Tobacco On Trial

Prefatory Note: There were three main Weitzman documents involved in his testimony. One was his “Written Direct Testimony,” which almost all witnesses have contributed. This is the document wherein Dr. Weitzman answered a set of questions the DOJ had set up.

Justice had also asked Dr. Weitzman to write up a “rigorous scientific review” of the evidence on Maternal Smoking and 3 conditions of childhood–cognitive and behavioral deficiencies, SIDS and ear infections (Otitis Media). Dr. Weitzman delivered this report to the court in 2001.

Finally, the Defense had deposed Dr. Weitzman in 2002. We saw transcripts and videotapes of this deposition.

Once in a while Mr. Minton neglected to cite which one he was using properly, or maybe he just went too fast for us, but there were times the court, too, was confused about which of the 3 documents he was discussing.

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I had thought Dr. Weitzman had come back from lunch Thursday afternoon refreshed and girded for battle. It was as if he had previously thought he was speaking with some reasonable acquaintance, but now realized he had a well-armed adversary on his hands, and he decided over lunch he would now meet fire with fire, and would use his considerable linguistic and scientific skills to refuse to allow Mr. Minton an inch of leeway, let alone allow him to shiftor misstate scientific terms with impunity.

When Mr. Minton referred to the three diseases Dr. Weitzman had linked to maternal smoking (cognitive and developmental problems, ear infections and SIDS), Dr. Weitzman pounced:

“Two of these are not diseases–the majority are not diseases! I want precision here, so we can honor our oaths.”

Another time Dr. Weitzman caught Mr. Minton loosely using “causation” when he’d previously been using “evidence of causation.”

Judge Kessler at one point said, “If this went on in the deposition, I can believe it went on for days!”

Dr. Weitzman seemed to be succeeding, but the Minton onslaught was so intense at one point he was simply at a loss for words, and Judge Kessler stepped in:

“The witness is confused, and so am I. You have asked a lot of detailed questions.”

Dr. Weitzman was able to get across the point that few things in science are engraved in stone, so that, though he believes the evidence shows that maternal smoking is a cause of SIDS, it’s extreme to ask him to be 100% sure. He allowed that some scientists could, with integrity, disagree with him and/or the mainstream. “That’s the nature of science.”

Mr. Minton often used a Shakespearean technique to denigrate Dr. Weitzman’s contribution to the DOJ’s case, continually prefacing questions with, “In your Scientifically Rigorous Report”, pronouncing “scientifically rigorous” much as Marc Antony commonly pronounces ” honorable men” in “Julius Caesar”.

Mr. Minton asked Weitzman, “You’re an aficionado of epidemiology books?”

Weitzman brightened up and smiled, the way some might brighten up at the mention of model trains or old 78 records, seemingly surprised to find his hobby found out. (Judge Kessler had to make sure she heard this right.)

I thought it fairly brave of Minton to beard the lion in his cave, but here was Mr. Minton, trying to challenge Weitzman on what criteria existed for determining causation from epidemiology. Basically, though some people list up to 7 criteria, Weitzman said that most assertions of criteria could be boiled down to three–temporality, consistency and association. Weitzman and Minton seemed to agree that the only criteria that must exist is temporality, ie, exposure must precede effect.

Minton tried to attack Weitzman on the idea that there is no established quantification of criteria, no clear-cut, established scientific threshhold for judgement based on any other potential criteria.

MR. MINTON: You made no attempt to quantify the level of certainty you had about the causal judgement you made.

DR. WEITZMAN: Because it can’t be done

Weitzman fought back against the implied charge of bias and subjectivity, saying, sometimes angrily,

“No it’s not a subjective judgement, epidemiology is a pragmatic science that has saved millions of lives, it’s not my personal opinion, picking a criteria out of a hat. When multiple bodies reach a causal inference between passive smoking and death from SIDS, when people of authority make those inferences, based on data, with open criticism, that’s not subjective—it’s an objective judgement. And if you apply those judgements and find reduced disease–that’s evidence!”

Judge Kessler seemed to find Mr. Minton’s cross somewhat distasteful, and jumped in quite quickly when Mr. Minton said about one of Mr. Weitzman’s opinions, derisively, “That’s the way your wiring works.”

Judge Kessler immediately broke in harshly, ‘WHAT’S THAT PHRASE SUPPOSED TO MEAN?”

And Mr. Minton explained that it was a quote from Mr. Weitzman’s own Deposition, which he had yet to introduce.

Then, seemingly out of nowhere, in a discussion of paternal smoking, Mr. Minton said,

“VIRTUALLY EVERYTHING YOU STATE IN YOUR CONCLUSIONS CAME OUT OF A DOCUMENT YOU DID NOT WRITE.”

He then produced a Defense exhibit titled “WHO CONSULTATION REPORT / Proceedings of a conference in Geneva, January 14, 1999.”

Mr. Minton produced a chart he had made placing Page 8 of this Consultation Report alongside page 89 of Dr. Weitzman’s expert report. Portions of the texts were in red or blue. Red text denoted word-for-word identical language, blue text denoted similar ideas with different phrasing.

Several phrases –as well as one long sentence, convoluted punctuation and all– in the conclusions of both documents were identical. And the WHO report predated Dr. Weitzman’s by 2 years.

It was clear these phrases had found their way, unattributed, into Dr. Weitzman’s report. It is fairly unreasonable to assume Dr. Weitzman would have purposely lifted the language–it was not unique in any way, and the ideas, expressed in standard scient-ese, were not unusual, and had in fact been competently, even eloquently stated in other language by Dr. Weitzman both in his Direct Written Testimony and in his off-the-cuff remarks today on the stand.

But this was still a serious and ugly event, and Dr. Weitzman examined his copies of the documents intently. The courtroom was completely still. You could see an entire 30-year acadamic career sliding over a cliff.

DOJ objected. Apparently 2 footnotes had been rendered nearly invisible by Mr. Minton’s color-coding.

Judge Kessler allowed the questionig on the WHO document to continue over DOJ objections, saying–sadly, it seemed to me–that important issues had been raised here.

She admitted the exhibit, with the proviso that the footnotes should be readable and a legend should explain the color coding.

Dr. Weitzman acknowledged the duplication and attempted to defend himself.

MR. MINTON: You intended the court and parties to understand your report included YOUR conclusions on pages 89 and 90.

DR. WEITZMAN: And I still do! It never occurred to me the court would read just 4 paragraphs.

MR. MINTON: This exhibit is the University of Rochester School of Medicine and Dentistry’s web page on Plagiarism http://www.urmc.rochester.edu/smd/stdnt/handbook/plagiarism.html. Point 3 states,

“Quotation marks must enclose all direct quotations even though the quoted material is no more than occasional phrases interspersed with original observations.”

MR. MINTON: According to this web page, your conclusions meet the University of Rochester’s definition of plagiarism.

DR. WEITZMAN: Point 2 is what I did.

[”In written papers, due credit to the original source of major or unique ideas (i.e., ideas which you could not and did not arrive at by yourself) must be given in the form of footnotes or clear allusions at the proper places in the paper itself. These precise indications of source must be given whether the material is paraphrased or quoted directly. An appended bibliography only is insufficient acknowledgment.”]

Dr. Weitzman said that in the writing process, a lot of material was extracted out, notes were exchanged. It’s possible the attribution for these sentences got lost in the process.

DR. WEITZMAN: I don’t think I’ve done anything wrong. I am claiming nothing as exclusively mine. This is in no way a distortion of the truth.

Mr. MINTON: You led the court to think they were your conclusions.

Mr. Minton moved on to a section on paternal smoking. A sentence indentical to one in the WHO report read, “clear evidence arises from 6 studies.” Those six studies were referenced in “footnote 8″–apparently a reference left over from the WHO document. Dr. Weitzman couldn’t identify the 6 studies.

MR. MINTON: They are not there, correct? You don’t know what source WHO relied on for their analysis.

DR. WEITZMAN: I don’t know, but this is not the body of what we are here to talk about.

MR. MINTON: You don’t know what source WHO had for those conclusions you transplanted into your report. You don’t know which 6 studies were pooled.

DR. WEITZMAN: So what?!

Mr. Minton then went on to other epidemiological issues, and to Dr. Weitzman’s treatment of a study by Dr. M.P. L’Hoir and colleagues.

Dr. Weitzman seemed to have had it with the entire line of questioning, and said, “They were looking for things that could save people’s children’s lives! They wanted to explore factors associated with saving lives of babies. That the whole point of the exercise.”

The cross-examination wound down into a kind of morass of “mutability” (changeable) and “immutability” (unchangeable) risk factors for SIDS, and finally, as 4:30 came around, Judge Kessler dismissed the court with a slightly dispirited,

“We’ve had a lot of testimony today.”

Mr. Minton estimated his cross Monday morning would take another hour.

As is standard, Judge Kessler cautioned Dr. Weitzman to do no work on his testimony over the weekend.

This entry was posted on Friday, November 5th, 2004 at 3:56 am and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.