Litigation

Why Corporate Defendants Like the Federal Courts

By Bruce Nye

I blogged not long ago (and there's also a discussion in my product liability white paper) on Lockheed Litigation Cases, a Court of Appeal decision upholding a California trial judge for performing something that looked a lot like Daubert gate-keeping when it came to renowned junk scientist Daniel Teitlebaum.  The case went to the Cal Supreme Court, then disappeared from the books when the majority of the Supremes disqualified themselves.

In a part of the case I didn't discuss, the trial court had held that epidemiology (as relevant here, the study of occurrence or non-occurrence of disease or its absence in persons who are or are not exposed to alleged toxins) was only admissible to prove causation if the "relative risk" exceeded 2.0 -- i.e., when the occurrence of the disease in the exposed persons was at least twice that in the unexposed.  The Court of Appeal held that was going too far, and that the 2.0 standard was not required.

Monday, Judge Charles Breyer of California's Federal Northern District (and brother of U.S. Supreme Court Justice Breyer) issued a Daubert ruling in the Pfizer Celebrex litigation.  The decision followed three days of hearings including examination and cross-examination of proposed expert witnesses.   

In dictum (but dictum he's pretty clearly going to follow in the future) Judge Breyer stated that epidemiological evidence cannot be used to prove "specific causation" -- whether the exposure caused the disease in a specific individual -- when the relative risk is less than 2.0.  There is an excellent discussion of statistical significance and confidence intervals, with the Judge excluding evidence which epidemiologists and statisticians would hold to be not statistically significant.

There's more on the ruling at the Wall Street Journal Law Blog, Legal Pad, and Drug and Device Law.

This is the sort of process I really wish we had in California -- it gives both sides a fair trial while substantially increasing the likelihood that case outcomes will be based on real science.

Full post as published by CalBizLit on November 21, 2007 (boomark / email).