TORTINI

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Legal Remedies for Suspect Medical Science in Products Cases – Part Five

June 8th, 2020

Claims under Federal and State Racketeering Acts And Other Civil Remedies

There are three types approaches to civil remedies a defendant might pursue to inhibit the flow of false claims in products cases. First, a defendant could seek to take on the entire procedure by which these claims have been developed and focus broadly on the alliance between plaintiffs’ lawyers and their medical accomplices.  The Federal Racketeering Act, RICO, offers the most likely avenue of attack for such a wide-ranging approach. Indeed, this was the approach that the CSX Railroad took in seeking redress from fraudfeasor radiologist Dr. Ray Harron and his lawsuit industry collaborators.[1] Second, the product liability defendant could select a limited number of bogus claims and file suit related specifically to those claims.  Third, the product liability defendant can seek remedies in the specific cases, after prevailing, for bad faith filings or improper conduct by lawyers.

A Challenge under RICO to the Broad Pattern Of Misconduct By Plaintiffs’ Lawyers And Their Medical Collaborators

The federal RICO statute allows a private plaintiff damaged by a “pattern of racketeering activity” to sue those involved in conducting the affairs of an enterprise through a pattern of such unlawful conduct.[2]  One of the central aspects of RICO is that it provides a civil remedy for misconduct that would otherwise be subject only to criminal sanctions.  On the other hand, to qualify for such unique remedies, a plaintiff must satisfy a number of difficult, technical requirements under the RICO statute.

While a substantial and complex body of case law has developed under RICO, the following are the main issues that bear on the viability of such a claim against the lawyers and medical professionals who are responsible for allegedly bogus claims, such as were seen in the Silica MDL:

  • The existence of repeated instances of the misconduct on which the RICO claim is predicated;
  • A showing that there has been a pattern or practice of such misconduct;
  • Proof that a person has conducted the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.[3]

Putting aside the various – and significant – technical issues, a product liability defendant must meet three fundamental requirements of persuasion before a court will likely allow it to proceed, namely showing that the pattern of false claims the product liability defendant confronts:

(1) falls well outside the normal bounds of litigation misconduct (given that courts are all too accustomed to experts whose testimony conveniently favors their respective sides);

(2) is such a wide-ranging problem that it cannot properly be addressed on a case-by-case basis like most issues of bad faith litigation conduct; and

(3) raises issues that are susceptible of judicial, rather than legislative, redress.

The Predicate Offense

The most central requirement for a RICO plaintiff is the identification of an illegal “predicate act” within the meaning of RICO – that is, an illegal action which, taken together with other instances of similar conduct, constitutes a “pattern” of racketeering activity.  The statute contains a long list of enumerated predicate offenses, one of which must occur in a “pattern” over a sufficiently long period of time for there to be a valid claim under RICO.  While there are several candidates, the most promising theory here is that the plaintiffs’ lawyers have engaged in repeated acts of bribing witnesses to provide false and/or misleading testimony at depositions and at trial — in particular, the medical professionals whose diagnoses are the linchpin of the false claims, such as those seen in the Silica MDL.[4]  It is also possible that the product liability defendant could bring a RICO case based on predicate acts of mail and wire fraud.

“Bribery” of Witnesses; Obstruction of Justice; Witness Tampering

In defining “racketeering activity,”[5] the federal RICO statute expressly refers to certain offenses that pertain to the administration of justice, including obstruction of justice,[6] witness tampering,[7] and bribery.[8]  These statutes, however, only apply to offenses committed in the course of federal proceedings.

On the other hand, Section 1961(1)(A), of the federal criminal code, also refers to “bribery. . . .chargeable under State law and punishable for imprisonment for more than one year. . . .”  There is substantial authority to the effect that “bribery” is a generic designation and does not limit predicate acts to state laws that are specifically labeled as bribery.  Rather, a court need only determine whether the alleged misconduct is the type of activity which falls within a general description of bribery.[9]  Product liability defendants may well have a claim that the dealings between plaintiffs’ lawyers and the physicians involved in medical screenings involve an ongoing course of what can properly be viewed as bribes to witnesses to submit materially false evidence in violation of state law.  Several points support this position.

There is authority under state law that payments to witnesses to provide favorable testimony do in fact constitute bribery.[10]  For example, the Texas Penal Code provides that:[11]

“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding[[12]] or coerces a witness or prospective witness in an official proceeding:

(1) to testify falsely;

(2) to withhold any testimony, information, document, or thing… .”

Similarly, Mississippi, another jurisdiction where screening activities have taken place with some abandon, has enacted a prohibition against “bribery to induce perjury” which provides as follows:

“Every person who shall, by the offer of any valuable consideration, attempt, unlawfully and corruptly, to procure any other person to commit willful and corrupt perjury as a witness in any cause, matter, or proceeding in or concerning which such other person might by law be examined as a witness, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years.”[13]

In the silica MDL cases, Judge Jack’s opinion did not specifically find that a corrupt payment was made on any particular occasion.  Rather than describing the exchange of a specific envelope of cash, the silica MDL opinion described an ongoing course of corrupt remuneration paid to medical professionals who were all too willing to bend their opinions and subvert medical standards.  Any attempt to characterize such a pattern of behavior as witness bribery must answer two basic questions:

(1) are the medical witnesses being paid for expert services, rather than the content of their testimony; and

(2) would awarding relief in this case establish a wide-ranging precedent under which legitimate experts would be chilled from rendering opinions and litigants’ access to the courts correspondingly restricted.

There seems no good reason to excuse the collaboration of lawyers and expert witnesses that results in the procurement of convenient, false, and exaggerated testimony from the laws that condemn tendering false evidence.

The proof problem, however, for situations in which the illicit payments take more subtle forms, such as “fees” for hired experts as opposed to envelopes of money for lay witnesses, may become intractable. In practice, it will be easier to persuade a court to consider the payments made for favorable diagnoses (such as silicosis in the silica MDL) as bribes if the evidence shows that the hired physicians’ testimony was perjured. Perjured testimony would certainly encourage courts to permit juries to consider whether the witness payments were for the substance of testimony, rather than for disinterested professional services. Furthermore, a showing of perjury would reduce any judicial concern that the litigation would chill legitimate expert witness opinion testimony, especially in novel contexts.

The federal bribery statute specifically carves out payment of reasonable fees to expert witnesses.[14]  But expert witnesses clearly have no immunity from the prohibitions against accepting compensation for the substance of testimony.  The proof problems for expert witnesses are differentially greater than they are with lay witnesses.  The basic requirement of truthful testimony, however, is a constant.  Notwithstanding that expert witnesses are entitled to fair compensation for their expertise, judicial concerns over the corrupting influence of excessive fees and testifying date back to the 19th century.

The difficulty in showing that the procured opinion testimony was deliberately false may be mitigated in cases such as the claimed silicosis cases in the silica MDL by showing that the opinions were given with full knowledge that they were insufficient under professional standards and scientific, medical principles. Furthermore, there is the matter of physicians reading the same X-ray in two, inconsistent ways. In any event, under the federal RICO statute (as opposed to the analogous state RICO statutes) showing perjury in a state court proceeding will not be enough to state a valid claim.  A showing of perjury, however, combined with the other aspects of the relationship between the plaintiffs’ lawyers and their cooperating medical screeners may support an inference of bribery, which in turn may serve as a predicate offense for RICO liability.

Fraud

GAF’s claims of frauds discussed[15] earlier focused on the claim that asbestos plaintiffs’ lawyers focused had committed RICO predicate acts of mail fraud,[16] and wire fraud,[17] by submitting fraudulent claims for payment.  Much of the GAF litigation focused on arguments about whether GAF’s successive complaints satisfied the requirement of Federal Rule of Civil Procedure 9(b) that allegations of fraud be pled “with particularity.”

Although Judge Jack’s thorough opinion showed that fraud claims certainly had a basis in fact in the context of the silica MDL, that litigation illustrates a central problem; namely, how can a defendant prosecute a civil fraud or RICO case when it knew that the claims were bogus, litigated the soundness of the diagnoses, and prevailed by having the diagnoses excluded. Detrimental reliance is, of course, a key general element of any fraud claim.  In the case brought by GAF, this issue was resolved in favor of GAF, but based on GAF’s argument that it had relied on fraudulent affidavits in connection with settlements of cases.  Thus, in essence, GAF adequately pleaded that it had relied on the fraudulent misstatements.[18]

Notwithstanding the general requirement that a fraud claim plead detrimental (and reasonable) reliance, there is authority that would support a RICO claim even if the RICO plaintiff did not rely on the fraudulent representations.[19] The reliance of a third party, such as a court or a jury may satisfy the reliance requirement.

“Pattern Of Racketeering Activity” 

Apart from the requirement of showing that predicate acts have occurred, a complaint under RICO must plead the existence of “a pattern of racketeering activity.”[20]  The RICO statute defines a “pattern of racketeering activity” as requiring a showing of “at least two acts of racketeering activity” committed within a 10-year period.  Most courts recognize that a “pattern” usually means more than two, with some courts requiring plaintiffs to show “continuity plus relationship” between or among the predicate acts to establish a “pattern of racketeering activity.”[21] The Supreme Court has stated that RICO plaintiffs can show “continuity plus relationship” for purposes meeting the RICO statutory RICO’s “pattern of racketeering activity” requirement by establishing a nexus between the defendant’s predicate acts.[22]

A plaintiff can establish the nexus by showing that “the criminal acts have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.”[23] The continuity element is basically a temporal connection, satisfied by showing “the predicates themselves amount to, or . . . otherwise constitute a threat of continuing racketeering activity.”[24] RICO plaintiffs can meet their burden by alleging and proving that either

(1) that the defendant’s predicate acts or offenses were part of the defendant’s regular way of doing business;[25] or

(2) that “a series of related predicates extend[ed] over a substantial period of time.”[26]

The Supreme Court has made clear that the proper focus is on long-term criminal conduct, and stated that “[predicate] acts extending over a few weeks or months and threatening no future criminal conduct [would] not satisfy [the continuity] requirement.”[27]  The federal circuits have continued to disagree about how to apply this mandate.

To succeed on a RICO claim, a product liability defendant must show that the pattern of activity with which it is concerned satisfies the continuity requirement inherent in the statutory reference to a “pattern of racketeering activity.”  The misconduct must have taken place over a significant period of time and over a wide number of cases; it must be ongoing and constitute a basic method of doing business for those involved.

Conducting the Affairs of the “Enterprise” Through the Pattern of Racketeering Activity

A complaint under RICO must also allege that a person has “conduct[ed]” the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.

Distinction between the Enterprise and the Pattern Of Racketeering Activity

An enterprise is a group of persons or entities associating together for the common purpose of engaging in a course of conduct.[28] Under the federal RICO statute, the enterprise may be a legal entity or “any union or group of individuals associated in fact although not a legal entity.”[29] A confederacy of individuals or entities may be a valid “associat[ion] in fact” enterprise.  But “[t]he plaintiff alleging an association-in-fact enterprise must adduce evidence demonstrating ‘an ongoing organization, formal or informal, and . . . evidence that the various associates function as a continuing unit.’ ”[30]  As one of the Circuits has stated, such an “associat[ion] in fact” enterprise:[31]

(1) must have an existence separate and apart from the pattern of racketeering,

(2) must be an ongoing organization and

(3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.

In considering the plaintiffs’ counsel’s racket in the Silica MDL as a protential RICO case, we must assess whether the network of silica plaintiffs’ lawyers and the cooperating medical screeners can properly be characterized as an “enterprise” within the meaning of RICO. Although the corrupt nature of the enterprise was apparent to Judge Jack, a RICO case will require particularity in pleading and proof of the cross-ties between the participants in the scheme. Beyond the evidence proffered in the Rule 702 hearing in In re Silica, a RICO plaintiff would have to develop further the ongoing relationships between plaintiffs’ counsel and the screening and sham-diagnosing physicians by showing their collaboration in and through professional organizations, joint efforts to influence legislation, and other activities, to define the nature and scope of their enterprise.[32]

Remedies

There are two types of remedies that might be available based on the RICO claim.  First, the plaintiff could seek the consequential damages incurred as a result of the pattern of racketeering activity.  Second, the plaintiff could seek equitable relief, including an injunctive to halt the illegal conduct.

Damages — Under section 1964(c) a RICO plaintiff must be “injured in his business or property” and “shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee . . .”  “[T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property.”[33]    To seek consequential damages under RICO, an aggrieved product manufacturer would have to prove that the pattern of illegal behavior has imposed reasonably quantifiable costs.

In cases where the product liability defendant already prevailed, the defendant could seek the costs of defending the action.  Although the issue is not finally settled, there is strong authority for the proposition that litigation costs can be awarded under RICO notwithstanding the general rule that parties bear their own court costs.[34]  This rule is particularly appropriate in cases in which the predicate acts directly increased the difficulty and cost of defense.

If a product liability claim proceeded to jury verdict in favor of the plaintiff, the product manufacturer could not seek damages until it obtained relief from judgment. A final judgment in favor of plaintiff would bar, under the doctrine of res judicata, any RICO claim for the misconduct that went into obtaining the verdict.

Equitable Relief – The product liability defendant might also seek an injunction against a continuation of the pattern of racketeering activity in which the lawyers and medical professionals have engaged.  Whether Section 1964(c) authorizes equitable remedies for private litigants is an issue that has divided courts.[35]

Filing Suit against Lawyers and Physicians Involved in Particular Bogus Claims or Groups of Claims

State Fraud and Malicious Prosecution Actions

A defendant facing perjurious testimony in a line of improper product liability cases might also consider filing a test case against those responsible for a particular bogus claim or group of claims.  Although a single test case might seem to be easier endeavor than a broad RICO action, that is not necessarily true, due to the difference in the legal theories available.  As noted above, RICO and its state counterparts are notable for the fact that they allow civil remedies for misconduct proscribed by criminal law.

To prevail in a suit alleging malicious prosecution of a civil claim, in Texas for instance, a plaintiff must establish the following elements:

“(1) the institution or continuation of civil proceedings against the plaintiff;

(2) by or at the insistence of the defendant;

(3) malice in commencement of the proceedings;

(4) lack of probable cause for the proceeding;

(5) termination of the proceedings in defendant’s favor; and

(6) special damages.”[36]

Texas courts have made clear that “a plaintiff must suffer a special injury before recovering for malicious prosecution of a case.”[37]  A party is deemed to have suffered special damages when there is “some physical interference with a party’s person or property in the form of an arrest, attachment, injunction, or sequestration.”[38]

State-law based fraud claims raise the difficulties of proof of detrimental reliance discussed above in the context of RICO; namely, whether the product liability defendant must demonstrate that it detrimentally relied on the fraudulent conduct it alleges.  Some of the RICO case law promisingly suggests that third-party’s reliance will suffice, but there is a dearth of precedent for most states’ common law fraud. A number of states have adopted their own state analogues of the federal RICO statute. One potential advantage of proceeding under state RICO is that obstruction of justice may, in some states, serve as a predicate offense, without having to demonstrate bribery.

 Common Law Negligence Actions against Testifying Physicians

Although the harm arising from misleading opinion testimony can be substantial and readily foreseen, the law of most states gives testifying expert witnesses immunity from suit for negligently false or misleading testimony.[39]  More recent cases have prohibited parties from suing their adversaries’ expert witnesses, but have permitted parties to sue their own expert witnesses.[40]

In 1984, New Jersey took a big step towards permitting actions against adversarial expert witnesses by allowing a suit against an “impartial expert,” jointly appointed by the parties to render a binding asset valuation.  The New Jersey Supreme Court, in reversing a summary judgment for the expert, held that such an expert witness has no immunity from claims for breach of agreement, for breach of fiduciary duty, and for negligence.[41]

The Texas Supreme Court has allowed a man involuntarily committed to proceed with a negligence action against the psychiatrist who served as an expert witness for his children.[42] In decades since these narrow exceptions, there has been little movement on reducing the immunity that expert witnesses enjoy for incorrect testimony, negligently or even recklessly given.

Actions or Motions to Disqualify Testifying Expert Witnesses from Participating in Future Proceedings

Under the laws of most states, there is no opportunity to bar an expert witness from participating in future litigation endeavors on the basis of his past derelictions of duty.  The closest remedy to such prospective prohibition is a professional sanction such as licensure suspension or revocation, which would be readily discovered and used to impeach the offending expert witness in future cases.  As we have seen, such a sanction is quite rare in the United States.

Monetary Sanctions against Attorneys

Both state and federal law contain a variety of remedies for improper litigation conduct, including Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and the inherent supervisory powers of the court, and others, to address improper litigation expert witness conduct. Historically, these three approaches have not provided any meaningful remedy against meretricious expert witness testimony.

Conclusion

Encouraged by legal counsel, and fueled by partisan zeal or desire to shape public policy through the workings of tort law, expert witnesses have shaped and distorted the law.  The imposition of a reliability standard in Federal Rule of Evidence 702 has ameliorated the situation a bit in federal court, at least when federal district judges are willing to make the effort to understand the science and examine the testimony for its logical and scientific gaps and errors.  The situation in many state courts is not so sanguine, and there are situations in all courts where more serious remedies than simple exclusionary rules are needed.  The law is catching up with the magnitude of the problem created by the prosecution of mass torts, with fortunes at stake.  The solutions will take creativity and persistence from those aggrieved by bogus science and bad medicine in the courtroom.


[1]  CSX Transp., Inc. v. Peirce, 974 F. Supp. 2d 927 (N.D. W. Va. 2013), app. dism’d sub nom. CSX Transport., Inc. v. Gilkison (4th Cir. Nov. 6, 2014).

[2]  18 U.S.C. § 1962(c).

[3] Section 1962 contains other prohibitions against racketeering activity.  However, the prohibition in § 1962(c) referred to above is the most plausible avenue for relief in the present context.

[4] While the plaintiffs themselves are likely encouraged to give false or unfounded testimony, the medical professionals are a more appropriate subject of attention, for both substantive and tactical reasons.

[5]  18 U.S.C. § 1961(1)(B).

[6]  18 U.S.C. § 1503.

[7]  18 U.S.C. § 1512.

[8]  18 U.S.C. § 201.

[9] “The state law felony offenses listed in § 1961(1)(A) are included by generic designation, and the test for determining whether particular acts fit into the generic category of predicate offense is whether the complaint alleges the type of activity generally known or characterized in the proscribed category.”  Heden v. Hill, 937 F. Supp. 1230 (S.D. Texas 1996) (citing United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir.1977)).

[10] 18 U.S.C. § 201 criminalizes “bribery of public officials and witnesses” in federal proceedings.  This language lends further credence to the conclusion that transferring improper benefits to witnesses in exchange for favorable testimony constitutes “bribery” within the meaning of the RICO statute.

[11]  Texas Penal Code § 36.05, entitled “tampering with witness,” makes such undue influence on witnesses punishable by a prison term of not less than two years.

[12] The phrase “official proceeding” is no longer defined in the statute.  A 1993 amendment to the Texas Penal Code deleted the prior definition, which would have been broad enough to encompass civil cases brought in state court, as well as a variety of other contexts.

[13]  Mississippi Statute § 97-9-65.  This statute cross-references the Mississippi RICO law.

[14] 18 U.S.C. § 201(d) (“Bribery of public officials and witnesses).” Similarly, Texas and Mississippi both have rules that allow payment of reasonable expert fees in their Rules of Professional Conduct.  See V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 3.04 (a lawyer may pay “a reasonable fee for the professional services of an expert witness.”); MS R.P.C. Rule 3.4 Comment (“it is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law.  The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”)

[15]  “Legal Remedies for Suspect Medical Science in Products Cases – Part One” (June 2, 2020).

[16]  18 U.S.C. § 1341.

[17]  18 U.S.C. § 1343.

[18]  See G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp. 2d 521, 539-40, 542-43 (S.D.N.Y. 2002).

[19]  See, e.g., Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 262-63 (2d Cir. 2004) (“a plaintiff who is injured as a proximate result of RICO predicate acts of fraud need not prove his own reliance, rather than that of a third party… .”); Procter & Gamble Co. v. Amway Corp., 242 F.3d 539 (5th Cir. 2001) (upholding RICO claim by Procter & Gamble against competitors that disseminated rumors that plaintiff was linked to Satanism, although plaintiff had in no way relied upon those rumors); City of New York v. Cyco.Net, Inc., 2005 WL 174482 (S.D.N.Y., Jan. 27, 2005).

[20]  18 U.S.C. § 1961(5).

[21]  See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, n.14 (1985).

[22]  H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 251 (1989.

[23]  Id. at 240.

[24]  Id.

[25]  Id. at 240-42.  Such allegations established an “open-ended” pattern.

[26]  Id. at 242.  Such allegations establish a “closed-ended” pattern.

[27]  Id.

[28]  United States v. Turkette, 452 U.S. 576, 583 (1981).

[29]  18 U.S.C. § 1961(4) (emphasis added).

[30] Whelan v. Winchester Prod. Co., 319 F.3d 225 (5th Cir. 2003)(quoting Turkette, 452 U.S. at 583).

[31]  Crowe v. Henry, 43 F.3d 198, 205 (5th Cir. 1995).

[32]  See, e.g., State Farm Mut. Auto. Ins. Co. v. Giventer, 212 F.Supp. 2d 639 (N.D. Tex. 2002) (rejecting RICO claim by automobile insurer defrauded into paying claims when plaintiff failed to an enterprise of plaintiffs’ lawyers and chiropractic clinics).

[33]  Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).

[34]  See, e.g., Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354-55 (3d Cir. 1986), aff’d, 483 U.S. 143 (1987); Stochastic Decisions Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir. 1993). On the other hand, a court may be reluctant to award litigation costs with respect to claims that have not yet been resolved.

[35]  Compare Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001) (private equitable relief available), with Religious Technology Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986) (private equitable relief unavailable).

[36]  Fuqua v. Graber, 158 S.W.3d 635, 638 (Tex. Ct. App. 2005), quoting Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996).

[37]  Tex. Beef Cattle, 921 S.W.2d at 208-09.

[38]  Id. at 209, citing Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex. App. 1990). Similarly, the elements of a tort of malicious prosecution is Mississippi are: “(1) the institution of a proceeding (2) by, or at the insistence of the defendant (3) the termination of such proceedings in the plaintiff’s favor (4) malice in instituting the proceedings and (5) the suffering of injury or damage as a result of the prosecution.”  Williams v. Jungle, — So. 2d – , 2005 WL 43721 (Miss. Jan. 11, 2005), citing McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001).  All of the elements must be proven by a preponderance of the evidence.  See Williams, — So. 2d, 2005 WL 43721 at *1, citing Van v. Grand Casinos of Mississippi, Inc., 724 So. 2d 889, 891 (Miss. 1998).

[39]  See, e.g., Briscoe v. LaHue, 460 U.S. 325 (1983)(noting that expert witnesses have absolute immunity for harm caused to opposing parties from incorrect or misleading testimony).

[40]  See, e.g., LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999) (holding that a party may sue its expert witness for negligence); Murphy v. A.A. Mathews, 841 S.W. 2d 671, 682 n.11 (Mo. 1992).

[41]  Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397, 402 (1984).

[42]  James v. Brown, 637 S.W.2d 914 (Texas 1982) (per curiam).

Legal Remedies for Suspect Medical Science in Products Cases – Part Four

June 7th, 2020

Requirements Imposed By State Licensing Boards and Medical Professional Societies

The involvement of medical professionals in disciplining physicians for dubious litigation testimony, whether through state licensing authorities or voluntary medical associations, raises some difficult questions:

  1. Does a physician’s rendering an opinion on a medical issue in litigation, such as diagnosing silicosis, asbestosis, welding-induced encephalopathy, or fenfluramine-related cardiac injury, constitute the “practice of medicine” within the meaning of state law regulating the practice of medicine?
  1. If a physician deviates from the standard of care in rendering such an opinion, either negligently or intentionally, what remedies are available, and to whom?
  1. How should we consider the partitioning of the diagnostic process, when an essential part of the diagnosis is provided by physicians who do not testify at trial, such as radiologists who conduct screenings for lawyers?
  1. What professional standards have been adopted by the medical profession (or licensing agencies or others) for giving testimony in litigation on medical subjects?
  1. Are the views of professional associations such as the American Medical Association properly invoked by litigants?

The record of medical boards and professional societies’ efforts to curb abusive medico-legal testimony is uneven.[1] In one closely followed case, the North Carolina Medical Board revoked a physician’s license on the basis of finding of “unprofessional conduct” in the form of testimony given in a medical malpractice case. The Board found that Dr. Lustgarten had misrepresented the applicable standard of care and accused one of the malpractice defendants of having intentionally falsified medical records without a good faith basis.[2]

A reviewing trial court reversed the finding of misrepresentation of the standard of care, but agreed that Lustgarden had wrongly asserted the defendant’s fabrication of records, and modified the revocation to a one year suspension.[3] On appeal to the North Carolina Court of Appeals, the court held that the Board had the power to suspend or revoke a physician’s license for “unprofessional conduct,” and that providing expert witness testimony was a form of practicing medicine subject to peer review and discipline. Upon reviewing the factual record, however, the Court of Appeals held that the lower court’s finding was unsupported:

“Dr. Lustgarten did not actually state that the defendant had ‘falsified’ a medical record or use the terms ‘liar’ or ‘lying’ to describe the other physician or his conduct. Rather, these terms were introduced by the attorneys representing the defendant.”

Dr. Lustgarten had couched his opinion as a “difficulty believing” the defendant’s record notations, in the appellate court’s view did not merit the sanctions imposed. Although such licensure suspensions or revocations for “testimonial misadventures” remain rare, the Lustgarten case illustrates that Medical Boards have the power to police medico-legal testimony.[4]

Medical societies, although voluntary, may have considerable influence on teaching and hospital privileges and positions.  Most medical societies have shown no interest in taking disciplinary action against members on the basis of testimony given while serving as expert witnesses.[5] One notable exception is the American Association of Neurological Surgeons (AANS).  In 1996, the AANS suspended member Dr. Donald Austin over negligent testimony given as an expert witness in a medical malpractice action.  Dr. Austin, claiming substantial loss in revenues from work as an expert witness, sued the association.  The federal district court dismissed Dr. Austin’s claims, and the Seventh Circuit of the U.S. Court of Appeals affirmed.[6]

Involvement in Litigation as the “Practice of Medicine”

The “practice of medicine” is generally defined and regulated by state statutes.[7] The terms of the respective state statutes vary significantly, but certain of the statutes, or regulations adopted under them, define what constitutes the “practice of medicine,” and some of these provisions expressly address the subject of expert testimony.

The relevant Utah statute was interpreted in an asbestos products case, in which the defendants asserted that:

“the physician who rendered the diagnoses and the technician who administered the pulmonary function tests did so without the required licenses.  Indeed, contend Defendants, these tests and diagnoses were not by treating physicians licensed in Utah, but by a physician who traveled to Utah with the sole purpose of generating asbestos claims at motels.  Consequently, assert Defendants, these diagnoses and tests are flawed, unreliable, untrustworthy and illegal and should, therefore, be inadmissible under Utah law governing the admissibility of expert testimony and under Utah’s public policy.  Moreover, contend Defendants, without these diagnoses, Plaintiffs have no proof of medical causation and, as a result, their claims must be dismissed.”[8]

The Utah asbestos plaintiffs invoked the following statutory exemption from the medical licensure requirement of the Utah statute, which permits an expert witness to provide testimony, in Utah, without a Utah license.[9] The Utah trial court rejected plaintiffs’ reliance upon the statutory exemption, essentially because the doctor in question had rendered diagnostic reports rather than simply testifying in a court proceeding.  The court thus concluded that the doctor had in fact:

“practiced medicine in Utah, without a licence [sic], and [that] these practices resulted in the diagnostic reports that now serve as the basis for Plaintiffs’ law suits.”[10]

Since a case cannot be brought unless the plaintiff has first been diagnosed with a compensable condition, the court’s conclusion as a practical matter means that Utah plaintiffs must first be diagnosed by Utah physicians, or at least by a physician with a current temporary or other license to practice in the state.  More important, the opinion necessarily implies that a medico-legal diagnosis of diseases such as asbestosis or silicosis must comply with the professional standards applicable to medical opinions.

A decision from a Seattle area trial court sustained a challenge similar to the Utah challenge to an expert witness proffered by plaintiffs’ firm Brayton Purcell. Judge Sharon Armstrong considered defendants’ challenge to a physician who participated in union screenings of plaintiffs.[11] The physician in question examined and diagnosed the plaintiffs, and recommended treatment, in Washington State, where he was not licensed. The physician in question also relied upon radiographic interpretations form unregistered and uncertified technicians and radiologists, who had used unregistered and uncertified equipment.

Judge Armstrong dismissed the complaint, without prejudice. Accepting the “tainted” evidence generated by the unlicensed practice of medicine would contravene public policy.[12] Although the challenged physician had committed a criminal offense under Washington law, Judge Armstrong did not refer the matter to the King County prosecutor.

In sum, there is support for the proposition that medical screenings, as well as the actual diagnoses of disease, constitute the “practice of medicine” subject to state regulation.  One extraordinary but distinguishable case from the Fourth Circuit suggests that a notorious screening physician, the late Dr. Ray Harron, did not have a patient-physician relationship such that a patient injured as a result of the screening could sue him for malpractice.[13] The plaintiff had received a chest X-ray in a mass screening that resulted from a law firm solicitation. West Virginia radiologist, Dr. Ray Harron, who gained much international notoriety from Judge Jack’s review of his professional misdeeds, read the chest films and suggested that the plaintiff might have lung cancer. Plaintiff’s counsel, however, failed to alert his client. The Court of Appeals affirmed a dismissal of the case on the grounds that there was no patient-physician relationship under West Virginia law.  The per curiam decision does not reveal whether the American Medical Association ethical and practice guidelines, discussed more fully below, were raised in support of the plaintiff’s claim.

Standards of Conduct Adopted by the American Medical Association And Other Professional Associations

The American Medical Association (“AMA”) has adopted a variety of ethical standards for expert testimony that are directly relevant to the issues of abusive medico-legal activities and testimony. Although the AMA’s ethical standards have not been invoked frequently in the reported cases,[14] they provide useful guidance on a number of issues concerning appropriate standards for physician participation in litigation.

To begin with, the AMA has endorsed the proposition that testimony on medical subjects, at least by physicians, constitutes the practice of medicine.  AMA Provision H-265.993, concerning “Peer Review of Medical Expert Witness Testimony,” states that:[15]

“AMA policy is that: (1) the giving of medico-legal testimony by a physician expert witness be considered the practice of medicine, and (2) all medico-legal expert witness testimony given by a physician should be subject to peer review.”

Furthermore, the AMA has adopted standards on the basis for, and quality of, testimony by physicians that at least generally mirrors the types of requirements imposed by courts which have followed Daubert Rule 702 standards.  Code provision E-9.07, concerning “Medical Testimony,” states in part that:

“When physicians choose to provide expert testimony, they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. Their testimony should reflect current scientific thought and standards of care that have gained acceptance among peers in the relevant field. If a medical witness knowingly provides testimony based on a theory not widely accepted in the profession, the witness should characterize the theory as such. Also, testimony pertinent to a standard of care must consider standards that prevailed at the time the event under review occurred.

All physicians must accurately represent their qualifications and must testify honestly. Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.

Organized medicine, including state and specialty societies, and medical licensing boards can help maintain high standards for medical witnesses by assessing claims of false or misleading testimony and issuing disciplinary sanctions as appropriate… .”[16]

Similarly, AMA Code provision H-265.994, “Expert Witness Testimony,” states, among other relevant provisions, that:

“(2) Our AMA is on record that it will not tolerate false testimony by physicians and will assist state, county and specialty medical societies to discipline physicians who testify falsely by reporting its findings to the appropriate licensing authority… .”[17]

While the AMA has no power to require physicians to comply with its pronouncements, the Association has stated that its official policy is for all physicians who serve as expert witness in medical liability litigation should affirm in writing their intent to adhere to AMA principles for giving expert witness testimony.[18]

The AMA policies, guidances, and principles, if followed, would go a long way towards reducing abusive screenings and meretricious testimony.


[1]  See generally David B. Resnik, “Punishing Medical Experts for Unethical Testimony: A Step in the Right Direction or a Step too Far?” 4 J. Philosophy, Science & Law 45 (2004); Juan Carlos B. Gomez, “Silencing the Hired Guns: Ensuring Honesty in Medical Expert Testimony Through State Legislation,” 26 J. Legal Med. 385 (2005); Robert S. Peck & John Vail, “Blame It on the Bee Gees: The Attack on Trial Lawyers and Civil Justice,” 51 N. Y. L. Sch. L. Rev. 323 (2006-2007).

[2]  In re Gary James Lustgarten, M.D., Opinion and Order (March 30, 2004).

[3]  Lustgarten v. North Carolina Med. Bd., Wake Cty. Super. Ct. N. C., No. 02 CVS 12218 (Apr. 18, 2005).

[4]  In re Gary James Lustgarten, MD, 177 N.C. App. 663, 629 S.E.2d 886 (2006). See generally John M. Luce, “The Development of Professional Standards for Physician Expert Witnesses in Medical Malpractice Litigation in the United States,” Unpublished MS (2014); Ronald M. Sandgrund, Scott F. Sullan, Leslie A. Tuft, and Jennifer A. Seidman, “Crossing the Separation of Powers Threshold: Legislative and Regulatory Control of Expert Testimony,” 37 The Colorado Lawyer 27 (May 2008); Nadia N. Sawicki, “A Theory of Discipline for Professional Misconduct” (Mar. 3, 2009).

[5]  See Opinion of Bill Lockyer, Attorney General of the State of California, and Gregory L. Gonot, Deputy Attorney General dated April 28, 2004, which stated, in a medical malpractice context, that “[w]hen a physician testifies as an expert in a civil proceeding regarding the applicable standard of medical care and whether the defendant has breached that standard, the physician may not, on the basis of his or her testimony, be held liable in a subsequent tort action brought by the adverse party, but may be subject to professional discipline by the Medical Board of California if the testimony constitutes unprofessional conduct.”

[6]  Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001). See Wood, “Professional Oversight of Expert Testimony – Austin v. American Association of Neurological Surgeons,” 7 Virtual Mentor – Ethics J. Am. Med. Ass’n (2005).

[7]  See generally 61 Am. Jur. 2d § 25.

[8]  In re Asbestos Cases of Brayton Purcell v. Asbestos Defendants, Case No. 010900863, Op. at 1-2 (Dist. Ct. of the Third Judicial Dist. for Salt Lake Cty., Utah) (Jan. 25, 2005) [Brayton op.]

[9]  Utah Code Ann. § 58-67-305.

[10]  Brayton op. at 3.

[11]  In re Certain Asbestos Cases (ACR XXIV Cases), No. 89-2-18455-9 SEA (Superior Court for King County, Washington) Order Granting Summary Judgment (Oct.15, 2002) (Hon. Sharon Armstrong).

[12]  See Nickila v. Board of Chiropractic Examiners, 862 P.2d 555 (Or. App. 1993) (affirming sanctions issued by Board of Chiropractic Examiners, against petitioner, for participating in an X-ray procedure while his license was suspended; rejecting petitioner’s argument that he was not practicing medicine because he acted in concert with or through other practitioners); West Virginia Radiologic Technology Board of Examiners v. Darby, 427 S.E.2d 486 (W. Va. 1993) (holding regulations prohibiting unlicensed persons from practicing radiologic technology also prevented licensed medical practitioner from employing unlicensed technician; “If a person is found taking X-rays without a license, the Board can enjoin that individual from engaging in further practice pursuant to W.Va. Code 30-23-12”); Nelson v. Palmquist, 363 N.W.2d 570, 572 (S.D. 1985) (holding defendant practiced chiropractic without a license when he examined and interpreted X-rays; defendant engaged in “diagnosis” in violation of the South Dakota statute); People v. Allied Medical Clearing House Incorporated, 285 N.Y.S.2d 439, 493-94 (N.Y. Sup. Ct. 1967) (holding evaluation by defendant of X-rays of litigants, taken at labs under contract with defendant constituted practice of medicine without a license); Chiropractic Association of New York, Inc. v. Hilleboe, 227 N.Y.S.2d 309, 313 (N.Y. Sup. Ct. 1961) (“When in this state a man whether he calls himself a chiropractor or something else, diagnoses the case of one who comes to him for help as requiring an X-ray and either takes the X-ray himself or sends the one seeking help to someone else to take the X-ray, he is practicing medicine within the meaning of section 6501, subdivision 4. . . .”); Smith v. State Board of Medicine of Idaho, 259 P.2d 1033, 1038 (Idaho 1953) (“The conclusion is inevitable, therefore, that appellant in performing surgery — though classified by him as only minor — using drugs, and diagnosing by the use of X-ray, was, as found by the learned trial court, practicing medicine and surgery without a license; therefore, he was violating the law.”).

[13]  Adams v. Harron, 1999 WL 710326 (4th Cir. 1999) (per curiam)

[14]       See, e.g., Piscopo v. Secretary of Health and Human Services, 66 Fed.Cl. 49, 52 (Court of Federal Claims 2005); Doe v. Secretary of Health and Human Services, 2004 WL 3321202, *22 n.40 (Court of Federal Claims, Office of the Special Masters, Oct. 5, 2004).

[15]  Res. 221, I-97; Reaffirmed: BOT Rep. 18, I-98; Reaffirmation A-99; Reaffirmation, A-00.

[16]  Code provision E-9.07, “Medical Testimony,” issued December 2004.

[17]  See H-265.992, “Expert Witness Testimony”[17]; H-265.997, “AMA-ABA Statement on Interprofessional Relations for Physicians and Attorneys”; D-265.997, “False Testimony”; D-265.994, “Expert Witness Affirmation”; 265.995, “Physician Testimony Related to Tobacco and Health”; D-490.989, “Expert Witness Testimony by Physicians on Behalf of Tobacco Companies.”

[18]  See H-265.990, “Expert Witness Affirmation,” which provides that “AMA policy is that all physicians, serving as expert witnesses in medical liability litigation, voluntarily sign an expert witness affirmation explicitly stating that they will adhere to the AMA’s principles guiding expert witness testimony. (Res. 7, A-04).”

Judicial Dodgers – Weight not Admissibility

May 28th, 2020

Another vacuous response to a methodological challenge under Rule 702 is to label the challenge as “going to the weight, not the admissibility” of the challenged expert witness’s testimony. Of course, a challenge may be solely focused upon the expert witness’s credibility, such as when an expert witness testifies on many occasions only for one side in similar disputes, or for one whose political commitments render him unable to acknowledge the bona fides of any studies conducted by the adversarial parties.[1] If, however, the Rule 702 challenge stated an objection to the witness’s methodology, then the objection would count against both the opinion’s weight and its admissibility. The judicial “weight not admissibility” label conveys the denial of the challenge, but it hardly explains how and why the challenge failed under Rule 702. Applying such a label without addressing the elements of Rule 702, and how the challenged expert witness satisfied those elements, is often nothing less than a failure of judging.

The Flawed Application of a Generally Accepted Methodology

If a meretricious expert witness by pretense or ignorance invokes a standard methodology but does so in a flawed or distorted, or in an invalid way, then there will be a clear break in the chain of inferences from data to conclusion. The clear language of Rule 702 should render such an expert witness’s conclusion inadmissible. Some courts, however, retreat into a high level of generality about the method used rather than inspecting the method as applied. For example, a court might look at an expert witness’s opinion and correctly find that it relied upon epidemiology, and that epidemiology is a generally accepted discipline concerned with identifying causes. The specific detail of the challenge may have shown that the witness had relied upon a study that was thoroughly flawed,[2] or that the witness relied upon an epidemiologic study of a type that cannot support a causal inference.[3]

Rule 702 and the Supreme Court’s decision in Joiner make clear that the trial court must evaluate the expert witness’s application of methodology and whether it actually supports valid inferences leading to the witness’s claims and conclusions.[4] And yet, lower courts continue to characterize the gatekeeping process as “hands off” the application of methodology and conclusions:

“Where the court has determined that plaintiffs have met their burden of showing that the methodology is reliable, the expert’s application of the methodology and his or her conclusions are issues of credibility for the jury.”[5]

This rejection of the clear demands of a statute has infected even the intermediate appellate United States Court of Appeals. In a muddled application of Rule 702, the Third Circuit approved admitting expert witness testimony in a case, explaining “because [the objecting party / plaintiff] objected to the application rather than the legitimacy of [the expert’s] methodology, such objections were more appropriately addressed on cross-examination and no Daubert hearing was required”).[6] Such a ruling in the Third Circuit is especially jarring because it violates not only the clear language of Rule 702, but also established precedent within the Circuit that holds that “any step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.”[7]

The Eight Circuit seems to have set itself up stridently against the law by distinguishing between scientific methodologies and their applications, and holding that “when the application of a scientific methodology is challenged as unreliable under Daubert and the methodology itself is otherwise sufficiently reliable, outright exclusion of the evidence in question is warranted only if the methodology was so altered by a deficient application as to skew the methodology itself.”[8]

The Ninth Circuit similarly has followed this dubious distinction between methodology in the abstract and methodology as applied. In City of Pomona, the Circuit addressed the admissibility of an expert witness whose testing deviated from protocols. Relying upon pre-2000 Ninth Circuit case law, decided before the statutory language of Rule 702 was adopted, the court found that:

“expert evidence is inadmissible where the analysis is the result of a faulty methodology or theory as opposed to imperfect execution of laboratory techniques whose theoretical foundation is sufficiently accepted in the scientific community to pass muster under Daubert.”[9]

The Eleventh Circuit has similarly disregarded Rule 702 by adverting to an improvised distinction between validity of methodology and flawed application of methodology.[10]

Cherry Picking and Inadequate Bases

Most of the Circuits of the United States Court of Appeals have contributed to the mistaken belief that “[a]s a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”[11] Clearly, such questions can undermine the admissibility of an expert witness’s opinion under Rule 702, and courts need to say why they have found the challenged opinion to have had a “sufficient basis.” For example, in the notorious Milward case, the First Circuit, citing legally invalid pre-Daubert decisions, stated that “when the factual underpinning of an expert’s opinion is weak it is a matter affecting the weight and credibility of the testimony − a question to be resolved by the jury.”[12]

After Milward, the Eighth Circuit followed suit in a hormone replacement therapy case. An expert who ignored studies was excluded by the district court, but the Court of Appeals found an abuse of discretion, holding that the sufficiency of an expert’s basis is a question of weight and not admissibility.[13]

These rulings elevate form over substance by halting the gatekeeping inquiry at an irrelevant, high level of abstraction, and finding that the challenged expert witness was doing something “sciencey,” which is good enough for government work. The courts involved evaded their gatekeeping duties and ignored the undue selectivity in reliance materials and the inadequacy and insufficiency of the challenged expert witness’s factual predicate. The question is not whether expert witnesses relied upon “scientific studies,” but whether their causal conclusions and claims are well supported, under scientific standards, by the studies upon which they relied.

Like the covert shifting of the burden of proof, or the glib assessment that the loser can still cross-examine in front of the jury,[14] the rulings discussed represent another way that judges kick the can on Rule 702 motions. Despite the confusing verbiage, these judicial rulings are a serious deviation from the text of Rule 702, as well as the Advisory Committee Note to the 2000 Amendments, which embraced the standard articulated in In re Paoli, that

“any step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.”[15]

On a positive note, some courts have recognized that responding with the conclusory assessment of a challenge’s going to weight not admissibility is a delegation of the court’s gatekeeping duty to the jury.[16]

In 2018, Professor Daniel Capra, the Reporter to the Rules Committee addressed the “weight not admissibility dodge” at length in his memorandum to the Rules Committee:

“Rule 702 clearly states that these are questions of admissibility, but many courts treat them as questions of weight. The issue for the Committee is whether something/anything can be done about these wayward decisions.”[17]

The Reporter charitably noted that the problem could be in the infelicitous expression of some courts that short-circuit their analyses by saying “I see the problems, but they go to the weight of the evidence.”[18] Perhaps these courts meant to say that they had found that the proponent of the challenged expert witness testimony had shown admissibility by a preponderance, and that what non-disqualifying problems remained should be taken up on cross-examination.[19] The principle of charity, however, cannot exonerate federal judges from exercising the dodge repeatedly in the face of clear statutory language. Indeed, the Reporter reaffirmed the Rules Committee’s substantive judgment that questions of sufficient basis and reliable application of methodology are admissibility issues:[20]

“It is hard to see how expert testimony is reliable if the expert has not done sufficient investigation, or has cherry-picked the data, or has misapplied the methodology. The same ‘white lab coat’ problem − that the jury will not be able to figure out the expert’s missteps − would seem to apply equally to basis, methodology and application.”

Although the Reporter opined that some authors may have overstated judicial waywardness, he found the judicial disregard of the requirements of Rule 702(b) and (d) incontrovertible.[21]

Professor Capra restated his conclusions a year later, in 2019, when he characterized broad statements such as such as “challenges to the sufficiency of an expert’s basis raise questions of weight and not admissibility” as “misstatement[s] made by circuit courts in a disturbing number of cases… .”[22] Factual insufficiency and unreliable application of methodology are, of course, also credibility and ethical considerations, but they are the fact finders’ concern only after the proponent has shown admissibility by a preponderance of the evidence. Principled adjudication requires judges to say what they mean and mean what they say.


[1]  See also Cruz-Vazquez v. Mennonite Gen. Hosp. Inc., 613 F.3d 54 (1st Cir. 2010) (reversing exclusion of an expert witness who was biased in favor of plaintiffs in medical cases and who was generally affiliated with plaintiffs’ lawyers; such issues of personal bias are for the jury in assessing the weight of the expert witness’s testimony). Another example would be those expert witnesses whose commitment to Marxist ideology is such that they reject any evidence proffered by manufacturing industry as inherently corrupt, while embracing any evidence proffered by labor or the lawsuit industry without critical scrutiny.

[2]  In re Phenylpropanolamine (PPA) Prods. Liab. Litig., MDL No. 1407, 289 F. Supp. 2d 1230 (W.D. Wash. 2003) (Yale Hemorrhagic Stroke Project).

[3]  Cook v. Rockwell Internat’l Corp., 580 F. Supp. 2d 1071, 1098 (D. Colo. 2006) (“Defendants next claim that Dr. Clapp’s study and the conclusions he drew from it are unreliable because they failed to comply with four factors or criteria for drawing causal interferences from epidemiological studies: accounting for known confounders … .”), rev’d and remanded on other grounds, 618 F.3d 1127 (10th Cir. 2010), cert. denied, ___ U.S. ___, 133 S.Ct. 22 (2012). For another example of a trial court refusing to see through important qualitative differences between and among epidemiologic studies, see In re Welding Fume Prods. Liab. Litig., 2006 WL 4507859, *33 (N.D. Ohio 2006) (reducing all studies to one level, and treating all criticisms as though they rendered all studies invalid)

[4]  General Electric Co. v. Joiner, 522 U.S. 136 (1997).

[5]  Proctor & Gamble Co. v. Haugen, 2007 WL 709298, at *2 (D. Utah 2007); see also United States v. McCluskey, 954 F.Supp.2d 1227, 1247-48 (D.N.M. 2013) (“the trial judge decides the scientific validity of underlying principles and methodology” and “once that validity is demonstrated, other reliability issues go to the weight − not the admissibility − of the evidence”); Murphy-Sims v. Owners Ins. Co., No. 16-CV-0759-CMA-MLC, 2018 WL 8838811, at *7 (D. Colo. Feb. 27, 2018) (“Concerns surrounding the proper application of the methodology typically go to the weight and not admissibility[.]”).

[6]  Walker v. Gordon, 46 F. App’x 691, 696 (3rd Cir. 2002).

[7]  In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).

[8]  United States v. Gipson, 383 F.3d 689, 696 (8th Cir. 2004)(relying upon pre-2000 authority for this proposition).

[9]  City of Pomona v. SQM N.Am. Corp. 750 F.3d 1036, 1047 (9th Cir. 2014).

[10]  Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1343 (11th Cir. 2003).

[11]  Puga v. RCX Sols., Inc., 922 F.3d 285, 294 (5th Cir. 2019). See also United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019)(“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.”); MCI Communications Service Inc. v. KC Trucking & Equip. LLC, 403 F. Supp. 3d 548, 556 (W.D. La. 2019); Coleman v. United States, No. SA-16-CA-00817-DAE, 2017 WL 9360840, at *4 (W.D. Tex. Aug. 16, 2017); Alvarez v. State Farm Lloyds, No. SA-18-CV-01191-XR, 2020 WL 734482, at *3 (W.D. Tex. Feb. 13, 2020)(“To the extent State Farm wishes to attack the ‘bases and sources’ of Dr. Hall’s opinion, such questions affect the weight to be assigned to that opinion rather than its admissibility and should also be left for the jury’s consideration.”)(internal quotation and citation omitted); Patenaude v. Dick’s Sporting Goods, Inc., No. 9:18-CV-3151-RMG, 2019 WL 5288077, at *2 (D.S.C. Oct. 18, 2019) (“More fundamentally, each of these arguments goes to the factual basis of the report, … and it is well settled that the factual basis for an expert opinion generally goes to weight, not admissibility.”); Wischermann Partners, Inc. v. Nashville Hosp. Capital LLC, No. 3:17-CV-00849, 2019 WL 3802121, at *3 (M.D. Tenn. Aug. 13, 2019) (“[A]rguments that Pinkowski’s opinions are unreliable because he failed to review other relevant information and ignored certain facts bear on the factual basis for Pinkowski’s opinions, and, therefore, go to the weight, rather than the admissibility, of Pinkowski’s testimony.”).

[12]  Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 22 (1st Cir. 2011) (internal citations omitted), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012).

[13]  Kuhn v. Wyeth, Inc., 686 F.3d 618, 633 (8th Cir. 2012): Kuhn v. Wyeth, Inc., 686 F.3d 618, 633 (8th Cir. 2012), rev’g Beylin v. Wyeth, 738 F.Supp. 2d 887, 892 (E.D.Ark. 2010) (MDL court) (Wilson, J. & Montgomery, J.) (excluding proffered testimony of Dr. Jasenka Demirovic who appeared to have “selected study data that best supported her opinion, while downplaying contrary findings or conclusions.”); see United States v. Finch, 630 F.3d 1057 (8th Cir. 2011) (the sufficiency of the factual basis for an expert’s testimony goes to credibility rather than admissibility, and only where the testimony “is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded”); Katzenmeier v. Blackpowder Prods., Inc., 628 F.3d 948, 952 (8th Cir. 2010)(“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.”); Paul Beverage Co. v. American Bottling Co., No. 4:17CV2672 JCH, 2019 WL 1044057, at *2 (E.D. Mo. Mar. 5, 2019) (admitting challenged opinion testimony without addressing the expert witness’s basis or application of methodology, following Eighth Circuit’s incorrect statement in Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) that “[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination[,]”). See alsoThe Fallacy of Cherry Picking As Seen in American Courtrooms” (May 3, 2014).

[14]  SeeJudicial Dodgers – Reassigning the Burden of Proof on Rule 702” (May 13, 2020); “Judicial Dodgers – The Crossexamination Excuse for Denying Rule 702 Motions” (May 11, 2020).

[15]  Fed. R. Evid. 702, Advisory Note (quoting In re Paoli RR Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994)).

[16]  See Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th Cir. 2017) (“For the district court to conclude that Ford’s reliability arguments simply ‘go to the weight the jury should afford Mr. Sero’s testimony’ is to delegate the court’s gatekeeping responsibility to the jury.”).

[17]  Daniel J. Capra, Reporter’s Memorandum re Forensic Evidence, Daubert and Rule 702, at 1-2 (Apr. 1, 2018)

[18]  Id. at 43.

[19]  Id. at 43, 49-50.

[20]  Id. at 49-50.

[21]  Id. at 52.

[22]  Daniel J. Capra, Reporter, Reporter’s Memorandum re Possible Amendments to Rule 702, Advisory Comm. on Evidence Rules, Minutes of Meeting at 23 (May 3, 2019).

Judicial Dodgers – The Crossexamination Excuse for Denying Rule 702 Motions

May 11th, 2020

In my last post,[1] I praised Lee Mickus’s recent policy paper on amending Rule 702 for its persuasive force on the need for an amendment, as well as a source for helping lawyers anticipate common judicial dodges to a faithful application of the rule.[2] There are multiple dodges used by judicial dodgers, and it behooves litigants to recognize and anticipate them. In this post, and perhaps future ones, I elaborate upon the concerns that Mickus documents.

One prevalent judicial response to the Rule 702 motion is to kick the can and announce that the challenge to an expert witness’s methodological shenanigans can and should be addressed by crossexamination. This judicial response was, of course, the standard one before the 1993 Daubert decision, but Justice Blackmun’s opinion kept it alive in frequently quote dicta:

“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”[3]

Justice Blackmun, no doubt, believed he was offering a “helpful” observation here, but the reality is quite different. Traditionally, courts allowed qualified expert witnesses to opine with wild abandon, after showing that they had the very minimal qualifications required to do so in court. In the face of this traditional judicial lassitude, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof” were all a litigant could hope to accomplish in litigation. Furthermore, the litany of remedies for “shaky but admissible evidence” fails to help lower court judges and lawyers sort shaky but admissible evidence from shaky and inadmissible evidence.

Perhaps even more to the point, cases at common law “traditionally” did not involve multivariate logistic regression, structural equation models, propensity score weighting, and the like. Juries did just fine on whether Farmer Brown had exercised due care when he ran over his neighbor’s cow with his tractor, or even when a physician opined that a child was born 350 days after the putative father’s death was sired by the testator and entitled to inherit from “dad.”

Mickus is correct that a trial judge’s comment that the loser of a Rule 702 motion is free to cross-examine is often a dodge, an evasion, or an outright failure to engage with the intricacies of a complex methodological challenge.[4] Stating that the “traditional and appropriate means of attacking shaky but admissible evidence” remain available is a truism, and might be offered as judicial balm to the motion loser, but the availability of such means is hardly an explanation or justification for denying the Rule 702 motion. Furthermore, Justice Blackmun’s observation about traditional means was looking back at an era when in most state and federal court, a person found to be minimally qualified, could pretty much say anything regardless of scientific validity. That was the tradition that stood in active need of reform when Daubert was decided in 1993.

Mickus is also certainly correct that the whole point of judicial gatekeeping is that the presentation of vive voce testimony before juries is not an effective method for revealing shaky, inadmissible opinion testimony. A few courts have acknowledged that cross-examination in front of a jury is not an appropriate justification for admitting methodologically infirm expert witness opinion testimony. In the words of Judge Jed Rakoff, who served on the President’s Council of Advisors on Science and Technology,[5] addressed the limited ability of cross-examination in the context of forensic evidence:

“Although effective cross-examination may mitigate some of these dangers, the explicit premise of Daubert and Kumho Tire is that, when it comes to expert testimony, cross-examination is inherently handicapped by the jury’s own lack of background knowledge, so that the Court must play a greater role, not only in excluding unreliable testimony, but also in alerting the jury to the limitations of what is presented.”[6]

Judge Rakoff’s point is by no means limited to forensic evidence, and it has been acknowledged more generally by Professor Daniel Capra, the Reporter to the Advisory Committee on Evidence Rules:

“the key to Daubert is that cross-examination alone is ineffective in revealing nuanced defects in expert opinion testimony and that the trial judge must act as a gatekeeper to ensure that unreliable opinions don’t get to the jury in the first place.”[7]

Juries do not arrive at the court house knowledgeable about statistical and scientific methods; nor are they prepared to spend weeks going over studies to assess their quality, and whether an expert witness engaged in cherry picking, misapplying methodologies, or insufficient investigation.[8] In discussing the problem of expert witnesses’ overstating the strength of their opinions, beyond what is supported by evidence, the Reporter stressed the limits and ineffectiveness of remedial adversarial cross-examination:

“Perhaps another way to think about cross-examination as a remedy is to compare the overstatement issue to the issues of sufficiency of basis, reliability of methodology, and reliable application of that methodology. As we know, those three factors must be shown by a preponderance of the evidence. The whole point of Rule 702 — and the Daubert-Rule 104(a) gatekeeping function — is that these issues cannot be left to cross-examination. The underpinning of Daubert is that an expert’s opinion could be unreliable and the jury could not figure that out, even given cross-examination and argument, because the jurors are deferent to a qualified expert (i.e., the white lab coat effect). The premise is that cross-examination cannot undo the damage that has been done by the expert who has power over the jury. This is because, for the very reason that an expert is needed (because lay jurors need assistance) the jury may well be unable to figure out whether the expert is providing real information or junk. The real question, then, is whether the dangers of overstatement are any different from the dangers of insufficient basis, unreliability of methodology, and unreliable application. Why would cross-examination be insufficient for the latter yet sufficient for the former?

It is hard to see any difference between the risk of overstatement and the other risks that are regulated by Rule 702. When an expert says that they are certain of a result — when they cannot be — how is that easier for the jury to figure out than if an expert says something like ‘I relied on four scientifically valid studies concluding that PCB’s cause small lung cancer’. When an expert says he employed a ‘scientific methodology’ when that is not so, how is that different from an expert saying “I employed a reliable methodology” when that is not so?”[9]

The Reporter’s example of PCBs and small lung cancer was an obvious reference to the Joiner case, in which the Supreme Court held that the trial judge had properly excluded causation opinions. The Reporter’s point goes directly to the cross-examination excuse for not shirking the gatekeeping function. In Joiner, the Court held that gatekeeping was necessitated when cross-examination was insufficient in the face of an analytical gap between methodology and conclusion.[10] Indeed, such gaps are or should be present in most well-conceived Rule 702 challenges.

The problem is not only that juries defer to expert witnesses. Juries lack the competence to assess scientific validity. Although many judges are lacking in such competence, at least litigants can expect them to read the Reference Manual on Scientific Evidence before they read the parties’ briefs and the expert witnesses’ reports. If the trial judge’s opinion evidences ignorance of the Manual, then at least there is the possibility of an appeal. It will be a strange day in a stranger world, when a jury summons arrives in the mail with a copy of the Manual!

The rules of evidence permit expert witnesses to rely upon inadmissible evidence, at least when experts in their field would do so reasonably. To decide whether the reliance is reasonable requires the decision maker go outside the “proofs” that would typically be offered at trial. Furthermore, the decision maker – gatekeeper – will have to read the relied-upon study and data to evaluate the reasonableness of the reliance. In a jury trial, the actual studies relied upon are rarely admissible, and so the jury almost never has the opportunity to read them to make its own determination of reasonableness of reliance, or of whether the study and its data really support what the expert witness draws from it.

Of course, juries do not have to write opinions about their findings. They need neither explain nor justify their verdicts, once the trial court has deemed that there is the minimally sufficient evidence to support a verdict. Juries, with whatever help cross-examination provides, in the absence of gatekeeping, cannot deliver anything approaching scientific due process of law.

Despite Supreme Court holdings, a substantially revised and amended Rule 702, and clear direction from the Advisory Committee, some lower courts have actively resisted enforcing the requirements of Rule. 702 Part of this resistance consists in pushing the assessment of the reliability of the data and assumptions used in applying a given methodology out of the gatekeeping column and into the jury’s column. Despite the clear language of Rule 702, and the Advisory Committee Note,[11] some Circuits of the Court of Appeals have declared that assessing the reliability of assumptions and data is not judges’ work (outside of a bench trial).[12]

As Seinfeld has taught us, rules are like reservations. It is not enough to make the rules, you have to keep and follow them. Indeed, following the rule is really the important part.[13] Although an amended Rule 702 might include a provision that “we really mean this,” perhaps it is worth a stop at the Supreme Court first to put down the resistance.


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

[2]  Lee Mickus, “Gatekeeping Reorientation: Amend Rule 702 to Correct Judicial Misunderstanding about Expert Evidence,” Washington Legal Foundation Critical Legal Issues Working Paper No. 217 (May 2020).

[3]  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993).

[4]  See, e.g., AmGuard Ins. Co. v. Lone Star Legal Aid, No. CV H-18-2139, 2020 WL 60247, at *8 (S.D. Tex. Jan. 6, 2020) (“[O]bjections [that the expert could not link her experienced-based methodology to her conclusions] are better left for cross examination, not a basis for exclusion.”); Powell v. Schindler Elevator Corp., No. 3:14cv579 (WIG), 2015 WL 7720460, at *2 (D. Conn. Nov. 30, 2015) (“To the extent Defendant argues that Mr. McPartland’s conclusions are unreliable, it may attack his report through cross examination.”); Wright v. Stern, 450 F. Supp. 2d 335, 359–60 (S.D.N.Y. 2006) (“In a close case, a court should permit the testimony to be presented at trial, where it can be tested by cross-examination and measured against the other evidence in the case.”) (internal citation omitted). See also Adams v. Toyota Motor Corp., 867 F.3d 903, 916 (8th Cir. 2017) (affirming admission of expert testimony, reiterating the flexibility of the Daubert inquiry and emphasizing that defendant’s concerns could all be addressed with “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof”); Liquid Dynamics Corp. v. Vaughan Corp., 449 F.3d 1209, 1221 (Fed. Cir. 2006) (“The identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination.” (internal citation omitted)); Carmichael v. Verso Paper, LLC, 679 F. Supp. 2d 109, 119 (D. Me. 2010) (“[W]hen the adequacy of the foundation for the expert testimony is at issue, the law favors vigorous cross-examination over exclusion.”); Crawford v. Franklin Credit Mgt. Corp., 08-CV-6293 (KMW), 2015 WL 13703301, at *6 (S.D.N.Y. Jan. 22, 2015) (“In light of the ‘presumption of admissibility of evidence,’ that opportunity [for cross-examination] is sufficient to ensure that the jury receives testimony that is both relevant and reliable.”) (internal citation omitted).

Even the most explicitly methodological challenges are transmuted into cross-examination issues by refusnik courts. For instance, cherry picking is reduced to a credibility issue for the jury and not germane to the court’s Rule 702 determination. In re Chantix Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1288 (N.D. Ala. 2012) (finding that an expert witness’s deliberate decision not to rely upon clinical trial data merely “is a matter for cross-examination, not exclusion under Daubert”); In re Urethane Antitrust Litig., 2012 WL 6681783, at *3 (D.Kan.) (“The extent to which [an expert] considered the entirety of the evidence in the case is a matter for cross-examination.”); Bouchard v. Am. Home Prods. Corp., 2002 WL 32597992, at *7 (N.D. Ohio) (“If the plaintiff believes that the expert ignored evidence that would have required him to substantially change his opinion, that is a fit subject for cross-examination.”). Similarly, courts have by ipse dixit made flawed application of what a standard methodological into merely a credibility issue to be explore by cross-examination rather than by judicial gatekeeping. United States v. Adam Bros. Farming, 2005 WL 5957827, at *5 (C.D. Cal. 2005) (“Defendants’ objections are to the accuracy of the expert’s application of the methodology, not the methodology itself, and as such are properly reserved for cross-examination.”); Oshana v. Coca-Cola Co., 2005 WL 1661999, at *4 (N.D. Ill.) (“Challenges addressing flaws in an expert’s application of reliable methodology may be raised on cross-examination.”).

[5]  President’s Council of Advisors on Science and Technology, Report to the President on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Sept. 2016).

[6]  United States v. Glynn, 578 F. Supp. 2d 567, 574 (S.D.N.Y. 2008) (Rakoff, J.)

[7]  Daniel J. Capra, Reporter, Advisory Comm. on Evidence Rules, Minutes of Meeting at 23 (May 3, 2019) (comments of the Reporter).

[8]  Daniel J. Capra, Reporter’s Memorandum re Forensic Evidence, Daubert and Rule 702 at 50 (April 1, 2018) (identifying issues such as insufficient investigation, cherry-picking data, or misapplying standard methodologies, as examples of a “white lab coat” problem resulting from juries’ inability to evaluate expert witnesses’ factual bases, methodologies, and applications of methods).

[9]  Daniel J. Capra, Reporter, Advisory Comm. on Evidence Rules, Minutes of Meeting at 10-11 (Oct. 1, 2019) (comments of the Reporter on possible amendment of Rule 702) (internal citation to Joiner omitted).

[10]  Id. at 11 n.5.

[11]  See In re Paoli RR Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (calling for a close, careful analysis of the application of a proper methodology to every step in the case; “any step that renders the analysis unreliable renders the expert’s testimony inadmissible whether the step completely changes a reliable methodology or merely misapplies that methodology”).

[12]  See, e.g., City of Pomona v. SQM North Am. Corp., 750 F.3d 1036, 1047 (9th Cir. 2014) (rejecting the Paoli any-step approach without careful analysis of the statute, the advisory committee note, or Supreme Court decisions); Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 808 (7th Cir. 2013) (“[t]he reliability of data and assumptions used in applying a methodology is tested by the adversarial process and determined by the jury; the court’s role is generally limited to assessing the reliability of the methodology – the framework – of the expert’s analysis”); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (“the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination”).

[13]  Despite the clarity of the revised Rule 702, and the intent to synthesize Daubert, Joiner, Kumho Tire, and Weisgram, some courts have insisted that nothing changed with the amended rule. See, e.g., Pappas v. Sony Elec., Inc., 136 F. Supp. 2d 413, 420 & n.11 (W.D. Pa. 2000) (opining that Rule 702 as amended did not change the application of Daubert within the Third Circuit) (“The Committee Notes to the amended Rule 702 cite and discuss several Court of Appeals decisions that have properly applied Daubert and its progeny. Among these decisions are numerous cases from the Third Circuit. See Committee Note to 2000 Amendments to Fed. R.Evid. 702. Accordingly, I conclude that amended Rule 702 does not effect a change in the application of Daubert in the Third Circuit.”). Of course, if nothing changed, then the courts that take this position should be able to square their decisions with text of Rule 702, as amended in 2000.