P.L.A. - A Journal of Politics, Law and Autism
PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism
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Saturday, February 22, 2003
A Plague on Both Their Houses
Our system of justice has tight controls on the information that juries are permitted to hear. We do not want juries to base their decisions on information that does not meet certain legal requirements. Thus, we have rules designed to filter out information that is irrelevant, misleading, unreliable or prejudicial.
The rules of evidence and cross examination are both methods of preventing juries from considering inappropriate information. The rules of evidence have evolved over centuries to prevent juries from basing their decision on fundamentally flawed information. The requirement that evidence be subject to cross examination insures that the jury hear the weaknesses as well as the strengths of the evidence presented. The use of those rules is part of what distinguishes evidence (in the legal sense) from other types of information such as propaganda, advertising, public relations, and spin.
In order for the rules and evidence and cross examination to serve their function, the jury must consider only the information presented in court. Information that is not presented in court has not passed through the filters of the evidence rules and cross examination. As such, extra judicial information is a pollutant in our legal system
One disturbing trend in high stakes litigation is the attempt to provide information about a case to potential jurors outside the protections of the courtroom. When a celebrity is arrested for a serious crime, the hiring of a public relations firm is now on par with the hiring of a lawyer. Corporations charged with wrongdoing often use public relations as part of its legal strategy.
In its crudest form, efforts to provide extra judicial information to jurors are criminal. It is known as jury tampering. All such efforts, crude and sophisticated alike, tend to undermine the integrity of the judicial system.
There are many techniques for providing such extra judicial information. We will show two examples of how the system is “gamed” below. First, however, we need to tell you the tale of the drug Baycol.
Pharmaceuticals have revolutionized the prevention of heart attacks. We now have a number of drugs available to help prevent heart attacks. Among those are new anti-cholesterol drugs known as statins.
As the FDA has said:
Statins lower cholesterol levels by blocking a specific enzyme in the body that is involved in the synthesis of cholesterol.
There are at least five statins that have been approved by the FDA. Those five are atorvastatin (Lipitor), fluvastatin (Lescol), lovastatin (Mevacor), pravastatin (Pravachol), and simvastatin (Zocor).
One of the potential bad side effects of statins is the development of a condition known as Rhabdomyolysis or "Rhabdo" for short. The FDA reports that:
Rhabdomyolysis is a very rare condition where serious muscle damage results in release of muscle cell contents into the bloodstream. On very rare instances, rhabdomyolysis may result in kidney damage and other organ damage which may be fatal.
The German pharmaceutical company Bayer developed a statin known as Baycol. The FDA approved Baycol in 1997. Through intensive marketing and promotion, sales of Baycol were exceeded $600,000,000 in 2000 and were projected to exceed $900,000,000 in 2001.
It developed, however, that Baycol was far more likely than other statins to cause Rhabdo, particularly when Baycol was taken in high dosages or in conjunction with certain other heart medications.
Bayer has acknowledged that more than 100 deaths and 1600 injuries resulted from Baycol. Others believe the numbers are far higher.
In August of 2001, Bayer voluntarily recalled Baycol from all pharmacies and stopped making and selling the drug.
As might be expected, many lawsuits were filed seeking damages for injury or death allegedly resulting from the use of Baycol. Bayer settled at least 420 of those suits and the remainder proceeded towards trial.
Jury selection in the first Baycol case to go to trial began last Tuesday in Corpus Christi, Texas. We have no idea whether or not Bayer should be liable for injuries caused by Baycol. We have no idea if the alleged injuries were actually caused by Baycol. We have neither the time nor the inclination to learn enough to come to a reasoned judgment on those issues.
We have a very good idea, however, that each side of Baycol litigation is trying to provide extra judicial information to potential juries. Such efforts undermine the integrity of the judicial system.
It appears that the plaintiffs' bar has attempted to use the media to influence the jury pool. The New York Times this morning ran a story headlined “Papers Indicate Bayer Knew of Dangers of Cholesterol Drug.”
That story cited documents including:
e-mail messages, memos and sworn depositions of executives that suggest that Bayer promoted the drug, Baycol, even as a company analysis found that patients on Baycol were falling ill or dying from a rare muscle condition much more often than patients on similar drugs.
We note that the documents relied on for the Times story “do not paint a full picture of what the companies knew, or how early they knew it before Baycol was pulled from the market in 2001.” In other words, the documents provide no actual evidence of wrongdoing by Bayer but are sufficient to create a headline that sounds scandalous.
Where did the story come from? The documents were “made public by lawyers suing Bayer.” We are sufficiently cynical to suspect that those documents were made public just as the first Baycol case went to trial in an effort to provide extra judicial information to the jury.
Please note that the information contained in the Times story has not been filtered by the rules of evidence for relevance, reliability, or prejudice. The lawyers for Bayer cannot cross examine a newspaper article. The information contained in the article is precisely the type of information that the jury is not supposed to consider. The type of information as well as the timing of the disclosure increases our suspicions.
If our suspicions are correct, making those documents public just before trial for the purpose of influencing a jury is not only unethical, it undermines the foundations of our judicial system.
The lawyers using such tactics should be ashamed of themselves and the relevant bar associations should investigate such behavior. If it is found that the purpose of the disclosure was to influence the Corpus Christi jury, disbarments should follow.
The defendant is also playing the extra judicial information game. A separate story in the Times notes that on the Monday before jury selection began, Bayer sent letters to more than 2,000 residents of Corpus Christi.
The two-page letter noted that Bayer employs 2,000 people in the Corpus Christi area. It described Bayer’s legal position and asked that the reader “keep an open mind.” The letter states that Bayer took “immediate and appropriate action” to inform doctors of the potential side effects of Baycol. Most egregiously, the letter stated that it had tried to settle with the plaintiff but that he had refused the “fair” offer:
As you hear and see reports of the trial, I hope that you will keep an open mind to the efforts that Bayer made to give fair redress to this gentleman and, on a much broader scale, the tremendous contributions that our company has and continues to make to the health and welfare of millions of people worldwide.
The reference to a settlement offer, if made in front of the jury, would be grounds for an immediate mistrial. The remainder of the letter reads like the closing argument of a trial in which there were no rules of evidence.
The letter was actually received by two persons in the jury pool (but not by people actually selected to sit on the jury).
The judge was justifiably outraged by Bayer’s conduct and has referred the matter to the District Attorney for investigation into possible jury tampering charges. Good.
Both sides no doubt have excuses for their conduct. The sending of the letter was just a mistake with no evil intent. The disclosure of the documents on the eve of trial was a coincidence done by some lawyer not associated with the Corpus Christi case. We are not interested in excuses, justifications or rationalizations.
The impartiality of juries is a shared resource. It is a sacred gift from our forefathers. Those who attempt to violate the impartiality of the jury undermine the legal system, bring discredit to the profession of law and do violence to one of our most sacred institutions. There is no place within the legal profession for such people.
We think both sides of the Baycol litigation are a disgrace.
Hall Of Fame
Some may have noticed that I have not posted for a few days. I thought of telling you that work or preparation for my son’s IEP had kept me busy and that I just did not have time to write. That would not have been completely true.
The fact is that I have been busy preparing my acceptance speech for induction into Baseball’s Hall of Fame in Cooperstown, New York.
Ever since I was very young, I dreamed of being a major league baseball player. The pinnacle of any baseball career is induction into the Hall of Fame. The Hall of Fame became my dream.
The performance of baseball players, more than in any other sport, is capable of measurement through statistical analysis. While other factors have some influence, induction into the Hall of Fame is largely based on the stats accumulated over a career in the game. The rigor that sort of statistical analysis has long been a major hurdle preventing me from realizing my dream.
A combination of a lack of athletic talent and the distinct inability to hit a high school curveball ended my baseball career before I entered college. Having played not a single game in professional baseball made the Hall of Fame seem unreachable. Until yesterday.
George Bush came to the Atlanta area yesterday to sell his proposed tax cuts. A Washington Post editorial noted as follows:
“Under this plan, 92 million Americans receive an average tax cut of $1,083," Mr. Bush said. "That's fair." No, it's deceptive. The vast majority of taxpayers -- 80 percent -- would receive less than that amount, according to data from the Urban Institute-Brookings Institution Tax Policy Center. For the truly typical household -- filers in the middle fifth of the income spectrum -- the average tax cut would be $256. Almost half of all taxpayers would see their taxes drop by less than $100. At the top of the income pyramid, however, the tax savings would be huge; the top 1 percent of filers would receive an average tax cut of $24,100. The average tax cut touted by Mr. Bush is more than $1,000 only because the savings for the wealthiest Americans are so large.
Some may have viewed Mr. Bush’s use of statistics as misleading, deceptive or an outright fraud. I saw it as the means to realize a lifelong dream.
After all, Hank Aaron, Babe Ruth, Willie Mays and I average 532 home runs.
Pete Rose, Ty Cobb, Stan Musial and I average 3018 hits. Cap Anson, Lou Gehrig, Jimmy Foxx and I average almost 1500 RBIs. Ricky Henderson, Lou Brock and I average 780 stolen bases.
My prowess is not limited to offense. Cy Young, Walter Johnson and I average 309 wins. Nolan Ryan, Steve Carlton and I average almost 3300 strikeouts.
Even the casual fan knows that a player with those statistics is a lock for induction into the Hall of Fame. I would like to thank Mr. Bush for helping me see that no matter how long the odds, I should never have doubted the possibility of making the Hall of Fame.
My only remaining problem is that I cannot decide whether to have George Bush or Ari Fleischer introduce me at Cooperstown.
Wednesday, February 19, 2003
We Will Return In A Few Days
In the meantime, please visit the sites listed on the left. There is a lot of good stuff there.
Tuesday, February 18, 2003
Lilly Protection Act Repealed
We learned via Wampum that the provision of the Homeland Security Bill insulating Eli Lilly from liability in thimerosal/autism suits has been repealed.
We are happy to report that we were wrong in our prediction. We wrote:
We have little hope that the Republican majority, having passed the recent political pressure point, will offend a major campaign contributor on behalf of autistic kids. Good relations with big campaign contributors count for a lot. Autistic kids do not.
We have been fighting autism battles for a number of years now. The autism community often fights without allies and does not often win. Regardless of the merits of the policy dispute and regardless of whether or not it turns out that thimerosal causes autism, we are happy that the autism community at least won one battle.
We wish to thank all those who wrote or called their Congressmen and Senators protesting the inclusion of the provision in the Homeland Security Bill. Republican Senators Olympia Snowe and Susan Collins of Maine, Lincoln Chaffee of Rhode Island and John McCain of Arizona earned our respect by standing up for autistic kids against their own party.
Finally, the thimerosal/autism/Homeland Security issue was pushed forward by a number of bloggers. Those bloggers played an important role in publicizing the issue. We are not used to having support from people outside the autism community and we are very grateful to all of those who helped. Those people include, but may not be limited to, Atrios, of course, Jim Capozzola, Mark Kleiman, Hesiod, Tom Spencer, Jeanne d’Arc, Jeff Cooper, Kevin of Lean Left, Tom Tomarrow, Ross of The Bloviator, skippy, Lisa English of Ruminate This, Devra of Blue Streak, Dominion, Gamer's Nook and anyone we may have missed.
We would most especially like to thank our comrade in arms in the autism wars, Mary Beth of Wampum. Wampum is the best source of autism news and information available on the web. It is not often that we see such an outpouring of support on an issue that affects only a few of us. Thanks to all of you for helping autistic kids win one.
We do not believe that the repeal will prove to be the end of the story. Senate Majority Leader Bill Frist has indicated that he still intends to pass legislation requiring that thimerosal claims be brought within the Vaccine Injury Compensation Program. The inclusion of thimerosal in the VICP would effectively insulate Lilly from any liability.
Many of our concerns about the inclusion of the “Lilly Protection Act” in the Homeland Security Bill have been satisfied by the repeal. The indefensible action of including the provision without debate and without hearings has now been corrected.
Senator Frist will eventually introduce a new bill. We hope that bill corrects some obvious flaws of the last effort. The statute of limitations should be extended, for instance, and a few other technical issues should be corrected. If that occurs, we will welcome an open and honest debate with full hearings on the merits of the measure.
In this post, we criticized the Bush administration for preventing the EPA from publicizing the health risks posed by W.R. Grace and Co. insulation known as Zonolite. As we reported:
Among its other businesses, W.R. Grace sold insulation known as Zonolite.
Thus, many homeowners are potentially at risk of inhaling asbestos in the form of tremolite if they disturb the insulation in their attics or walls by, for instance, sweeping, cleaning or moving stored materials. Our criticism of the administration was based on this St. Louis Dispatch story which reported:
The Environmental Protection Agency was on the verge of warning millions of Americans that their attics and walls might contain asbestos-contaminated insulation. But, at the last minute, the White House intervened, and the warning has never been issued.
We are happy to report that it appears that the EPA has changed its position and now will warn of the dangers of Zolonite. The Post Dispatch reports:
Amid continued debate, the federal government appears ready to warn millions of home and business owners about the dangers of potentially lethal asbestos-contaminated insulation in their walls and attics.
We commend the EPA for fighting for full disclosure of the potential health risks of Zolonite and the administration for changing its position.
Many thanks to ArchPundit for calling the story to our attention and providing the link.
Monday, February 17, 2003
We have not often written about the coming war in Iraq. A major reason for that failure is that we are simply uncertain about the course our policy should take.
In October we tried to analyze the relative merits of Disarmament vs. Regime change. In that article, we came down on the side of disarmament. In no small part, the reason we advocated disarmament was that it was the most flexible policy. We concluded that:
We favor a policy of disarmament with the enforcement mechanism described above for four reasons:
The fourth reason was of particular importance to us. We were uncertain of the best course of action and given that uncertainty, the flexibility of a policy of disarmament with invasion in reserve seemed prudent.
To our great surprise, the Bush administration adopted, at least on the surface, a policy of disarmament. The rhetoric of regime change was replaced by an insistence that Saddam disarm. Inspectors returned to Iraq. Hans Blix and the inspectors have been in Iraq for a couple of months. It now seems appropriate to evaluate the policy to see if it remains the best course.
Towards that end, we intend to post a new article analyzing the relative merits of Continued Inspections vs. Invasion. In preparing to write that article, we were struck by the level of certainty that characterizes all sides of the debate concerning Iraq.
Some on the left seem certain that an invasion to disarm Iraq would increase terrorism against the United States, split our alliances, cause a humanitarian nightmare, deplete our treasury, destabilize the region and lead to a number of other conflagrations.
On the right, some people are sure that the failure to immediately invade will result in catastrophic consequences. Unless Saddam is immediately removed, he will develop nuclear weapons, dominate the region and the world’s largest source of oil, provide weapons of mass destruction to terrorists and New York or Washington or Los Angeles will be vaporized in a nuclear mushroom cloud.
We envy each side its certainty. When we look at the situation in Iraq, we do not see clearly. We see lots of possible outcomes, many of them very bad, regardless of what policy is pursued.
Take, for instance, the issue of terrorist organizations such as Al Qaeda acquiring weapons of mass destruction from Iraq. It is certainly true that if Saddam remains in power and unimpeded, he will attempt to develop weapons of mass destruction. Would he share those weapons with Al Qaeda?
The left points out that Saddam, being secular, is the antithesis of the type of Muslim leader the religious fanatics of Al Qaeda support. The left is sure that the only way Saddam would provide weapons of mass destruction to Al Qaeda is if we do invade.
The right points put that Saddam is an incorrigible tyrant who would do anything to maintain and expand his power. He has a history of supporting terrorism. He hates the West and if providing weapons of mass destruction to Al Qaeda would harm the West, Saddam would not hesitate to do so. The right is sure that permitting Saddam to develop weapons of mass destruction would be a proliferation nightmare. Once he has those weapons, they will inevitably fall into the wrong hands (indeed if Saddam develops such weapons they are already in the wrong hands). The right also argues that until the culture of the region is changed and democracy is brought to the Middle East (beginning with Iraq), the threat of terrorism will remain and that the security of the United States will be endangered.
There has been little discussion of whether the war itself would cause the proliferation of weapons of mass destruction to terrorists.
Daniel Benjamin is a senior Fellow that the Center for Strategic and International Studies. He is the co-author of The Age of Sacred Terror. In this article, Benjamin argues that it is quite possible for weapons of mass destruction to be privatized during a war:
Even more worrisome, a war to remove weapons of mass destruction from Hussein's hands could result in their falling into more lethal ones. Iraq's chemical and biological weapons are distributed around the country, in hundreds of military stockpiles and dual-use factories…
So, if our goal is to prevent weapons of mass destruction from falling into the hands of terrorists, should we invade or inspect? We frankly are unsure. Each course has risks and rewards.
Humanitarian concerns offer a similar analysis. The right points out that Saddam is a brutal dictator who has terrorized and oppressed his own people and his neighbors for more than two decades. Only by Saddam’s removal from power can the Iraqi people be liberated. The policy of containment involved the use of economic sanctions. The Iraqi people and particularly the children of Iraq bore the brunt of those sanctions. With the oil for food program, Saddam siphoned off oil revenues to build palaces instead of feeding children. A policy of inspections and containment (including renewed and tightened sanctions), even if effective, will cause large-scale suffering of the Iraqi people.
The left points out that there are many children in Baghdad and that “Shock and Awe” will kill, injure or otherwise harm many of those kids. In addition, the destruction of the infrastructure of Iraq will cause death, starvation and disease.
Which policy best serves humanitarian concerns? We frankly are not sure.
The lack of certainty arises from three factors. First, we lack perfect information on which to base policy decisions. Secondly, each decision has many possible outcomes and there is no certainty that any given action will have a specified result. Finally, the law of unintended consequences applies to each side of each policy.
The uncertainty need not result in paralysis. Uncertainty complicates but does not prevent analysis. One may even have strong opinions about which policy is to be preferred. Certainty of result of any given policy, however, should be viewed with skepticism in a situation as complex as the one we face with regard to Iraq.
Jane Finch of the Daily Rant recently wrote about being characterized as an “anti-American, idiotarian, pro-Saddam, anti-Bush, and old hippy fool” because she opposes an invasion of Iraq.
We suggested in comments that if one determines that the long run interests of the Untied States are harmed by a policy of invasion, it cannot, be definition, be anti-American to oppose such a policy. We were then called a “blithering, slack-jawed, mouth-breathing idiot” and “a perfect definition of leftist, appeasenick, communist-loving, flower-dancing, placard-waving fool.” Things are so much simpler when you are sure of your own infallibility.
We think that there are arguments for and against an invasion. The policy question ultimately comes down to an assessment of goals and possible outcomes. The assignment of values to those goals and outcomes and the assessment of probabilities to each possible outcome is the only proper method of assessing proposed policies. Such an analysis may result in preferring one policy over another but it is extremely unlikely to result in certainty of the outcome of the preferred policy.
We hope to perform such an analysis in the near future. Unless, of course, we decide just to shout a few insults and pretend that it is an analysis.