The LitiGator
Michigan lawyers specializing in civil litigation




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Sunday, February 01, 2004

This will be my last comment on these issues for a few days. 

Among the discussions engaged in by Walter Olson, Peter Nordberg, David Bernstein and I over the last week about the legitimacy of the claims made in some of the cases John Edwards pursued as a North Carolina plaintiff’s trial lawyer – essentially, that errors made by delivering physicians led to intrapartum hypoxia causing cerebral palsy in the neonate – it seems that I have neglected to address one important issue: whether Edwards had any reason to disbelieve the theories he was advancing on behalf of his clients.  In so doing, I fear that I have given too much credence to Olson's initial criticisms of Edwards.  Those who have read my comments on the obligation of strong advocacy by the trial lawyer for his client may perceive that, by leaving it unchallenged, I have accepted Olson's position that Edwards's obstetrical malpractice cases were founded on "junk science". 

Nordberg and I have not addressed the question of whether the weight of scientific evidence supported those causation theories. By contrast, Bernstein poses the question based on an extreme assumption:

I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be "junk science."

This is the classic "straw man" argument. Bernstein proceeds from the premise that Edwards was a showman and a charlatan, that he knew as a lawyer that the theories he espoused were fallacious, and that he knowingly advanced them despite that knowledge. Olson likewise suggests (putting it very bluntly) that Edwards knew that he was slinging bullshit in the courtroom, but knowingly chose to do so, despite the harm it caused to the obstetricians he sued, because it made him wealthy.

Olson's criticism is, as I have suggested, a political rather than a legal or medical argument, since that is his job. 

In fact, the theory that perinatal hypoxia or perinatal "asphyxia" can cause cerebral palsy has been an hotly debated issue in the fields of obstetrics and maternal-fetal medicine for the last 25 years. It was not until a year ago that some authoritative declarations were made in this area. Even those, however, are still far from definitive on this issue.

The report of the ACOG Task Force on Neonatal Encephalopathy and Cerebral Palsy was released almost exactly one year ago today, on January 30, 2003. That is the first release of what can be characterized as a "consensus" view within the obstetrics profession on this vital issue. For 25 or more years prior to that report, the issue of whether and to what extent depriving the neonate of oxygen can result in neurological deficits was an open question, one which was widely debated and highly controversial during that time. Indeed, a review of most of the medical literature and authorities published during the 1980s and 1990s shows a preponderance of belief in favor of the association. Although some studies questioning this long-held belief began to emerge, it is accurate to say that many level-headed and disciplined scientific minds were persuaded that such an association existed during the last quarter of the 20th century, including the entire time that John Edwards was practicing law.

Indeed, even the 2003 report does not dissociate the two completely.  Instead, it differentiates those forms of CP which can be from those which are not associated with intrapartum asphyxia:

Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events. Spastic quadriplegia is not specific to intrapartum hypoxia. Hemiparetic cerebral palsy, hemiplegic cerebral palsy, spastic diplegia, and ataxia are unlikely to result from acute intrapartum hypoxia.

Some translation is needed:

"Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events."

This means that there is a known association between deprivation of oxygen at birth and both spastic quadriplegia and dyskinetic CP. 

"Spastic quadriplegia is not specific to intrapartum hypoxia."

This means that other things cause spastic quadriplegia, too.

This is far from a resounding declaration that the causation hypothesis is regarded as laughable by the profession.

As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.

For further consideration in this area, look at the CDC’s publication on cerebral palsy, including the section entitled "What causes cerebral palsy? Can it be prevented?", which was current as of October 2002. It can fairly be said that the CDC tries to be even-handed on these hotly-contested causation issues.  The following is the first paragraph under that section:

Cerebral palsy is caused by brain damage that affects a child's ability to control his or her muscles. The part of the brain that is damaged determines what parts of the body are affected. There are many possible causes of the brain damage. Some causes affect how the child's brain develops during the first 6 months of pregnancy. These causes include genetic conditions and problems with the blood supply to the brain. Other causes of cerebral palsy happen after the brain has developed. These causes can occur during later pregnancy, delivery, or the first years of the child's life. They include bacterial meningitis and other infections, bleeding in the brain, lack of oxygen, severe jaundice, and head injury.

One can criticize John Edwards for many things. As far as I know from the evidence available to me, participation in legal charlatanry is not one of them.

Demonizing a political opponent is splashy and makes for good theater, but in the end it is not too far removed from the scene of Geoff Fieger depicting Richard Thompson, the Oakland County prosecutor of Jack Kevorkian, as a caricature of a clown with a big red nose before the television cameras.  I prefer to think of my political opponents and my courtroom opponents as human beings who in many ways are like myself.  I find that I understand them better and can oppose them more effectively if I do.

11:52:39 PM    

Walter Olson responds to us and to Blog 702.  In so doing, he misses one mark but makes a side point. 

In noting our position and that of the Blog702 author, he says,

A theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of "zealous advocacy". . . We ourselves aren't buying this line of reasoning, but it has some articulate advocates. . .

My first thought is that Olson is obviously not a lawyer if he does not accept this line of reasoning. Not that there's anything wrong with that.™  Olson does not need to be a lawyer to be a knowledgeable commentator on the legal system, but one would expect that he would at least have some appreciation of the nature of the duty owed by a lawyer to his client before offering criticism.

In his posting, Olson points to an earlier item, written in July 2003. That earlier comment and the points made deserve some thoughtful consideration, although in the end they do not make Olson's point for him.  

The July item noted a proposal made by the State Bar of Arizona to amend that state's Rules of Professional Conduct to remove the word "zealous" from its provisions, and to substitute in its place an obligation to "act honorably in the furtherance of a client’s interests". The thinking, as Olson notes, based on the comments of an unnamed member of the committee, was that "The term 'zealous'. . . was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent".

The Arizona committee has an excellent point, one that is quite well appreciated here in the home state of Geoffrey Fieger. The lawyer's obligation to be "zealous" can be properly interpreted or it can be misinterpreted. The proper understanding requires that the lawyer work hard for his client’s best interests, that he serve the client well, and (most important for our considerations here) that he advance all arguments on behalf of his client that will accomplish his client's goal. The limitation is that the positions advanced must be either well-founded under law or (as the formulation is commonly phrased) supported by a good-faith argument for extension or revision of existing law.

The standard of "zealous advocacy" does not in any way require or support hostile, belligerent, or improper conduct. It does not permit the lawyer make an effort to bribe the judge, to tamper with the jury, or to use sneaky tactics to introduce obviously improper evidence before the jury. The standard does not justify any of Geoff Fieger's actions:

  • It does not require or even condone the lawyer appearing on television, putting fake red noses on a caricature of the prosecutor to depict him as a clown.
  • It does not require or condone taking to the airwaves to call judges who have ruled against the client's position "idiots", "clowns", or "Nazis".

The standard of zealous advocacy does not excuse the lawyer who utilizes such tactics or in any way shield him from the legal or ethical repercussions of his misconduct.

But there is no evidence in any of the reports that Edwards was guilty of any such misconduct. Indeed, he has been described by those who observed his handling of trials as a very effective advocate, one who could persuasively argue his client’s case before a jury and who could articulate complicated medical issues in a way that a lay jury could understand.

Under our system, whether or not the term "zealous" is used, all lawyers and judges understand that a lawyer is not only permitted, he is required to use the current rules of evidence to introduce whatever admissible evidence is going to assist his client’s position in the case. As long as the system allows that evidence to be used, it is proper to use it, and it is the mark of an effective advocate that it be used well in his hands.

The difficulty of having lay juries sit in judgment on complicated issues of professional negligence and of having them sort out and attempt to differentiate between sound science and half-baked theories of causation and other elements of "junk science" may well argue in favor of some process other than the tort system for redressing claims and injuries caused by professional negligence, but there is no legally justified basis to criticize a lawyer who works within that system for using that system and its rules to work for the goal of his client. That is his job, it is what the courts and society expect of him. If that reality is to be changed, it will be necessary to change the system.

Of course, the criticisms that are being leveled against Edwards are being made in the political arena, where neither the legal rules nor the rules of common sense and fair play apply. In the political arena, in the end it is all caricature.

5:50:06 AM    

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