Hysterical Histortions

Ramses Delafontaine is a young, aspiring historian. In his graduate thesis, Historicizing the Forensification of History: A Study of Historians as Expert Witnesses in Tobacco Litigation in the United States of America (Univ. Ghent 2013), discusses my commentary on Marxist historians, David Rosner and Gerald Markowitz, and suggests that I claim that lawyers without historical training or experience can do the job of historians.  Id. at 98-100.

Given their training and skills in documenting and recounting narratives, lawyers do, indeed, often do the job of historians, and they often do it very well. Of course, lawyers are often guided, inspired, and assisted by professional historians. Sometimes that guidance is necessary. Lawyers’ narratives, unlike historians’, are also subject to judicial control in the form of evidentiary rules about speculation, relevance, reliability, authentication, and trustworthiness.

Regurgitating Historical Evidence

American courts have thus appropriately limited the use of expert witnesses to present historical narratives in judicial proceedings.  See In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 192 (S.D.N.Y. 2009) (‘‘[A]n expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.’’) (internal citations omitted).[1] In Fosamax, Judge Keenan excluded Dr. Susan Parisian’s proffered narrative account of the development and approval of a bisphosphonate medication for osteoporosis in a case involving a claim of osteonecrosis of the jaw (“phossy jaw”).  Judge Keenan detailed the problems that arise from using expert witnesses to present partisan historical narratives:

“In detailing the factual basis for her opinions, Dr. Parisian’s report presents a narrative of select regulatory events through the summary or selective quotation from internal Merck documents, regulatory filings, and the deposition testimony of Merck employees.

The Court agrees with Merck that, to the extent such evidence is admissible, it should be presented to the jury directly. Dr. Parisian’s commentary on any documents and exhibits in evidence will be limited to explaining the regulatory context in which they were  created, defining any complex or specialized terminology, or drawing inferences that would not be apparent without the benefit of experience or specialized knowledge. She will not be permitted to merely read, selectively quote from, or ‘regurgitate’ the evidence.”


Ramses Delafontaine is wrong, however, to opine that my rants against Rosner and Markowitz suggest that I have ruled out any role for historians in litigation.   Lisa K. Walker is an historian, who trained at the University of California, Berkeley.  In the welding fume litigation, plaintiffs’ counsel weaved a complex narrative of conspiracy allegations, based in large measure upon the absence of evidence. At the request of Metropolitan Life Insurance Company, Professor Walker researched the dates of publication for various editions of a booklet, Health Protection in Welding, which formed the basis for the plaintiffs’ speculations. Walker found and analyzed eight separate editions, and dated each by internal and external references.  Based upon her research, Walker submitted a declaration, which ultimately was immensely helpful to the resolution of the issues. See In re Welding Rod Prods. Liab. Litig., Case No. 1:03-CV-17000 (MDL Docket No. 1535) (N.D.Ohio Nov. 24, 2004; In re Welding Fume Prods. Liab. Litig., 2007 WL 1087605 (N.D. Ohio April 9, 2007)  (O’Malley, J.) (granting summary judgment in favor of Metropolitan Life Insurance Company).

Although Metropolitan Life should not have had to disprove the allegations, Walker’s research showed the plaintiffs’ historical speculation to be clearly wrong. Sometimes historians can and do contribute valuably to the resolution of legal issues, but the issues are usually more modest than the ones that social and labor historians want to see resolved in favor of their pet theories.

Delafontaine also has a website on the role of historians as expert witnesses in United States tobacco cases.  One of his theses is that “historians who have been involved as expert witnesses for the tobacco industry have been in it for the money and have sold their professional integrity as a historian and an academic.” Delafontaine’s approach is a bit one-sided in that he sees only defendants’ expert witnesses as being “in it for the money,” despite the substantial billings of plaintiffs’ expert witnesses, and their ideological biases. Somehow Delafontaine has missed how even the feel-good advocacy of anti-tobacco activists occasionally outruns its evidentiary headlights.  See, e.g., Michael Siegel, “Is the tobacco control movement misrepresenting the acute cardiovascular health effects of secondhand smoke exposure? An analysis of the scientific evidence and commentary on the implications for tobacco control and public health practice,” 4 Epidem. Persp. & Innov. 12 (2007).

[1] See also In re Prempro Prods. Liab. Litig., 554 F.Supp. 2d 871, 880, 886 (E.D.Ark.2008) (overturning a punitive damages award based on Dr. Parisian’s testimony in part because she ‘‘did not explain the documents, provide summaries, or tie them in to her proposed regulatory testimony’’ and ‘‘did not provide analysis, opinion, or expertise’’); Highland Capital Management, L.P. v. Schneider, 379 F.Supp. 2d 461, 469 (S.D.N.Y.2005)(‘‘[A]n expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.’’); In re Rezulin Products Liab. Litig., 309 F.Supp. 2d 531, 546 (S.D.N.Y.2004) (rejecting portion of expert report presenting history of Rezulin for no purpose but to ‘‘provid[e] an historical commentary of what happened,’’ along with subjective assessments of intent, motives, and states of mind); In re Diet Drugs Prods. Liab. Litig., MDL No. 1203, 2000 WL 876900, at *9 (E.D.Pa. June 20, 2000) (same); Taylor v. Evans, 1997 WL 154010, at *2 (S.D.N.Y. Apr.1, 1997) (rejecting portions of expert report on the ground that the testimony consisted of ‘‘a narrative of the case which a lay juror is equally capable of constructing’’).

[2] Dr. Parisian appears to be a serial narrative abuser, who has been repeatedly but not consistently excluded. See Scheinberg v. Merck & Co. 924 F.Supp. 2d 477, 497 (S.D.N.Y. 2013); Pritchett v. I-Flow Corp., 2012 WL 1059948, at *7 (D. Colo. Mar. 28, 2012); Miller v. Stryker Instruments, 2012 WL 1718825, at *10-12 (D. Ariz. Mar. 29, 2012) (excluding narrative testimony); Kaufman v. Pfizer Pharms., Inc., 2011 WL 7659333, at *6-10 (S.D. Fla. Aug. 4, 2011), reh’g denied, 2011 WL 10501233 (S.D. Fla. Aug. 10, 2011)(narrative testimony); Hines v. Wyeth, 2011 WL 2680842, at *7 (S.D.W. Va. July 8, 2011), reh’g granted in part, 2011 WL 2730908, at *2 (S.D.W. Va. July 13, 2011); In re Heparin Prods. Liab. Litig., 2011 WL 1059660, at *8 (N.D. Ohio March 21, 2011); Lopez v. I-Flow Inc., 2011 WL 1897548, at *9-10 (D. Ariz. Jan. 26, 2011) (narrative testimony); In re Trasylol Prods. Liab. Litig., 709 F.Supp.2d 1323, 1351 (S.D. Fla. 2010)(tendentious narrative testimony) (“Plainly stated, Dr. Parisian is an advocate, presented with the trappings of an expert but with no expectation or intention of abiding by the opinion constraints of Rule 702.”), reh’g denied, 2010 WL 2541892 (S.D. Fla. June 22, 2010); In re Gadolinium-Based Contrast Agents Prods. Liab. Litig., 2010 WL 1796334, at *13 (N.D. Ohio May 4, 2010); Bessemer v. Novartis Pharms. Corp., 2010 WL 2300222 (N.J. Super. Law Div. April 30, 2010); In re Prempro Prods. Liab. Litig., 554 F. Supp. 2d 871, 879-87 (E.D. Ark. 2008)(reversing judgment on grounds of erroneous admission of narrative testimony), aff’d  in relevant part, 586 F.3d 547, 571 (8th Cir. 2009). Occasionally, Dr. Parisian slips through the gate.  See, e.g., Block v. Woo Young Medical Co., 937 F.Supp.2d 1028, 1044-47 (2013)

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