Streptococcus pneumoniae can cause middle ear infections. Middle ear infections can cause erysipelas (a bacterial skin infection). Streptococcus pneumoniae can cause erysipelas. Erysipelas can cause cellulitis. Cellulitis can cause bacteremia. Bacteremia can cause septicemia. Septicemia can cause pneumonia.

That’s an quite a stack of cans when you’re trying to prove that a death from pneumonia was probably caused by a failure to appropriately treat a case of erysipelas caused by Streptococcus pneumoniae; especially when (a) neither plaintiffs decedent’s middle ear infection nor her erysipelas was ever diagnosed as having been caused by Streptococcus pneumoniae; and, (b) despite more than 207,000 (as of today per published studies of Streptococcus pneumoniae, ear infections, erysipelas, cellulitis, bacteremia and pneumonia, no one has ever reported a case of a skin infection caused by Streptococcus pneumoniae that conquered the tower of cans needed to produce a case of pneumonia. In fact, a number of those cans have never been observed to come in the Streptococcus pneumoniae variety – i.e. the cans exist but they’ve always involved a different bacterium. On the other hand, there’s a mountain of studies showing that Streptococcus pneumoniae is commonly found in the upper airways of healthy people, that it sometimes invades the lungs and that from there it can enter the bloodstream. Nevertheless, citing “pure science” the Michigan Court of Appeals held that plaintiffs expert’s stack of cans was admissible.

Estate of Beverly Kay Garcia v. West Shore Medical Center, though cloaked in paeans to science and Daubert, is one of the most aggressively anti-science / anti-Daubert opinions that I’ve ever read. Yet it redeems itself by providing good examples of the bad arguments to which judges resort when they come up against the scientific revolution’s central tenet: “science is the belief in the ignorance of experts.”

Though the theory espoused by plaintiffs’ expert has never been tested or replicated the appellate court held those shortcomings to be irrelevant to the issue of admissibility. Wrapping “replication” in scare quotes the court makes the following straw man argument: “No reputable physician or scientist we can imagine would infect a patient’s skin with streptococcus [sicpneumoniae, fail to treat …” etc. Two things. First, no experiment can ever be repeated exactly anyway; the ceteris paribus condition being aspirational at best. Second, Richard Feynman didn’t have to build another Challenger and blow it up in order to replicate the properties of the space shuttle’s O-rings when exposed to freezing temperatures. Get it? The real question is whether Streptococcus pneumoniae has the ability to do something that it has never been observed to do; i.e. to scale each can in the tower of cans stacked by plaintiffs. Plaintiffs produced no animal studies nor anyin vitro human skin studies suggesting that their theory might be true. They couldn’t even show that the bacterium had the genetic machinery needed to mount the expedition.

Next up is the purpose of scientific publishing and here the court gives us an especially bad argument. The question that arises once you learn plaintiffs’ expert has a novel theory is: why haven’t you published it? To deal with that awkward question the court redefined the expert’s theory from one about discovery of a heretofore unknown general property of Streptococcus pneumoniae to one about a unique and likely never to be repeated manifestation of that property; something like “the bacterium has this ability when you have someone like decedent, whose disease manifested like decedent’s, was treated like decedent and had the same outcome as decedent.” Thus recast, the court concluded that it’s “hardly surprising” that the theory wasn’t published as it was “unlikely to be of interest to the medical community, given the rarity (one hopes) of inadequately treated erysipelas.”

The obvious problem with this argument is that it makes the ability to climb the tower of cans not the result of some law of nature but rather the result of a unique set of circumstances confined to the unreachable past. That makes the theory unfalsifiable and thus pseudoscience.

The not so obvious problem is that “[e]rysipelas is a common and severe infection where the aetiology and optimal management is not well-studied“. As of this evening there are over 2,200 articles in PubMed containing the word erysipelas. A brief review of abstracts reveals erysipelas to be a problem worldwide prompting much debate about its cause and the best way to treat it. If plaintiffs’ expert really does know the answer there are thousands of patients desperate for that knowledge. The fact that he doesn’t share it outside the courtroom probably says all that needs to be said about his theory.

But that’s not all that needs to be said about Garcia. The court also has a peculiar take on peer review. It deems as peer reviewed three articles that say when strung together (1) “Streptococcus pneumoniae can cause a wide variety of clinical symptoms … by hematogenous spread”; (2) [b]acteria … from hematogenous spread find their way to the lung … Once there, a combination of factors (including virulence of the infecting organism …) may lead to bacterial pneumonia”; and, (3) “pneumonia” appears on a list of “possible” complications of erysipelas. Thin gruel and yawning analytical gaps for sure but I was intrigued. A search, first for the papers by name and then by authors in online science libraries, turned up none of them.

Eventually I realized that they were nothing more than Medscape summaries. Medscape is a part of WebMD and all of their summaries, including the ones used by plaintiffs’ expert, are covered by the following disclaimer: “Your use of [our] Services is at your own risk. Without limiting the foregoing, we, our licensors, and our suppliers make no representations or warranties about the following:

The accuracy, reliability, completeness, currentness, or timeliness of the Services or information contained therein.

If Medscape doesn’t want your doctor making medical decisions on the basis of their summaries what makes the Michigan Court of Appeals court think it’s a good idea?

Then there’s that bit about “pure science”. The sentence reads: “Here, we deal with an issue more closely akin to pure science than to epidemiologically-proven relationships.” Yikes. Apparently word that correlation (the business of epidemiology) does not imply causation hasn’t made its way that far north yet. Worse of course is the idea that the purest form of science can be found in the pronouncements of credentialed deep thinkers whose only methodology is reason. They string together bits of facts to fashion a compelling narrative. Just like lawyers. And maybe that’s why so many judges find their arguments persuasive. The fatal flaw, as we’ve written so many times, is that you can’t reason about what you don’t know about and we still know so very little about nature. Playing off an article in today’s CELL, how would you reason about the role of retrotransposons in leukemia if you didn’t know retrotransposons existed and if the mechanism by which they act conflicted with your beliefs about the mechanisms of leukemia? Pure science is the hard work of figuring out how LINE-1 retrotransposons affect evolution; it’s not stacking cans.

There are other bad arguments in the opinion but they’re of the usual variety. The court topples the – we’re trying to find “absolute truth” down here at the courthouse – straw man in one paragraph and chides defendant’s experts for not having any scientific articles saying you can’t stack cans so high in another (you’d think that 207,000 observations with zero sightings of plaintiffs’ Tower ‘O Cans would count for something). Those are just side shows though.Garcia is ultimately part of a troubling project that’s been underway a few years now.  One which has as its goals establishing and fortifying Junk Science of the Gaps redoubts where plaintiffs can hide from Daubert.