TORTINI

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

Discovery of Retained, Testifying Statistician Expert Witnesses (Part 2)

July 1st, 2015

Discovery Beyond the Report and the Deposition

The lesson of the cases interpreting Rule 26 is that counsel cannot count exclusively upon the report and automatic disclosure requirements to obtain the materials necessary or helpful for cross-examination of statisticians who have created their own analyses. Sometimes just asking nicely suffices[1]. Other avenues of discovery are available, however, for reluctant disclosers. In particular, Rule 26(b) authorizes discovery substantially broader than what is required for inclusion in an expert witness’s report.

Occasionally, counsel cite caselaw that has been superseded by the steady expansion of Rule 26[2]. The 1993 amendments made clear, however, that Rule 26 sets out mandatory minimum requirements that do not define or exhaust the available discovery tools to obtain information from expert witnesses[3]. Some courts continue to insist that a party make a showing of necessity to go beyond the minimal requirements of Rule 26[4], although the better reasoned cases take a more expansive view of the proper scope of expert witness discovery[5].

Although the federal rules may not require the expert witness report to include, or to attach, all “working notes or recordings,” or calculations, alternative analyses, and data output files, these materials may be the subject of proper document requests to the adverse party or perhaps subpoenas to the expert witness.  The Advisory Committee Notes explain that the various techniques of discovery kick in by virtue of Rule 26(b), where automatic disclosure and report requirements of Rule 26(a) leave off:

“Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert’s testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, inquiry about communications the expert had with anyone other than the party’s counsel about the opinions expressed is unaffected by the rule. Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed. These discovery changes therefore do not affect the gatekeeping functions called for by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and related cases.[6]

The court in Ladd Furniture v. Ernst & Young explained the structure of Rule 26 with respect to underlying documents, calculations, and data[7].  In particular, the requirements of the Rule 26(a) report do not create a limitation on Rule 26(b) discovery:

“As a basis for withholding the above information, Ladd argues that Ernst & Young is not entitled to discover any expert witness information which is not specifically mentioned in Rule 26(a)(2)(B). However, as explained below, Ladd’s position on this point is not supported by the text of Rule 26 or by the Advisory Committee’s commentary to Rule 26(a). In the text, Rule 26(a)(2)(B) provides for the mandatory disclosure of certain expert witness information, even without a request from the opposing party. However, there is no indication on the face of the rule to suggest that a party is absolutely prohibited from seeking any additional information about an opponent’s expert witnesses. In fact, Rule 26(b)(1) describes the scope of allowable discovery as follows: ‛Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action… .’ Fed. R. Civ. P. 26(b)(1).[8]

Expert witness discovery for materials that go beyond what is required in an adequate Rule 26(a) report can have serious consequences for the expert witness who fails to produce the requested materials. Opinion exclusion is an appropriate remedy against an expert witness who failed to keep data samples and statistical packages because the adversary party “could not attempt to validate [the expert witness’s] methods even if [the witness] could specifically say what he considered.[9]

No doubt expert witnesses and parties will attempt to resist the call for working notes and underlying materials on the theory that the requested documents and materials are “draft reports,” which are now protected by the revisions to Rule 26.  For the most part, these evasions have been rejected[10].  In one case, for instance, in which an expert witness’s assistants compiled and summarized information from individual case files, the court rejected the characterization of the information as part of a “draft report,” and ordered their production.[11]

Choice of Discovery Method Beyond Rule 26 Automatic Disclosure

In addition to the mandatory expert report and disclosure of data and facts, and the optional deposition by oral examination, parties have other avenues to pursue discovery of information, facts, and data, from expert witnesses. Under Rule 33(a)(2), parties may propound contention interrogatories that address expert witnesses’ opinions and conclusions. As for methods of discovery beyond what is discussed specifically in Rule 26, courts are confronted with a threshold question whether Rule 34 requests to produce, Rule 30(b)(2) depositions by oral examination, or Rule 45 subpoenas are the appropriate discovery method for obtaining documents from a retained, testifying expert witness. In the view of some courts, the resolution to this threshold question turns on whether expert witnesses are within the control of parties such that parties must respond to discovery for information, documents, and things within the custody, possession, and control of their expert witnesses.

Subpoenas Are Improper

Some federal district courts view Rule 45 subpoenas as inappropriate discovery tools for parties[12] and persons under the control of parties. In Alper v. United States[13], the district court refused to enforce plaintiff’s Rule 45 subpoena that sought documents from defendant’s expert witness. Although acknowledging that Rule 45’s language was unclear, the Alper court insisted that since a party proffers an expert witness, that witness should be considered under the party’s control[14]. And because the expert witness was “within defendant’s control,” the court noted that Rule 34 rather than Rule 45 governed the requested discovery[15]. Alper seems to be a minority view, but its approach is attractive in streamlining discovery, eliminating subpoena service issues for expert witnesses who may live outside the district, and forcing the sponsoring party to respond and to obtain compliance with its retained expert witness.

Subpoenas Are Proper

The “control” rationale of the Alper case is questionable. Rule 45 contains no statement of limitation to non-parties[16]. Parties “proffer” fact witnesses, but their proffers do not restrict the availability of Rule 45 subpoenas. More important, expert witnesses are not truly under the control of the retaining parties. Expert witnesses have independent duties to the court, and under their own professional standards, to give their own independent opinions[17].

Many courts allow discovery of expert witness documents and information by Rule 45 subpoena on either the theory that Rule 45 subpoenas are available for both parties and non-parties or the theory that expert witnesses are sufficiently independent of the sponsoring party that they are non-parties who are clearly subject to Rule 45. If expert witnesses are not parties, and Rule 26’s confidentiality provisions do not constrain the available discovery tools for expert witnesses, then expert witness subpoenas would appear to a proper discovery tool to discover documents in the witnesses’ possession, control, and custody[18]. When used as a discovery tool in this way, subpoenas used are subject to discovery deadlines[19].

Particular Concerns for Discovery of Statistician Expert Witnesses

Statistician expert witnesses require additional care and discovery investigation in complex products liability cases[20].  The caselaw sometimes takes a crabbed approach that refuses to provide parties access to their adversaries’ statistical analyses, calculations, data input  and output files, and graphical files.

Statistician expert testimony will usually involve complex statistical evidence, models, assumptions, and calculations. These materials will in turn create a difficulty in discerning the statistician’s choices from available statistical tests, and whether the statistician exploited the opportunity for multiple tests to be conducted serially with varying assumptions until a propitious result was obtained. Given these typical circumstances, statistical expert witness testimony will almost always require full disclosure to allow the adversary a fair opportunity to cross-examine at trial, or to challenge the validity of the proffered analyses under Rules 702 and 703[21].

Statisticians create and use a variety of materials that are clearly relevant to the their opinion:

  • programs and programming code run to generate all specified analyses on specified data,
  • statistical packages,
  • all data available,
  • all data “cleaning” or data selection processes,
  • selection of variables from those available,
  • data frames that show what data were included (and excluded) in the analyses,
  • data input files,
  • all specified tests run on all data,
  • all data and analysis output files that show all analyses generated,
  • all statistical test diagnostics and tests of underlying assumptions, and
  • graphical output files.

The statistician may have made any number of decisions or judgments in selecting which statistical test results to incorporate into his or her final report.  The report will in all likelihood not include important materials that would allow another statistician to fully understand, test, replicate, and criticize the more conclusory analysis and statements in the report.  In addition, lurking in the witnesses files, or in the electronic “trash bin” may be alternative analyses that were run and discarded, and not included in the final report.  Why and how those alternative analyses were run but discarded, may raise important credibility or validity questions, as well as provide insight into the statistician’s analytical process, all important considerations in preparing for cross-examination and rebuttal.  The lesson of Rule 26, and the caselaw interpreting its provisions, is that lawyers must make specific request for the materials described above.  Only with these materials firmly in hand, can a deposition fully explore the results obtained, the methods used, the assumptions made, the assumptions violated, the alternative methods rejected, the data used, the data available, data not used, the data-dredging and manipulation potential, analytical problems, and the potential failure to reconcile inconsistent results. Waiting for trial, or even for the deposition, may well be too late[22].

The warrant for examining the integrity of data relied upon by expert witnesses appears to be securely embedded in the Federal Rules of Civil Procedure, and in the Federal Rules of Evidence. Evidence Rule 703 has particular relevance to statistical or epidemiologic testimony. Lawyers facing studies of dubious quality may need to press for discovery of underlying data and materials. In the Viagra vision loss multi-district litigation (MDL), the defendant sought and obtained discovery of underlying data from plaintiffs’ expert witness’s epidemiologic study of vision loss among patients using Viagra and similar medications[23]. Although the Viagra MDL court had struggled with inferential statistics in its first approach to defendant’s Rule 702 motion, the court understood the challenge based upon lack of data integrity, and reconsidered and granted defendant’s motion to exclude the challenged expert witness[24].

The lawyering implications for discovery of statistician expert witnesses are important. Statistical evidence requires counsel’s special scrutiny to ensure compliance with the disclosure requirements of Federal Rule of Civil Procedure 26. Given the restrictive reading of Rule 26 by some courts, counsel will need to anticipate the use of other discovery tools. Lawyers should request by Rule 34 or Rule 45, all computer runs, programming routines, and outputs, and they should zealously pursue witnesses’ failure to maintain and produce data. Given the uncertainty in some districts whether expert witnesses are subject to subpoenas, counsel may consider propounding both Rule 34 requests and serving Rule 45 subpoenas.

Lawyers in data-intensive cases should give early consideration to appropriate discovery plans that contemplate data production in advance of depositions, to allow full exploration of analyses at deposition[25]. Lawyers should also be alert to the potential need to show particularized need for the requested data and analyses. In instructing expert witnesses on their preparation of their reports, lawyers should consider directing their expert witnesses to express whether they need further access to the adversary’s expert witnesses’ underlying data and materials to fully evaluate the proffered opinions. Discovery of statisticians and their data and their analyses requires careful planning, as well as patient efforts to educate the court about the need for full exploration of all data and all analyses conducted, whether or not incorporated into the Rule 26 report.


[1] Randall v. Rolls-Royce Corp., 2010 U.S. Dist. LEXIS 23421, *4-5 (S.D. Ind. March 12, 2010) (“Dr. Harnett who began his evaluation of the analysis contained in the report … soon concluded that he needed the underlying studies and statistical programs created or used by Dr. Drogin. In response to the Defendants’ request for such materials, Plaintiffs produced four discs containing more than 1,000 separate electronic files”).

[2] Marsh v. Jackson, 141 F.R.D. 431, 432–33 (W.D. Va. 1992) (holding that Rule 45 could not be used to obtain an opposing expert’s files because Rule 26(b)(4) limits expert discovery to depositions and interrogatories as a policy matter)

[3] See Advisory Comm. Notes for 1993 Amendments, to Fed. R. Civ. P. 26(a) (“The enumeration in Rule 26(a) of items to be disclosed does not prevent a court from requiring by order or local rule that the parties disclose additional information without a discovery request. Nor are parties precluded from using traditional discovery methods to obtain further information regarding these matters, … .”); United States v. Bazaarvoice, Inc., C 13-00133 WHO (LB), 2013 WL 3784240 (N.D. Cal. July 18, 2013) (“Rule 26(a)(2)(B) . . . does not preclude parties from obtaining further information through ordinary discovery tools”) (internal citations omitted).

[4] Morriss v. BNSF Ry. Co., No. 8:13CV24, 2014 WL 128393, at *4–6, 2014 U.S. Dist. LEXIS 3757, at *17 (D.Neb. Jan. 13, 2014) (holding that “absent some threshold showing of “compelling reason,” the broad discovery provisions of Rules 34 and 45 cannot be used to undermine the specific expert witness discovery rules in Rule 26(a)(2)”).

[5] Modjeska v. United Parcel Service Inc., No. 12–C–1020, 2014 WL 2807531 (E.D. Wis. June 19, 2014) (holding that Rule 26(a)(2)(B) governs only disclosure in expert witness reports and does not limit or preclude further discovery using ordinary discovery such as requests to produce); Expeditors Int’l of Wash., Inc. v. Vastera, Inc., No. 04 C 0321, 2004 WL 406999, at *3 (N.D. Ill. Feb.26, 2004). See also Wright & Miller, 9A Federal Practice & Procedure Civ. § 2452 (3d ed. 2013).

[6] Adv. Comm. Note for Rule 26(b)(4)(B)(2010).  See, e.g., Ladd Furniture v. Ernst & Young, 1998 U.S. Dist. LEXIS 17345, at *34-37 (M.D.N.C. Aug. 27, 1998).

[7] Id.

[8] Id. at *36-37.

[9] Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F. Supp. 2d 175, 190 (D. Conn. 2009) (excluding expert opinion because his samples and data packages no longer existed and thus “[d]efendants could not attempt to validate [his] methods even if he could specifically say what he considered”). See also Jung v. Neschis, No. 01–Civ. 6993(RMB)(THK), 2007 WL 5256966, at *8–15 (S.D.N.Y. Oct. 23, 2007) (finding that a party’s failure to produce tape recordings that its medical expert witness relied upon for his opinion was ‘‘disturbing’’; precluding expert witness’s testimony).

[10] See, e.g., Dongguk Univ. v. Yale Univ., No. 3:08-CV-00441, 2011 WL 1935865, at *1 (D. Conn. May 19, 2011) (holding that “an expert’s handwritten notes are not protected from disclosure because they are neither drafts of an expert report nor communications between the party’s attorney and the expert witness”).

[11] D.G. ex rel. G. v. Henry, No. 08-CV-74-GKF-FHM, 2011 WL 1344200, at *1 (N.D. Okla. Apr. 8, 2011) (ordering production of the assistants’ notes because the expert witness had relied upon them in forming his opinion, which brought them within the scope of “facts or data” under the rule).

[12] Mortgage Info. Servs, Inc. v. Kitchens, 210 F.R.D. 562, 564-68 (W.D.N.C. 2002) (holding that nothing in Rule 45 precludes its use on a party); See also Mezu v. Morgan State Univ., 269 F.R.D. 565, 581 (D. Md. 2010) (“courts are divided as to whether Rule 45 subpoenas should be served on parties”); Peyton v. Burdick, 2008 U.S. Dist. LEXIS 106910 (E.D. Cal. 2008) (discussing the split among courts on the issue).

[13] 190 F.R.D. 281 (D. Mass. 2000).

[14] Id. at 283.

[15] Id. See Ambrose v. Southworth Products Corp., No. CIV.A. 95–0048–H, 1997 WL 470359, 1 (W.D. Va. June 24, 1997) (holding a “naked” subpoena duces tecum directed to a non-party expert retained by a party is not within the ambit of a Rule 45 document production subpoena, and not permitted by Fed. R. Civ. Pro. 26(b)(4)); see also Hartford Fire Ins. v. Pure Air on the Lake Ltd., 154 F.R.D. 202, 208 (N.D. Ind. 1993) (holding a party cannot use Rule 45 to circumvent Rule 26(b)(4) as a method to obtain an expert witness’s files); Marsh v. Jackson, 141 F.R.D. 431, 432 (W.D. Va. 1992) (noting that subpoena for production of documents directed to non-party expert retained by a party is not within ambit of Fed. Rule 45(c)(3)(8)(ii)).

[16] See James Wm. Moore, 9 Moore’s Federal Practice § 45.03[1] (noting that “[s]ubpoenas under Rule 45 may be issued to parties or non-parties”).

[17] See Glendale Fed. Bank, FSB v.United States, 39 Fed. Cl. 422, 424 (Fed. Cl. 1997) (“The expert witness, testifying under oath, is expected to give his own honest, independent opinion… He is not the sponsoring party’s agent at any time merely because he is retained as its expert witness”). See also National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd., (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68 at 81-82 (Q.B.D.), rev’d on other grounds [1995] 1 Lloyd’s Rep. 455 at 496 (C.A.) (embracing the enumeration of duties, including a duty to “provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise,” and a duty to eschew “the role of an advocate”).

[18] Western Res., Inc. v. Union Pac. RR, No. 00-2043-CM, 2002 WL 1822428, at *3 (D. Kan. July 23, 2002) (ordering expert witness to produce prior testimony under Rule 45); All W. Supply Co. v. Hill’s Pet Prods. Div., Colgate-Palmolive Co., 152 F.R.D. 634, 639 (D. Kan. 1993) (“With regard to nonparties such as plaintiff’s expert witness, a request for documents may be made by subpoena duces tecum pursuant to Rule 45”); Smith v. Transducer Technology, Inc., No. Civ. 1995/28, 2000 WL 1717332, 2 (D.V.I. Nov. 16, 2000) (holding that Rule 30(b)(5) deposition notice, served upon opposing party, is not an appropriate discovery tool to compel expert witness to produce documents from at his deposition) (noting that a “Rule 45 subpoena duces tecum in conjunction with a properly noticed deposition may do so (subject however to any Rule 26 limitations)”); Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (denying motion to quash subpoenas issued to party’s expert witness); Quaile v. Carol Cable Co., Civ. A. No. 90-7415, 1992 WL 277981, at *2 (E.D. Pa. Oct. 5, 1992) (granting motion to compel discovery concerning expert witness’s opinions pursuant to a Rule 45 subpoena); Lawrence E. Jaffe Pension Plan v. Household Int’l, Inc., No. 02 C 5893, 2008 WL 687220, at *2 (N.D. Ill Mar. 10, 2008) (“It is clear . . . that a subpoena duces tecum . . . is an appropriate discovery mechanism against . . . a party’s expert witness”) (internal citation omitted); Expeditors Internat’l of Wash., Inc. v. Vastera, Inc., No. 04 C 0321, 2004 WL 406999, at *2-3 (N.D. Ill. Feb. 26, 2004) (holding Rule 45, not Rule 34, governs discovery from retained experts) (“Subpoena duces tecum is . . . an appropriate discovery mechanism against nonparties such as a party’s expert witness”); Reit v. Post Prop., Inc., No. 09 Civ. 5455(RMB)(KNF), 2010 WL 4537044, at *9 (S.D.N.Y. Nov. 4, 2010) (“Subpoena duces tecum … is an appropriate discovery mechanism against a nonparty expert”).

[19] See, e.g., Williamson v. Horizon Lines LLC , 248 F.R.D. 79, 83 (D. Me. 2008) (“[C]ontrary to Horizon Lines’ contention, there is a relationship between Rule 26 and Rule 45 and parties should not be allowed to employ a subpoena after a discovery deadline to obtain materials from third parties that could have been produced before discovery.”).

[20] Bartley v. Isuzu Motors Ltd., 151 F.R.D. 659, 660-61 (D. Colo. 1993) (ordering party to create and preserve “the input and output data for each variable in the program, for each iteration, or each simulation,” as well as a record of all simulations performed, even those that do not conform to the plaintiff’s claims and theories in the case).

[21] See City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp. 1257 (N.D. Ohio 1980) (“Certainly, where, as here, the expert reports are predicated upon complex data, calculations and computer simulations which are neither discernible nor deducible from the written reports themselves, disclosure thereof is essential to the facilitation of effective and efficient examination of these experts at trial.”); Shu-Tao Lin v. McDonnell-Douglas, Corp., 574 F. Supp. 1407, 1412-13 (S.D.N.Y. 1983) (granting new trial, and holding that expert witness’s failure to disclosure the “nature of [the plaintiff’s testifying expert’s] computer program or the underlying data, the inputs and outputs employed in the program” deprived adversary of an “adequate basis on which to cross-examine plaintiff’s experts”), rev’d on other grounds, 742 F.2d 45 (2d Cir. 1984).

[22] Manual for Complex Litigation at 99, § 11.482 (4th ed. 2004) (“Early and full disclosure of expert evidence can help define and narrow issues. Although experts often seem hopelessly at odds, revealing the assumptions and underlying data on which they have relied in reaching their opinions often makes the bases for their differences clearer and enables substantial simplification of the issues. In addition, disclosure can facilitate rulings well in advance of trial on objections to the qualifications of an expert, the relevance and reliability of opinions to be offered, and the reasonableness of reliance on particular data.207”). See also ABA Section of Antitrust Law, Econometrics: Legal, Practical, and Technical Issues at 75-76 (2005) (advising of the necessity to obtain all data, all analyses, and all supporting materials, in advance of deposition to ensure efficient and effective discovery procedures).

[23] In re Viagra Prods. Liab. Litig., 572 F. Supp. 2d 1071, 1090 (D. Minn. 2008).

[24] In re Viagra Prods. Liab. Litig., 658 F. Supp. 2d 936, 945 (D. Minn. 2009).

[25] See Fed. R. Civ. Pro. 16(b); 26(f).

Government Secrecy That Denies Defendant A Fair Trial – Because of Reasons

June 20th, 2015

In Davis v. Ayala, defendant Hector Ayala challenged the prosecutor’s use of preemptory challenges in an apparently racially motivated fashion. The trial judge allowed the prosecutor to disclose his reasons in an ex parte session, without the defense present. Under the Supreme Court’s decision in Batson, the defendant should have had the opportunity to inquiry into the bona fides of the prosecutor’s claimed motivations. Based upon the prosecutor’s one-sided presentation, the trial judge ruled that the prosecutor had valid, race-neutral grounds for the contested strikes. After a trial, the empanelled jury convicted Ayala of murder, and sentenced him to death. In a 5-4 decision, the Supreme Court held that the trial court’s error was harmless. Davis v. Ayala, Supreme Court, No. 13–1428 (June 18, 2015). Justice Kennedy issued a concurrence. His conscience was curiously not troubled by the Star Chamber proceedings, but the facts of Ayala’s post-conviction incarceration, which has taken place largely in solitary confinement.

Remarkably, the New York Times weighed in on the Ayala case, but not to castigate the Court for rubber-stamping Kafkaesque Rules of Procedure that permits the defense to be excluded and prevented from exercising its Constitutionally protected role. The Times chose to spill ink instead on Justice Kennedy’s concurrence on the length of solitary confinement. Editorial, “Justice Kennedy on Solitary Confinement,” N.Y. Times (June 19, 2015).

What is curious about Justice Kennedy’s focus, and the Times’ cheerleading, is that they run roughshod over a procedural error that excused prosecutorial secrecy and that affected the adjudication of guilt or innocence, only to obsess about whether a man, taken to be guilty, has been treated inhumanely by the California prison system. Even more curious is the willingness to the Times to castigate, on bogus legal grounds, Justice Thomas for responding to Justice Kennedy:

“In a brief, sour retort that read more like a comment to a blog post, Justice Clarence Thomas quipped that however small Mr. Ayala’s current accommodations may be, they are ‘a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest’. It was a bizarre and unseemly objection. The Eighth Amendment does not operate on a sliding scale depending on the gravity of a prisoner’s crime.”

Id. (emphasis added). Except, of course, the Eight Amendment’s requirement of proportionality does operate on a sliding scale[1]. In Kennedy v. Louisiana, 554 U.S. 407 (2008), for instance, the Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibited a state from imposing the death penalty to punish a child rapist because of the sanction’s disproportionality[2].

Perhaps the New York Times could hire a struggling young lawyer to fact check its legal pronouncements? Both Justice Kennedy and Justice Thomas were in the same majority that would tolerate denying the defendant of his constitutional right to examine prosecutor’s motivation for striking black and Hispanic jurors. What a “sour note” for the Times to sound over Justice Thomas’s empathy for the victims of the defendant’s crimes.


[1] William W. Berry III, “Eighth Amendment Differentness,” 78 Missouri L. Rev. 1053 (2013); Charles Walter Schwartz, “Eighth Amendment Proportionality Analysis and the Compelling Case of William Rummel,” 71 J. Crim. L. & Criminology 378 (1980); John F. Stinneford, “Rethinking Proportionality Under the Cruel and Unusual Punishments Clause,” 97 Va. L. Rev. 899 (2011).

[2] Also curious was that then Senator Barack Obama criticized the Supreme Court for its decision in the Kennedy case. See Sara Kugler “Obama Disagrees With High Court on Child Rape Case,” ABC News (June 25, 2008) (archived from the original).

Asymmetries in the Law Between the Pursuer and the Defender

April 5th, 2014

There are some important asymmetries in the law.  A single defendant is at risk of collateral estoppel, but each individual plaintiff will claim independence lack of privity with the rest of the herd.  Similarly, a defendant in a mass tort may be bound by its cross-examination of a now unavailable witness, but plaintiffs may be able to disavow a previous plaintiff’s examination even though there was a common representation.

Plaintiffs have sought discovery of confidential consulting expert witnesses of a defendant in multi-district litigation, while successfully evading discovery of their own consulting expert witnesses.  Again plaintiffs’ success turns on the lack of privity between and among the many plaintiffs, or because plaintiffs’ counsel indulge the fiction that they were not acting in their role as attorney for claimants.

Expert witnesses for plaintiffs accuse scientists who testify for a defendant of “conflicts of interest,” but conveniently ignore and fail to disclose their own. SeeMore Hypocrisy Over Conflicts of Interest” (Dec. 4, 2010) (Arthur Frank and Barry Castleman); James Coyne, “Lessons in Conflict of Interest: The Construction of the Martyrdom of David Healy and The Dilemma of Bioethics,” 5 Am. J. Bioethics W3 (2005).

Plaintiffs often seek to use evidence of lobbying or “rent-seeking” by defendants.  See Bruce R. Parker and Jennifer Lilore, “Application of the Noerr-Pennington Doctrine to Drug and Medical Device Litigation,”  Rx for the Defense 2 (Fall 1995) (“Typically, plaintiffs will argue that the petitioning activity was designed to minimize or eliminate regulations pertaining to safety and efficacy in order to maximize profits. Plaintiffs’ counsel often assert that such conduct is reckless and supports an award of punitive damages.”). See, e.g., Ruth v. A.O. Smith Corp., 2006 WL 530388 at *13 (N.D. Ohio Feb. 27, 2006); In re Welding Fume Prods. Liab. Litig., No. 1:03–CV–17000, MDL no. 1535, 2010 WL 7699456, *93 (June 4, 2010) (“Trial Template for Welding Fume MDL Cases”; summarizing previous Noerr-Pennington ruling in this MDL, and rejecting defendants’ motion, in part, to bar use of defendants’ petitioning governmental and quasi-governmental entities to consider scientific studies and arguments concerning “threshold limit values,” despite constitutional protection of speech).

Of course, the plaintiffs’ bar lobbies as an organized entity, and perhaps its activities should be imputed to all members of the relevant organizations.  Mutuality might chill plaintiffs’ enthusiasm for attacking defendants for their efforts to influence policy. The plaintiffs’ bar is, after all, the litigation industry.  A few weeks ago, the Association of Trial Lawyers of America (ATLA), now operating under the pseudonym American Association of Justice (AAJ), issued a press release (Mar. 13, 2014), praising a proposed FDA regulation that would undermine preemption defenses for manufacturers of generic pharmaceuticals. The press release conveniently omitted that the proposed regulation praised was one that plaintiffs helped craft. Paul Berard, “Trial lawyers helped FDA with rule opening generic drug firms to lawsuits” Wash. Examiner (Mar. 27, 2014).

Last week, the FDA in response to a Congressional inquiry, acknowledged that high-level officials of the agency met with plaintiffs’ lawyer, Ed Blizzard, and regulatory counsel for ATLA-AAJ, Sarah Rooney, and ATLA’s lobbyist, Michael Forscey. See Jeff Overley, “FDA Chief Questioned Over Staff Meeting With Trial Lawyers,” Law360, New York (Mar. 28, 2014).  The meeting was calendared, in February 2013, at the FDA as a follow up to the Supreme Court’s decision in Pliva v. Mensing, which held that FDA regulations preempted state liability claims against makers of generic drugs. The FDA participated through high-level officials, including its chief counsel, and policy advisors.  Congressman Kevin Yoder interrogated FDA Commissioner Margaret Hamburg as to why a private session with plaintiffs’ lawyers and lobbyists, who are in the litigation business.  The news accounts did not provide an explanation why the plaintiffs’ litigation lobbyists could not have submitted their comments publicly.  Mr. Blizzard’s and the ATLA’s lobbying snow storm was, however, registered on the FDA’s public calendar for February 11-15, 2013.

Jim Beck documents that this is not first time that the plaintiffs’ bar has lobbied for their fee-generating activities with the FDA, for rules that fostered their litigation product.  SeeThe More Things Change, The More They Remain The Same” (April 3, 2014). Perhaps when the plaintiffs next make their argument that the FDA is captured by industry, courts should take judicial notice that the plaintiffs’ bar has a great deal of influence as well.

VECTORS, STRESSORS, AND CRANORS

May 10th, 2013

Offense to that man by whom the WOE cometh!

A few weeks ago, the Wake Forest Journal of Law & Policy published six articles from its 2012 Spring Symposium, on “Toxic Tort Litigation After Milward v. Acuity Products.”  Not a single paper is critical of Milward, which is no surprise given that the Symposium was a joint production of The Center for Progressive Reform and the Wake Forest University School of Law.

In previous posts, I addressed concerns about papers from Professors Green and Sanders.  One of the partisan expert witnesses from the Milward case, Carl Cranor, presented at the symposium, and published in the Journal.  See Carl F. Cranor, “Milward v. Acuity Specialty Products: Advances in General Causation Testimony in Toxic Tort Litigation,” PDF 3 Wake Forest J. L. & Policy 105 (2013) [cited herein as Cranor].

The partisan nature of the Wake Forest/CPR symposium is obvious, and perhaps disclosures of conflicts of interest, so real and palpable, are unnecessary.  Cranor acknowledges that he testified for plaintiffs in Milward, but his disclosure does not address how deep his conflict of interest was.  Cranor at 105. In addition to his consulting, report writing, and testifying, Cranor has written briefs for plaintiffs in this and in other litigations.  Unlike the potential for conflict of interest supposedly raised by payments, Cranor’s conflict of interest is actual.  He has been a long-time advocate for radical precautionary principle regulation, legislation, and adjudication.  Cranor’s conflicts are revealed by his writings, his associations, and his activities.

There is nothing wrong with advocacy per se, and Cranor’s ideas, such as they are, deserve to be judged on their merits.  Cranor will no doubt complain that I am addressing one idea at a time, in a corpuscularian fashion, and that his ideas can only be appreciated as a complete gestalt.  If the individual ideas and claims, however, are incorrect, incomplete, inconsistent, and incoherent, we may rightfully reject the entirety of his claims.

Cranor asserts that he is representing how scientists go about their business in reaching judgments of causality.  He has, however, inaccurately described serious attempts to judge causality in order to distort causal assessments into precautionary practice. Cranor presents a reductionist, abridged notion of scientific assessment of causality in order to legitimate the CPR’s radical agenda in both regulation and adjudication.

VAPID AND VACUOUS

Cranor’s principal claim is that “weight of the evidence” (WOE) is a complete, sufficient description of how scientists do, and should, engage in judging causality.  This claim, however, fails because WOE is not a methodology for attributing causation.

In his symposium article, Cranor introduces WOE by telling us that:

“‘Weight of the evidence argument’ is just another name for nondeductive reasoning.”

Cranor at 113 (citing Larry Wright, Practical 46-49 (Fogelin, ed. 1989)

So WOE is equivalent to induction, abduction, analogy, and every other form and manner of non-deductive reasoning.  So, let’s see.  A rat dropped from the top of my building falls to the ground, accelerating at 32 ft/sec/sec.  A mouse dropped accelerates at the same rate.  Rats and mice are both murine mammal species.  This could be a great analogy.  Rats fed large quantities of saccharin develop bladder tumors.  So by analogy, mice develop bladder tumors from saccharin.  It’s an analogy, but it goes very badly wrong.  But Cranor’s explication of WOE fails to explain why this analogy fails to explain or predict the outcome in mice.  See Kenneth Rothman, Sander Greenland, and Timothy Lash, Modern Epidemiology 30 (3d ed. 2008) (“Whatever insight might be derived from analogy is handicapped by the inventive imagination of scientists who can find analogies everywhere”).

Cranor proceeds to introduce a qualitative criterion, “best support,” in non-deductive settings:

“[N]o one conclusion is ‘guaranteed’ by the premises. Consequently, the evaluative task in assessing such inferences is to judge which conclusion the evidence best supports (or, to put it another way, which explanation best accounts for the evidence in the premises) and how well it does so.”

Cranor at 114-15.  Although the requirement of a superlative qualitative assessment seems promising, as we will see, Cranor ensures that the assessment is empty.  Cranor applauds the First Circuit for adopting his identification of WOE with non-deductive reasoning to the best explanation:

“[Nondeductive reasoning or reasoning] to the best explanation can be thought of as involving six general steps, some of which may be implicit. The scientist must

(1) identify an association between an exposure and a disease,

(2) consider a range of plausible explanations for the association,

(3) rank the rival explanations according to their plausibility,

(4) seek additional evidence to separate the more plausible from the less plausible explanations,

(5) consider all of the relevant available evidence, and

(6) integrate the evidence using professional judgment to come to a conclusion about the best explanation.”

Cranor at 115 (citing Milward v. Acuity Specialty Prods. Group, Inc., 639 F.3d 11, 17−18 (1st Cir. 2011)).  Cranor’s and the Circuit’s embrace of this description is seriously flawed.  They move from WOE to “reasoning to the best explanation,” but they do provide any guidance on the key elements:

(1) what constitutes an association?

(2) what renders an explanation plausible, and when is “unknown on the current evidence” an appropriate explanation to offer?

(3) what are the criteria for ranking plausible explanations?

(4) what evidence will discriminate between and among rival explanations?

(5) how do we consider all relevant evidence without using qualitative and quantitative weights?  If we use weights, how?

(6) how do we integrate disparate lines of evidence, and which profession will provide the critical assessment of validity for the integration, and the determinant of what is the “best explanation”?

Cranor harrumphs with the First Circuit:

“[n]o serious argument can be made that the weight of the evidence approach is inherently unreliable.”

Cranor at 115 (quoting Milward, at 18−19).  The double negative is revealing, and so is the utter lack of content to the so-called methodology.  Even if WOE were a method, the Circuit’s statement is meaningless, much like saying that no one could say that physics is inherently unreliable.  Such a statement certainly would not help us judge the bona fides of cold fusion advocates.

WOE IN COURT

Perhaps in an attempt to induce judges and lawyers to lower their intellectual guard, Cranor tells us that WOE is nothing other than what happens in jury trials:

“Jurors, or judges conducting bench trials, use such inferences to find the most plausible account of whether a person is guilty of a crime or has committed a tort. To convict a person of a crime, jurors must find that the total body of relevant evidence supports the conclusion of a nondeductive argument beyond a reasonable doubt; to hold a person accountable for a tort, jurors must find that the total body of relevant evidence supports the conclusion of a nondeductive argument by a preponderance of the evidence, a lower standard of proof.”

Cranor 116.  To be sure, “weight of the evidence” does have a legal usage.  Any superficial appeal of this analogy between scientific assessment of causation and litigation of facts quickly dissipates when we realize the relevant evidence has been filtered for the jury by recognized rules of evidence.  Evidence deemed too weak, too speculative, too prejudicial will have been excluded in a jury trial.  In addition, there are social norms and contexts that operate in a jury trial that may be inimical to the truth-finding process.  My favorite Philadelphia trial anecdote from a former Assistant District Attorney is about a jury that convicted a man for murder.  Although there were racial issues that made the case difficult and the outcome uncertain, after the trial, the forewoman explained that reaching a verdict was easy because the defendant’s mother, who was identified as living near the courthouse, never showed up for the trial.  More “scientific” studies document the role of race, ethnic, and socio-economic prejudice and bias.  Furthermore, in civil and criminal trials, the evidence is generally unweighted except by lawyers’ argument and rhetoric.  A lawyer unhappy with a study’s result may argue that one author had a conflict of interest, even though the study was well designed and conducted, and provided the “weightiest” evidence on the issue to be decided.  Perhaps Cranor advances the trial example because almost “anything goes” in lawyers’ argument and juries’ assessments of scientific issues.

WOE is vacuous as described by Cranor. Statements that all types of relevant research should be considered do not tell us anything.  Stating that “scientific judgment” is necessary says everything, and thus nothing, because it leaves out any description of the methodology to inform and apply the judgment.  Expert witnesses should not be allowed to invoke WOE as a way to avoid methodological scrutiny.

The WOE Cranor would inflict upon the judicial process has been described as a “black box,” which fails to provide any operative method of specifying relevancy or weight for differing kinds of evidence, or method for synthesizing the disparate studies.  We should not be surprised by the lack of endorsement from the scientific community itself for WOE-ful methods.  The phrase is vague and ambiguous; its use, inconsistent.

See, e.g., V. H. Dale, G.R. Biddinger, M.C. Newman, J.T. Oris, G.W. Suter II, T. Thompson, et al., “Enhancing the ecological risk assessment process,” 4 Integrated Envt’l Assess. Management 306 (2008)(“An approach to interpreting lines of evidence and weight of evidence is critically needed for complex assessments, and it would be useful to develop case studies and/or standards of practice for interpreting lines of evidence.”);

Igor Linkov, Drew Loney, Susan M. Cormier, F. Kyle Satterstrom, and Todd Bridges, “Weight-of-evidence evaluation in environmental assessment: review of qualitative and quantitative approaches,” 407 Science of Total Env’t 5199–205 (2009) (reviewing the use of WOE methods and concluding that the approach is not particularly rigorous, and that the approach “does not lend itself to transparency or repeatability except in simple cases”);

Douglas Weed, “Weight of Evidence: A Review of Concept and Methods,” 25 Risk Analysis 1545 (2005) (noting the vague, ambiguous, indefinite nature of the concept of “weight of evidence” review);

R.G. Stahl, Jr., “Issues addressed and unaddressed in EPA’s ecological risk guidelines,” 17 Risk Policy Report 35 (1998); (noting that U.S. Environmental Protection Agency’s guidelines for ecological weight-of-evidence approaches to risk assessment fail to provide guidance);

Glenn Suter II & Susan Cormier, “Why and how to combine evidence in environmental assessments:  Weighing evidence and building cases,” 409 Science of the Total Environment 1406, 1406 (2011)(noting arbitrariness and subjectivity of WOE “methodology”);

Charles Menzie, Miranda Hope Henning, Jerome Curac, et al. “A weight-of-evidence approach for evaluating ecological risks; report of the Massachusetts Weight-of-Evidence Work Group,” 2 Human Ecological Risk Assessment 277 (1996) (“although the term ‘weight of evidence’ is used frequently in ecological risk assessment, there is no consensus on its definition or how it should be applied”);

Sheldon Krimsky, “The Weight of Scientific Evidence in Policy and Law,” 95 Supp.(1) Am. J. Pub. Health S129, S131 (2005) (“However, the term [WOE] is applied quite liberally in the regulatory literature, the methodology behind it is rarely explicated.”)

Describing WOE, Krimsky notes that “WOE seems to be coming out of a ‘black box’ of scientific judgment.”  Krimsky at S131.  Revealingly, Krimsky references a report from the Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services, which describes WOE as an alternative to causal determinations when trying to set policy, when “causality is out of reach.”  Id. (citing citing ATSDR, “The Assessment Process: An Interactive Learning Program,” available at http://www.atsdr.cdc.gov/training/public-health-assessment-overview/html/module2/sv18.html (last visited May 8, 2013).

Krimsky thus acknowledges what Cranor tries so hard to obscure:  WOE is a precautionary approach to be applied when the scientific answer is “I don’t know.”