TORTINI

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

White Hat Bias in the Lab and in the Courtroom

February 20th, 2017

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Judge Bernstein’s Criticism of Rule 703 of the Federal Rules of Evidence

August 30th, 2016

Federal Rule of Evidence Rule 703 addresses the bases of expert witness opinions, and it is a mess. The drafting of this Rule is particularly sloppy. The Rule tells us, among other things, that:

“[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”

This sentence of the Rule has a simple grammatical and logical structure:

If A, then B;

where A contains the concept of reasonable reliance, and B tells us the consequence that the relied upon material need not be itself admissible for the opinion to be admissible.

But what happens if the expert witness has not reasonably relied upon certain facts or data; i.e., ~A?  The conditional statement as given does not describe the outcome in this situation. We are not told what happens when an expert witness’s reliance in the particular field is unreasonable.  ~A does not necessarily imply ~B. Perhaps the drafters meant to write:

B if and only if A.

But the drafters did not give us the above rule, and they have left judges and lawyers to make sense of their poor grammar and bad logic.

And what happens when the reliance material is independently admissible, say as a business record, government report, and first-person observation?  May an expert witness rely upon admissible facts or data, even when a reasonable expert would not do so? Again, it seems that the drafters were trying to limit expert witness reliance to some rule of reason, but by tying reliance to the admissibility of the reliance material, they managed to conflate two separate notions.

And why is reliance judged by the expert witness’s particular field?  Fields of study and areas of science and technology overlap. In some fields, it is common place for putative experts to rely upon materials that would not be given the time of day in other fields. Should we judge the reasonableness of homeopathic healthcare providers’ reliance by the standards of reasonableness in homeopathy, such as it is, or should we judge it by the standards of medical science? The answer to this rhetorical question seems obvious, but the drafters of Rule 703 introduced a Balkanized concept of science and technology by introducing the notion of the expert witness’s “particular field.” The standard of Rule 702 is “knowledge” and “helpfulness,” both of which concepts are not constrained by “particular fields.”

And then Rule 703 leaves us in the dark about how to handle an expert witness’s reliance upon inadmissible facts or data. According to the Rule, “the proponent of the opinion may disclose [the inadmissible facts or data] to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. And yet, disclosing inadmissible facts or data would always be highly prejudicial because they represent facts and data that the jury is forbidden to consider in reaching its verdict.  Nonetheless, trial judges routinely tell juries that an expert witness’s opinion is no better than the facts and data on which the opinion is based.  If the facts and data are inadmissible, the jury must disregard them in its fact finding; and if an expert witness’s opinion is based upon facts and data that are to be disregarded, then the expert witness’s opinion must be disregarded as well. Or so common sense and respect for the trial’s truth-finding function would suggest.

The drafters of Rule 703 do not shoulder all the blame for the illogic and bad results of the rule. The judicial interpretation of Rule 703 has been sloppy, as well. The Rule’s “plain language” tells us that “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”  So expert witnesses should be arriving at their opinions through reliance upon facts and data, but many expert witnesses rely upon others’ opinions, and most courts seem to be fine with such reliance.  And the reliance is often blind, as when medical clinicians rely upon epidemiologic opinions, which in turn are based upon data from studies that the clinicians themselves are incompetent to interpret and critique.

The problem of reliance, as contained within Rule 703, is deep and pervasive in modern civil and criminal trials. In the trial of health effect claims, expert witnesses rely upon epidemiologic and toxicologic studies that contain multiple layers of hearsay, often with little or no validation of the trustworthiness of many of those factual layers. The inferential methodologies are often obscure, even to the expert witnesses, and trial counsel are frequently untrained and ill prepared to expose the ignorance and mistakes of the expert witnesses.

Back in February 2008, I presented at an ALI-ABA conference on expert witness evidence about the problems of Rule 703.[1] I laid out a critique of Rule 703, which showed that the Rule permitted expert witnesses to rely upon “castles in the air.” A distinguished panel of law professors and judges seemed to agree; at least no one offered a defense of Rule 703.

Shortly after I presented at the ALI-ABA conference, Professor Julie E. Seaman published an insightful law review in which she framed the problems of rule 703 as constitutional issues.[2] Encouraged by Professor Seaman’s work, I wrote up my comments on Rule 703 for an ABA publication,[3] and I have updated those comments in the light of subsequent judicial opinions,[4] as well as the failure of the Third Edition of the Reference Manual of Scientific Evidence to address the problems.[5]

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Judge Mark I. Bernstein is a trial court judge for the Philadelphia County Court of Common Pleas. I never tried a case before Judge Bernstein, who has announced his plans to leave the Philadelphia bench after 29 years of service,[6] but I had heard from some lawyers (on both sides of the bar) that he was a “pro-plaintiff” judge. Some years ago, I sat next to him on a CLE panel on trial evidence, at which he disparaged judicial gatekeeping,[7] which seemed to support his reputation. The reality seems to be more complex. Judge Bernstein has shown that he can be a critical consumer of complex scientific evidence, and an able gatekeeper under Pennsylvania’s crazy quilt-work pattern of expert witness law. For example, in a hotly contested birth defects case involving sertraline, Judge Bernstein held a pre-trial evidentiary hearing and looked carefully at the proffered testimony of Michael D. Freeman, a chiropractor and self-styled “forensic epidemiologist, and Robert Cabrera, a teratologist. Applying a robust interpretation of Pennsylvania’s Frye rule, Judge Bernstein excluded Freeman and Cabrera’s proffered testimony, and entered summary judgment for defendant Pfizer, Inc. Porter v. Smithkline Beecham Corp., 2016 WL 614572 (Phila. Cty. Ct. Com. Pl.). SeeDemonstration of Frye Gatekeeping in Pennsylvania Birth Defects Case” (Oct. 6, 2015).

And Judge Bernstein has shown that he is one of the few judges who takes seriously Rule 705’s requirement that expert witnesses produce their relied upon facts and data at trial, on cross-examination. In Hansen v. Wyeth, Inc., Dr. Harris Busch, a frequent testifier for plaintiffs, glibly opined about the defendant’s negligence.  On cross-examination, he adverted to the volumes of depositions and documents he had reviewed, but when defense counsel pressed, the witness was unable to produce and show exactly what he had reviewed. After the jury returned a verdict for the plaintiff, Judge Bernstein set the verdict aside because of the expert witness’s failure to comply with Rule 705. Hansen v. Wyeth, Inc., 72 Pa. D. & C. 4th 225, 2005 WL 1114512, at *13, *19, (Phila. Ct. Common Pleas 2005) (granting new trial on post-trial motion), 77 Pa. D. & C. 4th 501, 2005 WL 3068256 (Phila. Ct. Common Pleas 2005) (opinion in support of affirmance after notice of appeal).

In a recent law review article, Judge Bernstein has issued a withering critique of Rule 703. See Hon. Mark I. Bernstein, “Jury Evaluation of Expert Testimony Under the Federal Rules,” 7 Drexel L. Rev. 239 (2015). Judge Bernstein is clearly dissatisfied with the current approach to expert witnesses in federal court, and he lays almost exclusive blame on Rule 703 and its permission to hide the crucial facts, data, and inferential processes from the jury. In his law review article, Judge Bernstein characterizes Rules 703 and 705 as empowering “the expert to hide personal credibility judgments, to quietly draw conclusions, to individually decide what is proper evidence, and worst of all, to offer opinions without even telling the jury the facts assumed.” Id. at 264. Judge Bernstein cautions that the subversion of the factual predicates for expert witnesses’ opinions under Rule 703 has significant, untoward consequences for the court system. Not only are lawyers allowed to hire professional advocates as expert witnesses, but the availability of such professional witnesses permits and encourages the filing of unnecessary litigation. Id. at 286. Hear hear.

Rule 703’s practical consequence of eliminating the hypothetical question has enabled the expert witness qua advocate, and has up-regulated the trial as a contest of opinions and opiners rather than as an adversarial procedure that is designed to get at the truth. Id. at 266-67. Without having access to real, admissible facts and data, the jury is forced to rely upon proxies for the truth: qualifications, demeanor, and courtroom poise, all of which fail the jury and the system in the end.

As a veteran trial judge, Judge Bernstein makes a persuasive case that the non-disclosure permitted under Rule 703 is not really curable under Rule 705. Id. at 288.  If the cross-examination inquiry into reliance material results in the disclosure of inadmissible facts, then judges and the lawyers must deal with the charade of a judicial instruction that the identification of the inadmissible facts is somehow “not for the truth.” Judge Bernstein argues, as have many others, that this “not for the truth” business is an untenable fiction, either not understood or ignored by jurors.

Opposing counsel, of course, may ask for an elucidation of the facts and data relied upon, but when they consider the time and difficulty involved in cross-examining highly experienced, professional witnesses, opposing counsel usually choose to traverse the adverse opinion by presenting their own expert witness’s opinion rather than getting into nettlesome details and risking looking foolish in front of the jury, or even worse, allowing the highly trained adverse expert witness to run off at the mouth.

As powerful as Judge Bernstein’s critique of Rule 703 is, his analysis misses some important points. Lawyers and judges have other motives for not wanting to elicit underlying facts and data: they do not want to “get into the weeds,” and they want to avoid technical questions of valid inference and quality of data. Yet sometimes the truth is in the weeds. Their avoidance of addressing the nature of inference, as well as facts and data, often serves to make gatekeeping a sham.

And then there is the problem that arises from the lack of time, interest, and competence among judges and jurors to understand the technical details of the facts and data, and inferences therefrom, which underlie complex factual disputes in contemporary trials. Cross examination is reduced to the attempt to elicit “sound bites” and “cheap shots,” which can be used in closing argument. This approach is common on both sides of the bar, in trials before judges and juries, and even at so-called Daubert hearings. See David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1, 32 (2015) (“Rule 703 is frequently ignored in Daubert analyses”).

The Rule 702 and 703 pretrial hearing is an opportunity to address the highly technical validity questions, but even then, the process is doomed to failure unless trial judges make adequate time and adopt an attitude of real intellectual curiosity to permit a proper exploration of the evidentiary issues. Trial lawyers often discover that a full exploration is technical and tedious, and that it pisses off the trial judge. As much as judges dislike having to serve as gatekeepers of expert witness opinion testimony, they dislike even more having to assess the reasonableness of individual expert witness’s reliance upon facts and data, especially when this inquiry requires a deep exploration of the methods and materials of each relied upon study.

In favor of something like Rule 703, Bernstein’s critique ignores that there are some facts and data that will never be independently admissible. Epidemiologic studies, with their multiple layers of hearsay, come to mind.

Judge Bernstein, as a reformer, is wrong to suggest that the problem is solely in hiding the facts and data from the jury. Rules 702 and 703 march together, and there are problems with both that require serious attention. See David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1 (2015); see alsoOn Amending Rule 702 of the Federal Rules of Evidence” (Oct. 17, 2015).

And we should remember that the problem is not solely with juries and their need to see the underlying facts and data. Judges try cases too, and can butcher scientific inference with any help from a lay jury. Then there is the problem of relied upon opinions, discussed above. And then there is the problem of unreasonable reliance of the sort that juries cannot discern even if they see the underlying, relied upon facts and data.


[1] Schachtman, “Rule 703 – The Problem Child of Article VII”; and “The Effective Presentation of Defense Expert Witnesses and Cross-examination of Plaintiffs’ Expert Witnesses”; at the ALI-ABA Course on Opinion and Expert Witness Testimony in State and Federal Courts (February 14-15, 2008).

[2] See Julie E. Seaman, “Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony,” 96 Georgetown L.J. 827 (2008).

[3]  Nathan A. Schachtman, “Rule of Evidence 703—Problem Child of Article VII,” 17 Proof 3 (Spring 2009).

[4]RULE OF EVIDENCE 703 — Problem Child of Article VII” (Sept. 19, 2011)

[5] SeeGiving Rule 703 the Cold Shoulder” (May 12, 2012); “New Reference Manual on Scientific Evidence Short Shrifts Rule 703,” (Oct. 16, 2011).

[6] Max Mitchell, “Bernstein Announces Plan to Step Down as Judge,” The Legal Intelligencer (July 29, 2016).

[7] See Schachtman, “Court-Appointed Expert Witnesses,” for Mealey’s Judges & Lawyers in Complex Litigation, Class Actions, Mass Torts, MDL and the Monster Case Conference, in West Palm Beach, Florida (November 8-9, 1999). I don’t recall Judge Bernstein’s exact topic, but I remember he criticized the Pennsylvania Supreme Court’s decision in Blum v. Merrill Dow Pharmaceuticals, 534 Pa. 97, 626 A.2d 537 ( 1993), which reversed a judgment for plaintiffs, and adopted what Judge Bernstein derided as a blending of Frye and Daubert, which he called Fraubert. Judge Bernstein had presided over the Blum trial, which resulted in the verdict for plaintiffs.

LoGuidice v. American Talc Co. — Subpoenas to Investigate Funding

July 13th, 2016

Mickey Gunter is a University Distinguished Professor of Geological Sciences, at the University of Idaho. Gunter has long been involved in the mineralogical issues surrounding asbestos contamination and content.  He served as a member of an EPA review committee for World Trade Center dust screening method (2005), a member of an ATSDR expert panel on asbestos biomarkers (2006), and as a panel member and reviewer for the Institute of Medicine and National Research Council, Workshop on NIOSH research on asbestos and elongated mineral particles (2009). Gunter has been publishing on asbestos and asbestiform mineralogy for well over a decade.[1]

Gunter has testified for talc companies that have been dragged into mesothelioma litigation, based upon testing he conducted for Colgate-Palmolive [Colgate], starting in 2011.  In his testimony, Gunter has acknowledged that University employees and laboratories were involved in testing Colgate-Palmolive’s Cashmere Bouquet talcum powder for asbestos content and contamination. In addition to compensating Gunter, Colgate and others have contributed to the University of Idaho, and provided support for Gunter’s student assistant, Mr. Matthew Sanchez.

In a recent New York trial court ruling, Justice Peter H. Moulton refused a motion to quash plaintiff’s subpoena served on the University of Idaho, designed to obtain evidence to show that Colgate-Palmolive Company’s gifts to the University affected research that has become relevant to their claims that Colgate’s talcum powder was contaminated with asbestos. LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

The plaintiffs based their lawsuit on the conjecture that the exposure to Colgate-Palmolive’s talc must contain asbestos because the talc caused mesothelioma.  Somehow idiopathic mesothelioma and occult asbestos exposure magically disappear in the plaintiffs’ worldview.

The plaintiffs’ vacuous and circular arguments supposedly thus made their claim of financial bias relevant.  Plaintiff’s mesothelioma must have been caused by cosmetic talc, but Gunter’s and Sanchez’s test results found no asbestos in the talc the tested. Therefore, the test results were skewed by financial bias. There is no suggestion in Justice Moultin’s opinion to suggest that there was any error, omission, or misconduct involved in the analytical testing conducted by Professor Gunter and his assistant.

Without much real analysis, Justice Moulton found the subpoena-based inquiry into financial influence relevant and proper.  Gunter had testified about asbestos contamination in Cashmere Bouquet and conducted research, published articles, and given speeches[2] on the subject. With minor modifications to the plaintiffs’ subpoena, he denied Colgate’s motion to quash, and allowed the plaintiffs proceed with their investigation. What the disinterested observer might well miss is that Gunter’s views were well formed, articulated, and published in advance of his retention by Colgate in litigation.

Professor Gunter thus represents an example of a litigant’s (Colgate’s) seeking out a highly qualified scientist, with relevant expertise, in part based upon his previously stated views. To be sure, his testing results of the particular talc were not done and available until commissioned by Colgate, but Gunter’s sound views about what would count as an asbestos fiber, based upon mineralogical, scientific criteria (rather than arbitrary legal, regulatory criteria) were well known in advance of retention.


[1] See, e.g., B. D. McNamee, Mickey E. Gunter & C. Viti, “Asbestiform talc from a talc mine near Talcville, New York, U.S.A.:  composition, morphology, and genetic relationships with amphiboles,” Canadian Mineralogist (2016 in press); Bryan R. Bandli & Mickey E. Gunter, “Examination of asbestos standard reference materials, amphibole particles of differing morphology, and phase discrimination from talc ores using scanning electron microscopy and transmitted electron backscatter diffraction,” 20 Microscopy and Microanalysis 1805 (2014); B. D. McNamee & Mickey E. Gunter, “Compositional analysis and morphological relationships of amphiboles, talc, and other minerals found in the talc deposits from the Gouverneur Mining District, New York,” 61 The Microscope 147 ((2013) (part one); 62 The Microscope  3 (2014) (part two); Bryan R. Bandli & Mickey E. Gunter, “Mineral identification using electron backscatter diffraction from unpolished specimens:  Applications for rapid asbestos identification,” 61 The Microscope 37 (2013); M. R. Van Baalen, Brooke T. Mossman, Mickey E. Gunter & C.A. Francis, “Environmental geology of Belvidere Mt., Vermont,” in Westerman, D.S. and Lathrop, A.S. eds., Guidebook to Field Trips in Vermont and adjacent regions of New Hampshire and New York.  New England Intercollegiate Geological Conference, 101st Annual Meeting, B11-23 (2009); Mickey E. Gunter, “Asbestos sans mineralogy,”  5 Elements 141 (2009); D. M. Levitan, J. M. Hammarstrom, Mickey E. Gunter, R. R. Seal II, I. M. Chou & N. M. Piatak, “Mineralogy of mine waste at the Vermont Asbestos Group mine, Belvidere Mountain, Vermont,” 94 American Mineralogist 1063 (2009); Mickey E. Gunter, E. Belluso & A. Mottana, “Amphiboles:  Environmental and health concerns.  In Amphiboles:  Crystal Chemistry, Occurrences, and Health Concerns,” 67 Reviews in Mineralogy & Geochemistry 453 (2007).

[2] See, e.g., Mickey Gunter, Matthew Sanchez & Richard Van Orden, “Fibrous talc (ribbon talc/”kinky” talc),” at Talc Methods Expert Panel Meeting, United States Pharmacopeial Convention, Rockville, Maryland (June 28, 2016).

FOIA Exemptions Gobble Up The Statute

November 27th, 2015

Last week, the Supreme Court refused to hear a case in which petitioners sought review of a First Circuit decision that upheld the “commercial information” exemption (exemption 4) to the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). New Hampshire Right to Life v. Dep’t Health & Human Services, 778 F.3d 43 (1st Cir. 2015). See Lyle Denniston, “Court bypasses FOIA challenge,” SCOTUSblog (Nov. 16, 2015).

An anti-abortion group filed a FOIA request to obtain documents that Planned Parenthood had sent to the federal government’s Department of Health and Human Services, in support of federal funding, for family planning activities in New Hampshire. The requested documents described Planned Parenthood’s internal medical standards and guidelines, as well as its set fees for various services. The federal trial court upheld the agency’s refusal to disclose the Planned Parenthood documents on the basis of § 552(b)(4) (Exemption 4, for “trade secrets and commercial or financial information obtained from a per­son and privileged or confidential”), as well as internal agency documents, on the basis of § 552(b)(5) (Exemption 5). The First Circuit affirmed the non-freedom of information. 778 F.3d 43.

Justice Thomas, joined by Justice Scalia, dissented from the Court’s denial of review. New Hampshire Right to Life, No. 14–1273, SCOTUS (Nov. 16, 2015) [Thomas Dissent] Justice Thomas intimated that the First Circuit’s decision may well have offended the Supreme Court’s interpretation of FOIA as reflecting “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Department of Defense v. FLRA, 510 U. S. 487, 494 (1994).

Justice Thomas noted that the First Circuit based its conclusion not on the ordinary meaning of the term “confidential,” but on speculation whether FOIA disclosure might harm Planned Parenthood’s position in a conjectured market. The First Circuit ordained the Planned Parenthood manual confidential because “[a]potential future competitor could take advantage of the institutional knowledge contained in the Manual” to com­pete against the organization in the future. Justice Thomas intimated that he, and concurring Justice Scalia, disapproved of this speculation upon speculation approach. Thomas Dissent at 2. The dissenters also noted that the Supreme Court has yet to interpret Exemption 4, to FOIA, and that the lower courts have embraced this exemption as a broad exclusion, in derogation of the language and spirit of FOIA.

In discovery efforts to obtain information about litigation science, funded by the National Institute of Environmental Health and Science (NIEHS), FOIA officers appear to invoke Exemption 4 routinely to deny disclosure. One case in point was the effort to obtain information about NIEHS-funded research of Dr. Brad A. Racette, on the prevalence of parkinsonism among welding tradesmen in Wisconsin Great Lakes shipyards. Racette is an academic researcher, on the faculty of Washington University St. Louis; he is not engaged in any commercial enterprise, in any imaginable use of the word “commercial.” His Wisconsin research was sponsored by the Boilermakers’ union, which had worked with the litigation industry (trial bar) to develop a litigation case against the manufacturers of welding rods. FOIA requests for scientific data, protocols, and analyses were met, by NIEHS, with over-zealous redactions with the invocation of FOIA exemptions, including assertions that data and analyses were “confidential commercial information.”

The redaction of one of Racette’s ESNAP reports, on Grant Number SR01ES13743-4, is illustrative. The multi-year grant, entitled “Epidemilogy [sic] of Parkinsonism in Welders,” was awarded to principal investigator Brad Racette in 2007. On October 29, 2009, Racette submitted a report that included data and data analysis. The NIEHS, on its own, or acting at the request of the principal investigator, redacted data, analyses, and conclusions, on grounds of “confidential commercial information.” Invoking an exemption for “commercial information” for federally funding of an epidemiologic study, conducted by university-based scientists seems an extreme distortion of the FOIA statute.

Cynics may say that Justices Thomas and Scalia dissented in the Planned Parenthood case because they were eager, to advance their theological ideology to exploit the opportunity to order disclosure that could hurt the good work that Planned Parenthood does. The dissenting justices deserve, however, to be taken at their word, and applauded for chastising their colleagues who were willing to abide the frustation of the word and spirit of the FOIA statute. Sadly, federal agencies seem to be determined to make information unfree. In the most recent evaluations, the Department of Health and Human Services received a failing grade, among the lowest grades for FOIA performance and responsiveness; only the State Department failed with a lower score. National Freedom of Information Coalition, “FOIA report card shows federal agencies missing the mark,” (Mar. 16, 2015); Center for Effective Government, “Making the Grade – Access to Information Scorecard 2015.”