TORTINI

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

In Queue for the Q

January 1st, 2017

All right, this has nothing to do with law, evidence, or statistics, but what a great day for New York and the Upper Eastside. Today, the “Second Avenue Line,” an extension of the Q subway line opened for business.

The local radio stations announced that the MTA would give away free subway day passes at 11 a.m., at the new 86th street station. Even before the hour, a queue formed of locals eager for a free first ride on the Second Avenue line. At 11:15 a.m., Congresswoman Carolyn Mahoney arrived. She did not greet anyone in the queue; rather, she planted herself in front of TV cameras to which she made kissy faces and self-congratulatory noises. Of course, the MTA has little or nothing to do with the federal government, and the rationale for her presence was curiously absent. Mayor DeBlasio, who lives but four blocks away in Gracie Mansion, however could not be bothered to show up. No doubt he was still in bed, and nursing a hang over.

Not only did Mahoney did speak to anyone in the queue, going to the Q, her remarks for the TV and radio media were whispered into microphones. Standing about four feet away from her, I could barely hear a word she said. Surely no one behind me heard her, and she clearly did not care. Mahoney had greater audiences in mind, and no apparent interest in actually interacting with her constituents. Perhaps she was hung over from New Year’s Eve festivities.

With Congresswoman Mahoney were her minions, who started to hand out the coveted free passes, but not to the people who had peacefully assembled and patiently waited in line. Because the TV cameras set up around Mahoney, her minions had to hand out cards close to her and to the cameras so that the TV audiences would see the handouts as Mahoney’s largesse. There was a visually impaired woman at the front of the line, with her guide dog, Kudo, but they were ignored by Mahoney and her aides, as well as by the media. Finally, in a Bonfire of the Vanities moment, as Mahoney started to drift away, a boisterous woman pushed her way in front of the cameras, while exclaiming that she wasn’t being pushy, because, after all, she had bona fide press credentials. So the TV cameras shifted to her, and she, a media person, was then interviewed by the media. Where was Tom Wolfe to capture this wonderful New York moment?

Guide Dog Kudo Leads the Way as First Dog Rides the Second Avenue Line on New Year’s Day, 2017

Finally, at noon, the police tape was unceremoniously pulled away, and the Second Avenue line was opened to the hoi polloi. The subway cars were not new, but were appropriately clean for the occasion. The first downtown train today on the new Second Avenue line left from 86th Street, amid great fanfare and cheering. When the subway reached 72nd Street, the conductor held the train for almost 15 minutes due to traffic on the line. Huh? I suspect that the conductor wanted the passengers to have that real MTA experience.

The subway stations at 96th, 86th, 72nd, and 63rd streets all had that wonderful new subway station smell, almost as good as a new BMW. And each of these four stations has become a wonderful museum of public art, each worth an MTA card for the price of admission. See Muoio, “New York’s long-awaited Second Avenue subway features some incredible artwork” (Dec. 30, 2016). I will leave the exhibits for the art critics to describe, except to say that the 86th, 72nd, and 63rd street stations have become outstanding artistic tributes to New York City and its residents. Thankfully, there was no sign of any likeness of Donald Trump.

A hundred years late, the Second Avenue subway has arrived. It does not go as far as it should, but perhaps Governor Cuomo will take a page out the Robert Moses playbook and use the stub as leverage to get the whole thing done. The Governor seems to have the right stuff to get infrastructure programs completed. If infrastructure were up to Mayor DeBlasio, we would still be waiting for the Second Avenue line along with the resurrection of Robert Moses himself.

More Ancient Document Epistemic Nihilism

December 30th, 2016

Man-Bats and Woman-Bats have populated the moon. It’s a fact.

Man- and Woman-bats playing at a lunar resort in 1835

As Daniel Capra has pointed out, newspapers can qualify for ancient documents and an exception to the rule against hearsay. Daniel J. Capra, “Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule Exception to the Hearsay Rule: Fix It Before People Find Out About It,” 17 Yale J.L. & Tech. 1 (2015). Newspaper articles older than 20 years, found in a place where you would expect them, such as the library or an on-line archive, are admissible for their truth. Ammons v. Dade City, Florida, 594 F. Supp. 1274, 1280 & n.8 (M.D. Fla. 1984) (citing pre-Federal Rules of Evidence case, Dallas County v. Commercial Union Insurance Co.,286 F.2d 388 (5th Cir.1961) (upholding admissibility of 58 year old newspaper articles to illustrate the scope of the ancient doctrine exception), and post-Rule cases, Bell v. Combined Registry Co.,397 F. Supp. 1241, 1246, 1247 (N.D.Ill. 1975) aff’d 536 F.2d 164 (7th Cir. 1976) (admitting newspaper articles into evidence under Federal Rule of Evidence 803(16)).

In August 1835, The New York Sun ran a series of six articles that announced and described the discovery of interesting life forms on the moon, including unicorns, two-legged beavers, and most important man-bats. Also women-bats; all frolicking among giant crystals, flowing rivers, and lush vegetation. See Andrew Grant, “Great Astronomical Discoveries Lately Made by Sir John Herschel, L.L.D, F.R.S, &c. at The Cape of Good Hope. [From Supplement to the Edinburgh Journal of Science] New York Sun (August 1835). 

Dr. Grant was described as a colleague of the then famous astronomer Sir John Herschel, but alas, the author noted by the Sun never existed. And the Edinburgh Journal of Science had long been defunct well before 1835, when the articles ran in the Sun. The articles are often attributed to a Cambridge-educated journalist, Richard Adams Locke. Locke supposedly was satirizing a popular religious writer, Reverend [sic] Thomas Dick, whose books described extraterrestrial life, including billions of inhabitants on the moon. Of course, clerics are used to making things up or accepting ancient documents as Gospel truth.

Today the incident is known as the Great Moon Hoax, which shows that fake news has been with us for a long time, perhaps forever. Matthew Goodman, The Sun and the Moon: The Remarkable True Account of Hoaxers, Showmen, Dueling Journalists, and Lunar Man-Bats in Nineteenth-Century (2008)

You may wonder whether the newspaper articles, found in places where you would expect them, could count as evidence in a courtroom today for man-bats. And woman-bats. The Sun has never retracted its series on Man-Bats, and the paper is now defunct.  There is no one alive today who had the opportunity to observe the lunar surface through a high-power telescope in the 1830s. Perhaps the opponent of this evidence could call an expert witness on hoaxes to offer an opinion that the series of articles were, in his opinion, a fabrication. Of course, many hoaxes persist. Maybe we should do away with a federal rule that would give life to these fantastic creatures.

Man-bat with lunar volcano in background circa 1835

Epistemic Nihilism and Ancient Documents

December 28th, 2016

This year, the Judicial Conference Advisory Committee on Evidence Rules proposed abrogation of the current “ancient documents” exception to the rule against hearsay, Rule 803(16). The proposal would, if adopted, become effective on December 1, 2017. See James A. King & Kirsten Fraser, “Say Goodbye to the ‘Ancient Documents’ Rule,A.B.A. Trial Evidence (Feb. 17, 2016).

Under the Federal Rules of Evidence, an old document, one over 20 years old, found in a place where one would expect to find it is treated as “authentic.” The finder of fact, judge or jury, may accept the document for what it purports to be simply because of its age and the manner of its discovery. Rule 901(b)(8). The Federal Rules, however, go further and permit the document, authenticated as a so-called “ancient document,” to be accepted for the truth of the statements it contains. Rule 803(16).

The rationale offered by the Deans of Evidence Law for this remarkable exception to the rule against hearsay is that old documents predate the legal controversies in which they might later be used in evidence, and that we might not have any other admissible evidence relevant to events in the distant past (greater than twenty years). “[A]ge affords assurance that the writing antedates the present controversy” wrote the Federal Rules of Evidence Advisory Committee. Fed. R. Evid. 803(16) advisory committee note.

Pithy and pathetic. The proffered rationale was not valid when Rule 803(16) was initially drafted or promulgated, and it is not valid today. Old does not suggest or equate with reliability, and the present controversy is not the only source of bias and error in past statements that happened to be put in writing.

First, contrary to the conjecture of the common law, many documents were and are created with a view to influence potential controversies decades later. Mergers, acquisitions, and divestitures of companies are often governed by documents that explicitly acknowledge controversies that could stretch into the distant future.

Second, sometimes the exact motivation to falsify, fabricate, or fudge is not exactly the same as later will exist in later litigation, but it is similar. So when a young patient misrepresents his smoking history to a physician, he may simply be trying to avoid a disapproving lecture from his healthcare provider. Years later when he has developed lung cancer, and he is trying to blame anything but smoking in a lawsuit, he will rely upon the distorted report of his tobacco consumption. Of course, in many other situations, the motive to create misleading documents will arise from the expectation of the possibility or probability of future litigation over intellectual or real property rights, insurance contracts, etc.

Professor Daniel J. Capra of Fordham Law School, for many years the Reporter to the Judicial Conference Advisory Committee on Evidence Rules, has not been shy about the slim to none justification for Rule 803(16). In a podcast interview with Professor Ed Cheng, Capra laid out the case against Rule 803(16), and its evanescent rationale. See Excited Utterance website, Daniel Capra, “Electronically Stored Information and the Ancient Documents Exception” (Aug. 22, 2016). Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence (Aug. 2015). Capra had previously deconstructed Rule 803(16) in a law review article, with the usual scholarly apparatus of footnotes and review of historical sources. Daniel J. Capra, “Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule Exception to the Hearsay Rule: Fix It Before People Find Out About It,” 17 Yale J.L. & Tech. 1 (2015) [cited as Capra].

As Capra puts it, the justification for Rule 803(16) was “never very convincing in the first place,” Capra at 1, 5, and “a radical and irrational hearsay exception – an error of the common law,” Capra at 11. The equating of a document’s authenticity with the trustworthiness of assertions contained within the document is “curious.” Capra at 9. Curiously, Capra balks at complete abrogation.

The law professor may have well said that the rule is capricious. Still, on gossamer grounds, Capra argues to retain the rule for hardcopy old evidence, but to abandon it for electronically stored information. Capra seems to buckle under the prospect of abrogating a rule, which leads him to “split the baby.” As trenchant as Capra’s critique is, most of his defense of retaining the Rule for hardcopy documents is as unsupported as the original Rule 803(16). Capra, for instance, suggests that “the likelihood of finding a hardcopy document that is twenty years old and also relevant to an existing litigation is quite small.” Capra at 5. Capra offers no empirical evidence for this startling assertion. Similarly, Capra claims that Rule 803(16) is rarely invoked, but he cites only to the paucity of cases that discuss this exception. Capra at 12. Capra thus claims negative evidence for the infrequent use, but the failure of judges to discuss this rule in published decisions may well be the result mechanical simplicity of the rule, which rarely leads to post-trial motions and appeals.

The original rational for Rule 803(16), and a rallying cry for its retention, is the supposed necessity to have some evidence to make out the events of times past. The objectors, however, generally fail to make out their case that the residual hearsay rule (Rule 807), as well as the business record and other exceptions, do not accomplish the twin goals of providing some evidence of past events while maintaining some semblance of reliability in fact finding.

The Rule Committee’s proposal has been met with an organized campaign from the lawsuit industry, both through the self-aggrandizingly named American Association for Justice (AAJ) and many of its members.. A rough count suggests that about 82 out of 218 comments came from asbestos plaintiffs’ lawyers. See, e.g., Comment from Robert Jacobs, American Association of Justice; Comment from Larry Tawwater, American Association for Justice (AAJ); Testimony of Marc P. Weingarten; Comment from Robert Paul, NA; Comment from Mark Gallagher, NAComment from Joseph Rice, NA.

The lawsuit industry lawyers argue that they will be deprived of the ability to show scienter or knowledge of a risk in latent disease litigation in which disease outcomes are lagged several decades after first exposure. Their argument, however, misses the point that many documents in company files, while not admissible for their truth, will be evidence of “notice” of a potential hazard, and the documents would be admissible for “state of mind,” and not the truth, in any event. Given the changes in epistemic standards for establishing causation, it is unlikely that really ancient documents will move the fact finder any closer to the truth of the actual fact of asserted causation. SeeTime to Retire Ancient Documents As Hearsay Exception” (Aug. 23, 2015); “Ancient Truths” (May 5, 2016).

The asbestos plaintiffs’ lawyers thus argue that they would be deprived of important evidence such as the “Sumner Simpson” documents in asbestos cases. See Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366 (3d Cir. 1991). The plaintiffs’ argument rests upon an epistemic mistake. If knowledge is true, justified belief, then they do not need Rule 803(16) to show that the Sumner Simpson documents contain true statements; it is enough that they show that the authors believed what they said. In other words, the plaintiffs need only show that the documents reflect the declarants’ state of mind. Whether the statements are justified as true will require a complex mixture of current evidence about what health effects can be shown to be caused by the exposures of old, and what justifications were valid in today’s knowledge that were available and embraced by the declarants in the ancient documents.

Insurance coverage plaintiffs’ counsel have argued that they need Rule 803(16) to meet their burden of proof, and that insureds rely on both internal and external records. A policyholder’s internal records might include financial statements, annual reports, meeting minutes, check registers, contracts referencing insurance, insurance policies referencing other insurance policies, and/or accounting ledgers. Comment from Sherilyn Pastor, NA.

Most of the special pleading of these interest groups is wide of the mark. Old statements may be relevant and admissible for the speaker’s or reader’s statement of mind, and thus not hearsay. Old reliable documents can still be admitted under the residual exception, Rule 807, or under the business records exception, 803(6). Statements made in the making of contracts are operative facts of offer and acceptance, “speech acts,” and not offered for their truth.

The fact that a document is old may perhaps add to its authenticity, but in many technical, scientific, and medical contexts, the “ancient” provenance actually makes the content unlikely to be true. As such, the rule as now in effect is capable of much mischief and undermines accurate fact finding. The pace of change of technical and scientific opinion and understanding is too fast to indulge this exception that permits out-dated, false statements of doubtful validity to confuse the finder of fact. With respect to statements or claims to scientific knowledge, the Federal Rules of Evidence have evolved towards a system of evidence-based opinion, and away from naked opinion based upon the apparent authority or prestige of the speaker. Similarly, the age of the speaker or of the document provides no warrant for the truth of the document’s content. Of course, the statements in authenticated ancient documents remain relevant to the declarant’s state of mind, and nothing in the proposed amendment would affect this use of the document. As for the contested truth of the document’s content, there will usually be better, more recent, and sounder scientific evidence to support the ancient document’s statements if those statements are indeed correct. In the unlikely instance that more recent, more exacting evidence is unavailable, and the trustworthiness of the ancient document’s statements can be otherwise established, then the statements would probably be admissible pursuant to other exceptions to the rule against hearsay, as noted by the Committee. The proposed abrogation of this exception to the rule against hearsay should be welcomed; it is long overdue. And if it Capra is correct that ancient hardcopy rarely exists, and that the ancient document rule is rarely invoked, then abrogation cannot have the effect of defeating expectations and reliance upon this dubious mode of proof.

Of course, witnesses who are the declarants in the ancient documents may have died or moved away, but that is precisely why the law generally has statutes of limitations. When the law has generously created discovery rules, it should not then promulgate unreasonable, unreliable rules of evidence simply because it has extended the life on what otherwise would be stale claims.

Fake Science News

December 17th, 2016

Fakers to the left; fakers to the right. Everyone has his or her knickers in a knot over fake news these days.  But who will speak out against fake science news?

Oberle Communications LLC[1] puts out a “Product Safety Letter,” with almost daily emails that link to published articles of interest to lawyers and others who are concerned with product safety. According to its self-description, Product Safety Daily is a “fair-use news-link service,” and its owner claims not to be responsible for the accuracy, or truthfulness, of linked articles.

Sounds like Facebook; no?

The Guardian is British newspaper, with affiliates in the United States and elsewhere, owned by the Guardian Media Group, which in turn is owned by The Scott Trust Limited. The Scott Trust declares that it exists to produce The Guardian, and “to safeguard the journalistic freedom and liberal values of The Guardian free from commercial or political interference.” Lofty goals, those are. Oberle Communications might feel secure in pointing to an article in The Guardian, on product safety. As far as newspapers are concerned, The Guardian enjoys a good reputation, and has won awards for its investigative journalism, most recently on unlawful government surveillance.

Recently, the Product Safety Letter linked to an article by an Assistant Editor of The Guardian on supposed health effects of plastics. Chukwuma Muanya, “How Plastics Cause Autism, Diabetes, Cancer, Birth Defects,” The Guardian (London, England) (Dec. 13, 2016).

The Mr. Muanya’s headline shouts about causation, but there is nothing in the text of the article to support, even remotely, anyone’s conclusion about causality. The text of the article states, without support, that “[r]ecent studies have associated the rise in autism, diabetes, cancer and birth defects to increase in the use of plastics in making everyday containers, toys and baby teethers or pacifiers.” One would think, hope, pray that The Guardian would know the difference between association and causation, but there is no evidence in this article to support an imputation of knowledge or understanding.

A photograph of baby bottles contains a caption that ramps up the Guardian’s rhetoric and propaganda:

KILLER PLASTICS… The invisible chemical cause neurological and behavioral disorders like autism and attention deficit and hyperactivity disorder (ADHD). They also affect IQ. And they manipulate hormones in a way that can cause cancer, diabetes, male infertility, and endometriosis. PHOTO CREDIT: http://www.viewzone.com/plastic-header.jpg

Wow.  These plastics are bad-ass actors. They manipulate; they cause; they kill.

From causation, to association, the author moves to the most abused journalese term in science reportage: “link”:

“the presence of toxins commonly found in plastic that have been linked to increased risk of cancer, heart disease and obesity.”

Mr. Muanya references, without link, citation, or mention of authors, a study by the American Chemical Society, which apparently reported that infants’ pacifiers contained Bisphenol A (BPA), Bisphenol S (BPS) or Bisephenol F (BPF), and that many also contained parabens, and antimicrobials such as triclosan and triclocarban. But the Society’s paper was about chemical content, not about health consequences. Without any reference or citation to published or unpublished studies, Mr. Muanya labels BPA, BPS, and BPF as “so-called endocrine-disrupting chemicals,” and tells us these chemicals “manipulate hormones in a way that can cause cancer, diabetes, male infertility, and endometriosis,” and that these chemicals “cause neurological and behavioral disorders like autism and ADHD,” and that they “also affect IQ.”

Apropos of nothing having to do with endocrine disrupters, or human disease, Mr. Muanya inserts a discussion of a Japanese study, reportedly published at the PLoS (but without providing link or citation) about how older male mice have offspring that exhibited “hyperlocomotion.” Still, Mr. Muanya, who has been billed as “Head Insight Team, Science & Technology,” does show that journalists can provide, when it suits them, actual references at least to authors by name. Nothing in the mouse study, however, explains the hypocognition exhibited by the Guardian’s science editor, or the shoddy journalistic practices.

So here we have a respected newspaper publishing a news story that at best is internally inconsistent and un-sourced, and which grossly misinterprets or overinterprets the available scientific evidence. Behold fake science news.


[1] 4915 St Elmo Ave, #204, Bethesda, MD 20814; Phone: (301) 215-9236.

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.