With the retraction of the climate science chapter, The Reference Manual on Scientific Evidence is now one chapter shorter, at least in the Federal Judicial Center’s version. At the time of this writing, for curious souls, the National Academies version is still sporting the climate advocacy chapter. Even without the climate chapter, the Manual is over 1,000 pages, and more than a casual weekend read. Many judges, finding this tome on their desks, will read individual subject matter chapters pro re nata. The first chapter in the Manual, however, is about the law, not science, and might be the starting place for the ordinary work-a-day judge. As in past editions of the Manual, the new edition has a chapter on the The Admissibility of Expert Testimony. In the first, second, and third editions, this chapter was written by Professor Margaret Berger. In the fourth edition, the chapter on the law was written by law professors Liesa Richter and Daniel Capra. To understand and evaluate the most recent iteration, the reader should have some sense of what has gone before.
Previous Chapters on Admissibility of Expert Witness Testimony
Professor Berger’s past chapters had been idiosyncratic productions.[1] Berger was an evidence law scholar, who wrote often about expert witness admissibility issues.[2] She was also known for her antic proposals, such as calling for abandoning the element of causation in products liability cases.[3] As an outspoken ideological opponent of expert witness gatekeeping, Berger was a strange choice to write the law chapter of the Manual.[4] Berger’s chapters in the first through the third editions made her opposition to gatekeeping obvious, and this hostility may have been responsible for some of the judicial resistance to applying the clear language of Rule 702, even after its 2000 revision.
Berger was not only a law professor; she was at the center of ideological and financially conflicted groups that worked to undermine the application of Rule 702 in health effects cases. One of the key players in this concerted action was David Michaels. Currently, Michaels teaches epidemiology at the George Washington University Milken Institute School of Public Health. He is a card-carrying member of the Collegium Ramazzini, an organization that has participated in efforts to corrupt state and federal judges by funding ex parte conferences with lawsuit industry expert witnesses.[5] Michaels is the author of two books, both highly anti-manufacturing industry, and biased in favor of the lawsuit industry.[6] Both books are provocatively titled anti-industry diatribes, which have little scholarly value, but are used regularly by plaintiffs counsel solely to smear corporate defendants and defense expert witnesses. Most clear-eyed trial judges have quashed these efforts on various grounds, including Rule 703, because the books are not the sort of material upon which scientists would reasonably rely.[7]
In 2002, David Michaels created an anti-Daubert advocacy organization, the Project on Scientific Knowledge and Public Policy (SKAPP), from money siphoned from the plaintiffs’ common-benefit fund in MDL 926 (silicone gel breast implant litigation).[8] Michaels lavished some of the misdirected money to prepare and publish an anti-Daubert pamphlet for SKAPP, in 2003.[9] In this anti-Daubert publications, and many others sponsored by SKAPP, Michaels and the SKAPP grantees typically acknowledged the source of SKAPP funding obliquely to hide that it was nothing more than plaintiffs counsels’ walking around money:
“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.”[10]
Many credulous lawyers, judges, and legal scholars were duped into believing that SKAPP, SKAPP publications, and SKAPP-sponsored publications were supported by the Federal Judicial Center.
Michaels directed a good amount of SKAPP’s anti-Daubert funding to support Professor Berger’s efforts in organizing a series of symposia on science and the law. Several of Berger’s SKAPP conferences were held in Coronado, California, and featured a predominance of scientists who work for the lawsuit industry and are affiliated with advocacy organizations, such as the Collegium Ramazzini. The papers from one of the Coronado Conferences were published in a special issue of the American Journal of Public Health, the official journal of the American Public Health Association,[11] which has issued position papers highly critical of Rule 702 gatekeeping.[12]
The spider web of connections between SKAPP, the Collegium Ramazzini, the American Public Health Association, the Tellus Institute, the lawsuit industry, Professor Berger, and others hostile to Rule 702 is a testament to the concerted action to undermine the Supreme Court’s decisions in the area, and the codification of those decisions in Rule 702. That Professor Berger was within this web of connections, and was writing the chapter on the admissibility of expert witness opinion testimony, in the first three editions of the Reference Manual, explains but does not justify many of the opinions contained within those chapters.
Professor David Bernstein, who has written extensively on expert witness issues, restated the situation thus:
“In 2003, the toxic tort plaintiffs’ bar used money from a fund established as part of the silicone breast implant litigation settlement to sponsor four conference in Coronado, California, that resulted in a slew of policy papers excoriating the Daubert gatekeeping requirement.”[13]
The active measures of these groups and Professor Berger explain the straight line between Berger’s symposia and the First Circuit’s decision in Milward v. Acuity Specialty Products Group, Inc.[14] Carl Cranor was one of the speakers at the Coronado Conferences, and along with Martyn Smith, another member of the Collegium Ramazzini, founded a Proposition 65 bounty-hunting organization, Council for Education on Research on Toxics (CERT). Cranor has long advocated for a loosey-goosey “weight of the evidence” approach that had been rejected by the Supreme Court in Joiner.[15] Cranor, along with Smith, unsurprisingly turned up as expert witnesses for plaintiff in Milward, in which case they reprised their weight-of-the evidence approach opinions. When Milward appealed the exclusion of Cranor and Smith, CERT filed an amicus brief, without disclosing that Cranor and Smith were founders of the organization, and that CERT funded Smith’s research through donations to his university, from CERT’s shake-down operations under Prop 65. The First Circuit’s 2011 decision in Milward resulted from a fraud on the court.
Professor Berger died in November 2010, but when the third edition of the Manual was released in 2011, it contained Berger’s chapter on the law of expert witnesses, with a citation to the Milward case, decided after her death.[16] An editorial note from an unnamed editor to her posthumous chapter suggested that
“[w]hile revising this chapter Professor Berger became ill and, tragically, passed away. We have published her last revision, with a few edits to respond to suggestions by reviewers.”
Given that Berger was an ideological opponent of expert witness gatekeeping, there can be little doubt that she would have endorsed the favorable references to Milward made after her passing, but adding them can hardly be considered non-substantive edits. Curious readers might wonder who was the editor who took such liberties of adding the chapter citations to Milward. Curious readers do not have to wonder, however, what would have happened if the incestuous relationships among Berger, SKAPP, the plaintiffs’ bar, and others had been replicated by similar efforts of manufacturing industry to influence the interpretation and application of the law. In 2008, the Supreme Court decided an important case involving constitutional aspects of punitive damages. The Court went out of its way to decline to rely upon empirical research that showed the unpredictability of punitive damage awards because it was funded in part by Exxon:
“The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous ‘mock juries’, where different ‘jurors’ are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, & W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L.Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.”[17]
Unlike the situation with SKAPP, David Michaels, the plaintiffs’ bar, and Professor Berger, the studies sponsored in part by Exxon had disclosed their funding clearly. Those studies involved outstanding scientists whose integrity were unquestionable, and for its trouble, Exxon was rewarded with gratuitous shaming from Justice Souter. The anti-Daubert papers sponsored by the plaintiffs’ bar through SKAPP, and Professor Berger’s ideological conflicts of interest have received a free pass. This disparate treatment between conflicts of interest within manufacturing industry and those within the lawsuit industry and its advocacy group allies is a serious social, political, and legal problem. It was a problem on full display in the now-retracted climate science chapter in the Manual. In evaluating the new fourth edition’s chapter on the law of expert witness admissibility (and other chapters), we should be asking whether there are signs of undue political influence.
[1] See Schachtman, The Late Professor Berger’s Introduction to the Reference Manual on Scientific Evidence, TORTINI (Oct. 23, 2011).
[2] See generally Edward K. Cheng, Introduction: Festschrift in Honor of Margaret A. Berger, 75 BROOKLYN L. REV. 1057 (2010).
[3] Margaret A. Berger, Eliminating General Causation: Notes towards a New Theory of Justice and Toxic Torts, 97 COLUM. L. REV. 2117 (1997).
[4] See, e.g., Margaret A. Berger & Aaron D. Twerski, “Uncertainty and Informed Choice: Unmasking Daubert,” 104 MICH. L. REV. 257 (2005).
[5] In re School Asbestos Litig., 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992), 38 VILL. L. REV. 1219 (1993); Bruce A. Green, May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy, 29 FORDHAM URB. L. J. 941, 996-98 (2002).
[6] David Michael, DOUBT IS THEIR PRODUCT: HOW INDUSTRY’S WAR ON SCIENCE THREATENS YOUR HEALTH (2008); David Michaels, THE TRIUMPH OF DOUBT (2020).
[7] See In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab. Litig., 888 F.3d 753, 787 n.71 (5th Cir. 2018) (advising the district court to weigh carefully whether Doubt is Their Product has any legal relevance); King v. DePuy Orthopaedics, Inc., 2024 WL 6953089, at *2 (D. Ariz. July 9, 2024) (finding Michaels’ books to be legally irrelevant); Sarjeant v. Foster Wheeler LLC, 2024 WL 4658407, at *1 (N.D. Cal.Oct. 24, 2024) (ruling that Doubt Is Their Product is legally irrelevant hearsay, and not the type of material upon which an expert witness would rely to form scientific opinion). See also Evans v. Biomet, Inc., 2022 WL 3648250, at *4 (D. Alaska Feb. 1, 2022) (quashing plaintiff’s subpoena to defendant’s expert for material in connection with Doubt Is Their Product).
[8] See Ralph Klier v. Elf Atochem North America Inc., 2011 U.S. App. LEXIS 19650 (5th Cir. 2011) (holding that district court abused its discretion in distributing residual funds from class action over arsenic exposure to charities; directing that residual funds be distributed to class members with manifest personal injuries). A “common benefit” fund is commonplace in multi-district litigation of mass torts. In such cases, federal courts may require the defendant to “hold back” a certain percentage of settlement proceeds, to pay 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 ATT’Y FEE DIG. 87, 89 (Mar. 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.
[9] Eula Bingham, Leslie Boden, Richard Clapp, Polly Hoppin, Sheldon Krimsky, David Michaels, David Ozonoff & Anthony Robbins, Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of (June 2003). The authors described the publication as a publication of SKAPP, coordinated by the Tellus Institute, and funded by The Bauman Foundation, a private foundation that supports “progressive social change advocacy.” Boden, Hoppin, Michaels, and Ozonoff are fellows of the Collegium Ramazzini.
[10] David Michael, DOUBT IS THEIR PRODUCT: HOW INDUSTRY’S WAR ON SCIENCE THREATENS YOUR HEALTH 267 (2008). See Nathan Schachtman, “SKAPP A LOT,” TORTINI (April 30, 2010); “Manufacturing Certainty” TORTINI (Oct. 25, 2011); “David Michaels’ Public Relations Problem” TORTINI (Dec. 2, 2011); “Conflicted Public Interest Groups” TORTINI (Nov. 3, 2013).
[11] 95 AM. J. PUB. HEALTH S1 (2005).
[12] See, e.g., Am. Pub. Health Assn, Threats to Public Health Science, Policy Statement 2004-11 (Nov. 9, 2004), available at https://www.apha.org/policy-and-advocacy/public-health-policy-briefs/policy-database/2014/07/02/08/52/threats-to-public-health-science
[13] David E. Bernstein & Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence, 702, 57 WM. & MARY L. REV. 1, 39 (2015), available at https://scholarship.law.wm.edu/wmlr/vol57/iss1/2. See David Michaels & Neil Vidmar, Foreword, 72 LAW & CONTEMP. PROBS. i, ii (2009) (“SKAPP has convened four Coronado Conferences.”).
[14] Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011), cert. denied sub nom., U.S. Steel Corp. v. Milward, 132 S. Ct. 1002 (2012).
[15] General Electric Co. v. Joiner, 522 U.S. 136, 136-37 (1997).
[16] Margaret A. Berger, The Admissibility of Expert Testimony, in National Academies of Sciences, Engineering and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 11, 20 n.51, 23-24 n.61 (3rd 2011).
[17] Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 2626 n.17 (2008).
