TORTINI

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

Whether to Conduct Depositions of Expert Witnesses

June 23rd, 2016

In a Litigation magazine article, Gregory Joseph sets out some strong reasons to consider for not conducting depositions of expert witnesses under the revised 2010 Federal Rules of Civil Procedure (FRCP). See Gregory P. Joseph, “The Temptation to Depose Every Expert,” 40 Litigation 35 (Winter 2014) [cited below as Joseph]. Joseph points out that FRCP 26(a)(2)(B) requires parties to disclose, for all retained expert witnesses, “all opinions” and the “full factual basis” of all their opinions, among other things. The rule is exacting. All opinions includes “a complete statement of all opinions the witness will express and the basis and reasons for them.” FRCP 26(a)(2)(B)(i). And a full factual basis includes “the facts or data considered by the witness in forming” all of the opinions disclosed in the report. FRCP 26(a)(2)(B)(ii) (emphasis added).

Joseph argues that the breadth of the required disclosure, combined with sanctions for retained expert witnesses’s attempting to testify beyond the four corners of their reports, should give lawyers sufficient assurances in many instances to forego conducting depositions of expert witnesses.

Joseph notes that the FRCP creates a presumptive mandatory sanction of exclusion for undisclosed expert testimony. FRCP 37(c)(1).[1]  Joseph offers other arguments beyond the supposed comfort given by the “four corners” rule set out in the FRCP. Joseph at 36-37. First, the deposition may “reopen” discovery by giving expert witnesses opportunities to expand upon the four corners of their reports. Although some courts will limit what expert witnesses can throw over the transom at depositions, a supervising magistrate or district judge may not regard the expansion upon the disclosures in the report as “sandbagging,” and thus fail exclude the arguably new opinions or bases. Joseph cites a few cases in which courts condemned the sandbagging of counsel by the offering of new opinions in depositions, but points out that exclusion is this circumstance is highly discretionary. The court is not required to exclude, and it may permit the new material, or allow the new material with an inadequate amount of additional time in deposition. So taking the deposition has risks.

Joseph argues also that depositions may educate expert witnesses about intended trial cross-examination, and help adversary counsel better prepare direct examination and anticipatory rebuttal. Furthermore, the new protections afforded expert witnesses from discovery into drafts of reports and most communications with retaining counsel take away one of the previous reasons to conduct depositions.

To be sure, some additional areas of discovery may be covered by interrogatories, Rule 34 document requests, or Rule 45 subpoenas directly to the expert witnesses. These non-deposition methods of discovery, however, will not reach valuable topics of discovery such as oral communications between retained expert witnesses and professional colleagues, consulting expert witnesses, the retaining lawyers’ clients, and other persons. The suggested alternative discovery methods also suffer in that they will provoke canned answers, written by counsel, and not the ingenuous, unrehearsed responses of expert witnesses required to give answers directly and without resort to  “privileged” consultation with retaining counsel.

The revised FRCP carve out important areas of inquiry from the new protections against discovery into draft reports and with counsel. Counsel still are permitted to inquire into compensation, the retaining attorneys’ provision of “facts or data” considered by the witnesses, and retaining attorneys’ identification of assumptions “relied” upon by the witnesses. Invoices can, of course, be subpoenaed, but often oral examination is required to discover whether the invoices have been paid, whether they are contingent, or whether payment flows to the personal benefit of the expert witnesses. Inquiring into what “facts or data” were provided by retaining counsel can be attempted by written discovery, but the written responses will likely be hedged and unclear, and the responses will not distinguish which lawyer-provided “facts or data” were actually relied upon.

The FRCP clearly allow discovery into retaining attorneys’ provision of assumptions relied upon by expert witnesses, but clear, unrehearsed answers to questions about what was assumed and relied upon, as opposed to merely considered, are not likely to be forthcoming in written discovery. Furthermore, if there will be any fair opportunity to explore the significance of relying upon counsel’s assumptions, only a deposition will likely allow for the extemporaneous, first-person expression of expert witnesses’ opinions. Questions into expert witnesses’ opinions based upon hypothetical questions that contradict the assumptions given, or into opinions about the level of confidence or knowledge witnesses have about the correctness of the assumptions, are likely to be effective only in face-to-face encounters.

There are important additional reasons for taking expert witness depositions, not addressed in Joseph’s article. Litigation-savvy expert witnesses will often glibly assert that they have “considered” all the relevant studies, data, and facts. If written discovery is propounded to inquire whether a study omitted from the “consideration” list in the FRCP report was not considered, the study, if meaningful, will be added to the list in the written response with a feeble excuse that it was inadvertently omitted from the list. And the omission will likely be judged harmless because the party seeking discovery obviously knew about the omitted study already. Written discovery into what studies, data, or facts were considered but not relied upon will also yield highly rehearsed answers, and interrogatories will not permit inquiries into the fine details of key studies.

The pertinent sections of the FRCP do not require expert witness reports to distinguish what the witnesses have considered from what they have actually relied upon. Written discovery could be propounded, but again, it will not likely yield clear answers such as might be had with follow up inquiry into what was considered but not relied upon, and why was reliance rejected. The deposition upon oral examination has the benefit of permitting follow up questions into why some studies were relied upon for some parts but not others, or were considered but completely excluded from actual reliance. The opportunity to field incoherent, inconsistent rationales for inclusions and exclusions that establish expert witness cherry picking will be lost without the face-to-face encounter allowed by oral examination.

With some courts engaged in retrograde refusal to apply Rule 702 as enacted, some expert witnesses have been encouraged to employ vague, invalid, and unreliable methodologies, such as the so-called “weight of the evidence” approach. Oral examination will be necessary to establish expert witnesses’ weighting considerations, their inclusion and exclusion criteria, and to test their consistency in applying these considerations and criteria, across the entire evidentiary base for conclusions.

Concessions to Be Obtained

Written discovery is not well suited to inquire into general principles of interpreting data and studies, data integrity and validity, and validity of inference.  Interrogatories are too difficult to draft in sufficient detail to permit setting up an examination that will lead to the disqualification of the expert witness under Rule 702.  Obtaining concise, clear concessions about basic methodological principles is crucial to structuring persuasive cross-examinations.  Of course, if the deponent balks at accepting generally accepted principles, then this testimony is filed under Rule 702 motion, rather than trial cross-examination.

Furthermore, written discovery is poorly suited to identify whether expert witnesses have subject-matter weaknesses.  Interrogatories are the wrong discovery tool to conduct pop-quizzes on arcane statistical and scientific methodologies. Lawyers rightfully do not want to get into show-game style quizzes to test expert witnesses’ understanding of the esoteric, but important, methodologies used in the studies relied upon, in front of a jury. Rule 26 reports rarely announce that witnesses have had no meaningful training in statistics and that they have no idea what assumptions were made in various statistical analyses or tests in the studies that they have embraced and relied upon for their opinions.

Expert witnesses have social and professional connections not always apparent from their curriculum vitae, their Rule 26 reports, or their websites. Expert witnesses are not likely, for instance, to disclose that they are Marxists, who believe that corporations are evil and mercenary, and cannot be trusted to tell the truth in litigation.[2]

As noted, the FRCP requires disclosure of facts or data considered, which disclosure is usually inadequate to permit distinguishing what was actually relied upon in forming opinions. But what about opinions considered or relied upon? FRCP does not address reliance upon opinions; nor does Rule 703. Expert witnesses may contend that their opinions are not “based upon” others’ opinions, but that their opinions are strengthened and corroborated by the opinions of others. The FRCP do not specifically call for disclosure of opinions relied upon by retained expert witnesses, and adversary counsel can be trusted to argue that there were no obligations to disclose opinions or the identity of “authoritative” treatises and publications. If there is no entitlement to disclosure, there can be no surprise and prejudice.

Interpreting the scope of the report may not be as clear as Joseph suggests.  Rule 26 reports usually contain some opinions with sufficient breadth and generality that foregoing depositions becomes a game of Russian roulette.  Trial judges may not look kindly upon “scope of the report” objections, made at trial, when the objecting counsel had the opportunity to conduct an examination, and the report language is sufficiently broad to intimate the witness’s opinion at trial. Judges seem to have great hindsight vision, and they may well distrust counsel’s objections as a different sort of sandbagging. An entire strategy of restraint may be sunk by a quick, discretionary ruling on “scope of the report,” which often will favor the proponent of the witness.

Joseph is correct that many depositions fail to accomplish much, but such failures are not the result of how wonderful the revised FRCP are.  Failed depositions are more likely to result from the lack of preparation, creativity and knowledge of counsel in carrying out coherent, effective depositions.


[1] See Primus v. United States, 389 F.3d 231, 234 (1st Cir. 2004); Vaughn v. City of Lebanon, 18 F.App’x 252, 263 (6th Cir. 2001); Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004). See also Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (characterizing exclusion as discretionary, but upholding district court’s exclusion).

[2] Such as may be seen with expert witnesses who belong to the Committees of Correspondence for Democracy and Socialism, a branch of the Communist Party USA, formed in 1992, after the demise of the Soviet Union.

The IARC Announces Water Causes Cancer

June 18th, 2016

Well, drinking water very hot, or other scalding beverages, probably does cause cancer. Earlier this week, the International Agency for Research on Cancer (IARC) issued a press release that one of its working groups had reviewed the data on the carcinogencity of coffee, maté, and very hot beverages, and concluded that maté, which is often served very hot, “probably” causes esophageal cancer. IARC Press Release N° 244, “IARC Monographs evaluate drinking coffee, maté, and very hot beverages” (June 15, 2016). Very hot beverages were rated 2A, for their probably causing human esophageal cancer.

The good news is that “probably” does not mean “more likely than not” in IARC-speak, and the working group was evaluating hazard not risk.[1] IARC classifications do not attempt to quantify the magnitude of risk that may result from exposure to a classified “hazard.” Id. at Note to the Editor. Because all empirical propositions have a probability of being true, somewhere between 0 and 100%, (with P ≠ 0; P ≠ 100%), the IARC classifications of “probably” causing cancer are probably not particularly meaningful.  Everything “probably” causes cancer in this sense. See Ed Yong, “Beefing With the World Health Organization’s Cancer Warnings,” The Atlantic (Oct 26, 2015).

The IARC group’s evaluation of “very hot drinks” accords with the World Health Organization’s Technical Report Series 916 on Diet, Nutrition and the Prevention of Chronic Diseases, which recommends against consumption of scalding hot temperatures. See Anahad O’Connor, “Coffee May Protect Against Cancer, W.H.O. Concludes,” N.Y. Times (June 15, 2016)[O’Connor]. As though people, other than McDonald’s coffee drinkers, needed such a recommendation. The IARC group found no conclusive evidence to implicate drinking cold maté, or maté at temperatures below scalding levels.

An IARC Decision We Can Like a Latte

The Working Group found no conclusive evidence for a carcinogenic effect of drinking coffee, and placed coffee in its category 3, “not classifiable” with respect to carcinogenicity.[2] The working group’s evaluation included over 1,000 observational and experimental studies, including randomized trials, and found no evidence to support the claims that coffee causes human cancer. The IARC also found a good deal of evidence supporting the claim that drinking coffee reduces the risk of various human cancers.

There is a Group 4, for exposures probably not carcinogenic in humans, but in its 45 years of evaluations, the IARC has found only one substance on Planet Earth, which does not cause cancer:  caprolactam.  Perhaps after another 1,000 studies, coffee will reach this exalted category. For now, coffee is unclassifiable with “inadequate” evidence of human carcinogenicity in the IARC’s view.

The New York Times, not particularly expertly, and without supporting citations, declared that the evidence for coffee’s health benefits could not establish actual causation of benefit because the data came from epidemiologic studies.  See O’Conner. This would not be the first time that the New York Times made up things.

In 1991, the IARC evaluated coffee drinking as a “possible” human carcinogen (Group 2B), based upon limited evidence of an association with urinary bladder cancer in case-control studies, and some evidence in experimental animals.[3] This year’s evaluation of coffee as Group 3 thus represents a rare reversal of opinion, in the face of additional evidence, from the IARC.


[1] The IARC Preamble definition of probable reveals that “probable” does not mean greater than 50%. See alsoThe IARC Process is Broken” (May 4, 2016).

[2] See Dana Loomis, Kathryn Guyton, Yann Grosse, Béatrice Lauby-Secretan, Fatiha El Ghissassi, Véronique Bouvard, Lamia Benbrahim-Tallaa, Neela Guha, Heidi Mattock, Kurt Straifon behalf of the IARC Monograph Working Group, “Carcinogenicity of drinking coffee, mate, and very hot beverages,” Lancet Oncology (2016 in press).

[3] IARC, “Coffee, tea, mate, methylxanthines and methylglyoxal,” 51 IARC Monogr Eval Carcinog Risks Humans 1 (1991).

The Webb of Unsophistication in Products Liability Law

May 29th, 2016

The Heart of the Matter

The classic early cases in products liability law were about consumers hurt by consumer products, sold by manufacturers or dealers directly to consumers. The key component of these cases was inequality of bargaining power, of knowledge about latent defects or hazards, and of control over the discovery of latent hazards or defects. American products liability law was created around consumer products.  Just think of Henningsen, Escola, and MacPherson.[1]  These were all consumer products for which the rhetoric about inequality of bargaining, knowledge, and control over design, manufacturing, and latent hazards sometimes makes sense. The paradigmatic model for products liability, however, frequently does not work for the three-way relationship of sales of products to large industrial employers. The model especially does not work when the product is a raw material used throughout a factory, or incorporated into another product.

Many courts have failed to come to grips with the inadequacy of the consumer model for products liability cases in instances of occupational harm to industrial employees.  Courts have been trying to ram this square peg into a round hole since the early asbestos litigation (which perhaps made some sense because there was inequality between Johns Manville and most vendees), but makes no sense when John Manville is itself the purchaser.

The Tangled Webb in California Law

The Webb case received some attention after the California Court of Appeals reversed a trial court’s entry of JNOV for defendant Special Electric on the so-called sophisticated intermediary defense.  SeeCalifornia Supreme Court Set To Untangle Webb” (July 7, 2013); “Big Blue & The Sophisticated User and Intermediary Defenses” (Sept. 27, 2014); G. Jeff Coons, What a Tangled Webb We Weave: Court Imposes Failure to Warn Liability On Supplier to Johns-Manville” (April 2013). Special Electric petition for review, and eventually the California Supreme Court called for full briefing and oral argument in the Webb case.

The wheels of justice grind slowly in California. Special Electric filed its opening brief on the merits, on September 10, 2013. Webb’s widow answered in December 2013, and Special Electric replied in February 2014. Several amici curiae joined the fray in April 2014. Mark A. Behrens filed a brief on behalf of the Coalition for Litigation Justice, Inc., Chamber of Commerce, NFIB Small Business Legal Center, and American Chemistry Council. The Pacific Legal Foundation also filed, as did Elementis Chemicals Inc.

After mulling over the briefs for two years, the California Supreme Court heard argument on March 1, 2016, and then in surprisingly short order, affirmed the intermediate appellate, earlier this week. The Supreme Court’s ruling upheld a Court of Appeal’s decision that reversed a judgment for defendant Special Electric, based upon a jury verdict in favor of William Webb, who was exposed to crocidolite sold by Special Electric, and which caused him to develop mesothelioma in 2011. The Supreme Court’s opinion[2] held that sophisticated intermediary doctrine was a complete legal defense, even potentially for an asbestos supplier, but declined to apply it to the benefit of Special Electric, which had misrepresented facts about crocidolite and offered no evidence that its purchaser was sophisticated about crocidolite asbestos and its unique relationship with mesothelioma. [Slip opinion cited here as Webb.] Webb v. Special Elec. Co., Inc., 2016 BL 163642, Cal., No. S209927, 5/23/16).

The majority opinion[3] fortunately was able to separate the poorly framed and supported defense by Special Electric from the basic tenets of tort law and the sophisticated intermediary defense. To the extent that anyone doubted the validity of the sophisticated intermediary defense, the Webb Court formally adopted the doctrine as the law of California, as set out in the Second and Third Restatements of Tort Law. Webb at 15-16. According to the Court, a defendant may set up sophisticated intermediary doctrine as a complete defense, to failure to warn claims for known or knowable product risks, sounding in negligence or in strict liability, when the defendant supplier:

“(1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and

(2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.”

Webb at 16 (emphasis in original).[4]

As an affirmative defense, the defendant supplier must carry its burden of showing that it adequately warned the intermediary, or that it knew the intermediary knew or should have known of the specific hazard, and that it reasonably relied upon the purchaser to transmit warnings. Id.

On appeal, the California Supreme Court held that defendant Special Electric failed to preserve its entitlement to the sophisticated intermediary defense because “it never attempted to show that it actually or reasonably relied on Johns-Manville to warn end users. Nor did Special Electric request a jury instruction or verdict form question on the sophisticated intermediary doctrine.” Webb at 23.

Alternatively, on the assumption that Special Electric preserved the defense, the Court held that this defendant failed to establish the defense as a matter of law because:

“[a]lthough the record clearly shows Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about the particularly acute risks posed by the crocidolite asbestos Special Electric supplied. In addition, plaintiffs presented evidence that at least one Special Electric salesperson told customers crocidolite was safer than other types of asbestos fiber, when the opposite was true.”

Webb at 23.

The Webb Court reviewed the Tort Restatements’ embrace of the sophisticated intermediary defense in both the Second and Third editions.  The Webb Court noted that the Third Restatement demonstrated the continued validity and vitality of the defense, as had been expressed in the Section 388 of the Restatement Second of Torts.[5] The Court noted and followed the Third Restatement’s recitation of guiding considerations for invoking and sustaining the defense:

“There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.”

Webb at 15 (citing Restatement 3d Torts, Products Liability, § 2, com. i, at p. 30.) Citing California precedent, the Webb Court noted that

“[t]he focus of the [sophisticated intermediary] defense . . . is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.”

Webb at 9-10 (quoting from Johnson v. American Standard, Inc. 43 Cal.4th 56, 72 (2008).  The pertinent legal test is whether a reasonable supplier would have known of the intermediary’s sophistication with respect to the relevant risk. Webb at 20.[6] Of course, the existence of a pervasive regulatory control of risk creation, detection, and mitigation in the workplace would count heavily in this objective test.  “Every person has a right to presume that every other perform his duty and obey the law.” Webb at 21 (internal citation omitted) (emphasis added).

The Restatement factors, however, did not support Special Electric’s invocation of the defense in a case involving:

(1) crocidolite asbestos, one of the most hazardous substances known,

(2) defendant’s affirmative and blatantly false misrepresentations of the relative safety of crocidolite relative to chrysotile asbestos,[7] and

(3) a complete failure of proof that the purchaser, Johns Manville, knew that crocidolite was especially hazardous with respect to the causation of mesothelioma.

Webb at 23-24. Factors one and two were givens for defense counsel, but factor three speaks to unnecessary coyness on the part of the defense.  Showing that Johns Manville was well aware of the extraordinarily great hazard of crocidolite would have been relatively easy to do from past transcripts, articles, speeches, and litigation conduct of the Johns Manville companies. Despite the extreme hazards from uncontrolled asbestos exposures, the Webb case explained that the sophisticated intermediary defense was not per se inapplicable to asbestos cases, and went so far as to disapprove an earlier California Court of Appeals decision that refused to apply the defense in the asbestos personal injury context when no warnings had been given.[8] “Sophistication obviates the need for warnings because a sophisticated purchaser already knows or should know of the relevant risks.” Webb at 17-18.

The Webb case acknowledged that defective design claims against raw material suppliers are incoherent and invalid, whether for the raw material itself, or for downstream design defect claims against for the product with the incorporated raw material. “[A] basic raw material such as sand, gravel, or kerosene cannot be defectively designed.” Webb at 11-12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).[9]

The Webb Court also evinced a healthy disrespect for the notion that tort law is only about spreading risk and compensating injured persons. The Court acknowledged that in some instances, there were competing policies of compensating persons injured by products and “encouraging conduct that can feasibly be performed.” Webb at 2. The Court also acknowledged that there were hazards to warning when none was needed or when the absence of a warning would not be a legal cause of harm:

“Because sophisticated users already know, or should know, about the product’s dangers, the manufacturer’s failure to warn is not the legal cause of any harm. A sophisticated user’s knowledge is thus the equivalent of prior notice. The defense serves public policy, because requiring warnings of obvious or generally known product dangers could invite consumer disregard and contempt for warnings in general.”

Webb at 9 (internal citations omitted) (emphasis added). Furthermore, the sophisticated intermediary defense balances the need for the worker-consumer’s safety with “the practical realities of supplying products.” Webb at 17.

The Webb decision puts California in line with the majority rule that recognizes the validity of the sophisticated intermediary defense, and embraces real-world truth that:

“[in] some cases, the buyer’s sophistication can be a substitute for actual warnings, but this limited exception only applies if the buyer was so knowledgeable about the material supplied that it knew or should have known about the particular danger.”

Webb at 17.[10] The Court noted and agreed with the Restatement Third’s observation that imposing liability upon raw material suppliers for failure to warn can be unduly and unfairly burdensome when such liability would require remote suppliers

“to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.”

Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).

Concurrence

Chief Justice Tani Gorre Cantil-Sakauye, along with Justice Ming W. Chin, concurred in the result, but dissented from the majority’s rationale as overly broad. The concurring justices insisted that a supplier reasonably relies upon its purchaser only when the purchaser has actual awareness of the product’s risks. Webb concurrence at 4. Even this stingier approach noted that one of the purpose of warnings is

“to enable the consumer or others who might come in contact with the product to choose not to expose themselves to the risks presented.”

Webb Concurrence at 3 (citing Restatement3d Torts, Products Liability, § 2, com. i, at p. 30).  In many sophisticated intermediary contexts involving occupational exposures to fumes, vapors, and dusts, workers (consumers) cannot appreciate whether they might come in contact with the product such that they have actual risks unless the sophisticated intermediary measures its specific workplace exposures, given its actual engineering, administrative, and person protection controls.

Commentary

The Webb Court failed to address in any meaningful form how Special Electric could discharge a duty to warn Mr. Webb directly, when it sold blue asbestos to Johns-Manville, which then incorporated that fiber, along with other recycled asbestos into transite pipes. To this extent, the Webb decision carries forward the glib belief in efficacy of warnings, without any evidence or critical thought.

It is hard to imagine an industrial purchaser that was unaware of the special hazards of crocidolite by 1970, and yet Special Electric apparently failed to offer evidence on the issue whether Johns-Manville had such awareness. A court might take judicial notice of Johns-Manville sophistication, but there is not even the suggestion that Special Electric attempted to supplement the vacuous record with a request for judicial notice.

If the California Supreme Court’s recitation of the facts of the case is correct, then we are left with an unflattering inference about Special Electric’s trial strategy and execution.  Perhaps Special Electric was coyly trying to avoid a downside outcome in which it was responsible for 99.99% of the verdict because its blue asbestos was by far the most important cause of Mr. Webb’s tragic disease, a disease that would have almost certainly been avoided had never had exposure to blue asbestos. The propensity of crocidolite to cause mesothelioma is orders of magnitude greater than chrysotile, which by itself may not even be a competent cause of the harm suffered by Mr. Webb.

In the final analysis, the Webb Court correctly adopted the sophisticated intermediary principle as an essential limit to tort liability, but denied its benefit to Special Electric.  The sophisticated intermediary doctrine should not, however, be conceived of as an affirmative defense.  The scope of the rule is defined by the rationale for its existence, and the sophisticated intermediary situation lies outside the realm and rationale of protecting, by warning, consumers against latent hazards.  It is time that courts recognize that much litigation brought to its doors is really the result of labor-management issues within the workplace, and not the doings or responsibility of remote suppliers of raw materials.


[1] See, e.g, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (holding that privity of contract did not bar suit and that product manufacturers could be liable to consumers for injuries); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P. 2d 436  (1944).

[2] See Steven Sellers, “California Ruling Defines Asbestos Supplier’s Duty to Warn,” BNA Product Safety & Liability Reporter (May 24, 2016).

[3] The majority opinion was written by Associate Justice Carol A. Corrigan, and joined by Associate Justices Kathryn Mickle Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger.

[4] See also Webb at 2 (“Under the sophisticated intermediary doctrine, the supplier can discharge this duty if it conveys adequate warnings to the material’s purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies on the purchaser to convey adequate warnings to others, including those who encounter the material in a finished product. Reasonable reliance depends on many circumstances, including the degree of risk posed by the material, the likelihood the purchaser will convey warnings, and the feasibility of directly warning end users.”); Webb at 6 (“[T]he sophisticated intermediary doctrine provides that a supplier can discharge its duty to warn if it provides adequate warnings, or sells to a sufficiently sophisticated buyer, and reasonably relies on the buyer to warn end users about the harm.”). Webb at 17 (“If a purchaser is so knowledgeable about a product that it should already be aware of the product’s particular dangers, the seller is not required to give actual warnings telling the buyer what it already knows.”).

[5] See Webb at 15 (“The drafters intended this comment to be substantively the same as section 388, comment n, of the Restatement Second of Torts.”) (citing Restatement 3d Torts, Products Liability, § 2, com. i, reporter’s note 5, at p. 96; Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170, 190 (Tex. 2004). See also Webb at 9 (citing Restatement 2d Torts, § 388 (b), com. k, at pp. 306-307) (“Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product’s risk”).

[6] Relevant considerations may include the general dissemination of knowledge of relevant risks, the intermediary’s knowledge of those risks, and the intermediary’s reputation for care. Webb at 20.

[7] Webb at 3, 23.

[8] See Webb at 17-18 (disapproving of the holding in Stewart v. Union Carbide Corp., 190 Cal. App. 4th 23, 29-30 (2010)).

[9] See also Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134) (“Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials but rather to the fabricator that puts them to improper use.”).

[10] citing approvingly Cimino v. Raymark Industries, Inc., 151 F.3d 297, 334 (5th Cir. 1998) (holding that raw asbestos supplier did not need to warn asbestos product manufacturer Fibreboard, which was “a sophisticated, expert, and knowledgeable manufacturer” of insulation products, about asbestos risks); Higgins v. E.I. DuPont de Nemours & Co., 671 F. Supp. 1055, 1061-1062  (D. Md. 1987) (exculpating supplier when purchaser was a highly sophisticated manufacturer with knowledge from independent sources, as well as its suppliers), aff’d, 863 F.2d 1162 (4th Cir. 1988).

Credible Incredulity

May 19th, 2016

Has skepticism become a victim of political correctness and adversarial zeal?

In the last century, philosopher Bertrand Russell advanced intelligent skepticism against myriad enthusiams and mindless beliefs, political, religious, and pseudo-scientific. Russell saw unwarranted certainty as a serious intellectual offense:

“The fundamental cause of the trouble is that in the modern world the stupid are cocksure while the intelligent are full of doubt.”

Bertrand Russell, “The Triumph of Stupidity” (1933), Mortals and Others: Bertrand Russell’s American Essays, 1931-1935 , at 28 (1998).  When many American intellectuals were still in their love swoon over Stalin, Russell chastised the Soviet dictator for his betrayal of ideals and his enslavement of Eastern European. Stalinism’s certainty about politics and science was not a virtue, but a grave sin.  Or, in Russell’s words:

“One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision.”

Bertrand Russell, New Hopes for a Changing World at 4-5 (1951).

In the 21st century, ideologues of various stripes have tried to silence healthy skepticism and doubt by claiming that their critics have “manufactured doubt.”[1] This aggression against skepticism and doubt, joined with a biased conception of conflicts of interest, have become part of a concerted campaign to privilege tendentious scientific claims from critical scrutiny.

Philosopher Susan Haack, who has aligned herself on occasion with these politicized acolytes of certainty,[2] recently has pushed back, with a reminder that credulity for unwarranted claims, in all walks of life, is unethical.[3]  Haack’s essay is a delightful effort to clarify what credulity is, and to explore why credulity is an epistemologic vice and a social hazard, as well as the implications for citizens and scientists of living in an evidence-based, not a faith-based world.

Drawing inspiration from the the English mathematician and philosopher, William Kingdon Clifford, Haack has adopted one of Clifford’s bon mots as her motto:

“The credulous man is father to the liar and the cheat.”[4]

Indeed! And credulous judges and juries are the parents to specious claims and shyster lawyers.

Clifford’s essay should be required reading for politicians, judges, regulators, and legislators who evaluate the claims of scientist advocates.  Spurning ethical relativism, Clifford identified the key intellectual “sin” in an evidence-based world:

 “It is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence.”

William K. Clifford, “The Ethics of Belief,” 29 Contemporary Rev. 289, 295 (1877).

Professor Haack should be commended for her fulsome irony for publishing in a journal of one of the world’s more credulous institutions, and for reminding us that credulity is an intellectual vice.


[1] See, e.g., David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (2008); Naomi Oreskes and Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010).

[2] See, e.g.,Bendectin, Diclegis & The Philosophy of Science” (Oct. 26, 2013).

[3] Susan Haack, “Credulity and Circumspection: Epistemological Character and the Ethics of Belief,” 88 Proc. Am. Catholic Philosophical Assn 27 (2015).

[4] citing and quoting William K. Clifford, “The Ethics of Belief ” (1877), in Leslie Stephen and Sir Frederick Pollock, eds., The Ethics of Belief and Other Essays 70, 77 (London 1947).

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.