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TORTINI

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

Expert Witness Reports Are Not Admissible

August 23rd, 2021

The tradition of antic proposals to change the law of evidence is old and venerable in the common law. In the early 19^th century, Jeremy Bentham deviled the English bench and bar with sweeping proposals to place evidence law on a rationale foundation. Bentham’s contributions to his contributions to jurisprudence, like his utilitarianism, often ignored the realities of human experience and decision making. Although Bentham contributed little to the actual workings of courtroom law and procedure, he gave rise to a tradition of antic proposals that have long entertained law professors and philosophers.[1]

Bentham seemingly abhorred tradition, but his writings have given rise to a tradition of antic proposals in the law. Expert witness testimony was uncommon in the early 19^th century, but today, hardly a case is tried without expert witnesses. We should not be surprised, therefore, by the rise of antic proposals for reforming the evidence law of expert witness opinion testimony.[2]

A key aspect of the Bentham tradition is ignore the actual experience and conduct of human affairs. And so now we have a proposal to shorten trials by foregoing direct examination of expert witnesses, and admitting the expert witnesses’ reports into evidence.[3] The argument contends that since the Rule 26 report requires disclosure of all the expert witnesses’ substantive opinions and all bases for their opinions, the witnesses’ viva voce testimony is merely a recital of the report. The argument proceeds that reports can be helpful in understanding complex issues and in moving trials along more efficiently.

As much as all lawyers want to promote “understanding,” and make trials more efficient, the argument fails on multiple levels. First, judges can read the expert witness reports, in bench or in jury trials, to help themselves prepare for trial, without admitting the reports into evidence. Second, the rules of evidence, which are binding upon trial judges in both bench and jury trials, require that the testimony be helpful, not the reports. Third, the argument ignores that for the last several years, the federal rules have allowed lawyers to draft reports to a large extent, without any discovery into whose phraseology appears in a final report.

Even before the federal rules created an immunity to discovery into who drafted specific language of an expert report, it was not uncommon to find that there at least some parts of an expert witness’s report that did not accurately summarize the witness’s views at the time he or she gave testimony. Often the process of discovery caused expert witnesses to modify their reports, whether through skillful inquiry at deposition, or through the submission of adversarial reports, or through changes in the evidentiary display between drafting the report and testifying at trial.

In other words, expert witnesses’ testimony rarely comes out exactly as it appears in words in Rule 26 reports. Furthermore, reports may be full of argumentative characterization of facts, which fail to survive routine objections and cross-examination. What is represented as a fact or a factual predicate of an opinion may never be cited in testimony because the expert’s representation was always false or hyperbolic. The expert witnesses are typically not percipient witnesses, and any alleged fact would not be admissible, under Rule 703, simply because it appeared in an expert witness’s report. Indeed, Rule 703 makes clear that expert witnesses can rely upon inadmissible hearsay as long as experts in their fields reasonably would do so in the ordinary course of their professions.

Voir dire of charts, graphs, and underlying data may result in large portions of an expert report becoming inadmissible. Not every objection will be submitted as a motion in limine; and not every objection rises to the level of a Rule 702 or 703 pre-trial motion to exclude the expert witness. Foundational lapses or gaps may render some parts of reports to be inadmissible.

The argument for admitting reports as evidence reflects a trend toward blowsy, frowsy jurisprudence. Judges should be listening carefully to testimony, both direct and cross, from expert witnesses. They will have transcripts at their disposal. Although the question and answer format of direct examination may take some time, it ensures the orderly presentation of admissible testimony.

Given that testimony often turns out differently from the unqualified statements in a pre-trial report, the proposed admissibility of reports will create evidentiary chaos when there a disparity between report and testimony, or there is a failure to elicit as testimony something that is stated in the report. Courts and litigants need an unequivocal record of what is in evidence when moving for striking testimony, or for directed verdicts, new trials, or judgments notwithstanding the verdict.

The proposed abridgement of expert witness direct examinations would allow further gaming by not calling an expert witness once the witness’s report has been filed. Expert witnesses may conveniently become unavailable, after their reports have been admitted into evidence.

In multi-district litigations, the course of litigation may take years and even decades. Reports filed early on may not reflect current views or the current state of the science. Deeming filed reports “admissible” could have a significant potential to subvert accurate fact finding.

In Ake v. General Motors Corp.[4], Chief Judge Larimer faced a plaintiff who sought to offer in evidence a report written by plaintiffs’ expert witness, who was scheduled to testify at trial. The trial court held, however, that the report was inadmissible hearsay, for which no exception was available.[5] The report at issue was not a business record, which might be admissible under Rule 803(6), in that it did not record events made at or near the event at issue, and the event did not involve the expert witness’s regularly conducted business activity.

There are plenty of areas of the law in which reforms are helpful and necessary. The formality of presenting an expert witness’s actual opinions, under oath, in open court, subject to objections and challenges, needs no abridgement.

[1] See, e.g., William Twining, “Bentham’s Theory of Evidence: Setting a Context,” 20 J. Bentham Studies 18 (2019); Kenneth M. Ehrenberg, “Less Evidence, Better Knowledge,” 2 McGill L.J. 173 (2015); Laird C. Kirkpatrick, “Scholarly and Institutional Challenges to the Law of Evidence: From Bentham to the ADR Movement,” 25 Loyola L.A. L. Rev. 837 (1992); Frederick N. Judson, “A Modern View of the Law Reforms of Jeremy Bentham,” 10 Columbia L. Rev. 41 (1910).

[2] See “Expert Witness Mining – Antic Proposals for Reform” (Nov. 4, 2014).

[3] Roger J. Marzulla, “Expert Reports: Objectionable Hearsay or Admissible Evidence in a Bench Trial?” A.B.A.(May 17, 2021).

[4] 942 F.Supp. 869 (W.D.N.Y. 1996).

[5] Ake v. General Motors Corp., 942 F.Supp. 869, 877 (W.D.N.Y. 1996).

Posted in Evidence, Expert Witness Discovery, Expert Witnesses, Trial Procedure | 122 Comments »

Epistemic Virtue – Dropping the Dime on Tenpenny

July 18th, 2021

When Marjorie Taylor Greene came under fire for propagating lies about Jewish space lasers and other fantastical conspiracy theories, she did not apologize. Rather she turned the opproprium into a grievance about being “allowed” to believe the lies. Blaming the media, Greene complained: “I was allowed to believe things that weren’t true… .”[1]

In a stunning show of bad faith, Greene attempted to redirect fault to the media. Beneath the failed attempt was a stratagem that appears to have prevalent appeal in this day of electronic and social media. There are some people who believe that telling a lie may be a moral failing, but believing a lie simply means you have been victimized. And being a victim is the ticket for admission into our grievance society.

Greene’s transparent attempt to foist blame on those who would allow her to believe hateful and crazy sidesteps her personal responsibility for her beliefs, and ignores that she chose to propagate the pernicious claims. Greene’s metaphor of passivity is essentially false in failing to come to grips with how we form beliefs, curate them, test, and verify them, even before we take to the social media “airways” to publish or re-publish them.

For the last few years, there has been scholarly and popular criticism of social media for its ability to propagate falsehoods, lies, conspiracy theories, and dis-, mis-, and mal-information.[2] Clearly, social media can do these things, but is it really surprising that social media can be an information cesspool? Descriptively, we can acknowledge that people are influenced by false claims made on social media platforms. Prescriptively, we can, and should, hold people to higher standards.

Earlier this week, the United States Surgeon General, Dr. Vivek Murthy proclaimed health misinformation on social media to be “urgent threat.”[3] Dr. Murthy stated that tech and social media companies needed to fight information rot more aggressively, and the Surgeon General’s office issued an advisory about “building a healthy information environment.”[4] Later last week, President Biden criticized social media companies for their failure to control misinformation, and announced a plan for government to participate in fact checking claims made on social media.[5] Biden’s initiative may be creating the state action needed for the yutzballs on the right and the left to make out state action in their claims of unconstitutional censorship.

I hate to play the “what about” game that was made so popular during the Trump Administration, but I have moments of weakness. What about governmental platforms for speech? After centuries of allowing any willing, able, and marginally qualified person, with a reasonable pretense to expertise, to give opinions in court, the federal judicial system cracked down on unsound, poorly supported expert witness opinion testimony. Most state courts dragged their judicial feet, but at least uttered in dicta that they were concerned.

Legislative platforms for speech have no gatekeeper. Any quack can show up, and she does. Take Sherri Jane Tenpenny. Please.

Sherri Tenpenny is an osteopathic physician who is a well-known, virulent disease vector of disinformation. In its March 2021 report, The Disinformation Dozen, the Center for Countering Digital Hate identified Tenpenny as a top anti-vaccination shyster. As a social media vector, she is ranked in the top dozen “influencers.”[6]

Tenpenny is an anti-vaccination osteopathic physician, who shakes down fearful parents at vaccination bootcamps, and hangs out with internet hoodlums such as Alex Jones, and the plumped-up pillow purveyor, Mike Lindell. She is the author of the 2008 book, Saying No to Vaccines: A Resource Guide for all Ages, where you can find hyperbolic claims, such as “[t]he skyrocketing autism epidemic, controversy surrounding mercury and thimerosal, and the rampant childhood epidemics — asthma, allergies, eczema, attention deficit disorders (ADD), attention deficit hyperactivity disorders (ADHD) and cancer — have been linked to vaccines.”

In federal court, Tenpenny has been blocked from disseminating her malarkey at the gate. In one case, Tenpenny served as an expert witness in support of a claim that a man’s receipt of a hepatitis B vaccination caused him to develop Guillain-Barré syndrome. The Special Master incorrectly wrote that the law required him to presume the admissibility of Tenpenny’s proffered testimony. The law actually requires the proponent to show the admissibility of his expert witness’s opinion testimony. But even with the non-existent presumption, Tenpenny’s opinion was ultimately found to be worth less than a plugged nickel, when the Special Master found her methodology “so divergent from the scientific method as to be nonsensical and confusing.”[7]

In other branches of government, a Tenpenny can go a lot further. Last month, the Ohio legislature invited Tennpenny to testify in support of House Bill 248, Enact Vaccine Choice and Anti-Discrimination Act (June 8, 2021). Introduced into the Ohio House of Representatives by Republican member Jennifer Gross, Bill 248 would “prohibit mandatory vaccinations and vaccination status disclosures.” Indeed, the proposed legislation would prohibit requiring, or creating incentives for, any vaccines, not just vaccinations against SARS-CoV-2. Tenpenny’s testimony did not fail to disappoint.

Tenpenny claimed that vaccines “magnetize” people, such that keys and spoons will stick to their bodies:

“I’m sure you’ve seen the pictures all over the Internet of people who have had these shots and now they’re magnetized. They can put a key on their forehead. It sticks. They can put spoons and forks all over them and they can stick, because now we think that there’s a metal piece to that.”

Tenpenny did not, however, discuss the obvious issue of polarity, and whether people would line up “north” to “south,” when together in a crowd. She vaguely suggested that “[t]here’s been people who have long suspected that there’s been some sort of an interface, yet-to-be-defined interface, between what’s being injected in these shots and all of the 5G towers.”[8]

The fallout from the Tenpenny testimony has been amusing. After the hearing, another Republican, Representative Scott Lipps, blamed Gross for having invited Tenpenny. During the hearing, however, none of the legislators strongly pushed back. Republican legislators thanked her for testifying, and praised her work as “enlightening.” The bill sponsor, Jennifer Gross, who trained as a nurse, told Tennpenny that it was “an honor to have you here.” According to some media reports (sorry), Gross previously compared businesses’ requiring vaccination to the Holocaust. Importantly, none of the legislators asked her for the studies upon which she relied.

Why would anyone think that Facebook, Twitter, or YouTube would act with more epistemic virtue than the Ohio Legislature? The Tenpenny phenomenon raises other interesting and important questions. Tenpenny has been licensed in Ohio as a “D.O.” (Doctor of Osteopathy), no. 34.003789, since 1984. Her online record shows no “board actions” taken or pending. Apparently, the state of Ohio, the American Osteopathic Association, and other professional and regulatory bodies do not see a problem with Tenpenny’s performance in the Ohio House of Representatives.

The American Medical Association (AMA) recognizes that medical evidence in legal and administrative proceedings is critical, and that physicians have a duty to assist.[9] Testifying for a legislative committee would certainly qualify for a legal proceeding. Testifying is the practice of medicine, and physicians who testify must do so “honestly,” with “continuous self-examination to ensure that their testimony represents the facts of the case,” and “only in areas in which they have appropriate training and recent, substantive experience and knowledge.”[10] The AMA Ethical Guidelines further provide that a testifying physician has a responsibility to ensure that his or her testimony “reflects current scientific thought and standards of care that have gained acceptance among peers in the relevant field.”[11]

Perhaps most important, the AMA Ethical Guidelines specify that medical societies and medical licensing boards are responsible for maintaining high standards for medical testimony, and must assess “claims of false or misleading testimony.” When the testimony is false or misleading, these bodies should discipline the offender “as appropriate.”[12]

Where are the adults in the room?

[1] Josh K. Elliott, “GOP’s Marjorie Taylor Greene regrets being ‘allowed’ to believe hoaxes,” Global News Canada (Feb. 4, 2021).

[2] See, e.g., Catherine D. Tan, “Defending ‘snake oil’: The preservation of contentious knowledge and practices,” 51 Social Studies of Science 538 (2021).

[3] Sheryl Gay Stolberg & Davey Alba, “Surgeon General Assails Tech Companies Over Misinformation on Covid-19,” N.Y. Times (July 15, 2021).

[4] Vivek H. Murthy, Health Misinformation: The U.S. Surgeon General’s Advisory on

Building a Healthy Information Environment (2021).

[5] The Associated Press, “Biden Slams Social Media Companies for Pandemic Misinformation,” N.Y. Times (July 16, 2021).

[6] Jonathan Jarry, “A Dozen Misguided Influencers Spread Most of the Anti-Vaccination Content on Social Media: The Disinformation Dozen generates two thirds of anti-vaccination content on Facebook and Twitter,” McGill Univ. Office for Science & Soc’y (Mar. 31, 2021).

[7] Shaw v. Sec’y Health & Human Servs., No. 01-707V, 2009 U.S. Claims LEXIS 534, *84 n.40 (Fed. Cl. Spec. Mstr. Aug. 31, 2009).

[8] Andrea Salcedo, “A doctor falsely told lawmakers vaccines magnetize people: ‘They can put a key on their forehead. It sticks.’,” Wash. Post (June 9, 2021); Andy Downing, “What an exceedingly dumb time to be alive,” Columbus Alive (June 10, 2021); Jake Zuckerman, “She says vaccines make you magnetized. This West Chester lawmaker invited her testimony, chair says,” Ohio Capital Journal (July 14, 2021).

[9] A.M.A. Code of Medical Ethics Opinion 9.7.1.

[10] Id.

[11] Id.

[12] Id.

Posted in Expert Witness Hall of Shame, Expert Witnesses, Public Nuisances, Scientific Misconduct | 1 Comment »

People Get Ready – There’s a Reference Manual a Comin’

July 16th, 2021

Science is the key …

Back in February, I wrote about a National Academies’ workshop that featured some outstanding members of the scientific and statistical world, and which gave participants to identify new potential subjects for inclusion in a proposed fourth edition of the Reference Manual on Scientific Evidence.[1] Funding for that new edition is now secured, and the National Academies has published a précis of the February workshop. National Academies of Sciences, Engineering, and Medicine, Emerging Areas of Science, Engineering, and Medicine for the Courts: Proceedings of a Workshop – in Brief (Washington, DC 2021). The Rapporteurs for these proceedings provide a helpful overview for this meeting, which was not generally covered in the legal media.[2]

The goal of the workshop, which was supported by a planning committee, the Committee on Science, Technology, and Law, the National Academies, the Federal Judicial Center, and the National Science Foundation, was, of course, to identify chapters for a new, fourth edition, of Reference Manual on Scientific Evidence. The workshop was co-chaired by Dr. Thomas D. Albright, of the Salk Institute for Biological Studies, and the Hon. Kathleen McDonald O’Malley, Judge on the U.S. Court of Appeals for the Federal Circuit.

The Rapporteurs duly noted Judge O’Malley’s Workshop comments that she hoped that the reconsideration of the Reference Manual can help close the gap between science and the law. It is thus encouraging that the Rapporteurs focused a large part of their summary on the presentation of Professor Xiao-Li Meng[3] on selection bias, which “can come from cherry picking data, which alters the strength of the evidence.” Meng identified the

“7 S’(ins)” of selection bias:

(1) selection of target/hypothesis (e.g., subgroup analysis);

(2) selection of data (e.g., deleting ‘outliers’ or using only ‘complete cases’);

(3) selection of methodologies (e.g., choosing tests to pass the goodness-of-fit); (4) selective due diligence and debugging (e.g., triple checking only when the outcome seems undesirable);

(5) selection of publications (e.g., only when p-value <0.05);

(6) selections in reporting/summary (e.g., suppressing caveats); and

(7) selections in understanding and interpretation (e.g., our preference for deterministic, ‘common sense’ interpretation).”

Meng also addressed the problem of analyzing subgroup findings after not finding an association in the full sample, dubious algorithms, selection bias in publishing “splashy” and nominally “statistically significant” results, and media bias and incompetence in disseminating study results. Meng discussed how these biases could affect the accuracy of research findings, and how these biases obviously affect the accuracy, validity, and reliability of research findings that are relied upon by expert witnesses in court cases.

The Rapporteurs’ emphasis on Professor Meng’s presentation was noteworthy because the current edition of the Reference Manual is generally lacking in a serious exploration of systematic bias and confounding. To be sure, the concepts are superficially addressed in the Manual’s chapter on epidemiology, but in a way that has allowed many district judges to shrug off serious questions of invalidity with the shibboleth that such questions “to to the weight, not the admissibility,” of challenged expert witness opinion testimony. Perhaps the pending revision to Rule 702 will help improve fidelity to the spirit and text of Rule 702.

Questions of bias and noise have come to receive more attention in the professional statistical and epidemiologic literature. In 2009, Professor Timothy Lash published an important book-length treatment of quantitative bias analysis.[4] Last year, statistician David Hand published a comprehensive, but readily understandable, book on “Dark Data,” and the ways statistical and scientific interference are derailed.[5] One of the presenters at the February workshop, nobel laureate, Daniel Kahneman, published a book on “noise,” just a few weeks ago.[6]

David Hand’s book, Dark Data, (Chapter 10) sets out a useful taxonomy of the ways that data can be subverted by what the consumers of data do not know. The taxonomy would provide a useful organizational map for a new chapter of the Reference Manual:

A Taxonomy of Dark Data

Type 1: Data We Know Are Missing

Type 2: Data We Don’t Know Are Missing

Type 3: Choosing Just Some Cases

Type 4: Self- Selection

Type 5: Missing What Matters

Type 7: Changes with Time

Type 8: Definitions of Data

Type 9: Summaries of Data

Type 11: Feedback and Gaming

Type 12: Information Asymmetry

Type 13: Intentionally Darkened Data

Type 14: Fabricated and Synthetic Data

Type 15: Extrapolating beyond Your Data

Providing guidance not only on “how we know,” but also on how we go astray, patho-epistemology, would be helpful for judges and lawyers. Hand’s book really just a beginning to helping gatekeepers appreciate how superficially plausible health-effects claims are invalidated by the data relied upon by proffered expert witnesses.

* * * * * * * * * * * *

“There ain’t no room for the hopeless sinner
Who would hurt all mankind, just to save his own, believe me now
Have pity on those whose chances grow thinner”

[1] “Reference Manual on Scientific Evidence v4.0” (Feb. 28, 2021).

[2] Steven Kendall, Joe S. Cecil, Jason A. Cantone, Meghan Dunn, and Aaron Wolf.

[3] Prof. Meng is the Whipple V. N. Jones Professor of Statistics, in Harvard University. (“Seeking simplicity in statistics, complexity in wine, and everything else in fortune cookies.”)

[4] Timothy L. Lash, Matthew P. Fox, and Aliza K. Fink, Applying Quantitative Bias Analysis to Epidemiologic Data (2009).

[5] David J. Hand, Dark data : why what you don’t know matters (2020).

[6] Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein, Noise: A Flaw in Human Judgment (2021).

Posted in Evidence, Expert Witnesses, Reference Manual on Scientific Evidence, Rule 702, Rule 703, Scientific Evidence, Systemic Bias | No Comments »

Slide Rule 702

June 26th, 2021

Note: A “fatal error,” caused by an old theme has disrupted the layout of my website. I am working on it

The opposition to Daubert’s regime of gatekeeping by the lawsuit industry has been fierce. From the beginning, the resistance has found allies on the bench, who have made the application of Rule 702 to expert witnesses, in both civil and criminal, uneven at best. Back in 2015, Professor David Bernstein and Eric Lasker wrote an exposé, about the unlawful disregard of the statutory language of Rule 702, and they called for and proposed an amendment to the rule.[1] At the time, I was skeptical of unleashing a change through the rules committee, given the uncertainty of where any amendment might ultimately look like.[2]

In the last several years, there have been some notable applications of Rule 702 in litigation involving sertraline, atorvastatin, sildenafil, and other medications, but aberrant decisions have continued to upend the rule of law in the area of expert witness gatekeeping. Last year, I noted that I had come to see the wisdom of Professor Bernstein’s proposal,[3] in the light of continued judicial dodging of Rule 702.[4] Numerous lawyers and legal organizations have chimed in to urge a revision to Rule 702.[5]

Earlier this week, the Committee on Rules of Practice & Procedure rolled out a proposed draft of an amended Rule 702.[6] The proposed new rule looks very much like the current rule:[7]

Rule Testimony by Expert Witnesses
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the proponent
has demonstrated by a preponderance of the evidence that:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied expert’s
opinion reflects a reliable application of the
principles and methods to the facts of the
case

Despite what looks like minor linguistic changes, the Rules Committee’s note suggests otherwise. First, the amendment is intended to emphasize that the burden of showing the admissibility requirements rests on the proponent of the challenged expert witness testimony. Of course, the burden of course has always been with the proponent, but some courts have deployed various strategems to shift the burden with conclusory assessments that the challenge “goes to the weight not the admissibility,” thereby dodging the judicial responsibility for gatekeeping. The Committee now would make clear that many courts have erred by having treated the “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as going to weight and not admissibility.[8]

The Committee appears, however, to be struggling to provide guidance on when challenges do raise “matters of weight rather than admissibility.” For instance, the Committee Note suggests that:

“nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support. The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make extravagant claims that are unsupported by the expert’s basis and methodology.”[9]

Somehow, I fear that the mantra of “weight not admissibility” has been or will be replaced by refusals to nitpick an expert’s opinion. How many nits does it take to make a causal claim “extravant”?

Perhaps I am the one nitpicking now. The Committee has recognized the essential weakness of gatekeeping as frequently practiced in federal courts by emphasizing that judicial gatekeeping is “essential” and required by the institutional incompetence of jurors to determine whether expert witnesses have reliably applied sound methodology to the facts of the case:

“a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert. A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also be unable to assess the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.”[10]

If the sentiment of the Rule Committee’s draft note carries through to the Committee Note that accompanies the amended rule, then perhaps some good will come of this effort.

[1] David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1 (2015).

[2] “On Amending Rule 702 of the Federal Rules of Evidence” (Oct. 17, 2015).

[3] “Should Federal Rule of Evidence 702 Be Amended?” (May 8, 2020).

[4] “Dodgy Data Duck Daubert Decisions” (April 2, 2020); “Judicial Dodgers – The Crossexamination Excuse for Denying Rule 702 Motions” (May 11, 2020); “Judicial Dodgers – Reassigning the Burden of Proof on Rule 702” (May 13, 2020); “Judicial Dodgers – Weight not Admissibility” (May 28, 2020); “Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent” (June 2, 2020).

[5] See, e.g., Daniel Higginbotham, “The Proposed Amendment to Federal Rule of

Evidence 702 – Will it Work?” IADC Products Liability Newsletter (March 2021); Cary Silverman, “Fact or Fiction: Ensuring the Integrity of Expert Testimony,” U.S. Chamber Instit. Leg. Reform (Feb. 2021); Thomas D. Schroeder, “Federal Courts, Practice & Procedure: Toward a More Apparent Approach to Considering the Admission of Expert Testimony,” 95 Notre Dame L. Rev. 2039, 2043 (2020); Lee Mickus, “Gatekeeping Reorientation: Amend Rule 702 To Correct Judicial Misunderstanding about Expert Evidence,” Wash. Leg. Foundation (May 2020)

13-18 (noting numerous cases that fail to honor the spirit and language of Rule 702); Lawyers for Civil Justice, “Comment to the Advisory Comm. on Evidence Rules and its Rule 702 Subcommittee; A Note about the Note: Specific Rejection of Errant Case Law is Necessary for the Success of an Amendment Clarifying Rule 702’s Admissibility Requirements 1 (Feb. 8, 2021) (arguing that “[t]he only unambiguous way for the Note to convey the intent of the amendment is to reject the specific offending caselaw by name.”).

[6] Committee on Rules of Practice & Procedure Agenda Book (June 22, 2021). See Email Cara Salvatore, “Court Rules Committee Moves to Stiffen Expert Standard,” Law360 (June 23, 2021).

[7] Id. at 836. The proposal has been the subject of submissions and debate for a while. See Jim Beck, “Civil Rules Committee Proposes to Toughen Rule 702,” Drug & Device Law (May 4, 2021).

[8] Committee on Rules of Practice & Procedure Agenda Book at 839 (June 22, 2021).

[9] Id.

[10] Id. at 838-39.

Posted in Evidence, Expert Witnesses, Rule 702 | No Comments »

Judge Jack B. Weinstein – A Remembrance

June 17th, 2021

There is one less force of nature in the universe. Judge Jack Bertrand Weinstein died earlier this week, about two months shy of a century.[1] His passing has been noticed by the media, lawyers, and legal scholars[2]. In its obituary, the New York Times noted that Weinstein was known for his “bold jurisprudence and his outsize personality,” and that he was “revered, feared, and disparaged.” The obituary quoted Professor Peter H. Schuck, who observed that Weinstein was “something of a benevolent despot.”

As an advocate, I found Judge Weinstein to be anything but fearsome. His jurisprudence was often driven by intellectual humility rather than boldness or despotism. One area in which Judge Weinstein was diffident and restrained was in his exercise of gatekeeping of expert witness opinion. He, and his friend, the late Professor Margaret Berger, were opponents of giving trial judges discretion to exclude expert witness opinions on ground of validity and reliability. Their antagonism to gatekeeping was, no doubt, partly due to their sympathies for injured plaintiffs and their realization that plaintiffs’ expert witnesses often come up with dodgy scientific opinions to advance plaintiffs’ claims. In part, however, Judge Weinstein’s antagonism was due to his skepticism about judicial competence and his own intellectual humility.

Although epistemically humble, Judge Weinstein was not incurious. His interest in scientific issues occasionally got him into trouble, as when he was beguiled by Dr. Irving Selikoff and colleagues, who misled him on aspects of the occupational medicine of asbestos exposure. In 1990, Judge Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein, along with state judge (Justice Helen Freedman), attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[3]

Judge Weinstein’s point about Selikoff’s having never testified was demonstrably false, but I impute no scienter for false statements to the judge. The misrepresentation almost certainly originated with Selikoff. Dr. Selikoff had testified frequently up to the point at which he and plaintiffs’ counsel realized that his shaky credentials and his pronouncements on “state of the art,” were hurtful to the plaintiffs’ cause. Even if Selikoff had not been an accomplished testifier, any disinterested observer should, by 1990, have known that Selikoff was himself not a disinterested actor in medical asbestos controversies.[4] The meeting with Selikoff apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book.[5]

In his famous handling of the Agent Orange class action, Judge Weinstein manipulated the defendants into settling, and only then applied his considerable analytical ability in dissecting the inadequacies of the plaintiffs’ causation case. Rather than place the weight of his decision on Rule 702, Judge Weinstein dismembered the causation claim by finding that the bulk of what the plaintiffs’ expert witnesses relied upon under Rule 703 was unreasonable. He then found that what remained, if anything, could not reasonably support a verdict for plaintiffs, and he entered summary judgment for the defense in the opt-out cases.[6]

In 1993, the U.S. Supreme Court breathed fresh life into the trial court’s power and obligation to review expert witness opinions and to exclude unsound opinions.[7] Several months before the Supreme Court charted this new direction on expert witness testimony, the silicone breast implant litigation, fueled by iffy science and iffier scientists, erupted.[8] In October 1994, the Judicial Panel on Multi-District Litigation created MDL 926, which consolidated the federal breast implant cases before Judge Sam Pointer, in the Northern District of Alabama. Unlike most contemporary MDL judges, however, Judge Pointer did not believe that Rule 702 and 703 objections should be addressed by the MDL judge. Pointer believed strongly that the trial judges, in the individual, remanded cases, should rule on objections to the validity of proffered expert witness opinion testimony. As a result, so-called Daubert hearings began taking place in district courts around the country, in parallel with other centralized proceedings in MDL 926.

By the summer of 1996, Judge Robert E. Jones had a full-blown Rule 702 attack on the plaintiffs’ expert witnesses before him, in a case remanded from MDL 926. In the face of the plaintiffs’ MDL leadership committee’s determined opposition, Judge Jones appointed four independent scientists to serve as scientific advisors. With their help, in December 1996, Judge Jones issued one of the seminal rulings in the breast implant litigation, and excluded the plaintiffs’ expert witnesses.[9]

While Judge Jones was studying the record, and writing his opinion in the Hall case, Judge Weinstein, with a judge from the Southern District of New York, conducted a two-week Rule 702 hearing, in his Brooklyn courtroom. Judge Weinstein announced at the outset that he had studied the record from the Hall case, and that he would incorporate it into his record for the cases remanded to the Southern and Eastern Districts of New York.

I had one of the first witnesses, Dr. Donnard Dwyer, before Judge Weinstein during that chilly autumn of 1996. Dwyer was a very earnest immunologist, who appeared on direct examination to endorse the methodological findings of the plaintiffs’ expert witnesses, including a very dodgy study by Dr. Douglas Shanklin. On cross-examination, I elicited Dwyer’s view that the Shanklin study involved fraudulent methodology and that he, Dwyer, would never use such a method or allow a graduate student to use it. This examination, of course, was great fun, and as I dug deeper with relish, Judge Weinstein stopped me, and asked rhetorically to the plaintiffs’ counsel, whether any of them intended to rely upon the discredited Shanklin study. My main adversary Mike Williams did not miss a beat; he jumped to his feet to say no, and that he did not know why I was belaboring this study. But then Denise Dunleavy, of Weitz & Luxenberg, knowing that Shanklin was her listed expert witness in many cases, rose to say that her expert witnesses would rely upon the Shanklin study. Incredulous, Weinstein looked at me, rolled his eyes, paused dramatically, and then waved his hand at me to continue.

Later in my cross-examination, I was inquiring about another study that reported a statistic from a small sample. The authors reported a confidence interval that included negative values for a test that could not have had any result less than zero. The sample was obviously skewed, and the authors had probably used an inappropriate parametric test, but Dwyer was about to commit to the invalidity of the study when Judge Weinstein stopped me. He was well aware that the normal approximation had created the aberrant result, and that perhaps the authors only sin was in failing to use a non-parametric test. I have not had many trial judges interfere so knowledgably.

In short order, on October 23, 1996, Judge Weinstein issued a short, published opinion, in which he ducked the pending Rule 702 motions, and he granted partial summary judgment on the claims of systemic disease.[10] Only the lawyers involved in the matters would have known that there was no pending motion for summary judgment!

Following up with grant of summary judgment, Judge Weinstein appointed a group of scientists and a legal scholar, to help him assemble a panel of Rule 706 expert witnesses for future remanded case. Law Professor Margaret Berger, along with Drs. Joel Cohen and Alan Wolff, began meeting with the lawyers to identify areas of expertise needed by the court, and what the process of court-appointment of neutral expert witnesses would look like.

The plaintiffs’ counsel were apoplectic. They argued to Judge Weinstein that Judge Pointer, in the MDL, should be supervising the process of assembling court-appointed experts. Of course, the plaintiffs’ lawyers knew that Judge Pointer, unlike Judges Jones and Weinstein, believed that both sides’ expert witnesses were extreme, and mistakenly believed that the truth lay between. Judge Pointer was an even bigger foe of gatekeeping, and he was generally blind to the invalid evidence put forward by plaintiffs. In response to the plaintiffs’ counsel’s, Judge Weinstein sardonically observed that if there were a real MDL judge, he should take it over.

Within a month or so, Judge Pointer did, in fact, take over the court-appointed expert witness process, and incorporated Judge Weinstein’s selection panel. The process did not going very smoothly in front of the MDL judge, who allowed the plaintiffs lawyers to slow down the process by throwing in irrelevant documents and deploying rhetorical tricks. The court-appointed expert witnesses did not take kindly to the shenanigans, or to the bogus evidence. The expert panel’s unanimous rejection of the plaintiffs’ claims of connective tissue disease causation was an expensive, but long overdue judgment from which there was no appeal. Not many commentators, however, know that the panel would never have happened but for Judge Weinstein’s clever judicial politics.

In April 1997, while Judge Pointer was getting started with the neutral expert selection panel,[11] the parties met with Judge Weinstein one last time to argue the defense motions to exclude the plaintiffs’ expert witnesses. Invoking the pendency of the Rule 706 court-appointed expert witness processs in the MDL, Judge Weinstein quickly made his view clear that he would not rule on the motions. His Honor also made clear that if we pressed for a ruling, he would deny our motions, even though he had also ruled that plaintiffs’ could not make out a submissible case on causation.

I recall still the frustration that we, the defense counsel, felt that April day, when Judge Weinstein tried to explain why he would grant partial summary judgment but not rule on our motions contra plaintiffs’ expert witnesses. It would be many years later, before he let his judicial assessment see the light of day. Two decades and then some later, in a law review article, Judge Weinstein made clear that “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”[12] Indeed.

Judge Weinstein was incredibly smart and diligent, but he was human with human biases and human fallibilities. If he was a despot, he was at least kind and benevolent. In my experience, he was always polite to counsel and accommodating. Appearing before Judge Weinstein was a pleasure and an education.

[1] Laura Mansnerus, “Jack B. Weinstein, U.S. Judge With an Activist Streak, Is Dead at 99,” N.Y. Times (June 15, 2021).

[2] Christopher J. Robinette, “Judge Jack Weinstein 1921-2021,” TortsProf Blog (June 15, 2021).

[3] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994).

[4] “Selikoff Timeline & Asbestos Litigation History” (Dec. 20, 2018).

[5] See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”)

[6] In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785 (E.D.N.Y. 1984), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988); In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

[7] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[8] Reuters, “Record $25 Million Awarded In Silicone-Gel Implants Case,” N.Y. Times (Dec. 24, 1992).

[9] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Ore. 1996).

[10] In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996).

[11] MDL 926 Order 31 (May 31, 1996) (order to show cause why a national Science Panel should not be appointed under Federal Rule of Evidence 706); MDL 926 Order No. 31C (Aug. 23, 1996) (appointing Drs. Barbara S. Hulka, Peter Tugwell, and Betty A. Diamond); Order No. 31D (Sept. 17, 1996) (appointing Dr. Nancy I. Kerkvliet).

[12] Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (emphasis added).

Posted in Asbestos, Causation, Expert Witnesses, Rule 702, Rule 703, Scientific Evidence, Scientific Misconduct | No Comments »

NJ Appellate Division Calls for Do Over in Baby Powder Dust Up

May 22nd, 2021

There was quite a bit of popular media reporting of the $117 million (compensatory and punitive damages) awarded by a Middlesex County, New Jersey, jury to a man who claimed his mesothelioma had been caused by his use of baby powder. There was much less media coverage last month of the New Jersey Appellate Division’s reversal of the underlying verdicts, on grounds that the trial Judge Ana C. Viscomi had abused her discretion on several key issues.[1] The New Jersey appellate court reversed the trial court’s judgment, and remanded the Lanzo case for a new trial, in a carefully reasoned decision.[2]

Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc. (Imerys) appealed from the judgment entered by Judge Viscomi, on April 23, 2018. The appellants lodged several points of error, but the most erroneous of the erroneous trial court decisions seemed to involve a laissez-faire attitude to weak and unreliable proffered expert witness opinions.

Judge Viscomi conducted a Rule 104 hearing on the admissibility of testing of plaintiffs’ expert witness, William Longo, on crowd-sourced samples of baby powder, without chain of custody or provenance evidence. Judge Viscomi denied the challenge to Longo’s test results.

The defense had also filed Rule 702 challenges to plaintiffs’ expert witnesses, James S. Webber, Ph.D., and Jacqueline Moline, M.D., and their opinion that non-asbestiform amphibole cleavage fragments can cause mesothelioma. Judge Viscomi refused these pre-trial motions, and refused to conduct a pre-trial Rule 104 hearing on the proffered opinions. Her Honor’s denial of the Rule 702 was accompanied with little to no reasoning, which proved to be the determinant of her abuse of discretion, and deviation from the standard of judicial care.

At trial, the defense re-asserted its objections to Moline’s opinion on cleavage fragments, but Judge Viscomi permitted Moline to testify about “non-asbestiform cleavage fragments from a medical point of view.” In other words, the trial judge gave Dr. Moline carte blanche to address causation.

Understandably, on appeal, JJCI and Imerys assigned various errors. With respect to the scientific evidence, the defendants alleged that plaintiffs’ expert witnesses (Webber and Moline) failed to:

“(1) explain what causes the human body to respond in the same way to the different mineral forms;

(2) acknowledge the contrary opinions of scientists and government agencies;

(3) provide evidentiary support for their opinion that non-asbestiform minerals can cause mesothelioma; and

(4) produce evidence that their theory that non-asbestiform minerals are harmful had been subject to peer-review and publication or was generally accepted in the scientific community.”

The Federal Fiber

The genesis of the scientific dispute lay in the evolution of the definition of asbestos itself. Historically, asbestos was an industrial term for one of six different minerals, the serpentine mineral chrysotile, and the amphibole minerals, amosite, crocidolite, tremolite, anthophyllite, and actinolite. Chrysotile is, by mineralogical definition, a serpentine mineral in fibrous form. If not fibrous, the mineral is typically called antigorite.

For the five amphiboles, the definitional morass deepens. Amosite is, again, an industrial term, an acronym for “asbestos mines of South Africa,” although South Africa once mined chrysotile and crocidolite as well. Amosite is an iron-rich amphibole in the cummingtonite-grunerite family, with a fibrous habit. Cummingtonite-grunerite can be either fibrous or non-fibrous in mineral habit.

Crocidolite is an amphibole that by definition is fibrous. The same mineral, if not fibrous, is known as riebeckite. Crocidolite is, by far, the most potent cause of mesothelioma.

The remaining amphiboles, tremolite, anthophyllite, and actinolite, have the same mineralogical designation, regardless whether they occur as fibers or in non-fibrous forms.

The designation of a mineral as “asbestiform” is also rather vague, apparently conveying an industrial functionality from its fibrosity. Medically, the term asbestiform became associated with minerals that have sufficiently high aspect ratio, and small cross-sectional diameter, to be considered potentially capable of inducing pulmonary fibrosis or mesothelioma.

In 1992, the federal OSHA regulations removed non-asbestiform actinolite, tremolite, and anthophyllite from the safety standard, based upon substantial evidence that the non-asbestiform occurrences of these minerals did not present the health risks associated with asbestiform amphiboles. Because nothing is ever simple, the National Institute for Occupational Safety and Health (NIOSH) persisted in its recommendation that OSHA continue to regulate non-asbestiform amphiboles under asbestos regulatory standards. This NIOSH pronouncement, however, was extremely controversial among the ranks of NIOSH scientists. In any event, NIOSH recommendations are just that, suggestions and not binding regulations.

The mineralogical, medical, and regulatory definitions of asbestos and asbestiform minerals vary greatly, and require a great deal of discipline and precision in discussing what causes mesothelioma. The health effects of non-asbestiform minerals have been studied, however, and generally shown not to cause mesothelioma.[3]

Judge Viscomi Abused Her Discretion

The Appellate Division panel applied Accutane’s abuse of discretion standard, which permits judges to screw up to some extent, but requires reversal for their mistakes when “so wide off the mark that a manifest denial of justice resulted.” The appellate court had little difficulty in saying that the trial court was “so wide off the mark” in addressing expert witness opinion admissibility.

James Webber

In the Lanzo case, plaintiffs’ expert witnesses, James Webber and Jacqueline Moline, both opined that non-asbestiform minerals can cause mesothelioma. The gravamen of the defense’s appeal was that these expert witnesses had failed to support their opinions and that the trial judge had misapplied the established judicial gatekeeping procedures required by the New Jersey Supreme Court, in In re Accutane Litigation, 234 N.J. 340 (2018).

The Appellate Division then set out to do what Judge Viscomi had failed to do – look at the proffered opinions and assess whether they followed reasonably and reliably from the expert witnesses’ stated grounds. Although Webber opined that cleavage fragments could cause mesothelioma, he had never studied the issue himself; nor was he aware of any studies showing that showed that non-asbestiform cleavage fragments can cause mesothelioma. Webber had never expressed his opinion in scientific publications, and he failed to cite any support for his opinion in his report.

At trial, Judge Viscomi permitted Webber to go beyond his anemic report and to cite reliance upon four sources for his opinion. The Appellate Division carefully reviewed each of the four sources, and found that they either did not support Webber’s opinions or they were as equally without evidentiary support. “Webber did not identify any data underlying his opinion. Further, he did not demonstrate that any of the authorities he relied on would be reasonably relied on by other experts in his field to reach an opinion regarding causation.”

Webber cited an article by Victor Roggli, who opined that he had found asbestiform and non-asbestiform fibers in the lungs of mesothelioma patients, but who went on to conclude that fibers were the likely cause. Webber also cited an article by NIOSH scientist Martin Harper, who stated the opinion, without evidentiary support that NIOSH did not believe, in 2008, that there was “sufficient evidence for a different toxicity for non-asbestiform amphibole particles that meet the morphological criteria for a fiber.”[4]

Although Harper and company appeared to be speaking on behalf of NIOSH, in 2011, the agency clarified its position to state that its previous inclusion of non-asbestiform minerals in the definition of respirable asbestos fibers had been based upon “inclusive science”:

“Epidemiological evidence clearly indicates a causal relationship between exposure to fibers from the asbestos minerals and various adverse health outcomes, including asbestosis, lung cancer, and mesothelioma. However, NIOSH has viewed as inconclusive the results from epidemiological studies of workers exposed to EMPs^[9][elongate mineral particles] from the non[-]asbestiform analogs of the asbestos minerals.”[5]

The Appellate Division was equally unimpressed with Webber’s citation of a geologist who stated an opinion in 2009, that “using the term ‘asbestiform’ to differentiate a hazardous from a non-hazardous substance has no foundational basis in the medical sciences.” Not only was the geologist, Gregory P. Meeker, lacking in medical expertise, but his article was non-peer-reviewed (for what little good that would have done) and his opinion did not cite any foundational evidence or data in an appropriate scientific study.

Webber cited to an Environmental Protection Agency (EPA) document,[6] which stated that

“[f]or the purposes of public health assessment and protection, [the] EPA makes no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape.”

The Appellate Division observed that the EPA not provide any scientific support for its assessment. Furthermore, the language cited by Webber clearly suggests that the EPA was issuing a precautionary view, not a scientific one.

Considering the Daubert factors, and New Jersey precedent, the Appellate Division readily found that Webber’s opinion was inadmissible. His opinion about non-asbestiform minerals was unsupported by data and analysis in published, peer-reviewed studies; the opinion was clearly not generally accepted; and the opinion had never been published by Webber himself. Plaintiffs had failed to show that Webber’s “methodology involv[ed] data and information of the type reasonably relied on by experts in the scientific field.”[7] The trial court’s observation that the issue of cleavage fragments was “contested” could not substitute for the required assessment of methodology and of the underlying data relied upon by Webber. Judge Viscomi abused her discretion in admitting Webber’s testimony.

Jacqueline Moline

Moline’s expert testimony that non-asbestiform minerals can cause mesothelioma suffered from many of the same defects as Webber’s opinion on this topic. The trial court once again did not conduct a pre-trial or in-trial hearing to assess Moline’s opinion, and it did not perform the rigorous assessment required by Rule 702 and the Accutane case to determine whether Moline’s opinions met the applicable (so-called Daubert) standards. The Appellate Division emphatically held that the trial court erred in permitting Moline to testify, over objection.

Moline vacuously opined that non-asbestiform amphiboles cause mesothelioma, but failed to identify any specific studies that actually supported this proposition. Like Webber, she pointed to an EPA document, from 2006, which also failed to support her asseverations. Moline also claimed support from the CDC, the American Thoracic Society, and other EPA pronouncements, but never cited anything specifically. In her pre-trial report, Moline claimed that New York state talc minerals experienced mesotheliomas from exposure to the mining and milling of talc that contained about “50% non-asbestiform anthophyllite and tremolite.” Moline’s report, however, was devoid of any reference for this remarkable claim.

Moline’s trial testimony was embarrassed on cross-examination when the defense confronted her with prior testimony she gave in another case, in which she testified that she lacked “information … one way or the other” say whether non-asbestiform minerals were carcinogenic. Moline shrugged off the impeachment with a claim that she had since come to learn of mesothelioma occurrences among patients with non-asbestiform mineral exposures. Nonetheless, Moline still could not identify the studies she relied upon to answer the question whether “asbestos-related diseases can be caused by the non-asbestiform varieties of the six regulated forms of asbestos.”

Reversal and Remand

Having concluded that the trial court erred and abused its discretion in denying the defense motions contra Webber and Moline, and having found that the error was harmful to the defense’s right to a fair trial, the appellate court reversed and remanded for new (separate) trials against JJCI and Imerys. There will be, no doubt, attempts to persuade the New Jersey Supreme Court to consider the issues further. The state Supreme Court’s jurisdiction is discretionary, and assuming that the high Court rejects petitions for certification, the case will return to the Middlesex County trial court. The intended nature of further trial court proceedings is, at best, a muddle. The Appellate Division has already done what Judge Viscomi failed to do. The three-judge panel carefully reviewed the plaintiffs’ proffered opinion testimony on causation and found it inadmissible. It would thus seem that the order of business would be for the defense to file motions for summary judgment for lack of admissible causation opinions, and for the trial court to enter judgment for the defense.

————————————————————————————————————

[1] To be fair, there was some coverage in local, and in financial and legal media. See, e.g., Jef Feeley, “J&J Gets Banker’s $117 Million Talc Verdict Tossed on Appeal,” (April 28, 2021); Mike Deak, “Appeals court overturns $117 million Johnson & Johnson baby powder verdict,” My Central Jersey (April 28, 2021); “J&J, Imerys Beat $117M Talc Verdicts Over Flawed Testimony,” Law360 (April 28, 2021); Irvin Jackson, “$117M J&J Talc Cancer Verdict Overturned By New Jersey Appeals Court,” About Lawsuits (April 30, 2021).

[2] See Lanzo v. Cyprus Amax Minerals Co., Docket Nos. A-5711-17, A-5717-17, New Jersey Superior Court, App. Div. (April 28, 2021).

[3] See “Ingham v. Johnson & Johnson – A Case of Meretricious Mensuration?” (July 3, 2020); “ Tremolitic Tergiversation or Ex-PIRG-Gation?” (Aug. 11, 2018).

[4] “Differentiating Non-Asbestiform Amphibole and Amphibole Asbestos by Size Characteristics,” 5 J. Occup. & Envt’l Hygiene 761 (2008).

[5] NIOSH, “Asbestos Fibers and Other Elongate Mineral Particles: State of the Science and Roadmap for Research,” Current Intelligence Bulletin 62 (April 2011).

[6] The document in question was issued in 2006, by EPA Region 9, in response to a report prepared by R.J. Lee Group, Inc. The regional office of the EPA criticized the R.J. Lee report for applying “a [g]eologic [d]efinition rather than a [p]ublic [h]ealth [d]efinition to [c]haracterize [m]icroscopic [s]tructures,” noting that the EPA made “no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape.” This document thus did not address, with credible evidence, the key issue in the Lanzo case.

[7] Lanzo (quoting Rubanick, 125 N.J. at 449).

Posted in Asbestos, Causation, Expert Witnesses, Rule 702 | 1 Comment »

Reference Manual on Scientific Evidence v4.0

February 28th, 2021

The need for revisions to the third edition of the Reference Manual on Scientific Evidence (RMSE) has been apparent since its publication in 2011. A decade has passed, and the federal agencies involved in the third edition, the Federal Judicial Center (FJC) and the National Academies of Science Engineering and Medicine (NASEM), are assembling staff to prepare the long-needed revisions.

The first sign of life for this new edition came back on November 24, 2020, when the NASEM held a short, closed door virtual meeting to discuss planning for a fourth edition.[1] The meeting was billed by the NASEM as “the first meeting of the Committee on Emerging Areas of Science, Engineering, and Medicine for the Courts: Identifying Chapters for a Fourth Edition of The Reference Manual on Scientific Evidence.” The Committee members heard from John S. Cooke (FJC Director), and Alan Tomkins and Reggie Sheehan, both of the National Science Foundation (NSF). The stated purpose of the meeting was to review the third edition of the RMSE to identify “identify areas of science, technology, and medicine that may be candidates for new or updated chapters in a proposed new (fourth) edition of the manual.” The only public pronouncement from the first meeting was that the committee would sponsor a workshop on the topic of new chapters for the RMSE, in early 2021.

The Committee’s second meeting took place a week later, again in closed session.[2] The stated purpose of the Committee’s second meeting was to review the third edition of the RMSE, and to discuss candidate areas for inclusion as new and updated chapters for a fourth edition.

Last week saw the Committee’s third, public meeting. The meeting spanned two days (Feb. 24 and 25, 2021), and was open to the public. The meeting was sponsored by NASEM, FJC, along with the NSF, and was co-chaired by Thomas D. Albright, Professor and Conrad T. Prebys Chair at the Salk Institute for Biological Studies, and the Hon. Kathleen McDonald O’Malley, who sits on the United States Court of Appeals for the Federal Circuit. Identified members of the committee include:

Steven M. Bellovin, professor in the Computer Science department at Columbia University;

Karen Kafadar, Departmental Chair and Commonwealth Professor of Statistics at the University of Virginia, and former president of the American Statistical Association;

Andrew Maynard, professor, and director of the Risk Innovation Lab at the School for the Future of Innovation in Society, at Arizona State University;

Venkatachalam Ramaswamy, Director of the Geophysical Fluid Dynamics Laboratory of the National Oceanic and Atmospheric Administration (NOAA) Office of Oceanic and Atmospheric Research (OAR), studying climate modeling and climate change;

Thomas Schroeder, Chief Judge for the U.S. District Court for the Middle District of North Carolina;

David S. Tatel, United States Court of Appeals for the District of Columbia Circuit; and

Steven R. Kendall, Staff Officer

The meeting comprised five panel presentations, made up of remarkably accomplished and talented speakers. Each panel’s presentations were followed by discussion among the panelists, and the committee members. Some panels answered questions submitted from the public audience. Judge O’Malley opened the meeting with introductory remarks about the purpose and scope of the RMSE, and of the inquiry into additional possible chapters.

Challenges in Evaluating Scientific Evidence in Court

The first panel consisted entirely of judges, who held forth on their approaches to judicial gatekeeping of expert witnesses, and their approach to scientific and technical issues. Chief Judge Schroeder moderated the presentations of panelists:

Barbara Parker Hervey, Texas Court of Criminal Appeals;

Patti B. Saris, Chief Judge of the United States District Court for the District of Massachusetts, member of President’s Council of Advisors on Science and Technology (PCAST);

Leonard P. Stark, U.S. District Court for the District of Delaware; and

Sarah S. Vance, Judge (former Chief Judge) of the U.S. District Court for the Eastern District of Louisiana, chair of the Judicial Panel on Multidistrict Litigation.

Emerging Issues in the Climate and Environmental Sciences

Paul Hanle, of the Environmental Law Institute moderated presenters:

Joellen L. Russell, the Thomas R. Brown Distinguished Chair of Integrative Science and Professor at the University of Arizona in the Department of Geosciences;

Veerabhadran Ramanathan, Edward A. Frieman Endowed Presidential Chair in Climate Sustainability at the Scripps Institution of Oceanography at the University of California, San Diego;

Benjamin D. Santer, atmospheric scientist at Lawrence Livermore National Laboratory; and

Donald J. Wuebbles, the Harry E. Preble Professor of Atmospheric Science at the University of Illinois.

Emerging Issues in Computer Science and Information Technology

Josh Goldfoot, Principal Deputy Chief, Computer Crime & Intellectual Property Section, at U.S. Department of Justice, moderated panelists:

Jeremy J. Epstein, Deputy Division Director of Computer and Information Science and Engineering (CISE) and Computer and Network Systems (CNS) at the National Science Foundation;

Russ Housley, founder of Vigil Security, LLC;

Subbarao Kambhampati, professor of computer science at Arizona State University; and

Alice Xiang, Senior Research Scientist at Sony AI.

Emerging Issues in the Biological Sciences

Panel four was moderated by Professor Ellen Wright Clayton, the Craig-Weaver Professor of Pediatrics, and Professor of Law and of Health Policy at Vanderbilt Law School, at Vanderbilt University. Her panelists were:

Dana Carroll, distinguished professor in the Department of Biochemistry at the University of Utah School of Medicine;

Yaniv Erlich, Chief Executive Officer of Eleven Therapeutics, Chief Science Officer of MyHeritage;

Steven E. Hyman, director of the Stanley Center for Psychiatric Research at Broad Institute of MIT and Harvard; and

Philip Sabes, Professor Emeritus in Physiology at the University of California, San Francisco (UCSF).

Emerging areas in Psychology, Data, and Statistical Sciences

Gary Marchant, Lincoln Professor of Emerging Technologies, Law and Ethics, at Arizona State University’s Sandra Day O’Connor College of Law, moderated panelists:

Xiao-Li Meng, the Whipple V. N. Jones Professor of Statistics, Harvard University, and the Founding Editor-in-Chief of Harvard Data Science Review;

Rebecca Doerge, Glen de Vries Dean of the Mellon College of Science at Carnegie Mellon University, member of the Dietrich College of Humanities and Social Sciences’ Department of Statistics and Data Science, and of the Mellon College of Science’s Department of Biological Sciences;

Daniel Kahneman, Professor of Psychology and Public Affairs Emeritus at the Princeton School of Public and International Affairs, the Eugene Higgins Professor of Psychology Emeritus at Princeton University, and a fellow of the Center for Rationality at the Hebrew University in Jerusalem; and

Goodwin Liu, Associate Justice of the California Supreme Court.

The Proceedings of this two day meeting were recorded and will be published. The website materials are unclear whether the verbatim remarks will be included, but regardless, the proceedings should warrant careful reading.

Judge O’Malley, in her introductory remarks, emphasized that the RMSE must be a neutral, disinterested source of information for federal judges, an aspirational judgment from which there can be no dissent. More controversial will be Her Honor’s assessment that epidemiologic studies can “take forever,” and other judges’ suggestion that plaintiffs lack financial resources to put forward credible, reliable expert witnesses. Judge Vance corrected the course of the discussion by pointing out that MDL plaintiffs were not disadvantaged, but no one pointed out that plaintiffs’ counsel were among the wealthiest individuals in the United States, and that they have been known to sponsor epidemiologic and other studies that wind up as evidence in court.

Panel One was perhaps the most discomforting experience, as it involved revelations about how sausage is made in the gatekeeping process. The panel was remarkable for including a state court judge from Texas, Judge Barbara Parker Hervey, of the Texas Court of Criminal Appeals. Judge Hervey remarked that [in her experience] if we judges “can’t understand it, we won’t read it.” Her dictum raises interesting issues. No doubt, in some instances, the judicial failure of comprehension is the fault of the lawyers. What happens when the judges “can’t understand it”? Do they ask for further briefing? Or do they ask for a hearing with viva voce testimony from expert witnesses? The point was not followed up.

Leonard P. Stark’s insights were interesting in that his docket in the District of Delaware is flooded with patent and Hatch-Waxman Act litigation. Judge Stark’s extensive educational training is in politics and political science. The docket volume Judge Stark described, however, raised issues about how much attention he could give to any one case.

When the panel was asked how they dealt with scientific issues, Judge Saris discussed her presiding over In re Neurontin, which was a “big challenge for me to understand,” with no randomized trials or objective assessments by the litigants.[3] Judge Vance discussed her experience of presiding in a low-level benzene exposure case, in which plaintiff claimed that his acute myelogenous leukemia was caused by gasoline.[4]

Perhaps the key difference in approach to Rule 702 emerged when the judges were asked whether they read the underlying studies. Judge Saris did not answer directly, but stated she reads the reports. Judge Vance, on the other hand, noted that she reads the relied upon studies. In her gasoline-leukemia case, she read the relied-upon epidemiologic studies, which she described as a “hodge podge,” and which were misrepresented by the expert witnesses and counsel. She emphasized the distortions of the adversarial system and the need to moderate its excesses by validating what exactly the expert witnesses had relied upon.

This division in judicial approach was seen again when Professor Karen Kafadar asked how the judges dealt with peer review. Judge Saris seemed to suggest that the peer-reviewed published article was prima facie reliable. Others disagreed and noted that peer reviewed articles can have findings that are overstated, and wrong. One speaker noted that Jerome Kassirer had downplayed the significance of, and the validation provided by, peer review, in the RMSE (3^rd ed 2011).

Curiously, there was no discussion of Rule 703, either in Judge O’Malley’s opening remarks on the RMSE, or in the first panel discussion. When someone from the audience submitted a question about the role of Rule 703 in the gatekeeping process, the moderator did not read it.

Panel Two. The climate change panel was a tour de force of the case for anthropogenic climate change. To some, the presentations may have seemed like a reprise of The Day After Tomorrow. Indeed, the science was presented so confidently, if not stridently, that one of the committee members asked whether there could be any reasonable disagreement. The panelists responded essentially by pointing out that there could be no good faith opposition. The panelists were much less convincing on the issue of attributability. None of the speakers addressed the appropriateness vel non of climate change litigation, when the federal and state governments encouraged, licensed, and regulated the exploitation and use of fossil fuel reserves.

Panel Four. Dr. Clayton’s panel was fascinating and likely to lead to new chapters. Professor Hyman presented on heritability, a subject that did not receive much attention in the RMSE third edition. With the advent of genetic claims of susceptibility and defenses of mutation-induced disease, courts will likely need some good advice on navigating the science. Dana Carroll presented on human genome editing (CRISPR). Philip Sabes presented on brain-computer interfaces, which have progressed well beyond the level of sci-fi thrillers, such as The Brain That Wouldn’t Die (“Jan in the Pan”).

In addition to the therapeutic applications, Sabes discussed some of potential forensic uses, such as lie detectors, pain quantification, and the like. Yaniv Erlich, of MyHeritage, discussed advances in forensic genetic genealogy, which have made a dramatic entrance to the common imagination through the apprehension of Joseph James DeAngelo, the Golden State killer. The technique of triangulating DNA matches from consumer DNA databases has other applications, of course, such as identifying lost heirs, and resolving paternity issues.

Panel Five. Professor Marchant’s panel may well have identified some of the most salient needs for the next edition of the RMSE. Nobel Laureate Daniel Kahneman presented some of the highlights from his forthcoming book about “noise” in human judgment.[5] Kahneman’s expansion upon his previous thinking about the sources of error in human – and scientific – judgment are a much needed addition to the RMSE. Along the same lines, Professor Xiao Li Meng, presented on selection bias, and how it pervades scientific work, and detracts from the strength of evidence in the form of:

cherry picking
subgroup analyses
unprincipled handling of outliers
selection in methodologies (different tests)
selection in due diligence (check only when you don’t like results)
publication bias that results from publishing only impressive or statistically significant results
selection in reporting, not reporting limitations all analyses
selection in understanding

Professor Meng’s insights are sorely lacking in the third edition of the RMSE, and among judicial gatekeepers generally. All too often, undue selectivity in methodologies and in relied-upon data is treated by judges as an issue that “goes to the weight, not the admissibility” of expert witness opinion testimony. In actuality, the selection biases, and other systematic and cognitive biases, are as important as, if not more important than, random error assessments. Indeed a close look at the RMSE third edition reveals a close embrace of the amorphous, anything-goes “weight of the evidence” approach in the epidemiology chapter. That chapter marginalizes meta-analyses and fails to mention systematic review techiniques altogether. The chapter on clinical medicine, however, takes a divergent approach, emphasizing the hierarchy of evidence inherent in different study types, and the need for principled and systematic reviews of the available evidence.[6]

The Committee co-chairs and panel moderators did a wonderful job to identify important new trends in genetics, data science, error assessment, and computer science, and they should be congratulated for their efforts. Judge O’Malley is certainly correct in saying that the RMSE must be a neutral source of information on statistical and scientific methodologies, and it needs to be revised and updated to address errors and omissions in the previous editions. The legal community should look for, and study, the published proceedings when they become available.

——————————————————————————————————

[1] See “Emerging Areas of Science, Engineering, and Medicine for the Courts: Identifying Chapters for a Fourth Edition of The Reference Manual on Scientific Evidence – Committee Meeting” (Nov. 24, 2020).

[2] See “Emerging Areas of Science, Engineering, and Medicine for the Courts: Identifying Chapters for a Fourth Edition of The Reference Manual on Scientific Evidence – Committee Meeting 2 (Virtual)” (Dec. 1, 2020).

[3] In re Neurontin Marketing, Sales Practices & Prods. Liab. Litig., 612 F. Supp. 2d 116 (D. Mass. 2009) (Saris, J.).

[4] Burst v. Shell Oil Co., 104 F.Supp.3d 773 (E.D.La. 2015) (Vance, J.), aff’d, ___ Fed. App’x ___, 2016 WL 2989261 (5th Cir. May 23, 2016), cert. denied, 137 S.Ct. 312 (2016). See “The One Percent Non-solution – Infante Fuels His Own Exclusion in Gasoline Leukemia Case” (June 25, 2015).

[5] Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein, Noise: A Flaw in Human Judgment (anticipated May 2021).

[6] See John B. Wong, Lawrence O. Gostin, and Oscar A. Cabrera, “Reference Guide on Medical Testimony,” Reference Manual on Scientific Evidence 723-24 (3ed ed. 2011) (discussing hierarchy of medical evidence, with systematic reviews at the apex).

Posted in Evidence, Expert Witnesses, Peer Review, Reference Manual on Scientific Evidence, Rule 702, Rule 703, Scientific Evidence | 89 Comments »

Larding Up the Literature

February 20th, 2021

Another bio-medical journal?

In October 2019, The Journal of Scientific Practice and Integrity published its inaugural volume one, number one issue, online. This journal purports to cover scientific integrity issues, which may well not be adequately covered in the major biomedical journals. There are reasons to believe, however, that this journal may be more of a threat to scientific integrity than a defender.

Thenew journal describes itself as:

“an interdisciplinary, peer-reviewed journal that publishes scholarly debate and original research on scientific practices that impact human and environmental health.”

The editorial board reads like a Who’s Who’s list of “political scientists” who testify a LOT for claimants, and who, when not working for the lawsuit industry, practice occupational and environmental medicine for the redistribution of wealth.

David Egilman, contemnor and frequent plaintiffs’ expert witness in personal injury litigation is editor in chief. Tess Bird, an Egilman protégé, is managing editor. Another Egilman protégé, Susana Rankin Bohme, an associate Director of Research at Corporate Accountability International, also sits on the editorial board. You may be forgiven for believing that this journal will be an Egilman vanity press. The editorial board also includes some high-volume testifying plaintiffs expert witnesses:

Peter Infante, of Peter F. Infante Consulting, LLC, Virginia

Adriane Fugh-Berman, of PharmedOut

Barry Castleman,

William E. Longo, President, MAS, LLC

David Madigan,

Michael R. Harbut,

David Rosner, and

Gerald Markowitz

The journal identifies the Collegium Ramazzini as one of its “partners.” Cue the “Интернационал”!

The first issue of this new journal features a letter[1] from the chief and managing editors, Egilman and Bird, which states wonderfully aspirational goals. The trick will be whether the journal can apply its ethical microscope to all actors in the world of scientific publishing, or whether this new journal is just not another lawsuit industry propaganda outlet.

Egilman’s previous editorial perch was at the International Journal of Occupational and Environmental Health, which was published by Maney Publishing. In 2015, the British company, the Taylor & Francis Group, acquired the IJOEH, with Maney’s other journals, and installed a new editor-in-chief, Andrew Maier. Egilman was cast out; hence the new journal.

Egilman’s new journal will feature among other types of articles, “reviews of legal testimony,” as a scholarly subject. It will be interesting to see whether such reviews assess the testimony of lawsuit industry witnesses, as well as manufacturing industry witnesses.

The new journal requires the use of the International Committee of Medical Journal Editors (ICMJE) conflict-of-interest and funding disclosure rules, and the use of the ICMJE form. Accordingly, authors “should” report all conflicts, including:

“[a]ny financial contributions, payments, or funding for the present work;

relevant financial activities outside of the submitted work;

any patents or copyrights broadly relevant to the work; and

any relationships that readers could perceive to influence the submitted work.”

There have been only two issues of Egilman’s new journal so far, but I decided to spot check compliance. The first article[2] I saw was by Colin Soskolne, who has testified for the lawsuit industry in a diacetyl case.[3] Oops; no disclosure.

Does Soskolne’s bias show? In the spot-checked article, authors Sokolne and Baur reprise a publication previously part of a 2018 Collegium Ramazzini convocation entitled “Corporate Influence Threatens the Public Health.” The aim of the convocation speakers was to press their claims that [manufacturing] corporate influence undermines scientific integrity through discernible methods, all by “those in the pay of industry”:

infiltrating journal editorial boards by scientists, with the resulting publication of poorly designed, biased research that foments doubt;
interfering with “the independent activities of IARC” and similar agencies;
blocking “much needed” regulation of “hazardous agents,” such as pesticides and polyfluoroalkyl substances (PFAS); and
promulgating causal criteria, which are baseless and which “block workers’ access to legal remedies for occupational illness and premature death.”[4]

There can be little doubt that Soskolne is not interested in messing with “those in the pay of the lawsuit industry.” Soskolne’s biases are fairly clear, clear enough for us to complain that he has not disclosed that he has been compensated by the lawsuit industry, and that he has deep positional conflicts as well. Ironically, he is writing in a journal that itself appears to lack “balance.” The editorial board of the journal for which Soskolne was writing is composed of many of “those in the pay of the lawsuit industry.”

Soskolne is keen to preserve the independence of IARC, but that perceived independence has become a sad, sick joke, with the exclusion of most anyone who has had any working relationship with manufacturing industry, while engaging many with deep ties to the lawsuit industry. Soskolne’s assessment of “much needed” regulation ultimately must be evaluated on the facts and data of each putative toxic substance. If the claim of harmful effects is correct, then regulation may well be “much needed.” If the claim is not correct, then regulation will be much “unneeded.” As for promulgating causal criteria, there is no doubt that the Soskolne, along with the editorial board of this new journal, would like to see the abrogation of causal criteria, so that workers have legal remedies ad libitum.

Soskolne and Baur provide their hit list of the methods of obfuscation or of techniques used to undermine science and policy.[5] There is precious little in their list, however, that is not common place among all journals that publish occupational and environmental epidemiology, including the journals that have been captured by the lawsuit industry’s scientists. Soskolne and Baur also provide a catalogue of how lawsuit industry scientists would subvert science and lock in their biased and selective interpretation of data:

elevate biological plausibility into sufficient basis for causal inference
conflate species and ignore species differences in order to allow animal studies to suffice for causal inference for humans
ignore substantial, relevant biological differences in even slight structural differences among various molecules to enable assertions of harm based upon similar molecular structure of a putative toxic substance

Soskolne ends with a quote from the “pink panthers,” two radical, labor historians, both editorial board members of this new journal, and who both have testified many times for the lawsuit industry:

“[A]s a society, we cannot entrust those with self-interest to be the judge and jury of what is and what is not a danger[;] … that can only lead to compromised science, a questionable decisionmaking process, and a potentially polluted world.”[6]

The pink panthers are, of course, correct, but we must understand that self-interest and conflict of interest can be, and are, both ideological, positional, as well as economic.

[1] Tess Bird & David Egilman, “Letter from the Editors: An Introduction to the Journal of Scientific Practice and Integrity,” 1 J. Sci. Practice & Integrity 1 (2019).

[2] Colin Soskolne & Xaver Baur, “How Corporate Influence Continues to Undermine the Public’s Health,” 1 J. Sci. Practice & Integrity 1 (2019), available at DOI: 10.35122/jospi.2019.878137 [cited as Soskolne & Baur]

[3] See Watson v. Dillon Companies, 797 F. Supp. 2d 1138 (D. Colo. 2011) (addressing Soskolne’s testimony).
[4] Soskolne & Baur at 1-2.

[5] Soskolne & Baur at 3.

[6] Soskolne & Baur at 4, quoting from Gerald Markowitz & David Rosner, “Monsanto, PCBs, and the creation of a ‘world-wide ecological problem’,” 39 J. Pub. Health Policy 463 (2018).

Posted in Cognitive Biases, Conflicts of Interest, Expert Witnesses, Scientific Publishing | No Comments »

Dr. Harry Shubin – Asbestos Litigation Hall of Shame

February 19th, 2021

Many physicians took and failed the so-called B-reader examination for proficiency in using the International Labor Office’s grading schema of chest radiographs for pneumoconiosis. Famously, Irving Selikoff was someone who took but failed this examination, and he stopped serving as a clinical expert witness in asbestos cases. No one can say for sure whether there was cause and effect. In Philadelphia, South Jersey pulmonary physician, Dr. Joseph Sokolowski, was a frequent testifier for plaintiffs, despite his having failed the B-Reader examination three times. Sokolowski was conditionally fined and disqualified from testifying in Philadelphia because of his refusal to comply with compulsory process for his B-Reader test results.[1]

The only physician I encountered who lied outright about his B-reader examination results was the late Harry Shubin. Some people may know of Dr. Shubin only because of the “Harry Shubin, M.D. Statesman in Healthcare Administration Award,” presented by the American Academy of Medical Administrators. Indeed, Shubin had a long career in hospital administration. He was graduated from Temple School of Medicine in 1937, and went into family practice, at the age of 22. Later, he specialized in the treatment of tuberculosis and pulmonary disease.[2] Over his long career, he was a patron of the arts and of other charities in Philadelphia.

In 1955, Dr Shubin became the president of the American Academy of Tuberculosis Physicians.[3] In 1958, Shubin was elected head of staff at Pennsylvania General Hospital.[4] He later became the medical director of the Northern Division of Philadelphia General Hospital.

In 1962, along with 18 other physicians, Shubin purchased a 104-bed hospital, known as the Broad Street Hospital, at 739 South Broad Street, for which he would become medical director.[5] When the Jefferson Medical College sold its Barton Memorial Hospital for “diseases of the chest,” including silicosis and coal workers’ pneumoconiosis, at Broad and Fitzwater Streets, the South Broad Street Medical Center, Inc., bought it. Shubin was the medical director.[6]

Shubin’s career as a medical director suffered in the ensuing decades.[7] In 1970, after a hearing, Dr. Shubin was disqualified by the U.S. Food & Drug Administration from receiving investigational products.[8] And then in 1981, his Center City Hospital, at 1829 Pine Street, closed, under pressure from both Blue Cross and the federal Health Systems Agency.[9]

Perhaps those setbacks explain Dr. Shubin’s foray into the lucrative world of expert witnessing in the asbestos litigation. Shubin started turning up as an expert witness for plaintiffs in hundreds of cases, in 1985. Dr. Peter Theodos, a prominent Philadelphia pulmonary physician had been designated to testify in these cases, but he died while the cases languished due to the huge backlog of asbestos cases in Philadelphia.

Shubin’s qualifications to replace Theodos were thin, Aside from an insignificant paper in a Pennsylvania Medicine,[10] Shubin had not written anything on asbestos or asbestos-related disease. Shubin was, however, a media hound, and in 1985, he was turning up at union halls and town hall meetings across Pennsylvania.[11]

Despite his lack of significant experience and expertise in asbestos-related disease, Shubin could put on a great show for uncritical Philadelphia juries. He was charming and persuasive. His years of public speaking on behalf of his beleaguered hospitals gave him confidence and skills of evasion in the witness box. When confronted with statements from Selikoff’s book or articles, Shubin would chuckle, smile knowingly, and say that he taught Selikoff everything about asbestos. His demeanor was avuncular and cherubic, which made cross-examination even more difficult.

Initially, Shubin testified that he was a B-reader, but after the defense verified his absence from the NIOSH list of certified B-readers, he “modified” his next trial’s testimony to state that he had started, but had not finished, the examination because of an eye problem.

After inquiring at NIOSH and learning that Shubin had finished the examination, defense counsel confronted Shubin yet again, only to have his tale embellished by a claim that he had withdrawn from the examination after finishing because of the eye problem, and wrote to NIOSH to ask that his examination not be evaluated.

In 1986, the leading asbestos plaintiffs’ firm was pushing one of its many cases to trial, with a Shubin report to support its claims.[12] Although the defense expert witnesses had given this plaintiff a clean bill of health, we had sufficient concerned about Shubin’s testimonial skills, that I decided to document Shubin’s perjury on the subject of his B-Reader status.

In 1986, the records’ custodian of B-Reader test results for NIOSH was Mitizie Martin, in Morgantown, West Virginia. After a good deal of procedural wrangling, I was able to obtain a court order that required plaintiffs’ counsel’s appearance for a deposition of Ms. Martin, in Morgantown. I noticed her deposition in all Philadelphia asbestos cases and gave all plaintiffs’ firms notice of the event. And so, in the first week of September, 1986, plaintiffs’ counsel, John DiDonato, and I were on board a small airplane for a bumpy ride to Morgantown, for Ms. Martin’s deposition.[13]

Martin was a wonderful witness. In 1986, she was Chief of the X-ray Receiving Center Section, Division of X-Ray Disease Studies, for NIOSH. She had been with NIOSH or its predecessor for 20 years.[14] Martin explained NIOSH’s role in teaching the A-Reader course, and in administering the B-Reader examination, along with the American College of Radiology, and its record retention policies.

Martin described the B-reader examination, which at the time required a showing of proficiency in interpreting 125 chest films for the presence and absence of various pneumoconiosis, according to the ILO scale.[15]

Finally, and most important, Martin authenticated the Shubin file, and laid a foundation for its admissibility at all future asbestos trials. Shubin had sought to become a B-Reader by taking the required test, in March 1982, in Orlando, Florida.[16] He completed but failed that examination in 1982, after which he wrote to Ms. Martin, to express his desire to take the test again. He made no mention of an eye problem; nor did he request that the 1982 results be disregarded. Martin wrote back to explain that he would have to wait a year before taking the examination again.[17]

Shubin waited three years, but he eventually signed up for, and took, the B-Reader examination a second time, in March 1985, on Kiawah Island, South Carolina. This second attempt resulted in a second failure, and a notification to Shubin that he had received a “failing grade, deficient in most categories.”[18] Shubin had thus taken the B-Reader examination twice, and failed both times. He had never abandoned the test; nor had he written to NIOSH to request a withdrawal from the examination, or to notify the agency of an eye-sight problem.[19]

My then colleague, Terri Keeley, was set to try the next-schedule case in which Dr. Shubin was supposed to have testified, in September 1986. Unsurprisingly, the case resolved. As soon as I received the transcript, I provided a copy gratis to every asbestos plaintiffs’ firm in Philadelphia. The result was that we never saw Dr. Shubin in an asbestos case again. Occasionally, we would receive a Dr. Shubin report, but a quick reminder of the procedural history behind Ms. Mitzie Martin’s deposition testimony sealed his effectual exclusion.

Remarkably, despite the notoriety he had gained in the Philadelphia asbestos litigation, Shubin showed up in the high-profile Paoli Railroad PCB case, as an expert witness on causation.[20] In the Paoli case, Shubin gave rather unscientific testimony that conflated general and specific causation, and assumed that PCBs caused individual plaintiffs’ disease because PCBs can cause disease.[21] As far I can determine, he was never confronted with his perjuries from the Philadelphia asbestos cases.

————————————————————————————————————————

[1] Downing v. Johns-Manville Corp., Philadelphia Cty. Ct. C.P. 1981- 11- 3762, Order sur Motion to Compel Dr. Sokolowski to answer interrogatories and produce documents related to his failure of the B-Reader examination (Mar. 31, 1988).

[2] “Harry Shubin Obituary,” Phila. Inq. at 25 (Mar. 7, 1997) (Dr. Shbuin died March 2, 1997).

[3] “News from the Field,” 45 Am. J. Pub. Health 1399 (1955).

[4] “Pennsylvania General Hospital,” Phila. Inq. at 29 (Mar. 25, 1958).

[5] “Doctor-Owned Hospital Opens in South Philadelphia,” Phila. Daily News at p.19 (Feb. 5, 1962).

[6] “Medical Center Sells Building,” Phila. Daily News at 57 (May 5, 1961).

[7] Frank Dougherty, “11 Hospitals Cut from Blue Cross,” Phila. Daily News at p.3 (Nov. 14, 1972) (Broad Street Hospital cut).

[8] Office of Regulatory Affairs Compliance References: Bioresearch Monitoring (Mar. 16, 1970).

[9] Phila. Inq. at 5 (Mar. 18, 1981) (Shubin, medical director).

[10] Harry Shubin, “Asbestosis: inhalation disease of the lungs,” 88 Pa. Med. 54, 56, 58 (1985).

[11] See, e.g., “Pat Purcell, Angry Man,” Pottsville Republican (Pottsville, PA) at p.1 (Mar. 14, 1987); Frank Scholz, “Help Coming for Asbestos Victims Living Here,” The Times-Tribune (Scranton, PA Sept. 15, 1985).

[12] Ove Nyman v. Johns-Mansville Corp., Phila. Cty. Ct. C.P. (April Term, 1981). Years later, I met Mr. Nyman at my sister-in-law’s wedding, where he and his wife were dancing vigorously.

[13] Deposition of Mitzie Martin, in Ove Nyman v. Johns-Mansville Corp., Phila. Cty. Ct. C.P. (April Term, 1981), taken on Sept. 5, 1986.

[14] Id. at 3.

[15] Id. at 7.

[16] Id. at 12-13.

[17] Id. at 14.

[18] Id. at 14-15.

[19] Id. at 16-19.

[20] In re Paoli R.R. Yard PCB Litig., 706 F. Supp. 358, 364-65 (E.D. Pa. 1988), rev’d, 916 F.2d 829, 840 (3d Cir. 1990), cert. denied, 111 S. Ct. 1584 (1991).

[21] Susan R. Poulter, “Science and Toxic Torts: Is There a Rational Solution to the Problem of Causation?” 7 High Technology L.J. 189, 238 (1993).

Posted in Asbestos, Expert Witness Hall of Shame, Expert Witnesses | No Comments »

Lawsuit Industry Expert Witness Robert Neel Proctor’s Intimidation Tactics

December 25th, 2020

In his autobiography, Sir Karl Popper described one of the most curious and interesting confrontations in 20th century philosophy. While visiting Cambridge University to give a guest lecture, Popper was hectored by the renown chairman of the philosophy department, Ludwig Wittgenstein. While nervously playing with a fireplace poker and waving it about for emphasis, Wittgenstein challenged Popper to provide an example of a moral rule. Popper rejoined “Not to threaten visiting lecturers with pokers,” after which Wittgenstein threw down the poker and stormed out of the room.[1]

A more recent anecdote in this century gives rise to another moral rule, “thou shalt not bully graduate students working for your adversary.”

The law firm of Jones Day, representing tobacco mega-defendant R. J. Reynolds in personal injury lawsuits, was working with Associate Professor Gregg L. Michel, at the University of Texas. Michel needed research assistants to help with this litigation consulting work, and so in 2008, he reached out to J. Matthew Gallman, a professor of history at the University of Florida, to help line up some worker bees. Gallman helped Michel hire four master-level graduate students from Gallman’s department.

Tobacco lawsuit industry testifier Associate Professor Louis M. Kyriakoudes, at University of Southern Mississippi, learned of the arrangement from his involvement in tobacco litigation. Kyriakoudes shared the information with his fellow-traveling expert witness for tobacco plaintiffs, Robert Neel Proctor.

There was no impropriety in Michel’s hiring the graduate students to assist with his research. Parties are allowed to have consulting expert witness, if for no other reason than to test the accuracy of the other side’s expert witness’s opinions. The research assignment involved searching the archives of a local Pensacola newspaper, in the 1940s, for coverage of smoking’s ill health effects. According to Gallman, the students were “explicitly told not to be selective,” to favor one party or the other.

Proctor was, and still is, a highly paid expert witness for the tobacco lawsuit industry, that is the plaintiffs’ bar, and a regular feature of tobacco trials. After learning the names of the graduate students from his litigation work, Proctor in turn contacted Professor Vassiliki Betty Smocovitis, who held joint appointments in the University of Florida history and biology departments.[2]

In a fairly obvious effort to intimidate and harass the students, Proctor revealed the students’ names to Smocovitis, and pressed his tendentious, gratuitous opinion:

“In my view this is historical malpractice, and I would be very interested to know if the advisers of these students know what they have been doing.”

Smocovitis, who had never been involved in litigation as a partisan expert witness, dutifully carried out the inquiry for Proctor, only to find, unsurprisingly, that her colleagues did not believe that the students had done anything improper. According to her emails, Smocovitis reported back to Proctor that her departmental colleagues were indifferent or annoyed or both for her having bothered them with Proctor’s issue. She told Proctor that “I’m afraid that this is a case of ‘shoot the messenger’, so I can’t persist without alienating myself further,” She resisted Proctor’s importuning to raise the issue at a faculty meeting.

Lawyers at Jones Day sought emails of Proctor and Kyriakoudes from their university servers, and ultimately took depositions of Proctor and Kyriakoudes, the plaintiffs’ expert witnesses, and Smocovitis, in support of motions to sanction Proctor. Michel filed an affidavit in which he described how one of the four students had been led to believe by her departmental chairman, Joseph F. Spillane, that Proctor intended to publish her name.

Kyriakoudes, who dropped the dime on the graduate students, suggested in his deposition that Proctor’s intrusion into the University of Florida department was a “tactical mistake.” According the Chronicle of Higher Education, he testified that “[t]his whole business of getting involved in a department’s activities like this is just—it’s caused no end of trouble.”

In his own deposition, Proctor described the communications as:

“legitimate scholarly inquiry into the participation of historians in litigation.”

* * *

“I was simply raising an ethical issue that she might want to discuss.”

Sort of like Trump’s perfect conversation with President Volodymyr Zelensky. In Trumpian turn-around, Proctor complained that he was real victim of witness harassment and bullying by the defense counsel, in an effort to “silence him.” Ah, the flexibility of historical narrative!

What really seemed to irk Proctor was that any historian, even master-level graduate students, would disagree with him, or find historical evidence that embarrassed Proctor’s litigation positions. Proctor’s blindness to his own bad behavior in the recent past, certainly raises questions about his historical acumen.

Proctor’s play at grievance victimhood was amplified by the obsequious scholarship of Jon Wiener. In the pages of The Nation, Wiener incorrectly reported that “[n]othing improper was found, no witness tampering or intimidation, and the tobacco attorneys dropped the issue–for a while.”[3] In fact, as an historical matter, Wiener was quite wrong.

Judgment Day

The Jones Day lawyers’ motion claimed that Proctor’s improprieties was part of a pattern of behavior that stemmed from his “uncontrolled zeal to win.” Proctor, a paid advocate for the tobacco lawsuit industry, thought it was within his mandate to expose the connection between tobacco defense and historians. In doing so, he engaged in witness tampering and harassment. Proctor and his employers in the lawsuit industry responded with an attempt to portray Proctor’s ham-fisted inquiries as concern for the vulnerable graduate students who were not receiving “guidance,” which would impair their future careers.

The Motion contra Proctor came before Judge Williams Parsons, in the Volusia County Circuit Court.[4] Contrary to the Wiener report, Judge Parsons found that Proctor indeed had intended to harass and humiliate the students into abandoning their litigation support work. Judge Parsons described Proctor’s willingness to advance the plaintiffs’ case at the students’ expense as “appalling,” and “the lowest of the low.” The defense had sought Proctor’s exclusion, but Judge Parsons declined to impose this extreme sanction in favor of barring Proctor from having any contact with adversary expert witnesses or their assistants.

Conduct the following thought experiment. Imagine an historian who testifies for the defense in tobacco litigation finds out that Proctor had hired graduate students to help with research. The defense historian calls up the students’ supervisors to suggest that they are acting unethically and unprofessionally. Now close your eyes and listen to the outcry from the Wieners of the world, or from the American Historical Association! Even after the ugly facts were disclosed, there were some in in the academic historian establishment who rallied to Proctor’s defense, and tried to give Wiener cover for his mendacious coverage of the graduate student incident.[5]

Lancet-ing Adversary Expert Witnesses

Proctor’s attempt to exploit vulnerable history graduate students was not his first attempt to silence historians who disagree with him. Proctor, who has stridently criticized tobacco defense counsel for trying to “silence him,” has worked assiduously to try to silence historians who work for the other side. In a commentary piece in The Lancet, Proctor criticized colleagues who have worked on historical issues for tobacco companies’ legal defense.[6] Proctor substantively criticized his adversaries’ testimony, without providing much in the way of detail, and he implied that their work was ethically improper and rife with conflicts of interest. Perhaps more telling, Proctor himself gave conflicts disclosure that he had “worked on several occasions as an expert witness in plaintiff’s lawsuits,” without telling his readers that he was highly compensated for work.

Proctor’s one-sided analysis provoked spirited opposition from several distinguished medical historians who refused to be bullied or to acquiesce in his moral grandstanding. John C. Burnham, a Professor of History at The Ohio State, wrote a scathing letter to the Lancet’s editors, as well as opinion pieces in History News Network.[7] David Rothman, a professor at Columbia University, similarly took Proctor to task for his pretensions of doing “history” while testifying for the lawsuit industry.[8]

Perhaps the most telling rebuttal came from Professor Alan Blum, a physician and anti-tobacco activist. Dr. Blum, who is the Director of Center for the Study of Tobacco & Society, and a chaired professor at the University of Alabama, is a leading authority on the history of tobacco use and the depradations of the tobacco industry. Professor Blum found Proctor’s animadversions a bit too sanctimonious given that Proctor himself has been a compensated expert witness for the tobacco lawsuit industry.[9]

Conflicted Friends of the Court

The friend of the court brief, from disinterested third parties, is an important, potentially useful source of extra-record information and opinion for judges, both in trial and appellate courts. Historians can on occasion have important historical information, necessary for adjudication. For instance, in the theocratic zeal to strip women of their reproductive rights, historians have adduced important scholarship that abortion was lawful in all thirteen colonies at the time of the Constitutional ratification. In the context of amicus briefs, historians of course can and do overstep their distinterested roles to act as legal advocates.[10]

Speaking of overstepping, Robert Proctor filed an amicus brief in Altria Group, Inc. v. Good, which involved a tobacco industry’s challenge to Federal Trade Commission control of advertising for “light” or “lowered tar” cigarettes.[11] Accompanying Proctor were four other signatories, Allan M. Brandt, David M. Burns, Jonathan M. Samet and David Rosner.

All except for Brandt had testified multiple times as expert witnesses. Brandt, Proctor, and Samet acknowledged having testified as expert witnesses in United States v. Philip Morris USA, Inc.[12] They all conveniently forgot to note that they were remunerated, and that they had testified against Philip Morris USA, Inc. Burns, who testified as an expert witness in United States v. Philip Morris USA, Inc., failed to mention his testimonial role in that case, as well as many other tobacco cases in support of the lawsuit industry. Rosner, who had not testified in tobacco cases, failed to mention his many paid testimonial adventures for the lawsuit industry.[13]

[1] Karl Popper, Unended Quest: An Intellectual Autobiography at 141-43 (rev. ed. 2005), first published as “Autobiography by Karl Popper,” in Paul Arthur Schlipp, ed., The Philosophy of Karl Popper (1974). The incident is the subject of a book-long inquiry. David Edmonds & John Eidinow, Wittgenstein’s Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers (2001).

[2] Peter Schmidt, “Big Tobacco Strikes Back at Historian in Court,” The Chronicle of Higher Education (Nov. 8, 2009).

[3] Jon Wiener, “Big Tobacco and the Historians: A tale of seduction and intimidation,” The Nation (Feb. 25, 2010).

[4] Nathan Crabbe, “UF students caught in middle of tobacco case’s controversy,” The Gainesville Sun (Dec 8, 2009).

[5] See “More debate over Jon Wiener’s tobacco exposé,” History News Network (Dec. 13, 2010).

[6] Robert N. Proctor, “Should medical historians be working for the tobacco industry?” 363 Lancet 1173 (2004).

[7] John C. Burnham, “Medical historians and the tobacco industry,” 364 Lancet 838 (2004); John C. Burnham, “In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener,” History News Network (Mar. 29, 2010).

[8] David Rothman, “Medical historians and the tobacco industry,” 364 Lancet 839 (2004). See also Patricia Cohen, “Historians for Hire in Industry Lawsuits,” N.Y. Times (June 13, 2003) (quoting David J. Rothman, director of the Center for the Study of Science and Medicine at the Columbia College of Physicians and Surgeons, concludes, “To enter the courtroom is to do many things, but it is not to do history”).

[9] Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate,” History Network News (April 26, 2010).

[10] Nell Gluckman, “Why More Historians Are Embracing the Amicus Brief,” The Chronicle of Higher Education (May 3, 2017) (quoting Harvard history professor Tomiko Brown-Nagin’s observation that “[t]o be a legal advocate is freeing”; Brown-Nagin filed an amicus brief in the 2013 Supreme Court case involving racist policies at the University of Texas).

[11] Amicus Brief of Allan M. Brandt, Robert N. Proctor, David M. Burns, Jonathan M. Samet & David Rosner, in Support of Petition for Certiorari, in Altria Group, Inc. v. Good, No. 07-562, 2008 WL 2472390, (U.S. Supreme Court June 18, 2008).

[12] United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006).

[13] “The Amicus Curious Brief” (Jan. 4, 2018) (describing Rosner and many other plaintiffs’ expert witnesses’ failure to disclose their testimonial conflicts of interest when writing and filing an amicus brief in litigation that directly affected the economic viability of their testimony in asbestos cases for the lawsuit industry).

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