Tuesday, January 27, 2004

Still More on John Edwards and Daubert

To update our posts of 1/20/04 and 1/23/04 on criticisms of the expert evidence used by John Edwards in some of the medical malpractice cases he litigated:

(1) Franco Castalone has chimed in, concurring that litigators do owe their clients a duty to present supportive evidence. He adds that such a duty extends not merely to propounding evidence whose admissibility is legally uncontroversial, but also to advocating the admissibility of evidence whose validity the client's adversary may dispute. Castalone is right, of course. We do rely on an adversary system of justice.

Castalone also suggests that the real political issue may be whether Edwards's expert witnesses had a reputation for integrity, or for dishonesty. Trial attorneys, he says, are known by the company they keep. And Castalone notes that "the judges who heard [Edwards's] cases and the defense lawyers who opposed Edwards would know."

Castalone is right again. It might indeed be desirable to conduct some semblance of factual investigation before accusing Edwards of building a legal career on fake testimony. But that's not the way things work in the electoral cycle, which brings us to . . .

(2) . . . Jim Copland's commentary on this subject at National Review Online, which can fairly be summarized as follows: (a) Edwards has a net worth somewhere between $12 million and $60 million; (b) some portion of that sum represents fees from medical malpractice litigation on behalf of cerebral palsy victims; (c) ACOG issued a peer-reviewed study in 2003 finding that delivery problems were not to blame in the "vast majority" of cerebral palsy cases; (d) "Edwards's own cases may have been legitimate, but given jurors' difficulty in making scientific determinations and the trial bar's record in this area, there is certainly reason to be suspicious"; (e) Edwards's rivals for the Democratic nomination "have been loath to attack his unsavory accumulation of wealth" because they are in thrall to trial attorneys and their campaign donations; (f) yet it is suits like the ones brought by Edwards that have "driven up malpractice-insurance rates exponentially"; (g) so Republicans would not give Edwards the same "pass" on this issue, were he the ultimate Democratic nominee.

Let us parse this phillippic. We can give short shrift to item (a), because Edwards's net worth does nothing to establish whether he did anything questionable. Item (b) likewise requires little discussion. It is an unquestioned fact that Edwards did indeed represent cerebral palsy clients in successful malpractice cases. But item (c) requires a little unpacking.

The peer-reviewed ACOG study to which Copland refers was released in January 2003, four years after Edwards took office and began earning his living as a Senator rather than as a litigator. It was performed under the auspices of the American College of Obstetricians and Gynecologists, a professional body whose members number prominently among the persons sued when it is alleged that delivery-room malpractice caused cerebral palsy. And its findings remain controversial, as may be inevitable given the stakes.

But what, exactly, were those findings? Here is how they have been described in the Wall Street Journal by Walter Olson, whom no one accuses of serving as a shill for the plaintiffs' bar:

"The report by no means relieves delivery rooms of responsibility. It estimates that between 6% and 10% of newborns' brain injuries do originate in events during labor and delivery, and that of these perhaps half, amounting to 3% to 5%, might be preventable (which does not mean that the failure to prevent them implies negligent care in any given case). In a larger swath of cases, perhaps another 25%, the handling of labor and delivery may influence the extent of damage in cases where pre-existing risk factors already spell trouble for a child. The report does not dispute that some high-verdict obstetric brain damage cases rest on valid science."

In other words, delivery room events may cause infant brain damage, or at least "influence the extent of damage," in something like one-third of all cases -- and this according one of the study's leading popular proponents. [See update below.]

Does this mean that the ACOG study revealed two-thirds of all medical malpractice claims in cerebral palsy cases to be utterly bogus? Obviously not. For one thing, few would propose, as a general matter, that the law treat the findings of one peer-reviewed study as legally dispositive, particularly when other researchers have had fewer than twelve months, since the study's publication, to scrutinize its findings and test its replicability. For another, the ACOG study did not establish, or hold itself out as establishing, that proponents of other theories were guilty of sheer fraud. We're not experts in the relevant medical science, but from our cursory lay review, it does appear that some aspects of the study's methodology have left fair room for debate (in particular, its criteria for hypoxia, which some have criticized as overly strict). For a third, even if the study's findings are accepted at face value, there remains the problem of sorting through each case to determine which category it falls into -- i.e., whether it is one of the cases where delivery room conduct caused the problem or "influence[d] the extent of damage." In this case-by-case sorting, there is likely to be some uncertainty. And as a result of that uncertainty, and of our practice of handling the sorting one case at a time, there is no guarantee that plaintiffs will prevail in exactly the "correct" proportion of all cases. There may even be some propensity, by jurors, to distribute the uncertainties in the favor of disabled children, and against physicians. But that does not mean their verdicts are unsupported by evidence in the individual case. The law has scoops and scoops of methods for dealing with that kind of problem. North Carolina, in particular, has been a Daubert state since even before Daubert was decided. See State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990).

That brings us to item (d). What evidence does Copland marshall, to support any charge that Edwards was complicit in any improper manipulation of this "sorting" process? None, because Copland does not even purport to know anything about it. For all he knows, Edwards's cases "may have been legitimate," even by Copland's own lights and under the ACOG study. But this does not detain Copland, who is concerned only to locate grounds for being "suspicious." What grounds does he locate, then, for suspecting Edwards in particular? None, because, to repeat, Copland does not purport to know anything whatsoever about Edwards's conduct in these cases. He purports to know only two amorphous generalities: "the trial bar's record in this area" and "jurors' difficulty in making scientific determinations."

Maybe Copland would say that his point is not to prove misconduct, but merely to show probable cause sufficient to warrant closer scrutiny. That brings us, however, to item (e). On the strength of nothing more than the "evidence" already adduced, Copland himself is ready to accuse Edwards of the "unsavory accumulation of wealth," and to complain that if Edwards's Democratic rivals do not "attack" him for this "unsavory" behavior, it must be because of their sycophantic fealty to trial lawyers and their campaign donations. Copland, in other words, is already prepared to convict, to the point where he actually cites the unwillingness of other Democratic candidates to attack Edwards on this basis as proof of their own corruption. Not content to tar Edwards, he wants to go after Edwards's Fellow Travelers (because it's impossible, naturally, that Edwards's fellow Democratic candidates might have refrained from attacking Edwards on these grounds due to their inability to cite the slightest factual support).

All of this, perhaps, is just Copland's particular way of getting to items (f) and (g). Copland's real objective may have been to mount an anticipatory defense of Karl Rove's eventual efforts, already presumably in development, to paint Edwards as the man who drove your friendly neighborhood obstetrician from practice. But political exigency is not enough to make undocumented insinuations fair. At this hour, reports on the New Hampshire voting have Edwards in fourth place, narrowly behind Wesley Clark. We'll see if this story still has legs after the southern primaries.

Update: Walter Olson writes: "I noticed one detail which I hope you will want to correct. In your Jan. 27 post, you quote four sentences of mine about the ACOG/AAP study and then write: 'In other words, delivery room events may cause cerebral palsy, or at least "influence the extent of damage," in something like one-third of all cases -- and this according one of the study's leading popular proponents.' However, I think this last sentence should read 'may cause infant brain damage,' especially if the views are being attributed to me. Cerebral palsy is one among many forms of infant brain damage. If I understand the state of research correctly, it is conceivable (though not inevitable) that future advances will conclusively exonerate delivery room events as the initiating cause of CP, by establishing a marker that can be found at earlier fetal stages which accurately predicts CP in infants. That would be consistent with affirming that delivery room events sometimes inflict other forms of infant brain damage through asphyxia, blunt force, maladministration of drugs, etc." We thank Walter Olson for drawing this error to our attention, and the text of the post has been corrected.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.