The Litigation Consulting Report

I love what we can do with data at A2L, particularly when we couple well-chosen words with well-designed litigation graphics. I think this area of our litigation consulting work is one place we add tremendous value. We can overplay a threat, or we can make something seem harmless. The latter is MUCH harder to do. Today, I'll focus on how one can use language and data to either inflame or calm your audience selectively. Why would you want to do this? Frankly, it's one thing trial lawyers and trial consultants do every day. Litigants on both sides of a case work with highly creative people who find ways to message the truth in a way that favors the client. Virtually every type of case benefits from this kind of statistical messaging. Fear is the best lever we have to motivate decision-making. We've written about this sort of thing before in articles like: 6 Ways to Convey Size and Scale to a Jury 5 Demonstrative Evidence Tricks and Cheats to Watch Out For What Trial Lawyers Can Learn From Russian Facebook Ads Trial Presentation Graphics: Questioning Climate Change in Litigation Using Trial Graphics & Statistics to Win or Defend Your Case Numbers in Litigation Graphics Do Not Lie, People Do The coronavirus is no joke, and I don't intend to be lighthearted or flippant about it. But, most of us are talking about every day now, right? And, the cacophony of those discussions will only get louder over the next month. It's an accessible and relevant example to use to make a point, and this article might even give you a talking point or two. As you read this article, remember, the point of this post is to point out how easy it is to use (arguably) accurate data to influence decision-making, not to use false data to make your point. Anyone can do that. So, should you be scared of the coronavirus? Presented below are two sets of five talking points, and all of them are true. As you read through them all, ask yourself, which side won out? Fear or peace. 5 Reasons to Be Terrified of the Coronavirus It's everywhere, and there is no cure. COVID-19 is probably very widespread already, and more frighteningly, we just don't know how widespread. We've all heard that testing in the U.S. was flubbed very badly. Source. So, given that we've only seen 135 cases in the United States, why might we worry that it is everywhere? Well, the old lily pad adage explains why worrying about the spread is well-founded. If you know a pond will be fully covered by lily pads after 48 days, and that lily pads will double in coverage every day (as the coronavirus does), how many days will it take before the pond is half covered? Our readers are some of the smartest, most educated people in the world, so I bet you figured that one out. It's day, forty-seven. But, the point of this example is the troubling follow-up question: at what point would you really notice the lily pad coverage? The answer is somewhat scarily, maybe, day forty-three, forty-four, or day forty-five when coverage is around 5-10%. So, we only may be at day five or so in this metaphor, which is why we don't really notice the virus close to us yet. The incubation time before symptoms show up may be weeks, and many never show symptoms. Maybe we will understand how widespread it is once actual testing starts in a week. One expert believes there may already be 100,000 cases in the U.S. Source. Brain damage. Announced yesterday, it can cause brain damage. Source.

Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.

by Ken Lopez Founder/CEO A2L Consulting We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case. A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom. Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:

by David H. Schwartz Managing Director, Scientific Support to Counsel, Innovative Science Solutions The key to any toxic tort case involving complex scientific concepts is retaining the right experts. However, as any experienced litigator well knows, finding the right expert is not a simple or straightforward matter. Although getting the right lead on a specific individual can be challenging, half the battle is often identifying the right type of expert for your case.

by Ken Lopez Founder & CEO A2L Consulting

A Q&A about using statistics in litigation with David Schwartz, Ph.D., Nathan Schachtman, Esq. moderated by litigation support specialist Ken Lopez