PhilStatLaw: Infections in the court

Nathan Schachtman appropriately refers to the way in which “dicta infects Daubert” in his latest blogpost Siracusano Dicta Infects Daubert Decisions. Here the “dicta” (or dictum?) is a throwaway remark on (lack of) statistical significance and causal inference by the Supreme Court, in an earlier case involving the drug company Matrixx (Matrixx Initiatives, Inc. v. Siracusano). As I note in my post of last Feb,

“the ruling had nothing to do with what’s required to show cause and effect, but only what information a company is required to reveal to its shareholders in order not to mislead them (as regards information that could be of relevance to them in their cost-benefit assessments of the stock’s value and future price).”(See “Distortions in the Court”)

obiter dicta

  1. A judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.
  2. An incidental remark.

It was already surprising that the Supreme Court took up that earlier case; the way they handled the irrelevant statistical issues was more so.

My question now is this: Doesn’t it encourage the introduction of opinions irrelevant to the case at hand, case X, when those opinions are permitted  to be used as evidence in a subsequent case Y (even though the opinions, being irrelevant to case X, are not supposed to establish any precedent for Y)?  Or am I misunderstanding? I hope Schachtman will weigh in.

Here is Schachtman’s sum-up regarding the case:Memorandum in Support of Separate Pretrial Order No. 8933, Cheek v. Wyeth Pharm. Inc.

In Cheek, Judge Harvey Bartle rejected a Rule 702 challenge to plaintiffs’ expert witness’s opinion.  I confess that I do not know enough about the expert witness’s opinion or the challenge to assess Judge Bartle’s conclusion.  Judge Bartle, however, invoked the Matrixx decision for the dubious proposition that:

Daubert does not require that an expert opinion regarding causation be based on statistical evidence in order to be reliable. Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1319 (2011). In fact, many courts have recognized that medical professionals often base their opinions on data other than statistical evidence from controlled clinical trials or epidemiological studies. Id. at 1320.’

… The Cheek decision is a welter of non-sequiturs.  The fact that in some instances statistical evidence is not necessary is hardly a warrant to excuse the lack of statistical evidence in every case. The truly disturbing gaps in reasoning, however, are not scientific, but legal. Siracusano was not a “Daubert” opinion; and Siracusano does not, and cannot, support the refusal to inquire whether statistical evidence was necessary in a causation opinion, in main part because causation was not at issue in Siracusano.

There are a couple of different cases here; I hope the interested reader will sift through some of the background links.

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5 thoughts on “PhilStatLaw: Infections in the court

  1. Nathan Schachtman


    Dicta for plural. For lawyers, it’s all dicta, but these words are “obiter dicta”; that is, words spoken along the way. Obiter dicta are words that are not necessary to the holding of the case. What lawyers understand, or should understand, is that only the pronouncements of the court that are necessary to deciding the case have precedential value. The reason has to no with the limited nature of judicial power to decide cases, which implies a more general rule, which should be only so broad as to have decided the case. Otherwise, we would believe that the court was legislating. Now, admittedly these distinctions are not the sharpest in the world, but they are still real and important.

    So when Justice Sotomayor wandered into a discussion of causation, she well knew she was creating dicta. She was creating the ammunition for lower courts (and plaintiffs’ counsel) to use in fomenting a rebellion against the holdings in earlier cases, Daubert, Joiner, and others, which have been captured and made part of a statute, Federal Rule of Evidence 702.

    Matrixx Initiatives was a 9-0 (unanimous) decision. There is some language before and after her wayward discussion, which suggests that her colleagues pushed back a little, but they probably wanted to give the junior associate justice some leeway in writing her opinion.

    Now what the lower courts (Cheek case, and the Chantix cases) have done is to cite the Supreme Court’s decision as though it were a holding. That’s wrong, from a jurisprudential perspective, but it happens. The counter is to point out that the language that was invoked in those cases, was dicta, and that it was based upon poor scholarship, and poor legal analysis, both of which were what I set out to show in my posts.

    • Thanks Nathan. But from what you say, I am right to regard it as problematic to allow appealing to material that was not to be appealed to, and encourages tossing in unrelated opinions for sneaky future use. I don’t understand about the rebellion and rule of evidence 702. I will look on your blog.

      • Nathan Schachtman

        To be fair, the problem was invited by the defendant, Matrixx Initiatives, which had some caselaw from the intermediate appellate courts to support its contention that “materiality” for purposes of securities fraud implied withheld information of causation. The Supreme Court swatted the defense argument away very easily, and as you noted, as an investor, you would care about withheld information that could lead to regulatory enforcement or action, which can be taken on much less than a showing of causation. So once causation was removed as an essential showing, the correlative contention that the withheld information must have statistically significant data (which never made sense in the context of adverse event reports) also fell out of the case. Thus, anything the court said about statistical significance, after HOLDING that plaintiffs did not need to allege causation was, as we say, obiter dicta.

        • Nathan. But I just want to limit this to the latest use of the irrelevant opinions, to see if I’ve got it right. Is it not your position that it was wrongheaded*, on legal grounds, regardless of Matrixx’s earlier errors. Even if their contention of what was relevant for securities fraud was initially wrong, they were still talking securities fraud. (The FDA has its own rules for what’s relevant for their assessments, that was never the issue here.)

          *If it is illicit (I’m guessing there’s a proper legal word), why was it not challenged; could it be challenged? I’m just curious.

          • Nathan Schachtman

            The two cases subsequent to the Supreme Court’s decision in Matrixx were both trial court decisions. I suspect that plaintiffs’ cited the Supreme Court’s language, and suggested that it controlled the trial court’s decision in each case.

            Was it illicit? Wrongheaded? Any lawyer of any analytical acumen would know that the language in the Matrixx case, about statistical significance, was dictum. In my opinion, citing language of the Supreme Court, in a brief to a lower court, without pointing out to the lower court that the quoted language was dictum is a sin, venal not mortal, but still a sin. Lawyers should make the distinction; and the risk the ire of judges when they quote language and don’t acknowledge that the language is “dictum.” But judges should independently analyze the cases that they cite in their opinions.


            The trial courts here, in the Cheek case (involving fenfluramine) and the Chantix cases, cited a Supreme Court cases that was a decision on the adequacy of pleadings, not the sufficiency or the reliability of specific evidence. Furthermore, it was a decision on materiality of the withheld information, and everyone on the Court agreed that information not sufficient to show causation was important enough to be material; and therefore causation need not even have been alleged, let alone proved.

            It would be impolitic for me to comment on the judges’ acument here, other than to incorporate by reference my earlier criticisms of the dictum in Matrixx Initiatives. But what you should know is that the process of “sneaking” in extraneous comments into an opinion by the Supreme Court Justices, to be used as a building block for later opinions, is a time-honored tradition. Call it testing the waters for where the author of the opinion may want or hope to take the Court in future cases should the opportunity arise. It is the responsibility of the academic and practicing Bar to let the Court know that it is watching and to “deconstruct” the attempt to manipulate or distort the development of the law.


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