Continued from Part 1:

Court-Appointed Historians

One lawyer, Jonathan Martin, trained in historical scholarship in Princeton University, has argued that historian expert witness opinion testimony is both unavoidable and refractory to the protections of judicial gatekeeping.  Martin, Historians at the Gate:  Accommodating Expert Historical Testimony in Federal Courts.” 78 N.Y.U.L. Rev. 1518 (2003).  Mr. Martin acknowledges that historians are beholding to an objective methodology, but when they are in the employ of lawyers, historians abridge or abrogate their commitment to objectivity:

Just as scientific testimony must adhere to the scientific method so too must historical testimony adhere to the historical method.  Unfortunately, historians often neglect the conventional method of their craft when offering expert testimony.  Outside the courtroom, historians generally expect one another to formulate complex, nuanced, and balanced arguments that take into account all available evidence, including any countervailing evidence.  At trial, however, the pressures of the adversary system routinely push historians toward interpretations of the past that are compressed and categorical . . .  .  As a result, historians now frequently offer unreliable evidence.

Id. at 1521.  Mr. Martin proposes to remedy the frequent, unreliable testimony from historians by the routine appointment of court-appointed expert witnesses.

In passing, Mr. Martin notes that others have urged judicial gatekeeping, under Daubert or Frye, to address unreliable historian testimony, but he rejects gatekeeping of adversarial expert witnesses as insufficient.  Id. at 1522 n.23.  Given the dearth of reported cases of such gatekeeping, this rejection seems premature.  Perhaps more important, Mr. Martin, in his rush to advocate court-appointed historians, fails to address how and why historians’ opinions are different from the opinions of experts in other fields, which are successfully subjected to cross-examination and to reliability analysis.  Historians are not alone, certainly, in succumbing to the temptation to stray from objective methodology.  Mr. Martin is correct, however, in his implicit acknowledgment that historian opinion testimony warrants increased judicial scrutiny.

One way historians differ from other fields of objective study is that historical scholarship is perfused with argument.  In biomedical and physical sciences, the presentation of research is carefully and routinely segregated into hypothesis, materials and methods, findings, and discussion.  Research findings are neatly presented without inferences to conclusions.  If conclusions can be reliably reached from the research or experiment, the investigators present their conclusions, with appropriate qualifications and caveats, in the discussion sections of their writings.  Readers understand that the discussion section is often the least important part of a published article.

Lawyering is similarly segregated into proofs and argument.  The trial lawyers’ evidence, whether real, documentary, or testimonial, is confined to a portion of the trial open for proof of facts in issue.  The trial court has the responsibility to prevent argument, argumentative questioning, and argumentative testimony in the proof-phase of the trial.  Only in closing argument, may the trial lawyers urge inferences and conclusions that assist the trier of fact to resolve the factual disputes in the case.  To be sure, trial lawyers try and sometimes succeed in advancing their argument in the proof phase of trial, either by clever juxtaposition in presenting facts, by adducing opinions in carefully defined exceptions (such as character evidence), or by successfully evading the trial court’s supervision.

Historians, in their scholarship, may acknowledge an objective method in their fact-finding, but they are under no professional constraint to separate their fact-finding and argument.  Both popular and academic historical scholarship blend fact and opinion in a manner antithetical to the sciences.  The strength and persuasiveness of historical scholarship often turns on how well the historian creates a complex narrative of fact, inference, argument, and opinion.  And the greatest art is that which conceals itself.

The pervasive role of argument is a relatively small problem compared to the dominance and legitimacy of subjective perspective in historical narrative.  Historians write from a point of view.  Openly and honestly, they narrate historical facts and events from a Marxist, labor, feminist, free-market, religious, or other point of view.  Sometimes, their point of view is covert, but it still colors the narrative.  Importantly, the point of view is often not scientific in that the scholars would likely refuse to count any empirical evidence as refuting the “truth” of their narrative.

The problems and excesses of historian opinion testimony are thus not likely to be remedied by having a court-appointed historian weigh in on the issues.  Such a court-appointed historian would present a challenge to the parties, who would need to cross examine vigorously, and to the court, which would be obligated to review and pass on the reliability of its own expert witness.  The prestige and imprimatur of court appointment would just as likely thwart as promote the truth-finding function of trial.  The argumentativeness of historical narrative would escape meaningful detection and confrontation.  Court appointments of historian witnesses might well have the effect of ending the dispute, but not in a way that advances the just resolution of the parties’ claims.

Appointment of “neutral” expert witnesses may appear to be an attractive judicial strategy to a trial court faced with party expert witnesses that are “too extreme.”  Trial judges, especially in federal Multidistrict Litigation (MDL), hear capable advocates present highly credentialed expert witnesses.  Often the opinions of the parties’ expert witnesses are diametrically opposed in ways that do not let the trial court gauge their competing claims to truth.  If trial courts find assessment of these expert witnesses’ opinions to be difficult, juries are not likely to fare better.  In perplexity, judges may try to align themselves in the middle, and comfort themselves with the belief that the trust must lie somewhere between the parties’ polar views of the world.

In the silicone gel breast implant litigation, MDL 926, Judge Sam Pointer found himself in the “middle.”  He had refused Daubert challenges to plaintiffs’ expert witnesses, and stated that the parties’ expert witnesses were too extreme.  After Judge Jack Weinstein sua sponte raised the issue of court-appointed experts in breast implant cases, plaintiffs’ counsel petitioned Judge Pointer to appoint expert witnesses in all the federal cases.  Over defendants’ objections, Judge Pointer appointed a toxicologist, a rheumatologist, an immunologist, and an epidemiologist to address the plaintiffs’ claims that silicone causes systemic autoimmune and connective tissue diseases.  After a lengthy, expensive, complex proceeding, the MDL court-appointed expert witnesses filed reports and gave testimony that rejected plaintiffs’ claims.  Much to Judge Pointer’s surprise, but not the scientific community’s, the Court’s expert witnesses opined that plaintiffs’ claims were not supported and shown by sound scientific evidence.  Subsequently, a committee of the Institute of Medicine, of the National Academy of Sciences, reached the same exculpatory conclusion.

In MDL 926, the resort to court-appointed witnesses was necessitated by that trial court’s refusal or failure to engage in meaningful gatekeeping.  Remarkably, before the MDL Court even embarked upon the expensive detour of four Rule 706 witnesses, another federal court, employing expert witness advisors, reached the same conclusion in Daubert proceedings.  Hall v. Baxter, 947 F.Supp. 1387 (D. Or. 1996).  Judge Weinstein, sitting on all federal cases in the Eastern and Southern District of New York, had already granted partial summary judgment to defendants on plaintiffs’ systemic injury claims.  In re Breast Implant Cases, 942 F. Supp. 958 (E. & S.D.N.Y. 1996).  Rule 706 was used by plaintiffs’ counsel to prolong and protract the federal proceedings, in the hope that they would be saved by research that they were sponsoring through their expert witnesses.

In looking at disputes of historical scholarship, we can easily imagine that judges will see the parties’ expert witnesses as too extreme.  The time-consuming, expensive resort to court-appointed witnesses, however, will not likely advance the resolution of issues of historical scholarship.  Unlike the selection process in MDL 926, where Judge Pointer could relatively quickly find his way to well-qualified, credible, and disinterested witnesses, the selection of an historian would stumble over the disinterestedness criterion.  Historians, by the nature of their craft, are permitted, and are encouraged, to advance a point of view that is out of place in the judicial process.

Historian Witnesses on State-of-the-Art in Tort Cases

In products liability litigation over designs or warnings, a supplier or manufacturer is typically held to the knowledge and expertise of an expert in the field.  Unfortunately, the law offers little help in answering the obvious question of which expert, of all the experts in the world, sets the appropriate standard.  In litigation over the quality of medical care, the law in many states resolves this issue by providing a defense under the “Two Schools of Thought Doctrine.”  See, e.g., “Two Schools of Thought and Informed Consent Doctrine in Pennsylvania.”  98 Dickenson L. Rev. 713 (1994).  A physician does not deviate from the standard of care simply because many or most physicians reject the approach he or she took to the patient’s problem.  As long as a substantial minority of physicians would have concurred in the judgment of the defendant physician, the claim of malpractice fails.  The Two School Doctrine has obvious implications for the standard of design or warning in products cases.

What is clear in products liability cases is that the standard of expertise must be assessed at a given time, when the product or material enters the stream of commerce.  In silicosis cases, which may involve long latency periods between exposure and manifestation of claimed disease, the parties may face historical issues of what experts knew at the legally relevant time of the sale.  Intellectual historians may indeed provide helpful insights into what was actually believed by experts in the past, but such historical data about past “beliefs” can answer the state-of-the-art inquiry only in part.  Knowledge requires at least true, justified belief.  Robert Nozick, Philosophical Explanations 167-288 (Cambridge 1981).  Hunches, suspicions, and hypotheses, even when published in respected books or journals, do not rise to the level of scientific knowledge that can be charged to the manufacturer or the supplier defendants.  Historians, unless adequately trained and expert in scientific method and research, will be inadequate to the task of explaining whether a given belief was justified and true.  Historians, motivated by politics or ideology, may try to advance their causes by trumpeting some past scientific findings, but in the last analysis, scientific theories cannot be chosen the way one chooses to be a Democrat or a Republican.  Proof of “state of the art,” or who knew what when, will require substantial expertise in science and medicine.  Historians may have to emote on the sidelines of these debates.

The role of historians as expert witnesses is precarious.  They purport to marshal factual evidence from reliable sources, but that is exactly what lawyers are supposed to do.  Historians argue reasonable inferences from facts to opinions about causation, motivation, and intent.  Again, that is what lawyers are supposed to do in the argument phase of a trial.  Generally speaking, historians are superfluous in trials.

Last year, John Ulizio and I submitted an abstract, “Courting Clio,” to the International Commission on Occupational Health (ICOH), for its Fourth International Conference on the History of Occupational and Environmental Health June 19 – 22, 2010.  My presentation received mixed reviews, with the negative reaction coming from a peanut gallery of a testifying historian expert witness.  See “A Walk on the Wild Side” (July 16, 2010).  The abstract, “Courting Clio:  Historians and Their Testimony in Products Liability Action,” will appear next year in Brian Dolan and Paul Blanc, eds., At Work in the World: Proceedings of the Fourth International Conference on the History of Occupational and Environmental Health, Perspectives in Medical Humanities, University of California Medical Humanities Consortium, University of California Press (2012)(in press).

For an illustrative example of the gratuitousness of much of expert historian testimony, consider the following exchange in a deposition in a case involving claims of failure to warn, and of silicosis:

Q. Would you agree that in the 1930s, you would have to be quite a knucklehead – that’s a technical term – not to know that silica under some circumstances would cause silicosis?

A. I would agree with that characterization and the use of that technical term.

Gerald Markowitz Deposition, Mendez, at p. 115 (2005)

I believe you would have to be knucklehead to think that a jury needed Professor Markowitz to address historical knowledge about the hazards of excessive silica exposure, but plaintiffs’ lawyers persist in that practice in their silica cases.

What follows is the first part of an expanded version of the abstract presented at the ICOH.

COURTING CLIO:  HISTORIANS UNDER OATH

Introduction

Every trial involves a dispute about past facts and events.  The trier of fact must resolve the factual disputes based upon the evidence marshaled at trial.  In the common law system, the parties are primarily responsible for adducing evidence that will support their claims about historical facts.  A mature law of evidence governs admissibility of evidence, and what is reserved to counsel’s argument and the trier of fact’s reasonable inference.  The body of rules and principles that make up the law of evidence has evolved toward securing fairness, eliminating undue expense and delay, and ascertaining the truth.  Fed. R. Evid. 102.  Many would question the perfection of the current law of evidence, but few would agree to turn control over evidence and inference to historians appearing in court as expert witnesses.

Trial lawyers, using admissible evidence at trial, and fair comment in summation, attempt to persuade the triers of fact of the correctness of their version of historical facts relevant to the dispute.  In courthouses throughout the common-law world, trying cases ranging from car wrecks to complex anti-trust conspiracies, lawyers research, document, and adduce evidence of historical fact.  Judges regulate the proof of relevant historical facts by a system of rules that has been refined over centuries in the crucible of judicial experience.

At first blush, historians would appear to have little or no role in the litigation process.  Historians, in marshaling evidence and inference, are largely redundant to the lawyering process.  Indeed, reported decisions involving historians are relatively uncommon.  For the most part, historians are discussed as witnesses in only a few cases, involving such issues as land boundary disputes, navigability of rivers and riparian rights, Native American tribal status, or Nazi deportations.  See, e.g., Cayuga Indian Nation v. Pataki, 165 F.Supp. 2d 266, 300 (N.D.N.Y. 2001) (testimony on state’s purchase of tribal land); Denson v. Stack, 997 F.2d 1356, 1363-68 (11^th Cir. 1993) (Clark, J., dissenting) (navigability of river in mid-19^th century); Naujalis v. INS, 240 F.3d 642, 645 n.7 (7^th Cir. 2001) (Nazi deportation); United States v. Dailide, 227 F.3d 385, 387 (6^th Cir. 2000) (historian’s testimony in deportation proceeding).  The common themes to those cases are the arcane proofs, serious authenticity issues, and foreign language of the documentary evidence.

Historian As Advocate

There is a disturbing tendency for historians, as well as other academics, to view service as an expert witness as a way to effect social change.  Some historians have honestly acknowledged that they became lawyers manqué in their role as experts.  Professor Alfred Kelly, noted historian of the Reconstruction era, who served on the NAACP’s legal team in Brown v. Board of Education, 347 U.S. 483 (1954), strained to make out the historical case that the ratifiers of the Fourteenth Amendment had intended or anticipated to desegregate public schools.  In Richard Kluger’s history of Brown, Professor Kelly is quoted as saying that he “was caught between [his] ideals as an historian and what these people in New York [NAACP] wanted and needed.”  R. Kluger, Simple Justice:  The History of Brown v. Board of Education and Black America’s Struggle for Equality, 802 (N.Y. 1975).

Historian David Rothman recently acknowledged advocacy as the basic motivation for historians to serve as expert witnesses.  In his article, “Serving Clio and Client:  The Historian as Expert Witness,” 77 Bull. Hist. Med. 25 (2003), Rothman notes and embraces the tendentious nature of historical scholarship.  “Historians,” he tell us, “are no more or less ‘objective’ in the courtroom than they are in the lecture hall or in print.”  Id. at 44.  That assessment, alone, should give trial courts serious pause before allowing historians to testify.

In arguing why historians should serve as expert witnesses, Rothman advances the unexceptional point that litigants should have access to the expertise to have their day in court.  Id.  To the extent that historical expertise is the proper subject of opinion testimony, and the opinion is reliably based, Rothman’s point is well taken.  Emboldened, however, by the prospect of turning the witness chair into the bully pulpit, Rothman waxes expansively about the attraction of forays into the courtroom.  Historians, as expert witnesses, “may wish to bring their expertise to the support of a cause.”  Id (emphasis added).  Rothman sees historian expert witnesses as “advocates and agents of change.”  Id.

Rothman’s view of the historian as an advocate is by no means unique.  The American Historical Association (AHA), chartered by the United States Congress in 1889, has proclaimed that political views may “inform their historical practice.”  AHA, Statement on Standards of Professional Conduct, 2005 Edition, available at http://www.historians.org/pubs/Free/ProfessionalStandards.cfm (last revised January 2011).

The AHA urges hopefully that historians’ political views, when “applied with integrity,” can inform their historical researches and writing.  Id.  One of the public arenas contemplated for historical practice, by the AHA, is the courtroom, where historians will serve as expert witnesses.  Id.  In its Internet website guide to job opportunities for college graduates with degrees in history, the AHA describes “historians as advocates,” and encourages young historians that they may play an important part in the legal process by serving as expert witnesses.  AHA, http://www.historians.org/pubs/Free/careers/Index.htm (last visited on Dec.17, 2011).

Rothman’s and the AHA’s conception of the historian’s role in the trial process is inconsistent with long-established law of expert witness opinion.  Expert witnesses are simply not supposed to be advocates.  In their enthusiasm for an expansive role for historians, these historians have helped to identify much that is wrong with historian witness testimony.  Venality is a relatively weak motive, and one that is easily documented, compared with the corrupting influence of the zeal of advocacy, disguised as expert opinion.

We can find no clearer statement of judicial antipathy to expert witness advocacy than the famous copyright decision by Judge Learned Hand in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).  Both sides in Nichols presented expert testimony on “dramatic writing” in an effort to prove or disprove a claim that one screenplay infringed upon another.  Deprecating the lengthy, argumentative testimony from both sides’ experts, Judge Hand wrote that “[i]t ought not be allowed at all . . . .”  Id. at 123.  Judge Hand explained with his usual magisterial authority:  “Argument is argument whether in the box or at the bar, and its proper place is the last.”  Id.

Other areas of expertise, besides historical scholarship, fail to satisfy the basic requirements of expert witness testimony.  For instance, Judge Hand’s complaints about the “literary critic” expert witness in Nichols, have been re-lodged against witnesses with expertise in ethics.  In GST v. Telecommunications, Inc., 192 F.R.D. 109 (S.D.N.Y. 2000), both parties offered expert witness on the ethics of the conduct of corporate officers.  Invoking the requirement of helpfulness embodied in Federal Rule of Evidence 702, the Court found the proffered testimony would not aid the jury.  “It is evident that the contentious advocacy of the experts – illustrated by conclusions on the credibility of explanations regarding the business judgment of the board of directors . . . in clearly expressed, biased viewpoints – do little to aid the triers of fact on the underlying transactions.”  Id. at 110.  The trial court discerned a serious danger that expert testimony on ethics would usurp the jury’s role in applying the law to the facts found in the case.  Id.  Permitting such testimony would allow expert witnesses to attempt to substitute their judgment for the jury’s.  Id.; see, e.g., Pan American World Airways, Inc. v. Aetna Casualty & Surety, 505 F.2d 989, 998 (2d Cir. 1974) (noting disapprovingly that, evidence consisted “largely of hearsay, propaganda, speculation, and conjecture”).  See also Imwinkelried, “Expert Testimony by Ethicists:  What Should Be the Norm?” 76 Temple L. Rev. 91, 114, 128 (2003) (noting that normative testimony will virtually always be inadmissible).

Of course, the substitution of an expert witness’s judgment for that of a jury is precisely what all trial lawyers hope to accomplish.  Lawyers can select and present expert witnesses based upon their opinions and conclusion, whereas the conclusions of juries are all too unpredictable.  Trial courts must be vigilant to police expert witness opinion testimony in the area of history as much as, if not more than, in the area of scientific testimony.  Rule 702’s requirement of knowledge that will assist the trier of fact is designed to prevent expert witnesses from testifying about matters within the common understanding of the jury, and about which the jurors can reason without help from an expert witness.  In the Rezulin Multidistrict Litigation (MDL), testimony that was “a narrative of the case which a juror is equally capable of constructing” was precluded.  In re Rezulin Products Liability Litig., 309 F.Supp. 2d 531, 541 (S.D.N.Y. 2004).  Judge Kaplan explained that expert witnesses were not the appropriate conduit for a narrative of events, meetings, regulations, and documents, when they were not percipient witnesses.  Such testimony was within the jury’s lay understanding, and the law prohibited the attempt to have expert witnesses “supplant the role of counsel in making argument at trial, and the role of the jury in interpreting the evidence.”  Id. at 551.

Barring Unreliable Opinion Testimony From Historians

Stripping the argument and advocacy from historian testimony would go a long way toward remedying what is unreliable and objectionable from such opinions.  Indeed, in many cases, lawyers may find themselves with little or no reason to call on historian witnesses.

If juries should be subjected to the opinion testimony of historians, serving as expert witnesses, are there any protections against unreliable historical opinions?  We are all familiar with the extravagant claims of revisionist historians, who endeavor to reinvent the past for some political purpose.  Consider, for example, the cottage industry that decimated our forests in an effort to exculpate the late Alger Hiss.  The prospect of similar opinion testimony in the forum of tort cases is no less daunting.

The American Historical Association (A.H.A.) has recently promulgated updated standards necessary for the productions of reliable history.  Statement on Standards, supra at http://www.historians.org/pubs/Free/ProfessionalStandards.cfm (last revised January 2011).  These standards raise the important question whether courts, to the extent they permit historical testimony at all, will insist upon a showing of “reliability” before allowing widely disparate historical opinions to be presented to juries.  Surely, historical opinion that is unreliable, like unreliable scientific opinion, would not be helpful to the trier of fact.  Courts, employing various evidentiary standards, routinely exclude unhelpful testimony.  Furthermore, few lawyers would contend that they have a right, constitutional or otherwise, to present unreliable or unhelpful testimony.

The AHA’s Standards may provide a starting point for judicial consideration of the reliability of proffered historical testimony.  The Association views itself as having a special obligation to address “dilemmas and concerns about the practice of history that historians have regularly brought to the A.H.A. seeking guidance and counsel.”  Id.  The AHA Standards address “forms of professional misconduct that are especially troubling to historians,” and “identify a core set of shared values that professional historians strive to honor in the course of their work.”  Id.  The AHA thus acts as have many medical and scientific societies that have put forward guidelines and consensus statements on methodologic issues.

The AHA Standards explicitly acknowledge that historical scholarship is pursued and presented in many venues and formats, including as expert witness testimony in public arenas:

Practicing history in the public realm presents important challenges, for when historians communicate with a wide public, they must represent not just a particular interpretation or body of facts, but the best practices of the discipline of history itself.  This means they must inevitably walk a tightrope in balancing their desire to present a particular point of view with their responsibility to uphold the standards and values that underpin their professional authority as historians.  This challenge can be especially complex for . . . historians working in advocacy roles.

Id.  The Standards in many respects adopt a standard of care for historians.  Practicing history with integrity is defined in terms of both duties of aspiration and prohibition.  Among those standards relevant to a reliability assessment of historian testimony is the exhortation to acknowledge “the limits and uncertainties” of one’s arguments, as well as not to omit evidence that tends to counter or undermine one’s interpretations.  Id.  Although the Standards acknowledge the legitimacy of “point of view,” they define professional integrity in terms of, among other things, “a readiness to follow sound method and analysis wherever they may lead.”  Id.

The limits suggested by the AHA can certainly help courts evaluate historians’ testimony when carrying out their gatekeeping role for these expert witnesses.  The Standards, however, should not usurp the judicial function to define and apply criteria for the reliability and helpfulness of opinion testimony.

(to be continued)