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Uk Legal Approach to Disease Causation: Examining the Role for Epidemiological Evidence

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Uk Legal Approach to Disease Causation: Examining the Role for Epidemiological Evidence UK LEGAL APPROACH TO DISEASE CAUSATION: EXAMINING THE ROLE FOR EPIDEMIOLOGICAL EVIDENCE By Jyoti Ahuja A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY School of Law College of Arts and Law University of Birmingham September 2016 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract The main aim of this thesis is to advocate a more scientiDi.ally informed approa.h towards epidemiologi.al eCiden.e in disease litigation. It analyses the Hudi.ial s.epti.ism about epidemiology in UK tort law, and Dinds that the myth of s.ientiDi. .ertainty lies at the heart of the deCaluation of epidemiology as proof of spe.iDi. .ausation. It tra.es mis.on.eptions about epidemiology to broader mis.on.eptions about s.ien.e as a whole Min.luding medi.al s.ien.e and diseaseN, and .onfused legal approa.hes to .ausation. To eOplain why legal obHe.tions to epidemiology are erroneous, the thesis .lariDies fundamental aspe.ts of s.ien.e and disease .ausation that lawyers need to better grasp. ,.ientiDi. reasoning is inherently probabilisti.. Further, medi.al resear.h indi.ates that disease .ausation is usually multifa.torial and sto.hasti.. Rigid and deterministi. Pbut for’ Ruestions are thus fundamentally unsuited for assessing disease .ausation. The mismat.h between legal and medi.al .ausal models maSes .ourts resort to normatiCe, Pba.Swards’ .ausal reasoning or haphaTard eO.eptional approa.hes to disease .ausation, where the most difDi.ult dilemmas around .ausation arise. This thesis argues that courts need a better test for causation for disease that can take a..ount of probabilisti. s.ientiDi. and epidemiologi.al eCiden.e, and suggests one su.h prin.ipled approa.h. Epidemiology .an be inCaluable in su.h an assessment of disease causation. Acknowledgments First and foremost, I owe an enormous debt of gratitude to my superCisor Dr. Claire McIvor, who has been a sour.e of support and inspiration both personally and a.ademi.ally, eCen before this thesis began, and throughout it. ,he is responsible for sparSing an abiding loCe for tort law when I was a graduate student, and later for inspiring my interest in the interfa.e between law and medi.ine. Claire has also fa.ilitated my attendan.e at .onferen.es and meetings with eOperts in forensi. s.ien.es, statisticians, and practitioners in disease litigation. I would like to thank Claire for haCing more faith in me than I sometimes had in myself, and for tea.hing me so mu.h. I am also grateful to the ,.hool of Law at the UniCersity of Birmingham, where I was a postgraduate teaching assistant for a signiicant duration of this research. The School, and many indiCidual .olleagues, haCe been in.redibly supportiCe during my resear.h. The ,.hool also proCided me with grants to attend and present my resear.h at international .onferen.es on law, s.ien.e and epidemiology. I would parti.ularly liSe to thanS Moira Wright, who proCided mu.h en.ouragement and support during difDi.ult periods of this thesis. I am Cery grateful to Paul Bleasdale YC at No5 Chambers, for taSing an interest in this thesis, and spending many hours of his Caluable time helping me a.Ruire an insight into the pra.ti.al difDi.ulties of .ompleO disease litigation. Paul Sindly shared many interesting thoughts and a.ademi. literature, and these dis.ussions shaped ideas that appear in some parts of this thesis. ThanSs are also due to eOperts in Carious different Dields in.luding statisti.s, epidemiology and medi.ine, who dis.ussed my worS and proCided further .larity, parti.ularly Professor Mauri.e Zeegers, Professor Colin AitSen and Dr. Jonathan Punt at No5 Chambers. The support of my friends and family has been .entral to the writing of this thesis. I would liSe to thanS my parents for always haCing en.ouraged my a.ademi. interests, my father for proCiding support and a pea.eful refuge during the writing_Ip, to my Ms.ientistN brother Anil for eOplaining the Un.ertainty Prin.iple and for his .omputer wiTardry, and to my sister Renu for her help in the inal stages. Thanks are also due to the friends who proCided mu.h understanding, and pra.ti.al and emotional support throughout this time: espe.ially to Malli.a, Matt, BaCita, AleO, ,aCitha and aiba. Most of all, I would liSe to thanS MadhaC, ,id and Nandita, who put up with me through the difDi.ult period, and proCided me with time, spa.e, endless .ups of tea, nourishment and en.ouragement. I am grateful for these, as well as for all the pra.ti.al help in the Dinal stressful stages (including my unending technology crises)! Table of Contents Introduction …………………………………………………………………………… 1 Chapter One: Epidemiology and its current status in UK Tort Law….…………13 1. What is epidemiology: aims, s.ope and impa.t cccccccGcccGcG.cc=d 1.1. Contribution to medi.ine and healthccccGccccccG.cccc;0 1.2. Limitations and .on.eptual issuesccccccccccccccGcc;e 2. Epidemiology in UK CourtroomsccccccccccccccccG.cG.cGcGcG.26 2.1. Judi.ial per.eptions of epidemiologycccccccccccG.ccGc;f 2.1.1 McTear v Imperial Tobacco LtdccccccG.ccccG.ccG2f 2.1.2 Sienkiewicz v GreifccccccccccccccG.ccG.cG.cG.e2 2.2. U, Hudi.ial approa.hes to epidemiologyccccccccccGccceg e. Mis.on.eptions about epidemiology:ccccccccccccccccccccg0 e.1. PEpidemiology .an only show asso.iations, neCer .ausation’.ccg2 3.2. ‘Population studies, are irreleCant to spe.iDi. .ausation’cccG.cgg e.e. PEpidemiologists infer .ausation from RR Calues, and RRh2 is .ausation on the balan.e of probabilities’cccccccccccG.ccgd 4. Fa.ilitating legal .larity about the Calue of epidemiology: the importan.e of .learer understanding of s.ien.e and disease .ausationcccccccccccccccccccccccccccG.ccGccccc[2 Chapter Two: Science and the law: The legal myth of scientific certainty……..57 1. The law_A.ien.e diCidecccccccccccccccccccccccG.cccG.62 1.1. MagniDied impa.t on disease litigationcccccccG.ccccG.c>5 1.2. Unrealisti. legal eOpe.tations from s.ien.e.ccccccccccG66 1.e. )ard and soft s.ien.es:the ‘long shadow’ of physi.s ccccG.cGi1 1.g. The impli.ations for disease .ausationjcccccccccG.cccii 2. Legal errors stemming from myths of s.ientiDi. .ertainty: eOtreme attitudes towards s.ientiDi. eCiden.e.ccccccccccccccccccccif 2.1. The di.hotomous attitudes towards s.ientiDi. eCiden.e in .iCil and .riminal lawccccccccccccGccGccG.cd0 2.2. OCer_Caluing or deCaluing testimony due to eOpert Pstatus’cccGccccccccccccccccccccccccccccG.cde 2.e. Failure to distinguish between fa.t and opinion testimonycccccccccccccccG.cccccccccccccG.ccd6 2.4. Erroneous legal criteria for reliability of scientific eCiden.eccccccccccccccccccccccccG.cccccG.f1 3. How Scientists Make Inferences: scientific reasoningccccccccccccccccccccccGccccccccccGfe e.1. What is s.ien.ejcccccccccccccccccG.ccccccf5 e.2. Philosophies of s.ien.eccccccccccccccccccG.cfi. e.2.1. Indu.tiCis8ccccccccccccccGccGfd e.2.2. Refutationis8cccccccccccccGcc=0e e.2.e. Consensus and Naturalis8ccccccccG105 e.2.g. Bayesianis8ccccccccccccccccG106 e.e. Re.on.iling the philosophiesccccccccccccGccccG10f !e.g. )ow s.ientists maSe inferen.es: .ommonalities between legal and s.ientifi. reasoningccccccccccccccGcccccccG.110 4. ,.ien.e and eCiden.e in the analysis of disease disputescccccGcG.115 g.1. Deterministi. and Probabilisti. Models of Causation in S.ien.ecccccccccccccccccccccccccccccccG116 4.2. The Calue of an un.ertain s.ien.e: the rationale for s.ientifi. eCiden.e in legal de.ision-maSingcccccccccGccccccc=1d Chapter Three: Disease Causation: Causation in Law, Causation in Medicine, and a call for congruence……………………………………….………….……..124 1. Causation in tort law: obstacles to the proper application of . scien.eccccccGcccccccccccccccccccccccccccGc=e1 1.1. NormatiCe assessment of fa.tual .ausationccccccccc=e1 1.1.1 Conflation of fa.tual .ausation and legal causation.ccccccccccccccccccGccc=e5 1.1.2. Causation is not eRuiCalent to liability: the inflated role of .ausation in the liability analysis.cccccccccccccccccccG.cG.cG1ef 1.1.e. Redu.ing the role for normatiCity..cccG.c=g2 1.2. The problem with ne.essity_9ased tests for disease .ausationccccccccccccccccccccccccccGccGcG1gg 2. Medi.al eCiden.e about disease .ausation: the multifa.torial, . c! stochastic nature of diseasecccccccccccccccccccccG.c=gi 2.1. keneral diffi.ulties in studying the effe.ts of toOinsccG.cc=gf 2.2. aariable indu.tion and laten.y periodscccccccccGcc=51 2.e. ,ingle_.ause Cersus multifa.torial models of disease causationccccccccccccccccccccccccccG.cG.cc=5g 2.g. The under-appre.iated role of sto.hasti. fa.tors in disease causationccccccccccccccccccccccccccG.cGccG156 3. kreater integration between legal and medi.al .ausation: how the . c law gets the science wrongcccccccccccccccccccccGcc=5f Chapter Four: The but-for test, and exceptional tests for causation……………166 1. The traditional approach to factual .ausationccccccccccccc=i2 2. The ‘eOceptional’ tests for fa.tual .ausation..cccccccccccccG1ii 2.1. The Pmaterial .ontribution to inHury’ (BonningtonN testccccccccccccccccccGccccccc=id 2.1.1. Initial formulationcccccccccccccG1id 2.1.2. Inconsistencies, further applications and eOtensions of Bonnington……………cccccccc=d1 2.2. The Pmaterial .ontribution to risS’ test Mthe !PFairchild’ principle)cccccccccccccccccccccGcG.c=di 2.2.1. Initial Formulationccccccccccccc=di 2.2.2. Inconsistencies, further appli.ations and eOtensions of the Fair.hild testccccccccccccccccGccGc=f0 2.e.PDoubling of the RisS’ MDORN testcccccccccG.cGcccGc=f6 2.g. Problems in disease litigation highlighted by the eO.eptional testsccccccccccccccccccG.cccccG.cG1ff 2.g.1.
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