“You could file briefs on a napkin right now and get it granted.”
Alan Lange & Tom Dawson, Kings of Torts 87 (2d ed. 2010) (quoting convicted former lawyer, Zach Scruggs)
Back in the 1980s, I started to see expert witnesses stray into the business of psychoanalysis of corporate defendants. Perhaps it took place earlier; it seemed to be a tactic when I first started to try cases. Not only did expert witnesses wish to indict products as causes of plaintiffs’ harms, they wanted to indict the motives and intentions of the manufacturers. Such “motive” testimony should have been cleared from courtrooms by the basic rule of expert witness opinion testimony; namely, the warrant for expert witness testimony is that the subject matter is “beyond the ken” of the jury. Given that the tendentious witnesses had no special skills in divining motives, and that jurors were routinely called upon to infer motives, the offending testimony should have been readily quashed. Almost 100 years ago, Judge Learned Hand, confronted with similar argumentative opinion testimony, held, in his magisterial way, that “[a]rgument is argument whether in the box or at the bar, and its proper place is the last.”[1]
What I found when I started trying cases was that many states had hard rules on expert witnesses, but soft judges. In some litigations, plaintiffs’ counsel offered a witness, such as the late Marc Lappé, not only to assess motives, but also to make ethical pronouncements about defendants’ conduct. More typically, the ethical judgments came from historian witnesses or regulatory expert witnesses. Occasionally, expert witnesses on health effects issues offered psychoanalytic opinions as well. Plaintiffs’ counsel typically argued that Federal Rule of Evidence 704, which declared that “[a]n opinion is not objectionable just because it embraces an ultimate issue,” green lighted their witnesses’ amateur or professional psychoanalysis. Defendants typically argued that the common law requirement that opinions be “beyond the ken” of jurors was carried forward in Rule 702’s requirement of relevant expertise, knowledge, and helpfulness to the trier of fact. State court analogues to these rules replicated the debate in state courts around the country.
The attempt to deprecate the intentions or motives of a party were not necessarily enhanced when the expert witness compurgator had some semblance of subject-matter expertise. In one case, a frequent statistician testifier for the lawsuit industry, Martin Wells, expressed the opinion that the study at issue in the litigation “was seriously flawed by bad epidemiological practice. The combination of bias and poor epidemiologic practice is so rampant that one can easily conclude the study was intentionally designed to achieve a desired result regardless of the actual findings in the data.”[2]
Wells may have been entitled to his opinion about the quality of the study at issue, and if he had good grounds and a reliable methodology, perhaps he should have been permitted to share that opinion with a jury. The court, however, held that opinions based upon “inferences about the intent or motive of parties … lie outside the bounds of expert testimony, but are instead classic jury questions.”[3] The acceptability of the Wells’ compurgation was not improved or made more admissible by coating it with a patina of expertise about interpreting studies. The trial court found that:
“Dr. Wells’ statements represent his subjective beliefs regarding an alleged bad motive or intent on the part of defendants or others who designed the study. The Court finds that his speculation about the reason for alleged methodological issues in the study are not the product of reliable methods, and will be excluded.”[4]
By 2011, or so, the case law interpreting common law and statutory rules about ethics and motive opinion generally tilted in favor of the defense.[5] Courts routinely excluded expert witness opinions about corporate knowledge, motivations, and intent, as irrelevant and inadmissible under Rule 702.
As though ethicist and historian testimony were not bad enough, imagine an economist offering testimony to deprecate lobbying efforts that are protected first amendment speech. In one multi-district litigation, thinking that they could get away with most anything, plaintiffs’ counsel offered just such an expert witness.
The expert witness at issue was an economist, Glen W. Harrison, of no particular distinction, who sought to serve as a compurgator in litigation. Harrison is an accomplished litigation witness, who was developed and trained by the Motley Rice firm and others in many tobacco cases.[6] What is clear is that he was deployed, in MDL 1535, to lobby the fact-finder inappropriately, without any real expertise in the material science, toxicology, or epidemiology issues in the litigation.
The essence of Glen Harrison’s opinion is that the “manufacturing industry” saw itself as having an “economic incentive” to engage in lobbying. This opinion was either tautologically or trivially true, but plaintiffs sought the opportunity to cast lawful (and constitutionally protected) lobbying as nefarious and tortious. A disinterested observer might have thought that the important issue was whether the lobbying was unlawful and thus inappropriate, but Harrison was not an expert on the law governing stakeholders’ submissions to agencies or to organizations that promulgate standards.
Harrison’s opinion on “inappropriateness” was based upon his inexpert factual review of documents, with occasional inferences or comments about whether the documents were incomplete, or inconsistent with other pieces of evidence. What was remarkable about this bold attempt to subvert the MDL trial process was that Harrison had absolutely no expertise or competence to discuss documents that involved issues of epidemiology, risk assessment, neurology, neuropsychology, toxicology, or exposure measurements. Harrison tried to squeeze out some bare relevance by commenting upon documents with his personal, lay observations that they seemed inaccurate, or that they were incomplete. Of course, a lawyer could equally well argue the point to the jury in summation. Clearly, the goal of proffering Harrison was to have a summation from a witness, with a pleasant Australian accent, in the middle of the plaintiffs’ case in chief. If you listened closely, you could hear a roar of disapproval from the Albany Rural Cemetery.[7]
For some time, the MDL 1535 judge winked at the plaintiffs’ and Harrison’s improper ploy to demonize lawful, appropriate industry conduct, and the MDL resolved before the parties obtained a ruling on Harrison’s proffered testimony. While the issue was before the MDL court, it appeared unmoved by considerations of the First Amendment or of the Noerr-Pennington doctrine,[8] or even the statutory invitation and right to comment upon proposed regulations.[9] Of course, manufacturing and lawsuit industries have a right to participate in notice and comment periods of rulemaking. The courtroom asymmetry threatened by Harrison’s proffered testimony was that plaintiffs’ counsel could comment upon defendants’ lobbying, but defense counsel had no equivalent opportunity to comment upon the lawsuit’s extensive rent seeking.[10]
[1] Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930) (Hand, J.).
[2] In re Trasylol Prods. Liab. Litig., 08-md-01928, 2010 WL 1489793, at *2 (S.D. Fla. Feb. 24, 2010) (quoting from Rule 26 report of Martin T. Wells ¶ 4, Van Steenburgh Affidavit, Exhibit B, Docket No. 1677).
[3] Id. at *8 (internal quotation marks omitted).
[4] Id. at *2.
[5] See Beck, “Experts Offering Evidence of Corporate Intent, Ethics, And The Like,” Drug & Device Law (May 19, 2011) (collecting cases). See, e.g., Kidder, Peabody & Co., Inc. v. IAG Int’l Acceptance Grp., N.V., 14 F.Supp. 2d 391, 404 (S.D.N.Y.1998); Crown Cork, 2013 WL 978980, at *7 (excluding expert opinions of parties’ knowledge, state of mind, and intent); DePaepe v. General Motors Corp., 141 F.3d 714, 720 (7th Cir. 1998) (disallowing opinion of expert witness, who “lacked any scientific basis for an opinion about … motives,” about defendant’s failure to add safety measure in order to “save money”); In re Diet Drugs Prods. Liab. Litig., 2000 WL 876900, at *9 (E.D.Pa. June 20, 2000) (noting that “question of intent is a classic jury question and not one for experts”); Smith v. Wyeth-Ayerst Laboratories Co., 278 F.Supp.2d 684, 700 (W.D.N.C. 2003) (expert witnesses may not opine about corporate intent and motive) (barring Dr. Moye from giving such testimony); In re Rezulin Products Liab. Litig., 309 F. Supp. 2d 531, 543, 545 n.37 (S.D.N.Y.2004) (excluding opinions on intent and motive, as well as historical narrative gleaned form otherwise admissible documentary evidence); In re Baycol Prods. Liab. Litig., 495 F. Supp. 2d 977, 1001 (D.Minn. 2007) (holding expert witness to have exceeded proper proffer “to the extent that he speculates as to Bayer’s motive, intent, or state of mind”); 532 F. Supp. 2d 1029, 1069 (D. Minn. 2007) (“[A]n expert may not testify as to ethical issues or to his personal views”; “[t]he question of corporate intent is one for the jury, not for an expert”); Reece v. Astrazeneca Pharms., LP, 500 F. Supp. 2d 736, 744-46 (S.D. Ohio 2007) (advisability of tests; warnings needed for particular medical conditions; lack of methodology); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 2007 WL 1964337, at *8 (D. Minn. June 29, 2007); Singh v. Edwards Lifesciences Corp., 2008 WL 5758387, ¶ELS 6 (Wash. Super. Snohomish Cty. Jan. 31, 2008); In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 192 (S.D.N.Y. 2009) (granting defendant’s motion to exclude testimony from Dr. Furberg about purported general ethical standards for conducting clinical trials); In re Xerox Corp. Sec. Litig., 746 F. Supp. 2d 402, 415 (D. Conn. 2010) (“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.”) (internal citations omitted); In re Gadolinium-Based Contrast Agents Prods. Liab. Litig., 2010 WL 1796334, at *13 (N.D. Ohio May 4, 2010); In re Levaquin Prods. Liab. Litig., 2010 WL 11470977 (D. Minn. Nov. 10, 2010); Deutsch v. Novartis Pharms. Corp., 768 F. Supp.2d 420, 467 (E.D.N.Y. 2011); In re Heparin Prods. Liab. Litig., 2011 WL 1059660, at *8 (N.D. Ohio March 21, 2011); Lemons v. Novartis Pharms. Corp., 849 F. Supp.2d 608, 615 (W.D.N.C. 2012); Hill v. Novartis Pharms. Corp., 2012 WL 5451809, at *2 (E.D. Cal. Nov. 7, 2012); Georges v. Novartis Pharms. Corp., 2012 WL 9064768, at *13 (C.D. Cal. Nov. 2, 2012); Johnson v. Wyeth LLC, 2012 WL 1204081, at *3 (D. Ariz. Apr. 11, 2012); Pritchett v. I-Flow Corp., 2012 WL 1059948, at *6 (D. Colo. Mar. 28, 2012); Chandler v. Greenstone Ltd., 2012 WL 882756, at *1 (W.D. Wash. Mar. 14, 2012); Winter v. Novartis Pharms. Corp., 2012 WL 827305, at *5 (W.D. Mo. March 8, 2012); Earp v. Novartis Pharms. Corp., 2013 WL 4854488, at *4 (E.D.N.C. Sept. 11, 2013).
[6] See, e.g., Group Health Plan, Inc. v. Philip Morris, Inc., 188 F. Supp. 2d 1122 (D. Minn. 2002); Blue Cross & Blue Shield of N.J. v. Philip Morris, 178 F. Supp. 2d 198 (E.D.N.Y. 2001); Rent-A-Center West Inc. v. Dept. of Revenue, 418 S.C. 320, 792 S.E.2d 260 (2016).
[7] Where Judge Learned Hand was buried.
[8] See, e.g., Video Int’l Prod., Inc. v. Warner-Amex Cable Comm., Inc., 858 F.2d 1075, 1084 (5th Cir. 1988) (applying Noerr-Pennington doctrine to bar use of evidence of lobbying in tort case); Hamilton v. AccuTek, 935 F. Supp. 1307, 1321 (E.D.N.Y. 1996) (granting summary judgment to gun makers on product liability and fraud claims based upon their efforts to influence federal policies by lawful lobbying); In re Municipal Stormwater Pond, No. 18-cv-3495 (JNE/KMM), 2019 U.S. Dist. LEXIS 227887, at *12 (D. Minn. Dec. 20, 2019) (dismissing claims of fraudulent misrepresentation claims against maker of coal-tar sealant on grounds that the Noerr-Pennington doctrine protected manufacturer’s lobbying before state and local governments); Eiser v. Brown & Williamson Tobacco Corp., Phila. Ct. Com. Pleas LEXIS 43, *20, 2005 WL 1323030 (2005) (invoking Noerr-Pennington doctrine to bar evidence of defendant manufacturer’s lobbying in products liability case). See generally James M. Sabovich, “Petition without Exception: Against the Fraud Exception to Noerr-Pennington Immunity from the Toxic Tort Perspective,” 17 Penn State Envt’l L. Rev. 101 (2008).
[9] See Admin. Procedures Act, 5 U.S.C. § 553; Attorney General’s Manual on the Administrative Procedure Act 31 (1947) (“[t]he objective should be to assure informed administrative action and adequate protection to private interests”).
[10] Lawsuit industry certainly exercises its rent-seeking through legitimate lobbying, and occasionally through illegimate means. See U.S. v. Scruggs, 691 F.3d 660 (5th Cir. 2012).
