While the trial court was preparing its findings of fact and conclusions of law, Ortho moved to reopen to evidence to permit additional testimony based upon three new articles. Ortho’s motion came three months after the close of evidence, and Judge Shoob’s announcement of his verdict. The court denied this motion without mentioning what the new articles purported to show. Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262, 298 (N.D. Ga. 1985), aff’d and rev’d in part on other grounds, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S.950 (1986).
What is remarkable in Wells, from the vantage point of current practice, is the absence of motions directed at the proffered expert witness opinion testimony. On the basis of Judge Shoob’s opinion, there appears to have been no Frye motion, no motions to exclude expert witnesses based upon the Federal Rules of Evidence, and no motions to strike testimony after the fact for lack of a proper basis.
Having lost the verdict in a bench trial, Ortho had little chance for success in the Court of Appeals on a claim that the evidence supporting the plaintiffs’ verdict was legally insufficient. The traditional standard, applied by the Court of Appeals, was to sustain the trier of fact’s decision as not “clearly erroneous” when there were two “permissible” views of the evidence. 788 F.2d 741, 743 (11th Cir. 1986). Without some legal doctrine to filter out flawed, invalid, and inadequate expert witness opinion from permissible views of an evidentiary display, the Court of Appeals was left with only a rubber stamp, which it proceeded to use with alacrity.
Ortho attempted to turn its appellate argument about the sufficiency of the evidence into a legal principle about rejecting factual findings not based upon “scientifically reliable foundations.” Id. at 744. The appellate court framed the issue on appeal simply as a “battle of the experts,” which Ortho had lost. Both sides had qualified expert witnesses, and thus, according to the appellate court, “the district court was forced to make credibility determinations to ‘decide the victor’.” Id. (citing Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1535 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984)). The Court of Appeals thus acquiesced in Judge Shoob’s superficial analysis, which attempted to resolve a scientific issue by trial atmospherics, demeanor, and subjective impressions of witness confidence rather than the validity of the studies relied upon and inferences drawn therefrom. The possibility that Judge Shoob might have evaluated the evidentiary basis underlying the expert witnesses’ opinions was not even acknowledged.
The Court of Appeals invoked the language from Ferebee on statistical significance, despite its irrelevance to the case before it:
“We recognize, as did the Ferebee court, that ‘a cause-effect relationship need not be clearly established by animal or epidemiological studies before a doctor can testify that, in his opinion, such a relationship exists. As long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examination, products liability law does not preclude recovery until a “statistically significant” number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical. Id. at 1535-36.”
Wells, 788 F.2d at 745 (quoting Ferebee). Ferebee involved an injury that all parties agreed could be attributed to paraquat exposure without the need for epidemiologic studies; statistical analysis was not particularly germane. In Wells, on the other hand, both sides relied upon studies that required statistical analyses for any sensible interpretation, and some of the studies actually reported statistically significant results. The appellate court’s rhetoric was empty and irrelevant.
(to be continued)