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Judge Bernstein’s Criticism of Rule 703 of the Federal Rules of Evidence

August 30th, 2016

Federal Rule of Evidence Rule 703 addresses the bases of expert witness opinions, and it is a mess. The drafting of this Rule is particularly sloppy. The Rule tells us, among other things, that:

“[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”

This sentence of the Rule has a simple grammatical and logical structure:

If A, then B;

where A contains the concept of reasonable reliance, and B tells us the consequence that the relied upon material need not be itself admissible for the opinion to be admissible.

But what happens if the expert witness has not reasonably relied upon certain facts or data; i.e., ~A? The conditional statement as given does not describe the outcome in this situation. We are not told what happens when an expert witness’s reliance in the particular field is unreasonable. ~A does not necessarily imply ~B. Perhaps the drafters meant to write:

B if and only if A.

But the drafters did not give us the above rule, and they have left judges and lawyers to make sense of their poor grammar and bad logic.

And what happens when the reliance material is independently admissible, say as a business record, government report, and first-person observation? May an expert witness rely upon admissible facts or data, even when a reasonable expert would not do so? Again, it seems that the drafters were trying to limit expert witness reliance to some rule of reason, but by tying reliance to the admissibility of the reliance material, they managed to conflate two separate notions.

And why is reliance judged by the expert witness’s particular field? Fields of study and areas of science and technology overlap. In some fields, it is common place for putative experts to rely upon materials that would not be given the time of day in other fields. Should we judge the reasonableness of homeopathic healthcare providers’ reliance by the standards of reasonableness in homeopathy, such as it is, or should we judge it by the standards of medical science? The answer to this rhetorical question seems obvious, but the drafters of Rule 703 introduced a Balkanized concept of science and technology by introducing the notion of the expert witness’s “particular field.” The standard of Rule 702 is “knowledge” and “helpfulness,” both of which concepts are not constrained by “particular fields.”

And then Rule 703 leaves us in the dark about how to handle an expert witness’s reliance upon inadmissible facts or data. According to the Rule, “the proponent of the opinion may disclose [the inadmissible facts or data] to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. And yet, disclosing inadmissible facts or data would always be highly prejudicial because they represent facts and data that the jury is forbidden to consider in reaching its verdict. Nonetheless, trial judges routinely tell juries that an expert witness’s opinion is no better than the facts and data on which the opinion is based. If the facts and data are inadmissible, the jury must disregard them in its fact finding; and if an expert witness’s opinion is based upon facts and data that are to be disregarded, then the expert witness’s opinion must be disregarded as well. Or so common sense and respect for the trial’s truth-finding function would suggest.

The drafters of Rule 703 do not shoulder all the blame for the illogic and bad results of the rule. The judicial interpretation of Rule 703 has been sloppy, as well. The Rule’s “plain language” tells us that “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” So expert witnesses should be arriving at their opinions through reliance upon facts and data, but many expert witnesses rely upon others’ opinions, and most courts seem to be fine with such reliance. And the reliance is often blind, as when medical clinicians rely upon epidemiologic opinions, which in turn are based upon data from studies that the clinicians themselves are incompetent to interpret and critique.

The problem of reliance, as contained within Rule 703, is deep and pervasive in modern civil and criminal trials. In the trial of health effect claims, expert witnesses rely upon epidemiologic and toxicologic studies that contain multiple layers of hearsay, often with little or no validation of the trustworthiness of many of those factual layers. The inferential methodologies are often obscure, even to the expert witnesses, and trial counsel are frequently untrained and ill prepared to expose the ignorance and mistakes of the expert witnesses.

Back in February 2008, I presented at an ALI-ABA conference on expert witness evidence about the problems of Rule 703.[1] I laid out a critique of Rule 703, which showed that the Rule permitted expert witnesses to rely upon “castles in the air.” A distinguished panel of law professors and judges seemed to agree; at least no one offered a defense of Rule 703.

Shortly after I presented at the ALI-ABA conference, Professor Julie E. Seaman published an insightful law review in which she framed the problems of rule 703 as constitutional issues.[2] Encouraged by Professor Seaman’s work, I wrote up my comments on Rule 703 for an ABA publication,[3] and I have updated those comments in the light of subsequent judicial opinions,[4] as well as the failure of the Third Edition of the Reference Manual of Scientific Evidence to address the problems.[5]

===================

Judge Mark I. Bernstein is a trial court judge for the Philadelphia County Court of Common Pleas. I never tried a case before Judge Bernstein, who has announced his plans to leave the Philadelphia bench after 29 years of service,[6] but I had heard from some lawyers (on both sides of the bar) that he was a “pro-plaintiff” judge. Some years ago, I sat next to him on a CLE panel on trial evidence, at which he disparaged judicial gatekeeping,[7] which seemed to support his reputation. The reality seems to be more complex. Judge Bernstein has shown that he can be a critical consumer of complex scientific evidence, and an able gatekeeper under Pennsylvania’s crazy quilt-work pattern of expert witness law. For example, in a hotly contested birth defects case involving sertraline, Judge Bernstein held a pre-trial evidentiary hearing and looked carefully at the proffered testimony of Michael D. Freeman, a chiropractor and self-styled “forensic epidemiologist, and Robert Cabrera, a teratologist. Applying a robust interpretation of Pennsylvania’s Frye rule, Judge Bernstein excluded Freeman and Cabrera’s proffered testimony, and entered summary judgment for defendant Pfizer, Inc. Porter v. Smithkline Beecham Corp., 2016 WL 614572 (Phila. Cty. Ct. Com. Pl.). See “Demonstration of Frye Gatekeeping in Pennsylvania Birth Defects Case” (Oct. 6, 2015).

And Judge Bernstein has shown that he is one of the few judges who takes seriously Rule 705’s requirement that expert witnesses produce their relied upon facts and data at trial, on cross-examination. In Hansen v. Wyeth, Inc., Dr. Harris Busch, a frequent testifier for plaintiffs, glibly opined about the defendant’s negligence. On cross-examination, he adverted to the volumes of depositions and documents he had reviewed, but when defense counsel pressed, the witness was unable to produce and show exactly what he had reviewed. After the jury returned a verdict for the plaintiff, Judge Bernstein set the verdict aside because of the expert witness’s failure to comply with Rule 705. Hansen v. Wyeth, Inc., 72 Pa. D. & C. 4th 225, 2005 WL 1114512, at *13, *19, (Phila. Ct. Common Pleas 2005) (granting new trial on post-trial motion), 77 Pa. D. & C. 4th 501, 2005 WL 3068256 (Phila. Ct. Common Pleas 2005) (opinion in support of affirmance after notice of appeal).

In a recent law review article, Judge Bernstein has issued a withering critique of Rule 703. See Hon. Mark I. Bernstein, “Jury Evaluation of Expert Testimony Under the Federal Rules,” 7 Drexel L. Rev. 239 (2015). Judge Bernstein is clearly dissatisfied with the current approach to expert witnesses in federal court, and he lays almost exclusive blame on Rule 703 and its permission to hide the crucial facts, data, and inferential processes from the jury. In his law review article, Judge Bernstein characterizes Rules 703 and 705 as empowering “the expert to hide personal credibility judgments, to quietly draw conclusions, to individually decide what is proper evidence, and worst of all, to offer opinions without even telling the jury the facts assumed.” Id. at 264. Judge Bernstein cautions that the subversion of the factual predicates for expert witnesses’ opinions under Rule 703 has significant, untoward consequences for the court system. Not only are lawyers allowed to hire professional advocates as expert witnesses, but the availability of such professional witnesses permits and encourages the filing of unnecessary litigation. Id. at 286. Hear hear.

Rule 703’s practical consequence of eliminating the hypothetical question has enabled the expert witness qua advocate, and has up-regulated the trial as a contest of opinions and opiners rather than as an adversarial procedure that is designed to get at the truth. Id. at 266-67. Without having access to real, admissible facts and data, the jury is forced to rely upon proxies for the truth: qualifications, demeanor, and courtroom poise, all of which fail the jury and the system in the end.

As a veteran trial judge, Judge Bernstein makes a persuasive case that the non-disclosure permitted under Rule 703 is not really curable under Rule 705. Id. at 288. If the cross-examination inquiry into reliance material results in the disclosure of inadmissible facts, then judges and the lawyers must deal with the charade of a judicial instruction that the identification of the inadmissible facts is somehow “not for the truth.” Judge Bernstein argues, as have many others, that this “not for the truth” business is an untenable fiction, either not understood or ignored by jurors.

Opposing counsel, of course, may ask for an elucidation of the facts and data relied upon, but when they consider the time and difficulty involved in cross-examining highly experienced, professional witnesses, opposing counsel usually choose to traverse the adverse opinion by presenting their own expert witness’s opinion rather than getting into nettlesome details and risking looking foolish in front of the jury, or even worse, allowing the highly trained adverse expert witness to run off at the mouth.

As powerful as Judge Bernstein’s critique of Rule 703 is, his analysis misses some important points. Lawyers and judges have other motives for not wanting to elicit underlying facts and data: they do not want to “get into the weeds,” and they want to avoid technical questions of valid inference and quality of data. Yet sometimes the truth is in the weeds. Their avoidance of addressing the nature of inference, as well as facts and data, often serves to make gatekeeping a sham.

And then there is the problem that arises from the lack of time, interest, and competence among judges and jurors to understand the technical details of the facts and data, and inferences therefrom, which underlie complex factual disputes in contemporary trials. Cross examination is reduced to the attempt to elicit “sound bites” and “cheap shots,” which can be used in closing argument. This approach is common on both sides of the bar, in trials before judges and juries, and even at so-called Daubert hearings. See David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1, 32 (2015) (“Rule 703 is frequently ignored in Daubert analyses”).

The Rule 702 and 703 pretrial hearing is an opportunity to address the highly technical validity questions, but even then, the process is doomed to failure unless trial judges make adequate time and adopt an attitude of real intellectual curiosity to permit a proper exploration of the evidentiary issues. Trial lawyers often discover that a full exploration is technical and tedious, and that it pisses off the trial judge. As much as judges dislike having to serve as gatekeepers of expert witness opinion testimony, they dislike even more having to assess the reasonableness of individual expert witness’s reliance upon facts and data, especially when this inquiry requires a deep exploration of the methods and materials of each relied upon study.

In favor of something like Rule 703, Bernstein’s critique ignores that there are some facts and data that will never be independently admissible. Epidemiologic studies, with their multiple layers of hearsay, come to mind.

Judge Bernstein, as a reformer, is wrong to suggest that the problem is solely in hiding the facts and data from the jury. Rules 702 and 703 march together, and there are problems with both that require serious attention. See David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1 (2015); see also “On Amending Rule 702 of the Federal Rules of Evidence” (Oct. 17, 2015).

And we should remember that the problem is not solely with juries and their need to see the underlying facts and data. Judges try cases too, and can butcher scientific inference with any help from a lay jury. Then there is the problem of relied upon opinions, discussed above. And then there is the problem of unreasonable reliance of the sort that juries cannot discern even if they see the underlying, relied upon facts and data.

[1] Schachtman, “Rule 703 – The Problem Child of Article VII”; and “The Effective Presentation of Defense Expert Witnesses and Cross-examination of Plaintiffs’ Expert Witnesses”; at the ALI-ABA Course on Opinion and Expert Witness Testimony in State and Federal Courts (February 14-15, 2008).

[2] See Julie E. Seaman, “Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony,” 96 Georgetown L.J. 827 (2008).

[3] Nathan A. Schachtman, “Rule of Evidence 703—Problem Child of Article VII,” 17 Proof 3 (Spring 2009).

[4] “RULE OF EVIDENCE 703 — Problem Child of Article VII” (Sept. 19, 2011)

[5] See “Giving Rule 703 the Cold Shoulder” (May 12, 2012); “New Reference Manual on Scientific Evidence Short Shrifts Rule 703,” (Oct. 16, 2011).

[6] Max Mitchell, “Bernstein Announces Plan to Step Down as Judge,” The Legal Intelligencer (July 29, 2016).

[7] See Schachtman, “Court-Appointed Expert Witnesses,” for Mealey’s Judges & Lawyers in Complex Litigation, Class Actions, Mass Torts, MDL and the Monster Case Conference, in West Palm Beach, Florida (November 8-9, 1999). I don’t recall Judge Bernstein’s exact topic, but I remember he criticized the Pennsylvania Supreme Court’s decision in Blum v. Merrill Dow Pharmaceuticals, 534 Pa. 97, 626 A.2d 537 ( 1993), which reversed a judgment for plaintiffs, and adopted what Judge Bernstein derided as a blending of Frye and Daubert, which he called Fraubert. Judge Bernstein had presided over the Blum trial, which resulted in the verdict for plaintiffs.

Posted in Expert Witnesses, Frye, Rule 702, Rule 703, Underlying Data | Comments Off on Judge Bernstein’s Criticism of Rule 703 of the Federal Rules of Evidence

Excited Utterance Podcast Series on Evidence Law

August 25th, 2016

As a graduate student, I was impressed by the extent to which scholars traveled to other schools to present draft papers and obtain feedback from other faculties and graduate students. As a student, these presentations were interesting opportunities to engage with leading scholars and learn from their new ideas, as well as their mistakes. Law school faculties back in the 1970s seemed like a much less collegial community of scholars, who rarely shared their ideas before publication, and thus did not receive the benefit of feedback from other scholars.

The isolation of legal scholarship has been mitigated in good law schools with the introduction of invited lectures and presentations, often at weekly seminars or luncheons. These meetings can be exciting and inspiring, but obviously participation is limited, and the financial and travel time restraints can be burdensome.

Edward Cheng, who teaches evidence and related subjects at Vanderbilt Law School, has introduced an interesting idea: scholarly podcasts on legal topics in his field of interest. Professor Cheng’s stated hope is that he can produce and provide podcasts, on scholarly topics in the law of evidence, which replicate the faculty seminar for a broader audience.

To be sure, there have been podcasts about specific legal cases, such as the famously successful “Undisclosed” podcast on the Adnan Syed case, which can honestly share in the credit in helping expose corruption and dishonesty in the prosecution of Mr. Syed, and in helping Mr. Syed obtain a new trial. Professor Cheng’s planned podcast series, “Excited Utterance: The Evidence and Proof Podcast,” will be on evidentiary topics more of interest to legal scholars, students, and practitioners. His stated goal is to focus on legal scholarship on evidence law and “to provide a weekly virtual workshop in the world of evidence throughout the academic year” to a broader audience, more efficiently than the sporadic visiting lectures that any one school can sponsor on evidentiary topics.

The project seems worth the effort in theory, and we will see what it produces in practice. The fall 2016 schedule for Cheng’s Excited Utterance podcasts is set out below; and the first one, by Daniel Chapra, is already available at iTunes, and at the Excited Utterance website.

Daniel Capra, “Electronically Stored Information and the Ancient Documents Exception” (Aug. 22, 2016)

Michael Pardo, “Group Agency and Legal Proof, or Why the Jury Is An It” (Aug. 29, 2016)

Mary Fan, “Justice Visualized” (Sept. 5, 2016)

Sachin Pandya, “The Constitutional Accuracy of Legal Presumptions” (Sept. 12, 2016)

Christopher Slobogin, “Gatekeeping Science” (Sept. 19, 2016)

Mark Spottswood, “Unraveling the Conjunction Paradox” (Sept. 26, 2016)

Deryn Strange, “Memory Errors in Alibi Generation” (Oct. 3, 2016)

Sandra Guerra Thompson, “Cops in Lab Coats” (Oct. 10, 2016)

Maggie Wittlin, “Hindsight Evidence” (Oct. 17, 2016)

Stephanos Bibas, “Designing Plea Bargaining from the Ground Up” (Oct. 24, 2016)

Erin Murphy, “Inside the Cell: The Dark Side of Forensic DNA” (Oct. 31, 2016)

Pamela R. Metzger, “Confrontation as a Rule of Production” (Nov. 7, 2016)

Nancy S. Marder, “Juries and Lay Participation: American Perspectives and Global Trends” (Nov. 14, 2016)

Jay Koehler, “Testing for Accuracy in the Forensic Sciences” (Nov. 21, 2016)

Posted in Evidence, Expert Witnesses | Comments Off on Excited Utterance Podcast Series on Evidence Law

Art Historian Expert Testimony

August 15th, 2016

Art appraisal and authentication is sometimes held out as a non-technical and non-scientific area of expertise, and as such, not subject to rigorous testing.[1] But to what extent is this simply excuse mongering for an immature field of study? The law has seen way too much of this sort of rationalization in criminal forensic studies.[2] If an entire field of learning suffers from unreliability because of its reliance upon subjective methodologies, lack of rigor, inability or unwillingness to use measurements, failure to eliminate biases through blinding, and the like, then do expert witnesses in this field receive a “pass” under Rule 702, simply because they are doing reasonably well compared with their professional colleagues?

In the movie Who the Fuck is Jackson Pollack, the late Thomas Hoving was interviewed about the authenticity of a painting claimed to have been “painted” by Jackson Pollack. Hoving “authoritatively,” and with his typical flamboyance, averred that the disputed painting was not a Pollack because the work “did not sing to me like a Pollack.” Hoving did not, however, attempt to record the notes he heard; nor did Hoving speak to what key Pollack usually painted in.

In a recent case of defamation and tortious interference with prospective business benefit, a plaintiff sued over the disparagement of a painting’s authenticity and provenance. As a result of the defendants’ statements that the painting at issue was not created by Peter M. Doig, auction houses refused to sell the painting held by plaintiff. In litigation, the plaintiff proffered an expert witness who opined that the painting was, in fact, created by Doig. The defendants challenged plaintiff’s expert witness as not reliable or relevant under Federal Rule of Evidence 702. Fletcher v. Doig, 13 C 3270, 2016 U.S. Dist. LEXIS 95081 (N.D. Ill. July 21, 2016).

Peter Bartlow, the plaintiff’s expert witness on authenticity, was short on academic credentials. He had gone to college, and finished only one year of graduate study in art history. Bartlow did, however, have 40 years in experience in appraisal and authentication. Fletcher, at *3-4. Beyond qualifications, the defendants complained that Bartlow’s method was

(1) invented for the case,

(2) was too “generic” to establish authenticity, and

(3) failed to show that any claimed generic feature was unique to the work of the artist in question, Peter M. Doig.

The trial court rebuffed this challenge by noting that Peter Bartlow did not have to be an expert specifically in Doig’s work. Fletcher at *7. Similarly, the trial court rejected the defendants’ suggestion that the disputed work must exhibit “unique” features of Doig’s ouevre. Bartlow had made a legally sufficient case for his opinions based upon a qualitative analysis of 45 acknowledged works, using specific qualitative features of 11 known works. Id. At *10. Specifically, Bartlow compared types of paint, similarities in styles, shapes and positioning, and “repeated lineatures” by superimposing lines from known paintings to the questioned ones. Id. With respect to the last of these approaches, the trial court found that Bartlow’s explanation that the approach of superimposing lines to show similarity was simply a refinement of methods commonly used by art appraisers.

By comparison with Thomas Hoving’s subjective auditory methodology, as explained in Who the Fuck, Bartlow’s approach was positively brilliant, even if the challenged methodologies left much to be desired. For instance, Bartlow compared one disputed painting with 45 or so paintings of accepted provenance. No one tested Bartlow’s ability, blinded to provenance, to identify true and false positives of Doig paintings. See “The Eleventh Circuit Confuses Adversarial and Methodological Bias, Manifestly Erroneously” (June 6, 2015); see generally Christopher Robertson & Aaron Kesselheim, Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law (2016).

Interestingly, the Rule 702 challenges in Fletcher were in a case slated to be tried by the bench. The trial court thus toasted the chestnut that trial courts have even greater latitude in admitting expert witness opinion testimony in bench trials, in which “the usual concerns of [Rule 702] – keeping unreliable testimony from the jury – are not present.” Fletcher at *3 (citing Metavante Corp. v. Emigrants Savings Bank, 619 F.3d 648, 670 (7th Cir. 2010)). Citing Seventh Circuit precedent, the trial court, in Fletcher, asserted that the need to rule on admissibility before trial was lessened in a bench trial. Id. (citing In re Salem, 465 F.3d 767, 777 (7th Cir. 2006)). The courts that have taken this position have generally failed to explain why the standard for granting or denying a Rule 702 challenge should be different in a bench trial. Clearly, a bench trial can be just as much a waste of time, money, and energy as a jury trial. Even more clearly, judges can be, and are, snookered by misleading expert witness opinions, and they are also susceptible to their own cognitive biases and the false allure of unreliable opinion testimony, built upon invalid inferences. Men and women do not necessarily see more clearly when wearing black robes, but they can achieve some measure of objectivity by explaining and justifying their gatekeeping opinions in writing, subject to public review, comment, and criticism.

[1] See, e.g. Lees v. Carthage College, 714 F.3d 516, 525 (7^th Cir. 2013) (holding that an expert witness’s testimony on premises security involved non-scientific expertise and knowledge that did “not easily admit of rigorous testing and replication”).

[2] See, e.g., National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward (2009).

Posted in Cognitive Biases, Expert Witnesses, Historian Testimony, Rule 702 | Comments Off on Art Historian Expert Testimony

High, Low and Right-Sided Colonics – Ridding the Courts of Junk Science

July 16th, 2016

Not surprisingly, many of Selikoff’s litigation- and regulatory-driven opinions have not fared well, such as the notions that asbestos causes gastrointestinal cancers and that all asbestos minerals have equal potential and strength to cause mesothelioma. Forty years after Selikoff testified in litigation that occupational asbestos exposure caused an insulator’s colorectal cancer, the Institute of Medicine reviewed the extant evidence and announced that the evidence was “suggestive but not sufficient to infer a causal relationship between asbestos exposure and pharyngeal, stomach, and colorectal cancers.” Jonathan Samet, et al., eds., Institute of Medicine Review of Asbestos: Selected Cancers (2006).[1] The Institute of Medicine’s monograph has fostered a more circumspect approach in some of the federal agencies. The National Cancer Institute’s website now proclaims that the evidence is insufficient to permit a conclusion that asbestos causes non-pulmonary cancers of gastrointestinal tract and throat.[2]

As discussed elsewhere, Selikoff testified as early as 1966 that asbestos causes colorectal cancer, in advance of any meaningful evidence to support such an opinion, and then he, and his protégées, worked hard to lace the scientific literature with their pronouncements on the subject, without disclosing their financial, political, and positional conflicts of interest.[3]

With plaintiffs’ firm’s (Lanier) zealous pursuit of bias information from the University of Idaho, in the LoGuidice case, what are we to make of Selikoff’s and his minions’ dubious ethics of failed disclosure. Do Selikoff and Mount Sinai receive a pass because their asbestos research predated the discovery of ethics? The “Lobby” (as the late Douglas Liddell called Selikoff and his associates)[4] has seriously distorted truth-finding in any number of litigations, but nowhere are the Lobby’s distortions more at work than in lawsuits for claimed asbestos injuries. Here the conflicts of interests truly have had a deleterious effect on the quality of civil justice. As we saw with the Selikoff exceptionalism displayed by the New York Supreme Court in reviewing third-party subpoenas,[5] some courts seem bent on ignoring evidence-based analyses in favor of Mount Sinai faith-based initiatives.

Current Asbestos Litigation Claims Involving Colorectal Cancer

Although Selikoff has passed from the litigation scene, his trainees and followers have lined up at the courthouse door to propagate his opinions. Even before the IOM’s 2006 monograph, more sophisticated epidemiologists consistently rejected the Selikoff conclusion on asbestos and colon cancer, which grew out of Selikoff’s litigation activities.[6] And yet, the minions keep coming.

In the pre-Daubert era, defendants lacked an evidentiary challenge to the Selikoff’s opinion that asbestos caused colorectal cancer. Instead of contesting the legal validity or sufficiency of the plaintiffs’ general causation claims, defendants often focused on the unreliability of the causal attribution for the specific claimant’s disease. These early cases are often misunderstood to be challenges to expert witnesses’ opinions about whether asbestos causes colorectal cancer; they were not.[7]

Of course, after the IOM’s 2006 monograph, active expert witness gatekeeping should eliminate asbestos gastrointestinal cancer claims, but sadly they persist. Perhaps, courts simply considered the issue “grandfathered” in from the era in which judicial scrutiny of expert witness opinion testimony was restricted. Perhaps, defense counsel are failing to frame and support their challenges properly. Perhaps both.

Arthur Frank Jumps the Gate

Although ostensibly a “Frye” state, Pennsylvania judges have, when moved by the occasion, to apply a fairly thorough analysis of proffered expert witness opinion.[8] On occasion, Pennsylvania judges have excluded unreliably or invalidly supported causation opinions, under the Pennsylvania version of the Frye standard. A recent case, however, tried before a Workman’s Compensation Judge (WCJ), and appealed to the Commonwealth Court, shows how inconsistent the application of the standard can be, especially when Selikoff’s legacy views are at issue.

Michael Piatetsky, an architect, died of colorectal cancer. Before his death, he and his wife filed a worker’s compensation claim, in which they alleged that his disease was caused by his workplace exposure to asbestos. Garrison Architects v. Workers’ Comp. Appeal Bd. (Piatetsky), No. 1095 C.D. 2015, Pa. Cmwlth. Ct., 2016 Pa. Commw. Unpub. LEXIS 72 (Jan. 22, 2016) [cited as Piatetsky]. Mr. Piatetsky was an architect, almost certainly knowledgeable about asbestos hazards generally. Despite his knowledge, Piatetsky eschewed personal protective equipment even when working at dusty work sites well marked with warnings. Although he had engaged in culpable conduct, the employer in worker compensation proceedings does not have ordinary negligence defenses, such as contributory negligence or assumption of risk.

In litigating the Piatetsky’s claim, the employer dragged its feet and failed to name an expert witness. Eventually, after many requests for continuances, the Workers’ Compensation Judge barred the employer from presenting an expert witness. With the record closed, and without an expert witness, the Judge understandably ruled in favor of the claimant.

The employer, sans expert witness, had to confront claimant’s expert witness, Arthur L. Frank, a minion of Selikoff and a frequent testifier in asbestos and many other litigations. Frank, of course, opined that asbestos causes colon cancer and that it caused Mr. Piatetsky’s cancer. Mr. Piatetsky’s colon cancer originated on the right side of his colon. Dr. Frank thus emphasized that asbestos causes colon cancer in all locations, but especially on the right side in view of one study’s having concluded “that colon cancer caused by asbestos is more likely to begin on the right side.” Piatetsky at *6.

On appeal, the employer sought relief on several issues, but the only one of interest here is the employer’s argument “that Claimant’s medical expert based his opinion on flimsy medical studies.” Piatetsky at *10. The employer’s appeal seemed to go off the rails with the insistence that the Claimant’s medical opinion was invalid because Dr. Frank relied upon studies not involving architects. Piatetsky at *14. The Commonwealth Court was able to point to testimony, although probably exaggerated, which suggested that Mr. Piatetsky had been heavily exposed, at least at times, and thus his exposure was similar to that in the studies cited by Frank.

With respect to Frank’s right-sided (non-sinister) opinion, the Commonwealth Court framed the employer’s issue as a contention that Dr. Frank’s opinion on the asbestos-relatedness of right-sided colon cancer was “not universally accepted.” But universal acceptance has never been the test or standard for the rejection or acceptance of expert witness opinion testimony in any state. Either the employer badly framed its appeal, or the appellate court badly misstated the employer’s ground for relief. In any event, the Commonwealth Court never addressed the relevant legal standard in its discussion.

The Claimant argued that the hearing Judge had found that Frank’s opinion was based on “numerous studies.” Piatetsky at *15. None of these studies is cited to permit the public to assess the argument and the Court’s acceptance of it. The appellate court made inappropriately short work of this appellate issue by confusing general and specific causation, and invoking Mr. Piatetsky’s age, his lack of family history of colon cancer, Frank’s review of medical records, testimony, and work records, as warranting Frank’s causal inference. None of these factors is relevant to general causation, and none is probative of the specific causation claim. Many if not most colon cancers have no identifiable risk factor, and Dr. Frank had no way to rule out baseline risk, even if there were an increased risk from asbestos exposure. Piatetsky at *16. With no defense expert witness, the employer certainly had a difficult appellate journey. It is hard for the reader of the Commonwealth Court’s opinion to determine whether the case was poorly defended, poorly briefed on appeal, or poorly described by the appellate judges.

In any event, the right-sided ruse of Arthur Frank went unreprimanded. Intellectual due process might have led the appellate court to cite the article at issue, but it failed to do so. It is interesting and curious to see how the appellate court gave a detailed recitation of the controverted facts of asbestos exposure, while how glib the court was when describing the scientific issues and evidence. Nonetheless, the article referenced vaguely, which went uncited by the appellate court, was no doubt the paper: K. Jakobsson, M. Albin & L. Hagmar, “Asbestos, cement, and cancer in the right part of the colon,” 51 Occup. & Envt’l Med. 95 (1994).

These authors 24 observed versus 9.63 expected right-sided colon cancers, and they concluded that there was an increased rate of right-sided colon cancer in the asbestos cement plant workers. Notably the authors’ reference population had a curiously low rate of right-sided colon cancer. For left-sided colon cancer, the authors 9.3 expected cases but observed only 5 cases in the asbestos-cement cohort. Contrary to Frank’s suggestion, the authors did not conclude that right-sided colon cancers had been caused by asbestos; indeed, the authors never reached any conclusion whether asbestos causes colorectal cancer under any circumstances. In their discussion, these authors noted that “[d]espite numerous epidemiological and experimental studies, there is no consensus concerning exposure to asbestos and risks of gastrointestinal cancer.” Jakobsson at 99; see also Dorsett D. Smith, “Does Asbestos Cause Additional Malignancies Other than Lung Cancer,” chap. 11, in Dorsett D. Smith, The Health Effects of Asbestos: An Evidence-based Approach 143, 154 (2015). Even this casual description of the Jakobsson study will awake the learned reader to the multiple comparisons that went on in this cohort study, with outcomes reported for left, right, rectum, and multiple sites, without any adjustment to the level of significance. Risk of right-sided colon cancer was not a pre-specified outcome of the study, and the results of subsequent studies have never corroborated this small cohort study.

A sane understanding of subgroup analyses is important to judicial gatekeeping. See “Sub-group Analyses in Epidemiologic Studies — Dangers of Statistical Significance as a Bright-Line Test” (May 17, 2011). The chapter on statistics in the Reference Manual for Scientific Evidence (3d ed. 2011) has some prudent caveats for multiple comparisons and testing, but neither the chapter on epidemiology, nor the chapter on clinical medicine[9], provides any sense of the dangers of over-interpreting subgroup analyses.

Some commentators have argued that we must not dissuade scientists from doing subgroup analysis, but the issue is not whether they should be done, but how they should be interpreted.[10] Certainly many authors have called for caution in how subgroup analyses are interpreted[11], but apparently Expert Witness Arthur Frank, did not receive the memo, before testifying in the Piatetsky case, and the Commonwealth Court did not before deciding this case.

[1] As good as the IOM process can be on occasion, even its reviews are sometimes less than thorough. The asbestos monograph gave no consideration to alcohol in the causation of laryngeal cancer, and no consideration to smoking in its analysis of asbestos and colorectal cancer. See, e.g., Peter S. Liang, Ting-Yi Chen & Edward Giovannucci, “Cigarette smoking and colorectal cancer incidence and mortality: Systematic review and meta-analysis,” 124 Internat’l J. Cancer 2406, 2410 (2009) (“Our results indicate that both past and current smokers have an increased risk of [colorectal cancer] incidence and mortality. Significantly increased risk was found for current smokers in terms of mortality (RR 5 1.40), former smokers in terms of incidence (RR 5 1.25)”); Lindsay M. Hannan, Eric J. Jacobs and Michael J. Thun, “The Association between Cigarette Smoking and Risk of Colorectal Cancer in a Large Prospective Cohort from the United States,” 18 Cancer Epidemiol., Biomarkers & Prevention 3362 (2009).

[2] National Cancer Institute, “Asbestos Exposure and Cancer Risk” (last visited July 10, 2016) (“In addition to lung cancer and mesothelioma, some studies have suggested an association between asbestos exposure and gastrointestinal and colorectal cancers, as well as an elevated risk for cancers of the throat, kidney, esophagus, and gallbladder (3, 4). However, the evidence is inconclusive.”).

[3] Compare “Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966) (thanking Selikoff for testifying in a colon cancer case) with, Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers, with no acknowledgment of his role in litigation or his funding from the asbestos insulators’ union).

[4] F.D.K. Liddell, “Magic, Menace, Myth and Malice,” 41 Ann. Occup. Hyg. 3, 3 (1997); see also “The Lobby Lives – Lobbyists Attack IARC for Conducting Scientific Research” (Feb. 19, 2013).

[5]

See “The LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law” (July 14, 2016).

[6] See, e.g., Richard Doll & Julian Peto, Asbestos: Effects on health of exposure to asbestos 8 (1985) (“In particular, there are no grounds for believing that gastrointestinal cancers in general are peculiarly likely to be caused by asbestos exposure.”).

[7] See “Landrigan v. The Celotex Corporation, Revisited” (June 4, 2013); Landrigan v. The Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992); Caterinicchio v. Pittsburgh Corning Corp., 127 NJ. 428, 605 A.2d 1092 (1992). In both Landrigan and Caterinicchio, there had been no challenge to the reliability or validity of the plaintiffs’ expert witnesses’ general causation opinions. Instead, the trial courts entered judgments, assuming arguendo that asbestos can cause colorectal cancer (a dubious proposition), on the ground that the low relative risk cited by plaintiffs’ expert witnesses (about 1.5) was factually insufficient to support a verdict for plaintiffs on specific causation. Indeed, the relative risk suggested that the odds were about 2 to 1 in defendants’ favor that the plaintiffs’ colorectal cancers were not caused by asbestos.

[8] See, e.g., Porter v. Smithkline Beecham Corp., Sept. Term 2007, No. 03275. 2016 WL 614572 (Phila. Cty. Com. Pleas, Oct. 5, 2015); “Demonstration of Frye Gatekeeping in Pennsylvania Birth Defects Case” (Oct. 6, 2015).

[9] John B. Wong, Lawrence O. Gostin & Oscar A. Cabrera, “Reference Guide on Medical Testimony,” in Reference Manual for Scientific Evidence 687 (3d ed. 2011).

[10] See, e.g., Phillip I. Good & James W. Hardin, Common Errors in Statistics (and How to Avoid Them) 13 (2003) (proclaiming a scientists’ Bill of Rights under which they should be allowed to conduct subgroup analyses); Ralph I. Horwitz, Burton H. Singer, Robert W. Makuch, Catherine M. Viscoli, “Clinical versus statistical considerations in the design and analysis of clinical research,” 51 J. Clin. Epidemiol. 305 (1998) (arguing for the value of subgroup analyses). In United States v. Harkonen, the federal government prosecuted a scientist for fraud in sending a telecopy that described a clinical trial as “demonstrating” a benefit in a subgroup of a secondary trial outcome. Remarkably, in the Harkonen case, the author, and criminal defendant, was describing a result in a pre-specified outcome, in a plausible but post-hoc subgroup, which result accorded with prior clinical trials and experimental evidence. United States v. Harkonen (D. Calif. 2009); United States v. Harkonen (D. Calif. 2010) (post-trial motions), aff’d, 510 F. App’x 633 (9th Cir. 2013) (unpublished), cert. denied, 134 S. Ct. 824, ___ U.S. ___ (2014); Brief by Scientists And Academics as Amici Curiae In Support Of Petitioner, On Petition For Writ Of Certiorari in the Supreme Court of the United States, W. Scott Harkonen v. United States, No. 13-180 (filed Sept. 4, 2013).

[11] See “Sub-group Analyses in Epidemiologic Studies — Dangers of Statistical Significance as a Bright-Line Test” (May 17, 2011) (collecting commentary); see also Lemuel A. Moyé, Statistical Reasoning in Medicine: The Intuitive P-Value Primer 206, 225 (2d ed. 2006) (noting that subgroup analyses are often misleading: “Fishing expeditions for significance commonly catch only the junk of sampling error”); Victor M. Montori, Roman Jaeschke, Holger J. Schünemann, Mohit Bhandari, Jan L Brozek, P. J. Devereaux & Gordon H Guyatt, “Users’ guide to detecting misleading claims in clinical research reports,” 329 Brit. Med. J. 1093 (2004) (“Beware subgroup analysis”); Susan F. Assmann, Stuart J. Pocock, Laura E. Enos, Linda E. Kasten, “Subgroup analysis and other (mis)uses) of baseline data in clinical trials,” 355 Lancet 1064 (2000); George Davey Smith & Mathias Egger, “Commentary: Incommunicable knowledge? Interpreting and applying the results of clinical trials and meta-analyses,” 51 J. Clin. Epidemiol. 289 (1998) (arguing against post-hoc hypothesis testing); Douglas G. Altman, “Statistical reviewing for medical journals,” 17 Stat. Med. 2662 (1998); Douglas G. Altman, “Commentary: Within trial variation – A false trail?” 51 J. Clin. Epidemiol. 301 (1998) (noting that observed associations are expected to vary across subgroup because of random variability); Christopher Bulpitt, “Subgroup Analysis,” 2 Lancet: 31 (1988).

Posted in Asbestos, Causation, Reference Manual on Scientific Evidence, Rule 702 | Comments Off on High, Low and Right-Sided Colonics – Ridding the Courts of Junk Science

The LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law

July 14th, 2016

The plaintiffs’ bar’s inquisition into funding has been a recurring theme in the asbestos and other litigations.[1] It is thus interesting to compare the friendly reception Justice Moulton gave plaintiffs’ subpoena in LoGiudice[2] with the New York courts’ relatively recent hostility toward a defendant’s subpoena to Mt. Sinai School of Medicine.

A few years ago, Justice Sherry Heitler quashed a defendant’s attempt to subpoena information from the archives of a deceased, former faculty member of the Mount Sinai School of Medicine (“Mt. Sinai”), in Reyniak v. Barnstead Internat’l, No. 102688-08, 2010 NY Slip Op 50689, 2010 WL 1568424 (N.Y. Sup. Ct. Apr. 6, 2010). In a cursory opinion, Justice Heitler cited institutional expense, chilling of research, and scholars’ fears that their unpublished notes, ideas, and observations would become public as a result of litigation. Heitler relied upon and followed an earlier New York state court’s decision that adopted a rather lopsided “balancing” analysis, which permitted the New York courts to ignore the legitimate needs of defendants for access to underlying data.[3]

Remarkably, Justice Heitler failed to cite a federal appellate court’s subsequent decision, which upheld the tobacco companies’ subpoena to Mount Sinai.[4] Her opinion also ignored the important context of the asbestos litigation, in which Selikoff, long since deceased, played a crucial role in fomenting and perpetuating litigation, with tendentious publications and pronouncements. Some might say, “manufacturing certainty.” Perpetuating the Litigation Industry’s Selikoff mythology, Justice Heitler described Selikoff as a ground breaking asbestos researcher, but she either ignored, or was ignorant of, his testimonial adventures, his attempts to influence litigation with ex parte meetings with presiding judges, and his other questionable litigation-related conduct.

Selikoff’s participation in litigation was not always above board. His supposedly ground-breaking work was funded by the insulator’s union, which also sought him out as a testifying expert witness. Among his many testimonial adventures,[5] Selikoff testified as early as 1966 that asbestos causes colorectal cancer, and that it caused a specific claimant’s colorectal cancer. See “Health Hazard Progress Notes: Compensation Advance Made in New York State,” 16(5) Asbestos Worker 13 (May 1966) (thanking Selikoff for his having given testimony to support an insulator’s claim that asbestos caused his colorectal cancer). To be sure, Selikoff made his litigation claims in the scientific literature as well, but without any acknowledgement of his involving in litigation involving this very issue, and his funding by the asbestos union.[6]

Given the dubious provenance of many of Selikoff’s opinions,[7] the disparate treatment of the subpoenas in LoGuidice and Reyniak is irreconcilable. The inflated prestige of Selikoff and Mount Sinai blinded the New York state trial courts to Selikoff’s role in litigation and his biased assessments in science. The judicial hypocrisy may well be the consequence of how the academic community has promoted Selikoff’s reputation, while working assiduously to undermine the reputations of anyone who has been connected with the defense of occupational disease claims. Consider, for instance, how Labor (Marxist) historians have railed against the role that Dr. Anthony Lanza played in personal injury litigation following the Gauley Bridge tunnel construction. See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 27 Social History of Medicine 86 (2013). While these historians deplore Lanza, however, they laud Selikoff. See “British Labor Historians Belaboring American Labor History – Gauley Bridge” (Oct. 14, 2013). Politics and occupational disease litigation are like that.

[1] See In re All Litigation filed by Maune, Raichle, Hartley, French & Mudd LLC v. 3M Co., No. 5-15-0235, Ill. App., 5th Dist.; 2016 Ill. App. Unpub. LEXIS 1392 (June 30, 2016); “Engineers for Automakers Must Unredact Agendas in Madison County Asbestos Litigation,” Madison County Record (July 2016); Lynn A. Lenhart, “Meeting Agendas Between Non-Party Consultant and Counsel for Asbestos Friction Clients Not Privileged” (July 5, 2016). See also Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013), aff’d, 2013 WL 2435565 (N.Y. App. Div., 1st Dep’t June 6, 2013); “A Cautionary Tale on How Not to Sponsor a Scientific Study for Litigation” (June 21, 2013).

[2] LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

[3] See In re R.J. Reynolds Tobacco Co., 136 Misc 2d 282, 285, 518 N.Y.S.2d 729 (Sup. Ct., N.Y. Cty. 1987); see also In re New York County Data Entry Worker Prod. Liab.Litig., No. 14003/92, 1994 WL 87529 (N.Y. Sup. Ct. N.Y. Cty. Jan 31, 1994) (denying discovery because “special circumstances,” vaguely defined were absent).

[4] Mount Sinai School of Medicine v. The American Tobacco Co., 866 F.2d 552 (2d Cir. 1889).

[5] “Selikoff and the Mystery of the Disappearing Testimony” (Dec. 3, 2010).

[6] See, e.g., Irving J. Selikoff, “Epidemiology of gastrointestinal cancer,” 9 Envt’l Health Persp. 299 (1974) (arguing for his causal conclusion between asbestos and all gastrointestinal cancers).movie Her trailer

[7] See generally “Scientific Prestige, Reputation, Authority & The Creation of Scientific Dogmas” (Oct. 4, 2014); “Historians Should Verify Not Vilify or Abilify – The Difficult Case of Irving Selikoff” (Jan. 4, 2014).

Posted in Asbestos, Cognitive Biases, Conflicts of Interest, Expert Witness Discovery | Comments Off on The LoGiudice Inquisitiorial Subpoena & Its Antecedents in N.Y. Law

LoGuidice v. American Talc Co. — Subpoenas to Investigate Funding

July 13th, 2016

Mickey Gunter is a University Distinguished Professor of Geological Sciences, at the University of Idaho. Gunter has long been involved in the mineralogical issues surrounding asbestos contamination and content. He served as a member of an EPA review committee for World Trade Center dust screening method (2005), a member of an ATSDR expert panel on asbestos biomarkers (2006), and as a panel member and reviewer for the Institute of Medicine and National Research Council, Workshop on NIOSH research on asbestos and elongated mineral particles (2009). Gunter has been publishing on asbestos and asbestiform mineralogy for well over a decade.[1]

Gunter has testified for talc companies that have been dragged into mesothelioma litigation, based upon testing he conducted for Colgate-Palmolive [Colgate], starting in 2011. In his testimony, Gunter has acknowledged that University employees and laboratories were involved in testing Colgate-Palmolive’s Cashmere Bouquet talcum powder for asbestos content and contamination. In addition to compensating Gunter, Colgate and others have contributed to the University of Idaho, and provided support for Gunter’s student assistant, Mr. Matthew Sanchez.

In a recent New York trial court ruling, Justice Peter H. Moulton refused a motion to quash plaintiff’s subpoena served on the University of Idaho, designed to obtain evidence to show that Colgate-Palmolive Company’s gifts to the University affected research that has become relevant to their claims that Colgate’s talcum powder was contaminated with asbestos. LoGiudice v. American Talc Co., No. 190253/2014, 2016 N.Y. Misc. LEXIS 2360, (N.Y. Sup., N.Y. Cty., June 20, 2016).

The plaintiffs based their lawsuit on the conjecture that the exposure to Colgate-Palmolive’s talc must contain asbestos because the talc caused mesothelioma. Somehow idiopathic mesothelioma and occult asbestos exposure magically disappear in the plaintiffs’ worldview.

The plaintiffs’ vacuous and circular arguments supposedly thus made their claim of financial bias relevant. Plaintiff’s mesothelioma must have been caused by cosmetic talc, but Gunter’s and Sanchez’s test results found no asbestos in the talc the tested. Therefore, the test results were skewed by financial bias. There is no suggestion in Justice Moultin’s opinion to suggest that there was any error, omission, or misconduct involved in the analytical testing conducted by Professor Gunter and his assistant.

Without much real analysis, Justice Moulton found the subpoena-based inquiry into financial influence relevant and proper. Gunter had testified about asbestos contamination in Cashmere Bouquet and conducted research, published articles, and given speeches[2] on the subject. With minor modifications to the plaintiffs’ subpoena, he denied Colgate’s motion to quash, and allowed the plaintiffs proceed with their investigation. What the disinterested observer might well miss is that Gunter’s views were well formed, articulated, and published in advance of his retention by Colgate in litigation.

Professor Gunter thus represents an example of a litigant’s (Colgate’s) seeking out a highly qualified scientist, with relevant expertise, in part based upon his previously stated views. To be sure, his testing results of the particular talc were not done and available until commissioned by Colgate, but Gunter’s sound views about what would count as an asbestos fiber, based upon mineralogical, scientific criteria (rather than arbitrary legal, regulatory criteria) were well known in advance of retention.

[1] See, e.g., B. D. McNamee, Mickey E. Gunter & C. Viti, “Asbestiform talc from a talc mine near Talcville, New York, U.S.A.: composition, morphology, and genetic relationships with amphiboles,” Canadian Mineralogist (2016 in press); Bryan R. Bandli & Mickey E. Gunter, “Examination of asbestos standard reference materials, amphibole particles of differing morphology, and phase discrimination from talc ores using scanning electron microscopy and transmitted electron backscatter diffraction,” 20 Microscopy and Microanalysis 1805 (2014); B. D. McNamee & Mickey E. Gunter, “Compositional analysis and morphological relationships of amphiboles, talc, and other minerals found in the talc deposits from the Gouverneur Mining District, New York,” 61 The Microscope 147 ((2013) (part one); 62 The Microscope 3 (2014) (part two); Bryan R. Bandli & Mickey E. Gunter, “Mineral identification using electron backscatter diffraction from unpolished specimens: Applications for rapid asbestos identification,” 61 The Microscope 37 (2013); M. R. Van Baalen, Brooke T. Mossman, Mickey E. Gunter & C.A. Francis, “Environmental geology of Belvidere Mt., Vermont,” in Westerman, D.S. and Lathrop, A.S. eds., Guidebook to Field Trips in Vermont and adjacent regions of New Hampshire and New York. New England Intercollegiate Geological Conference, 101^st Annual Meeting, B11-23 (2009); Mickey E. Gunter, “Asbestos sans mineralogy,” 5 Elements 141 (2009); D. M. Levitan, J. M. Hammarstrom, Mickey E. Gunter, R. R. Seal II, I. M. Chou & N. M. Piatak, “Mineralogy of mine waste at the Vermont Asbestos Group mine, Belvidere Mountain, Vermont,” 94 American Mineralogist 1063 (2009); Mickey E. Gunter, E. Belluso & A. Mottana, “Amphiboles: Environmental and health concerns. In Amphiboles: Crystal Chemistry, Occurrences, and Health Concerns,” 67 Reviews in Mineralogy & Geochemistry 453 (2007).

[2] See, e.g., Mickey Gunter, Matthew Sanchez & Richard Van Orden, “Fibrous talc (ribbon talc/”kinky” talc),” at Talc Methods Expert Panel Meeting, United States Pharmacopeial Convention, Rockville, Maryland (June 28, 2016).

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Mens Rea Defense – Good Heart (?) and Empty Head

July 11th, 2016

Extreme Carelessness Versus Gross Negligence

The case of Hilary Clinton offers an interesting fact set for exploring jurisprudential questions about the differences among intentional, reckless, and negligent misconduct. Of course, Clinton’s malfeasance, regardless of the attributed mens rea, has received a good deal of publicity, and ultimately, there should be an exemplary factual record, which can be used to explore the different culpable states of mind.

In her column yesterday, Maureen Dowd captured how many rational United States voters must feel about the irrationality of our national politics, and the Clinton email scandal.[1] James Comey, Director of the FBI, detailed the facts that would probably require President Obama to fire Hilary Clinton if she were still Secretary of State in his administration. Instead, the President is endorsing Clinton to be his successor. Of course, Obama could put the nation at ease, however, by revealing that he never allowed Clinton to have access to REALLY confidential information because he just did not trust her. Perhaps that might improve public perception of his judgment while exculpating her.

Dowd was commenting upon Comey’s conclusion that Hillary Clinton’s use of email for State Department confidential and classified communications, over her own, private e-mail server to handle work-related communications was “extremely careless.” See James B. Comey, “Statement by FBI Director on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System,” FBI Press Office, Washington, D.C. (July 05, 2016). In his press conference, however, Comey announced that the FBI would not recommend criminal charges because in his view Ms. Clinton’s conduct was not proscribed by pertinent statutes. And of course, Obama’s Attorney General, Loretta Lynch, fresh from a tête-à-tête with Ms. Clinton’s husband, who had nominated her to the position of United States Attorney back in 1999, agreed with Comey in a New York minute.

Comey framed his political indictment of extreme carelessness in a way to suggest that although Clinton might not be worthy of a security clearance, she should not be prosecuted:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey acknowledged that “there is evidence of potential violations of the statutes regarding the handling of classified information,” but offered his judgment “that no reasonable prosecutor would bring such a case.”[2]

But why is it that no reasonable prosecute would indict? This is where the Clinton scandal raises questions about inferring mental states and becomes jurisprudentially interesting.

Comey was clear that Clinton had put confidential, classified information at risk, by using her email on foreign soil, where sophisticated, “hostile actors” could have hacked her account without her being able to certify otherwise. Cybersecurity experts were less “politic,” and more willing to go beyond “possible” to claim “probable” hacking had taken place. Clinton had no full-time cyber-security professional monitoring her email system.[3]

Comey ended his performance by claiming that only the facts mattered; opinions were irrelevant. “Just the facts, ma’am.” But his judgments about reasonable prosecutors, obstruction, and disloyalty are not facts; they are opinions, and particularly, they are opinions that involve inferences about mental states, mens rea, and motives.

Comey offered precedent, in the form of prior prosecutions, which according to Comey, all involved elements of intentional conduct, including willful mishandling of classified information, indications of disloyalty to the United States, or efforts to obstruct justice. And Comey just did not see those elements in the Hilary Clinton case.

Were the inferences to these putatively missing elements truly unwarranted? Was Comey really looking or was this a case of cognitive bias or willful blindness? After all, Comey was compelled “on the facts,” to acknowledge that there were over 100 Clinton emails with classified information turned over to the State Department, and a few additional emails found with classified information, which were not turned over to State. Of course no one could say what was in the emails that had been spoliated by Clinton or under her supervision.

Clinton clearly had attempted to obstruct the investigation into her unlawful conduct. She repeatedly lied about her motive for eschewing State Department regulations and protocols. She destroyed evidence. She lied about the content of the emails and their security status. Clinton’s disloyalty to the country was manifest. She adopted a private, unsecured email system not only for her own convenience, for the needs of her own future political candidacy, and so that she could provide access to confidents not in the government, such as unapproved actors, Sidney Blumenthal and William J. Clinton.

Given that the email server belonged to the Clintons, not the State Department, former President Bill Clinton, could check into his Chappaqua, New York, system to catch up on the latest diplomatic initiatives before he set off to give a six-figure speech to foreign potentates. Bill Clinton claimed he does not send emails, but that does not mean he does not read emails, on which may have been blind copied. How convenient to bcc Bill on emails sent to Barack, to get keep him “in the loop”?

Comey’s suggestion that Clinton did not meet the mens rea requirement of the pertinent criminal statute would not seem to hold up under scrutiny. The provisions of the federal criminal code define punishable conduct for “gathering, transmitting, or losing defense information.” 18 U.S. Code § 793. This provision does require intent or gross negligence, which Comey seemed to suggest were absent or not readily proven in the Clinton case. And yet, Clinton intended to gather and transmit defense information contrary to law. Actually “losing information” is not a required element, although even there, Clinton lost information that sat on her server when she chose to destroy it rather than maintain it, as was legally required.

As for gross negligence, Comey himself made the case, although he characterized Clinton’s conduct as “extremely careless.” There does not seem to be any meaningful distinction between gross negligence and extreme carelessness. The current Wikipedia entry for gross negligence illustrates the subtle, sometimes evanescent distinctions among “negligence,” “gross negligence,” and “recklessness”:

“Gross negligence is legally culpable carelessness that shows a conscious and voluntary disregard of the need to use reasonable care, and likely to cause foreseeable grave injury or harm. The difference between “negligence” and “gross negligence” may be subjective since it is a matter of degree. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct deviates from the proverbial “reasonable person.” By analogy, if somebody has been grossly negligent, that means they have fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Prosser and Keeton describe gross negligence as being “the want of even slight or scant care”, and note it as having been described as a lack of care that even a careless person would use. They further note that while some jurisdictions equate the culpability of gross negligence with that of recklessness, most simply differentiate it from simple negligence in its degree.[1]”

Jurisprudes struggle to define gross negligence and distinguish it from ordinarily negligence and recklessness. Consensus and precise definitions are hard to find, and some of the case law definitions appear vacuous or circular. In many analyses, the grossness of someone’s negligence may be something recognized when encountered, much like Potter Stewart’s obscenities. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

The recent litigation over the 2010 oil spill in the Gulf of Mexico, caused by the oil rig, Deepwater Horizon, illustrates the struggle to define gross negligence:

“Gross negligence is a nebulous term that is defined in a multitude of ways, depending on the legal context and the jurisdiction. However, when the “cluster of ideas” surrounding “gross negligence” is considered, the prevailing notion is that gross negligence differs from ordinary negligence in terms of degree, and both are different in kind from reckless, wanton, and willful misconduct.

[…]

Gross negligence, like ordinary negligence, requires only objective, not subjective, proof. While ordinary negligence is a failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances, gross negligence is an extreme departure from the care required under the circumstances or a failure to exercise even slight care. Thus, the United States contends that gross negligence differs from ordinary negligence only in degree, not in kind.”

In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, 2014 WL 4375933 (E.D. La. Sept. 4, 2014).

Some commentators have argued that reckless and careless are synonyms.[4] This argument ignores important distinctions drawn in the criminal law, and in the law of torts. Perhaps the clearest distinction between recklessness and negligence is set out in the Model Penal Code’s definitions of the kinds of culpability. MPC § 2.02 (2). Subsection (c) defines “recklessly” as follows:

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

And Subsection (d) defines “negligently” as follows:

“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

So both recklessness and (criminal) negligence involve “gross” deviations, but recklessness requires a greater subjective awareness, whereas negligence can be shown using an objective, “reasonable person” test.

Given Comey’s recitation of “just the facts,” and adding in his Capitol Hill testimony, it would seem that a rookie prosecutor could indict and convict Ms. Clinton of intentional or grossly negligent mishandling of confidential information, as well as a conspiracy to cover it up.

Of course, there might be good political reasons not to indict Clinton, including that it might cause the election of Donald Trump, but that would require adverting to facts beyond the Clinton case.

[1] Maureen Dowd, “The Clinton Contamination,” New York Times (July 10, 2016).

[2] See Daniel Fisher, “FBI Calls Hillary’s E-Mail Habits ‘Extremely Careless’ But Not Criminal,” Forbes (July 5, 2016).

[3] David E. Sanger, “Hillary Clinton’s Email Was Probably Hacked, Experts Say,” New York Times (July 6, 2016).

[4] See Craig Bannister, “A President Can’t Be Reckless” National Review (July 2016).

Posted in Cognitive Biases | Comments Off on Mens Rea Defense – Good Heart (?) and Empty Head

Lawyer and Economist Expert Witnesses Fail the t-Test

July 7th, 2016

Chad L. Staller is a lawyer and James Markham is an economist. The two testify frequently in litigation. They are principals in a litigation-mill known as the Center for Forensic Economic Studies (CFES), which has been a provider of damages opinions-for-hire for decades.

According to its website, the CFES is:

“a leading provider of expert economic analysis and testimony. Our economists and statisticians consult on matters arising in litigation, with a focus on the analysis of economic loss and expert witness testimony on damages.

We assist with discovery, uncover key data, critique opposing claims and produce clear, credible reports and expert testimony. Attorneys and their clients have relied on our expertise in thousands of cases in jurisdictions across the country.”

Modesty was never CFES’s strong suit. CFES was founded by Chad Staller’s father, the late Jerome M. Staller, who infused the run-away inflation of the early 1980s into his reports for plaintiffs in personal injury actions. When this propensity for inflation brought in a large volume of litigation consulting, Staller brought on Brian P. Sullivan. The CFES website notes that Sullivan’s “courtroom demeanor was a model of modesty and good humor, yet he was known to be merciless when cross examined by an opposing attorney.” My personal recollection is that Sullivan sweated profusely on cross-examination. In one case, in which I cross-examined him, Sullivan had added several figures incorrectly to the plaintiff’s detriment. My cross-examination irked the trial judge (Judge Dowling, who was easily irked) to the point that he interrupted me to ask why I was wasting time to point out an error that favored the defense. The question allowed me to give a short summation about how I thought the jury might want to know that the witness, Sullivan, had such difficulty in adding uncomplicated numbers.

In Butt v. v. United Brotherhood of Carpenters & Joiners of America, 2016 WL 3365772 (E.D. Pa. June 16, 2016) [cited as Butt], plaintiffs, women union members sued for alleged disparate treatment, which treatment supposedly caused them to have lower incomes than male union members. To support their claims, the women produced reports prepared by CFES’s Chad Staller and James Markham. Counsel for the union challenged the admissibility of the proffered opinions under Rule 702. The magistrate judge sustained the Rule 702 challenges, in an opinion that questioned the reliability and ability of the challenged putative expert witnesses.[1]

Staller and Markham apparently had proffered a “t-test,” which, in their opinion, showed a statistically significant disparity in male and female hours worked, “not attributable to chance.” Butt at *1. Staller and Markham failed, however, to explain or justify their use of the t-test. The sample size in their analysis included 17 women and 388 men on average across ten years. The magistrate judge noted serious reservations over the CFES analysis’s failure to specify how many men or women were employed in any given year. Plaintiffs’ counsel improvidently attempted to support the CFES analysis by adverting to the Reference Manual on Scientific Evidence (3d ed. 2011), which properly notes that the t-test is designed for small samples, but also issues the caveat that “[a] t-test is not appropriate for small samples drawn from a population that is not normal.” Butt at *1 n.2. The CFES reports, submitted without statistical analysis output, apparently did not attempt to justify the assumption of normality; nor did they proffer a non-parametric analysis.

Putting aside the plaintiffs’ expert witnesses’ failure to explain and justify its use of the t-test, the magistrate judge took issue with the assumption that a comparison of average salaries between the genders was an appropriate analysis in the first place. Butt at *2.

First, the CFES reports assigned damages beyond the years used in their data analysis, which ended in 2012. This extrapolation was especially speculative unwarranted given that union carpenter working hours were trending downward after 2009. Butt at *3. Second, and even more seriously, the magistrate judge saw that no useful comparison could be made between male and female salaries without taking into account several important additional variables such as their individual skills, the extent that individual carpenters solicited employment, or used referral systems, or accepted out-of-town employment. Butt at *3.[2] Without an appropriate multivariate analysis, the CFES reports could not conclude that the discrepancy in hours worked was caused by, rather than merely correlated with, gender. Butt at *4.[3]

[1] See Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 322 (3d Cir. 2003) (affirming exclusion of “speculative and unreliable” expert evidence).

[2] citing Stair v. Lehigh Valley Carpenters Local Union No. 600 of United Brotherhood of Carpenters and Joiners of America, No. Civ. A. 91-1507, 1993 WL 235491, at *7, *18 (E.D. Pa. July 24, 1993) (Huyett, J.), aff’d, 43 F.3d 1463 (3d Cir. 1994) (“Many variables determine the number of hours worked by a carpenter: whether the carpenter solicits employment, whether he or she uses the referral system, whether an employer asks for that carpenter by name, whether the carpenter will accept out of town employment, and whether the carpenter has the skills requested by an employer when that employer calls the Union for a referral.”

[3] Interesting cases cited by the magistrate judge in support included Molthan v. Temple University, 778 F.2d 955, 963 (3d Cir. 1985) (“Because the considerations affecting promotion decisions may differ greatly from one department to another, statistical evidence of a general underrepresentation of women in the position of full professor adds little to a disparate treatment claim.”); Riding v. Kaufmann’s Dep’t Store, 220 F.Supp. 2d 442, 459 (W.D. Pa. 2002) (“Plaintiff’s statistical evidence is mildly interesting, but she does not put the data in context (how old were the women?) [or] tell us what to do with it or what inferences should be gathered from it…”); Brown v. Cost Co., No. Civ. A. 03-224 ERIE, 2006 WL 544296, at *3 (W.D. Pa. Mar. 3, 2006) (excluding statistical evidence proffered in support of claims of disparate treatment).

Posted in Rule 702, statistical evidence | Comments Off on Lawyer and Economist Expert Witnesses Fail the t-Test

National Academies’ Teaching Modules on Scientific Policy Issues

June 30th, 2016

Today, the National Academies of Sciences, Engineering, and Medicine announced its release of nine teaching modules to help public policy decision makers and students in professional schools understand the role of science in policy decision making.[1] The modules were developed by university faculty members for the use of other faculty who want to help their students appreciate the complexity and nuances of the evidence for and against scientific claims.

A group within the Academies’ Committee on Science, Technology and the Law supervised the development of the teaching modules, which are now publicly available at the Academies’ website. The Committee was chaired by Paul Brest, former dean and professor emeritus (active), Stanford Law School, and Saul Perlmutter, Franklin W. and Karen Weber Dabby Chair, University of California, Berkeley, and senior scientist, E.O. Lawrence Berkeley National Laboratory. The Gordon and Betty Moore Foundation and the National Biomedical Research Foundation sponsored the development of the modules.

The modules use case studies to illustrate basic scientific and statistical principles involved in contemporary scientific issues that have significant policy implications. The modules are designed to help future policy and decision makers understand and evaluate the scientific evidence that they will doubtlessly encounter. To date, nine modules have been developed and released, in the hope that they will serve as references and examples for future teaching modules.

The nine modules prepared to date are:

Models: Scientific Practice in Context

prepared by:
– Elizabeth Fisher, Professor of Environmental Law, Faculty of Law and Corpus Christi College, Oxford University
– Pasky Pascual, Environmental Protection Agency
– Wendy Wagner, Joe A. Worsham Centennial Professor, University of Texas at Austin School of Law

The Interpretation of DNA Evidence: A Case Study in Probabilities

prepared by:

– David H. Kaye, Associate Dean for Research and Distinguished Professor, The Pennsylvania State University (Penn State Law)

Translating Science into Policy: The Role of Decision Science

prepared by:

– Paul Brest, Former Dean and Professor Emeritus (active), Stanford Law School

Placing a Bet: A New Therapy for Parkinson’s Disease

prepared by:

– Kevin W. Sharer, Senior Lecturer, Harvard Business School, Harvard University

Shale Gas Development

prepared by:

– John D. Graham, Dean, School of Public and Environmental Affairs, Indiana University
– John A. Rupp, Adjunct Instructor, School of Public and Environmental Affairs, and Senior Research Scientist, Indiana Geological Survey, Indiana University
– Adam V. Maltese, Associate Professor of Science Education, School of Education, and Adjunct Faculty in Department of Geological Sciences, Indiana University

Drug-Induced Birth Defects: Exploring the Intersection of Regulation, Medicine, Science, and Law

prepared by:

– Nathan A. Schachtman, Lecturer in Law, Columbia Law School

Vaccines

prepared by:

– Arturo Casadevall, Professor and Chair, W. Harry Feinstone Department of Molecular Microbiology and Immunology, Johns Hopkins University Bloomberg School of Public Health

Forensic Pattern Recognition Evidence

prepared by:

– Simon A. Cole, Professor, Department of Criminology, Law, and Society, Director, Newkirk Center for Science and Society, University of California, Irvine
– Alyse Berthental, Ph.D. Candidate, Department of Criminology, Law, and Society, University of California, Irvine
– Jaclyn Seelagy, Scholar, PULSE (Program on Understanding Law, Science, and Evidence), University of California, Los Angeles School of Law

Scientific Evidence of Factual Causation

prepared by:

– Steve C. Gold, Professor of Law, Rutgers School of Law-Newark
– Michael D. Green, Williams Professor of Law, Wake Forest University School of Law
– Joseph Sanders, A.A. White Professor of Law, University of Houston Law Center

[1] See “Academies Release Educational Modules to Help Future Policymakers and Other Professional-School Students Understand the Role of Science in Decision Making” (June 30, 2016).

Posted in Causation, Scientific Evidence, statistical evidence | Comments Off on National Academies’ Teaching Modules on Scientific Policy Issues

Whether to Conduct Depositions of Expert Witnesses

June 23rd, 2016

In a Litigation magazine article, Gregory Joseph sets out some strong reasons to consider for not conducting depositions of expert witnesses under the revised 2010 Federal Rules of Civil Procedure (FRCP). See Gregory P. Joseph, “The Temptation to Depose Every Expert,” 40 Litigation 35 (Winter 2014) [cited below as Joseph]. Joseph points out that FRCP 26(a)(2)(B) requires parties to disclose, for all retained expert witnesses, “all opinions” and the “full factual basis” of all their opinions, among other things. The rule is exacting. All opinions includes “a complete statement of all opinions the witness will express and the basis and reasons for them.” FRCP 26(a)(2)(B)(i). And a full factual basis includes “the facts or data considered by the witness in forming” all of the opinions disclosed in the report. FRCP 26(a)(2)(B)(ii) (emphasis added).

Joseph argues that the breadth of the required disclosure, combined with sanctions for retained expert witnesses’s attempting to testify beyond the four corners of their reports, should give lawyers sufficient assurances in many instances to forego conducting depositions of expert witnesses.

Joseph notes that the FRCP creates a presumptive mandatory sanction of exclusion for undisclosed expert testimony. FRCP 37(c)(1).[1] Joseph offers other arguments beyond the supposed comfort given by the “four corners” rule set out in the FRCP. Joseph at 36-37. First, the deposition may “reopen” discovery by giving expert witnesses opportunities to expand upon the four corners of their reports. Although some courts will limit what expert witnesses can throw over the transom at depositions, a supervising magistrate or district judge may not regard the expansion upon the disclosures in the report as “sandbagging,” and thus fail exclude the arguably new opinions or bases. Joseph cites a few cases in which courts condemned the sandbagging of counsel by the offering of new opinions in depositions, but points out that exclusion is this circumstance is highly discretionary. The court is not required to exclude, and it may permit the new material, or allow the new material with an inadequate amount of additional time in deposition. So taking the deposition has risks.

Joseph argues also that depositions may educate expert witnesses about intended trial cross-examination, and help adversary counsel better prepare direct examination and anticipatory rebuttal. Furthermore, the new protections afforded expert witnesses from discovery into drafts of reports and most communications with retaining counsel take away one of the previous reasons to conduct depositions.

To be sure, some additional areas of discovery may be covered by interrogatories, Rule 34 document requests, or Rule 45 subpoenas directly to the expert witnesses. These non-deposition methods of discovery, however, will not reach valuable topics of discovery such as oral communications between retained expert witnesses and professional colleagues, consulting expert witnesses, the retaining lawyers’ clients, and other persons. The suggested alternative discovery methods also suffer in that they will provoke canned answers, written by counsel, and not the ingenuous, unrehearsed responses of expert witnesses required to give answers directly and without resort to “privileged” consultation with retaining counsel.

The revised FRCP carve out important areas of inquiry from the new protections against discovery into draft reports and with counsel. Counsel still are permitted to inquire into compensation, the retaining attorneys’ provision of “facts or data” considered by the witnesses, and retaining attorneys’ identification of assumptions “relied” upon by the witnesses. Invoices can, of course, be subpoenaed, but often oral examination is required to discover whether the invoices have been paid, whether they are contingent, or whether payment flows to the personal benefit of the expert witnesses. Inquiring into what “facts or data” were provided by retaining counsel can be attempted by written discovery, but the written responses will likely be hedged and unclear, and the responses will not distinguish which lawyer-provided “facts or data” were actually relied upon.

The FRCP clearly allow discovery into retaining attorneys’ provision of assumptions relied upon by expert witnesses, but clear, unrehearsed answers to questions about what was assumed and relied upon, as opposed to merely considered, are not likely to be forthcoming in written discovery. Furthermore, if there will be any fair opportunity to explore the significance of relying upon counsel’s assumptions, only a deposition will likely allow for the extemporaneous, first-person expression of expert witnesses’ opinions. Questions into expert witnesses’ opinions based upon hypothetical questions that contradict the assumptions given, or into opinions about the level of confidence or knowledge witnesses have about the correctness of the assumptions, are likely to be effective only in face-to-face encounters.

There are important additional reasons for taking expert witness depositions, not addressed in Joseph’s article. Litigation-savvy expert witnesses will often glibly assert that they have “considered” all the relevant studies, data, and facts. If written discovery is propounded to inquire whether a study omitted from the “consideration” list in the FRCP report was not considered, the study, if meaningful, will be added to the list in the written response with a feeble excuse that it was inadvertently omitted from the list. And the omission will likely be judged harmless because the party seeking discovery obviously knew about the omitted study already. Written discovery into what studies, data, or facts were considered but not relied upon will also yield highly rehearsed answers, and interrogatories will not permit inquiries into the fine details of key studies.

The pertinent sections of the FRCP do not require expert witness reports to distinguish what the witnesses have considered from what they have actually relied upon. Written discovery could be propounded, but again, it will not likely yield clear answers such as might be had with follow up inquiry into what was considered but not relied upon, and why was reliance rejected. The deposition upon oral examination has the benefit of permitting follow up questions into why some studies were relied upon for some parts but not others, or were considered but completely excluded from actual reliance. The opportunity to field incoherent, inconsistent rationales for inclusions and exclusions that establish expert witness cherry picking will be lost without the face-to-face encounter allowed by oral examination.

With some courts engaged in retrograde refusal to apply Rule 702 as enacted, some expert witnesses have been encouraged to employ vague, invalid, and unreliable methodologies, such as the so-called “weight of the evidence” approach. Oral examination will be necessary to establish expert witnesses’ weighting considerations, their inclusion and exclusion criteria, and to test their consistency in applying these considerations and criteria, across the entire evidentiary base for conclusions.

Concessions to Be Obtained

Written discovery is not well suited to inquire into general principles of interpreting data and studies, data integrity and validity, and validity of inference. Interrogatories are too difficult to draft in sufficient detail to permit setting up an examination that will lead to the disqualification of the expert witness under Rule 702. Obtaining concise, clear concessions about basic methodological principles is crucial to structuring persuasive cross-examinations. Of course, if the deponent balks at accepting generally accepted principles, then this testimony is filed under Rule 702 motion, rather than trial cross-examination.

Furthermore, written discovery is poorly suited to identify whether expert witnesses have subject-matter weaknesses. Interrogatories are the wrong discovery tool to conduct pop-quizzes on arcane statistical and scientific methodologies. Lawyers rightfully do not want to get into show-game style quizzes to test expert witnesses’ understanding of the esoteric, but important, methodologies used in the studies relied upon, in front of a jury. Rule 26 reports rarely announce that witnesses have had no meaningful training in statistics and that they have no idea what assumptions were made in various statistical analyses or tests in the studies that they have embraced and relied upon for their opinions.

Expert witnesses have social and professional connections not always apparent from their curriculum vitae, their Rule 26 reports, or their websites. Expert witnesses are not likely, for instance, to disclose that they are Marxists, who believe that corporations are evil and mercenary, and cannot be trusted to tell the truth in litigation.[2]

As noted, the FRCP requires disclosure of facts or data considered, which disclosure is usually inadequate to permit distinguishing what was actually relied upon in forming opinions. But what about opinions considered or relied upon? FRCP does not address reliance upon opinions; nor does Rule 703. Expert witnesses may contend that their opinions are not “based upon” others’ opinions, but that their opinions are strengthened and corroborated by the opinions of others. The FRCP do not specifically call for disclosure of opinions relied upon by retained expert witnesses, and adversary counsel can be trusted to argue that there were no obligations to disclose opinions or the identity of “authoritative” treatises and publications. If there is no entitlement to disclosure, there can be no surprise and prejudice.

Interpreting the scope of the report may not be as clear as Joseph suggests. Rule 26 reports usually contain some opinions with sufficient breadth and generality that foregoing depositions becomes a game of Russian roulette. Trial judges may not look kindly upon “scope of the report” objections, made at trial, when the objecting counsel had the opportunity to conduct an examination, and the report language is sufficiently broad to intimate the witness’s opinion at trial. Judges seem to have great hindsight vision, and they may well distrust counsel’s objections as a different sort of sandbagging. An entire strategy of restraint may be sunk by a quick, discretionary ruling on “scope of the report,” which often will favor the proponent of the witness.

Joseph is correct that many depositions fail to accomplish much, but such failures are not the result of how wonderful the revised FRCP are. Failed depositions are more likely to result from the lack of preparation, creativity and knowledge of counsel in carrying out coherent, effective depositions.

[1] See Primus v. United States, 389 F.3d 231, 234 (1^st Cir. 2004); Vaughn v. City of Lebanon, 18 F.App’x 252, 263 (6^th Cir. 2001); Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7^th Cir. 2004). See also Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (characterizing exclusion as discretionary, but upholding district court’s exclusion).

[2] Such as may be seen with expert witnesses who belong to the Committees of Correspondence for Democracy and Socialism, a branch of the Communist Party USA, formed in 1992, after the demise of the Soviet Union.

Posted in Expert Witness Discovery, Expert Witnesses | Comments Off on Whether to Conduct Depositions of Expert Witnesses

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.