Roundup, Pseudoscience and the Need for Villains

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Michael Siegel

Michael Siegel is an astronomer living in Pennsylvania. He is on Twitter, blogs at his own site, and has written a novel.

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  1. Avatar Philip H
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    says:

    Modern science is a collection of highly niched specialties, and medicine falls in this category. Modern jurisprudence, modern politics and modern regulatory action all demand certainty, and are ill equipped to deal with nuance and uncertainty. Add in a healthy dose of capitolistic profit preservation by one party in civil litigation, and the judges’ ruling becomes not just an omage to flawed conclusion drawing, but another example of how our ability to understand and document the world through science has outpaced our ability to apply that understanding to human social systems.

    Or some such.Report

  2. Avatar Oscar Gordon
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    says:

    Well, this is why we have an appeals process…Report

    • Avatar Kazzy in reply to Oscar Gordon
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      Reason (or Volokh@Reason) had a post that discussed the difficulty of an appeal resolving this. Apparently, appeals aren’t really designed to overturn bad decisions by juries. There was more to it then that… worth a read if you head over there.Report

      • Avatar Jaybird in reply to Kazzy
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        says:

        HOLY CRAP IT’S KAZZYReport

      • Avatar Oscar Gordon in reply to Kazzy
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        As legal decisions start depending more on scientific testimony, it will probably be necessary to allow an appeal based upon the fact that a judge allowed expert testimony that can be shown to be wrong.Report

        • Avatar Michael Siegel in reply to Oscar Gordon
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          There was a really good article years ago on the Woburn Mass case (shown in the movie A Civl Action) where the verdict turned on the jury answering extremely complex engineering questions. This is one where I sided with the plaintiffs — there was a known carcinogen in the water, it was causing disease specific to that carcinogen and it was pretty clear who was responsible for it.Report

        • Avatar Aaron David in reply to Oscar Gordon
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          A lot of this turns on expert witnesses and how they present to a jury. The defense should also have an expert on tap that can clearly (or not) explain to the jury what actually happens, knock down false probability, and present facts in laymans terms.

          Or, they can be used to befuddle, to muddy the waters so to speak. It’s a crap shoot.Report

      • Avatar PD Shaw in reply to Kazzy
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        I believe a plaintiff’s lawyer has conceded that the punitive damage award will be reduced on appeal. Not really an issue in the OP, but I’m not seeing anything that suggests any punitive damages are appropriate. In the classic McDonalds coffee case, McDonalds had files full of people getting third-degree burns from their coffee and took no precautions (and even then the punitives were greatly reduced on appeal)Report

        • Avatar Michael Siegel in reply to PD Shaw
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          Don’t get me started on the McDonald’s case. The legal industry has spent years trying to rewrite the history of that one. They’d had 700 lawsuits out of billions of cups served. And they’d settled the ones where they were clearly at fault.Report

          • Avatar PD Shaw in reply to Michael Siegel
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            We can agree to disagree, but still McDonalds had hundreds of complaints about severe burns caused by the temperature it served its coffee and did nothing, which is the reason why punitive damages were awarded for willful and wanton misconduct. Monsanto can point to studies disclaiming any link; I don’t see what they knew and should have done.Report

            • Avatar Oscar Gordon in reply to PD Shaw
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              When it comes to Monsanto, their reputation is crap less because of chemicals, and more because of seeds. They are, IIRC, one of the companies that would sell GMO seeds to farmers, conduct genetic testing on neighboring farms to see if their GMO fingerprint was in somebody else’s field, then sue the neighbor for IP violations.

              They had a few other really shady business practices as well when it came to seeds.

              But there is a strong online movement dedicated towards convincing everyone the big Agri-Chemical companies are poisoning us all (the intellectual descendants of DDT activists). And even if you don’t buy into the whole hippie vegan organic all the way ideal, it’s not hard to imagine that the chemical companies are just fine with farmers using way more of their products than is really needed, and those chemicals getting into groundwater, or killing bees, or whatever other mischief you can imagine…Report

            • Avatar George Turner in reply to PD Shaw
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              But the tort system and idiot juries like they had in the McDonald’s case are why we can’t buy flaming sambuca shots in the drive-thru.Report

  3. Avatar PD Shaw
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    says:

    Not sure about class action, but what you may be suggesting is something like the vaccine court. A tax levied on vaccines created a fund that is dispersed to those who suffer a vaccine injury. Unless the vaccine injury is already listed, causation is essentially demonstrated by an expert presenting a medical theory connecting the vaccine to the injury, which presents a logical sequence of cause and effect and proximity to the time of the vaccination. This was the court in which autism failed to be defined as a vaccine injury. The underlying policy objectives are to support vaccines in the face of potential idiosyncratic risks that we may not be able to identify yet.Report

  4. Avatar Pinky
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    Great article.

    Not a complaint, but a FYI: you said that dice are sometimes unfair. Mathematicians use the term “fair die” to refer to something specific: a process that produces a statistically uniform random result. In speaking about cancer, the problem is that sometimes the dice are fair, and if one child in a million on average will get a cancer, that means that children get cancer.Report

  5. Avatar Aaron David
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    Very nice piece Michael.

    Frankly, this is the sort of issue that really bothers me. Not the use and or misunderstanding of data. That is what it is there for, to help us move along in the physical world. But the veneer of “science” used to scare and or punish people. And I use scare quotes for a reason. I come from a whole family of scientists; my father has a Ph.D. in genetics, my uncle one in nuclear physics, great uncles were astronomers, soil scientists, and organic chemists. Pushing the boundaries of our understanding of the natural world is intensely important, but the respect that is needed must be tempered with great skepticism. Otherwise, it simply becomes a matter of faith that we are being told the truth. And this leads nowhere good.

    Too many are accepting of pseudoscience right now, as evidenced in this case. We are no longer being taught critical thinking in this regard.Report

  6. Avatar Chip Daniels
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    I see this as one more data point showing a collapse of faith in our leaders and institutions, on par with anti-vax or climate change denialism.Report

    • Avatar Oscar Gordon in reply to Chip Daniels
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      So:

      “We no longer trust our leaders to be honest* with us regarding dangers, so we are going to go with what feels right?”

      *because they over or under inflate the actual risk in order to advance a political agendaReport

      • Avatar Chip Daniels in reply to Oscar Gordon
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        Pretty much.
        Credibility of authority has always been a dicey affair. But I think as the economic and social prospects of the American middle class have stagnated, more and more people are restlessly searching for some straight simple order to explain things.

        Personally, I wonder how much is due to the ability of the internet and digital media to put any thought, no matter how ludicrous, on the same level as a peer reviewed scientific study.

        In that, back in the day, anti-fluoridation people had only lame mimeographed copies and home published pamphlets, or late night public access cable shows from their basement in order to make their case.
        Now of course they can put together a website, email list and Youtube channel that looks and feels like something from Harvard Medical.

        But I’m a graphic-based guy, so naturally I would see it that way.Report

        • Avatar Oscar Gordon in reply to Chip Daniels
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          says:

          So are most people, to be honest. Along with Aaron’s critical thinking classes, we need everyone to start taking basic stats and probabilities, and a class on evaluating source authority.

          Looking more and more like our basic HS curriculum needs a serious overhaul.Report

          • Avatar greginak in reply to Oscar Gordon
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            Yeah i’ve been for teaching stats/probs in HS for a long time. It is the math we come in contact with far more often then any other.Report

          • Avatar Chip Daniels in reply to Oscar Gordon
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            I’ve noticed how in the 19th century, almost all advertising was some appeal to personal authority- It was all “Dr. Hoopity’s Miracle Cure” or “The Great Northwestern Trust and Loan”, where you were to imagine some august body of respectable gentlemen whose personal integrity and moral rectitude could be trusted.

            Because of course, that’s all anyone had to go on. There weren’t transcripts or credentials or certifications. Twain parodied this in Huck Finn, where if a couple of fast talking guys blew into town and claimed to be the lost Dauphin of France, well, who was to gainsay it?

            I’ve personally witnessed this with modern quacks, where somebody would go on an on about how the FDA was wrong to certify this chemical as safe, because of This Study or That Study, and they would talk ever so intelligently and confidently about medical and scientific jargon and concepts.

            Then, when they had a headache, a friend would reach into her purse and pull out some pill or lozenge or something, and claim it was some miracle herb or potion that scientists didn’t want you to know about.

            And the person would pop it into their mouth, with complete and utter credulity, not knowing a damn thing about what it was or where it came from.

            Because their faith was in their personal relationship and trust, not in science, notwithstanding all their jargon and words.Report

          • Avatar InMD in reply to Oscar Gordon
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            I’d make the Demon Haunted World by Carl Sagan mandatory reading.Report

          • Avatar Dark Matter in reply to Oscar Gordon
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            It’s not just the science which is clearly a mess here… the fiscal reasoning is also a mess. Billions of dollars of damages? For two people having more risk than they should have?

            You give this kind of result for industries which arguably shouldn’t even exist who are unquestionably hurting vast portions of the public.Report

        • Avatar NYSCOF in reply to Chip Daniels
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          F.Y.I. Those opposing fluoridation have science on their side. References here: http://FluorideAction.Net/researchers/professionals-statement/text.

          An International Dental Group gives 10 science-backed reasons to avoid consuming fluoride https://iaomt.org/top-ten-reasons-oppose-water-fluoridation/Report

      • Avatar LeeEsq in reply to Oscar Gordon
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        It’s also because the most honest leaders tend to say things like “these are very tough issues with no easy solution and we just have to muddle through it.” People don’t want to hear this.Report

    • Avatar pillsy in reply to Chip Daniels
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      I think there may be another factor: a sense of precarity.

      Consider what happens if you get sick, or are injured in an accident. You have to fight with insurance companies if you have insurance, and that insurance may still leave you with substantial out-of-pocket costs. You face lost wages due to being. out of work, and you might even lose your job, and the same goes for family members who need to help care for you, or who need to take up slack in terms of unpaid labor you used to do for the family.

      The cruelty of that random disaster can be redoubled by an indifferent society that doesn’t really provide a ton of support for the infirm, exposing you and your loved ones to a great deal of adversity.

      I wonder how many jurors (and for that matter, attorneys, experts, and even judges) are, on some level, influenced by these considerations, and on the other side see a big faceless business entity that will, by design, diffuse the damage across thousands of people.

      It’s obvious that there are many problems with this, of course.

      But that doesn’t mean it isn’t also possibly true.Report

      • Avatar Philip H in reply to pillsy
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        I’m fairly certain this is a big factor in the awards and judgments. Heck, we saw this all the way back in the case of the hot coffee burning Granny’s lap – while she may well have been partly to blame for putting hot coffee in a less then sturdy cup between her legs, the injury she suffered, and even the damage award she got was chump change to McDonalds. Yet for a lot of people, large damage awards like this are all they have to remind corporations of who should really be in charge – or something like that.Report

        • Avatar LeeEsq in reply to Philip H
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          Tort awards are much lower in countries with a functioning health care system and universal welfare state.Report

        • Avatar Ozzy! in reply to Philip H
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          I am not sure you are aware of this, as the whole story on Granny with Coffee was not at all as silly as it was made out to be. The coffee was at like 180+ degrees. She had severe second and third degree burns and was hospitalized for a very long time. It was clearly negligence, and not on her part.

          https://www.vox.com/policy-and-politics/2016/12/16/13971482/mcdonalds-coffee-lawsuit-stella-liebeckReport

          • Avatar Chip Daniels in reply to Ozzy!
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            says:

            Before Twitter, before Facebook, before Snopes, before the internet, there was a thriving cottage publishing industry of Outrage stories.

            Things like the 2 Million Dollar Coffee Burn, the Burglar Who Fell Through A Skylight And Sued Homeowner, The Guy Who Placed His Ladder In Manure Then Slipped and Sued The Company all made the rounds of National Enquirer, Reader’s Digest, National Review and assorted newspapers.

            The underlying moral was always the same; The tort process was a jackpot, and lazy stupid criminals were just breezing in, filling out a few papers, and shazam, walking out with a sack of loot.

            And ironically, this dovetailed with my other observation above about how once people lose faith in institutions and authority, the moral landscape becomes a free fire zone, where one’s sympathies might swing in favor of the plaintiff or defendant, depending on what moral narrative they could convincingly conjure up.Report

          • Avatar Dark Matter in reply to Ozzy!
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            You make coffee with boiling water. Counter to what the press sometimes reports, McDonalds didn’t change the temperature of the water. They got 700 reports of burns (any burns) over a ten year period serving Billions of cups a year.

            (WIKI)
            In 1994, a spokesman for the National Coffee Association said that the temperature of McDonald’s coffee conformed to industry standards.[2] An “admittedly unscientific” survey by the LA Times that year found that coffee was served between 157 and 182 °F (69 and 83 °C), and that two coffee outlets tested, one Burger King and one Starbucks, served hotter coffee than McDonald’s.[36]

            Since Liebeck, McDonald’s has not reduced the service temperature of its coffee. McDonald’s policy today[when?] is to serve coffee at 176–194 °F (80–90 °C),[37] relying on more sternly worded warnings on cups made of rigid foam to avoid future liability, though it continues to face lawsuits over hot coffee.[37][38]

            The Specialty Coffee Association of America supports improved packaging methods rather than lowering the temperature at which coffee is served. The association has successfully aided the defense of subsequent coffee burn cases.[39] Similarly, as of 2004, Starbucks sells coffee at 175–185 °F (79–85 °C), and the executive director of the Specialty Coffee Association of America reported that the standard serving temperature is 160–185 °F (71–85 °C).

            https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants#Coffee_temperatureReport

      • Avatar Chip Daniels in reply to pillsy
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        Precarity might explain part of it.

        I remember reading about how the ancients developed their myths of fickle capricious gods, as a metaphor for the natural world they lived in which seemed entirely fickle, arbitrary and without any justifiable logic.

        I think about this in the modern economy where instead of people getting a lifetime job and slowly building wealth through hard work and patience, the current situation seems more like living within a vast casino where a single fluke, a hit song or lucky viral software app will turn an ordinary mortal into a tech god, while another person can toil for a lifetime and end up with nothing.
        Entire towns, cities and even state wither and die and the only rationale is some cryptic gibberish about market efficiency, which is presented with all the solemn finality of a act of a god, like a river that runs dry or swarm of locusts, just something we need to grimly accept.

        A world without logic or structure, just random luck. So in that sort of world, why not latch onto some oracle or mad prophet who can explain things with clarity?Report

  7. Avatar LTL FTC
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    says:

    GBH and NHL will never have anything to do with one another, even if the Bruins win the Cup.Report

  8. Avatar Sam Wilkinson
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    Is it at all fair to hold Monsanto’s long-history against the company in regard to the current issue? After all, Monsanto has repeatedly and egregiously exposed people to dangerous chemicals that it, at the time, insisted were safe. Hasn’t, in other words, the company done this to itself in terms of its credibility and a jury’s willingness to take its claims seriously?Report

  9. Avatar Road Scholar
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    I think this illustrates a huge weakness in our jury system. We’re asking a bunch of people with average IQs, the jury of our peers, to render judgements on often very scientifically or legally complex issues. This isn’t about whether Cletus stole Farmer Brown’s chickens or something. So you get advocates — lawyers and expert witnesses — presenting evidence and arguments that they often don’t really understand so they actually make their judgements based on impressions of credibility, likeability, or sympathy.

    And it doesn’t really seem fair to dunk on them for that either; they generally don’t want to be there in the first place. I wonder sometimes if we shouldn’t consider rethinking what a jury of your peers actually should mean. For instance, if it’s a medical malpractice case shouldn’t a jury of your peers be twelve physicians? People who have the knowledge and expertise to actually judge the evidence?Report

    • Avatar Oscar Gordon in reply to Road Scholar
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      Or at the very least, the jury should include some percentage of peers with the knowledge. I could see a jury of, say, financial executives being overly sympathetic to the CEO of Bear Stearns, regardless of the evidence.Report

    • Avatar James K in reply to Road Scholar
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      Juries are a bad idea for anything this complicated. I would suggest Special Masters would be the way to handle this – special cases require special judges.Report

    • Avatar DensityDuck in reply to Road Scholar
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      Maybe not the idea of jury trials, but the idea that harms of the sort suffered here are best addressed by the tort system. Like, if you think that someone’s chemicals actually gave you cancer, that’s something the FDA ought to be addressing. (If nothing else, someone with enough cash can tank the lawsuit and keep on doing whatever rotten thing it was they were supposedly doing.)Report

  10. Avatar Mark
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    Did Monsanto/Bayer bring in an authority to give testimony? With the resources available to them they must have. Has anyone checked why the jury believed Dr. Nabhan rather than the testimony of the other side?Report

    • Avatar Oscar Gordon in reply to Mark
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      I was thinking about this over dinner. Was the defense not allowed to talk about the difference between diagnosis and etiology, etc.? I mean, I agree with the OP that it’s a very important difference that the defense should have worked hard to make clear.

      Perhaps they didn’t work hard enough to overcome that? Did they even try?Report

      • Avatar Dark Matter in reply to Oscar Gordon
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        How many similar lawsuits has the company faced and won? 5? 10? 100?

        Cancer is very common, people who distrust long words is very common, sooner or later if you’re above a certain size you’ll get the wrong results no matter what you do.

        If it were just a million dollars, that wouldn’t be a problem. 20 million is getting into jackpot territory and seems like a problem. 2 Billion makes the justice system seem broken.Report

      • Avatar Michael Siegel in reply to Oscar Gordon
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        They probably did. The problem is, as I’ve noted in Balko’s book and in my post on humbug, is that this sort of pseudoscience is usually presented with a confidence real expertise lacks. There is a tendency for juries to not weight the various scientific claims but to go with whatever expert sounds most convincing to them. That’s why courts have standards on what kind of testimony can be given (e.g, Daubert). Bernstein argues that this evidence, because it was speculative, should not have been presented in Court under California law.Report

        • Avatar DensityDuck in reply to Michael Siegel
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          It’s also a much better story. The Big Evil Company put poison in the ground and it gave this dude cancer, says the doctor. Movies starring attractive women have been made with this as the plot, and the Bad Guys in those movies say things that sound exactly like what the defense would say and we know the Bad Guys in those movies were full of shit, so, there you are.Report

          • Avatar Aaron David in reply to DensityDuck
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            This.

            I mention up above the need for greater critical thinking skills, as there is no real way to to get around this except with a BS meter in your head. And even that is susceptible to BS…

            But this is why we have a jury. There is just no way to get around some of these problems. James K mentions some sort of special master, but they can become captured by the same interests that are on trial. Which puts you back at zero, or less than that even, as all you are really doing is reinventing central planning at that point.Report

  11. Avatar George Turner
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    About 30% of cancers have been found to result from spontaneous mutations or replication errors with no specific cause. They are random.

    So if I got one of those random cancers, I think I should be able to bring a lawsuit against a company selected at random. If I can show the defendant is indeed random, and my cancer was random, then I think I could sway a jury to agree with my logic.Report

  12. Avatar Saul Degraw
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    says:

    I am a lawyer who mainly worked on the side of the injured. Somethings general and specific.

    1. The American Legal System is adversarial. Lawyers have an ethical duty to their clients, not necessarily Capital T truth. This ends up being a combo of a battle of the experts and a combo of making the jury hate the other side more sometimes. Both plaintiff and defense counsel have their own tricks for this.

    2. As people pointed out above, Monsanto does not have the best reputation for honesty to the public at large.

    3. Maybe not in this case but there are plenty of times when exposure to various substances can and do cause cancer. Asbestos and Diesel being the best known examples.

    4. What everyone else said about the welfare state and health insuranceReport

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