TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

More Uncertainty About Reasonable Degree of Medical Certainty

December 27th, 2010

For reasons that are not clear, the Reporters for the American Law Institute’s most recent torts Restatement decided to tackle an expert witness issue, the meaning of “reasonable degree of medical certainty” (RDMC). The discussion is tucked away in a comment and the accompanying note, and might easily be missed by readers interested in the restated principles of tort law.  Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28, cmt. e (2010).  The phrase RDMC is usually incanted by an expert witness, or in a leading question by an examining lawyer, to qualify the witness’s opinion about a diagnosis, a causal attribution, a prognosis, or some other medical or scientific issue.  Indeed, the phrase is usually modified for non-medical expert witnesses, for whom it takes the form of “reasonable degree of scientific certainty.”  In any event, the phrase is used in tort cases, but also in criminal, contract, equity, trusts and estate, and other cases.  There is nothing unique about the usage in torts cases; nor is there any substantive relationship between the phrase RDMC and the law of torts. 

The Reporters for the Tort Restatement, however, found a “troubling inconsistency” between the standard of certitude for expert witnesses and the standard for the overall burden of proof in most torts cases, the so-called preponderance of evidence.  To resolve the apparent inconsistency, the Reporters suggest that courts adopt a different standard for expert witnesses to use, a “more likely than not” standard.  For most jurisdictions, this standard will be quite novel. The Restatement’s suggested standard has been the subject of previous critiques.  See James Beck & Mark Hermann, “A Critique of ALI’s Proposal to Bar Expert Testimony to a ‘Reasonable Degree of Professional Certainty’,” 2 West’s Medical Malpractice Law Report 1 (May 11, 2007); James Beck, “ALI Draft Would Abolish ‘Reasonable Degree of Professional Certainty’ Requirement” (April 12, 2007); John Day, “ALI Rejects ‘Reasonable Degree of Medical Certainity [sic]’” (May 18, 2007).

The inconsistency perceived by the Reporters, however, is non-existent.  The standards assess two very different measures – one assesses the level of certainty that an expert witness possesses about an opinion that is necessary to the case, and the other assesses the overall quantity of evidence that the party with the burden of proof has presented for each element of every claim that make up his case.  The two standards are not even close to measuring something that can or would conflict.  The independence of the standards can easily be seen when one realizes that expert witnesses in tort cases testify about issues that carry a burden of proof of clear and convincing evidence, as is often the case for tort cases involving fraud, conspiracy, or punitive damage claims.  The law of crimes typically requires proof beyond a reasonable doubt, but when expert witnesses testify about cause of death or of harm, the law does not conflate the burden of proof with the standard for expert witness certainty, and exclude experts who cannot opine about their conclusions beyond a reasonable doubt. 

Rather than creating a “troubling inconsistency” by interpreting RDMC as different from preponderance of evidence, courts are avoiding a conflation of different standards that would lead to a much deeper, more widespread “troubling confusion” throughout all areas of the law that involve expert witness opinion testimony.  One of the cases cited by the Reporters in their note to Comment e illustrates the error.  Bara v. Clarksville Mem. Hosp. Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002).  The Reporters’ explanatory parenthetical identifies this case as “holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.”  This point is exactly the error made by the Reporters; the trial court involved had confused, just as the Reporters have, the standard for the jury with the standard of certitude for the expert witness.  Adopting a “more likely than not” standard for expert witness certitude would be a wholesale change in the law, and would not avoid any conflict.  Comment e is based upon a basic category mistake.

 The Restatement acknowledges that its proposal is at odds with the law of several states, such as Pennsylvania, where expert witnesses must opine to a “reasonable degree of professional certainty.”  McMahon v. Young, 442 Pa. 484, 485, 276 A.2d 534, 535 (1971).  Accord Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 501, 103 A.2d 681 (1954); Nestor v. George, 354 Pa. 19, 46 A.2d 469, 472 (1946) (medical opinions of possible, or even probable, causes are incompetent to establish causation); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 206, 133 A. 256, 258 (1926) (a “less direct expression of opinion would fall below the required standard of proof, and therefore would not constitute legally competent evidence”); Griffin v. University of Pittsburgh Medical Center-Braddock Hosp., 950 A.2d 996, 2008 Pa. Super. 104, * (2008), alloc. denied, 601 Pa. 680; 970 A.2d 431 (2009); Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1027, 1031 (Pa. Super. 2001); McCann v. Amy Joy Donut Shops, 325 Pa. Super. 340, 472 A.2d 1194 (1984); Schwartz v. Feldman, 196 Pa. Super. 492, 175 A.2d 153 (1961).  See also Beezer v. Baltimore & Ohio RR, 107 F.Supp. 361, 362 (W.D.Pa. 1952), aff’d, 203 F.2d 954, 954 (3d Cir. 1953) (per curiam).  Pennsylvania courts have made clear that this level of certainty is more than a mere probability, and this requirement is especially important in Pennsylvania, where the reliability standard is either unclear or not confidently applied by its courts.

Pennsylvania is certainly not alone in interpreting “reasonable degree of medical certainty” to mean more than a bare probability.  The law of Kansas, like that of Pennsylvania, requires causation to be proven by expert testimony to a reasonable degree of medical certainty.  Johnston v. United States, 597 F.Supp. 374, 412 (D. Kan. 1984).  As the court noted in Johnston, a statistical method that attributes a greater than 50 percent probability to two events being causally related does not satisfy the reasonably certain level of proof.  Id.  Statistical risk calculations used to show causation require a “healthy degree of skepticism,” and should not be relied upon to give a deceptively easy answer to a complex issue.  Id. at 394 – 95.

The Reporters criticize the traditional RDMC standard because it fails to assure the quality of expert witnesses’ “qualifications, expertise, investigation, methodology, or reasoning.”  This is, of course, true but irrelevant.  The RDMC standard is not the only standard that applies to expert witnesses, and there is no reason to believe that it ever was used to as the sole guarantee of adequacy of every aspect of expert witness opinion testimony.  Indeed, as numerous cases have pointed out, the standards of Federal Rules of Evidence 702 and 703 are totally independent of witness qualifications.  Some very expert expert witnesses have been precluded from testifying to dubious opinions.

Comment e also suffers from a temporal incoherence.  The Restatement urges the adoption of “the same preponderance standard that is universally applied in civil cases.  Direct and cross-examination can be employed to flesh out the degree of certainty with which an expert’s opinion is held and identify opinions that are speculative and therefore inadmissible.” As noted above, the preponderance standard is not universally applied in civil cases, and certainly not in criminal cases.  More important, making a standard of admissibility turn on the outcome of direct and cross-examination is incoherent because the opinion must be first admissible before it can be the subject of these examinations.  Leaving the issue to motions to strike would unrealistically require courts and juries to “unring the bell,” which all have heard in the courtroom.

 The Restatement further criticizes RDMC because it “suggests reliance on medical or scientific standards of proof,” and “seems to impose a high threshold for the opinion to be admissible.”  Id. at Comment e.  These criticisms further reveal that the Restatement has wondered into the field of evidence and away from the subject of torts.  The concern implicit in these criticisms, however, curiously suggests that physicians and scientists should not rely upon medical or scientific standards in the courtroom.  (Scientists would rarely make the mistake lawyers make of referring to evidence as “proof.”)  The Restatement, having wondered into the field of expert evidence, and having waived off medical and scientific standards, begs the question as to what standards should be employed by expert witnesses. 

The Restatement’s suggestion that the expert witnesses should be held to give opinions that are “more likely than not” true fails to resolve the problems that the Reporters perceive in the RDMC standard.  Even in civil cases, subject to a preponderance standard for the burden of proof, the Restatement’s comment e would be unworkable. 

First, the certainty requirement applies to all expert testimony, regardless whether proffered by the party with the burden of proof on the issue.  If we were to follow the Reporters’ reasoning, we would have to abandon any standard for expert witnesses presented by the party without the burden of proof, to ensure a concordance between the two standards.  We would also have to raise the burden on expert witnesses when they offer opinions that are essential to satisfying elements of a claim that requires more evidence than a mere preponderance.

Second, expert witness opinion testimony is often based upon assumptions, which the trier of fact may find are not established or which are themselves subject to some level of uncertainty.  The expert witness’s opinion, expressed to a mere probability, will often then fail to be sufficiently weighty to support a verdict because of the uncertainty in the witness’s assumptions, premises, or personal credibility.  For example, a jury, in evaluating an expert witness’s opinion that was barely “more likely than not,” would have to find that the witness was absolutely credible, and that the bases of his opinion were impeccable if they were to vote for the party with the burden of proof.  Similarly, trial courts might well find themselves granting judgments notwithstanding the verdict if expert witnesses gave opinions that barely met the preponderance standard because any doubt about the credibility or witness’s premises would unravel the sufficiency of the case given to the jury.

Third, there are even more far-reaching problems with simply substituting “more likely than not” for RDMC as a threshold requirement of expert witness testimony.  The Restatement Comment implies that expert witnesses can discern the difference between an opinion that they believe is “more likely than not” and another which is “as likely as not.”  On some occasions, there may be opinions that derive from quantitative reasoning, for which an expert witness could truly say, with some level of certainty, that his or her opinion is “more likely than not.”  On most occasions, an expert witness’s degree of certainty is a qualitative opinion that simply does not admit of a quantitative characterization.  The Restatement’s comment perpetuates this confusion by casting the RDMC standard as a bare probability.

Fourth, the Restatement’s Comment suggests that expert witnesses are themselves expert in their own level of certainty, and that they have the training and experience to distinguish an opinion that is 50.1% likely from another that is only 50% likely.  The assignment of precise mathematical probabilities to personal, subjective beliefs is a doubtful exercise, at best.  See, e.g., Daniel Kahneman and Amos Tversky, “Judgment under Uncertainty:  Heuristics and Biases,” 185 Science 1124 (1974). 

Given all the vagaries of “more likely than not,” the Restatement’s novel standard is not likely to bring new clarity to this aspect of expert witness opinion testimony.  Ultimately, Comment e, to Section 28, is a frolic and detour in the law of torts.  Although professionals who find themselves on the witness stand may not recognize the legalistic locution of RDMC, they immediately recognize that there are some opinions that are not sufficiently strongly to act upon in a professional context.   The courts that impose a RDMC standard similarly recognize that the mere conjunction of expertise and opinion is an insufficient warrant to permit a jury to receive the opinion.  See Schachtman, “Reasonable Degree of Medical Certainty” (Dec. 3, 2010).

Back to Baselines – Litigating Increased Risks

December 21st, 2010

Fear and increased risk of cancer in asbestos cases have been considered by the United States Supreme Court, by the United States Court of Appeals, by federal District Courts, by state Supreme and appellate courts, all around the country, but rarely or never with the good sense and confidence exhibited by a lone Common Pleas judge in Philadelphia, back in 1986.  In a decision that has gotten way too little recognition, Judge Abraham Gafni explained the key importance of base rates in litigating risk.  Sutcliffe v. G.A.F. Corp., 15 Phila. 339, 1986 Phila. Cty. Rptr. LEXIS 22, 1986 WL 501554 (1986).  Judge Gafni’s short decision is still required reading for every lawyer who litigates issues of risk in personal injury or medical monitoring claims.

The Sutcliffe case was like many other Philadelphia asbestos cases.  James Sutcliffe had been an insulator, from 1954 to 1974, at the Philadelphia Naval Shipyard, where he personally worked with asbestos insulation materials.  Id. at 341.  After he retired, Mr. Sutcliffe was diagnosed with asbestosis.  Rather than suing the party responsible for his working conditions, the Navy, under the Federal Employer’s Liability Act, Sutcliffe sued the remote insulation suppliers, who had no control over safety at his workplace.  At trial, Sutcliffe’s counsel called Dr. William Atkinson, a local pulmonary physician, as an expert witness to give an opinion about the diagnosis of asbestosis, and an opinion as to Sutcliffe’s increased risk of cancer.  Dr. Atkinson characterized Sutcliffe’s increased risk of lung cancer – approximately three to five-fold increased risk — as a multiple of a baseline, but Atkinson failed to provide the magnitude of the baseline risk.  Id. at 342 – 43.  The court found that this testimony was meaningless without the measure of baseline risk for those who had not been exposed to asbestos, and thus directed a verdict in favor of the defendant on the subject of increased risk of lung cancer:

“Without a statistical reference point, a jury would not be able to measure, with any reasonable certainty, the increase in risk due to the asbestosis.  Otherwise stated, saying that a risk is, for example, three times greater upon exposure to asbestos can convey nothing in the absence of a statement as to the base rate of risk in the absence of such exposure.”

Id. at 342 – 43.  The plaintiff’s failure of proof set off a cascade of logically and legally required consequences.  Without sufficient evidence of increased risk, the jury was also precluded from awarding damages for fear of cancer:

“Whether damages should be awarded for fear of developing cancer and mesothelioma is directly related to the issue of risk. Unless there is a legally sufficient foundation for a plaintiff’s increased risk of harm, a determination of  damages for a plaintiff’s fear becomes subjective. There must be some basis upon which a plaintiff’s fear can be determined to be reasonable. In the instant matter, no such basis exists since the evidence on risk of harm was insufficient and warranted a nonsuit.”

Id. at 346.

Finally, the plaintiff’s omission of evidence of base rates limited the theories that plaintiff could urge in support of his failure-to-warn claim.  Without sufficient evidence of increased risk or fear of cancer, the plaintiff could not properly argue to the jury that G.A.F. Corporation’s warning was inadequate because it failed to mention cancer:

“At the end of plaintiffs’ case, this Court granted defendant’s motion for a nonsuit on the issues of risk and fear of cancer and mesothelioma on the ground that the evidence as to those claims was insufficient. As a result of the nonsuit, plaintiffs’ counsel was prohibited from mentioning the words ‘cancer‘ or ‘mesothelioma ‘ when arguing the inadequacy of defendant’s warning label in his closing argument.”

Id. at 341.

Judge Gafni explained why baseline risk statistics were so important that their absence would result in the dismissal of a large portion of the plaintiff’s case:

“Virtually every substance taken in excess can, of course be harmful to the human body including the most basic nutrients, vitamins and minerals otherwise necessary for human health. Yet, no one would suggest that every conceivable warning must be given as to each substance if the statistical risk is infinitesimal. Consider, for example, whether a warning would be required as to a substance which increased the risk of one exposed to it from one in one hundred million to two in one hundred million. This is a 100% increase in risk, but of minimal importance in actual risk. A jury would be entitled to determine in such circumstances whether the warning as to such a risk is required. If the jury would be merely told in such circumstances, however, that the risk had doubled, without being informed of the actual underlying risk, it could erroneously assume that the individual had, in fact, been exposed to a significant risk.”

Id. at 343-44.

Although Judge Gafni stumbled upon the distinction between statistical and clinical significance, his meaning is clear and his holding continues to be relevant to many so-called toxic tort cases:

“In sum, when attempting to establish increased risk of harm (as plaintiff has attempted to do for both cancer and mesothelioma) by statistical evidence, it is imperative that statistics be given for both the plaintiff and for the average individual (the base rate). One without the other is of no statistical or probative value since it would require sheer speculation as to the missing statistic in attempting to determine the actual increase in risk and whether such a risk is of sufficient significance that failing to warn of it rendered the product defective. Of course, it would also affect the jury’s ability to ultimately determine appropriate damages had that issue been reached. Accordingly, in the absence of appropriate statistical evidence, the Court granted a nonsuit on the issues of risk of cancer and mesothelioma; it was on that basis that plaintiff’s counsel was instructed that reference to such could not be made in his closing argument.”

Id. at 345-46.

Sutcliffe has barely been cited in Pennsylvania, although for a while, its authority helped shape the notion that a jury should be charged to consider the size of an increased cancer risk in fashioning an appropriate, proportional reward in damages.  Another judge on the Philadelphia Court of Common Pleas, Judge Sandra Mazer Moss, for instance, routinely gave an explanatory instruction in which she charged juries to consider the magnitude of the increased risk to make sure that any damages awarded for fear or increased risk of future cancer were reasonably proportional to the net risk that resulted from the alleged occupational asbestos exposure.  For instance, if the jury would award $1,000,000 in an actual cancer case, it should award $10,000, if the net excess risk were 1%.  (This analysis ignores a necessary further reduction to present value.)  Moss’s instruction on increased risk helped cabin excessive damages in increased risk cases in Pennsylvania, during the early 1990s.  Eventually, this jury instruction became unnecessary after the Pennsylvania Supreme Court effectively eliminated damages for fear and increased risk of cancer in asbestos non-malignant injury cases.  Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).

Outside of Pennsylvania, Sutcliffe has rarely been cited.  One law professor, Christopher Guzelian, who has insightfully addressed risk and causation questions, has cited the case in his important works on the law of increased risk and fear of future diseases. See, e.g., Christopher Guzelian, “The Kindynamic Theory of Tort,” 80 Indiana L.J. 987, 1010n.85 (2005); “Liability and Fear,” 65 Ohio State L.J. 713, 816n.312 (2004).  The leading casebooks, treatises, and hornbooks, however, fail to take stock of this case.  Sutcliffe continues to be relevant in asbestos and many other so-called toxic tort cases.

Several other academic authors have addressed base or background rates, but none has seen fit to discuss Sutcliffe.  See, e.g., Aaron Taggart & Wayne Blackmon, “Statistical base and background rates: the silent issue not addressed in Massachusetts v. EPA,” 7 Law, Probability and Risk 275 (2008); Jonathan J. Koehler, “When do courts think base rate statistics are relevant?” 42 Jurimetrics J. 373 (2002); Vern R. Walker, “The Concept of Baseline Risk in Tort Litigation, 80 Ky. L.J. 631 (1992)

Tragically, Chuck Kalinowski, the lawyer who argued the motion for compulsory non-suit in Sutcliffe, has died, and Judge Gafni now teaches and serves as a mediator.  They left behind a valuable legacy, which should not be forgotten as the courts turn their attention to increased risks in other contexts.

Narratives & Historians for Hire

December 15th, 2010

As other writers have noted, historians have testified in a wide variety of cases.  I do not have an exhaustive catalogue of types of cases in which historian testimony has offered, but a partial list would include:

1.  discrimination cases, such as the famous Sears case;

2.  constitutional cases, such as Brown v. Topeka Kansas Board of Education;

3.  deportation cases, such as those involving claims of Nazi activity;

4.  native American property rights cases;

5.  actions between States, and other cases in which historical location of rivers  determine property boundaries;

6.  creationism cases;

7.  tobacco cases, including product liability, states’ attorney generals’ parens patriae, and fraud claims;

8.  product cases, typically those involving long latencies – e.g., asbestos, silica, vinyl chloride

9.  medical research, ethical claims:  radiation and other informed consent cases;

10.  defamation cases against historians themselves.

11.  reparation cases;

12.  criminal cases against terrorists, involving claims of the historical nature of the alleged terrorists’ associations.

Historian testimony presents legal evidentiary issues, especially when the historian testifying acts as an advocate for a cause rather than as a witness whose testimony can be fairly evaluated by the jury.  Historian opinion testimony seems particularly apt to derail in product cases.

Over the years, I have written critiques of historian testimony, with a focus on product liability cases, where historians often serve as cheerleaders for the party that retained them.  See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica)  1, 1-2 (Nov. 2003).  At the recent Fourth Annual International Conference on the History of Occupational and Environmental Health, in San Francisco (June 19 – June 22, 2010), I presented a paper, “Courting Clio: Historians and Their Testimony in Products Liability Litigation,” an abstract of which can be found on-line.  Schachtman & Ulizio, Courting Clio – Historians and Their Testimony in Products Liability Litigation (June 2010).  I have also blogged about the subject previously.  See, e.g., How Testifying Historians Are Like Lawn-Mowing Dogs (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010).

In the current issues of Academe, Professors David Rosner and Gerald Markowitz describe their troubles as testifiers.  See “The Historians of Industry” (November – December 2010).  This most recent attack is the fourth, largely duplicative, publication in which the authors call me out for having the audacity to criticize their history of silicosis in the United States, and for suggesting that their testimony did not properly belong in a courtroom.  I must now constantly check behind doors, under beds, above shelves, for the Pink Panthers –  Rosner & Markowitz.  Who knows where the fifth and subsequent re-publications will appear.  I must say that I learning from their persistence. 

In the past few years, historians who have testified for plaintiffs’ counsel, mostly in tobacco litigation, have nastily attacked their counterparts, historians who have testified for defense counsel in the same litigation.  See, e.g., Robert N. Proctor, “Expert witnesses take the stand Historians of science can play an important role in US public health litigation,” 407 Nature 15 (Sept. 7, 2000); Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate” (Apr. 26, 2010) [last visited Dec. 13, 2010];  John C. Burnham, “In Defense of Historians as Expert Witnesses:  A Rebuttal to Jon Wiener” (Mar. 29, 2010) [last visited Dec. 13, 2010];  Jon Wiener, “Big Tobacco and the Historians,” The Nation (March 15, 2010); Robert N Proctor, ‘‘’Everyone knew but no one had proof’’: tobacco industry use of medical history expertise in US courts, 1990–2002,” 15 (Suppl IV) Tobacco Control 117 2006; Louis M Kyriakoudes, “Historians’ testimony on ‘common knowledge’ of the risks of tobacco use: a review and analysis of experts testifying on behalf of cigarette manufacturers in civil litigation,” 15 (Suppl IV) Tobacco Control 107 2006.

Historians who testify for plaintiffs seem to have a problem with dissents from their positions.  Rosner and Markowitz have extended the attack to those who have argued that any historian opinion testimony may be inappropriate, especially in product liability cases.  Here is their most recent discussion of my writing on the issue:

“The first shot across the bow occurred in 2003, when Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, published an attack on us in Mealey’s Litigation Report: Silica. He accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century.’ He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and said that we should point out that in Communist countries silicosis rates were much higher. ‘They fairly consistently excuse or justify the actions of labor. . . . They excoriate the motives and actions of industry’.

But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact’, he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’

Schachtman’s article seemed to be saying that as long as academics spoke only to one another and had no influence beyond academia, they could be tolerated. But once they begin to affect that wider world, they needed to be put back in their place. All this despite the fact that at the time Schachtman’s piece was published, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”

“The Historians of Industry” (November – December 2010).  Rosner and Markowitz got many of their facts and their amateur psycho-analysis wrong.  They have participated in litigation much more broadly than their anemic disclosure suggests.  They have been listed in many silicosis lawsuits as plaintiffs’ expert witnesses, and they have given deposition testimony, for which they were compensated, in several silicosis cases.  Markowitz has testified in vinyl chloride cases, and the pair has testified in lead paint cases. 

As for my true agenda, I clearly spelled out a legal problem – historians, offering testimony along the lines of what Rosner and Markowitz had been giving in silicosis cases, should not be allowed to do so for several, compelling evidentiary reasons.  As historians, I believe that Rosner and Markowitz can and should be tolerated.  And they should be read by historians outside their close-knit community of labor and Marxist historians, and openly rebutted.  In any event, as historians, Rosner and Markowitz may have a role, even an important role, in helping lawyers find their way to important documentary evidence, but I have serious doubts about whether they should occupy witness chairs.

Although Rosner and Markowitz’ testimony was an easy target in terms of their excesses, errors, and exaggerations, my true agenda was to exclude historian testimony that attempted to substitute for the jury’s own assessment of the primary evidence.  Here is what I actually said:

“The work of Professors David Rosner and Gerald Markowitz raises important issues about the role historians seek to play in the litigation process. In writing about the social, labor, and political history of silicosis, Rosner and Markowitz interpret and draw inferences from an evidentiary display on the credibility, motives, and goals of industry, labor, and government.

Their ‘story’ is often tendentious, and rarely charitable to industry. They fairly consistently excuse or justify the actions of labor, even when those actions lacked contemporaneous (or subsequent) basis in scientific or medical fact. They excoriate the motives and actions of industry, even when supported by sound science, or when the plight of workers was ameliorated. They hint at, or announce, conspiracies to hurt workers. Every effort at industrial cost-savings is denounced; whereas little or no attention is paid to the huge expenditures made, often voluntarily, by industry to improve the health of workers.

Deadly Dust [Rosner and Markowitz’ book on silicosis] is a book that resonates to the passions and prejudices of the last century. The authors argue their case that silicosis results from the valuation of profits over people.  Their thesis ignores the practical, often refractory problem, of motivating or mandating workers to take appropriate measures to protect themselves. Their ascription of motives and their evaluation of causality are often devoid of any empirical support. Their jeremiad against industry’s positions on scientific and medical issues is similarly unsupported and frequently demonstrable false. Witness how silicosis, as a serious, prevalent fatal disease has passed into the dustbin of medical history in the Western World. Compare the rarity of disabling silicosis in the United States with the high silicosis mortality in Communist countries, where profits are outlawed and labor controls the means of production. These observations and comparison embarrass the scholarship and the world view of Deadly Dust, but they receive virtually no acknowledgement.

We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one, discomforting fact. Either directly through their participation in court cases as expert witnesses, or indirectly through opinions offered or sneaked into evidence, the views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation. Their  participation in the litigation process thus raises the question of exactly what is the proper role of historians in litigation.

Upon initial inquiry, historians would appear to have little or no role in the litigation process.  Trial lawyers, in courthouses throughout the common-law world, try cases ranging from automobile wrecks to antitrust conspiracies, by researching, documenting, and adducing evidence of historical fact. At trial, the proof of historical facts relevant to claims and defenses proceeds under a system of rules of evidence, which have evolved and have been refined over centuries in the crucible of judicial experience.

The intrusion of historians into the litigation process thus raises several important problems. First, historians may claims to have  ‘proven’ or  ‘supported’ particular factual assertions, which they could not prove up in a courtroom with competent, admissible evidence. Their participationundermines the legal requirement of ‘primary sources’ for the proof of facts. Various exclusionary rules, ranging from the rule against hearsay to the best-evidence rule, dramatically limit the scope and content of what historians might actually offer at trial.

Second, historians will usually be inappropriate witnesses because they do not contribute anything beyond what trial lawyers may accomplish through competent proofs and argument to the trier of fact. Indeed, much of what historians do, in advancing a particular thesis, is argue from an evidentiary display, which may often be interpreted in various, competing ways. Generally, we have more than enough argument from trial lawyers. How historians could be helpful to the trier of fact is thus far from clear.

Finally, if historians were allowed to offer opinion testimony, much of what they would have to say might fail to satisfy any reasonable criteria of reliability. Although a decade has elapsed since the United States Supreme Court decided Daubert, trial courts have yet to address reliability challenges to historians and their opinions. The absence of published cases seems to result from the rarity of historians as expert witnesses. For the most part, historians are noted in only a few cases, typically involving issues such as state boundary disputes, navigability of rivers andriparian rights, Indian Tribal status, or Nazi deportations. The common themes to these cases are the arcane proofs, serious authenticity issues, and foreign language of the documentary evidence.  None of these distinguishing features is present in historical opinion on the motives, credibility, and conduct of labor or industry on the control of silicosis in American workplaces.”

See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica) 1, 1-2 (Nov. 2003) (endnotes omitted).

Rosner and Markowitz have chosen to attack me for having an agenda, which dares to be different from their agenda – testifying for causes that have political significance to them, and being compensated for doing so.  These authors, however, have failed to respond to my substantive challenges.  Since my article appeared in 2003, several other writers have questioned the indiscriminate admission of historian testimony in cases.  See, e.g., Maxine D. Goodman, “A Hedgehog on the Witness Stand — What’s the Idea?:  The Challenges of Using Daubert to Assess Social Science and Non-scientific Testimony,” 59 Amer. L. Rev. 635 (2010); Maxine D. Goodman, “Slipping through the Gate:  Trusting Daubert and Trial Procedures to Reveal the ‘Pseudo-Historian’ Expert Witness and to Enable the Reliable Historian expert Witness — Troubling Lessons from the Holocaust-Related Trials,” 60 Baylor L. Rev. 824  (2008); William G. Childs, “The Proper Role of Historians as Expert Witnesses,” DRI Annual Meeting (2007).

More important, since I wrote Histrionic Historians in 2003, courts have begun to address the admissibility of historian testimony.  Recently in one of Markowitz’ cases, the trial judge, the well-respected Justice Francis E. Sweeney, ruled that Markowitz’ testimony was improper and had to be excluded.   Quester v. B.F. Goodrich Co., Cuyahoga Cty. Ct. Common Pleas Case No. 03-50939 (Jan. 15, 2009).  Justice Sweeney succinctly stated the problem, and the solution:

“Dr. Markowitz’s opinions as to the conspiratorial actions and motives of ‘the vinyl industry’ are excluded, as both within the ken of lay jurors, and impermissible attempts to introduce expert opinion as to the intent and motive of Defendants.

Dr. Markowitz’s area of expertise is history. Here the basis for his opinions is exclusively the voluminous documentation produced through vinyl chloride injury litigation. Dr. Markowitz neither holds, nor asserts, scientific expertise. In order to put forward admissible expert opinions based upon the documents at issue, those documents themselves must be admitted into evidence. However, Dr. Markowitz’s historic expertise, when limited purely to interpretation of the documents in evidence in this case, invades the ken of lay jurors. He is not qualified, nor offered, to testify as to the state of the art, or to the technical/scientific details in the documentation, but rather opines as to what the documents mean. In this regard, Dr. Markowitz is no more qualified than lay jurors, and as such his ‘conspiracy’ opinions invade the province of the jury.

Moreover, Dr. Markowitz’s interpretation of the documents and resultant opinions are replete with discussion of the intent and motives of ‘the industry’ or the authors of the documents. Such opinion is not appropriate for expert testimony in a court of law. Dr. Markowitz has placed evidence in the record that his book is well-regarded and legitimate historical scholarship, which the Court does not dispute. It is merely that the relevant opinions and scholarly arguments that he makes in his book are inherently ill-suited to the role of expert witness in court proceedings. His opinions related to scholarly arguments for the rationale, intent, and motive of various entities individually and collectively is more appropriately within the purview of counsel in argument rather than the expert witness on stand.”

Id. (footnotes omitted).    ‘’

And that was a judgment from which there was no appeal.

Counter Narratives for Hire

December 13th, 2010

The historians of conscience are at it, again.  Professor David Rosner, of Columbia University, and Gerald Markowitz, of John Jay College, City University of New York, testify for plaintiffs in products liability cases.  They are paid for their troubles, but they do not like the idea that other historians testify for the defendants.  It is another example of those pesky asymmetries that people have in their beliefs about conflicts of interest, access to underlying data, and other issues that surround contemporary products liability litigation.

In the current issues of Academe, Rosner and Markowitz describe their troubles as testifiers.  See “The Historians of Industry” (November – December 2010), at <http://www.aaup.org/AAUP/pubsres/academe/2010/ND/feat/mark.htm>

Their description of their testimonial adventures is noteworthy on several scores:

“Five years ago, one of us received an odd e-mail. ‘Dear Dr. Rosner’, it began. ‘I am writing to introduce you to the Round Table Group, and to notify you of a short-term consulting opportunity which may be of interest. Our client is seeking an historian, highly credentialed, at a prestigious university to perform some historical research, and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) in 1950 to 1980.’

The letter went on to explain how the historian they sought “need not be a subject matter expert” but need only be a good communicator’ who could ‘easily communicate a story to a jury. The e-mail continued in some detail, telling how the process would work: if David were interested, he could send in his résumé, a brief explanation of his expertise, and a statement of his consulting fee. The note continued by informing him about the consulting group: it was a consortium of several thousand professors in management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available to law firms and companies who are clients of the Round Table Group.”

Rosner’s description of this solicitation is fascinating for what it leaves out. 

Rosner acknowledges that this article is essentially a republication of articles that previously appeared in two other journals.  Actually, he failed to acknowledge that this material actually was published previously three times.  Historians apparently are not subject to the same ethical rules as scientists on not gratuitously republishing the same material, over and over.  Rosner and Markowitz’ article in Academe is their fourth iteration of the same theme, with much of the same content.  Perhaps the inference is that historians, like history, are doomed to repeat themselves. See Schachtman, How Testifying Historians Are Like Lawn-Mowing Dogs (May 15, 2010).  The prior publications were:

  1. D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009)
  2. D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009)
  3. D. Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009)

In their earlier publication, Rosner and Markowitz expand on the Round Table Groups (RTG) and its solicitation of Rosner for paid testimony:

“What was amusing, if that is the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead trial and at that very moment both of us were preparing to testify in a major lead trial on behalf of the state of Rhode Island.”

Rosner & Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 273  (2009)`

Now, Rosner and Markowitz’ description of the Round Table Group is fascinating because, if true, RTG engaged in conduct, both incompetent and unethical. The Group, charged by defendants and their counsel, should have known that Rosner and Markowitz were adverse to their clients’ positions in the lead litigation.  A casual reading of their publications would have revealed their quasi-Marxist leanings, and their antipathy towards business interests.  Trying to recruit Rosner and Markowitz as defense historian experts was a bit like recruiting Vladimir Lenin to the University of Chicago economics department.

Furthermore, the RTG solicitation, as described, was potentially unethical.  Lawyers are not supposed to communicate with adverse parties, without the permission or presence of their counsel, and expert witnesses are agents of the party that retained them.  RTG, in addition apparently to not conducting due diligence about the views of the historians it was contacting, should have known what witnesses were already retained or likely retained by the adversary party.

Rosner and Markowitz appear more intent upon calling attention, not to the ethical or competency issues, but to the appearance of sleaziness in recruiting expert witnesses for hire.  The solicitation letter’s suggestion that one need not be a “subject-matter” expert is disquieting, but accurate.  The standard for qualifying expert witnesses is very low, and in some jurisdictions, even the reasonable pretense of expertise suffices to qualify a witness to hold forth with an “expert” opinion in court. Of course, in approaching Rosner, the RTG was attempting to recruit an historian who had written on lead issues.

Curiously, Rosner and Markowitz fail to mention that they have testified numerous times, in silica and in lead cases, and that Markowitz has testified in vinyl chloride cases.  They fail to discuss how they were recruited by plaintiffs’ lawyers, or the terms of remuneration for their testimonial efforts. 

As for the apparent sleaziness of recruiting expert witnesses, consider what appears to be Rosner’s and Markowitz’ role in recruiting faculty and students to write screeds against conservative positions.  Last May, the blogosphere erupted with news of an email sent out by Peter Drier, of the “Cry Wolf Project,” to undisclosed recipients, re “Paid activist research – request for mini-proposals.”  The email was a request for proposals to write propaganda and information pieces for left-wing causes:

“Colleagues:

We are looking for faculty and graduate students (in history, sociology, economics, political science, planning, public health, and public policy) interested in writing short (2000 word) policy briefs for which we can pay $1,000. For specifics, read on…

We are writing to ask for your help in an important project in the battle with conservative ideas. Today, as in the past, the fight to transform American politics and policy takes place on a battlefield in which ideas, narratives, and the construction of a politically driven conventional wisdom constitutes a set of highly potent weapons. Too often conservatives in the Congress and the media have captured the rhetorical high ground by asserting that virtually any substantial, progressive change in public policy, especially that involving taxes on the wealthy or regulation of business, will kill jobs, generate a stifling government bureaucracy, or curtail economic growth.

But history shows that in almost every instance the opponents of needed social and economic change are ‘crying wolf’. We therefore need to construct a counter narrative that demonstrates the falsity or exaggeration of such claims so that the first reaction of millions of people, as well as opinion leaders, will be ‘There they go again!’ Such a refrain will undermine the credibility and arguments of the organizations and individuals who use such dire social and economic prognostications to thwart progressive reform.

To give substance and scholarly integrity to this ‘crying wolf’ argument, we are calling upon historians and social scientists, in training or well established, to use their research skills to identify instances, in recent years as well as in the more distant pass, in which the ‘crying wolf’ scare was put forward by industry executives, conservative politicians, and right-wing pundits before the passage of legislation or the promulgation ofregulations that have become hallmarks of popular and progressive statecraft. On each issue we seek to document three things: First, historical examples and quotes drawn from speeches, legislative testimony, newspaper and other media opinion pieces, think-tank reports, or political platforms which claim that a proposed policy or regulation would generate a set of negative consequences; second, a discussion of how these crying-wolf claims impacted the new laws or regulations as they were passed into law; and third, a well-documented analysis of the extent to which conservative and special interest fears were or were not realized during the years and decades after the new laws or regulations went into effect.

 This work is sponsored by the San Diego-based Center on Policy Initiatives and funded by a grant from the Public Welfare Foundation. Donald Cohen of CPI, Peter Dreier of Occidental College, and Nelson Lichtenstein of UC Santa Barbara constitute the ad hoc committee now  administrating this initiative.

Based on some of the policy areas listed below, we solicit one page proposals for the kind of short studies outlined above. If we think the proposal promising, we will then ask the applicant to develop a larger policy brief, perhaps 2,000 words in length. It should be well documented and scrupulously accurate. We will pay $1,000 for each brief that meets these standards. We hope that many of these become the basis for opinion pieces designed to run in the mainstream media, on line, on the air, or in the press.

We will be focusing on the following policy areas.

We will be looking for the following things in each case study/policy brief:

  1.  Taxes and public budgets
  2.  Labor market standards
  3.  Food, tobacco and drug health and safety
  4.  Environmental protection: air, water, toxics, etc
  5.  Workplace safety
  6.  Financial regulation
  7.  Consumer product safety
  8.  Local issues (i.e. inclusionary housing, building code standards, etc.)

Proposals should be sent to Donald Cohen at dcohen@onlinecpi.org.

Please feel free to forward this RFP and/or to send ideas, references and proposals.

Sincerely,

Peter Dreier, Donald Cohen, and Nelson Lichtenstein”

And guess who were listed among the members of Cry Wolf’s Project Advisory Board? 

Gerald Markowitz, and David Rosner!!

I wonder whether they were paid $1,000 to write their piece in Academe.  If so, what easy money to recycle their triplicate 2009 publications.

The Drier email raised conservative hackles and hyperbolic criticisms in the blogosphere, but it is hard to see what is wrong with writing papers to rebut what one believes is factually or politically wrong.  See BREAKING NEWS: WOLVES IN SHEEP’S CLOTHING? CRY WOLF PROJECT: ACADEMIC INTEGRITY FOR SALE: DEM ACTIVISTS BUYING UP POLICY PAPERS TO COUNTER CONSERVATIVES IN MEDIA POWER PLAY http://theenterprisereport.typepad.com/news/2010/06/breaking-new-dems-activists-buying-up-policy-papers-to-counter-conservatives-in-media-power-play.html .

Although I do not see the Cry Wolf Project as necessarily undermining academic integrity, I do believe it raises some interesting issues.  First, for me at least, I find the analogy to what the Round Table Group did in soliciting Rosner, interesting and compelling.  The Cry Wolf Project did not seem to focus its solicitation on those academics particularly qualified and suited to write on their topics of interest.  Furthermore, the Cry Wolf Project folks were interested in soliciting faculty and students to write pieces of pre-determined positions and conclusions, which seems somewhat at odds with the open-minded, free inquiry that we, perhaps idealistically, hope goes on at colleges and universities.  Indeed, the Drier email, with hot air in its sails from Rosner and Markowitz, seems a LOT like the RTG’s solicitation of Rosner, in the lead paint litigation.  And where did the money come from to fund these earnest academicians?

Finding Rosner and Markowitz at the heart of the Cry Wolf Project, after their repeated, supercilious criticisms of the Round Table Group, and of defendants in litigation, is an irony too sweet to be overlooked. 

Crying wolves, indeed.