually true. The "expert" didn't know of the offer to disclose the location of the dead girl, and so didn't know that his "theoretical impossibility" was completely bogus. The lawyer was called to task on the offering of a "legal theory" to the jury that he know was in fact bogus, and he said something to the effect that if the jury thought this was a plausible argument, then the prosecution hadn't met their burden of "beyond a reasonable doubt".

In the silicone case, there were "experts" testifying that "silicone caused" these problems. They were factually incorrect, but the science of the day was not sufficient to allow actual experts to testify that silicone did not cause these problems (even though silicone did not cause the problems).

The ongoing autism case is something I am much more familiar with, having read a great deal about autism, mercury, and how they are related (there is no relationship what so ever). The connection between autism and MMR vaccination is curious, it seems, that the only "evidence" linking them was generated by Wakefield after he had been hired by lawyers to do so. In the UK, this caused a great decline in children being vaccinated, and as a consequence there has been an increase in measles cases, and an increase in deaths due to measles. In the US, the main "scientists" behind the "mercury causes autism" idea are the Geiers (part 14). Kathleen Seidel has an excellent website regarding these and many other issues.

Matt said...

" I understand lawyers can't read and understand complex scientific issues (not because they are stupid, but because they don't have the background) which is why they hire "experts" to tell them what they want to hear. "

Actually, most lawyers who try cases with complex scientific evidence understand that evidence very well. You have to in order to perform an effective direct and cross examination. The reason experts are hired is because the lawyers cannot testify and their words are not evidence and cannot be considered as such by the jury.

As for agendas, we all have an agenda. You clearly have one, yet you have shown even less knowledge about the subject you've reached conclusions on than any of these lawyers you've never seen but are criticizing.

As for juries interpreting facts, if you can find that one infallible person who never gets things wrongs, I'm sure we'd all love to have him. But for now, a jury is the best system man has invented. Our founding fathers sure thought a lot of it, given that it's enshrined in the Bill of Rights.

Based on your review of various legal systems, which do you believe works the best?

Matt said...

"If an "expert" says something that is factually wrong that is not contradicted by other testimony, a "finding of fact" that relies on that factually wrong testimony is not subject to rejection as clearly erroneous (even if it is in light of actual reality). The only "reality" that matters is what is laid out in the testimony."

I guess this would be worrisome, BUT FOR the fact that there is always another side. Do you really think the other side in a case lets people make stuff up unchallenged?

Again, I think much of your problem is that you know little of what you speak. I encourage you to go watch a civil trial, even one as simple as a car wreck case. You won't understand a lot of the evidentiary issues, but at least you'll have a slight basis on which to draw some conclusions.

daedalus2u said...

Matt, either lawyers don't understand the complex scientific issues, or they have no qualms about proposing pure fiction (otherwise known as lies) to the court.

Lets look at the silicone case. According to Matt, the lawyers "knew" all the science about silicone. Then how come the "scientists" didn't? How come when the "scientists" studied the issue they concluded there was no basis for the erronious conclusion that silicone caused disease?

Sure, the "other side" was able to present that there was no proof that silicone caused disease. The jury listens to a bunch of stuff they don't understand, one group says X caused Y, the other group says there is no evidence that X caused Y. Who is the jury going to believe? Who ever is "truthier". They see an injured individual, and a deep pocketed company, who are they going to believe?

In the "mercury causes autism" trial, some of the experts on the actual epidemiology of mercury exposure and autism (who find no connection) have received death threats. That might put a "crimp" in their testimony don't you think?

Anne said...

Expert testimony is actually opinion evidence, not fact evidence. It is one of the few exceptions to the rule that opinion evidence is not admissible.

Evidence from experts is subject to a sort of screening for reliability by the trial judge, according to the rules of the jurisdiction. You can see a good example of how that works in Judge Fabricant's order in the MacGregor case excluding testimony of two experts offered to prove that mold caused a child's autism. Kathleen Seidel has examples re exclusion of Mark Geier's testimony. The judge has to make a reliability determination if opposing parties object to the evidence, regardless of whether those parties also have their own expert witnesses.

There's no question that, as Judge Fabricant points out, a trial judge's lack of training in science can make a reliability analysis difficult of him or her. As far as the vaccine cases go, I think only one of the three special masters has a science degree. However, they deal with science issues frequently, and I think they have a pretty sophisticated level of understanding. While the petitioners' expert testimony will not be excluded due to the lack of a jury, the special masters will use their reliability test (the Daubert factors) to determine the weight of the evidence, and they will not base their decisions on evidence that they do not consider reliable.

Anyway, getting back to the Flea question, it had to be Dr. Lindeman (with the okay from his liability carrier, probably) who decided to settle. Why did he? It seems unlikely that the substance of his blogging would have been admitted as relevant evidence, as you point out. If he settled just because he had to admit that he was "Flea," well, maybe he should have had more guts.

Correlation not being the equivalent of causation, though, it is not at all clear that the in-court reference to his blog was what resulted in this settlement. Settlements of high-stakes cases don't usually take place overnight. There are probably factors at work that we know nothing about and, if Dr. Lindeman has any sense, we never will.

Speaking of blogging, David Kirby just blogged about the evidence that the petitioners are going to put on. How does he know this? Did the PSC lawyers talk to him? If so, maybe there are some privilege waivers here!

daedalus2u said...

I don't know about Flea's blogging. I suspect that it was the stuff about jury selection that affected things the most.

We don't know that the settlement was "substantial" or what their reasoning was. Maybe the insurance company just got skittish after the bombshell of his blog surfaced and didn't want to take the risk that there was something else "out there" they didn't know about. Maybe they lost confidence in Flea as a witness.

I think the statement about a text being called a "bible" in one context and "not a bible" in another context is a complete non-issue. I might refer to some science text as "a bible" in casual conversation, I would never refer to any science text or publication as "a bible" in sworn testimony. There are no "bibles" in science. That is a subtle point that a non-scientist might not appreciate.

I wouldn't worry much about what David Kirby says, much of what he says is factually wrong. I have seen many of the studies he is referring to, and they are (for the most part) poorly done and don't support a "mercury causes autism" idea even when taken at face value (or out of context as he is taking them because he doesn't understand them). It is pretty clear reading them that the authors are stretching things to damn mercury as much as possible.

People do not get mercury by living in close proximity to power plants. They get mercury from either direct exposure to mercury compounds, or (most likely) from eating fish like tuna which has a few tenths of a ppm mercury. That is as much mercury per can of tuna as one would get from a vaccination. Shark has about a ppm mercury.

The real cause of autism is low NO. I understand that is not generally accepted, but it will be in time because it is the correct answer. Every symptom of autism can be explained by low NO. That includes the immune system stuff, the oxidative stress, the porphyrin stuff, the neuronal hyperplasia, the inflammation, the allergies, hyperextensible joints, savant abilities.

How does a "toxin" hypothesis explain savant abilities? Or larger brains with more neurons in them? It doesn't. Low NO does explain it, and more.

Matt said...

"Sure, the "other side" was able to present that there was no proof that silicone caused disease. The jury listens to a bunch of stuff they don't understand, one group says X caused Y, the other group says there is no evidence that X caused Y. Who is the jury going to believe? Who ever is "truthier". They see an injured individual, and a deep pocketed company, who are they going to believe? "

Is this what you've observed in the trials you've watched? In how many of them did you see that?

daedalus2u said...

Matt, why would I need to watch an entire trial to know that the verdict was bogus? I can read.

Is the trial of the Lybian 6 bogus or not? Among scientists it is well known that the silicone trial was a fiasco because silicone doesn't cause the diseases it was alleged to have caused. A comment I posted earlier linked to 13 innocent men on Death Row in Illinois.

Why do I need to see a trial to understand that they got it wrong? I don't doubt that some of the people involved are trying to get it right. Most probably don't care about "right" or "wrong", all they want is the "win" for the client.

Arguing from anecdote it poor science. You want me to watch a trial and then conclude that all trials are fair? Huh? I know that all trials are not fair. That innocent people are sentenced to death, that wrong decisions are made, that gross “injustices” are done.

How can 13 innocent men be sentenced to death? Not by facts honestly put up and then analyzed to determine guilt or innocence “beyond a reasonable doubt”.

I will tell you how 13 innocent men can be sentenced to death. Courts don’t want truth, they want “truthy”. It is unfortunate for all of us that courts cannot tell the difference, and that most of the participants don't care. All they want is the "win".

Matt said...

"Matt, why would I need to watch an entire trial to know that the verdict was bogus? I can read."

Oh, so you obtained the court record and reviewed the transcript? Which case? Or are you referring to a few hundred word newspaper article which purports to tell you all that occurred in a multi-day or multi-week trial? Would you feel qualified to opine on a particular heart surgery based on a newspaper account?

As for silicone, if it was bogus, then that sounds like a problem with the scientists who testified to the danger - after all, lawyers can't testify as to the facts of the case.

Are you really condemning the court system based on 13 bad decisions? I agree with you, it's not perfect, but how many out of the tens of thousands of cases decided every day are wrong in your opinion? Based on your review of them, of course?

Do you know of a system involving humans that is error free? Is the area you work in? And what system would you prefer be used, based on your review? You don't seem to want to answer that question.

daedalus2u said...

Matt, the only basis for awarding damages due to silicone would be if silicone actually caused injury. If silicone didn't cause injury, what is the basis for awarding damages? There isn't one. I don't need to read the testimony. I don't need to slog through transcripts. I don't need to understand how the court came to an erroneous conclusion, to know that the conclusion is wrong.

If the patient dies, the operation had a bad outcome. If the controlling "fact" of the court case is false, conclusions based on that false belief are likely to be unjust (unless the court makes a second error that cancels the first error).

The "problem" is that a court can't tell the difference between truth and truthy. A bigger problem is that lawyers like you, can't even appreciate that there is a difference, or that the difference matters, or that "fixing" the system so the difference does matter would be a good thing.

So, blame the "scientists" who were hired by the plaintiff's lawyer to "testify" as to a bogus idea and present it as "fact". According to you, "most lawyers who try cases with complex scientific evidence understand that evidence very well." So the lawyers know the "facts" they are presenting are bogus, but it is "ok" because they got a "scientist" to say them? Huh?

I find it quite curious how defensive you are of the legal system. It is as if you are completely blind to each and every problem. I am reminded of the religious fanatics who believe that "this is the best of all possible worlds".

Matt said...

Blind? Not at all. Errors are committed every day. I simply find it silly that people such as yourself, who have clearly never even been in a courtroom or even read the transcript of a trial, and don't have the slightest clue what's involved, criticize it so heavily.

It's silly for three major reasons. One, you have no clue what you're talking about. It would be like a florist criticizing how an engineer designed a bridge.

Second, you offer no solutions. Criticism is easy, as you illustrate, but solving the "problems" you see is the hard part. Of course, it's even harder when you have no idea how the process works.

Third, you use a few cases you've read about in the paper to damn a whole system which resolves millions of cases a year. I know of no human endeavor that is always right - do you? Do you always get it right in whatever you do? Do all your colleagues? Does that mean you are fundamentally flawed, or the system in which you work is?

If I am slightly defensive, it's because I agree with Thomas Jefferson that our system is absolutely necessary to preserve our Constitution and our government. Now, if you know of a better one, I'd love to hear it. But so far all I've heard from you, like I said, is criticisms. If I came in to your place of work and repeatedly told you everything you did was a farce and all wrong, wouldn't you wonder how I was going to do it better?

daedalus2u said...

Matt, when a bridge collapses, it doesn't take an engineer to notice that "mistakes were made".

When innocent people end up on Death Row, it doesn't take a legal eagle to notice that "mistakes were made".

What is troubling to me is that people like you don't seem to notice or even care that "mistakes were made".

Do I know how to "fix" the system? No, I don't. I do know that with the attitude that you have, that "there is nothing to be fixed", that it will only get worse.

If I designed bridges that fell down and killed people, destroyed lives and property, then criticism would be justified. Would I expect someone who notices that the bridge fell down to be able to design one better? No, I wouldn't. When bridges are designed, and built, and then fall down, the incident is analyzed and the results written up, the mistakes analyzed so that future engineers don't make the same mistakes.

What happens when the legal system makes a mistake? If it is a criminal case and the innocent person hasn't been executed, maybe he will be freed. Is the legal system modified to make errors less likely in the future? No it isn't. What happens in a civil case? Nothing.

I am not criticizing the legal system when it get things right, I am criticizing it when it gets things wrong, horribly and terribly wrong.

You say "don't worry, most of the time it gets things right".

You don't get the point. The two sides are not trying to "get things right". They are trying to get the "win" for their side, even if that would be a tremendous injustice.

To use your bridge analogy, the "law" is like a rule-book for designing a bridge. If someone used the "rule-book" and the bridge falls down, it is still a "good bridge" because the rule-book was used correctly.

Huh? I don't need to read the "rule-book" to know that if it can lead to a bridge that falls down, it is a crappy "rule-book".

But the lawyers don't want to change the "rule-book" because sometimes they can use its flaws to get the "win".

Matt said...

"What is troubling to me is that people like you don't seem to notice or even care that "mistakes were made". "

How did you deduce that? Everyone cares if mistakes are made. We just don't condemn whole systems because of mistakes.

As to the engineer, maybe it was the materials on the bridge that caused the collapse, maybe there was another cause, etc. It's not automatically the engineer.

"What happens when the legal system makes a mistake? If it is a criminal case and the innocent person hasn't been executed, maybe he will be freed. Is the legal system modified to make errors less likely in the future? No it isn't. What happens in a civil case? Nothing. "

It gets appealed, that's what happens. But at some point, we're not all going to agree on what the results of a case should be, just as we all may not agree on what the cause of the bridge failure was.

For the 50th time, though, what modifications would you suggest? What system do you believe we should have that will be less prone to error?

Anne said...

In all the excitement over the omnibus autism proceedings in the US Court of Federal Claims, I almost forgot about the Pearson v. Custom Cleaners trial! Live blogging by Marc Fisher of the Washington Post (posts dated 6/13, 6/14 and 6/19).

Matt said...

Pants suit dismissed, costs ordered to be paid. Judge has yet to rule on atty fees.

Another failure of the system, I guess?