DRUG AND MEDICAL DEVICE LITIGATION Responding to Table Pounding Defense Through the Exposure

By Frank C. Woodside III of Fallacies and Jacqueline R. Sheridan

To be relevant and While formalistic logic alone is unlikely to carry the day, reliable, evidence must the application of established principles of logic may ele- be logical. The case vate an already sound response to a plaintiff’s argument to law demonstrates that one that is unquestionably persuasive. In the defense of drug and medical device product lia- an “argument by vehemence”—a “fallacy courts do draw upon bility actions, defense counsel frequently of relevance” that falls within the category encounter seemingly convincing argu- of an “appeal to the people” (argumen- formalistic logic; learn ments that are based more on rhetoric than tum ad populum). If a plaintiff’s counsel on the law, the facts, or both. also uses emotionally charged language, how you can, too. All trial lawyers are familiar with some the traditional response can be enhanced form of the following legal aphorism: by noting that the use of visceral language If you have the facts on your side, constitutes a fallacious argument by emo- pound the facts. tive language, which is also an “appeal to If you have the law on your side, the people.” pound the law. Attorneys frequently use arguments, If you have neither on your side, which, although rhetorical and persua- pound the table. sive, are logically misleading or falla- The customary response to “table pound- cious and thus unreliable and without ing” is to point out that the facts and the merit. An investigation into the disci- law govern—not the rhetoric of opposing pline of logic reveals that logical princi- counsel. Such a response can be buttressed ples form the basis of established theories by pointing out that “table pounding” is a of toxicology, epidemiology, and other fallacious argument with a formal name: sciences encountered in product liability

■ Frank C. Woodside III, M.D., and Jacqueline R. Sheridan are of counsel to the law firm of Dinsmore & Shohl LLP in Cincinnati. Dr. Woodside is the chair emeritus of the firm’s Toxic and Environmental Tort Prac- tice Group. Over a period of more than 45 years he has served as primary trial counsel in medical malprac- tice, patent, product liability and mass tort cases. Dr. Woodside currently serves as an adjunct professor of Law at the University of Cincinnati College of Law. Ms. Sheridan has handled a wide variety of complex lit- igation matters, including pharmaceutical and medical device litigation. Specifically, she served as national counsel handling multi-district litigation and mass tort proceedings involving manufacturers and distributors of various pharmaceutical drugs. Ms. Sheridan is actively involved in the DRI Drug and Medical Device Com- mittee Steering Committee.

© 2016 DRI. All rights reserved. For The Defense ■ September 2016 ■ 63 DRUG AND MEDICAL DEVICE LITIGATION litigation. The law of evidence also has cited logic texts in support of their rul- of the deductive argument begins with the a sound basis in logic. Recognizing the ings. Furthermore, many of these deci- premises and develops a conclusion that logical errors in the arguments of oppos- sions involve issues that are relevant to necessarily follows if the premises of the ing counsel, correctly naming the logical the defense of pharmaceutical and medi- argument are indeed true. Of note is the errors, and delineating the invalid nature cal device claims. fact that there is no way to test the valid- of the arguments (with the appropriate Defense counsel may be tempted to ity of the premises from which the conclu- references to case law and logic texts) can forego consideration of this potential sion supposedly follows. Thus, even though be powerful tools in refuting conclusions defense based on the following argument: an argument is logical (that is, it is not fal- based on logically defective premises and Take pity on defense counsel. They have lacious), it does not necessarily follow that no real training in the principles of logic, the conclusion is valid. for which reason it would be an insur- The logical validity of an argument is mountable task for them to invoke princi- rooted in its internal consistency. Despite With regard to fallacies, ples of logic. This argument is a woefully its internal consistency, an argument may inadequate argumentum ad misericordiam be wrong if it is based upon false premises. for instance, a simple (appeal to emotion: pity or misery). But- Consider the following example: ler v. Kmart Corp., No. 05-257-P-A, 2007 If the sky is blue, it is warm. (Premise.) online search of the term U.S. Dist. Lexis 61141 (N.D. Miss. Aug. 20, The sky is blue. (Premise.) 2007). Furthermore, the endeavor is not as Therefore it is warm today. “fallacies” will return daunting as one might think. (Conclusion.) With regard to fallacies, for instance, Because the premise is untrue, the con- multiple sources that explain a simple online search of the term “fal- clusion may also be wrong. lacies” will return multiple sources that Inductive argument is the form of argu- these principles with names explain these principles with names and ment generally used in court: “[I]n the definitions that are readily understand- offering of evidence in court the form of and definitions that are able. The reader will likely be astonished argument is always inductive.” 1A Wig- to find out just how many fallacies are more on Evidence, §32, at p. 984 (Tillers rev. readily understandable. encountered in the everyday practice of 1983). It is “bottom-up” reasoning in that law. Defense counsel will be delighted to the proponent begins with some data then The reader will likely be find that certain of the fallacies beg for builds upon that to argue that certain con- citation because, among other things, they clusions follow. astonished to find out accurately describe the conduct of oppos- Inductive reasoning differs from deduc- ing counsel, to wit: proof by verbosity tive reasoning in two ways: (1) induction just how many fallacies (argumentum verbosium)! Having piqued fails to preserve the truth (true premises (hopefully) the curiosity of the reader with may lead inductively to false conclusions); are encountered in the regard to matters of incorrect reasoning, a and (2) adding true premises to an already more detailed discussion follows. sound induction may make it unsound. everyday practice of law. John Vickers, “The Problem of Induction,” What Is Logic? The Stanford Encyclopedia of Philosophy What is logic? “Logic is the study of the (Edward N. Zalta ed., Spring 2016 ed.), (when appropriate) arguing for the exclu- methods and principles used to distin- http://plato.stanford.edu/. sion of evidence. guish correct from incorrect reasoning.” So, “[t]he particular danger, then, of Defense counsel are accustomed to Irving M. Copi, Carl Cohen, & Kenneth inductive proof is that there may be other responding to logically defective argu- McMahon, Introduction to Logic 2 (14th ed. explanations than the desired one for the ments—but not in a manner that invokes 2011). The application of principles of logic fact taken as the basis of proof.” 1A Wig- principles of logic. The purpose of this arti- is a component in the determination of the more on Evidence, §32, at p. 992 (Tillers cle is not to make the reader an expert in admissibility of evidence in product lia- rev. 1983). the field of logic; rather it is to sensitize bility litigation. With regard to the admis- Further, “[a]n inductive argument defense counsel to the facts that (1) logi- sibility of evidence, “the general spirit and claims that its premises give only some cal principles can enhance a defendant’s mode of reasoning of the courts substan- degree of probability, but not certainty to argument, and (2) there are a myriad of tially illustrates the dictates of scientific its conclusions.” Copi, Cohen, & McMa- published cases (some more than a cen- logic.” 1A Wigmore on Evidence, §32, at p. hon, supra, at 12. As a result, inductive tury old) in which courts have ruled on 996 (Tillers rev. 1983). reasoning is also known as hypothesis matters using principles of logic. With There are two principal forms of argu- construction because any conclusions regard to fallacies, for example, courts ment: (1) deduction and (2) induction. made are based on current knowledge have not only named and defined them, Deductive argument is sometimes referred and predictions. Inductive Approach, but on more than one occasion, they have to as “top-down” argument. The proponent Research Methodology, http://research-

64 ■ For The Defense ■ September 2016 methodology.net/ (explaining inductive Michael Cavendish, Fallacy and the Pro- is replaced by an attack upon the char- reasoning) (“Patterns, resemblances fession, The Bencher July/Aug. 2015, at 23. acter of the opponent. In Huntington and regularities in experience (prem- Fallacies are either formal or informal. Beach City Council et al v. The Superior ises) are observed in order to reach con- In “formal fallacies” the arguments con- Court of Orange County, 115 Cal. Rptr. 2d clusions (or to generate theory).”). See tain errors in logic that are readily appar- 439, 448 (2002), the court identified and also James Hawthorne, “Inductive Logic,” ent in the argument’s form. In contrast, rejected an argument based on this fal- The Stanford Encyclopedia of Philosophy “informal fallacies” take into account the lacy, stating: (Winter 2014 ed.), supra. While induc- illogical content of the argument. Typi- It appears from the trial court’s com- tive reasoning may operate to generate a cally, formal fallacies are created through ments that it was troubled by the “ad ho- hypothesis, it fails to establish as true the the use of deductive arguments, whereas suggested conclusion. informal fallacies occur in arguments that Deduction and induction are not, in and could be at best inductively strong. Infor- of themselves, sufficient to prove anything. mal fallacies can be grouped under four Fallacies are either Thus, if the fallacious features of a plain- headings: (1) fallacies of relevance; (2) fal- tiff’s argument can be identified, a posi- lacies of defective induction; (3) fallacies of formal or informal. In tion that initially appears to be logical (but presumption; and (4) fallacies of ambigu- is nothing more than rhetoric) may easily ity. Copi, Cohen, & McMahon, supra, at 107. “formal fallacies” the be refuted. Within these four categories are a plethora In the legal arena, the recognition of log- of fallacies that are frequently encountered arguments contain errors ical flaws requires sensitivity to their pres- in the defense of product liability actions— ence. In argument—whether written or only a few of which will be discussed in in logic that are readily oral—attorneys attempt to persuade a third this article. party of the validity of their positions. In apparent in the argument’s doing so they frequently resort to, among Fallacies of Relevance other things, rhetoric, charm, sympathy, Fallacies of relevance fail to provide ade- form. In contrast, and emotion, which are not logic based. quate reasons for believing the truth of It is arguably more important to be per- their conclusions. A classic example is the “informal fallacies” take suasive than logical. Exposing the logical “red herring,” a fallacy of irrelevant con- flaws in a seemingly convincing argument clusion. A red herring occurs when correct into account the illogical not only defuses the argument but assails reasoning is manipulated by the intro- the credibility of its proponent. duction of some factor that misleads the content of the argument. Recognizing logical fallacies involves a audience and thus hinders rational infer- multi-step procedure. Initially, the party ence. In Frank v. Hon. Maloney Comm’r of wishing to attack an argument must care- Soc. Sec., No. 14-501, 2015 U.S. Dist. Lexis minem” quality of the city’s statement. fully analyze the argument, dissect the 56422, at *2–4 (W.D. Mich. Apr. 30, 2015), Ad hominem arguments, of course, con- argument into its various steps, and iden- the plaintiff argued that the lack of treat- stitute one of the most common errors in tify any disconnects between the premises ment of her ailments could not be consid- logic: Trying to win an argument by call- and the conclusion. Developing a general ered as evidence contrary to a finding of ing your opponent names… only shows awareness of the existence and the names disability because (she claimed) she did the paucity of your own reasoning. (Of of the major fallacies is critical. A simple not have the treatments because she could course, it happens all the time in real online search reveals that fallacious argu- not afford it. The court noted “that argu- world politics.) ments abound. See, e.g., A List of Fallacious ment suffers the fallacy known as a red Arguments, http://www.don-lindsay-archive.org/ herring.” Id. at *4. The administrative law Fallacies of Defective Induction skeptic/arguments.html. judge found that “the claimant’s record of In fallacies of defective induction, the Demonstrating that a particular argu- back pain treatment and mental health premises may be relevant to the conclu- ment is fallacious, and thus defective, impairment spartan.” Id. (quoting ECF sions, but they are far too weak or ineffec- requires (1) an understanding of the fal- No. 7-2 ALJ Dec. Page ID 109). The admin- tive to support the conclusions. A classic lacy at issue, and (2) knowledge of the for- istrative law judge further explained that example of this is an appeal to ignorance mal name of that fallacy. As explained the record of the plaintiff’s treatment was (argumentum ad ignoratiam), when it is elsewhere, “[t]he power to name a common “spartan” because the medical evidence argued that a proposition is true on the fallacy, the power to give the classical, one- indicated there was little to treat and that ground that it has not been proved false, sentence description of the great flaw, is the her pain was effectively managed with or when it is argued that a proposition is power to reveal what is missing from the medication. Id. at *4. false because it has not been proved true. proponent’s argument, the absence in evi- The attack on the person argumen( - See, e.g., Ala. Tombigbee Rivers Coalition dence or reasoning that the fallacy is sup- tum ad hominem), another fallacy of rel- v. Kempthorne, 477 F.3d 1250, 1257 (11th posed to conceal.” evance, occurs when correct reasoning Cir. 2007).

For The Defense ■ September 2016 ■ 65 DRUG AND MEDICAL DEVICE LITIGATION

In Guinan v. A. I. DuPont Hosp., the de- v. Kempthorne, 477 F.3d 1250, 1257 I am reluctant to accept as harmless the fendants were allegedly liable for dam- (11th Cir. 2007) (citing Irving M. Copi additions of source references where the ages resulting from the implantation of a & Carl Cohen, Introduction to Logic statute, rule or regulation has no dispos- stent into the heart of the plaintiff—a stent 93 (8th ed. 1990)). Plaintiff mistakenly itive effect… When the source of law is that had not received FDA approval. 597 assumes that an absence of evidence not significant per se, the only effect of F. Supp. 2d 485 (E.D. Pa. 2009), affirmed to support its proposition establishes citation is rhetorical. In formal logic in part and reversed in part, M.G. v. A. I. the proposition. However, an absence the device is known as argumentum ad DuPont Hosp. For Children, Nos. 09-2426, of evidence that the stent was defective verecundiam, playing on the prestige of 09-3598, 09-4120, 2010 U.S. App. Lexis does not establish defectiveness. the source. Id. at 485. Id. at 228. Plaintiffs frequently take a similar posi- Last but not least, appeals to inappropri- tion in toxic exposure cases when they ate authorities are seen every day in tele- Plaintiffs frequently argue that because there is no known safe vision commercials when athletes, movie dose of a product, the product is defective stars, and other celebrities give testimoni- take a similar position in and caused the injury at issue. This argu- als to the alleged superiority of a myriad ment constitutes an appeal to ignorance of products. toxic exposure cases when by attempting to avoid the dose-response The fallacy of post hoc ergo propter hoc, requirements of toxicology and epidemi- positing that because a second event fol- they argue that because ology, and it also attempts to shift the bur- lowed a first, the first event caused the sec- den of proof to the defendant. Just because ond, is frequently encountered in product there is no known safe there is no “known” safe dose does not liability litigation involving pharmaceuticals mean that there is no “actual” safe dose. and medical devices. In a product liability dose of a product, the Another fallacy of deductive reasoning case against a pain-pump manufacturer, the is the appeal to inappropriate authority Eleventh Circuit defined this fallacy and af- product is defective and (argumentum ad verecundiam). This fal- firmed a decision of the trial court excluding lacy occurs when a conclusion is accepted as unreliable the opinion of the plaintiff’s ex- caused the injury at issue. as true for the simple reason that an expert pert based upon such a fallacy: said it is true. Although the formal name of Kilpatrick cannot overcome the fact the fallacy was not used, the U. S. Supreme that Dr. Poehling’s specific causation 17711 (3d Cir. Aug. 24, 2010). With regard Court addressed this very issue in Gen- testimony is rooted in a temporal re- to the testimony of the plaintiff’s expert on eral Electric v. Joiner, 522 U.S. 136 (1997), lationship. “[P]roving a temporal rela- the issue of whether the stent was safe the when it made its frequently cited “ipse tionship… does not establish a causal court ruled: dixit” statement: relationship…. [S]imply because a person The expert testimony on which Plain- Trained experts commonly extrapolate takes drugs and then suffers an injury tiff relies fails to support an inference from existing data. But nothing in either does not show causation.” McClain, 401 that the stent was defective. Damaska Daubert or the Federal Rules of Evidence F.3d at 1243 (emphasis in original). This testified that while the stent was not requires a district court to admit opin- is a classic “post hoc ergo propter hoc” “shown to be safe,” neither was the ion evidence that is connected to exist- fallacy which “assumes causation from stent “shown to be unsafe.”… Plain- ing data only by the ipse dixit of the temporal sequence. It literally means ‘af- tiff maintains that Damaska’s testi- expert. A court may conclude that there ter that, because of this’…. It is called a mony that the stent was not “shown is simply too great an analytical gap fallacy because it makes an assumption to be unsafe” supports an inference between the data and the opinion prof- based on the false inference that a tem- that the stent was unsafe or defec- fered. See Turpin v. Merrell Dow Phar- poral relationship proves a causal rela- tive. Plaintiff therefore relies on an maceuticals, Inc., 959 F. 2d 1349, 1360 tionship.” Id. Dr. Poehling made clear absence of evidence of defect as sup- (CA 6), cert. denied, 506 U. S. 826 (1992). that he reached his conclusions with re- port for the proposition that a defect That is what the District Court did here, spect to Kilpatrick’s injuries merely by exists. Plaintiff commits the logical and we hold that it did not abuse its dis- looking at Kilpatrick’s shoulder before fallacy of argumentum ad ignoran- cretion in so doing. and after the use of Breg’s pain pump. tiam, [sic] that is, an argument from Id. at 139. The district court did not abuse its dis- ignorance. “An argument from igno- Similarly, an appeal to inappropri- cretion in finding Dr. Poehling’s meth- rance is `the mistake that is committed ate authority occurs when a party cites odology to establish specific causation whenever it is argued that a proposi- statutes, regulations, or other reference unreliable under Daubert. tion is true simply on the basis that it sources that have no dispositive effect. Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1343 has not been proved false, or that it is Cresap v. Pac. Inland Navigation Co., 478 (11th Cir. 2010) (alterations in original). false because it has not been proved P.2d 223 (Wash. 1970). In Cresap, the The hasty generalization (converse acci- true.’” Ala.-Tombigbee Rivers Coalition court stated: dent), also a fallacy of deductive reason-

66 ■ For The Defense ■ September 2016 ing, occurs when one, in a cavalier fashion, O’Conner, thus committing the logical the exception,” occurs when one mistak- develops a universal conclusion based upon fallacy known as the Converse Accident enly applies a generalization to an individ- very few instances or events. In Downs v. (hasty generalization). The logical fal- ual instance to which it does not properly Perstorp Components, Inc., 126 F. Supp. lacy of Accident is the improper applica- apply. Such an analysis takes simplistic 2d 1090, 1098 (E.D. Tenn. 1999), the court tion of a general rule to a particular case. rules, applies simplistic rules generally, rejected the proposition that a single expo- The logical fallacy of Converse Accident and ignores legitimate exceptions to such sure to Rubiflex could cause chronic neu- (hasty generalization) is the reverse. It rules. In McClendon v. City of Albuquerque, rological impairment: occurs when a person erroneously cre- 630 F.3d 1288, 1292–93 (10th Cir. 2011), the If general causation cannot be deter- ates a general rule from observing too court identified the fallacy of accident: mined, defendants point out, specific cau- few cases. Dr. Scheribel has illogically sation cannot be determined either. Dr. created a “binding universal rule” based Kilburn had no experience with Rubi- upon insufficient data. flex prior to seeing plaintiff, and he can- Id. at 1391. Begging the question not rely upon his experience to support In DiLello v. Union Tools, 2004 Vt. Super. his proposition that a single exposure to Lexis 17, at *5–6 (May 13, 2004), the court (also known as “circular Rubiflex can cause chronic neurological denied the plaintiff’s motion for summary impairment, and Dr. Kilburn has not lo- judgment in a case involving an alleged argument” and petitio cated any support for his proposition in defective spading fork: the relevant scientific and medical liter- In this case, plaintiff argues that he principii) is an informal ature [Kilburn Depo. at 127, 138; Doc. meets these burdens because he has 45, Exhibit E]. Dr. Kilburn testified in established evidence that he did not mis- fallacy in which the truth his deposition that Rubiflex is an “epoxy- use or modify the product and that the type product,” but defendants point out defendant manufacturer and seller are of the conclusion of the that Dr. Kilburn’s experience with epoxy liable as a matter of law. This suggests exposure is limited to five other patients a fallacy of hasty induction, namely “if argument is assumed in he has seen [Kilburn Depo. at 127; Doc. there was an accident there must have 45, Exhibit E]. Even assuming that Dr. been a manufacturing defect.” Despite one of the premises. Kilburn could properly use information any relaxed standards of proof under about the health effects of epoxy to draw strict products liability, plaintiff must conclusions about the effects of Rubiflex, still establish that the spading fork’s While the defendants are correct that a defendants point out that Dr. Kilburn’s at- brashness (or another defect) caused final judgment is the paradigmatic “final tempt to use a few case studies of epoxy his accident and that the spading fork decision” appealable under §1291, see to prove that Rubiflex can cause neuro- contained the brashness (or another Midland Asphalt Corp. v. United States, logical impairments is a classic example defect) at the time of sale. Dobbs, §354, 489 U.S. 794, 798, 109 S. Ct. 1494, 103 of another logical fallacy—the Converse at 977-78 (noting that the Restatement L. Ed. 2d 879 (1989), it doesn’t follow accident (hasty generalization). O’Conner (Third), like the Restatement (Second), from this fact that every case with a v. Commonwealth Edison Co., 807 F. Supp. continues to premise liability solely on final judgment in it is appealable. The 1376, 1391 (C.D. Ill. 1992). The fallacy of defective products rather than perfectly defendants are too quick to generalize Converse accident occurs when a person made products.). and in doing so run afoul of the logical erroneously creates a general rule from Therefore, defining and defending against fallacy of accident. See generally Nicho- observing too few cases. Id. at 1395. the hasty generalization can mean the dif- las Bunnin & Jiyuan Yu, The Blackwell, Hasty generalizations are frequently seen ference between the admission and the Dictionary of Western Philosophy 248 with stereotyping, racism, sexism, and exclusion of an adversary’s expert testi- (2004). Just because all the people you’ve racial profiling. mony or the grant or the denial of sum- met lately are kind doesn’t mean all peo- In O’Connor v. Commonwealth Edi- mary judgment. ple are kind. son Co., 807 F. Supp. 1376, 1391 (C.D. Ill. The fallacy of accident requires that one 1992), another court rejected a conclu- Fallacies of Presumption conflate the generalization (“usually” or sion based upon the fallacy of hasty gen- With fallacies of presumption the logical “almost always”) with the categorical state- eralization. In doing so the court defined mistake in the argument arises from rely- ment (“always”). another fallacy—the fallacy of accident ing upon a proposition that is assumed to The complex question fallacy (plurium (which will be discussed more below in be true but is actually without a valid basis. interrogationum) involves two unrelated the next section): The accident, the complex question, and points that are combined and treated as a Based on the five patients he has the begging the question fallacies are all single proposition. Through the improper observed with cataracts induced by radi- examples of this fallacy. use of the word “and,” the listener is en- ation therapy, he developed his “bind- The fallacy of accident dicto( simplic- couraged to accept or reject two separate ing universal rule” that he applied to iter), sometimes referred to as “destroying propositions when really only one propo-

For The Defense ■ September 2016 ■ 67 DRUG AND MEDICAL DEVICE LITIGATION sition is acceptable. The classic example is district court rejected the causation testi- Clearly, the word “gap” has two sepa- the following question: “Have you stopped mony of the plaintiff’s expert for a number rate and distinct meanings. Powers’ mis- beating your wife?” If the listener responds of reasons—including the fact that the dif- use of the word gap, whether such misuse “yes,” it implies that he no longer beats his ferential diagnosis testimony of this expert was accidental or deliberate, is a fallacy wife, but did in the past. If the listener re- was circular. of equivocation. sponds “no,” it implies that he continues In affirming the ruling of the trial court, The fallacy of accent occurs when a shift to beat his wife. More appropriately, one the First Circuit noted the reasoning of the of meaning arises within an argument as should first ask: “Have you ever beaten your trial court: “The [district] judge also stated a consequence of changes in the empha- wife?” If an affirmative response results, a that Dr. Butler’s reasoning was circular: she sis given to its words or parts. The fallacy “ruled out” an idiopathic APL by “ruling of accent can be seen with the use of ital- in” benzene as a cause, but she had failed ics or boldface type to mislead the reader to provide a scientifically reliable method regarding the full truth of the statement. With fallacies of of “ruling in” benzene in the first instance.” Another example of the fallacy of accent Id. at *14. occurs when something is taken out of con- ambiguity, the mistakes in text through the use of typographical tech- Fallacies of Ambiguity niques such as the use of all capitals, italics, argument arise as a result With fallacies of ambiguity, the mistakes in or double underlining. Though the typo- argument arise as a result of a shift in the graphical technique may make it appear of a shift in the meaning meaning of the words or phrases, from the as though the reader is yelling, such a tac- meanings that they have in the premises, tic does not have bearing upon the credibil- of the words or phrases, to different meanings in the conclusion. ity or the accuracy of the statement that the There are five fallacies of ambiguity: equiv- proponent is trying to convey. from the meanings that ocation, accent, composition, division, and Another fallacious argument often amphiboly. Copi, Cohen, & McMahon, used by counsel arises when they piece they have in the premises, supra, at 148. together arguments based upon “sound The fallacy of equivocation occurs when bites.” Taken out of context, snippets can to different meanings in the same word or phrase is used with two be the basis of a very persuasive argu- or more meanings, deliberately or acci- ment. It is important to understand that the conclusion. There dentally, in formulating an argument. An such arguments are tantamount to a fal- example of the fallacy of equivocation can lacy of accent. are five fallacies of be found in Powers v. Tex. Mut. Ins. Co., Moreover, to take a bit of evidence here No. 11-08-00088, 2010 Tex. App. Lexis 587 and a bit there from this witness and ambiguity: equivocation, (Tex. App. Jan. 29, 2010), in which the court that—bits torn from explanatory context, discusses the appellant’s equivocation of the thread of the witness’s discourse—I accent, composition, the word “gap”: deem unphilosophical and misleading in Powers’ challenge on appeal is that the so heavy a case weighted down as it is with division, and amphiboly. blood alcohol test results should not have infinite details. There is danger in that been admitted as evidence because there course of merely amplifying the fallacy were gaps in the chain of custody; there- of accent mentioned in books on logic. second question may be asked: “Have you fore the expert opinions of Dr. Avery and Turner v. Anderson, 168 S.W. 943, 947–48 stopped?” The complex question argues by Hambrick that relied on the blood sample (Mo. 1914). asking a question in such a way as to pre- should have been excluded. Powers cites More recently, the Ninth Circuit iden- suppose the truth of some assumption bur- Gammill v. Jack Williams Chevrolet, Inc., tified the fallacy of accent in United States ied in that question—an assumption which 972 S.W.2d 713, 726 (Tex. 1998), for the v. Swisher, 811 F.3d 299, 322 (9th Cir. may or may not be true. proposition that expert testimony is un- 2016), stating: Begging the question (also known as reliable if “there is simply too great an Consider, for example, Charlie Chaplin’s “circular argument” and petitio princi- analytical gap between the data and the classic exchange in The Great Dictator pii) is an informal fallacy in which the opinion proffered.” The part of this argu- (1940). When Chaplin mutters “this is a truth of the conclusion of the argument ment that relies on Gammill is one of an- fine country to live in,” he is arrested, but is assumed in one of the premises. Copi, alytical reasoning. The “gap” challenged escapes punishment by explaining that all Cohen, & McMahon, supra, at 155. In Mil- here is whether the chain of custody from he said was “this is a fine country to live in.” ward v. Rust-Oleum Corp., No. 15-1996, the time the blood sample was taken until Joseph G. Brennan, A Handbook of Logic, 2016 U.S. App. Lexis 7420 (1st Cir. Apr. 25 it was analyzed by Hambrick was estab- 213 (2d ed. 1961) (describing this as an ex- 2016), a toxic tort case alleging that Acute lished by the evidence; it was not a “gap” ample of the informal “fallacy of accent”). Promyelocytic Leukemia (APL) developed in an expert’s analytical reasoning. The meaning of the sentence is changed from workplace exposure to benzene, the Id. at *9–10. by placing emphasis on the word “fine.”

68 ■ For The Defense ■ September 2016 The fallacy of amphiboly occurs when 2010). In Rosen, the court cautioned that specific causation. The trial court and the one of the statements in an argument has the composition of things may have dif- court of appeals admitted the expert testi- more than one plausible meaning due to ferent properties than the sum of its indi- mony on general causation but excluded it the loose or awkward manner in which cer- vidual parts: regarding specific causation because it was tain words are used. In Boutwell v. State, Here, Plaintiff’s allegations are based found to be unreliable. In affirming, the 719 S.W.2d 164 (Tex. Crim. App. 1985), the on the premise that the use of non-­ Supreme Court of Ohio noted: “The trial Texas Court of Criminal Appeals consid- nutritious oils makes the blend non-­ court’s Daubert responsibilities, however, ered the applicability of the Texas Equal nutritious. Besides the lack of any facts do not end with reliability, because the trial Rights Amendment, referred to as the “pro- to support this transformation, it does court’s gatekeeping function also requires miscuity defense,” to homosexual behavior not logically follow from the fact that in the context of sexual abuse by a male of one oil in a blend does not have the several boys. The court stated: nutritional properties of other nutritious But clearly, a female defendant situated oils, that the blend is rendered devoid of The fallacy of division, similarly to appellant—that is, a female being nutritious. who had engaged in deviate sexual inter- Id. which is the inverse of course with a child 14 years or older who In Moore v. P&G-­Clairol, Inc., 781 F. was of the same sex—would likewise be Supp. 2d 694, 703 (N.D. Ill. 2008), the the fallacy of conversion, denied the “promiscuity” defense under court refused to admit the plaintiff’s §21.10. Thus, appellant’s reasoning pro- expert testimony, stating: “As a matter occurs when the proponent ceeds upon a fallacy of amphiboly: his of logic, products that contain danger- complaint is not that he is discriminated ous chemicals are not, per se, unreason- argues that the individual against on the basis of “sex” in the sense ably dangerous.” of “gender;” but rather, that his “sex” The fallacy of division, which is the components have the act is entitled to protection equal to that inverse of the fallacy of conversion, occurs given heterosexual conduct under the when the proponent argues that the indi- same characteristics as law as stated in §21.10(b). vidual components have the same char- Id. at 169 (emphasis in original). acteristics as the composite product. For the composite product. With each of the fallacies of ambigu- example, the fact that a product may be ity, errors in logic result from a shift in the nutritious overall does not mean that each meaning of a word or phrase. ingredient, standing on its own, is nutri- it to judge whether an expert’s testimony is The fallacy of composition occurs when tious. The court inRosen identified the relevant to the task at hand in that it logi- one reasons mistakenly from the attributes flaws in the plaintiff’s reasoning: cally advances a material aspect of the pro- of a part to the attributes of the whole, or To reason that since a blend of oils is repre- posing party’s case.” when one reasons mistakenly from the sented as being nutritious, if partially hy- Id. at 78. In short, regarding the deter- attributes of an individual member of some drogenated oil is part of the blend, it must mination of relevancy and reliability, collection to the attributes of a totality of also be nutritious commits the fallacy of judges have the responsibility for quality that collection. This is the opposite of the division. Inherent in [p]laintiff’s allega- control, which requires a consideration of fallacy of division, in which one reasons tions is the fallacious reasoning that in or- logical principles. mistakenly from the attributes of a whole der to be part of what is represented to be To be relevant and reliable, evidence to the attributes of one of its parts, or when a “blend of nutritious oils,” partially hy- must be logical. Conversely, “evidence” one reasons mistakenly from attributes of drogenated oil must have the same char- that is fallacious is faulty and inadmissi- some collection of entities of the attributes acteristics of the other oils in the blend. ble. As fallacies frequently appear in plain- of individual entities within that collection. 2010 U.S. Dist. Lexis 43797, at *16–17. tiffs’ rhetorical arguments, defense counsel While both patterns of reasoning are not In litigation it can be expected that must be vigilant to their existence. When always fallacious, caution must be used in there will be some play with the nuances fallacious arguments exist, the first clue using such reasoning. of language or argument. Understanding to their existence will be the presence of An example of the fallacy of composi- fallacies of ambiguity can be useful in ex- some type of “disconnect.” Upon discov- tion, sometimes referred to as “the whole plaining and refuting arguments based ering this “disconnect,” resorting to a list is nothing more than the sum of its parts,” upon rhetorical distortion. of fallacies should reveal more about the is negating the safety or nutritional value fallacy—including its name and defini- of a product based upon the attributes of Conclusion tion. Armed with this information, defense one ingredient in the product, no mat- In Terry v. Caputo, 875 N.E.2d 72 (Ohio counsel should search for reported cases ter how little trace of that ingredient the 2007), the plaintiffs alleged that their ill- and consider reviewing texts and articles product may contain. Rosen v. Unilever ness resulted from mold exposure. To sup- on logic. Those efforts should provide the United States, Inc., No. 09-2563, 2010 U.S. port their claims the plaintiffs sought to ammunition necessary to draft a compel- Dist. Lexis 43797, at *16 (N.D. Cal. May 3, introduce expert testimony on general and ling refutation.

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