Left Brain Right Brain

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.

Another update from the Autism Omnibus proceedings. This one I find worrying. It essentially presents two things for the courts consideration from petitioners (those who think vaccines cause autism):

1) That the scope of the hearings does _”not”_ :

…limit the scope of these proceedings to only those cases with a formal diagnosis of autism

2) That ‘Daubert’ is not utilised as the evidentiary standard.

The first one I find very worrying indeed. This essentially opens up a never ending series of possible cases surely? It also raises the ugly question of the honesty of the people raising this legal case. These are parents who hitherto have described their children as those who have been made autistic by vaccines (either just thiomersal or just MMR or a combo of both). Now, apparently, it is enough that:

…the injuries at issue here include neurodevelopmental disorders _similar_ to autism…

I have to wonder: just how many of these 4,700+ children have actually been diagnosed as being autistic? And how many are children being made to act as Trojan horses for a possible cash windfall for their parents? A disturbing, uncharitable thought to be sure but I don’t know what else to make of this.

Even more worrying is the petitioners attempts to make sure Daubert is not used as the means of determining evidentiary standard.

Lets remind ourselves of what Daubert is. Daubert is a legal precedent which:

[is] raised before or during trial, to exclude the presentation of unqualified evidence to the jury. This is a special case of motion in limine, usually used to exclude the testimony of an expert witness who has no such expertise or used questionable methods to obtain the information.

In plan terms it means that crap evidence cannot be presented to a court. I’m going to quote from Wikipedia directly:

In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges now must evaluate proffered expert witnesses to determine whether their testimony is both “relevant” and “reliable”; a two-pronged test of admissibility.

a) The relevancy prong: The relevancy of a testimony refers to whether or not the expert’s evidence “fit” the facts of the case. For example, you may invite an astronomer to tell the jury if it was a full moon on the night of a crime. However, the astronomer would not be allowed to testify if the fact that the moon was full was not relevant to the issue at hand in the trial.

b) The reliability prong: The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must have derived his or her conclusions from the scientific method. The Court offered “general observations” of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exacting checklist:
– Empirical testing: the theory or technique must be falsifiable, refutable, and testable.
– Subjected to peer review and publication.
– Known or potential error rate.
– Whether there are standards controlling the technique’s operations.
– Whether the theory and technique is generally accepted by a relevant scientific community.

What this boils down to is this – Daubert ensures that science presented as evidence is _good science_ . The petitioners are fighting hard to try and make sure Daubert does not become the way the omnibus case is judged:

…the notion that Daubert should provide the substantive criteria for resolving general causation issues in the omnibus proceeding ought to be explicitly dismissed.

Why? Well they _say_ its because Daubert is procedural, not practical, that Daubert interprets _Federal_ rules of evidence that do not apply in the Omnibus and that it is based on development of expert evidence through revealing documents which is not available in these proceedings.

Uh-huh, and of course the fact that Daubert demands a _scientific_ level of proof has nothing to do with things. Right.

Hilariously, what the petitioners want is to establish general causation in a Daubert-less series of hearings using a few ‘case studies’ hand picked from the 4,700 and then use _these_ as the body of general causation evidence to go on and establish specific causation in each single member of the 4,700. Stop and think about how poor the state of their science must be if they are arguing tooth and nail to do this.

Let’s not forget that three high echelon members of the mercury militia have all fallen foul of Daubert within the last year when trying to establish quack causes for autism: Martha Herbert, Boyd Haley and Mark Geier all came to realise that quackery and bad science is quickly exposed by such a hearing. And now – all of a sudden – the petitioners don’t want any truck with Daubert. Shocking.

Make no mistake – if they get their way, _which they may very well do_ – then a) these kids don’t have to be autistic and b) no science needs to be presented to establish general causation.

The closest recent bout of idiocy I can think to compare to this was when certain Southern US states stated that creationism was a viable science to be taught in a science class alongside actual science. They went on to win a a legal case as well if I recall. Don’t think that this one can’t be won by bad science too.