The Simon Singh court case had its preliminary hearing on the 7th and the news was very bad for Singh.
The two key decisions made by the judge are reported by Jack of Kent here.
The passage from the article in question is this:
"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."
The judge ruled that this passage is not "comment" but statement of fact. Second he ruled that "bogus" means deliberate and targeted dishonesty. Singh maintains this was not his intended meaning (he just meant the BCA was being reckless advocating treatments for which no evidence), but the judge has decreed that is the meaning - the meaning on which the case will turn: Singh was claiming the BCA were actually being dishonest, rather than just, say, stupid and reckless.
I do find this a very peculiar reading of Singh. Look, for example at the following piece by Robert Park (link below) about "bogus science". Park clearly is not suggesting that those promoting bogus science are necessarily dishonest (though some are of course). His criteria for bogusness are not criteria for dishonesty.
The seven warning signs of bogus science.
This author also clearly is not suggesting deliberate and targeted dishonesty when talking about the "bogus science of second hand smoke".
Yet the judge has now declared that by "bogus" Singh meant deliberate and targeted dishonesty. As a result, it is hard to see how Singh can win.
So, be very careful how you use the expressions "bogus science" and "bogus treatment", for the legal precedent has now been set, and you may be sued. Perhaps "bullshit science" and "bullshit treatment" are safer (following Penn and Teller).
Obviously there will need to be a whip round to support Singh.
Saturday, May 9, 2009
Thursday, May 7, 2009
On Being Manny.
As some of you may have noticed, Manny Ramirez was suspended for 50 games today for violating Major League Baseball’s Joint Drug Prevention and Treatment Program (the “MLB Program”). According to reports, Ramirez does not plan to appeal the suspension, but I will go out on a bit of a limb here and suggest that we may be hearing a bit more about this story in the next several days. So, as you prepare for the onslaught of Manny coverage and ponder the impact this might have on Brett Favre’s potential un-retirement, here are some of the basic questions raised by this story, with a few answers. Please add your own thoughts, questions, and answers in the comments.
1. Did Ramirez test positive for a banned substance? Apparently yes, but while many of the articles floating around the internet today are claiming that Ramirez was punished because of the positive test, the NY Times is reporting that the suspension was not triggered by the test itself. According to the Times,
2. Why is he being suspended for 50 games? HCG is specifically listed as a banned performance enhancing substance in the MLB Program. A positive test for HCG, or any other banned performance enhancing substance, would have triggered an automatic 50 game suspension. However, even absent a positive test sufficient for the automatic suspension, as was apparently the case here, the MLB Program permits the Commissioner to discipline a player for “just cause.” The evidence found in Ramirez’s medical files was apparently sufficient to provide Bud Selig with just cause to suspend him.
3. How many Manny Being _____ jokes will this incident spawn? There’s no telling. So far, I have seen “Manny Being Medicated,” “Manny Being Barry,” “Manny Being Sketchy,” and “Manny Being Pregnant.” I have high hopes for the efforts to come from Jon Stewart and the NY Post.
4. Could Ramirez have filed an appeal? Yes, the MLB Program provides players with a right to appeal to an arbitration panel. And, unlike the strict liability policy used by the NFL, the MLB Program permits the arbitration panel to review the Commissioner’s “just cause” determination and to overturn a suspension if the player can prove that his “test result was not due to his fault or negligence.” The player “cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the ‘positive’ test result.”
5. Why isn’t Ramirez filing an appeal? The most likely answer is that he knew the appeal was unlikely to be successful and he wants to start the clock on the 50 day suspension so he can get back on the field for the second half of the season. (Note: “That’s just Manny being _____” is also an acceptable response to this and all questions that inquire into Ramirez’s motivation for doing anything).
6. Why is it likely that his appeal would have failed? Ramirez does not deny taking the banned substance. Here is his statement: “Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy.” Players have long been warned that they should consult league drug administrators before taking medication or over-the-counter supplements to ensure they are not unintentionally ingesting a banned substance. It is unclear what type of evidence Ramirez would have needed to present to prove that he was not at fault or negligent, but it is highly unlikely that proving that his doctor failed to properly check the banned substance list (as, perhaps, opposed to proof that the doctor sabotaged or defrauded him) would have been sufficient.
7. What is the fastest land animal? The cheetah.
8. Why was Ramirez taking a female fertility drug? According to Yahoo! Sports, the drug was prescribed to address Ramirez’s erectile dysfunction. (Insert your own joke here).
9. If Ramirez had a legitimate medical need for the drug, why is he being punished? Players are permitted to take a prohibited substance for legitimate medical reasons as long as they get prior approval from the Independent Program Administrator of the MLB Program. As the MLB Program states, a player “authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption(“TUE”)….A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance.” Apparently, Ramirez never received—or, from all reports today, requested—a TUE.
10. Is Jose Canseco the smartest man alive? Probably not, but he did predict that it “is most likely, 90%,” that Ramirez was one of the players that tested positive for performance enhancing drugs in 2003. Of course, if Ramirez is telling the truth, he only “recently” started using a banned substance and has otherwise been performance-enhancing-drug-free during his career.
11. How bad is this for baseball? Well, on the one hand, pretty bad. The two highest paid players in baseball have now admitted to using banned substances. And, of the 8 active or recently retired home run leaders (Bonds, Griffey Jr, , Sosa, McGwire, Palmeiro, A-Rod, Thome, and Ramirez) all but 2 (Griffey and Thome) have been tied to some form of steroid use. On the other hand, the league can argue that this proves that the drug testing policy does work (ie, it catches “cheaters”) and Congress doesn’t need to get involved (or get any more involved than they have already been). It also sends a fairly strong message to other players in the league—if you are caught, even if you are a superstar, you will be suspended.
12. I have Ramirez on my fantasy baseball team. Can I sue him? Well, first I'd recommend that you try trading him to one of your friends who doesn’t sit in front of a computer all day and may not have heard the news. Doctors are usually a good bet. If not, I hope to cover that issue (and the slightly more serious issue of whether the Dodgers, fans, etc., have any legal recourse) in the next few days.
1. Did Ramirez test positive for a banned substance? Apparently yes, but while many of the articles floating around the internet today are claiming that Ramirez was punished because of the positive test, the NY Times is reporting that the suspension was not triggered by the test itself. According to the Times,
Results from urine samples provided by Ramirez showed traces of substances that raised concerns among baseball officials but it was unclear if it was enough to suspend him, according to people in baseball briefed on the matter. The officials investigated further and found evidence in Ramirez’s medical files that he was using Human Chorionic Gonadotropin (H.C.G.), a fertility drug for women that has been known to be used by athletes to generate the body’s production of testosterone after steroid use.
2. Why is he being suspended for 50 games? HCG is specifically listed as a banned performance enhancing substance in the MLB Program. A positive test for HCG, or any other banned performance enhancing substance, would have triggered an automatic 50 game suspension. However, even absent a positive test sufficient for the automatic suspension, as was apparently the case here, the MLB Program permits the Commissioner to discipline a player for “just cause.” The evidence found in Ramirez’s medical files was apparently sufficient to provide Bud Selig with just cause to suspend him.
3. How many Manny Being _____ jokes will this incident spawn? There’s no telling. So far, I have seen “Manny Being Medicated,” “Manny Being Barry,” “Manny Being Sketchy,” and “Manny Being Pregnant.” I have high hopes for the efforts to come from Jon Stewart and the NY Post.
4. Could Ramirez have filed an appeal? Yes, the MLB Program provides players with a right to appeal to an arbitration panel. And, unlike the strict liability policy used by the NFL, the MLB Program permits the arbitration panel to review the Commissioner’s “just cause” determination and to overturn a suspension if the player can prove that his “test result was not due to his fault or negligence.” The player “cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the ‘positive’ test result.”
5. Why isn’t Ramirez filing an appeal? The most likely answer is that he knew the appeal was unlikely to be successful and he wants to start the clock on the 50 day suspension so he can get back on the field for the second half of the season. (Note: “That’s just Manny being _____” is also an acceptable response to this and all questions that inquire into Ramirez’s motivation for doing anything).
6. Why is it likely that his appeal would have failed? Ramirez does not deny taking the banned substance. Here is his statement: “Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy.” Players have long been warned that they should consult league drug administrators before taking medication or over-the-counter supplements to ensure they are not unintentionally ingesting a banned substance. It is unclear what type of evidence Ramirez would have needed to present to prove that he was not at fault or negligent, but it is highly unlikely that proving that his doctor failed to properly check the banned substance list (as, perhaps, opposed to proof that the doctor sabotaged or defrauded him) would have been sufficient.
7. What is the fastest land animal? The cheetah.
8. Why was Ramirez taking a female fertility drug? According to Yahoo! Sports, the drug was prescribed to address Ramirez’s erectile dysfunction. (Insert your own joke here).
9. If Ramirez had a legitimate medical need for the drug, why is he being punished? Players are permitted to take a prohibited substance for legitimate medical reasons as long as they get prior approval from the Independent Program Administrator of the MLB Program. As the MLB Program states, a player “authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption(“TUE”)….A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance.” Apparently, Ramirez never received—or, from all reports today, requested—a TUE.
10. Is Jose Canseco the smartest man alive? Probably not, but he did predict that it “is most likely, 90%,” that Ramirez was one of the players that tested positive for performance enhancing drugs in 2003. Of course, if Ramirez is telling the truth, he only “recently” started using a banned substance and has otherwise been performance-enhancing-drug-free during his career.
11. How bad is this for baseball? Well, on the one hand, pretty bad. The two highest paid players in baseball have now admitted to using banned substances. And, of the 8 active or recently retired home run leaders (Bonds, Griffey Jr, , Sosa, McGwire, Palmeiro, A-Rod, Thome, and Ramirez) all but 2 (Griffey and Thome) have been tied to some form of steroid use. On the other hand, the league can argue that this proves that the drug testing policy does work (ie, it catches “cheaters”) and Congress doesn’t need to get involved (or get any more involved than they have already been). It also sends a fairly strong message to other players in the league—if you are caught, even if you are a superstar, you will be suspended.
12. I have Ramirez on my fantasy baseball team. Can I sue him? Well, first I'd recommend that you try trading him to one of your friends who doesn’t sit in front of a computer all day and may not have heard the news. Doctors are usually a good bet. If not, I hope to cover that issue (and the slightly more serious issue of whether the Dodgers, fans, etc., have any legal recourse) in the next few days.
Who's Responsible for Collapse of Cowboys' Practice Facility?
Earlier this week, I wrote a column on SI.com on questions of responsibility for the tragic collapse of the Dallas Cowboys' practice facility. Below is an excerpt.* * *
The second and more worrisome area for the Cowboys is tort law and specifically Texas law on negligence. Negligence refers to unreasonable behavior, be it the form of carelessness or inattentiveness.
Whether the Cowboys behaved negligently could be examined from multiple perspectives. Here are a few:
• Did the Cowboys construct an adequately safe facility for the typical weather conditions found in Irving, Texas, this time of the year?
• How typical or atypical were the specific weather conditions experienced by the facility when it collapsed? If the stadium was designed and constructed to withstand winds in excess of 100 miles per hour, does its failure to do so suggest substandard maintenance on the part of the facility's operators, the Cowboys?
• How much warning did the Cowboys have about the inclement weather May 2, and would a reasonable employer in that situation have cancelled practice?
• Did any Cowboys' personnel have knowledge or insight that the five-year-old facility could have been at risk of collapsing during stiff winds. If so, did the team do anything with this information?
• Did the injured persons have notice about the structure's apparent shortcomings -- could the injured persons have been comparatively negligent for their own injuries? (Texas, like most other states, uses a system of comparative negligence, meaning if a plaintiff is partly responsible for his/her own injury, he or she cannot recover for the percent of damages attributable to the his or her own negligence).
* * *
To read the rest, click here. I appreciate several writers discussing the column, including Charleston School of Law Professor on Torts Prof Blog, John-Jacques Taylor of the Dallas Morning News, and Mile High Report. Also, for more torts-talk, Harvard Law School Professor Jon Hanson and I recently published our law review article Situationist Torts.
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