Gotta love that redistricting.
It's about time for my semi-occasional post, and this one is a tribute to the Beaumont Court of Appeals, "tort reform," and Republicans everywhere.
The case is Mobil v. Bailey, and it's an asbestos case.
Mr. Bailey worked at a lot of different places and was exposed to asbestos at a lot of different places over a long period of time. And part of that asbestos exposure came while working for a contractor at Mobil. He also smoked for a long time. He died of lung cancer. (Since Mr. Bailey is no longer alive, he's obviously not a party to the case, but that's how I'll refer to the plaintiffs.)
It's pretty well accepted within the scientific community that smoking causes lung cancer. It's also pretty well accepted that asbestos causes lung cancer. It's also pretty well accepted that heavy smoking, in conjunction with long term asbestos exposure, has a synergistic effect and multiplies the risk many times over. And by "pretty well accepted," I mean generally regarded as established beyond a reasonable doubt.
So, for instance (and I'm just making these figures up for illustrative purposes), suppose someone has a smoking history that would give him five times the risk of getting lung cancer of a similar nonsmoker, and asbestos exposure that would give him three times the lung cancer risk of someone without any significant asbestos exposure. You might think he'd have eight times the lung cancer risk of a similar person who had no significant history of smoking or asbestos exposure. But you'd be wrong. He'd have fifty times the lung cancer risk. (Again, the specific figures are made up for illustrative purposes. There is disagreement within the scientific community about the extent of the synergistic effect. Figures as high as 92 times the risk find some support in the literature.)
That's significant in a toxic tort case because you have to be able to prove that the toxic substance in question was more likely than not a cause of the injury. If smoking quintupled the risk and asbestos exposure tripled it, and they operated independently of each other, then there'd only be a 37.5% chance that asbestos caused the cancer, and that's short of "more likely than not." But if, as described above, it's five times the risk for smoking alone, three times the risk for asbestos alone, and fifty times the risk when you've got both, the numbers suggest that there was a 10% chance that the cancer was caused by smoking alone, a 6% chance that it was caused by asbestos alone, and an 84% chance that it was a combination of the two. And that, of course, means that there's a 90% chance that asbestos was a contributing cause, and that's enough to get you to a jury.
At trial, Bailey's medical and epidemiological experts testified that this synergistic effect exists. They cited such things as the Surgeon General's report, multiple published, peer-reviewed epidemiological studies, and tons of other stuff from the relevant scientific literature. Mobil's experts said it existed too (although they claimed that it doesn't exist unless you also have asbestosis or asbestos exposure sufficient to cause asbestosis, which they said Mr. Bailey didn't have.)
Anyway, Mobil lost at trial and appealed to the Beaumont Court of Appeals. In it's appellate brief, Mobil said "the scientific community has recognized the concept of synergy in the asbestos concept" (and then went on to claim that the synergy exists only in patients who have asbestosis).
Bailey's brief stated: "It is also an undisputed fact in this case that smoking and asbestos exposure interact synergistically to create a lung cancer risk many times what either of them would pose individually. And it is an undisputed fact that James Bailey died of lung cancer. The only issue with respect to causation involves a theory posited by Mobil that asbestos cannot cause lung cancer in the absence of asbestosis, and that theory is that it is wrong."
And here's what the majority opinion of the Beaumont Court of Appeals had to say about it: "neither of plaintiffs' two causation experts made a sufficient showing that the relevant scientific community had generally accepted the concept of 'synergism.'" Seriously. Even though the evidence at trial showed that pretty much everyone in the scientific community from the Surgeon General on down, including Mobil's expert witnesses, regards the synergism as an established scientific fact, even though the point was undisputed at trial and uncontested on appeal, the court still said there was insufficient evidence. "No evidence," actually, since that's the legal standard of review they were applying.
The rest of the opinion isn't quite that bad, but it's close. The dissent does a pretty good job of telling them how they got it wrong, but apparently they weren't in the mood to listen. The dissenting opinion was written by a justice who used to represent asbestos defendants, by the way. I don't get the impression from the majority opinion that either of the justices involved had any experience with asbestos litigation or toxic torts before joining the court. They seem to lack even a basic grasp of how the law is supposed to deal with scientific evidence.
And just as an aside (not really an aside, more an illustration, but it was a genuine aside before I added the previous paragraph), the Supreme Court of the United States did away with the "general acceptance" test for the admissibility of scientific evidence in Daubert, and the Supreme Court of Texas followed suit in 1995 in E.I DuPont v. Robinson. Whether "the relevant scientific community had generally accepted the concept of 'synergism'" isn't even the right question.
And as a further aside, in case you were wondering, there is plenty of stuff from the relevant scientific literature that was presented at trial indicating that it's the asbestos exposure, not the absence or presence of asbestosis, that counts. Stuff like standard medical texts, what appears to be the only epidemiological study that was specifically designed to look for an answer to that particular question, and lots of stuff in the medical literature about the disease processes that indicates that the two diseases develop independently.
But all asides aside, I mentioned "redistricting" in the title, so I guess it's time to get to the real subject of this post. In a state where you have to have an (R) after your name to get elected to any statewide office, the Supreme Court rules against the tort plaintiffs at least 80% of the time, and "tort reform" tops the legislative agenda whenever the conspiracy's in session; the Beaumont Court of Appeals had been a where a plaintiff who convinced a jury of the rightness of his cause could go without having to worry about the court bending over backwards to try to find an excuse take away the verdict.
No more. The court got redistricted, adding a bunch of people from Houston suburbs and effectively making it impossible for anyone without the (R) to get elected. Even though the (R)s are the only party with which I've ever had any affiliation (including serving as a precinct chairman, election judge, and delegate to the state convention), I must admit that I'm less than pleased with the results. They make a great minority party; keeping the bad guys from getting too far out of line. I'm not too crazy about what they do when they get power themselves.
The American Tort Reform Association perennially picks Jefferson County, Texas, for its "Judicial Hellhole" honors. In its "Judicial Hellholes 2005" report, ATRA tells us: "Appellate courts continue to site [sic] abuse of judicial discretion in Jefferson (named the fifth worst Judicial Hellhole in 2004), Nueces, Hidalgo and Cameron Counties." If this case is any indication, you might not want to take those appellate courts at their word, guys. And by the way, guys, the word is "cite," like in "citation." Unless you mean that's where they're placing their abuse of judicial discretion. Idiots.
And now, back to the asides (although, I guess I already got back to the asides with the aside to the guys at ATRA, and the rest of these "asides" are really more digressions, except for this, which is more a parenthetical).
Anyway as one final aside, ATRA's motto is "Bringing Greater Fairness, Predictability, and Efficiency to the Civil Justice System." And they're working towards a system where the rule is that the plaintiff loses every time, no matter what the facts. Hell, it's predictable and efficient, so what if it comes up a bit short in the fairness department? Two out of three ain't bad.
The case is Mobil v. Bailey, and it's an asbestos case.
Mr. Bailey worked at a lot of different places and was exposed to asbestos at a lot of different places over a long period of time. And part of that asbestos exposure came while working for a contractor at Mobil. He also smoked for a long time. He died of lung cancer. (Since Mr. Bailey is no longer alive, he's obviously not a party to the case, but that's how I'll refer to the plaintiffs.)
It's pretty well accepted within the scientific community that smoking causes lung cancer. It's also pretty well accepted that asbestos causes lung cancer. It's also pretty well accepted that heavy smoking, in conjunction with long term asbestos exposure, has a synergistic effect and multiplies the risk many times over. And by "pretty well accepted," I mean generally regarded as established beyond a reasonable doubt.
So, for instance (and I'm just making these figures up for illustrative purposes), suppose someone has a smoking history that would give him five times the risk of getting lung cancer of a similar nonsmoker, and asbestos exposure that would give him three times the lung cancer risk of someone without any significant asbestos exposure. You might think he'd have eight times the lung cancer risk of a similar person who had no significant history of smoking or asbestos exposure. But you'd be wrong. He'd have fifty times the lung cancer risk. (Again, the specific figures are made up for illustrative purposes. There is disagreement within the scientific community about the extent of the synergistic effect. Figures as high as 92 times the risk find some support in the literature.)
That's significant in a toxic tort case because you have to be able to prove that the toxic substance in question was more likely than not a cause of the injury. If smoking quintupled the risk and asbestos exposure tripled it, and they operated independently of each other, then there'd only be a 37.5% chance that asbestos caused the cancer, and that's short of "more likely than not." But if, as described above, it's five times the risk for smoking alone, three times the risk for asbestos alone, and fifty times the risk when you've got both, the numbers suggest that there was a 10% chance that the cancer was caused by smoking alone, a 6% chance that it was caused by asbestos alone, and an 84% chance that it was a combination of the two. And that, of course, means that there's a 90% chance that asbestos was a contributing cause, and that's enough to get you to a jury.
At trial, Bailey's medical and epidemiological experts testified that this synergistic effect exists. They cited such things as the Surgeon General's report, multiple published, peer-reviewed epidemiological studies, and tons of other stuff from the relevant scientific literature. Mobil's experts said it existed too (although they claimed that it doesn't exist unless you also have asbestosis or asbestos exposure sufficient to cause asbestosis, which they said Mr. Bailey didn't have.)
Anyway, Mobil lost at trial and appealed to the Beaumont Court of Appeals. In it's appellate brief, Mobil said "the scientific community has recognized the concept of synergy in the asbestos concept" (and then went on to claim that the synergy exists only in patients who have asbestosis).
Bailey's brief stated: "It is also an undisputed fact in this case that smoking and asbestos exposure interact synergistically to create a lung cancer risk many times what either of them would pose individually. And it is an undisputed fact that James Bailey died of lung cancer. The only issue with respect to causation involves a theory posited by Mobil that asbestos cannot cause lung cancer in the absence of asbestosis, and that theory is that it is wrong."
And here's what the majority opinion of the Beaumont Court of Appeals had to say about it: "neither of plaintiffs' two causation experts made a sufficient showing that the relevant scientific community had generally accepted the concept of 'synergism.'" Seriously. Even though the evidence at trial showed that pretty much everyone in the scientific community from the Surgeon General on down, including Mobil's expert witnesses, regards the synergism as an established scientific fact, even though the point was undisputed at trial and uncontested on appeal, the court still said there was insufficient evidence. "No evidence," actually, since that's the legal standard of review they were applying.
The rest of the opinion isn't quite that bad, but it's close. The dissent does a pretty good job of telling them how they got it wrong, but apparently they weren't in the mood to listen. The dissenting opinion was written by a justice who used to represent asbestos defendants, by the way. I don't get the impression from the majority opinion that either of the justices involved had any experience with asbestos litigation or toxic torts before joining the court. They seem to lack even a basic grasp of how the law is supposed to deal with scientific evidence.
And just as an aside (not really an aside, more an illustration, but it was a genuine aside before I added the previous paragraph), the Supreme Court of the United States did away with the "general acceptance" test for the admissibility of scientific evidence in Daubert, and the Supreme Court of Texas followed suit in 1995 in E.I DuPont v. Robinson. Whether "the relevant scientific community had generally accepted the concept of 'synergism'" isn't even the right question.
And as a further aside, in case you were wondering, there is plenty of stuff from the relevant scientific literature that was presented at trial indicating that it's the asbestos exposure, not the absence or presence of asbestosis, that counts. Stuff like standard medical texts, what appears to be the only epidemiological study that was specifically designed to look for an answer to that particular question, and lots of stuff in the medical literature about the disease processes that indicates that the two diseases develop independently.
But all asides aside, I mentioned "redistricting" in the title, so I guess it's time to get to the real subject of this post. In a state where you have to have an (R) after your name to get elected to any statewide office, the Supreme Court rules against the tort plaintiffs at least 80% of the time, and "tort reform" tops the legislative agenda whenever the conspiracy's in session; the Beaumont Court of Appeals had been a where a plaintiff who convinced a jury of the rightness of his cause could go without having to worry about the court bending over backwards to try to find an excuse take away the verdict.
No more. The court got redistricted, adding a bunch of people from Houston suburbs and effectively making it impossible for anyone without the (R) to get elected. Even though the (R)s are the only party with which I've ever had any affiliation (including serving as a precinct chairman, election judge, and delegate to the state convention), I must admit that I'm less than pleased with the results. They make a great minority party; keeping the bad guys from getting too far out of line. I'm not too crazy about what they do when they get power themselves.
The American Tort Reform Association perennially picks Jefferson County, Texas, for its "Judicial Hellhole" honors. In its "Judicial Hellholes 2005" report, ATRA tells us: "Appellate courts continue to site [sic] abuse of judicial discretion in Jefferson (named the fifth worst Judicial Hellhole in 2004), Nueces, Hidalgo and Cameron Counties." If this case is any indication, you might not want to take those appellate courts at their word, guys. And by the way, guys, the word is "cite," like in "citation." Unless you mean that's where they're placing their abuse of judicial discretion. Idiots.
And now, back to the asides (although, I guess I already got back to the asides with the aside to the guys at ATRA, and the rest of these "asides" are really more digressions, except for this, which is more a parenthetical).
Anyway as one final aside, ATRA's motto is "Bringing Greater Fairness, Predictability, and Efficiency to the Civil Justice System." And they're working towards a system where the rule is that the plaintiff loses every time, no matter what the facts. Hell, it's predictable and efficient, so what if it comes up a bit short in the fairness department? Two out of three ain't bad.
posted by Jack | 1:00 PM
3 Comments:
Man, when you drudge, you drudge.
(As an aside, or possibly a parenthetical, I read every word, even after the Chianti and Pomma.)
*thyktra* - sounds like female superhero or a mythological something or other
Correction - Pama.
Lucky you Laurie,
I read it all plus the entire opinion
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