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Eh Nonymous

evan: it is troubling that you allow "facts" and "reality" to intrude into the debate over whether juries are insane monsters of reckless decisionmaking who must be stopped.

If Mark Lanier said that in deposition - even if that tape was never made, or never shown to any other human being, or never shown to the judge, let alone never shown to the jury - it taints the jury's verdict.

Why? I can't explain why. I make broad generalizations without evidence, then wave aside the evidence as irrelevant to my main point.

Which is: juries bad, defendants good. Unless juries find for defendants, in which case juries good. Unless my client was the plaintiff, in which case that jury bad, but juries that find for me good.

This is all such biased claptrap; let's go back to arguing about football.


When advocates for a particular position are careless with their factual claims, they risk being mistaken for ideologues or propagandists.


I'm not sure Lanier is correct; this August 9 Houston Chronicle article says that the jury saw video testimony of Gilmartin being asked about the same 6-1 difference. I'd like to see the transcript, rather than what Lanier says a couple of months after the fact.

But even if Lanier is correct, I'm curious here what was inaccurate, other than your switching the order of the quotes to make it seem like my account came after, rather than before, the exchange between you and Calfee. I stated that it was in a deposition, which is true, and that it was an attempt to appeal to irrationality, which is also true. Calfee stated that he thought it was played at the trial, backed off that claim when you challenged him, and noted that it was played for the press, which is true (and how both Calfee and I know about it, from the same Wall Street Journal interview with Lanier). Calfee asked Schaeffer if it was an appropriate means of questioning, and Schaeffer said he saw nothing wrong with it.

So what's the problem with Calfee's argument, precisely? Your argument seems to be "This particular exchange wasn't shown to the jury, and it would have been okay if it was." It wasn't like Lanier wasn't using other tactics to attack the concept of statistical significance (he used the statistically insignificant six-times figure at trial and in questioning Gilmartin, according to both the Chronicle and the AP, even if he didn't use this particular snippet of the Gilmartin cross-examination), or that the same thing isn't happening in the Humeston trial. Are you backing off of your defense of this line of questioning, or do you still claim that it's an appropriate way to try to persuade a jury? And if the latter, why are you so offended by Calfee's argument, since, at worst, he's mistakenly claiming that Lanier used an argument that you find perfectly appropriate?


Ted: As we both know, but perhaps others don't, when video depositions are played for juries, the depositions are often edited. The part about the dollar bills wasn't played for the jury, according to Lanier. The article that you linked to does NOT say the part about the dollar bills was played for the jury. It just says the video deposition was played--but we knew that.

I'm not "offended" by Calfee's argument. My point, which is clear, is that it's not logical to argue that a jury was poisoned with something that as it turns out, the jury didn't even see.

As for your quote, yes, it did happen first chronologically at the talk. Why does that matter? I don't know, but I'll add a footnote to make it clear since you think it does. I wasn't trying to make any point by putting your quote second--it was just an organizational choice.

Finally, if you want to make your "lawyers are arguing things that aren't statistically significant!" appeal, you should apply it to Merck's lawyers too. I saw that they're making a big fuss in New Jersey about the plaintiff's once having a diagnosis of mitral valve prolapse--that's something that misleading for a number of reasons. I'm sure I could come up with other examples. Where are the cries of outrage on Point of Law?


You'll note that the Chronicle states that the Gilmartin video was played and that the part where Gilmartin was questioned about the ratio was played. The part about the dollar bills may not have been played, though, frankly, I'd want more evidence than the second-hand account (which could be further confused if he misunderstood the question or misremembered a two-month-old videotape playing); but the point that Calfee and I were making, that Lanier was inappropriately making an argument based on statistically insignificant evidence, asking the jury to consider the ratio, rather than whether it was statistically significant, seems to be 100% true. And it's happening in the New Jersey trial, too. The dollar bills was an especially dramatic and egregious example of this that Lanier had bragged about to the Wall Street Journal, but nothing in my argument turns on that particular example, and, moreover, while the exchange would be sufficient reason to criticize the verdict, it's hardly a necessary one, given the numerous other reasons I gave for criticizing the verdict, none of which you've addressed.

I'm still confused about this "How dare you suggest that Lanier used an argument that he said he was going to use and the press said he used and I still contend would be completely appropriate for him to use" line of attack you're using.

If Merck is using MVP to claim that it made Humeston more at risk for a heart attack, that would be inappropriate (based on my limited understanding of the relationship between MVPs and MIs--I could be wrong). But to my knowledge, Merck isn't making that argument; to my understanding, they're using Humeston's MVP to rebut Humeston's testimony that he's never had any heart problems at all, and that's just impeachment. If you have evidence to the contrary, I'd be happy to cite to it on Point of Law as another example of why experts should be independently appointed by the court. Of course, in every mass tort case to date where such a proposal is at issue, the defense has proposed such a mechanism, and the plaintiffs have fought it tooth and nail.


"Merck's Investigational Vaccine GARDASIL(TM) Prevented 100 Percent of Cervical Pre-Cancers and Non-Invasive Cervical Cancers Associated with HPV Types 16 and 18 in New Clinical Study"

I wonder how many other drugs like this go undiscovered because of the huge Vioxx hit Merck will take.


Ted, if you were as skeptical of your own sources (e.g., the newspaper article upon which you rely, which doesn't provide any direct support for your contentions) as you are of others, it seems that you would:

1. Verify your claim and present new, credible evidence;
2. Qualify your claim on the basis by admitting that it is not well-suppored by the evidence and may well be wrong; or
3. Withdraw your claim.

You seem instead to be sticking to your guns on a point where, by your own standards, your own source is inferior to the one you dispute. You seem to criticize sources only when the facts as presented conflict with the reflexive direction of your knee.


I thought I had qualified my claim; let's be clear. X is "use of statistically insignificant data to argue that wrongdoing occurred." Y is the "$6 for $1" false-analogy instantiation of the X argument, and thus a subset of X.

I've said that both X and Y are improper and distort the system, because all drugs have statisically insignificant anomalies, and there should be no duty as a matter of law to warn about statistically insignificant results, because the vast majority of those anomalies are random chance, and would result in inefficient decision-making; at AEI, Evan defended even Y as a legitimate trial practice, though he seems to be running away from that defense now.

My factual argument is that Lanier did X at trial, and may or may not have also done Y, which he did do at a deposition, but that the real issue is X, though Y is a nicely vivid example of what's wrong with X. Even Calfee qualified his understanding of what happened at trial based on Evan's challenge at the panel, just as I qualified it by saying "deposition" rather than "trial" before Evan even had a chance to challenge the issue, because all I was confident about was what happened at the deposition, and not the trial excerpts.

I disagree that my multiple contemporaneous sources are inferior to the single two-month-after-the-fact second-hand source, but, more importantly, Evan's anecdote doesn't dispute me in any material fashion, because the real issue is X, not Y, and Evan doesn't appear to be challenging me on X.

My source is (1) Mark Lanier, quoted in the Wall Street Journal, saying he was going to do X and Y at trial and did do X and Y at a deposition, and the lack of any objection from Lanier to that article, though he writes letters to the editor at the drop of a hat; (2) a Houston Chronicle report indicating that Lanier did X at trial; (3) an Associated Press report saying that Lanier did X at trial; (4) multiple press accounts that the X argument is being used in the Humeston trial; and (5) a press account of today's judicial opinion in New Jersey making reference to the X argument in denying the motion for directed verdict. The opposition source is Evan's second-hand account that claims Lanier didn't do Y at trial, with no context on what precise question Lanier was asked, whether Lanier understood the question, and whether Lanier remembered accurately.

Where's the problem?

Professional Cynic

Your defense reminds me of the self-serving nonsense somebody who calls himself "FRCP11" writes in defense of his propagandizing over at wikipedia on subjects like tort reform. Oh wait - that's you!

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