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.