Courting Clio: Historians and Their Testimony in Products Liability Litigation

The problem of the testifying historian expert witness is perhaps most serious in product liability cases, where both plaintiffs and defendants hope to inject historian opinion testimony into the trial to give, in essence, an interim closing argument.  Increasingly, courts have grown wary of this thinly disguised ploy and barred such testimony.  The most recent example of judicial impatience with the ploy of having an expert witness give a narrative of historical events is MDL 1909, In re Gadolinium-Based Contrast Agents Products Liability Litigation, 2010 WL 1796334, *13 (N.D.Ohio May 4, 2010).  In the gadolinium litigation, Judge Polster ruled that  expert witnesses may not provide narrative histories of the product, but rather the parties must present the history of the product and its regulation through direct evidence.  In addition, expert witnesses may not testify about the knowledge, state of mind, motivation, or intent of the parties.

Next month, the International Commission on Occupational Health (ICOH) is sponsoring the 4th International Conference on the History of Occupational and Environmental Health, in San Francisco.  I will be presenting on the problematic nature of historian expert witness opinion testimony, on June 22.  The abstract of the paper to follow is set out below.

Courting Clio:  Historians and Their Testimony in Products Liability Litigation

By Schachtman, N.A.*, and Ulizio, J.A.1

            Parallel developments in mid-20th century medicine and American tort law resulted in the need to resolve factual disputes about events several decades old.  After World War II, epidemiology developed the assessment of case-control and cohort studies to permit reliable detection and quantification of causal associations between diet, medications, social habits, and occupational or environmental exposures and various chronic diseases.  Latency periods, often decades long, complicated but did not prevent the identification of causes of cancer and other diseases — such as tobacco, asbestos, DES, radiation, among others.

            Also in the middle of the last century, American law evolved to extend manufacturers’ and sellers’ duties in tort to prevent harm from defective products, not only to immediate purchasers but to all foreseeable users.  Contributory fault, which had barred recovery, gave way to comparative fault, which only reduced damages.  Most important, statutes of limitations, which previously barred suits filed after two years or so from last exposure, were modified to permit suits within two years of when the claimant’s injury became clinically manifest and discoverable.  With these developments, injured workers became entitled to sue for injuries caused by products, even though the causal exposures occurred decades earlier.

            These advances in epidemiology and tort law have put into issue factual disputes over who knew what about product risks, many years before the injury and the lawsuit.  Parties on both sides have struggled to interpret old medical texts and documentary evidence, on evidentiary records often incomplete and ambiguous.  The meaning of the old scientific evidence was typically beyond the ken of ordinary lay persons, and thus litigants sought expert witnesses, with expertise in historical methods or medical science, or both, to explain and present the historical evidence.

 The advent of historian expert witnesses in tort cases has raised legal questions about how courts should supervise and control the reliability and advocacy of historian witnesses.  The narrative typically created by historians threatens to usurp the lawyers’ role in interpreting and arguing the evidence and inferences to the jury, and the jurors’ role in finding the facts from the evidence in the case. 

The early judicial response frequently relied upon vigorous crossexamination to reveal historians’ use of incomplete or misleading evidence.  More recently, legal writers have criticized judicial passivity in the face of tendentious historical expert opinion testimony.  Various proposals, ranging from heightened judicial scrutiny and gatekeeping for historian witnesses, to appointment of neutral witnesses, to eliminating or reducing the scope of historians’ testimony, have been suggested.  Recent case law shows no clear path to resolving the difficulties inherent in the reliance upon historians’ opinion testimony in tort cases.

The history of the occupational disease silicosis, and historians’ testimony in the litigation of silicosis claims over the last two decades, will be used as a case study of the utility and dangers in having historians serve as expert witnesses. 

*Lawyer in private practice; Lecturer, Columbia Law School.

1Lawyer, and Chief Executive Officer of U.S. Silica Co.

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