The recent tragic explosion at the Upper Big Branch Mine in West Virginia, with the death of 29 miners, is a reminder that the safety and health of American workers is often in the hands of their employers, who control, supervise, and maintain the conditions of their place of employment.  This reminder reveals the fetish that tort law places on failure to warn of remote suppliers of materials and products, when those suppliers cannot control, supervise, or maintain the conditions of employment that create real hazards to workers.  The immunity of employers under worker compensation law neuters tort law’s ability to place responsibility on the party that can really make a difference.

The tragedy also illustrates the need for vigorous governmental policing of the workplace.  Given the realignment of state and federal power in this area, from 1960s and 1970s, it is clear that the federal government has now occupied this field, and must deliver this important police power to miners through the Mine Health & Safety Administration (MSHA) and to other workers through OSHA.

Because of the importance of OSHA, it is disappointing that President Obama appointed an anti-industry ideologue, David Michaels, to head up the agency.   See http://www.osha.gov/as/opa/michaels_bio.html. Confirmed by the Senate without any discussion or debate, Michaels escaped any meaningful scrutiny before taking the position of Assistant Secretary of Labor for Occupational Safety and Health.  What the American public would have learned if the Senate had taken the time to permit debate and discussion is that Michaels is widely known for his book, Doubt is Their Product: How Industry’s War on Science Threatens Your Health (Oxford University Press, 2008).   The book is a critique of “industry” for alleged manipulations of science and for its insistence that some measure of reliability be required as a threshold in civil litigation and in regulatory proceedings.  Michaels lambasts industry for “lack of transparency,” but opaquely hides his own role as a testifying expert witness for plaintiffs’ counsel in product liability litigation. 

Michaels also misrepresents the funding source of his anti-Daubert advocacy organization, The Project on Scientific Knowledge and Public Policy (SKAPP). (http://www.defendingscience.org/)  This advocacy group, which is run out of the Department of Environmental & Occupational Health at the George Washington University School of Public Health & Health Services, where Michaels taught before his appointment as an Assistant Secretary.   A typical statement occurs in Doubt is Their Product:  “I am also grateful for the support SKAPP has received from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Liability litigation.” (p, 267)  What Michaels hides with his one-way mirror held up to industry is that this “fund” is nothing more than plaintiffs’ counsel’s walking around money from a Multi-District Litigation that had little or no rationale to exist after 1999 or 2000, when court-appointed experts and the Institute of Medicine declared that the scientific evidence did not support plaintiffs’ claims that silicone caused autoimmune disease. 

The “common benefit” fund has become a commonplace of mass tort litigation.  In the context of Multi-District Litigation pre-trial consolidations, federal courts have approved a requirement that the defendant “hold back” a certain percentage of settlement proceeds.  The defendant pays this amount into a fund, which is available to those plaintiffs’ counsel who did “common benefit work”  — work for the benefit of all claimants.  Plaintiffs’ counsel who worked for the common benefit of all claimants may petition the MDL court for compensation or reimbursement for their work or expenses.  See, e.g., William Rubenstein, “On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be,” Class Action Attorney Fee Digest 87, 89 (March 2009).  In the silicone gel breast implant litigation (MDL 926), plaintiffs’ counsel on the MDL Steering Committee undertook common benefit work in the form of developing expert witnesses for trial, and funding scientific studies.  By MDL Orders 13, and 13A, the Court set hold-back amounts of 5 or 6%, and later reduced the amount to 4%.  Id. at 94.

Michaels earnestly declares that “SKAPP accepts only unrestricted funding; we do not provide our funders the opportunity to review or approve any of our work products.”  (p. 267)  The reader can imagine the outrage and vitriol if a study, funded secretly by industry, claimed funding from a court-ordered trust fund!  Readers should be asking:  when did the federal courts become involved in funding scientists to write books and articles that criticized how courts treated scientific evidence.  Those lawyers who were involved in the silicone MDL realize that what Michaels is referring to is nothing other than a plaintiffs’ counsel’s slush fund, and that plaintiffs’ counsel would know very well that Michaels and his colleagues would be aligned with their economic and ideological positions.  The breast implant plaintiffs’ lawyers really did not need to an “opportunity to review or approve any of [SKAPP’s] work products.”

Transparency is a two-way optical process.  In appointing Michaels, President Obama missed an important opportunity to have an OSHA leader who was tough on workplace safety, fair in his treatment of all parties involved, and credible in his judgments.

Earlier this month, the New Jersey Superior Court, Appellate Division, handed down an unpublished decision in Buttitta v. Allied Signal, Inc., Nos. A-5263-07T1 and A-5268-07T1 (April 5, 2010).  For now, the decision is available on-line at: http://www.judiciary.state.nj.us/opinions/a5263-07a5268-07.pdf

The Buttitta decision addresses several important issues in asbestos and other mass tort litigation, including 

• the quality and quantum of evidence needed for product identification, 
• the evidence needed to support plaintiff’s claim that a particular product caused harm, 
• the adjudication of cross claims and the availability of offsets to judgments for the liability of settled defendants, 
• the reliability of expert witness opinion testimony, and 
• the nature of evidence to support claims of medical causation of a disease that has a low threshold of sufficient exposure, but no clear mechanism of causation.

 Mr. Mark Buttitta died of mesothelioma.  In 2008, a jury in Bergen County, New Jersey, returned a verdict of over 30 million dollars for his widow and children.  The judgment defendant’s appeal was rejected on all grounds by the Appellate Division.

 Every mesothelioma case, from whatever cause, is a tragedy.  The clinical course of this cancer leaves the patient with few effective therapies, and much pain and discomfort.  Regardless of the legal issues involved, the lawyers and judges involved in adjudicating such cases would be inhuman not to have sympathy for the mesothelioma patient and his family.

 A disinterested observer however, in reading the Buttitta decision, might well believe that the Appellate Division went beyond sympathy to adopt a tone of excessive familiarity with Mr. Buttitta by referring to him by his first name, throughout the unpublished opinion.  In many courtrooms around the country, lawyers would be rebuked for addressing a party or witness by his or her first name, but in the Buttitta case, the Court referred to the late Mr. Buttitta as “Mark,” over 70 times.  Such familiarity seems out of place in what serves institutionally as the Court’s public statement of reasons for affirming or reversing judgments.  Indeed, such familiarity seems inconsistent with the Court’s impartiality, and the need to avoid the appearance of impropriety.  The public may wonder why a Court on such familiar terms with a litigant is involved in deciding issues of such importance to that party, the adverse parties, and to the public generally.

 There is much that can and likely will be said about the Appellate Division’s decisions and its reasoning in the Buttitta case.  The style of the Court’s expression, and its familiarity with the plaintiff’s late husband, should raise a concern over the decorum in New Jersey’s courts, from all sides to the controversy.

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?

“Medical evidence delivered in our courts of law has of late often become a public scandal and a professional dishonour.  The bar delights to sneer at and ridicule it; the judge on the bench solemnly rebukes it; the public stand by in amazement; and honourable minded members of our profession are ashamed of it.”

This quote illustrates how much things have stayed the same, and have changed, since 1863, when the British Medical Journal published these words in its editorial, “Medical Evidence in Courts of Law,” 1 B.M.J. 456, 456 (1863) ( available at http://www.bmj.com/cgi/reprint/1/122/455).  Medical evidence has perhaps on occasion improved with the increased emphasis on evidence-based medicine, but today the bar no longer sneers at meretricious medical evidence; it embraces it.  And the judge on the bench rarely rebukes the clinical practitioner; in many state and federal courts, the clinician is exempted from the evidentiary requirement of providing reliable opinions.

The British Medical Journal, almost 150 years ago, exalted the medical profession as a “scientific calling,” id. at 456, and presumably the Journal would not except medical practice from the rigors of scientific method.  The BMJ‘s editorial is remarkable for its recognition that the goal of expert testimony was to pass itself off to jurors as fact rather than opinion, by overwhelming the finder of fact with the credentials of the witness.  The idea was, in 1863, and still is, to create faith in the witness and his or her assertions rather than an honest appreciation for the limitations and uncertainty of the opinions on the issues in the case.  Note how Federal Rule of Evidence 703 permits expert witnesses to give opinions without stating their bases, and how lawyers are permitted to impeach an expert witness with statements out of a textbook, solely because someone of renown has once held a contrary opinion, and without regard for the evidentiary basis of the opinion.  The law still is mired in authority- and faith-based approaches to opinions.  Perhaps the trier of fact should be hearing more fact and less opinion.  There is a lot of work to be done.

Basing medicine and science upon reliable evidence — what a novel idea!  Maybe the idea will catch on in our court system.

The B.M.J. editorial’s moralizing about expert witnesses’ obligations seems out of place in our positivist legal universe:

“The practical conclusion of all this plainly is, that the medical man who enters the witness-box as an advocate’s witness, to speak, not the whole truth, but only so much of it as shall damage his opponent (suggestio falsi); and who carefully suppresses whatever might tell in favor of his opponent (suppressio veri) — commits a highly immoral act, for which he is accountable at the bar of professional opinion.”

Id. at 458.

BTW, the on-line archive of the British Journal of Medicine is a wonderful, free resource of medical studies and medical history, going back to 1840. < http://www.bmj.com/archive/>

NAS

The following thoughts certainly cannot be blamed on anyone other than me, but many people inspired and encouraged me over the years, not the least of whom was R. Nicholas Gimbel.  McCarter & English has had no shortage of outstanding lawyers, but Nick stands out in my memories of the firm for the courage, passion, and insight that he brought to life, and to the practice of law.  It was a privilege to have been one of Nick’s law partners and friends.  I am indebted to Nick for his generosity in sharing ideas, and for sponsoring my membership in the American Law Institute.  His death last year, at age 58, came too early for his creative, searching mind.  My modest hope is to honor Nick by dedicating this blog to him.

Welcome to a blog of discussions about the law of torts as it has come to be in the 21st century United States.  President and Mrs. Obama are urging the people of the United States to slim down and firm up.  What better way to accomplish this goal than to cut out mass torts from our diet?  Surely the history of mass tort product liability litigation in the United States — over asbestos, Fen-Phen, silica, and myriad other raw materials and products – is a history of gluttony and excess.  So let them eat little torts.