TORTINI

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

Johnson & Johnson Leaves Them in the Dust – Echeverria Verdict Unraveled

October 24th, 2017

It was a tough week for the talc litigation industry. On October 17, the Missouri Court of Appeals reversed a large verdict for plaintiffs because a St. Louis trial court unconstitutionally had asserted personal jurisdiction over Johnson & Johnson. In essence, the Missouri appellate court just said no to forum shopping. Fox v. Johnson & Johnson, Mo. Ct. App., No. ED104580 (Oct. 17, 2017). And on Friday, October 20, a California trial court, on sober second thought, granted judgment notwithstanding the verdict, and in the alternative, a new trial in the recent Escheverria case, which had resulted in plaintiffs’ awards approaching half a billion dollars. See Orders regarding Defendants Combined Motion for New Trial and Judgment Notwithstanding the Verdict, Echeverria v. Johnson & Johnson, Inc., Case No. BC628228, JCCP No. 4872, Calif. Super. Ct., Los Angeles Cty. (Oct. 20, 2017) [cited below as Echeverria op.] See also Daniel Siegal, “J&J Wins Battle Against $417M Talc Award, But War Not Over,” Law360 (Oct. 23, 2017).

The trial court issued an opinion, over 50 pages long, which carefully reviewed the parties’ contentions. Only some of the issues considered by the trial court are discussed below.

Differential Etiology

Differential etiology resembles the biological process of solid waste management; both employ the process of elimination.

Most diseases in humans have a large “idiopathic” or “cause unknown” component. The differential methodology purports to take all the known causes and rule out the ones that are improbable in a given case. As a matter of logic, this is what is known as an iterative disjunctive syllogism. If you start with:

A or B or C.

And you show not B;

and then, not C.

you are left with A.

This argument is, of course, a perfectly valid syllogism. If the premises are true, then the conclusion must be true. The problem is that the initial premise, to be accurate for many if not most human chronic diseases, must include a disjunct, U, or “cause unknown.” And once U is added to the first line of the syllogism, rarely is there a way to exclude it.

Sometimes the “cause unknown” component may be very small. For instance, in human malignant mesothelioma, the overwhelming majority of occupational cases do have a known cause: amphibole asbestos. When sufficient amphibole asbestos fiber exposure has been shown, there is usually no serious issue of individual attribution left for debate. The base rate of (idiopathic) mesothelioma is very low, and the relative risk from occupational amphibole asbestos exposure is extraordinarily large.

Ovarian cancer, which is the subject of the Escheverria case, is a very different story. The rate of idiopathic cases – no known causes – is much higher, and may even make up a majority of cases. The so-called differential etiology method never gets down to a conclusion that it is the talc (assuming arguendo that talc causes ovarian cancer). You always have talc or unknown cause in the conclusion.

In Escheverria, the plaintiffs’ lawyers called only one expert witness on specific causation, Echeverria’s treating physician, Dr. Annie Yessaian (“Yessaian”). Yessaian advanced a “differential etiology” analysis, which she claimed allowed her to conclude that talc was “more probable than not” a cause of plaintiff’s ovarian cancer. Echeverria op. at 5. Upon careful review, the trial court realized that Yessaian had never properly applied the iterative disjunctive syllogism, or differential etiology, to reach a valid conclusion. Despite a good deal of hand waving, Yessaian never ruled out other causes of the plaintiff’s ovarian cancer. Echeverria op. at 30.

The plaintiff’s menarche was at age 11, and so she had had a large number of ovulatory cycles. She was obese, and over 60 years old at the time of diagnosis. Yessaian did not rule these factors out; rather she testified without foundation that these factors were “less likely than not” causes of plaintiff’s ovarian cancer1. Echeverria op. at 31. The trial court noted that these potential causes had never been eliminated from the list of differentials; Yessaian had simply “discounted” them by ipse dixit. As for the “U,” or unknown causes that are clearly at play in many if not most ovarian cancers, Yessaian admitted that Escheverria’s cancer “probably” resulted from some unknown risk factor; but then, out of thin air, she testified that the probability of idiopathic causation was less than 50%. The trial court concluded that Yessian’s ruling in and ruling out decisions were ultimately nothing more than conjecture, and the plaintiff had never properly shown specific causation. Id. at 26-27, 31.

Relative Risk Less than Two

Yessaian’s specific causation opinion cratered further as a result of her inability to identify any specific biomarker or “fingerprint” of causation. The plaintiffs’ expert witnesses had argued that chronic inflammation is the mechanism by which talc causes ovarian cancer, but there was no histopathologic evidence of inflammation in association with ovarian tissue that had given rise to the cancer.

The relative risk argument is one way to attribute specific causation, and circumvent idiopathic causes by quantifying the contribution of the specific causal factor (again assuming it really is such) vis-a-vis the baseline risk of disease from unknown causes. The plaintiff, however, had called an expert witness on epidemiology, Jack Siemiatycki, who had explained that a risk ratio of 2.0 is “the point at which the probability of causation, which is the probability that a given agent causes a specific disease, exceeds 50 percent ….” Escheverria op. at 5. The defense epidemiologic expert, Dr. Douglas Weed, similarly testified and elaborated on the concept of probability of causation and attributable risk.2

The plaintiffs’ counsel attempted to extricate themselves from this arithmetic quagmire by arguing that there was “multiple causation,” and interaction among causes. Escheverria op. at 41-42. Yessaian, however, had disavowed even the most obvious concurrent causes (ovulatory cycles and age), and put all her markers down on talc. There was no evidence of multiple causation to muck up the analysis. Of course, the talc epidemiologic studies were all multivariate analyses that measured associations of talc and ovarian cancer in the presence of co-variates, such as age at menarche, and age at diagnosis.

Furthermore, Yessian was constrained by her acknowledgement that histologic type of ovarian cancer is highly relevant, and that none of the studies of serous ovaran cancer (the type diagnosed in Ms. Escheverria) reported out risk ratios in excess of 2.0. Escheverria op. at 28-29. Yessaian could not escape the inexorable math, and testimony about probability of causation from Jack Siemiatycki. Id at 29.3

Their case in extremis, the plaintiffs’ counsel argued4 that epidemiologic studies were not needed to prove causation, which might be true in a case involving a known mechanism with highly specific biomarkers to identify the causal mechanism that had taken place in the claimant. Having cited and relied extensively upon epidemiologic studies, Yessaian was hoisted with own her petard; the trial court found the assertion that there was an alternative path to specific causation to be absent from the record and quite incredible.

State of the Art

The duty to warn is constrained by what is known or should have been known at the time of marketing, what lawyers sometimes call “state of the art.” The trial court reasoned that since Eva Echeverria developed her serous ovarian cancer in 2007, the relevant scientific state of knowledge was censored at the time of plaintiff’s diagnosis. Any warning given after 2007 could not have prevented plaintiffs’ disease. (In truth, the relevant censoring date was likely well before 2007, but an earlier date would not have made a difference in the judicial outcome.)

There was no serious claim that the defendants had “secret” knowledge other than what was known in the scientific community. Plaintiffs’ expert witness on epidemiology, Jack Siemiatycki, co-chaired the IARC working group that concluded and published in 2007, that talc was a possible cause of ovarian cancer, a finding that rejected a higher classification, such as “probable” or “known.” IARC Monograph for Carbon Black, Titanium Dioxide & Talc, vol 93 (2010); Robert Baan, et al., “Carcinogenicity of carbon black, titanium dioxide, and talc,” 7 Lancet Oncology 295 (2006)5. In Escheverria, Siemiatycki testified in accordance with his public scientific work, and his service on the IARC working group, and he conceded that in 2007, there was no known causal connection between talc and human ovarian cancer. Notably, the defense lawyers failed to convert this state-of-the-art issue into a dispositive judgment because they had failed to ask for a binding jury instruction on the issue. Escheverria op. at 32.

For the trial court, the absence of scientific knowledge up to and including 2007, the year of Escheverria’s diagnosis, was also relevant to the existence vel non of malice that would support the imposition of punitive damages. Looking at the evidence in the light most favorable to the plaintiff, the trial court found that there was a scientific debate whether talc causes ovarian cancer, which debate would not allow the imputation of scienter to the defendants to permit the jury to infer that the defendants had acted with malice. Escheverria op. at 35. Given that no one in the medical or scientific community had asserted a relevant causal conclusion in or before 2007, the trial court’s conclusion is unassailable. The court’s analysis, however, begs the question why a lay jury is permitted to find any breach of a duty to warn, in the face of an engaged scientific community that uniformly refused to advance a causal conclusion in the relevant time frame.

New Trial on General and Specific Causation

The trial court did not belabor the analysis of general causation beyond pointing out that there were substantial uncertainties for many of the Bradford Hill considerations, such as consistency, strength, and exposure-response. With respect to specific causation, all the problems discussed on the motion for judgment notwithstanding the verdict were also relevant to finding that the plaintiff failed to establish specific causation by a preponderance of the evidence. Escheverria op. at 40.

The trial court identified several grounds for the grant of a new trial, but one ground involved improper argument by plaintiffs’ counsel, who has repeatedly resorted to the same argument in previous cases. Forewarned, the defense sought a ruling in limine to exclude all evidence of lobbying and communications with federal agencies over regulations and regulatory classifications of talc. In a pretrial ruling, the trial court permitted the use of company documents about attempts to influence the National Toxicology Program (NTP) and the IARC for the limited purpose of notice to defendants that scientific organizations were considering whether to label talc as a carcinogen. Escheverria op. at 45.

Perhaps the trial court was being charitable in assessing what the lobbying evidence would be used for, but the plaintiffs did not need evidence of lobbying to prove “notice.” Early, often, and deliberately, the plaintiffs’ lawyers used evidence of lobbying for purposes well beyond the permissible, limited relevancy of notice. Escheverria’s counsel, Allen Smith argued, in opening and in closing that the defendants had “fended off” the National Toxicology Program (NTP), and that “if Johnson & Johnson would have just stayed out of it, let the scientists do their work at the U.S. government, the NTP would have listed talc as a carcinogen as far back as 2000.” So lobbying activities were not used as evidence of notice at all, but rather for arguing an inference of malice and outrageous misconduct from the prevention of regulation. Escheverria op. at 46.

Predictable.


1 Yessaian did advert to a study that she interpreted as failing to establish an association between obesity and ovarian cancer, but for the other risk factors of age and ovulatory cycles, the plaintiff’s expert witness offered no basis at all.

2 The trial court studiously avoided reference to the defense expert witness on epidemiology. SeeEcheverria Talc Trial – Crossexamination on Alleged Expert Witness Misconduct” (Oct. 21, 2017).

3 citing well-known relative risk of two cases, Daubert v. Merrell Dow Pharms., Inc., 43 F. 3d 1311, 1321 (9th Cir. 1995); In re Lipitor (Atorvastatin Calcium) Mktg., Sales Prac. & Prod. Liab. Litig., 185 F. Supp. 3d 786, 791-92; Marder v. G.D. Searle & Co., 630 F. Supp. 1087, 1092 (D.Md. 1986), aff’d mem. on other grounds sub nom. Wheelahan v. G.D.Searle & Co., 814 F.2d 655 (4th Cir. 1987) (per curiam).

4 citing the dubious In re Neurontin Marketing, Sales Practices & Prods. Liab. Litig., 612 F. Supp. 2d 116, 132 (D. Mass. 2009), aff’d, 712 F.3d 21 (1st Cir. 2013).

5 Unfortunately, even the IARC classification of “probably” carcinogenic to humans is actually fairly meaningless exercises in semantics, not science. A close reading of the IARC Preamble definition of probable reveals that probable does not mean greater than 50%: “The terms probably carcinogenic and possibly carcinogenic have no quantitative significance and are used simply as descriptors of different levels of evidence of human carcinogenicity, with probably carcinogenic signifying a higher level of evidence than possibly carcinogenic.”

Quackers & Cheese – Trump Picks Kennedy to Study Vaccine Safety

January 11th, 2017

Science necessarily involves a willingness to follow evidence to whatever conclusions are warranted, if conclusions properly can be had. When it comes to vaccination conspiracies, Democrats have it in their political DNA to distrust pharmaceutical companies that research, develop, and manufacture vaccines. The current Republican party, which has been commandeered by theocrats and populists, see vaccination as federal government aggrandizement, and resist vaccination policy as contrary to God’s will. Science is often the loser in the cross-fire.

And so we now have the public spectacle of watching the left and the right join in similar scientific apostasies. Consider how both McCain and Obama both suggested that vaccines and autism were related in the 2008 election. (Although both candidates were to some extent slippery in their suggestions, which might have been appropriate given how little they knew about the controversies.) And consider Michelle Bachmann was converted to a similar view about the HPV vaccine on the basis of a woman’s anecdote about her child. And then on the far left, you have the uplifting story of Robert F. Kennedy Jr, and his brief on how thimerosal supposedly causes autism.

So it should be no surprise that Donald Trump, a Birther, a Mirther, a mid-night Twitterer, should embrace the anti-vaccination movement. Trump has made it clear that he rejects evidence-based policy, and so no one should expect him to embrace a scientific policy that is driven by high-quality scientific evidence. According to Kennedy, Trump wants Kennedy to head up a “commission on vaccine safety and scientific integrity.” Michael D. Shear, Maggie Haberman & Pam Belluckjan, “Anti-Vaccine Activist Says Trump Wants Him to Lead Panel on Immunization Safety,” N.Y. Times (Jan. 10, 2017); Domenico Montanaro, “Despite The Facts, Trump Once Again Embraces Vaccine Skeptics,” National Public Radio (Jan. 10, 2017).

Who needs the National Academy of Medicine when you can put a yutzball lawyer in charge of a “commission”?

Some of the media refer to Robert F. Kennedy Jr. as a vaccine skeptic, but their terminology is grossly inaccurate and misleading. Kennedy is a vaccine denier; he has engaged in a vitriolic campaign against the safety and efficacy of vaccines. He has aligned himself with the most extreme deniers of science, medicine, and public safety, including the likes of Andrew Wakefield and Jenny McCarthy. Kennedy has not merely engaged hyperbolic rhetoric against vaccines, he has used his radio show on the lawsuit industry’s Ring of Fire, to advance his campaign against public health as well as to shill for the lawsuit industry on other issues. SeeRFK, Jr.: Science Shows That Autism — Mercury Link Exists – PT. ½,” Ring of Fire (Mar 8, 2011).

Kennedy should not be characterized as a skeptic, when he is a shrill ideologue, for whom science has no method that he is bound to respect. Back in July 2005, Kennedy published an article, “Deadly Immunity,” in both Rolling Stone and on Slate’s website. The article was a hateful screed against Big Pharma and government health agencies for an alleged conspiracy to hide the autism risks of thimerosal preservatives in vaccines. Several years later, on January 16, 2011, Salon retracted the article. Seehttps://en.wikipedia.org/wiki/Deadly_Immunity” entry in Wikipedia. See also Phil Plait, “Robert F. Kennedy Jr.: Anti-Vaxxer,” Slate (June 5 2013) (describing Kennedy as a full-blown anti-vaccination conspiracy theorist); Rahul K. Parikh, M.D., “Inside the vaccine-and-autism scare: A pediatrician traces the rise of the anti-vaccine movement that falsely linked thimerosal with autism and turned parents away from the most lifesaving medicine in history,” Salon (Sept. 22, 2008); Keith Kloor,Is Robert F. Kennedy Jr. Anti-Science?” Discover Magazine (June 1, 2013); Steven Novella, “RFK Jr.s Autism Conspiracy Theory,” (Jun 20 2007).

Back in 2008, President Obama apparently considered Robert Kennedy for a cabinet-level position, but on sober reflection, thought better of it. See Steven Novella, “Politics and Science – The RFK Jr. Test,” (Nov. 07 2008). The Wall Street Journal, joined by many others, are now urging Trump to think harder and better about the issue, perhaps with some evidence as well. See Alex Berezow & Hank Campbell, “Ignore Anti-Vaccine Hysteria, Mr. Trump: Robert F. Kennedy Jr.’s conspiracy theories have no place in the White House,” Wall Street J. (Jan. 10, 2017).

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.