Wednesday, June 30, 2010

Judge Rotenberg Center shocks the United Nations

"To be frank, I was shocked when I was reading the report," said Manfred Nowak, the UN's Special Rapporteur on Torture. "What I did, on the 11th of May, was to send an urgent appeal to the U.S. government asking them to investigate."

-- ABC News, June 30, 2010

As I recently mentioned in my post about the Nicholson v. Freeport Union Free School Dist. case, Mental Disability Rights International sent a report to the United Nations Special Rapporteur on Torture concerning the use of severe Level 3 aversives, including electric skin shock, on disabled students at the Judge Rotenberg Educational Center in Canton, Massachusetts. Today, ABC News announced that it will air a segment on its "Nightline" program tonight (11:25 p.m. Eastern Time) about JRC. From ABC's announcement:
The skin shock treatment, used only after both a court and the student's parents have approved, has drawn criticism for years. But after the release of a recent study by Mental Disability Rights International, Rotenberg has come under the scrutiny of no less than the United Nations, which is calling the school's practices "torture."

"UN Calls Shock Treatment at Mass. School 'Torture'."

Tuesday, June 29, 2010

Andrew Moulden and his junk science in Vaccine Court - Veryzer v. HHS

Ideology is not science – which it pretends to be. Science accepts the results of the experiments it devises, whereas ideology systematically rejects empirical evidence.... All ideologies are aberrations. A sound and rational ideology cannot exist.

- Special Master Richard B. Abell in
Veryzer v. HHS, quoting Jean-François Revel

In a decision filed on June 15, 2010 - Veryzer v. HHS, US Court of Federal Claims, No. 06-0522V - Special Master Abell considered whether expert evidence may be excluded under the Daubert standard in a Vaccine Injury Compensation Program proceeding. These vaccine injury cases are handled at the trial level by the Office of Special Masters in the US Court of Federal Claims. The program is sometimes referred to as "Vaccine Court." In Veryzer, faced with the prospect of having to consider opinion evidence from the petitioner's expert, anti-vaccine crank and germ theory denialist Dr. Andrew Moulden, the special master ruled that he could exclude that evidence from consideration under Daubert.

The Daubert standard was developed by the US Supreme Court as a means of determining the admissibility of scientific and other expert opinion evidence in federal courts. In US District Court, the Daubert standard serves a gate-keeping function by allowing the trial judge to apply various factors to determine the reliability of proffered evidence before it is put before a jury. If the judge determines that the evidence isn't reliable, he or she can refuse to admit it. That way, the jury isn't presented with junk science. The Daubert standard is supposed to be flexible enough to allow admission of novel scientific evidence, as long as the evidence is reliable.

There is no jury in Vaccine Court, however, so there is no need for a gate-keeping function. Nevertheless, special masters have used the Daubert standard to assess the reliability of expert opinion evidence that they have admitted and are considering. An example of this use of Daubert can be seen in Cedillo v. HHS, US Court of Federal Claims, No. 98-916V (appeal pending in the US Court of Appeals for the Federal Circuit).

In Veryzer, the special master ruled that Daubert could also be used to exclude evidence, but only in the most extreme cases. "In the Vaccine Program, then, exclusion from the record is an exceptional remedy, and should only be applied by the Court where the material sought to be excluded is so unreliable, it patently forfeits every trace of being helpful to the Court’s consideration of the facts of the case."

Andrew Moulden's proffered testimony fits the bill. Dr. Moulden has been described by ScienceBlogs blogger Orac at Respectful Insolence as having "plumbed depths of crankery that few pseudoscientists can even dream of plumbing." Although this sounds like hyperbole, Special Master Abell drew a similar conclusion after applying the Daubert factors to Dr. Moulden's expert report in Veryzer. Here are excerpts from the special master's analysis:

More than any arguments made by Respondent, or any failures to rebut by Petitioner, Dr. Moulden himself openly flaunts that he does not follow generally accepted medical science. He believes that none of the several theories found reliable by this Court over the years, none of the mechanisms identified by the IOM, and none of the medical literature on vaccine injury are correct. Even if this is not the heresy which Respondent would ascribe, it is undeniably a heterodoxy that veers sharply from the orthodox universe of accepted medical science. Similar to this is his belief that “all vaccines are useless,” and that vaccines are the primary pathogen in the world. It seems incredible that Dr. Moulden would find vaccines more destructive than smallpox, polio, measles, or tetanus. Without being hasty, it may be fair to say that this diverges from the understanding of acceptable medical science, not least in the field of immunology. And it is hard to conceive of a belief that would diverge more from modern medical science than his rejection of germ theory. On a fundamental level, Dr. Moulden breaks notably from medical science as it is practiced today. These are not prudential matters of opinion; these affect the very fiber of scientific methodology. As the Supreme Court stated in Kumho Tire, a reliable expert must adhere to “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” 526 U.S. at 152.

However, inasmuch as he has publicly released none of the results of his research, his toil in the laboratory does not bolster the reliability of his opinion either. One is left to assume that his experiments have followed the pattern of hypothesis, testing, theory, duplication of results, and falsifiability. However, the lack of published results leaves this supposition as a mere article of faith. Furthermore, as Respondent pointed out, the absence of publication within the medical field also makes testing, duplication of results, and falsifiability impossible for any others to perform. One of the identifiable hallmarks of science is the requirement of theoretical falsifiability; even if an individual theory has not undergone sufficient testing to prove or disprove its viability, the requirement remains that it must be falsifiable under some potential (even if not yet discovered) rubric, else it cannot bear the name “scientific” but is an article of faith. Petitioner even hoisted himself by his own petard by his citation to Paoli (supra at note 14), which states that an opinion is only reliable when premised upon “good grounds,” by which that court described an expert theory and conclusion that was “based on the methods and procedures of science.” 35 F. 3d at 744. There is a word for a postulated system that purports to be a unified theory of everything, explaining all phenomena by its one, reductionist theory: ideology. Indeed, Dr. Moulden’s seraphic vision of a MASS response smacks of a pensée unique, perhaps even devolving into an idée fixe. To be so engrossed in one way of perceiving reality, so as not to recognize the distinction between congenital defects and infection, is not helpful to understand reality, and it cannot prove helpful to the Court’s understanding. Thus, the Court stares askew at Dr. Moulden’s statements such as “Pasteur’s germ theory of mammalian disease is both incorrect and inaccurate [because] disease is not being caused by any particular pathogen or strain of pathogen [but] is the non-specific immune response to foreign substances [in] the body and blood stream that causes disease–all diseases.” Moulden Report at 90-91.

Given that Dr. Moulden diverges (even veers) from accepted medical science on such a fundamental level in his methodology, that there is no single indicium of reliability that would bolster his opinion, and that the fact that his opinion would manifestly be unhelpful to the Court’s resolution of the issues presented in this matter, the Court rules that Dr. Moulden’s opinion shall be excluded from the record to be considered in ruling on the Petition, and that he shall not testify at any hearing held herein.

The special master also excluded evidence from petitioner's other expert witness, Huffington Post blogger and anti-vaccine activist Dr. Sherry ("Become a Vaccine Refusenik") Tenpenny. He found that she didn't have the expertise to give the opinion that was offered in the case, and that, even if she did have the qualifications, her opinion was not reliable. The special master found that Dr. Tenpenny's report "is thoroughly worthless to the Court, and is not helpful enough, not relevant enough, to be admissible, considering the strong arguments against its admissibility."

In the end, the special master found that neither Dr. Moulden nor Dr. Tenpenny "should be permitted to waste the Court’s (or counsel’s) time at a hearing held merely to endure testimony that is patently unreliable," and ordered the petitioner to "seek out a credibly qualified, methodologically reliable expert witness to opine on the specific matter at issue in this case: namely, can the Hepatitis A vaccine cause Petitioner’s injury, and if so how; and did the Hepatitis A vaccine follow such a process in Petitioner’s case, with reference to his medical records."

Friday, June 18, 2010

One bite at the apple of justice - Nicholson v. Freeport Union Free School Dist.

While the infliction of severe pain on children and adults at JRC has been challenged in the courts time and time again, the legal system of the United States has failed to provide basic human rights protections for this population.

-- From "Torture Not Treatment," an Urgent Appeal to the U.N. Special Rapporteur on Torture

Antwone Nicholson has lost his case against the Freeport Union Free School District, the New York school district that placed Antwone as a special education student at the infamous Judge Rotenberg Educational Center (JRC) in Canton, Massachussetts. I wrote about the JRC a couple of months ago. Since then, a human rights organization known as Mental Disability Rights International has filed an Urgent Appeal with the United Nations Special Rapporteur on Torture, requesting that the UN investigate JRC. In its Urgent Appeal, MDRI says that domestic remedies have failed.

Antwone Nicholson and his mother, Evelyn, have been trying to find a remedy for damages caused to Antwone from being subjected to punishment by electricity at JRC. In a May 2006 article in the Boston Globe, the Nicholsons' complaint was described as the impetus for the New York State Education Department's enactment of emergency regulations putting tighter limits on the use of electric shock and other aversives on students from New York.

Antwone and Evelyn also sued the State of New York in the New York Court of Claims for violating New York education law and Antwone's civil rights by putting JRC on on the State Education Department's list of approved schools for New York students. The Nicholsons lost that case in December 2008. Nicholson v. State of New York, 23 Misc.3d 313, 872 N.Y.S.2d 846 (Cl. Ct. 2008). The Court of Claims decided that the Nicholsons didn't have a right to sue the State of New York, but suggested that they could "pursue judicial remedies against JRC and the local school district ... ."

Antwone and Evelyn had, in fact, sued the JRC and the local school district, Freeport Union, in December of 2006. The case is Antwone Nicholson and Evelyn Nicholson v. Freeport Union Free School District and The Judge Rotenberg Educational Center, Inc., Supreme Court of New York, Nassau County, Case No. 11506/06. (In many states and in the federal system, the supreme court is the highest appellate court. In New York, it's the trial court.) In May of 2009, the Supreme Court judge denied the school district's motion for summary judgment, finding that there were "questions of fact regarding the role and responsibility of defendant Freeport in the education of plaintiff that precludes summary disposition." The school district appealed and won.

On June 8, 2010, the Appellate Division of the Supreme Court of New York reversed the trial court's order, holding that the school district was entitled to summary judgment in its favor. Nicholson, et al. v. Freeport Union Free School Dist., et al., 2010 NY Slip Op 04975. (The Appellate Division is New York's intermediate appellate court, with the Court of Appeals being the state's highest court.)

In order to use skin shock on Antwone, JRC went to the Massachusetts probate court for permission, as it does in all cases. In these proceedings, the JRC student is represented by counsel. So Antwone was represented at the probate hearing by his attorney and Antwone's mother, Evelyn, was also there. The probate judge approved the use of skin shock on Antwone before it was used.

The New York appeals court concluded that, because the Massachusetts court had already decided that it was okay to shock Antwone with electricity, and because Antwone and his mother were present or represented at the hearing, they are barred by the doctrine of collateral estoppel from asking the New York court to decide the same issue again.

The doctrine of collateral estoppel, or "issue preclusion," prevents a party from litigating an issue that has already been decided against him or her in another court. It is a doctrine of fairness that is meant to promote judicial economy and the finality of judgments. If a court decides an issue of fact or law against you, and you had a full and fair opportunity to litigate that issue in the first court, then you can't go to another court and ask that it decide the identical issue. You only get one bite at the apple.

To me, the pertinent inquiry in the Nicholson case is, how do we know that the Nicholsons had a full and fair opportunity to litigate the issues of the appropriateness and legality of the GED use in probate court? The Nicholson appeals court says simply that they appeared in the proceedings. That's not enough.

Under New York law, a court has to consider the realities of litigation and various factors to determine whether there was a full and fair opportunity to litigate an issue in a prior proceeding:
Thus we noted in the Schwartz case (at p 72) that when collateral estoppel is in issue, the question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into "the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation" (see, also, Restatement, Judgments 2d [Tent Draft No. 3], § 88).

Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807 (1981).

So, what about the probate proceeding in Massachusetts? What was the nature of that proceeding? What opportunity was actually given to Evelyn and Antwone to litigate the issues of the appropriateness and legality of using electric shock on Antwone? Who was Antwone's attorney, and what level of competence and experience did he or she have? Is there new evidence available for the later proceeding that wasn't available to Evelyn and Antwone in the Massachusetts proceeding? What differences are there in the law to be applied in the Massachusetts case and the New York case? The New York court didn't look at *any* of these factors, and therefore didn't do a proper analysis of whether the doctrine of collateral estoppel applies in this case.

I have always wondered about JRC's probate proceedings. If JRC is also going to use collateral estoppel as a defense in Nicholson, or in any other case, I hope that information about the nature of these proceedings and how they work will be fully developed.

As far as I can tell from the docket, the Nicholsons are heading for trial against JRC, even through Freeport Union Free School District won its appeal. The Nicholsons' attorney is Kenneth M. Mollins of Melville, New York.

Will the legal system of the United States will provide Antwone Nicholson with a remedy?