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Less than 1% of the population suffers from the serious gluten allergy known as celiac disease. Yet every time this writer goes out to dinner at least one dining companion passes on bread and pasta, claiming a self-diagnosed “gluten sensitivity” that manifests as a collection of nondescript symptoms, the major one being “fatigue.” The odd thing is that our obsession with gluten – present in a staple food for millennia – has only recently become the bad actor in all sorts of physical and mental maladies in celiac-free individuals.…
Continue Reading Electromagnetic Hypersensitivity (EHS): Fad Allergy, Debilitating Disease, or What?

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The difficulty of making a malignant mesothelioma diagnosis continues to stimulate discussion in the medical community. Last month, Dr. Aliya Husain from the Department of Pathology at the University of Chicago, and her colleague Qudsia Arif, published a short and direct article titled “Malignant Mesothelioma Diagnosis” in Archives of Pathology and Laboratory Medicine. The published context for the article states “mesothelioma is a relatively rare pleural tumor that may mimic benign mesothelial lesions and various other tumors . . . this makes the diagnosis challenging for the pathologist.” This blog has discussed some of those difficulties in prior posts here and here.…
Continue Reading Diagnosing Mesothelioma Continues to Challenge Pathologists

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Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.

For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.

In a regulatory setting, the question posed is what level of exposure creates an unreasonable risk of harm. In a lawsuit, however, the alleged harm has already occurred, usually in the form of a disease that has many possible causes. The question is causation.…
Continue Reading Seventh Circuit Ruling On Scientific Evidence Closes Some Doors But Opens Others

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The string of retractions of published peer-reviewed medical and scientific articles due concerns about fraud or suspected fraud continues. This week a major publisher of scientific and medical articles has confirmed that it is retracting 64 articles from 10 of its subscription journals based on concerns that the peer review process was “compromised.”

The publisher, Springer, issued this statement:…
Continue Reading More Publications Retracted Due to Suspected Fraud

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Despite how it might seem from the deluge of television advertisements the diagnosis of mesothelioma is very rare, and extremely difficult.   As discussed in a prior post, the diagnostic process can be fraught with complications depending on the type and amount of material available for evaluation. One of the most common problems is distinguishing an epithelial malignant mesothelioma from a primary lung carcinoma. That difficultly is multiplied when the tumor is poorly differentiated or when the biopsy specimens are small.…
Continue Reading Update on Diagnosing Malignant Mesothelioma

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New York’s Appellate Division, First Department, issued its decision yesterday on the New York City Asbestos Litigation (NYCAL) punitive damages/Case Management Order (CMO) issue. While the Appellate Court held that Judge Heitler had the authority to modify the CMO to lift the deferral on punitive damages, it also found that she exceeded that authority to the extent that the order directs applications for a jury charge on punitive damages to be made at the conclusion of the evidentiary phase of trial. As a result, the long-term viability of punitive damages in NYCAL cases is back in question.…
Continue Reading NYCAL Punitive Damages in Limbo

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Earlier this week, the Seventh Circuit issued a ruling in Lu Junhong v. Boeing Co. that defendants can remove cases to federal court under admiralty jurisdiction alone. The ruling may very well change the dynamics of mass tort filings in so-called “magnet jurisdictions” like Madison County and Cook County.

Junhong involved a group of Cook County cases from Asiana Airlines Flight 214. Two years ago, that Boeing 777 crashed into the seawall at San Francisco International Airport. The plane’s tail broke off, 49 persons suffered serious injuries, and three of the passengers died (the other 255 passengers and crew aboard suffered only minor or no injuries). Passengers sued Boeing in Illinois state court, alleging the plane’s systems were defective and contributed to the pilots’ errors. Boeing then removed the lawsuits to federal court, asserting two sources of jurisdiction: federal officer under § 1442 and general admiralty under § 1333.…
Continue Reading Potential Game Changer: Admiralty Jurisdiction Serves As A Basis For Removal

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“Law lags science; it does not lead it.” Our legal system requires proof, and in many cases, only scientific evidence can provide it. With controversies swirling around about fraud and misconduct in scientific publications, how do product liability lawyers distinguish between credible scientific evidence and science that is, as Justice Scalia would say, “junky”?  Here are three ways to spot junk science before it trashes your case:…
Continue Reading Three Ways to Spot Junk Science

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In its June 30, 2015 opinion, Landra v. New Dominion, LLC, the Oklahoma Supreme Court held that a personal injury tort action alleging that fracking-related activity caused an earthquake that then caused the plaintiff’s injuries can proceed in an Oklahoma district court. The Oklahoma Supreme Court made no factual or legal findings with respect to the merits of the claims of causation, it simply held that the district court has jurisdiction to hear the suit based on the allegations made.

The Landra plaintiff is a resident of Prague, Oklahoma, and her lawsuit seeks compensatory and punitive damages for injuries allegedly proximately caused by the defendants wastewater disposal practices. The plaintiff claims that in November 2011 she was watching television in her living room when a 5.0 magnitude earthquake struck causing rock facing on the two-story fireplace and chimney to fall onto her causing injury to her knees and legs. She claims personal injury damages in excess of $75,000.…
Continue Reading Fracking-Related Personal Injury Tort Claim Allowed to Proceed in Oklahoma Court

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Warning: That scientific article you just read may be completely bogus. Scientific articles can be retracted for numerous reasons – errors in data, errors in calculation, plagiarism, duplication of publication, and fraud or suspected fraud. An unmistakable trend in the increase of retractions due to one of those categories has emerged, and it is disturbing. A 2012 Proceedings of the National Academy of Sciences (PNAS) article, “Misconduct accounts for the majority of retracted scientific publications,” found that the percentage of scientific articles retracted because of fraud has increased dramatically in the last 40 years.  …
Continue Reading Scientific Articles and The Retraction Epidemic