There is one less force of nature in the universe. Judge Jack Bertrand Weinstein died earlier this week, about two months shy of a century.[1] His passing has been noticed by the media, lawyers, and legal scholars[2]. In its obituary, the New York Times noted that Weinstein was known for his “bold jurisprudence and his outsize personality,” and that he was “revered, feared, and disparaged.” The obituary quoted Professor Peter H. Schuck, who observed that Weinstein was “something of a benevolent despot.”

As an advocate, I found Judge Weinstein to be anything but fearsome. His jurisprudence was often driven by intellectual humility rather than boldness or despotism. One area in which Judge Weinstein was diffident and restrained was in his exercise of gatekeeping of expert witness opinion. He, and his friend, the late Professor Margaret Berger, were opponents of giving trial judges discretion to exclude expert witness opinions on ground of validity and reliability. Their antagonism to gatekeeping was, no doubt, partly due to their sympathies for injured plaintiffs and their realization that plaintiffs’ expert witnesses often come up with dodgy scientific opinions to advance plaintiffs’ claims. In part, however, Judge Weinstein’s antagonism was due to his skepticism about judicial competence and his own intellectual humility.

Although epistemically humble, Judge Weinstein was not incurious. His interest in scientific issues occasionally got him into trouble, as when he was beguiled by Dr. Irving Selikoff and colleagues, who misled him on aspects of the occupational medicine of asbestos exposure. In 1990, Judge Weinstein issued a curious mea culpa. Because of a trial in progress, Judge Weinstein, along with state judge (Justice Helen Freedman), attended an ex parte private luncheon meeting with Dr. Selikoff. Here is how Judge Weinstein described the event:

“But what I did may have been even worse [than Judge Kelly’s conduct that led to his disqualification]. A state judge and I were attempting to settle large numbers of asbestos cases. We had a private meeting with Dr. Irwin [sic] J. Selikoff at his hospital office to discuss the nature of his research. He had never testified and would never testify. Nevertheless, I now think that it was a mistake not to have informed all counsel in advance and, perhaps, to have had a court reporter present and to have put that meeting on the record.”[3]

Judge Weinstein’s point about Selikoff’s having never testified was demonstrably false, but I impute no scienter for false statements to the judge. The misrepresentation almost certainly originated with Selikoff. Dr. Selikoff had testified frequently up to the point at which he and plaintiffs’ counsel realized that his shaky credentials and his pronouncements on “state of the art,” were hurtful to the plaintiffs’ cause. Even if Selikoff had not been an accomplished testifier, any disinterested observer should, by 1990, have known that Selikoff was himself not a disinterested actor in medical asbestos controversies.[4] The meeting with Selikoff apparently weighed on Judge Weinstein’s conscience. He repeated his mea culpa almost verbatim, along with the false statement about Selikoff’s never having testified, in a law review article in 1994, and then incorporated the misrepresentation into a full-length book.[5]

In his famous handling of the Agent Orange class action, Judge Weinstein manipulated the defendants into settling, and only then applied his considerable analytical ability in dissecting the inadequacies of the plaintiffs’ causation case. Rather than place the weight of his decision on Rule 702, Judge Weinstein dismembered the causation claim by finding that the bulk of what the plaintiffs’ expert witnesses relied upon under Rule 703 was unreasonable. He then found that what remained, if anything, could not reasonably support a verdict for plaintiffs, and he entered summary judgment for the defense in the opt-out cases.[6]

In 1993, the U.S. Supreme Court breathed fresh life into the trial court’s power and obligation to review expert witness opinions and to exclude unsound opinions.[7] Several months before the Supreme Court charted this new direction on expert witness testimony, the silicone breast implant litigation, fueled by iffy science and iffier scientists, erupted.[8] In October 1994, the Judicial Panel on Multi-District Litigation created MDL 926, which consolidated the federal breast implant cases before Judge Sam Pointer, in the Northern District of Alabama. Unlike most contemporary MDL judges, however, Judge Pointer did not believe that Rule 702 and 703 objections should be addressed by the MDL judge. Pointer believed strongly that the trial judges, in the individual, remanded cases, should rule on objections to the validity of proffered expert witness opinion testimony. As a result, so-called Daubert hearings began taking place in district courts around the country, in parallel with other centralized proceedings in MDL 926.

By the summer of 1996, Judge Robert E. Jones had a full-blown Rule 702 attack on the plaintiffs’ expert witnesses before him, in a case remanded from MDL 926. In the face of the plaintiffs’ MDL leadership committee’s determined opposition, Judge Jones appointed four independent scientists to serve as scientific advisors. With their help, in December 1996, Judge Jones issued one of the seminal rulings in the breast implant litigation, and excluded the plaintiffs’ expert witnesses.[9]

While Judge Jones was studying the record, and writing his opinion in the Hall case, Judge Weinstein, with a judge from the Southern District of New York, conducted a two-week Rule 702 hearing, in his Brooklyn courtroom. Judge Weinstein announced at the outset that he had studied the record from the Hall case, and that he would incorporate it into his record for the cases remanded to the Southern and Eastern Districts of New York.

I had one of the first witnesses, Dr. Donnard Dwyer, before Judge Weinstein during that chilly autumn of 1996. Dwyer was a very earnest immunologist, who appeared on direct examination to endorse the methodological findings of the plaintiffs’ expert witnesses, including a very dodgy study by Dr. Douglas Shanklin. On cross-examination, I elicited Dwyer’s view that the Shanklin study involved fraudulent methodology and that he, Dwyer, would never use such a method or allow a graduate student to use it. This examination, of course, was great fun, and as I dug deeper with relish, Judge Weinstein stopped me, and asked rhetorically to the plaintiffs’ counsel, whether any of them intended to rely upon the discredited Shanklin study. My main adversary Mike Williams did not miss a beat; he jumped to his feet to say no, and that he did not know why I was belaboring this study. But then Denise Dunleavy, of Weitz & Luxenberg, knowing that Shanklin was her listed expert witness in many cases, rose to say that her expert witnesses would rely upon the Shanklin study. Incredulous, Weinstein looked at me, rolled his eyes, paused dramatically, and then waved his hand at me to continue.

Later in my cross-examination, I was inquiring about another study that reported a statistic from a small sample. The authors reported a confidence interval that included negative values for a test that could not have had any result less than zero. The sample was obviously skewed, and the authors had probably used an inappropriate parametric test, but Dwyer was about to commit to the invalidity of the study when Judge Weinstein stopped me. He was well aware that the normal approximation had created the aberrant result, and that perhaps the authors only sin was in failing to use a non-parametric test. I have not had many trial judges interfere so knowledgably.

In short order, on October 23, 1996, Judge Weinstein issued a short, published opinion, in which he ducked the pending Rule 702 motions, and he granted partial summary judgment on the claims of systemic disease.[10] Only the lawyers involved in the matters would have known that there was no pending motion for summary judgment!

Following up with grant of summary judgment, Judge Weinstein appointed a group of scientists and a legal scholar, to help him assemble a panel of Rule 706 expert witnesses for future remanded case. Law Professor Margaret Berger, along with Drs. Joel Cohen and Alan Wolff, began meeting with the lawyers to identify areas of expertise needed by the court, and what the process of court-appointment of neutral expert witnesses would look like.

The plaintiffs’ counsel were apoplectic. They argued to Judge Weinstein that Judge Pointer, in the MDL, should be supervising the process of assembling court-appointed experts. Of course, the plaintiffs’ lawyers knew that Judge Pointer, unlike Judges Jones and Weinstein, believed that both sides’ expert witnesses were extreme, and mistakenly believed that the truth lay between. Judge Pointer was an even bigger foe of gatekeeping, and he was generally blind to the invalid evidence put forward by plaintiffs. In response to the plaintiffs’ counsel’s, Judge Weinstein sardonically observed that if there were a real MDL judge, he should take it over.

Within a month or so, Judge Pointer did, in fact, take over the court-appointed expert witness process, and incorporated Judge Weinstein’s selection panel. The process did not going very smoothly in front of the MDL judge, who allowed the plaintiffs lawyers to slow down the process by throwing in irrelevant documents and deploying rhetorical tricks. The court-appointed expert witnesses did not take kindly to the shenanigans, or to the bogus evidence. The expert panel’s unanimous rejection of the plaintiffs’ claims of connective tissue disease causation was an expensive, but long overdue judgment from which there was no appeal. Not many commentators, however, know that the panel would never have happened but for Judge Weinstein’s clever judicial politics.

In April 1997, while Judge Pointer was getting started with the neutral expert selection panel,[11] the parties met with Judge Weinstein one last time to argue the defense motions to exclude the plaintiffs’ expert witnesses. Invoking the pendency of the Rule 706 court-appointed expert witness processs in the MDL, Judge Weinstein quickly made his view clear that he would not rule on the motions. His Honor also made clear that if we pressed for a ruling, he would deny our motions, even though he had also ruled that plaintiffs’ could not make out a submissible case on causation.

I recall still the frustration that we, the defense counsel, felt that April day, when Judge Weinstein tried to explain why he would grant partial summary judgment but not rule on our motions contra plaintiffs’ expert witnesses. It would be many years later, before he let his judicial assessment see the light of day. Two decades and then some later, in a law review article, Judge Weinstein made clear 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.”[12] Indeed.

Judge Weinstein was incredibly smart and diligent, but he was human with human biases and human fallibilities. If he was a despot, he was at least kind and benevolent. In my experience, he was always polite to counsel and accommodating. Appearing before Judge Weinstein was a pleasure and an education.

[1] Laura Mansnerus, “Jack B. Weinstein, U.S. Judge With an Activist Streak, Is Dead at 99,” N.Y. Times (June 15, 2021).

[2] Christopher J. Robinette, “Judge Jack Weinstein 1921-2021,” TortsProf Blog (June 15, 2021).

[3] Jack B. Weinstein, “Learning, Speaking, and Acting: What Are the Limits for Judges?” 77 Judicature 322, 326 (May-June 1994).

[4] “Selikoff Timeline & Asbestos Litigation History” (Dec. 20, 2018).

[5] See Jack B. Weinstein, “Limits on Judges’ Learning, Speaking and Acting – Part I- Tentative First Thoughts: How May Judges Learn?” 36 Ariz. L. Rev. 539, 560 (1994) (“He [Selikoff] had never testified and would never testify.”); Jack B. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and other Multi-Party Devices 117 (1995) (“A court should not coerce independent eminent scientists, such as the late Dr. Irving Selikoff, to testify if, like he, they prefer to publish their results only in scientific journals.”)

[6] In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785 (E.D.N.Y. 1984), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987)(approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988);  In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

[7] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[8] Reuters, “Record $25 Million Awarded In Silicone-Gel Implants Case,” N.Y. Times (Dec. 24, 1992).

[9] See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Ore. 1996).

[10] In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996).

[11] MDL 926 Order 31 (May 31, 1996) (order to show cause why a national Science Panel should not be appointed under Federal Rule of Evidence 706); MDL 926 Order No. 31C (Aug. 23, 1996) (appointing Drs. Barbara S. Hulka, Peter Tugwell, and Betty A. Diamond); Order No. 31D (Sept. 17, 1996) (appointing Dr. Nancy I. Kerkvliet).

[12] Hon. Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (emphasis added).