TORTINI

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

Duty of Objectivity for Expert Witnesses – Up North and Abroad

April 19th, 2014

In the United States, we talk of the requirements for admissibility of expert witness opinion testimony; proffered testimony must be relevant and reliable.  If the requirements go unsatisfied, the legal consequence is usually limited to the preclusion of the expert witness’s challenged opinion.  If the opinion is necessary to support the sponsoring party’s claim or defense, the further legal consequence may be the entry of judgment adverse to the retaining party.

A few states have permitted a party to sue its own expert witness for “expert malpractice,” committed in the scope of the witness’s engagement as an expert witness. See, e.g., LLMD of Michigan Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1991). Fewer states permit the adverse party to sue its adversary’s expert witness. Davis v. Wallace, 565 S.E.2d 386 (W. Va. 2002).

In the United Kingdom and Canada, courts impose duties directly upon expert witnesses themselves.  The following enumeration is frequently cited as setting forth the independent duties, owed to the court, by expert witnesses:

“1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.)

3.  An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4.  An expert witness should make it clear when a particular question or issue falls outside his expertise.

5.  If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.  In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6.  If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7.   Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd., (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68 at 81-82 (Q.B.D.), rev’d on other grounds [1995] 1 Lloyd’s Rep. 455 at 496 (C.A.)(embracing the enumeration of duties).

It is unclear, however, what the consequences of breach of these duties are.  Often the sponsoring party may be complicit in the breach, and the harm will be to the court and the adverse party. 

In the United States, perhaps the heavy lifting of judicial gatekeeping, required by Federal Rule of Evidence 702, might be assisted in recognizing these independent duties of expert witnesses.

The duties of expert witnesses, set out in the The Ikarian Reefer, have been generally accepted by courts in Ontario and throughout Canada. See, e.g., Frazer v. Haukioja, 2008 CanLII 42207, at ¶141 (O.S.C.) (Moore, J.) (quoting from Ikarian Reefer).  The Ontario court system decided not to leave compliance with these duties to chance or instructions from counsel. Starting in 2010, Ontario’s New Rule 4.1 of its Rules of Civil Procedure went into effect to define explicitly the duties of an expert witness:

RULE 4.1 DUTY OF EXPERT

4.1.01 (1)

It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

The duty stated in the Ontario Rule 4.1 trumps any contractual or positional obligations expert witnesses may owe to the parties that engaged them. Remarkably, the Ontario courts do not leave to chance whether expert witnesses will understand and act upon their mandated obligations.  Ontario Rule 53,  subrule 53.03(2.1), requires expert witnesses to submit signed acknowledgment forms (Form 53, below), which recite their understand of their duties.

FORM 53

 Courts of Justice Act

 ACKNOWLEDGMENT OF EXPERT’S DUTY

 1. My name is _______________________________ (name). I live at

___________________ (address), in the __________________ (name of city) of _________________________ (name of province/state).

2. I have been engaged by or on behalf of ___________________ (name of party/parties) to provide evidence in relation to the above-noted court proceeding.

3. I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

a. To provide opinion evidence that is fair, objective and non-partisan;

b. To provide opinion evidence that is related only to matters that are within my area of expertise; and

c. To provide such additional assistance as the court may reasonably require, to determine a matter in issue.

4. I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.

 

Date: ___________________  ___________________________                                                                                             (signature)

Relative Risk of Two in Medical Malpractice Cases

April 14th, 2014

Counsel for plaintiffs and defendants in toxic tort cases are well aware of the need to show a sufficiently large relative risk, greater than two, to have sufficient evidence to satisfy the burden of proof on proximate causation between a known causal exposure and a specific plaintiff’s injury.  As Judge Jack Weinstein wrote 30 years ago, “[a] government administrative agency may regulate or prohibit the use of toxic substances through rulemaking, despite a very low probability of any causal relationship.  A court, in contrast, must observe the tort law requirement that a plaintiff establish a probability of more than 50% that the defendant’s action injured him. … This means that at least a two-fold increase in incidence of the disease attributable to Agent Orange exposure is required to permit recovery if epidemiological studies alone are relied upon.” In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785, 836 (E.D.N.Y. 1984), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988).

In toxic tort cases, the risk ratio at issue allegedly results from a higher incidence of the disease in exposed persons compared to the incidence in unexposed persons.  A similar risk ratio issue occurs in medical malpractice cases when a healthcare provider negligently fails to administer a therapy, or fails to administer a therapy in a timely fashion, to the detriment of the plaintiff.  In instances in which the therapy is almost always efficacious, the risk ratio of a bad patient outcome will be very high, and the corresponding probability that the bad outcome would have been avoided by proper or timely therapy will be close to 100 percent.  On the other hand, for some therapies, even timely administration is efficacious in a limited number of cases, less often than the 50-plus percent of cases that would support a proximate cause opinion between the allegedly negligent failure to administer therapy and the patient’s bad health outcome.

Unfortunately, the relative risk issue goes unlitigated in many cases, in New York and elsewhere. One recurring malpractice claim involves the alleged failure to administer clot-busting drugs to ischemic stroke patients.  One such drug, tissue plasminogen activator (t-PA), which was approved by the Food and Drug Administration in 1996, can substantially reduce brain damage if administered within three hours of stroke onset.  Even if administered within the crucial therapeutic time window, however, t-PA will benefit only about 30 percent of patients, and there is no medical “fingerprint”that identifies who has benefitted from the t-PA. In Samaan v. St. Joseph Hospital, 670 F.3d 21 (1st Cir. 2012), the First Circuit acted on its gatekeeping responsibilities to perscrutate the risk evidence and found that it fell short of what is required by Federal Rule of Evidence 702, and the “more likely than not” standard for civil cases. See also Smith v. Bubak, 643 F.3d 1137, 1141–42 (8th Cir.2011) (rejecting relative benefit testimony and suggesting in dictum that absolute benefit “is the measure of a drug’s overall effectiveness”); Young v. Mem’l Hermann Hosp. Sys., 573 F.3d 233, 236 (5th Cir.2009) (holding that Texas law requires a doubling of the relative risk of an adverse outcome to prove causation), cert. denied, ___ U.S. ___, 130 S.Ct. 1512 (2010).

Samaan and the cases cited by the First Circuit are hardly unique; the size of the relative risk issue has helped the defense prevail in other t-PA and similar malpractice cases around the country. Kava v. Peters, 450 Fed.Appx. 470, 478-79 (6th Cir. 2011) (affirming summary judgment for defendants when plaintiffs expert witnesses failed to provide clear testimony that plaintiff specific condition would have been improved by timely administration of therapy); Bonesmo v. The Nemours Foundation, 253 F.Supp. 2d 801, 809 (D.Del. 2003); Joshi v. Providence Health System of Oregon Corp., 342 Or. 152, 156, 149 P. 3d 1164, 1166 (2006) (affirming directed verdict for defendants when expert witness testified that he could not state, to a reasonable degree of medical probability, beyond 30%, that administering t-PA, or other anti-coagulant would have changed the outcome and prevented death); Ensink v. Mecosta County Gen. Hosp., 262 Mich.App. 518, 687 N.W.2d 143 (Mich.App. 2004) (affirming summary judgment for hospital and physicians when patient could not greater than 50% probability of obtaining a better result had emergency physician administered t-PA within three hours of stroke symptoms); Merriam v. Wanger, 757 A.2d 778, 2000 Me. 159 (2000) (reversing judgment on jury verdict for plaintiff on grounds that plaintiff failed to show that defendant failure to act were, more likely than not, a cause of harm). In Michigan, the holding of the t-PA and similar medical malpractice cases has been codified by statute:

“In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.”

Mich. Comp. Laws § 600.2912a(2) (2009).  But see O’Neal v. St. John Hosp. & Med. Ctr., 487 Mich. 485, 791 N.W.2d 853 (Mich. 2010) (affirming denial of summary judgment when failure to administer therapy (not t-PA) in a timely fashion more than doubled the risk of stroke). In one unpublished Kentucky case, involving t-PA, the court seemed to acknowledge the general principle, but became confused as to whether 30 percent, was a reasonable probability. Lake Cumberland, LLC v. Dishman, 2007 WL 1229432, *5 (Ky. Ct. App. 2007) (unpublished) (citing without critical discussion an apparently innumerate opinion of expert witness Dr. Lawson Bernstein).

Despite the success of medical malpratice defense counsel in litigating dispositive motions in t-PA cases, the issue seems to go unnoticed in New York cases. For instance, in Gyani v. Great Neck Medical Group, a stroke victim sued on various allegations of medical malpractice, including failure to administer t-PA.   N.Y. S.Ct. for Nassau Cty, 2011 WL 1430037 (April 4, 2011). The trial court denied summary judgment on proximate cause grounds, and noted that

“[t]he plaintiffs’ expert ultimately opines that the failure to administer t-PA allowed Gyani’s stroke to go untreated and progress to the point of her being locked-in permanently which would not have happened had t-PA been administered.”

From the court’s opinion, it would appear that defense counsel never pressed beyond this conclusory opinion, devoid of quantified relative risk. Behind the curtain of “ultimate” opinion is an expert without a meaningful basis for his opinion.  It is time to pull the curtain.

Asymmetries in the Law Between the Pursuer and the Defender

April 5th, 2014

There are some important asymmetries in the law.  A single defendant is at risk of collateral estoppel, but each individual plaintiff will claim independence lack of privity with the rest of the herd.  Similarly, a defendant in a mass tort may be bound by its cross-examination of a now unavailable witness, but plaintiffs may be able to disavow a previous plaintiff’s examination even though there was a common representation.

Plaintiffs have sought discovery of confidential consulting expert witnesses of a defendant in multi-district litigation, while successfully evading discovery of their own consulting expert witnesses.  Again plaintiffs’ success turns on the lack of privity between and among the many plaintiffs, or because plaintiffs’ counsel indulge the fiction that they were not acting in their role as attorney for claimants.

Expert witnesses for plaintiffs accuse scientists who testify for a defendant of “conflicts of interest,” but conveniently ignore and fail to disclose their own. SeeMore Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010) (Arthur Frank and Barry Castleman); James Coyne, “Lessons in Conflict of Interest: The Construction of the Martyrdom of David Healy and The Dilemma of Bioethics,” 5 Am. J. Bioethics W3 (2005).

Plaintiffs often seek to use evidence of lobbying or “rent-seeking” by defendants.  See Bruce R. Parker and Jennifer Lilore, “Application of the Noerr-Pennington Doctrine to Drug and Medical Device Litigation,”  Rx for the Defense 2 (Fall 1995) (“Typically, plaintiffs will argue that the petitioning activity was designed to minimize or eliminate regulations pertaining to safety and efficacy in order to maximize profits. Plaintiffs’ counsel often assert that such conduct is reckless and supports an award of punitive damages.”). See, e.g., Ruth v. A.O. Smith Corp., 2006 WL 530388 at *13 (N.D. Ohio Feb. 27, 2006); In re Welding Fume Prods. Liab. Litig., No. 1:03–CV–17000, MDL no. 1535, 2010 WL 7699456, *93 (June 4, 2010) (“Trial Template for Welding Fume MDL Cases”; summarizing previous Noerr-Pennington ruling in this MDL, and rejecting defendants’ motion, in part, to bar use of defendants’ petitioning governmental and quasi-governmental entities to consider scientific studies and arguments concerning “threshold limit values,” despite constitutional protection of speech).

Of course, the plaintiffs’ bar lobbies as an organized entity, and perhaps its activities should be imputed to all members of the relevant organizations.  Mutuality might chill plaintiffs’ enthusiasm for attacking defendants for their efforts to influence policy. The plaintiffs’ bar is, after all, the litigation industry.  A few weeks ago, the Association of Trial Lawyers of America (ATLA), now operating under the pseudonym American Association of Justice (AAJ), issued a press release (Mar. 13, 2014), praising a proposed FDA regulation that would undermine preemption defenses for manufacturers of generic pharmaceuticals. The press release conveniently omitted that the proposed regulation praised was one that plaintiffs helped craft. Paul Berard, “Trial lawyers helped FDA with rule opening generic drug firms to lawsuits” Wash. Examiner (Mar. 27, 2014).

Last week, the FDA in response to a Congressional inquiry, acknowledged that high-level officials of the agency met with plaintiffs’ lawyer, Ed Blizzard, and regulatory counsel for ATLA-AAJ, Sarah Rooney, and ATLA’s lobbyist, Michael Forscey. See Jeff Overley, “FDA Chief Questioned Over Staff Meeting With Trial Lawyers,” Law360, New York (Mar. 28, 2014).  The meeting was calendared, in February 2013, at the FDA as a follow up to the Supreme Court’s decision in Pliva v. Mensing, which held that FDA regulations preempted state liability claims against makers of generic drugs. The FDA participated through high-level officials, including its chief counsel, and policy advisors.  Congressman Kevin Yoder interrogated FDA Commissioner Margaret Hamburg as to why a private session with plaintiffs’ lawyers and lobbyists, who are in the litigation business.  The news accounts did not provide an explanation why the plaintiffs’ litigation lobbyists could not have submitted their comments publicly.  Mr. Blizzard’s and the ATLA’s lobbying snow storm was, however, registered on the FDA’s public calendar for February 11-15, 2013.

Jim Beck documents that this is not first time that the plaintiffs’ bar has lobbied for their fee-generating activities with the FDA, for rules that fostered their litigation product.  SeeThe More Things Change, The More They Remain The Same” (April 3, 2014). Perhaps when the plaintiffs next make their argument that the FDA is captured by industry, courts should take judicial notice that the plaintiffs’ bar has a great deal of influence as well.

What Happens When Historians Have Bad Memories

March 15th, 2014

Well when patients have poor recall of their medical treatments, signs, and symptoms, physicians say that they are poor historians. Can one say that about Barry Castleman, plaintiffs’ standard bearer on asbestos state-of-the-art issues?

Back in March 2011, I wrote about a memorandum, dated November 5, 1979, apparently written by Castleman to Dr. Irving Selikoff, “Defense Attorneys’ Efforts to Use Background Files of Selikoff-Hammond Studies to Avert Liability.” SeeThe Selikoff – Castleman Conspiracy” (Mar. 13, 2011). A year later, defense counsel, in a Delaware jury trial before Judge John Parkins, Jr., confronted Castleman with the memorandum.  The exchange was short:

“Q. So, between 1971 and 1992, you’ve had many exchanges with Dr. Selikoff; is that correct?

A. Yes.

Q. And you once asked him to conceal some of the research that he might have done on the 1964 study; is that correct?

A. No. What you’re referring to is a memorandum that doesn’t have any signature and it doesn’t have any letterhead, and was produced in cross-examination about two years ago in a trial. And I have no memory of this document.”

Carlton v. Crane Co., et al., No. 10C-08-216, Delaware Superior Court, New Castle Cty., at p. 152 (June 11, 2012).

After Castleman testified, Judge Parkins issued an order to show cause whether the examining defense counsel violated the rules of professional conduct in his examination of Castleman.  Defense counsel filed a thorough rebuttal to the suggestion that he lacked a good-faith basis for having asked questions about the 1979 memorandum. See Defendant Crane Co.’s Response to Order to Show Cause, Transaction ID 44889066 (June 19, 2012).

In responding to the Order to Show Cause, defense counsel marshaled past testimony given by Castleman, about the memorandum.  In the following 2010 testimony, Castleman acknowledged that he might well have written the memorandum, and that the memorandum reflected contemporaneous concerns of plaintiffs’ counsel Ron Motley and Motley’s requests to Castleman to communicate with Selikoff:

“Q. And you actually wrote a letter to Dr. Selikoff in 1979 wherein you told him Ron Motley, the plaintiffs’ lawyer I work for, knows that you got some information about insulators who said they knew about the hazards of asbestos in the ’40s and ’50s, please don’t let that get out?

A. That is a gross mischaracterization of what I wrote to Dr. Selikoff.

Q. Tell me what the letter said.

A. The memo showed up last summer for the first time. I hadn’t seen this thing or didn’t even remember it. It showed up in cross-examination at some trial last summer. It’s dated 1979 and it — it’s not on any letterheads and not signed, but it looks like something I might have written. I had testified a total of one time at the time I wrote this and I conveyed to Dr. Selikoff one of the plaintiffs’ lawyers with whom I had been in contact, this guy, Motley, was concerned that Selikoff’s medical research records might contain a questionnaire that would include information asking the workers when they first heard that asbestos work was dangerous. And Motley — I conveyed to Selikoff — I am basically conveying Motley’s concern and was saying that if such a thing was turned over to defense counsel, they would use this to get people’s cases dismissed. . . .”

See Transcript of Castleman Testimony, at 753-55, in Farag v. Advance Auto Parts, No. 431525 California Superior, Los Angeles Cty. (Dec. 1, 2010).  Castleman’s testimony further supports the authenticity and his authorship of memorandum, when he explained that he had agreed to communicate with Selikoff because Motley was experiencing a “paranoid fit” over the possibility of the defendants’ obtaining information that would support their defenses of contributory negligence and assumption of risk Id. at 756.

In a Madison County, Illinois, case in 2010, Castleman testified at deposition in a way that appeared to accept his authorship of the memorandum, and his active collaboration with Motley to suppress defendants’ access to discovery of information about the insulators’ knowledge of asbestos hazards:

“Q: Okay. Now, obviously, but you asked Dr. Selikoff, you said, [i]t strikes me as most important to hold these files confidential and resist efforts to get them released to the defendants. Isn’t that true?

A: Yes. I felt that medical research was not something that should just be – - I mean, again, the date of this memo is 1979. I had testified in a total of one trial in my whole life by that time. I was not at all familiar with the legal system. I was very concerned about what Motley told me, because I thought it would jeopardize Selikoff’s ability to do epidemiology studies on workers and identify occupational health hazards, not just with asbestos but with all kinds of things.”

Castleman Deposition Transcript at 26, in Luna v. A.W. Chesterton, Inc., et al., No. 08-L-619, Circuit Court of Madison County, Illinois (July 12, 2010). See also Transcript of Testimony of Barry Castleman at 377, in Benton v. John Crane, Inc., No. 109661/02, Supreme Court of the State of New York, New York County (Oct. 14, 2011) (testifying in response to questions about the memorandum that “I go on to say in the next sentence that it might impair Selikoff’s ability to obtain the cooperation of unions and workers in other studies. . . .”).

In response to this offer of proof for the good-faith basis to inquire about the memorandum, Judge Parkins withdrew the rule to show cause.

==============================

I have been to Madison County, Illinois, only a couple of times.  Some years ago, I had a deposition in Granite City, a double misnomer; it is neither a city, nor does it have any granite.  Some might say that the county court house, not far away, in Edwardsville, Illinois, has also been a misnomer at times.

A recent trial suggests that the truth will sometime come out in a Madison County trial.  Local media coverage of the trial reported that Barry Castleman testified early in the proceedings, and that he denied writing the conspiratorial 1979 memorandum.  See Heather Isringhausen Gvillo, “Plaintiffs expert denies writing letter to asbestos researcher during Madison County trial” (Feb. 21, 2014) (reporting on Brian King, individually and as special administrator of the estate of Tom King vs. Crane Co.) Actually the text of the article makes clear that Castleman did not deny writing the memorandum; rather, he testified that he had no memory of having written it. “I have no memory of writing this and I don’t recognize it.” Id. On February 28, 2014, distancing themselves from Castleman’s poor memory for his own writings, the jury in the King case rejected the plaintiffs’ claims. Gvillo, “Defense verdict reached in asbestos trial” (Mar. 3, 2014).

Castleman’s lapse of memory is perhaps convenient, and maybe even a disability in someone who aspires to be an historian.  In addition to being a “poor historian” of his own career, which was financed by plaintiffs’ counsel, Castleman appears to have taken direction from Ron Motley and his partners, on where to look, and where not to look, for historical support for the plaintiffs’ version of the state of the art. SeeDiscovery into the Origin of Historian Expert Witnesses’ Opinions” (Jan. 30, 2012).

There are steps that could be taken to shore up the authenticity of the Castleman-Selikoff memorandum.  A subpoena to the Selikoff document archive might be in order. Since everyone loves a conspiracy, why not convene a grand jury to inquire into an ongoing conspiracy to suppress evidence?

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.