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

Trial by Twitter

August 13th, 2017

Did you read Trump’s tweet from last night?

Time to take down the Statue of Liberty. Ugly dress, too French, heavy calves. Sad, must go.”

OK. I admit, I made that up, but it could have been true. Trumpovich has said more outrageous, stupider things, frequently and with wild abandon.

I don’t really understand this Twitter thing. What worse is that I do understand how it feeds uncritical thinking by people who prefer sound bite to argument and discourse. But we live in a democracy, and this is what people want; right? This is what the First Amendment requires?

So why not make American great again, and merge two great institutions together: the right to trial by jury with the right to express one’s self in mindless sound bites? Let us admit it: Twitter has blossomed because Americans have the attention span of crickets. And many have no more cognitive ability than crickets, to boot, but you go to trial with the jurors you have, not the jurors you want.

Here is how trial by twitter might work. A “fair and impartial,” but appropriately ignorant jury is selected for a trial that involves a scientific controversy, at least a controversy in the minds of the litigants and their hired expert witnesses. The jurors need not be inconvenienced by travel to the local court house; they need only have their smartphones available at all times. If they cannot afford a smartphone, one will be given to them. The lawyers will then start to tweet their opening statements, alternating tweets. Each side is allowed 100 tweets. In trials designated complex, each side gets 150 tweets.

Then come the witnesses. One at a time, first for plaintiff; then for defendant. Each witness is permitted to tweet his or her testimony, after first tweeting an oath to tweet the truth, and nothing but the truth, so help me. The witness is permitted two tweets, after which the opposing counsel is permitted to cross-tweet once. Opposing counsel may interpose an objection tweet, with the trial judge tweeting his or her ruling. If the objection is sustained, then the offending tweet will be deleted. The 2:1 tweets are repeated until the witness has nothing left to tweet. After each witness, legal counsel are permitted interim argument of 25 tweets each, alternating. In an effort to promote early settlements, jurors are permitted to “like” tweets from witnesses or counsel, at every stage.

Final arguments are tweeted, of course, again with alternating tweets. The tweeter with the burden of proof gets the final tweet, followed by the judge’s instructions, delivered in tweets. A jury foreperson is appointed, and deliberations proceed by twitter, marked private. Verdicts are returned by the foreperson’s tweet, with the other jurors’ tweeting their agreement, or dissents. Post-verdict motions and appeals can easily be handled by twitter, as well.

Due process preserved, and the right to trial inviolate!

Half of advertising revenues go to Legal Services to pay for legal counsel for the indigent.


Science Day Should Be Every Day in Our Courtrooms — Part I

March 24th, 2017

The following post and its sequel are an expansion upon a post that I wrote with Dr. David Schwartz, of Innovative Science Solutions, LLC. Dr. Schwartz is a talented scientist with whom I had the privilege and pleasure to work at McCarter & English, before he left to become an independent scientific consultant. Dr. Schwartz is one of the founding partners of his firm, which focuses on helping lawyers with the scientific issues in complex health effects litigation. Our earlier post can be found on the Courtroom View Network’s website. “Guest Analysis: Key Takeaways from Recent Talc Powder ‘Science Day’ Hearing in California,” Courtroom View Network (Mar 24, 2017).


Every February 28th, India celebrates National Science Day in honor the Indian physicist Sir Chandrashekhara Venkata Raman, who discovered the Raman effect. The United States has no equivalent celebration, but “Science Days” have become a commonplace in complex state and federal Litigations, around the country.


The major impetus for science tutorials seems to have come from the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The holding of Daubert, now incorporated into, and extended by Federal Rule of Evidence 702, requires trial judges to act as gatekeepers of the relevance and reliability of expert witness opinion testimony in their courtrooms. One of the first tests of the judiciary’s performance to perform this role came in the silicone gel breast implant litigation. The federal silicone cases were consolidated before Judge Pointer Sam C. Pointer, Jr., in MDL 926. Judge Pointer believed that trial judges in the transferor courts should conduct whatever review of expert witness opinion was needed to satisfy the then recent Daubert decision.

Some of the first federal silicone lawsuits remanded from the MDL went to Judge Robert Jones in Portland Oregon. These cases involved complex issues of immunology, clinical rheumatology, epidemiology, toxicology, surgery, and polymer and analytical chemistry. At the outset of his case management of the remanded cases, plaintiffs’ counsel requested that Judge Jones schedule an all-day tutorial for counsel to present on these scientific issues. The parties’ tutorials, along with an avalanche of defense Daubert motions, persuaded Judge Jones to take the unusual step of appointing technical advisors to assist him in assessing the scientific evidence, inferences and claims in the silicone litigation. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1415 (D. Ore. 1996).1 Judge Jones’s technical advisors attended court throughout the Daubert hearings conducted in Portland, and they delivered advisory reports to Judge Jones to assist him in his gatekeeping function. Judge Jones ultimately granted the defense motions to exclude the plaintiffs’ expert witnesses’ claims of silicone causation of connective tissue diseases.

In large measure because of Judge Jones’s case management and exclusion of expert witness testimony, the silicone MDL court appointed a panel of neutral expert witnesses, in the fields of epidemiology, rheumatology, immunology, and toxicology.2

One of the first requests received from the Science Panel in MDL 926 was for what turned out to be a series of Science Days in which the parties’ expert witnesses would present to them, and explain their interpretation of the vast array of evidence, from different disciplines. Each presenting party expert witness was allowed 15 to 20 minutes to present. The lawyers were not entirely reduced to potted plants; they had a chance to conduct a short cross-examination. Given that the primary audience was a panel of four distinguished scientists, there was an emphasis for most of the lawyers, for the plaintiffs and the defendants, to ask pertinent, substantive questions.

The Science Panel was not entirely satisfied with the party expert witnesses, and requested a second Science Day, at which the Panel could call its own slate of scientists to address the scientific claims made in the litigation. The proceedings took place at the National Academies of Science, in Washington, D.C.

These proceedings, along with extensive submissions of articles and briefings from the parties led to the Report of National Science Panel, on November 30, 1998.

Every Day is Science Day, Somewhere

Since the breast implant litigation, many MDL and other courts have faced complex causation claims in litigation involving pharmaceutical products, medical devices, consumer products and a host of chemical exposures. Appointment of independent, neutral expert witnesses remains unusual, but trial judges have welcomed tutorials in the form of “Science Days,” to help them learn the methodologies and vocabularies of the scientific disciplines that are involved in the litigations before them. For some reason, the parties, the judges, and the legal media often reference Science Days in scare quotes, signaling that perhaps other Science takes place in these proceedings. Whether the scare quotes are warranted remains to be determined.

Science Days” have become a tradition in mass tort litigation.3 In the last few years, there is a Science Day somewhere, in some courtroom, going on, perhaps not daily, but with sufficient frequency that the phenomenon should receive more critical attention. Federal judges with multi-district litigation, or state judges with multi-county cases, set aside time to permit the parties a chance to educate them about the scientific and technical aspects of the litigations before them. Judges know that Daubert and Rule 702, or their state analogues, require them to act as gatekeepers. Furthermore, myriad motions in the discovery and trial phases of a case will require judges to make nuanced but accurate decisions about scope and content of discovery, and admissibility of documents and testimony,

Science Day – Have It Your Way

John Milton: We negotiating?

Kevin Lomax: Always.4

The Devil’s Advocate (1997).

There are no federal or state rules that set out procedures for science tutorials for judges or their appointed expert. The form and substance of Science Days depend upon a three-say negotiation among the plaintiffs, defendants, and the trial judge. Although the parties are often left to work out a plan for science day, most courts tend to weigh in by imposing time limits, and they may even rule in or rule out live witness testimony.

In 2007, the American Bar Association set out Civil Trial Practice Standards,5 which included an entire section on the use of tutorials to assist the court. [The relevant standards for tutorials is set out at the end of Part II of this post, as an appendix.]

1 See Laural L. Hooper, Joe S. Cecil, and Thomas E. Willging, “Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation,” at 9 (Federal Judicial Center 2001).

2 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).

3 See, e.g., Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges at 39 & n. 54 (Fed. Jud. Ctr. 2011); Sean Wajert, “‘Science Day’ In Mass Torts,” Mass Tort Defense (Oct. 20, 2008); Lisa M. Martin, “Using Science Day to Your Advantage,” 2(4) Pro Te: Solutio 9 (2009).

4 From the screenplay of the movie, directed by Taylor Hackford, written by Jonathan Lemkin and Tony Gilroy, and based on a novel by Andrew Neiderman.

5 American Bar Association’s “Civil Trial Practice Standards” (August 2007 & 2011 Update).

Time to Retire Ancient Documents As Hearsay Exception

August 23rd, 2015

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has prepared a Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence (Aug. 2015). The Committee seeks approval of proposed amendments to Bankruptcy Rules 1001 and 1006, and to Federal Rules of Evidence Rules 803 (16)and 902. See Debra Cassens Weiss, “Federal judiciary considers dumping ‘ancient documents’ rule,” ABA Journal Online (Aug. 19, 2015).

Rule 803(16) of the Federal Rules of Evidence is the so-called ancient document exception to the rule against hearsay. The proposed amendment would abolish this hearsay exception.

The Federal Rules of Evidence, as well as most state rules and common law, allow for the authentication of ancient documents, by showing just three things:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

Federal Rule of Evidence 902(8) (“Evidence About Ancient Documents or Data Compilations”). Rule 803(16) goes beyond the authentication to permit the so-called ancient document, more than 20-years old, appearing to be authentic, to be admitted for its truth. The Committee is seeking the abrogation of Rule 803(16), the ancient documents exception to the hearsay rule. The proposal is based upon an earlier report of the Advisory Committee on Evidence Rules. See Hon. William K. Sessions, III, Chair, Report of the Advisory Committee on Evidence Rules (May 7, 2015).

The requested change is based upon the Committee’s understanding that the exception is rarely used, and upon the development of electronic documents, which makes the exception unneccessary because so-called ancient documents would usually be admissible under the business records or the residual hearsay exceptions. Comments can be submitted online or in writing, by February 16, 2016.

The fact that a document is old may perhaps add to its authenticity, but in many technical, scientific, and medical contexts, the “ancient” provenance actually makes the content unlikely to be true. The pace of change of technical and scientific opinion and understanding is too fast to indulge this exception that permits false statements of doubtful validity to confuse the finder of fact. The rule as currently in effect is thus capable of a good deal of mischief. With respect to statements or claims to scientific knowledge, the Federal Rules of Evidence has evolved towards a system of evidence-based opinion, and away from naked opinion based upon the apparent authority or prestige of the speaker. Similarly, the age of the speaker or of the document provides no warrant for the truth of the document’s content. Of course, the statements in authenticated ancient documents remain relevant to the declarant’s state of mind, and nothing in the proposed amendment would affect this use of the document. As for the contested truth of the document’s content, there will usually be better, more recent, and sounder scientific evidence to support the ancient document’s statements if those statements are indeed correct. In the unlikely instance that more recent, more exacting evidence is unavailable, and the trustworthiness of the ancient document’s statements can be otherwise established, then the statements would probably be admissible pursuant to other exceptions to the rule against hearsay, as noted by the Committee.

Let Me Not Be Frank With You – Frank Subpoena Quashed

August 19th, 2015

In June 2015, Honeywell International Inc. subpoenaed non-party witness Dr. Arthur Frank, to produce documents and to testify, in Yates v. Ford Motor Co., et al., No. 5:12-cv-752-FL (E.D.N.C.). Although Dr. Frank is a “prolific plaintiffs’ expert” witness, he was not retained in Yates. Dr. Frank thus moved to quash the subpoena in the district where he was served, and the matter ended up on the docket of Judge Gerald J. Pappert. Frank v. Honeywell Int’l, Inc., No. 15-mc-00172, 2015 U.S. Dist. LEXIS 106453, 2015 BL 260668 (E.D. Pa. Aug. 12, 2015) [cited below as Yates]. See also Steven M. Sellers, “Asbestos Expert Tops Honeywell in Subpoena Battle,” BNA Bloomberg Law (Aug. 18, 2015).

Back in 2009, Dr. Frank lobbied the National Cancer Institute (“NCI”), and succeeded in having the NCI change its website and “Fact Sheets” about the supposed cancer risks among auto mechanics from exposure to asbestos in repairing brakes. The NCI had proposed describing any increased risk of mesothelioma or lung cancer among brake repairman as “controversial,” and not supported by the available evidence. Dr. Frank, who routinely testifies for the litigation industry that the risk is certain, known, and substantial, believed the NCI statement would be “misleading, erroneous, and contrary to the public health.” Frank believed that the NCI was basing its evaluation upon studies that were “unreliable,” and so set out to lobby the NCI. As a result of his telephoning and letter writing campaign, the NCI eliminated citations to two studies deemed unreliable (or inconvenient) to Dr. Frank, and adopted the following Frank-approved language:

“Studies into the cancer risk experienced by automobile mechanics exposed to asbestos through brake repair are limited, but the overall evidence suggests that there is no safe level for asbestos exposure.”

Yates at *4.

Operating in cahoots with, and under the guidance of asbestos plaintiffs’ counsel, Frank wrote to the NCI, of course mindful to run a draft of his correspondence past his litigation industry members. Plaintiffs’ counsel made various suggestions that Frank adopted. Yates at *5-7.

Frank objected to the subpoena on grounds that it:

(1) was too broad and unduly burdensome, as well as intended to harass;

(2) sought communications protected by attorney-client privilege; and

(3) sought the opinion of an unretained expert witness, contrary to Federal Rule of Civil Procedure 45(d)(3)(B)(ii).

The court quashed Honeywell’s subpoena only on grounds of burden, Rule 45(d)(3)(A), and did not reach Frank’s other arguments. Yates at *8.

Citing local Eastern District of Pennsylvania precedent, Judge Pappert noted that a claim of undue burden is resolved by considering several factors:

“(1) relevance of the requested materials,

(2) the party’s need for the documents,

(3) the breadth of the request,

(4) the time period covered by the request,

(5) the particularity with which the documents are described,

(6) the burden imposed, and

(7) the recipient’s status as a non-party.”

Yates at *12.

Honeywell was easily able to show the relevance of Frank’s lobbying shenanigans. Plaintiffs’ counsel have used the Frank-approved NCI website language to cross-examine defense expert witnesses, in asbestos personal injury cases.

Judge Pappert was not persuaded that Honeywell needed the requested discovery because Frank had given much of the material before, and he had previously acknowledged his working in concert with plaintiffs’ lawyers to change the NCI statement.

Honeywell thus had the evidence it needed to rehabilitate defense expert witnesses challenged with the Frank-approved NCI language. The court thus left the discovery into Frank’s ex parte lobbying activities for a case in which Frank was actually a retained expert witness, which surely will be soon. Judge Pappert exercised restraint by not addressing Frank’s improvident claim of attorney-client privilege and involuntarily servitude as an expert witness.

Frank’s lawyer, John O’Riordan, was quoted by the BNA as chastizing Honeywell:

“What the auto industry, Honeywell and others are trying to do is attack Dr. Frank personally, and what they tried to do was improper. … If they think he was wrong as a matter of science, the answer is to come back with good science.”

Steven M. Sellers, “Asbestos Expert Tops Honeywell in Subpoena Battle,” BNA Bloomberg Law (Aug. 18, 2015).

O’Riordan’s response is rather disingenuous, given that plaintiffs’ counsel in asbestos cases exploit the imprimatur of the NCI in its Frank-approved statement to challenge defense expert witnesses. This game is not about science, it is about name dropping and authority-based decision making, the antithesis of science.