The so-called Daubert process, by which each side in a lawsuit may challenge and seek preclusion of the other side’s expert witnesses, arose in the setting of common-law judges making rulings in individual cases. Indeed, the Daubert case itself, although one of many cases involving claims of birth defects allegedly caused by Bendectin, was an individual case.
In the silicone gel breast implant (SGBI) litigation, the process evolved over time, with decisions from different judges, each of whom saw the evidence differently. The different judges brought different insights and aptitudes to bear on the evidence, and the expert witnesses themselves may have varied in their approaches and reliance upon different studies. This incrementalist approach, in the context of the SBGI litigation, worked to the benefit of the defendants, in part because their counsel learned about the fraudulent evidence underlying certain studies, and about serious lapses in the standard of research care on the part of some investigators whose studies were prominently relied upon by plaintiffs’ counsel. In the case of one dubious study, one of its authors, Marc Lappe, a prominent expert witness for plaintiffs, withdrew his support from the conclusions advanced in the study.
Early decisions in the SGBI cases (shortly after the Supreme Court’s decision in Daubert, in 1993) denied the defendants’ applications to preclude plaintiffs’ expert witnesses’ opinion testimony. Later decisions converged upon the unavoidable truth that the case for SGBIs causing atypical or typical connective tissue diseases was a house of cards, built mostly with jokers. If the Daubert process had been censored after the first hearing, the result would have been to deem all the breast implant cases trial and jury worthy, to the detriment of the judicial process, to the public’s interest in knowing the truth about silicone biomaterials, to the defendants’ reputational and financial interests, and to the interests of the claimants who had been manipulated by their counsel and support group leaders.
The evolutionary approach taken in the SGBI litigation was indirectly supported by the late Judge Sam Pointer, who presided over the SGBI federal multi-district litigation (MDL). Judge Pointer strongly believed that the decision to exclude expert testimony belonged to individual trial judges, who received cases on remand from the MDL 926, when the cases were ready for trial. Judge Pointer ruled on expert witness challenges in cases set for trial before him, but he was not terribly enthusiastic about the Daubert process, and denied most of the motions in a fairly perfunctory fashion. Because of this procedural approach, Judge Pointer’s laissez-faire attitude towards expert witness testimony did not interfere with the evolutionary process that allowed other courts to see through the dense fog in the plaintiffs’ case.
Since MDL 926, the MDL process has absorbed the ritual of each side’s challenging the other’s expert witnesses, and MDL judges view their role as including the hearing and deciding all pre-trial Daubert challenges. It has been over 17 years since the Supreme Court decided Daubert, and in that time, the MDL model, both state and federal, has become dominant. As a result, the Daubert process has often been truncated and abridged to a single motion, decided at one time, by one judge. The results of this abridgement have not always been happy for ensuring reliable and accurate gatekeeping.
The MDL process appears to have broken the promise of Rule 702 in many cases. By putting the first and only Rule 702 gatekeeping decision in the hands of a single judge, charged with making pre-trial rulings in the entire MDL, the MDL process has sapped the gatekeeping process of its dynamic, evolutionary character. No longer can litigants and judges learn from previous efforts, as well as from commentary by scientists and legal scholars on the prior outcomes. For judges who lack scientific and analytical acumen, this isolation from the scientific community works to the detriment of the entire process.
To be sure, the MDL process for deciding Rule 702 is efficient. In many cases, expensive motions, briefings, and hearings are reduced to one event. The incorporation of expert challenges into an MDL may improve fairness in some instances by allowing well-qualified plaintiffs’ counsel to wrest control of the process from unprepared plaintiffs’ counsel who are determined to control their individual cases. Defendants may embrace the MDL process because it permits a single, unified document production and discovery schedule of corporate executives. Perhaps defendants see the gains from MDL process as sufficiently important to forgo the benefit of a fuller opportunity to litigate the expert witness issues. Whatever can be said in favor of using the MDL forum to resolve expert witness challenges, it is clear that MDL procedures limit the parties’ ability to refine their challenges over time, and to incorporate new evidence and discovery gained after the first challenges are resolved. In the SGBI litigation, for instance, the defendants learned of significant scientific malfeasance and misfeasance that undermined key studies relied upon by plaintiffs, including some studies done by apparently neutral, well-credential scientists. The omnibus MDL Daubert motion prevents either side, or the judiciary, from learning from the first and only motion.
Another example of an evidentiary display that has changed over time comes from the asbestos litigation, where plaintiffs continue to claim that asbestos causes gastrointestinal cancer. The first such cases were pressed by plaintiffs in the early 1980s, with the support of Dr Selikoff and his cadre of testifying physicians and scientists. A few years ago, however, the Institutes of Medicine convened a committee to review non-pulmonary cancers and asbestos, and concluded that the studies, now accumulated over 35 years since Dr Selikoff’s ipse dixit, do not support a conclusion that asbestos causes colorectal cancer. Institute of Medicine of the National Academies, Asbestos: Selected Health Effects (2006).
Unfortunately, many trial judges view the admissibility and sufficiency of causation opinions on asbestos and colorectal cancer as “grandfathered” by virtue of the way business has been conducted in trial courts for over three decades. Still, defendants have gained the opportunity to invoke an important systematic review, which shows that the available evidence does not reliably support the conclusion urged by plaintiffs’ expert witnesses.
The current approach of using the MDL as the vehicle for resolving expert witness challenges raises serious questions about how MDLs are assigned to judges, and whether those judges have the analytical or quantitative skills to resolve Daubert challenges. Assigning an MDL to a judge, who will have to rule on the admissibility of expert witness opinion testimony she or he does not understand, does not inspire confidence in the judicial process. At least in the ad hoc approach employed in the SGBI, the parties could size up their trial judge, and decide that they would forgo their expert challenges based upon their assessment. Furthermore, an anomalous outcome could be corrected over a series of decisions. The MDL process, on the other hand, frequently places the Rule 702 decision in the discretion of a single judge. The selection criteria for that sole decision maker becomes critical. As equity in days of old varied with the size of the Chancellor’s foot, today’s scientific equity under Rule 702 may vary with accuracy of the trial judge’s slide rule.
