Preliminary Reflections upon Preliminary Reflections

Last year, the Cardozo Law Review’s on-line journal de novo published a fascinating, semi-autobiographical article by Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation.”  http://www.cardozolawreview.com/content/denovo/WEINSTEIN_2009_1.pdf

This article is Judge Weinstein’s summary of his views of the appropriate role of the federal courts in resolving mass tort litigation efficiently and economically.  Id. at p. 2.  Actually, the article is the Judge’s summary of his role in resolving mass tort litigation, with brief discussions of how he handled Agent Orange, asbestos, DES, tobacco, breast implant, gun, Zyprexa, and other cases.  Id. at 4.

As one of the leading writers about Judge Weinstein’s views are immensely interesting; as one of the leading decision makers in mass tort litigation, practitioners and law professors hang on his every word.  This article is no exception. Here I want to measure how the words connect with the reality of Judge Weinstein’s handling of past litigation, in particular the silicone gel breast implant litigation:  “[a] legal and economic mini-disaster caused by lack of robust application of science in the courts.”  Id.

In the fall of 1996, Judge Weinstein, along with other federal and state judges, held a “Daubert” hearing on the admissibility of expert witness opinion testimony in breast implant cases.  A few months later, Judge Weinstein granted, sua sponte, partial summary judgment against all plaintiffs’ claims of systemic immune-system injury.  In re Breast Implant Cases, 942 F.Supp. 958 (E.&S.D.N.Y.).  Defense counsel were not ungrateful, but curious why Judge Weinstein did not grant the motion that was actually before the court:  to bar the plaintiffs’ expert witnesses from testifying on causation of systemic disease.  After the 1996 hearing, Judge Weinstein’s Order to Show Cause why court-appointed expert witnesses should not be appointed was co-opted by the MDL 926 Court, with the resulting “National Science Panel” of four court-appointed expert witnesses.  Those witnesses took years to complete their mandate and deliver and defend their opinions.  In April 1997, the defendants in the New York cases returned to Judge Weinstein’s courtroom to urge him to decide the pending Rule 702 and 703 motions, but he refused.  In his view, he had done enough by preventing plaintiffs from pursuing their claims of auto-immune connective tissue disease in New York.

What was missing from Judge Weinstein’s analysis, however, was a clear statement of the unreliability of the plaintiffs’ expert witnesses’ opinions and the studies upon which they relied.  Such a statement from Judge Weinstein would have prevented many other trials that continued to take place, and probably would have made the time-consuming, expensive work of the National Science Panel unnecessary.

Unfortunately, Judge Weinstein’s preliminary reflections on the breast implant litigation are clearer in hindsight.  Now, we are told that “[t]he breast implant litigation was largely based on a litigation fraud. …  Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”  Id. at 14 (emphasis added).  This clear, simple declaration was much needed back in 1996, when it could have shaved years off the breast implant litigation, and when it could have contributed to the efficient and economic resolution of the breast implant litigation.

In his “Reflections,” Judge Weinstein notes that “[u]nfortunately, the MDL litigation got out of hand. Scientific proof was not controlled. Huge unwarranted recoveries with resulting bankruptcies prevailed. Judicial control should have prevented this fiasco.”  Id. at 15.  Of course, Dow Corning had already declared bankruptcy by the time of Judge Weinstein’s Daubert hearings in 1996, but unwarranted recoveries continued for several years in state and federal courts around the country.  The MDL litigation did get out of hand, but an important opportunity was lost to control it when Judge Weinstein withheld judgment on the reliability of the plaintiffs’ scientific case in the silicone litigation.

Judge Weinstein stated that he did not want to interfere with the work of the MDL court-appointed expert witnesses, but if he had decided the Daubert motion back in 1996, he may well have obviated the extended, expensive MDL proceedings, as well as many state court trials.

In the Daubert case, Chief Justice Rehnquist expressed his view that many judges were not up to the task of serving as gatekeepers of the reliability of expert testimony.  Certainly, Rehnquist did not have Judge Weinstein in mind.  Clearly, many judges are not up this task, but how many jurors are?  In the end, judges are responsible for ensuring the integrity of judicial judgments and preventing them from becoming the laughing stock of the scientific community.

BTW, inquiring minds may want to know where are those medical charlatans today, and what mischief are they now promoting in courtrooms around the country?

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