Archive for the ‘Art Exploration’ Category
Home sale prices strengthen in central Ohio
Friday, March 23rd, 2012Inventory down and buyers are looking!
Sale prices for homes sold in central Ohio last month (Feb 2012) showed a healthy increase over the previous year. The average sale price of 1,072 was 7.3 percent higher than in February of 2011, and 5.7 percent higher than the previous month according to the Columbus Board of REALTORS®.
“Buyer activity has been up while seller activity has dipped slightly,” said Jim Coridan, President of the Columbus Board of REALTORS®. “Given the market conditions over the past couple years, sellers have been a bit reluctant to engage. But that could soon change as we head into the stronger spring selling season and the shifting landscape begins to register with well-informed homeowners looking to move.”
Central Ohio housing sales were up in February for the second month in a row. The 1,215 sales showed an 8.0 percent increase over the previous month and a 5.0 percent increase over February of 2011.
In addition, contracts for residential homes and condos jumped 21.7 percent over the previous month and were 57.4 percent higher than the same time last year.
reprinted from CBR
Gatecrashers, Blue Cabs and Bare Naked Statistics
Monday, March 19th, 2012For reasons identified in the very recent paper "Trial by Mathematics – Reconsidered" and the brand new "Epidemiology in the Courtroom: Mixed Messages From Recent British Experience", courts have long been reluctant to surrender their decision-making function to statistical and probabilistic inference. And it’s a shame. A shame that such a powerful tool for uncovering what isn’t so (as to us Popperians, all we really know is what isn’t so) and the best bet for being so (h/t Thomas Bayes) is ignored at best and banned at worst.
The issue first came up for me as a young lawyer while carrying the briefcase for the partner defending a bad fire/burn case involving an allegedly defective electrical appliance. The client had indeed manufactured a number of the appliances with an appalling defect that undoubtedly led to fires. However, very few had the defect – less than 1%. As the appliance had been all but destroyed in the fire and it was therefore impossible to say whether it had the defect, our client claimed that plaintiff couldn’t possibly prove her case since more likely than not she hadn’t bought one of the defective variety.
On the other hand, plaintiff had the testimony of the fire marshal who said that he was "99% sure" that it was the appliance that had caused the fire (in large part because he’d had a similar experience investigating a fire involving the defective appliance). Since the appliances without the defect had never been reported to have caused a fire and as plaintiff’s expert (along with, obviously, our expert) could think of no way the non-defective appliances could start one the fire marshal’s testimony stood as a form of product ID. Plaintiff thus moved for partial summary judgment as it was, she averred, 99% certain that the product we’d sold her was one of the defective ones.
I got interested in the question and shortly came across base-rate neglect and Thomas Bayes. I excitedly reported to my boss that I had a way to fit all the facts together, including even the fire marshal’s testimony, and demonstrate that the appliance was almost certainly not one of the defective ones. I laid it all out and he gave me the look you’d expect had I set out a proof of how 1 and 1 sums to 387. He went on to say that he privately believed the appliance was one of the defective ones. Our client even believed that the fire marshal’s testimony meant that plaintiff had purchased one of the defective product. The case settled. For a heap of $$$s.
Since then I’ve had similar problems come up and I can report that mock jurors and judges are no more amenable to Bayes than my old boss. The former don’t get it and the latter (for the most part) either haven’t gotten it or refuse to turn such classically judicial questions over to "mere math". But if it’s the truth we’re after it’s time we started to embrace the mathematical tools that have uncovered and corrected flawed reasoning in so many other areas of human inquiry. And that’s the point of the two law reviews I commended to you above. Enjoy.
Clostridium Difficile Infections Are At Historic Highs
Wednesday, March 14th, 2012The CDC has a series of reports out about the growing problem of C. difficile infections contracted via health care-associated activities. The number of deaths attributable to C. difficile has increased more than seven-fold in a little over a decade and now stands at 14,000 annually.
The reports twist together a few threads we’ve been following for awhile now. First, chronic and often unnecessary antibiotic use in patients disrupts their normal gut microflora and provides an opportunity for C. difficile to gain a foothold and thereafter thrive. Second, these infections aren’t just hospital-acquired, or nosocomial, anymore. Infected patients, especially those with diarrhea and on antibiotics transmit the pathogen to surfaces in clinics, nursing homes and doctors’ offices and staff thereafter transmit it to other patients; thus they’re healthcare-associated infections (HAIs). Finally, the infection is preventable.
The CDC makes the following recommendations to clinicians:
1. Prescribe and use antibiotics carefully. About 50% of all antibiotics given are not needed, unnecessarily raising the risk of C. difficile infections.
2. Test for C. difficile when patients have diarrhea while on antibiotics or within several months of taking them.
3. Isolate patients with C. difficile immediately.
4. Wear gloves and gowns when treating patients with C. difficile, even during short visits. Hand sanitizer does not kill C. difficile, and hand washing may not be sufficient.
5. Clean room surfaces with bleach or another EPA-approved, spore-killing disinfectant after a patient with C. difficile has been treated there.
6. When a patient transfers, notify the new facility if the patient has a C. difficile infection.
If you have a C. difficile case you might want to see how the healthcare provider filled out this form.
For more information try the following links:
Centers for Medicare & Medicaid Services (CMS) Guidelines for Reducing the Spread of C. difficile.
Finally, there’s a brand new research paper from the CDC which discusses the finding that C. difficile is an emergent disease affecting patients recently exposed to antimicrobial drugs.
Mea Culpa
Monday, March 5th, 2012I authored an article on Texas’ standard(s) for proof of causation that appeared in this week’s Texas Lawyer and it contains an error. In discussing Merck v. Garza I somehow managed, during the process of editing the article down to the target word count, to associate the citation from the original appellate court opinion with the decidedly different conclusion reached by the Texas Supreme Court to which I was referring. My bad.
Plaintiffs’ Experts Call for Research on the Health Effects of Fracing; looking for a link to disease
Sunday, March 4th, 2012There is a hearing today in front of the House Energy and Environment Subcommittee, of the Committee on Science, Space and Technology. The subcommittee is studying the draft report by the EPA on the effects of unconventional natural gas drilling in and around Pavilion, Wyoming which found some groundwater contamination, particularly from gas drilling wells which were not cased to a depth below the bottom of nearby water wells.
Bernie Goldstein, MD, a frequent paid expert on behalf of plaintiffs in benzene litigation has released the outline of his testimony. He calls repeatedly for money from congress to prospectively study the health impacts of unconventional shale gas drilling, commonly known as hydraulic fracturing or fracing.
While no health effects have currently been found to result from fracing, Dr. Goldstein implores Congress to study not just whether fracing fluids are somehow getting in the water or air (which is currently being studied) and is a necessary precursor to eventual disease caused by fracing. Instead, Dr. Goldstein seems to want to study all of the chemicals used in fracing fluids (as well as noise, truck exhaust, and anything else that goes on at a well site) and see if any can cause disease, if they are released in the water, air, or some other way. He cites community groups who are worried about the potential harm as evidence that there is a potential harm. His stated major concern is that “It is possible that unconventional gas drilling will cause index cases of unusual diseases over time given how little we know about the health implications of the fracking mixtures.” It is possible, but not shown because as of now, there is neither a signature disease of fracing fluids or an established mode of exposure.
Dr. Goldstein’s real conclusion is that it is a virtual certainty that adverse health effects will by statistically associated with unconventional gas development activities. This may be because statistics can be found to support almost any association if the data are parsed to fit the conclusion sought.
The plaintiffs’ attorneys are clearly gunning to make fracing the next toxic tort.
Check Our Math
Saturday, March 3rd, 2012What are the odds that a jury, having found for the plaintiff in a typical occupational cancer case, got it right (which is to say, got to the truth)?
Assume the following:
a) The odds that a jury will correctly attribute the cancer to the defendant when, in fact, it was an occupationally-induced cancer is 75% (i.e. the chance of a false negative, that plaintiff loses when she shouldn’t, is only 25%)
b) The odds that a jury will find for the defendant when the defendant had nothing to do with plaintiff’s cancer is 75% (i.e. the chance of a false positive, that a defendant will be held liable when it had nothing to do with plaintiff’s cancer, is only 25%).
c) The odds that a given cancer case is occupationally related is 10% (that’s 2.5x the typical estimate of 4% by Sir Richard Doll (of cigarettes-cause-lung-cancer fame) but let’s go with it).
In such cases, when the jury has found for the plaintiff, they only get it right 1 in 4 times. Why? Because the vast majority of cancer cases aren’t occupationally related. The false positives pile up. It’s like the lesson we’ve learned with PSA tests and mammograms. Imagine 1000 cancer cases. 100 are occupational (using our plaintiff-friendly assumption above). 75 of those 100 will be detected by the jury but of the remaining 900 non-occupational cancer 225 (25%) will be wrongly assumed to have been occupational. That means that the odds that a given verdict in an occupational cancer case is the just one, the one that got it right, is 75/(225 + 75) = .25 = 25%.
Play with the numbers and assume that juries identify the deserving plaintiff 51% of the time and absolve the innocent defendant 51% of the time and use Doll’s 4% figure for the number of occupationally related cancers. You’ll find that for any given verdict under such a scenario there’s less than a 1 in 20 chance that the defendant really caused plaintiff’s cancer.
To move the number up to a point where we can be confident of the verdict, while sticking to a "featherweight", 51% more-likely-than-not standard for finding a defendant at fault, we have to assume that most cancers are caused by working. That assumption was popular several decades ago but it’s no longer one that has anything to do with reality. Nowadays the math really only works for one type of cancer – mesothelioma.
U.S. Supreme Court Holds LIA Preempts Asbestos Friction Product Claims
Thursday, March 1st, 2012All members of the court in Kurns v. Railroad Friction Products Corp., et al. felt bound by stare decisis (in this case Napier) to hold that the petitioners’ design defect claims against the manufacturers of asbestos-containing friction products used in locomotives were preempted by the Locomotive Inspection Act (LIA). Nevertheless, the case produced both a concurrence and a dissent. The debate revolved around the question of whether or not a "failure-to-warn" claim is 1) a subset of design defect; 2) subsumed within the power of the LIA to require or prohibit the use of a particular product as it would thus have the power to make use of the product conditioned upon warnings; or, 3) an independent cause of action separate from design defect and thus outside the field preempted by LIA.
The majority, relying on the following from the Restatement (Third) of Torts: Products Liability:
A failure-to-warn claim alleges that a product is defective ‘when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, . . . and the omission of the instructions or warnings renders the product not reasonably safe’
held, "[t]hus, the ‘gravamen’ of petitioners’ failure-to-warn claims ‘is still that [plaintiff] suffered harmful consequences as a result of his exposure to asbestos contained in locomotive parts and appurtenances.’" In other words, a complaint about a lack of a warning is a complaint about the product that lacks it so that the LIA’s control over any product that went into a locomotive necessitates a finding of preemption.
Justice Kagan concurred writing "… if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use of that equipment on proper warnings." She concluded "[a] nd because the agency could have required warnings about the equipment’s use, the petitioners’ failure-to-warn claims, no less than their defective-design claims, are preempted under Napier." Her decision turned on the implicit power of the agency to direct how products were to be used given that it had the power to which products were to be used.
In a dissent joined by Justices Ginsberg and Breyer, Justice Sotomayor reasoned " a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings." Accordingly she concluded "[r]ather, the ‘gravamen’ of these claims is that petitioners’ decedent . . . could have avoided the harmful consequences of exposure to asbestos while repairing precisely the same locomotive parts had respondents cautioned him, for example, to wear a mask." Their notion then is that preemption ends at the product itself and does not extend to the information necessary for its safe use.
The majority responded in a footnote as follows:
A failure-to-warn claim imposes liability on a particular design of locomotive equipment unless warnings deemed sufficient under state law are given. This duty to warn and the accompanying threat of liability will inevitably influence a manufacturer’s choice whether to use that particular design.
Warnings then are inseparable from a product’s design.
So is this a big deal or not? On the one hand, the idea that warnings and instructions, the information component if you will of a product, are just part of a product’s design (which in turn incorporates the common law’s regulatory scheme, such as it is) and not a foundation for an independent cause of action sounds fairly revolutionary. But upon reflection it not only makes a lot of sense, it’s unlikely to have much impact since claiming that a product’s design is defective because its warnings are inadequate ought not require any proof beyond the usual in failure-to-warn cases. On the other hand, in those cases where courts have found preemption but held that warnings were somehow separate from the product specified by the government so that plaintiffs’ claims survived, this could be a very big deal indeed.
Dismissed With Prejudice
Tuesday, February 28th, 2012Today we filed this responsive brief in the United States Supreme Court. Question: Is a summary judgment dismissal necessarily with prejudice? Who would have thought this would (maybe) make it to SCOTUS? We’ll keep you posted should an order nunc pro tunc catch their eye.
Discretizations
Monday, February 27th, 2012The Microbiome is a very big deal.
The FDA has approved a breath test to detect H. pylori infection in children.
Plaintiff Avoids Preemption and Twombly in Parallel
Sunday, February 26th, 2012The Fifth Circuit has held in Bass v. Stryker that plaintiff’s claim against the manufacturer of an allegedly defective hip replacement device is not preempted by the Medical Device Amendments of 1976 to the FDCA, and that his complaint satisfies Twombly. Because plaintiff’s allegation "paralleled" an FDA manufacturing practice and asserted that the "good" practice was not followed, resulting in a device that did not work as contemplated causing his injuries, the lower court’s dismissal of plaintiff’s manufacturing defect, negligence and implied warranty claims was reversed.
The manufacturing practice at issue involved ensuring that the "final wash" was not contaminated so that the device would not become "adulterated". Were the wash to be so contaminated the microbes could set up shop on the device, in this case the ceramic shell, and prevent the bony ingrowth that would otherwise help secure the implant. Some months before this particular device was implanted the FDA had warned the manufacturer that it had not implemented necessary changes to the final wash portion of its manufacturing process and further had failed to verify that the wash met the standards for bioburden. Though Bass had not specifically plead that his device (which had been recalled) was contaminated, nor that doctors removing it had found evidence of an infectious process, the pleading was nevertheless sufficient to put Stryker on notice as to just what it was that plaintiff was claiming.
The bottom line is that if a plaintiff can find a way to turn a design defect into a manufacturing defect (e.g. claiming the device as manufactured was contaminated rather than claiming that the design failed to include an anti-bacterial agent) by finding a potential for variance in the manufacturing process, and then plead a plausible nexus between the resultant device and her injury, she ought at least be able to make it to the discovery stage.