Nathan Schachtman has an update on the case of U.S. v. Harkonen discussed in my last 3 posts: here, here, and here.
United States of America v. W. Scott Harkonen, MD — Part III
The recent oral argument in United States v. Harkonen (see “The (Clinical) Trial by Franz Kafka” (Dec. 11, 2012)), pushed me to revisit the brief filed by the Solicitor General’s office in Matrixx Initiatives Inc. v. Siracusano, 131 S. Ct. 1309 (2011). One of Dr. Harkonen’s post-trial motions contended that the government’s failure to disclose its Matrixx amicus brief deprived him of a powerful argument that would have resulted from citing the language of the brief, which disparaged the necessity of statistical significance for “demonstrating” causal inferences. See “Multiplicity versus Duplicity – The Harkonen Conviction” (Dec. 11, 2012).
Matrixx Initiatives is a good example of how litigants make bad law when they press for rulings on bad facts. The Supreme Court ultimately held that pleading and proving causation were not necessary for a securities fraud action that turned on non-disclosure of information about health outcomes among users of the company’s medication. What is required is “materiality,” which may be satisfied upon a much lower showing than causation. Because Matrixx Initiatives contended that statistical significance was necessary to causation, which in turn was needed to show materiality, much of the briefings before the Supreme Court addressed statistical significance, but the reality is that the Court’s disposition obviated any discussion of the role of statistical inferences for causation.
Read the full post at Schachtman’s blog.