http://www.cnsnews.com//ViewPolitics.asp?Page=\Politics\archive\200401\POL 20040120a.html

Isaac wrote:

It's defined that way in the article, but the article lays the blame on Edwards and other plaintiff's attorneys for juries not getting to hear real science.

Perhaps he objected to the admission of the evidence of real science,
and the judge agreed. We really wouldn't know, without transcripts --
including transcripts of side-bar discussions and discussions in the
judge's chambers.

On Mon, 26 Jan 2004 17:56:08 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Isaac wrote: It's defined that way in the article, but the article lays the blame on Edwards and other plaintiff's attorneys for juries not getting to hear real science. Perhaps he objected to the admission of the evidence of real science, and the judge agreed. We really wouldn't know, without transcripts -- including transcripts of side-bar discussions and discussions in the judge's chambers.

Both sides have an opportunity to be heard when an objection is raised.
An attorney need not apologize for raising a legitimate objection to
evidence the other side wants to admit.

If someone wants to allege that Edwards did something improper, they
ought to tell us what that is. Apparently what we're supposed to
find objectionable is normal attorney advocacy for his clients.

Isaac

Isaac wrote:

Both sides have an opportunity to be heard when an objection is raised. An attorney need not apologize for raising a legitimate objection to evidence the other side wants to admit.

Agreed. If the objection is legitimate.
If someone wants to allege that Edwards did something improper, they ought to tell us what that is. Apparently what we're supposed to find objectionable is normal attorney advocacy for his clients.

Possibilities:

Submitting evidence ("junk science") which he knew to be false.
(Subornation of perjury.)
Submitting evidence which he KNEW would be found inadmissible
if challenged. (That's just a violation of legal ethics, rather than
of law.) As an aside, most examples of "junk science" (from the
article's definition) would be inadmissible.
Responding to an objection to the above evidence.
Objecting to "non-junk science" evidence.

On Mon, 26 Jan 2004 19:02:39 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Isaac wrote: Both sides have an opportunity to be heard when an objection is raised. An attorney need not apologize for raising a legitimate objection to evidence the other side wants to admit. Agreed. If the objection is legitimate.

Well were they? Is anyone alleging that non legitimate objections
were raised? Or do we not even need allegations let alone evidence before
we tar and feather someone.
If someone wants to allege that Edwards did something improper, they ought to tell us what that is. Apparently what we're supposed to find objectionable is normal attorney advocacy for his clients. Possibilities: Submitting evidence ("junk science") which he knew to be false. (Subornation of perjury.)

Perjury means lying. Submitting testimony which the expert believes
is not perjury.
Submitting evidence which he KNEW would be found inadmissible if challenged. (That's just a violation of legal ethics, rather than of law.) As an aside, most examples of "junk science" (from the

Of course we have to assume then that the evidence was not challenged.
I find the probability of that fairly low.
article's definition) would be inadmissible. Responding to an objection to the above evidence. Objecting to "non-junk science" evidence.

After all it's undisputed which evidence is junk science and which is real
science. Even if the probability is low that an injury could be caused
the way Edward's expert testifies, the jury gets to decide based on the
expert testimony and other evidence whether a low probability even has
actually occurred due to negligence.

Isaac

On Tue, 27 Jan 2004 04:24:02 GMT, Isaac
<isaac@latveria.castledoom.org> wrote:
After all it's undisputed which evidence is junk science and which is realscience. Even if the probability is low that an injury could be causedthe way Edward's expert testifies, the jury gets to decide based on theexpert testimony and other evidence whether a low probability even hasactually occurred due to negligence.

And of course, the key thing is getting the proper degree of ignorance
on the jury so as to believe your experts and lawyer's spin. The
American jury trial sucks. In Civil law countries, the tribunal that
decides the case would be the main questioners of the witnesses, could
discuss the case among themselves as it proceeds and could call their
own witnesses. In other words, have a better chance of deciding the
issue correctly.

RHR

Isaac wrote:

Submitting evidence ("junk science") which he knew to be false. (Subornation of perjury.) Perjury means lying. Submitting testimony which the expert believes is not perjury.

Hmmm. I'll have to get back to you on that one.

I thought presenting evidence known to be incorrect, even if believed,
was illegal. But thinking about it, it might only be a violation of ethics.

On Tue, 27 Jan 2004 09:19:54 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Isaac wrote: Submitting evidence ("junk science") which he knew to be false. (Subornation of perjury.) Perjury means lying. Submitting testimony which the expert believes is not perjury. Hmmm. I'll have to get back to you on that one. I thought presenting evidence known to be incorrect, even if believed, was illegal. But thinking about it, it might only be a violation of ethics.

Known to be incorrect by whom? The experts on the other side? We're
not talking about someone testifying that pi = three. We're talking about
situations where most experts believe one thing, but some experts believe
differently.

If an expert in the field believes something that the attorney, a non expert
does not believe, then should that evidence be screened by the attorney
or by the judge/jury? The defendant gets a list of the plaintiff's experts
and an outline of their testimony before the trial. Doesn't the defense
have some obligation here?

When the other side objects to such evidence, what should the plaintiff's
attorney do?

Isaac

Isaac wrote:
On Tue, 27 Jan 2004 09:19:54 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com> wrote: Isaac wrote: > Submitting evidence ("junk science") which he knew to be false. > (Subornation of perjury.) Perjury means lying. Submitting testimony which the expert believes is not perjury. Hmmm. I'll have to get back to you on that one. I thought presenting evidence known to be incorrect, even if believed, was illegal. But thinking about it, it might only be a violation of ethics. Known to be incorrect by whom? The experts on the other side? We're not talking about someone testifying that pi = three.

In some cases of "junk science", we are. Silicone implants come to mind.

That being said, I can't tell from the referenced article, WHETHER the
"science" he used is "junk science" are not. My guess is that, if the
defense was allowed to present statistics experts, the jury might find:

Damages: $10 million
probability doctor caused the damage: .0000001
Damages awarded: $10

But that would be demonstrating a flaw in the legal system that
statistical evidence is not permitted, or inadequate defense in
not presenting the statistical evidence. THAT wouldn't make
Edwards bad or unethical. (Lawyers ARE supposed to make
arguments that they don't believe are correct; they're merely not
supposed to present evidence they don't believe is accurate.)

On Tue, 27 Jan 2004 13:30:35 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: In some cases of "junk science", we are. Silicone implants come to mind.

We are pretty sure it's junk now. I don't believe there was always a
agreement that there were not valid concerns about silicone implants.
That being said, I can't tell from the referenced article, WHETHER the "science" he used is "junk science" are not. My guess is that, if the defense was allowed to present statistics experts, the jury might find: Damages: $10 million probability doctor caused the damage: .0000001 Damages awarded: $10 But that would be demonstrating a flaw in the legal system that statistical evidence is not permitted, or inadequate defense in

Statistical evidence is allowable. It would probably be appropriate
here. If the jury assigned 0.000001 probability that the doctor
in this particular case caused the injury, (or even 0.49 for that
matter) the jury should not award any damages. They have to decide
that the injury was most likely caused by the doctor's actions or
omissions.
not presenting the statistical evidence. THAT wouldn't make Edwards bad or unethical. (Lawyers ARE supposed to make arguments that they don't believe are correct; they're merely not supposed to present evidence they don't believe is accurate.)

You're not leaving me much to argue about. I don't fully agree
with your final statement. The lawyer is supposed to present his
client's case. He should not present perjured evidence. But I
don't see any ethical problem with permiting experts to testify about
facts that the lawyer has doubt about or disbelieves.

Should Galileo's lawyer refuse to put on evidence that the moons
of Jupiter do not rotate around the earth?

Isaac

Isaac wrote:
On Tue, 27 Jan 2004 13:30:35 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com> wrote: In some cases of "junk science", we are. Silicone implants come to mind. We are pretty sure it's junk now. I don't believe there was always a agreement that there were not valid concerns about silicone implants.

There was never any scientific evidence presented, and the statistical
evidence showed a slight negative correlation between the implants
and the alleged diseases. I don't know how the "evidence" was
ever admitted.
That being said, I can't tell from the referenced article, WHETHER the "science" he used is "junk science" are not. My guess is that, if the defense was allowed to present statistics experts, the jury might find: Damages: $10 million probability doctor caused the damage: .0000001 Damages awarded: $10 But that would be demonstrating a flaw in the legal system that statistical evidence is not permitted, or inadequate defense in Statistical evidence is allowable. It would probably be appropriate here. If the jury assigned 0.000001 probability that the doctor in this particular case caused the injury, (or even 0.49 for that matter) the jury should not award any damages. They have to decide that the injury was most likely caused by the doctor's actions or omissions.

Not exactly. Well -- I don't think so, anyway. They are
(normally*) TOLD to determine what proportion of the plaintiff's
damage was caused by the defendant (by a preponderance of
evidence -- which is not the same as a 50+% probability). As
that is logically impossible, a logically (but perhaps not legally)
acceptable alternative would be to determine the probability
that the defendant caused the damage, and use that for the
proportion.

*Ignoring Scott's posts on the redefinition of "normally".

On Tue, 27 Jan 2004 18:15:02 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Not exactly. Well -- I don't think so, anyway. They are (normally*) TOLD to determine what proportion of the plaintiff's damage was caused by the defendant (by a preponderance of evidence -- which is not the same as a 50+% probability). As

The portion of the injury caused by the doctor is not the same
as the probability that the doctor's actions could cause an injury.
Those are two separate inquiries. The jury is supposed to decide
both although the latter is only assessed qualitatively.

A preponderance of the evidence simply means that the jury
determines based on the evidence whether the plaintiff is more
likely than not correct. That may not mean > 50 per cent probability,
but probabilities lower than 50 would seem certainly not sufficient.
that is logically impossible, a logically (but perhaps not legally) acceptable alternative would be to determine the probability that the defendant caused the damage, and use that for the proportion.

I don't think that would be an acceptable or fair way to do things.
It might work out fairly for a defendant who gets sued a large number
of times, but some plaintiffs would get rewarded unfairly while other
plaintiffs would not be compensated fully for real losses.

So only if the only concern is for the defendant's pocketbook is
it logically acceptable.

Isaac

Isaac wrote:
On Tue, 27 Jan 2004 18:15:02 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com> wrote: Not exactly. Well -- I don't think so, anyway. They are (normally*) TOLD to determine what proportion of the plaintiff's damage was caused by the defendant (by a preponderance of evidence -- which is not the same as a 50+% probability). As The portion of the injury caused by the doctor is not the same as the probability that the doctor's actions could cause an injury. Those are two separate inquiries. The jury is supposed to decide both although the latter is only assessed qualitatively. A preponderance of the evidence simply means that the jury determines based on the evidence whether the plaintiff is more likely than not correct. That may not mean > 50 per cent probability, but probabilities lower than 50 would seem certainly not sufficient. that is logically impossible, a logically (but perhaps not legally) acceptable alternative would be to determine the probability that the defendant caused the damage, and use that for the proportion. I don't think that would be an acceptable or fair way to do things. It might work out fairly for a defendant who gets sued a large number of times, but some plaintiffs would get rewarded unfairly while other plaintiffs would not be compensated fully for real losses. So only if the only concern is for the defendant's pocketbook is it logically acceptable.

Let's be real (changing the subject might also be good, as
I don't want to be specific to John Edwards)....

In most medical malpractice cases, there isn't a "smoking gun"
(or glove). The best one can do scientifically is to estimate
probabilities.

For example, in the case of a serious disease alleged to have
been caused by the doctor at birth, scientific evidence could
be presented as to the following (with the numbers being given
as examples):

Probability that the disease would occur with the best medical
care: (.0001).
Probability that the disease would occur with the care that actually
occurred (with "actual occurrence" determined by the jury): (.000101)

Given that the disease DID occur, the probability the doctor caused
it would then be 0.99%, so that could be used as the proportion
of the damages (also determined by the jury) to be awarded
against the doctor.

If those numbers are admissible and believed by the jury, on your
definition, NO damages should be awarded.

On Wed, 28 Jan 2004 09:12:45 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Let's be real (changing the subject might also be good, as I don't want to be specific to John Edwards)....

Fine with me.
In most medical malpractice cases, there isn't a "smoking gun" (or glove). The best one can do scientifically is to estimate probabilities.

I'm not sure if most is correct.
For example, in the case of a serious disease alleged to have been caused by the doctor at birth, scientific evidence could be presented as to the following (with the numbers being given as examples): Probability that the disease would occur with the best medical care: (.0001). Probability that the disease would occur with the care that actually occurred (with "actual occurrence" determined by the jury): (.000101) Given that the disease DID occur, the probability the doctor caused it would then be 0.99%, so that could be used as the proportion of the damages (also determined by the jury) to be awarded against the doctor. If those numbers are admissible and believed by the jury, on your definition, NO damages should be awarded.

Yes that's correct. And it would be the right answer 99% of the
time. Your answer would be incorrect 100% of the time. The defendant
would be treated fairly, but 99 of 100 plaintiffs would get money they
did not deserve, while 1 out of 100 plaintiffs would be grossly
undercompensated.

Isaac

In article <slrnc1g1lm.ana.isaac@latveria.castledoom.org>,
Isaac <isaac@latveria.castledoom.org> wrote:
Yes that's correct. And it would be the right answer 99% of thetime. Your answer would be incorrect 100% of the time. The defendantwould be treated fairly, but 99 of 100 plaintiffs would get money theydid not deserve, while 1 out of 100 plaintiffs would be grosslyundercompensated.

There's no way to tell which is the one of the 100 plaintiffs who
should be compensated.

Therefore, compensating each by the expected value of the doctor's
damage is the correct thing to do.

Otherwise, consider a situtation where, with perfect care, 60% of the
patients die. If a doctor kills 100%, according to you he wouldn't
ever be liable (since in any given case there's only a 40% chance that
the doctor caused the death).

Seth

On 28 Jan 2004 22:36:29 -0500, Seth Breidbart <sethb@panix.com> wrote: In article <slrnc1g1lm.ana.isaac@latveria.castledoom.org>, Isaac <isaac@latveria.castledoom.org> wrote:Yes that's correct. And it would be the right answer 99% of thetime. Your answer would be incorrect 100% of the time. The defendantwould be treated fairly, but 99 of 100 plaintiffs would get money theydid not deserve, while 1 out of 100 plaintiffs would be grosslyundercompensated. There's no way to tell which is the one of the 100 plaintiffs who should be compensated. Therefore, compensating each by the expected value of the doctor's damage is the correct thing to do.

It's not fair to the patient who is actually the victim of negligence
and who gets a mere pittance. The other patients should not get
anything at all. It would be just as fair to collect the one percent
as fines and give it to the state.
Otherwise, consider a situtation where, with perfect care, 60% of the patients die. If a doctor kills 100%, according to you he wouldn't ever be liable (since in any given case there's only a 40% chance that the doctor caused the death).

That isn't quite what I said. I think what would probably happen in
such a situation is 100% of the law suits would be successful. The
large number of patients dying would likely convince the jury
that the doctor was a bungling idiot, leaving the doctor to attempt to
persuade the jury that he had not killed a certain patient.

But no such inference could be made when the difference between expected
and actual percentages is statistically insignificant (less that
one percent). In fact it would be impossible in real life to detect
the difference between 0.000101 and 000100 probabilities.

The situation is grossly different when the probabilities are tiny
compared to the situation when they are as large as you show here.

Isaac

Isaac wrote:
On 28 Jan 2004 22:36:29 -0500, Seth Breidbart <sethb@panix.com> wrote:
Otherwise, consider a situtation where, with perfect care, 60% of the patients die. If a doctor kills 100%, according to you he wouldn't ever be liable (since in any given case there's only a 40% chance that the doctor caused the death). That isn't quite what I said. I think what would probably happen in such a situation is 100% of the law suits would be successful.

But it would be wrong, by your definition of liability.

On Thu, 29 Jan 2004 08:14:47 -0800, Arthur L. Rubin <ronnirubin@sprintmail.com>
wrote: Isaac wrote: On 28 Jan 2004 22:36:29 -0500, Seth Breidbart <sethb@panix.com> wrote: Otherwise, consider a situtation where, with perfect care, 60% of the patients die. If a doctor kills 100%, according to you he wouldn't ever be liable (since in any given case there's only a 40% chance that the doctor caused the death). That isn't quite what I said. I think what would probably happen in such a situation is 100% of the law suits would be successful. But it would be wrong, by your definition of liability.

I don't think I'm citing my own definition of liability. I am attempting
to point out legal definition. Courts don't hold defendants liable for 1%
of the damages when they find a 1% chance that the defendant is responsible.

I think the problem is with the artificial nature of the hypothetical and
the limitations of the evidence. A doctor is killing all of his patients,
but nobody can figure out why? Also even if the doctor's actions are
not the sole cause in 60% of the cases, if he is bungled those cases too,
isn't it fair that the doctor should have the burden of proof of showing
which patients he did not kill?

OTOH, how would a real situation ever arise when we could detect such an
infinitessimally small a change in mortality rate as in your first example
without identifying a cause. And if we do identify a cause, then maybe
we can separate out which patient ought to be compensated from the others.

Isaac

Isaac wrote:
OTOH, how would a real situation ever arise when we could detect such an infinitessimally small a change in mortality rate as in your first example without identifying a cause. And if we do identify a cause, then maybe we can separate out which patient ought to be compensated from the others.

Suppose there was a small difference in the mortality (or success rate)
depending on whether the incision was done left-to-right or
right-to-left.
If records are kept of the direction of the incision, then a difference
between a (say) 20% and 20.1% mortality might be determinable.

Or, perhaps a vertical or horizontal incision....

Cause, but no legal responsibility....

In article <slrnc1h1f7.ana.isaac@latveria.castledoom.org>,
Isaac <isaac@latveria.castledoom.org> wrote:On 28 Jan 2004 22:36:29 -0500, Seth Breidbart <sethb@panix.com> wrote: In article <slrnc1g1lm.ana.isaac@latveria.castledoom.org>, Isaac <isaac@latveria.castledoom.org> wrote:Yes that's correct. And it would be the right answer 99% of thetime. Your answer would be incorrect 100% of the time. The defendantwould be treated fairly, but 99 of 100 plaintiffs would get money theydid not deserve, while 1 out of 100 plaintiffs would be grosslyundercompensated. There's no way to tell which is the one of the 100 plaintiffs who should be compensated. Therefore, compensating each by the expected value of the doctor's damage is the correct thing to do.It's not fair to the patient who is actually the victim of negligenceand who gets a mere pittance.

There is, remember, absolutely no possible way to tell which one that
is. Courts can't rule based on reality, only on evidence. So
claiming that in a perfect world with better information than is
possible in this one, something else should happen, is not useful.
What should happen in _this_ world?
The other patients should not getanything at all. It would be just as fair to collect the one percentas fines and give it to the state.

As fair to whom? The one patient who you think deserves something
would be worse off. (And you can't identify which one that is.)
Otherwise, consider a situtation where, with perfect care, 60% of the patients die. If a doctor kills 100%, according to you he wouldn't ever be liable (since in any given case there's only a 40% chance that the doctor caused the death).That isn't quite what I said. I think what would probably happen insuch a situation is 100% of the law suits would be successful.

Why? The doctor is only 40% likely to be the cause of death in any
particular case.
Thelarge number of patients dying would likely convince the jurythat the doctor was a bungling idiot, leaving the doctor to attempt topersuade the jury that he had not killed a certain patient.

So now you're claiming that a jury's stupidity is the key issue?

Seth