DEPARTMENT OF JUSTICE
|DATE:||March 31, 1998 [Updated June 8, 1998]|
|TO:||DOJ File No.: 137420. XCP0095-97 (THE FORCE)|
|FROM:||Robert T. Roth|
|SUBJECT:||Legal Analysis Regarding Substantiation Materials|
Attorney Work Product
Prepared in Contemplation of Litigation:
I have made a preliminary attempt to analyze the evidentiary status of the various materials submitted by ATG in light of the decisions in Daubert v. Merrell Dow Pharmaceuticals, 509 US 595, 113 SCt 2786 (1993) ("Daubert I"), and Daubert II, 43 F3d 1311 (9th Cir 1995)
To this end, I met with Professor Engelking again on February 27, 1998, in his office at the University of Oregon. This memorandum records my understanding of Professor Engelking's comments and our discussion at that time.
Many scientists would not be able to say what makes their work scientific. Aristotle, in The Organon, was the first person known to attempt a statement of what science is. However, Aristotle thought of science as essentially a process of classification. Francis Bacon wrote The New Organon, an outline of the scientific method as he understood it. (Bacon was Lord Chancellor and head of equity courts.) Bacon posited that the scientific method consisted of four stages: 1) observation; 2) hypothesis, or guess; 3) testing the hypothesis; and 4) acceptance of the hypothesis as fact.
In general, Aristotle usually went from observation to conclusion without the intervening stages of a hypothesis and a test. But Aristotle anticipated Bacon in one situation. In his work on classification, Aristotle guessed and then tested his guess with respect to the classification of the sea urchin. Aristotle observed that if the sea urchin should be classified with star fishes, it should have a 5-fold symmetry. His testing then disclosed that the armature for the muscles that operate the teeth of a sea urchin consists of five teeth; this is still referred to as Aristotle's Lantern.
For Bacon, a single experiment would be regarded as conclusive. However, the fact that certain arguments among scientists continued after experiments had been conducted could not be explained by this approach. For example, people who considered themselves scientists continued to argue about whether atoms exist. There was also a continuing debate between the energists and the physical chemists regarding the conservation of energy. Both the conservation of energy and the theory of evolution were controversial in the mid-19th century. Helmholtz put forward the theory of the conservation of force.
Next came Karl Popper's theory of falsification. Popper attempted to explain why people still argued even after experiments had been conducted. This was true of the experiments of Darwin; Mendel; and Joule's experiments regarding the conservation of energy. Popper pointed out that things go wrong in experiments. But more importantly, the results of an experiment are not positive, but negative. Experiments do not prove, but rather, at most, fail to disprove, a hypothesis. We eliminate, that is, call unscientific, a hypothesis which can't be disproved. A hypothesis must run the gauntlet of a variety of experiments and consideration by the scientific community. It may eventually get to the point where, not that the hypothesis is proven, but where nobody bothers trying to disprove it anymore.
Lo's Papers and ATG's Other Documents:
Other people have proposed new stable forms of water. The structure of fluids in water is a major area of study, called the solvation effects of charges in water.
Things tend to become disordered; they must pay an energetic price for the ordering of things. The exchange rate between energy and disorder is called temperature. High temperature favors disorder; low temperature favors order. The structures hypothesized by Dr. Lo might exist momentarily. Then, according to the second law of thermodynamics, the structures should rearrange. Dr. Lo neglects the entropy cost of trying to form stable structures.
Frye and Daubert: Generally speaking, statements may be regarded as scientific truth when they represent the consensus of the scientific community. The textbooks on the structure of liquids and solvation theory disagree with Dr. Lo's findings. Conceivably, Dr. Lo and his colleague might argue that they are the relevant community.
According to Frye, the relevant question is whether the method is generally accepted. This criterion is no longer dispositive, but still has potential relevance post-Daubert.
"Whether the theory or technique employed by the expert is generally accepted in the scientific community" is cited in Daubert II, 43 F3d at 1316, citing Daubert I, 113 SCt 2796-97, as one factor federal judges can consider in assessing admissibility.
In evaluating the ATG materials against this standard, it may be observed, (1) with respect to Lo's papers, that no one in the scientific community looks at water with a transmission electron microscope (TEM). (2) The various experiments purporting to show the efficacy of "The Force" are characterized by an absence of controls, that is, by bad methods. Regarding (3) the papers submitted to show various other effects attributed to IE, these purport to answer the question of whether the purported substance does anything. However, the experiments do not test the hypothesis at issue; they are thus irrelevant.
With respect to Daubert: Dr. Lo's papers are not in the textbooks. Karl Popper's work is emphasized in the Supreme Court's discussion of Daubert. The approach taken by Popper and Zieman applies to all three above-mentioned types of materials. The methodology should have falsification as a possibility. That is, Popper would ask, `Were the tests applied capable of falsifying the hypothesis?" The answer is, not without controls.
Another factor is peer review. The following discussion attempts to place in an appropriate context Dr. Lo's publication of his papers.
There used to be a single primary publication of the physics scientific community; it was called Physical Review, published by The American Physical Society and the American Institute of Physics. This publication was later broken down into Physics Review A and B, or, I: and II. Physics Review A deals with general physics and atomic structure. Physics Review B deals with solid state/condensed matter. Physics Review C deals with a third subject matter. And Physics Review D deals with high energy physics. Another major publication of the physics community is Physics, a British Journal.
Findings such as those of Dr. Lo would normally be published in either A or D, depending upon the researcher's training. In contrast to these major journals, the letters journal is intended for rapid communication. Authors in letters journals may not even describe their methods; these journals are intended to report fast-breaking news. When it is said that a publication in a letters journal has been "peer reviewed for publication," this means it has been reviewed by one or two referees.
The letters journals may be contrasted with methods papers, which include a more extensive methodology discussion.
Dr. Lo's findings are not generally accepted in the scientific community. Have they been subjected to "peer review"? "Peer reviewed" in a letters journal means that a reviewer and an editor went along with the author. This is what happened when Dr. Lo's papers were published in the letters journal Modern Physics Letters B. However, the next stage for a scientific work would ordinarily be to go to a methods journal. Having a press release about a publication is unusual.
There is the question of whether Lo's conclusions can be and have been tested. Dr. Lo's papers might be submitted to show that the hypothesis has been tested. The experiments regarding "The Force" are characterized by an absence of controls; it may therefore be argued that they are irrelevant, in that they do not really test or pertain to any quality of "IE". The various experiments with the "effects" of IE are not a test of the hypothesis. Mary Lidstrom raised the question of testing the elemental chemical composition of the substance; this has not been done.
Another factor in the Supreme Court's discussion is the independent validation of the methodology used. The Daubert decision also emphasizes the significance of "pre-litigation" research, that is, research conducted independently of its party proponent. The "IE" work ATG has produced has arguably all been conducted in response to DOJ's investigation and in contemplation of litigation. Moreover, it appears much was funded by ATG; that is, not conducted independently of its party proponent, and thus "pre-litigation."
The foregoing analysis should be augmented by a review of other observations in my September 9, 1997, December 2, 1997, May 13, 1998, and June 8, 1998 memos to the file, in Structure Probe Technical Report # 34674, and in Professor Engelking's affidavit regarding the first batch of "Force"-related documents. Salient points include the fact that some of Lo's own measurements as presented in his publications contradict his conclusions, the absence of controls which permitted him to characterize his TEM photographs as "IE" (while Structure Probe obtained similar results from tap water), the absence of adequate controls or even clear descriptions of methodology in the papers by Dr. Senkan and others, and the fact that some of the reported experiments either did not test the hypothesis (e.g., results from a gasoline additive used to show the effect of a substance ostensibly evaporated into the air intake system of an engine), produced results so minute as to be negligible, or actually contradict the hypothesis. While a more systematic analysis would be appropriate prior to litigation if there is to be any, there are strong grounds for an in limine motion to exclude much or all of the evidence thus far provided by ATG as methodologically unsound and thus unscientific, and as irrelevant in failing to bear on the hypotheses that "IE" as described in Lo's articles is a real substance or phenomenon and that "The Force" enhances gasoline mileage or engine performance, either by virtue of its purported "IE",content or possibly, at all. I have therefore recommended that at this time, in view of the apparent absence of retail sales of "The Force" or other "IE" products in Oregon or complaints regarding such sales, these findings be placed in the file and the file closed without further expenditure of resources at this time.