Daubert and the Autism Omnibus

17 Mar

I recently wrote about how the petitioners in the Autism Omnibus were trying to remove the need for their evidence to be scientific by fighting against the ‘daubert’ principle. I concluded that piece with a downbeat message that it was all too possible for petitioners to remove the need for their ‘science’ to actually _be_ science.

A regular reader (who happens to be a lawyer – no, not Wade) passed on a fascinating document (its 120 (searchable) pages – be prepared) to me which discussed the role of Daubert. My reader passed the link on to me with the explanation:

You will see a Court of Federal Claims Special Master, a couple of law professors, and some federal appeals court judges discussing causation and Daubert in vaccine cases.

Its a big (120 page) document so I’m going to concentrate on what these esteemed bodies thought of the role of Daubert in terms of applying it to the Vaccine Act. First a quick recap.

Oversimplifying things, cases tried under the Vaccine Act have almost no standard of evidentiary proof. That suits that Autism Omnibus petitioners as they _have_ no evidence or proof.

Daubert is usually applied in a _Federal_ court and demands that scientific evidence presented to that court is of a good standard of science.

That’s the basic position. If you want to read more about why these two positions are adopted for the differing courts then read the document I’ve linked to. Its just too big to go into all these things in a single blog entry.

So, ordinarily, Daubert would not apply to cases tried under the Vaccine Act. However, this omnibus proceeding is far from an ordinary situation.

JUDGE VOWELL: Well, let’s pick up on the issue of Daubert and Kumho Tire. Those decisions are mentioned nowhere in our trilogy of cases. In a program such as the vaccine program where there are no juries to be unfairly influenced, what role does Daubert play, or what role should a Daubert analysis play?

MS. GREY: I think that, like you said, in many ways they wouldn’t be applicable. We don’t have juries. We have a very sophisticated fact finder. Federal Rules of Evidence, Federal Rules of Procedure don’t apply here.

So that’s the basic positions. However:

MS. GREY: there is a reason why Daubert developed that is still applicable here, and that is to test the basis for an expert’s opinion. Why do we need that? Because when you have an area that is bereft of evidence like this, you don’t have the normal processes of a trial to test the assumption.

So you don’t have cross-examination that’s going to work as well. You don’t have the opposing evidence that will work as well. And that’s why you probably would be well-suited to take Daubert and apply it in this setting, even though you’re not protecting the jury from junk science. There are other reasons that underlie Daubert that would be applicable here.

And what are those other reasons?

MS GREY: You always, I think, want to probe the underlying basis for whatever opinion is being proffered in the Special Master’s Court. We don’t want to just rely on expert credentials alone. You want to see, was there any adherence to professional or technical standards? What is the basis for the opinion?

An excellent point. Only Daubert can give you this. And surely it would be utter madness to make such a judgement without taking a very careful look at _how_ results were obtained when looking at the results themselves. We know that the ‘science’ presented by the mercury militia is on the surface good but when looked at closely starts to unravel like a badly made sweater.

And here’s a paragraph assured to make the Bradstreets and Geiers of this world blood run cold:

Just like any other witness, a scientist, a doctor is going to be subject to biases, to value judgments that are coming from his own setting that could affect his view on the question of causation, which is why you want the Special Master or the trial Court to still probe the basis for the decision rather than just relying solely on the fact that the expert is making that assertion and is well-credentialed in that area.

Yikes. Will Jeff Bradstreet discover a renewed interest in his family again before this all kicks off?

What else?

Mr GREEN: at some point the idea of, okay, put up, expert, what have you got, is something that needs to be done, and Daubert is doing that under the aegis of Rule 702 and the admissibility of an expert testimony. It could be done at the hearing when an expert testifies, but it needs to be done.

It needs to be done. That’s the bottom line. There needs to be a test of expert testimony and Daubert is the way to do it.

But why? I said I didn’t want to go into the nuts and bolts of the legalities but we should maybe talk about why Daubert, which usually only applies in a Federal court setting, should also apply in a Vaccine Act court according to these people.

MS. GREY:…For 100 years, courts would allow treating physicians to testify about causation or about any subject as long as it was an inference that was the type that physicians normally make in the course of their practice. That would be the test; that we wouldn’t look beyond that. But that, as we keep describing, has changed gradually, especially in the last 10, 15 years. Why? What happened, we had an explosion of toxic tort cases, and there were a lot of experts that were willing to testify about causation without real strong scientific studies…… That brought us Daubert [.]

In other words, the sheer amount of new cases revolving around the issue of toxicity and vaccines led to a situation where it was no longer good enough to waive the standard (or lack thereof) of evidence. To prove toxicity, science had to be science. Hence Daubert. Ms Grey goes on to give a good example:

Let me just give you an example that will seem very exaggerated, but it’ll just show my point. If an infant develops a brain tumor after he gets a measles vaccine, this kind of post hoc reasoning would say, the vaccine caused the tumor. This kind of reasoning is going to be rejected by scientists. Why is that? Hundreds of thousands of infants receive a measles vaccine every year. A few of them will develop brain tumors. That’s the coincidence factor.

One of the fascinating aspects of this document is that the Special Master present – Judge Vowell – is also on the Autism Omnibus case as a Special Master (there are three in total). In reference to a non-expert physician opining that a vaccine _caused_ the problem, she asked:

Is it not, though, circumstantial evidence from which other circumstantial evidence I might reasonably infer causation?

The answer given by both Law Professors was essentially ‘no’:

You could take it into account, but it doesn’t qualify it. In other words, Capizzano (another precedent like daubert) probably in my mind went a little bit too far because it’s relying on the treating physician’s testimony to basically make out the whole case, and I think that that’s not strong enough.

There’s no resolution in this document but it seems clear to me – where an increasing amount of cases revolve around a scientific need for scientific evidence – Daubert will increasingly apply.

22 Responses to “Daubert and the Autism Omnibus”

  1. Ms. Clark March 18, 2007 at 05:32 #

    One of the panel members said this (the context of the discussion was epidemiological studies):
    “I don’t know how many cases I’ve seen where judges say, no, this study which you claim supports your opinion doesn’t. It doesn’t address the question or for some other reason is inapplicable to the issue here. ”

    I’ve read so many instances of the mercury-phobia “experts” state that a certain study (well known or arcane) says this or that, and when one goes to look at the paper the fact that was supposed to be there isn’t there in the cited study.

    I didn’t realize this stuff went on commonly outside of the mercury madness. Maybe it’s just a matter of trying to snowball judges and juries. I don’t suppose there is any penalty in a court of law for saying or intimating (as that great scientist David Kirby did on television) that the widely quoted Vargas 2005 paper mentions neuroinflammation caused by mercury, when it doesn’t. There’s nothing close to a reference to any heavy metals in that paper.

    I think there ought to be some kind of penalty for misquoting scientists or misrepresenting their work… let see… sheets of testosterone??? autistic mice attack other autistic mice and chew holes through their skulls?

  2. notmercury March 18, 2007 at 16:58 #

    Ms. Clark: There’s nothing close to a reference to any heavy metals in that paper.

    Ah, but when you see the world through mercury glass, everything seems a familiar reflection, even if you can’t see beneath the distorted surface.

  3. anonimouse March 19, 2007 at 13:21 #

    I would suggest that even by the traditional standards of the vaccine compensation program the autism-mercury folks are going to have a hard time. Cases with far more plausible rationale and a far more consistent temporal association have been denied compensation in the past.

  4. Kev the Spin Doctor March 19, 2007 at 14:11 #

    “A regular reader..passed on a fascinating document (its 120 (searchable) pages – be prepared) to me which discussed the role of Daubert.”

    About 1% of it touched on Daubert.

  5. Kev March 19, 2007 at 14:58 #

    _”About 1% of it touched on Daubert.”_

    Um, OK. Thanks for that numerical study at how often Daubert was mentioned. Nice to see you’re still focussing on the important elements.

    Any opinion on what was said Century? Are you suggesting that the discussion on Daubert was irrelevant?

  6. century March 19, 2007 at 16:05 #

    **“About 1% of it touched on Daubert.”

    Um, OK. Thanks for that numerical study at how often Daubert was mentioned.**
    Daubert *mentioned* 32 times – out of approx 25,000 words

    “Any opinion on what was said Century? Are you suggesting that the discussion on Daubert was irrelevant?”

    It’s not as black and white as your spin tries to suggest

  7. Kev March 19, 2007 at 16:20 #

    _”Daubert mentioned 32 times – out of approx 25,000 words”_

    Once again, thanks for the utterly irrelevant discussion on how often the word ‘daubert’ is used.

    _”It’s not as black and white as your spin tries to suggest”_

    Right, OK, and moving beyond simple utterances, would you care to share your opinion on where and why what my opinion (sorry, spin) suggests and how this document – or any other – contradicts it?

    Its called ‘having a discussion’ century. Stop being a sulky smart arse and discuss. Or, if you have nothing of any value to add, leave.

  8. century March 19, 2007 at 17:07 #

    “would you care to share your opinion on where and why what my opinion (sorry, spin) suggests and how this document – or any other – contradicts it?”

    It’s not important what my opinions are. I just want to highlight the fact that readers of your blog should not necessarily take at face value all that they read –> your spin
    With regard to the article in question, they should read it, although it is long, and form their own opinion

  9. Sulky Not Like March 19, 2007 at 17:48 #

    If Kev was trying to hide how much of the document actually discussed Daubert, why would he link to it?

    A large document could discuss any one topic without using the one main term all that often. How many times is the word “Freedom” used in the Declaration of Independence? Does it matter? All those involved in a discussion of Daubert don’t have to keep saying “Daubert” to keep the discussion moving forward.

    Since the paper is a transcript of a panel discussion, how many minutes of the whole discussion were spent discussing something related to Daubert? The discussion was pertinent and carried out by recognized experts, what’s the point of the nitpicking word count?

    I think the main message is that the autism omnibus parents and their lawyers seem to have close to a zero chance of winning, because they have such lousy science and too many blow-hard know-nothing easily dismissed non-experts in the science that would be needed to make their point.

  10. century March 19, 2007 at 18:16 #

    “Since the paper is a transcript of a panel discussion, how many minutes of the whole discussion were spent discussing something related to Daubert?”

    As I originally said – about 1%

    The *spin* is to make you believe the whole discussion was on that topic

  11. Sulky Not Like March 19, 2007 at 18:25 #

    For miniutiae fans: the word “Daubert” first appears on page 15 and last appears on page 108. I’d say a good bit more than 1% of the discussion is directly about Daubert or is comparing other legal precedents to Daubert. I think pages 10 to 25 are almost totally about Daubert, as I remember. 15 pages out of 120 is a lot more than 1%. And the discussion is not confined to those 15 pages, but comes up later on. Did you even read the whole thing, Century?

    It’s so interesting how Century tried to spin the whole document as having little to say about the situation at hand; the autism omnibus hearings. Is he or she afraid of what people might learn from it?

    People should just go read the whole thing, if they have the time, or maybe just the pages that say “Daubert” on them which is about 18 or 20 pages, and then as much as they need to from before and after to get the context. Right Century? Wouldn’t it be good if all of Kev’s readers read the whole document? That way they could see if Kev was really spinning something or if you are.

  12. Kev March 19, 2007 at 19:14 #

    _”It’s not important what my opinions are. I just want to highlight the fact that readers of your blog should not necessarily take at face value all that they read—> your spin”_

    Century, this is a blog. I write something as it is _my_ opinion. Its not an encyclopaedia. I strongly encourage everyone to do their own reading and form their own conclusions. This post is my opinion. Would you rather I gave my opinion without any reference or context?

    So now – since you are stating that my opinion is purely spin, I have to assume you have read it. I would be interested in hearing your opinion on the contents of the document and how they contradict my opinion.

    _”The spin is to make you believe the whole discussion was on that topic”_

    What the hell are you talking about? When did I say that?

  13. anonimouse March 19, 2007 at 20:55 #

    It is telling that century would rather perservate on the number of times the word “Daubert” was used in the document instead of discussing what the document actually said. The truth is that even if Daubert isn’t applied, it is difficult to imagine the plantiffs’ case meeting even the most liberal of evidentiary standards when you consider the dearth of research that directly ties autism to thimerosal.

  14. Another Voice March 20, 2007 at 06:18 #

    When someone publishes a document in it’s entirety and encourages people to read it for themselves, another person must be very rabid to call that “spin”.

    I appreciate seeing the transcript and I thank the individual that sent it in, as well as Kevin for posting it.

    While the discussion appears to be far from over, the legal community is dealing with the question seriously and seems committed to using some standard for the evidence submitted. I find that encouraging.

  15. Brian Deer March 20, 2007 at 07:39 #

    Personally, I wonder whether the evidentiary standard is much more than academic when the hearing is scheduled to last for only three weeks.

    This is thiomerosal plus MMR.

    The original London High Court hearing of MMR alone was estimated at five months (before it was cancelled when the funders – on advice from the CLAIMANTS’ lawyers – realised that the case had no reasonable chance of success).

    Wakefield’s GMC hearing is scheduled to run for 14 weeks.

    So, I have to wonder whether there’s really going to be much asking “was there any adherence to professional or technical standards?” and so forth.

    Of course, they might just require disclosure of Wakefield’s raw data, and that would be the end of it. But I’m not sure how up to speed is the DoJ.

  16. century March 20, 2007 at 08:10 #

    “Wouldn’t it be good if all of Kev’s readers read the whole document? That way they could see if Kev was really spinning something or if you are.”

    I suggest you do just that..

    ..I’d already advocated:
    (With regard to the article in question, they should read it, although it is long, and form their own opinion)

  17. clone3g March 20, 2007 at 13:18 #

    I’ve read somewhere that the century plant blossoms but once every hundred years.

    I have no reason to doubt it so I’ll just go on believing it. I hope Kev doesn’t try to change my mind with his spin on the facts.

  18. Prometheus March 20, 2007 at 18:52 #

    I have to admit a bit of confusion with Century’s assertions of spin. Apparently, since the word “Daubert” only appears in the document 32 times (out of approximately 25,000 words), Kev’s reference to the Daubert standard is “spin”?

    The word “trial” only appears 9 times – so is it “spin” to say that the document refers to a trial?

    I also find it hard to reconcile Kev’s posting of a link to the original document with “spin”. Surely, a good “spinmeister” would do their best to make it inconvenient for us to check the original document.

    It seems to me that Century has a problem with Kev that is completely unrelated to this document. Am I simply the last person to get this?

    Clearly, there is some high-level legal wrangling going on during the run-up to this trial (or is it not a trial, since that word only appears 9 times?). And just as clearly, the folks claiming that vaccines caused autism see their chances of winning to be fairly bleak, else why would they balk at a more stingent scientific standard.

    The Daubert standards are not insurmountable. Unless, of course, your “scientific testimony” has no data to support it.

    Something to think about.

    Prometheus

  19. Friend in California March 20, 2007 at 19:06 #

    Prometheus –
    Good thing its not the “Trial of the ‘Century'”, else it may ‘spin’ out of control 🙂

  20. Ms. Clark March 20, 2007 at 19:44 #

    Spinmeister Speaks:

    bq. Next June, when the Vaccine Trial of the Century gets underway in Federal Claims Court, government lawyers will defend the direct injection of toxic mercury into infant children by repeating the well-worn mantra that “five large population studies” in Europe and the US have completely exonerated the vaccine preservative thimerosal as a possible cause of autism.

    http://www.huffingtonpost.com/david-kirby/bad-news-for-mercury-defe_b_36152.html

  21. anonimouse March 20, 2007 at 22:10 #

    Kirby’s lying in that piece. The VSD which he is referring to was the lynchpin in exactly ONE of the five large population studies, not all of them.

    It is also telling that with all the millions pouring into autism groups for “research” that not one of them has embarked on an epidemiological study to illustrate that vaccines play a role in autism. That’s right – there is not a single “large population study” that establishes a link.

  22. Lucas McCarty March 24, 2007 at 19:11 #

    If they directly inject Mercury, how do they indirectly inject Mercury?

    Possible ways:

    1. Look for any cuts or open wounds. Squirt from a distance with a syringe, trying to get it mostly on the wound.

    2. Amputate a limb. Inject into limb. Re-attached limb.

    3. Use a gigantic syringe. Suck up patient into gigantic syringe. Inject patient into gigantic bottle of Mercury containing vaccine. Shake patient well beforehand to make sure that the vaccine gets an even concentration of patient.

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