Toxic torts : science, law, and the possibility of justice / Carl F. Cranor, University of California, Riverside.
2016
KF1299.H39 C73 2016 (Map It)
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Details
Author
Title
Toxic torts : science, law, and the possibility of justice / Carl F. Cranor, University of California, Riverside.
Published
New York, NY : Cambridge University Press, 2016.
Call Number
KF1299.H39 C73 2016
Edition
Second edition.
ISBN
9781107151963 (hardback)
1107151961 (hardback)
1107151961 (hardback)
Description
xx, 409 pages ; 24 cm
System Control No.
(OCoLC)929985356
Bibliography, etc. Note
Includes bibliographical references (pages 377-401) and index.
Record Appears in
Gift
Purchased from the income of the Fisch Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Fisch Fund
Table of Contents
Preface
xiii
Acknowledgments
xix
1.
Veil of Science over Tort Law Policy
1
Introduction
1
Legal Admissibility of Expert Testimony and Scientific Evidence
7
Need for Scientific Studies
9
Special features of Toxic Substances
9
Injuries May Long Precede the Scientific Understanding of the Causes of Injury
13
Science-Law Interaction
16
Some Human Impacts of the Science-Law Interaction
19
Walter Allen
19
Lisa Soldo
20
Melissa Globetti
22
Ruby Quinn
23
Robert Joiner
215
Brian K. Milward
26
Broader Issues
26
Summary
27
2.
Legal Background
31
Introduction
31
Tort Law
31
Legal Case in Outline
33
Complaint and Answer
33
Discovery
34
Pretrial Conferences
34
Plaintiff's Case-in-Chief
35
Defendant's Case-in-Chief
36
Closing Arguments and Proposed Jury Instructions
36
Plaintiff's Burden of Persuasion
36
Plaintiff's Standard of Proof
36
Substantive Issues in the Tort Law
37
Causation in Toxic Tort Suits
37
Role of Scientific Evidence and Expert Witnesses in Establishing Causation
38
Admissibility of Evidence
39
Summary Judgment
41
Judgment as a Matter of Law
41
Some Procedural Puzzles
42
Recent Developments in the Admissibility of Expert Testimony
44
Bendectin Litigation and Related Cases
44
Concerns about the Companies
45
Perception of a Tort Law Crisis
46
Supreme Court's Daubert Litigation
47
Daubert v. Merrell Dow Pharmaceuticals, Inc.
47
General Electric v. Joiner
51
Kumho Tire v. Carmichael
54
Admissibility Picture after the Daubert Trilogy
55
Aftermath of the Bendectin Litigation
58
Critiques
58
Correctives
59
Conclusion
60
3.
Institutional Concerns about the Supreme Court's Trilogy
62
Obvious Lessons and Some Tensions
63
Broader Troubling Issues
69
Epistemic Presuppositions
69
Intellectual Rigor Test
71
Judge-Jury Responsibilities and the Right to a Jury Trial
73
Review of Weight-of-the-Evidence Methodology
75
Distinction between Methodology and Conclusions
79
"Fit"
81
Access and Process Bias in Toxic Tort Suits: Potential Effects of Admissibility Reviews on the Tort Law
82
Pursuit of Truth and Justice in Torts
87
Conclusion
89
4.
Evidence of Toxicity
90
Features of Biochemical Risks that Hinder Identification and Assessment of Harms
90
Studies that Assist Causal Understanding
93
Human Studies
93
Randomized Clinical Trials
94
Epidemiological Studies
95
From Statistical Association to Causal Conclusion
101
Animal Studies
106
Other Data Relevant to Toxicity Assessments
111
Chemical Structure-Biological Activity Relations
111
Mechanistic Evidence
113
Case Studies
115
Scientific Data
117
Scientific Reasoning in Good Case Studies for Vaccines
124
Conclusion
127
5.
Scientific Reasoning and Some Applications
129
Principles of Reasoning Underlying Causal Inference
129
Inferring the Best Explanation
130
Integrating Evidence
138
Causal Inferences in Epidemiology
142
Importance of Scientific Reasoning and Judgment
144
Should Professional Judgment be a Problem in the Law?
145
Scientific Disagreement
148
Scientific Disagreement about Fundamental Issues
149
Scientific Disagreement about More Practical Issues
150
Disagreement at the Frontiers of Scientific Knowledge
152
Fact of Reasonable Scientific Disagreement
154
Methodology-Conclusion Distinction
155
Conclusion
159
6.
Excellent Evidence Makes Bad Law: Pragmatic Barriers to the Discovery of Harm and Fair Admissibility Decisions
160
Scientific Ignorance about the Chemical Universe
163
Resource Limitations
167
Corporate Failure to Determine the Safety of their Products
168
Features of Substances that Frustrate the Discovery of Toxicity
171
Low Concentrations can be Toxic
171
Long Latency Periods
174
Rare Diseases
175
Common Diseases
176
Lack of Signature Effects
176
Weak versus Strong Causal Effects of a Substance
176
Lack of Mechanistic Understanding
178
Novel Scientific Detective Problems
180
Substances that are of Little Research Interest
180
Scientific Epistemology Burdens the Discovery of Toxic Effects
182
General Considerations
182
Interpretive Issues
183
Inattention to the Distribution of Mistakes in Scientific Research
189
Hedging in Scientific Communication
191
Content-Oriented Hedging
192
Writer-Oriented Hedging
193
Reader-Oriented Hedging
194
Communication between Science and the Law
196
Conclusion
198
Excellent Evidence Makes Bad Law
200
Injuries Can Long Precede the Scientific Understanding of their Causes
201
7.
Science and Law in Conflict
203
Generic Tensions between Science and the Law
205
Tensions in Goals
205
Tensions between Scientific and Legal Epistemic Practices
209
Critical Stresses
212
Judicial Responses to the Science-Law Interaction
214
Risk of Overly Simplified Admissibility Rules
216
Specific Concerns from Court Decisions
216
Demands for Particular Kinds of Evidence
217
Ideal Evidence is the Enemy of the Good
217
Demands for Human Epidemiological Evidence
219
Special Restrictions on Epidemiological Studies
222
Statistical Significance Requirements
222
Relative Risk Rules
227
Sample Size and Duration of Studies
232
Extrapolation from Women to Men and Middle-Aged to Old and Young Persons
232
Using "Hill's Factors" for Excluding Evidence
233
Unfortunate Consequences of "no Effect" Studies
235
Demanding Mechanistic Evidence
238
Mistaken Exclusion of Evidence
240
Denigration of Animal Evidence
240
Discriminating among Animal Studies
244
Target-Site Arguments
246
Chemical Structure-Biological Activity Evidence
246
Exclusion of Case Studies as Evidence
248
Never Throw Evidence Away
250
Requiring Detailed Exposure Information
251
Lumping versus Splitting Toxicological Evidence
253
Further Confusions about Weight-of-the-Evidence Arguments
254
Confusing the Form of the Argument with the Standard of Proof
254
Confusing the Likelihood of Causation with Statistical Evidence for It
257
General and Specific Causation
258
Defense Contributions to these Arguments: Mimicking the Tobacco Industry
260
Intellectual Rigor Test
262
Pursuit of Truth and Justice in Torts
263
Conclusion
268
8.
Milward v. Acuity Specialty Products: Toward Clarifying Legal and Scientific Issues
272
Finding a Lawyer
272
Choosing Experts
273
Depositions
275
Daubert Hearing
276
District Court Decision
276
Plaintiffs Appeal to the First Circuit Court of Appeals
279
First Circuit's Decision
282
Defendants Appeal to the U.S. Supreme Court
285
Remand to the First District Court of Massachusetts
286
Brian Milward's Fate
287
Larger Issues for the Legal System
288
9.
Enhancing the Possibility of Justice Under Daubert
292
Use of Court-Appointed Experts
293
Toward a Solution for Reviewing Expert Testimony
295
Proposal
295
Some Consequences of the Proposal
304
Patterns of Toxicological Evidence
306
International Agency for Research on Cancer
306
National Toxicology Program
309
Toxicologically Reliable Patterns of Evidence
312
Learning from Reliable Patterns of Evidence
321
Principles of Toxicology Underlying the Evidentiary Patterns
322
Legal Decisions Exemplifying Sensitive Scientific Reviews
326
Human Consequences of Admissibility Decisions Revisited
333
Allen v. Pennsylvania Engineering, Inc.
333
Parlodel Cases
336
General Electric v. Joiner
338
Conclusion
343
10.
What has Daubert Wrought?
345
Access and Process Bias in Toxic Tort Suits
346
How Daubert can Undermine the Acceptability of Judicial Decisions and Corrupt Science
349
Acceptability of Verdicts versus a Focus on the Evidence
349
Daubert and the Acceptability of Verdicts
352
Daubert and Causation Requirements
360
Where Might the Law Go from Here?
365
Return to Frye?
366
Is There a Need for Tort Liability Reform?
370
Conclusion
373
Bibliography
377
Index
403