Tuesday, December 12, 2006

Our Own Little Roundup

Four tidbits from around the blogosophere:

(1) At TortsProf Blog, Prof. Childs relays a question from Derek Lowe at Corante. The gist of Lowe's question: If Big Pharma is so evil, what explains Pfizer's willingness to walk away from torcetrapib? The gist of ours: Did Pfizer figure out that it would be difficult to yell "junk science" in a potential hailstorm of litigation, given that clinical trials showed a reported 60% increase in deaths among patients taking torcetrapib and Lipitor, over patients taking Lipitor alone?

(2) At Overlawyered, under the impish caption "Bad Mom Hurts Kid, Ford Blamed to Tune of $31M," Ted Frank tells of a South Carolina case where a mother failed to see to it that her 12-year-old son's seat belt was fastened. She also took her eyes off the road to yell at the kids in the back seat when they grew unruly. Her son was thrown from the vehicle and suffered brain injury in the ensuing rollover. A South Carolina jury assigned only 45% of the responsibility to Frank's favored causal factor (bad motherhood), allotting 55% of the fault to Ford. Frank doesn't mention the family's contention, disputed by Ford, that the seatbelts were inaccessible. Frank does say, however, that it's "unclear" how injured the son is. We haven't reviewed the expert testimony on that subject. According to the news story to which Frank links, the boy "suffered head injuries so severe that he spent the next three months at Medical University Hospital and a rehabilitation facility in Greenville." The boy's father says the boy now can't remember what he had for breakfast.

(3) At Science Evidence, Cliff Hutchinson faults the New York Times for publishing an op-ed piece by Robert N. Proctor, a history of science professor at Stanford who has also served as an expert witness in tobacco litigation. Proctor's piece notes that polonium 210 -- the radioactive substance recently used to poison former KGB agent Alexander V. Litvinenko -- is also found in cigarettes. Hutchinson says Proctor and the Times are foisting a "scare story" on Times readers. "[T]he quantity of any radioactive substance in a cigarette," says Hutchinson, "is so minute that it threatens no one." Hutchinson cites a calculation, performed by an Australian lab technician who doubles as a blogger, estimating that you'd need to smoke 5.4 billion cigarettes to get a lethal polonium dose. That may be true, if the form of lethality under consideration is radiation poisoning, which is caused only by very large radiation exposures. But health physicists say the radioactive properties of polonium 210 also make it a carcinogen -- at far lower doses, within the range that smokers routinely receive.

Update: We now see that Ted Frank and Walter Olson have both jumped on the same NYT piece, over at Overlawyered. No mention there, either, of the dose differential for radiation poisoning and carcinogenicity. Nor is that issue discussed in the "blogger refutations" they cite. All these sources talk about the problem as though all risks from all types of radiation through all exposure pathways were (a) essentially identical and (b) capable of uncontroversial expression, at a very high level of confidence and individual precision, through a common numerical metric.

(4) Peter Tillers has posted about a murder case where handwritten rap lyrics bragging about a killing were found in the suspect's possession at the time of his arrest. The defendant's lawyers have designated a "rap expert" who proposes to opine that "rap music lyrics often describe violent and sexual acts, and other antisocial behavior, that are not necessarily rooted in actual events." Tillers is interested in the normative and epistemic validity of the "group-to-individual" inference that such testimony would invite. But we also wonder whether the proposed testimony is helpful to the trier of fact, who may already know that the narratives sold to the public by the entertainment industry are commonly fictional.


Ted writes ...

1. To be fair, my remarks on the son's injuries were aimed at the "average grades" anecdote in the story. Either the son's average grades are a real achievement showing that his injuries are far from devastating or, more likely, the "average grades" are meaningless.

2. Amazingly, virtually every plaintiff ejected from a vehicle claims that their seat-belt was defective. Forty percent of Americans never wear a seat-belt, but they're somehow never the ones bringing cases for defective automobiles. You'd think this would be a big scandal in one direction or the other, either because there's a massacre of innocent seat-belt wearers every year, or because there's systematic perjury.

I've returned rental cars and left taxicabs where the seatbelts are "inaccessible." I wouldn't get in a car where the seat-belt isn't available any more than I'd get in a car with a drunk driver.

12:16 PM  
Ted writes ...

With respect to the Po-210 issue, you're being too generous to the Times piece, where the scare was explicitly one of radiation poisoning rather than "carcinogens." That cigarettes have carcinogens isn't news and isn't contested.

12:36 PM  
pn writes ...

The Litvinenko poisoning was certainly the "hook" for the NYT piece, in its opening paragraph. But the NYT piece nowhere suggests ("explicitly" or otherwise) that smoking will cause radiation poisoning. Unlike the risk-denying commentary on it, the NYT piece actually draws the correct distinction: "these odd fears spilling from a poisoned K.G.B. man may be molehills compared with our really big cancer mountains."

You may say that the presence of carcinogens in cigarettes is undisputed. Cigarette company lawyers say that too, in their opening statements. But meanwhile, some people commenting on the NYT article have said that the polonium isn't a worry at all, and other persons (including the cigarette companies' lawyers) continue to quarrel over the degree of risk. It's therefore legitimate to engage in public discussion in which the relevant toxins are identified and their biological effects addressed.

Our main problem with cigarettes, after all, is not that too many people are irrationally scared of them. It's that not enough people are scared enough, on the rational grounds that do exist.

8:19 PM  
Lab Lemming writes ...

The cancer risk from a billion cigarettes is zero, because the niccotine will kill you a million times over. It is like saying that emptying the banana clip of an AK-47 into somebody at close range might give them lead poisoning.

1:04 AM  
pn writes ...

If the cancer risk from a billion cigarettes is zero, it's because you'll suffer a massive coronary from trying to carry them home. But nobody is discussing the cancer risk from an individual's smoking (or carrying) one billion cigarettes.

4:18 AM  

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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.