Previously, I have argued that the learned treatise exception to the rule against hearsay poses significant and serious tensions with the requirements of Federal Rules of Evidence 702, 703, and 705.  Permitting a “learned treatise” to be considered for its truth conflicts with the essential learning of the Daubert case; namely, qualifications do not suffice to establish reliability.  The exception conflicts with science’s rejection of authority in favor of sound inferences from accurate data and facts.  The learned treatise exception ignores that authors often have their own agendas and myriad biases, which cannot be adequately explored by counsel or fully seen by the trier of fact.

As troublesome as the learned treatise hearsay is on scientific issues, its use on issues of social science and history, is even more disturbing.  The standards for what is published as “history” are distressingly poor.  Perhaps the exception has a role for proving “almanac-type facts,” which would be the subject of judicial notice in any event.

The learned treatise exception can be invoked by a witness on direct examination to support his opinions, or on cross-examination by the examiner to challenge the witness’s opinions.  If used on direct examination, the exception raises the question why the witness must rely upon the opinion of another expert, who is unavailable for confrontation.  If the testifying witness is an expert, then what should matter is his opinion and how he arrived at it.  If the testifying witness needs an opinion of a textbook author, then perhaps the testifying witness is not qualified after all.  Of course, the testifying expert witness may wish to accredit his opinion by showing that “learned treatises” agree with him, but accrediting the opinion before it is attacked seems like a waste of time.

This last point has a further consequence for the form of expert witnesses’ opinions now allowed by trial courts.  Expert witnesses sometimes carelessly state that they are relying upon the published article, but the typical scientific article is broken down into discrete sections:  (1) a statement of the issue; (2) materials and methods; (3) results; and (4) discussion.  What exactly do expert witnesses rely upon when they cite a published study?  The materials and methods, along with the results, represent the essential constituents of a study.  The statement of the issue, and the discussion section, are filled with extrajudicial opinions that need not, and should not, be admitted into evidence, or disclosed to the jury.  There is no “necessity” for such a practice – although it is often countenanced – because the witness on the stand can provide his opinion of where the study fits into the available evidence, without becoming a conduit for the speculation and opinion that fills the introductions and conclusions of most published articles.  Peer review, which is of little help in any event, is particularly useless in ensuring the quality of the speculative opinion in discussion sections.  Authors are usually allowed much greater latitude in discussing the results than in reporting the data and data analyses.

The loose practice typically continues on cross-examination, when adverse counsel is permitted to ask whether the witness agrees or disagrees with the speculative opinions in “relied-upon” papers, on the theory that the papers appeared on the witnesses Rule 26 witness list.  Strictly speaking, the witness has not relied upon, nor need he rely upon, the introductions and discussions of the studies that make up the basis for his opinions.  It is time to tighten up the practice.  Perhaps the Third Edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence, which should come out next year, will help.

The time has come to abandon or modify the learned treatise exception to the rule against hearsay. The federal version of this rule, Federal Rule of Evidence 803 (18) provides:

“Learned treatises.—To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.”

The rule is great fun for trial lawyers; it holds open the possibility to embarrass a witness on the stand with the statements of a “learned treatise,” written by a leading light in the witness’s field. Learned treatise cross-examination is not only fun, but it is practical and efficacious. The jury does not need to understand the statement from the witness or the contradictory statement from the text; it need understand only that the witness, who typically has never written on the subject, has been contradicted by a published statement. The learned treatise exception, however, is not well designed to advance scientific fact finding or the discovery of the truth. The exception uses publication, and endorsement by a witness, as a proxy for scientific reliability without any meaningful examination of the epistemic warrant for the treatise’s statement.

The learned treatise rule, incorporated into Federal Rule of Evidence 803(18), is inconsistent with the requirements of Rules 702 and 703. The point of these rules is that expert witness opinion must be helpful, and thus reliable, and that it must reasonably rely upon facts and data. Rule 705 permits the cross-examiner to insist that expert witnesses disclose the bases for their opinions. Statements from “learned treatises” have none of these evidentiary requirements or safeguards, and thus are suspect. Even if one were to adopt a Reaganesque “trust but verify” approach to expert witnesses, there is no way to verify the reliability of many statements from “learned treatises” because there is no practical method of inquiring into what the absent author has relied upon, or the reasonableness of that reliance. Furthermore, there is no way to inquire into the biases, prejudices, conflicts of interests, and enthusiasms of the absent author.

The problems engendered by Rule 803(18) have been put into bold relief by Supreme Court’s reading of Rule 702, and the subsequent Congressional revision of Rule 702. Rule 803(18) is a rule that excuses the absence of the hearsay declarant on grounds of the “trustworthiness” of the hearsay, but Rules 702 and 703 impose different, more stringent requirements for expert witness opinion testimony.

The comments to Rule 803(18) attribute the following basis for the rule to Wigmore:

“The foundation of the minority view is that the hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake. 6 Wigmore § 1692.”

Wigmore offered no empirical support for his high regard for treatises. Perhaps as a treatise writer he was biased in his assessment! Other evidence writers similarly favored the admissibility of learned treatises, and certainly their use for impeachment purposes. See, e.g., E. Cleary, et al., eds., McCormick on Evidence § 321, at 899 (3d ed. 1984); Morgan, Basic Problems of Evidence 366 (1962). The suggestion that a treatise writer has no bias with respect to a particular case misses the point that the writer may have a bias that applies to the class of cases, which he or she hopes to influence. The quaint notion that treatise writers seek to state their opinions accurately and truthfully ignores the obvious reality that writers’ opinions may be unreliable or unsupported. Even though publication may lead to reading and critical evaluation by some experts in the field, this eventuality is clearly insufficient to inhibit writers from stating opinions with incomplete and incorrect bases. Indeed, Wigmore’s assertions about the nature of treatise writing are wonderfully self-referentially illustrative of the flaws in opinions advanced in treatises.

The publication of professional books and journals publishing, at the turn of the last century, were certainly constrained by greater expense and smaller audiences than they are today. With the proliferation of publishers and journals, professional authors are rarely unable to get the most tendentious statements into print. Furthermore, there is now a great deal of empirical evidence that peer review is an extraordinarily weak screen for error and unreliability in published works.

Wigmore, in seeking to make scientific opinion more accessible, misrepresented scientific method and thinking, which is based upon facts, data, and reliable inference, not upon authority. The Royal Society, chartered in 1661 for “improving natural knowledge,” adopted its motto, “Nullius in Verba,” (On no one’s word) in 1663. The founders of the Royal Society meant to elevate the role of facts, determined experimentally, over authority in scientific method and discourse. http://royalsociety.org/nullius-in-verba/ [last visited August 20, 2010] A more contemporary statement from the last century comes from Albert Einstein. When Einstein’s detractors wrote a book, One hundred Authors Against Einstein, to deprecate and disprove his theory of relativity, Einstein reportedly stated, “If I were wrong, then one would have been enough.”

The learned treatise exception distracts the fact finder from the data and the reasoning behind the opinion at issue, and focuses on the opinions of out-of-court declarants. This is bad scientific practice and bad law. There are better ways for the law to structure cross-examination. Rule 26 of the Federal Rules of Civil Procedure requires disclosure of all the materials that expert witnesses have considered in arriving at their opinions. The cross-examiner thus has available the basis for showing that witnesses have failed to consider facts and data that cut against their opinions. To the extent that state law does not require similar disclosures, it should.

The learned treatise exception is a relic of an old way of thinking about scientific opinions. Its time has come and gone; now it should leave.

In My Grandfather’s Son, Justice Thomas uses autobiography to explain and defend his views on affirmative action, and to settle some personal and political scores.  Obviously, Justice Thomas focuses on Anita Hall’s accusations, which were leaked by the Senate Judiciary Committee, and then made the focus of that Committee’s reconvening.  Politicians and journalists who treated Thomas shabbily are called out, and others who helped and supported him, such as Senator Danforth, are hailed.  What would be the point of writing an autobiography if not to settle old scores, and to advance one’s own narrative of events?

Some of the Justice’s targets are surprising.  There is a not much good that Thomas finds to say about the Yale Law School.  In Thomas’ view, Yale’s affirmative action program devalued his accomplishments, both before arriving at Yale, and since leaving.

Interestingly, Thomas candidly reveals that he drank to excess, while an undergraduate at Holy Cross, as a law student, at Yale, and through his first marriage, its dissolution, and its aftermath.  When the FBI interviewed Thomas, and asked him about the use of illegal drugs (marijuana), Thomas answered that he “did not recall,” because he may have tried marijuana while intoxicated by alcohol at college.  Thomas does not discuss whether drinking after law school, and especially after his separation and divorce, ever affected his judgment or recall of events, which are the subject of Hill’s allegations.

For tort lawyers, Thomas’ autobiography holds another surprise:  the extent to which he engages in non-evidence-based accusations against medications and chemicals.  For a while, Thomas worked in the legal department of Monsanto Corporation, but he was unsettled by defending the company’s chemicals, which he believed were so dangerous to humans.  Thomas reached this judgment by his own reading internal company animal studies. 

Elsewhere in his autobiography, Thomas describes a worker who experienced hemiparalysis, which was attributed to a stroke, but which he believed was the result of creosote exposure.  Thomas refers back to studies he believed he saw on the “neurotoxicity” of creosote, which can cause just this sort of neurological damage.  Thomas is rather vague about the sources for his belief that cresote would cause hemiparalysis, which would be a remarkable outcome for such an exposure.  Later in his autobiography, Thomas describes the death of his grandfather, who had worked so hard to help him achieve his successes.  His grandfather, whom he called “Daddy,” died of a stroke.  Thomas suggests that the stroke resulted from Daddy’s use of a cough-cold remedy, and other medications he was taking.  Elsewhere, however, Thomas describes Daddy as having been a smoker, and as having had a diet of fried and fatty foods.  Thomas does not comment whether his grandfather had been diagnosed with high blood pressure, but the diet and lifestyle described certainly provided ample risk factors for a stroke. 

Somehow Thomas’ attribution of causality for his grandfather’s stroke seems fanciful, although perhaps we can excuse his thinking as having been muddled by his emotion.

I suppose most readers will focus on, and pick apart, the narrative about Anita Hill, but I found Thomas’ views about medical causation more interesting and disturbing because they were asides that seemed not to fit within the narrative, and because they were so thoroughly devoid of scientific basis or reasoning.  The inclusion of these judgments about medical causation was more concerning to me than his bitter criticisms of “liberals,” but perhaps that is just me.

The International Commission on Occupational Health (ICOH) is a group that advocates for workers’ health and safety.  How could anyone be against workers’ health and safety?  Still, the group is known for its left-of-center politics, and so it was not the most likely forum for a lawyer who has worked mostly on the defense side of products liability cases.

Last month, the ICOH sponsored its fourth international meeting on the history of occupational and environmental health.  Professor Rosner, an historian who has been frequently listed as an expert witness in silicosis cases, was slated to speak.  Last year, Rosner and his co-author, Gerald Markowitz, published three articles, largely repetitive, in which they called me out on my failure to appreciate the true method and meaning of historians’ scholarship.  The ICOH meeting featured a workshop on historical methodology, along with numerous presentations from historians who specialize in occupational history.  I decided I would attend to see whether I truly needed remedial education, and whether I had unfairly criticized Professor Rosner’s work on silicosis.  Additionally, I decided I would present a paper on the role of historians in product liability cases, to subject my ideas to feedback, criticism, and comment from a wider audience.  And so John Ulizio and I submitted an abstract, “Courting Clio,” to the ICOH, for its conference on the history of occupational and environmental health.  To our surprise, the abstract was accepted for a platform presentation.

The first day of the ICOH conference was a workshop on historical method.  The presentations was comforting in that they mostly confirmed my understanding of what historians do.  One historian directly analogized historical scholarship to what lawyers do in terms of collecting and marshalling evidence, and drawing inferences to conclusions.  The presenters also confirmed what I had perceived to be the dangers of historian expert witnesses – they admitted their overriding interest in assessing character, allocating blame, and in advocating change.  My criticisms of Rosner and Markowitz, as “Histrionic Historians,” stands.

The presenters also, indirectly acknowledged, their substantial biases.  There were at least 4 or 5 references to Professor Bartrip (Wolfson College, Oxford University) during the methodology workshop.  Each reference included a mention of his having been paid an exorbitant sum (100k pounds or so) to write a history of Turner & Newall’s involvement in the asbestos business.  There were no comments about the quality or reliability of Bartrip’s work, and there were no comments about biases of authors who turn out Marxist and radical histories, funded by consulting and testimonial services they provide to lawyers for claimants.  (The presenter on historiography classified Rosner’s work as lying in the “Marxist and radical” camp.)  The only potential bias singled out was the economic sort that allowed Bartrip’s work to be marginalized and dismissed by the speakers.

The Workshop was thus informative and valuable.  The remainder of the conference was, however, uneven.  Some of the presentations were highly insightful about the determinants of occupational health in the past.  Rosner and Markowitz gave one of the keynote presentations, at which they sang and danced.  (“Silicosis is Killin’ Me” – Josh White; “More than a Paycheck” – Sweet Honey in the Rock)  Despite the entertainment, there was little new in their presentations.

On the last day of the conference, I gave my presentation, “Courting Clio.”  I focused on the confluence of changes in science and the law, which created a need to litigate issues of sellers’ and workers’ knowledge from decades before workers developed the diseases or conditions that are the subject of their legal claims.  I pointed out that there were instances in which juries could be assisted by historian expert witnesses, and other instances, in which historians wasted the time of the Court, the jury, and litigants.

Professor Rosner was in the audience, and he grabbed the microphone as soon as I finished.  Indeed, he monopolized the Q&A session with a rant that included a recitation of how well reviewed his book, Deadly Dust, was.  Rosner suggested that he must be very effective at helping workers attain just outcomes if I were so animated against his participation in the legal process.  At times, Rosner was incoherent, although he ended his rant by calling me “despicable,” which led the moderator, Professor Melling, to apologize for  Rosner’s ad hominem excesses.  I did have a minute in which to respond to Rosner, in which I asked rhetorically whether he thought that the widespread screening fraud in silicosis litigation was also despicable, or whether it was despicable to turn a common law courtroom into a circus of historians on their soapboxes.

Rosner’s conduct does not need apologies; it simply needs to be excluded from the courtroom.  If I could have put an exhibit marker on Rosner’s forehead, I would have adduced him as physical evidence in support of my argument.  Quod erat demonstrandum.

One of the long survivors of the asbestos litigation, Garlock, filed for chapter 11 bankruptcy, earlier this month.  Garlock manufactured gaskets, which for many years contained asbestos, and which were widely used in fitting pipes in industrial facilities and naval shipyards around the country.  See http://blogs.wsj.com/bankruptcy/2010/06/08/the-daily-docket-garlock-enters-bankruptcy/

Garlock was a frequent co-defendant of the clients I have represented in trials over the years, and its lawyers always came ready for the fray.  Personally, I hope that Garlock will find a way to use the bankruptcy forum to obtain fairer treatment than it faced in many courtrooms around the country.

One unfairness that Garlock and other manufacturers face is tort liability law that ignores the role of customers’ knowledge, and makes a fetish out of verbal warnings, without any empirical evidence that such warnings would have changed end user behavior.

Garlock sold gaskets to the United States Navy, for use in the construction of naval vessels.  Plaintiffs fault the failure of third-party vendors, such as Garlock, to warn them of the hazards of asbestos.  The truth, however, is that plaintiffs’ employer, the United States government, had vastly more knowledge of the hazards, and of the details of the actual workplace exposures and employees’ level of training to avoid the hazards, than did the remote third-party vendors.

With the help of capable raconteurs, such as Paul Brodeur and Barry Castleman, asbestos litigation has been cast as a morality play about the evil and callousness of American corporate business.  The truth is much more nuanced and complicated.  The Brodeur version of asbestos history is easy to spin and sell to jurors when the court limits or excludes the role of the dominant player in the tragedy — the U.S. government.

The U.S. government was clearly aware of the hazards of asbestos to its military and civilian employees.  Even before the U.S. was officially at war, the increased workload of the naval shipyards brought the hazards of asbestos insulation and fabrication to the attention of naval officials.  In 1939, in commenting upon the working conditions of insulators at the Brooklyn Naval Shipyard, the Naval Surgeon General reported that “[a]sbestosis is an industrial disease of the lungs incident to the inhalation of asbestos dust for prolonged periods.”  Admiral McIntire (who also served as President Roosevelt’s personal physician) was well aware, from field memoranda, that the Navy was not protecting its workers as it should. 

Captain Ernest Brown, the senior medical officer of the Brooklyn Naval Shipyard, wrote about the hazards of asbestos in War Medicine (1941).  In 1941, with the Liberty Ship program underway, the Navy refused to permit an outside inspector to assess health hazards.  On March 11, 1941, Commander Stephenson wrote to Admiral McIntire “I told him that I had spoken to you and that you had indicated that President Roosevelt thought that this might not be the best policy, due to the fact that they might cause disturbance in the labor element….None of our foundaries [sic] would pass the necessary inspection to obtain workers’ compensation insurance from any of the insurance organizations. I doubt if any of our foundaries would be tolerated if the State industrial health people were to make surveys of them.”

The Navy, in conjunction with the Maritime Administration, did create an industrial hygiene program, under the leadership of Dr. Philip Drinker.  Drinker was perhaps the best known industrial hygienist of the era —  a professor at the Harvard School of Public Health, and the inventor of the iron lung.  In 1942, he was the president of the American Industrial Hygiene Association.  He had served as the editor in chief of editor-in-chief of The Journal of Industrial Hygiene, for many decades.  Drinker’s memoranda, from his field visits to naval and contract shipyards, in 1942, documented the hygienic deficiencies in the workplace, and the need for improved ventilation, training, and medical monitoring.

Drinker’s observations were never shared with the workers or with the government’s outside vendors.  Drinker died in 1972, before he could bear witness in the asbestos litigation.

This evidence of the government’s culpability and its suppression of information (and much more such evidence to the same effect) rarely has seen the light of day in American courtrooms.  Very few states permit an offset for employer’s negligence, and many states refuse to permit any evidence of the employer’s culpability in cases of so-called strict liability.  The result is a skewed trial in which the jury is not permitted to assess all the facts and circumstances of the reasonableness of defendants’ actions.

After trying one of the first New York state asbestos cases, in which the defendants put the government’s knowledge into issue, Judge Weinstein commented that “[t]he Navy, though aware of the hazards posed by asbestos dust, in its urge to build its warships as quickly as possible, did not inform workers of the dangers and neglected to make available protective precautions. * * * The evidence produced indicates that these risks were known to Government officials at least as high as the highest Navy personnel and probably known to the President of the United States.” Judge Weinstein refused the defendants’ motions for judgment, but opined that there was no doubt that the government was primarily responsible.   See In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710 (E. & S.D.N.Y. 1991), aff’d, In re Brooklyn Navy Yard Asbestos Litigation (Joint Eastern and Southern District Asbestos Litigation) 971 F.2d 831 (2d Cir. 1992).

Recently, Judge Weinstein recalled his involvement with this bellwether New York case:

“I became involved with asbestos because a number of cases were assigned to me as an Eastern District Judge arising from Navy Yard exposure to asbestos. While young men of 17 and 18 were awaiting entry into the armed forces in World War II, they worked on the battle ships and aircraft carriers at the Brooklyn Navy Yard, sometimes knee deep in asbestos.

The government knew that these young people were being endangered. It furnished masks to the painters who had refused to paint the hulls with poisonous paints until they were provided with protection. The doctors in charge knew that asbestos being breathed in by these workers in the hulls of these new ships would create serious future health problems. They had seen some of them in the Manville and other factories. And there were ancient stories of workers in asbestos who suffered lung problems.”

Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigations,” 2009 Cardozo L. Rev. de novo 1

In Philadelphia, where many cases of naval shipyard workers have been tried, courts routinely “reverse bifurcate” trials, with damages and medical causation issues proceeding first to verdict, and then, if necessary, a separate trial on liability.  This backwards approach to trying asbestos cases was first requested by defense counsel for Johns Mansville, which also had to deal with suppression of evidence issues.  When Johns Mansville went bankrupt, the remaining defendants, many of whom had good liability defenses, were saddled with having to try liability in some cases after the jury had already determined that the plaintiff should be compensated.  Plaintiffs’ counsel have been permitted to argue: “first they gave him asbestosis, now they want you to take away his compensation.” 

If not for the distorting lens of workman’s compensation, employer’s tort immunity, and sovereign immunity, there is a good chance that Garlock would be a healthy American company today, and that many of the other companies that have gone bankrupt (> 80) would be solvent.  Similarly, if Garlock, and many other companies, were permitted fairly to litigate claims of their negligence, under all the facts and circumstances of their sales, odds are that we would have had federal legislation, long ago, in which the government contributed generously to the compensation of asbestos victims, not as a “corporate bailout,” but as an acknowledgment of its moral and legal responsibilities.

So the bells really do toll for thee.

The problem of the testifying historian expert witness is perhaps most serious in product liability cases, where both plaintiffs and defendants hope to inject historian opinion testimony into the trial to give, in essence, an interim closing argument.  Increasingly, courts have grown wary of this thinly disguised ploy and barred such testimony.  The most recent example of judicial impatience with the ploy of having an expert witness give a narrative of historical events is MDL 1909, In re Gadolinium-Based Contrast Agents Products Liability Litigation, 2010 WL 1796334, *13 (N.D.Ohio May 4, 2010).  In the gadolinium litigation, Judge Polster ruled that  expert witnesses may not provide narrative histories of the product, but rather the parties must present the history of the product and its regulation through direct evidence.  In addition, expert witnesses may not testify about the knowledge, state of mind, motivation, or intent of the parties.

Next month, the International Commission on Occupational Health (ICOH) is sponsoring the 4th International Conference on the History of Occupational and Environmental Health, in San Francisco.  I will be presenting on the problematic nature of historian expert witness opinion testimony, on June 22.  The abstract of the paper to follow is set out below.

Courting Clio:  Historians and Their Testimony in Products Liability Litigation

By Schachtman, N.A.*, and Ulizio, J.A.¹

            Parallel developments in mid-20^th century medicine and American tort law resulted in the need to resolve factual disputes about events several decades old.  After World War II, epidemiology developed the assessment of case-control and cohort studies to permit reliable detection and quantification of causal associations between diet, medications, social habits, and occupational or environmental exposures and various chronic diseases.  Latency periods, often decades long, complicated but did not prevent the identification of causes of cancer and other diseases — such as tobacco, asbestos, DES, radiation, among others.

            Also in the middle of the last century, American law evolved to extend manufacturers’ and sellers’ duties in tort to prevent harm from defective products, not only to immediate purchasers but to all foreseeable users.  Contributory fault, which had barred recovery, gave way to comparative fault, which only reduced damages.  Most important, statutes of limitations, which previously barred suits filed after two years or so from last exposure, were modified to permit suits within two years of when the claimant’s injury became clinically manifest and discoverable.  With these developments, injured workers became entitled to sue for injuries caused by products, even though the causal exposures occurred decades earlier.

            These advances in epidemiology and tort law have put into issue factual disputes over who knew what about product risks, many years before the injury and the lawsuit.  Parties on both sides have struggled to interpret old medical texts and documentary evidence, on evidentiary records often incomplete and ambiguous.  The meaning of the old scientific evidence was typically beyond the ken of ordinary lay persons, and thus litigants sought expert witnesses, with expertise in historical methods or medical science, or both, to explain and present the historical evidence.

 The advent of historian expert witnesses in tort cases has raised legal questions about how courts should supervise and control the reliability and advocacy of historian witnesses.  The narrative typically created by historians threatens to usurp the lawyers’ role in interpreting and arguing the evidence and inferences to the jury, and the jurors’ role in finding the facts from the evidence in the case. 

The early judicial response frequently relied upon vigorous crossexamination to reveal historians’ use of incomplete or misleading evidence.  More recently, legal writers have criticized judicial passivity in the face of tendentious historical expert opinion testimony.  Various proposals, ranging from heightened judicial scrutiny and gatekeeping for historian witnesses, to appointment of neutral witnesses, to eliminating or reducing the scope of historians’ testimony, have been suggested.  Recent case law shows no clear path to resolving the difficulties inherent in the reliance upon historians’ opinion testimony in tort cases.

The history of the occupational disease silicosis, and historians’ testimony in the litigation of silicosis claims over the last two decades, will be used as a case study of the utility and dangers in having historians serve as expert witnesses. 

*Lawyer in private practice; Lecturer, Columbia Law School.

¹Lawyer, and Chief Executive Officer of U.S. Silica Co.

An historian testifying as an expert witness is a bit like a dog cutting your lawn — You don’t care whether the dog mows in a straight line, or cuts too high or too low, or even whether the dog rakes up after cutting.  Dogs should not be cutting the grass at all.

Historians may have a great deal to contribute to litigation by identifying primary sources and suggesting lines of argument or narratives from the evidence that they collect and synthesize.  Historians’ testimony, however, should not substitute for lawyers’ proving their cases by admissible evidence, and by persuading the fact finder with argument.  The principal problem with historian expert witness testimony is that it circumvents the rules of evidence, and injects final argument into the middle of the trial in the guise of testimony.  Lawyers might welcome this opportunity for an additional final argument, and for the relief from the tedium of actually proving the factual predicate of their cases, but expedience is a slim justification that does not outweigh circumventing the structure of the trial and rules of evidence.

Caution!  Suggesting that historians should not serve as expert witnesses may cause the dog to bite.  See, e.g., D. Rosner & G. Markowitz, “The Trials and Tribulations of Two Historians:  Adjudicating Responsibility for Pollution and Personal Harm, 53 Medical History 271, 280-81 (2009)(criticizing legal counsel for expressing the view that historians should not be permitted to testify and thereby circumvent the rules of evidence); D. Rosner & G. Markowitz, “L’histoire au prétoire.  Deux historiens dans les procès des maladies professionnelles et environnementales,” 56 Revue D’Histoire Moderne & Contemporaine 227, 238-39 (2009) (same); D. Rosner, “Trials and Tribulations:  What Happens When Historians Enter the Courtroom,” 72 Law & Contemporary Problems 137, 152 (2009) (same).

Apparently historians do not have prohibitions against duplicative (or triplicative) publications.

The Betz case, which relied upon an overruled federal court case, has other surprises for Pennsylvania lawyers.

On appeal, Betz argued that her expert witnesses’ opinions that “each and every fiber contributes to the disease process,” were not novel as evidenced by Pennsylvania’s courts routine acceptance of such testimony.   Betz v. Pneumo Abex LLC, 2010 Pa. Super. 74, slip op. at 24 & n.17.    The appellant’s contention is certainly correct as an historical matter; Pennsylvania courts have indulged the fiction of “each and every fiber” for decades.  I can recall hearing this opinion from a plaintiff’s expert witness, in a Philadelphia courtroom, in my first asbestos trial, almost 25 years ago.  After shaking off my amazement, I inquired:  “How do you know this?”  The response that I got from the witness was that he did not know how to distinguish between and among fibers so he had to blame them all.  My earnest motion to strike the testimony as having no basis was refused.

In later trials, I pressed harder.  “Is it true that many inhaled fibers are quickly exhaled?”  These fibers do not contribute to any disease process. “Is it true that many fibers inhaled are brought up by the muco-ciliary escalator, and then spit out or swallowed?”  Again, these fibers do not contribute to any disease process in the lungs.  “Is it true that many fibers are inhaled and retained, and are then engulfed by macrophages and taken to lymph nodes?”  Again, these fibers became non-combatants.  “Of the fibers that migrated to the pleura or close to the pleura, some went through the right lung, and some through the left lung, but the fibers on the side opposite the mesothelioma did not contribute?”  “Although you gave your ‘each and every fiber’ opinion, some fibers – chrysotile – break down in the body within months because they are not as resistant as amphibole fibers; true?”  These questions would elicit concessions or professions of ignorance, but I still lost my motions to strike the “each and every fiber” opinion, each and every time.

In Betz, the defendants called plaintiffs’ expert witnesses on their ipse dixit.  The “each and every fiber” opinion may be generally accepted opinion testimony in courtrooms, but it has no acceptance in the scientific community.  The Superior Court appeared to sidestep the argument that long-standing judicial toleration of unsupported opinion equals “general acceptance,” but what is noteworthy is that the Court did not dismiss it out of hand.  Pennsylvania’s version of Frye applies to allow opinions when “the relevant scientific community has generally accepted the principles and methodology the scientist employs”    Betz, slip op. at 21 (quoting from Trach v. Fellin, 817 A.2d 1102, 1110 (Pa. Super. 2003)(en banc)).  How judicial acquiescence in an opinion, without any meaningful scientific scrutiny, can substitute for a determination of general acceptance in the relevant scientific community is a mystery that calls for resolution from a higher court.

In Betz, the Superior Court’s resolution of the issue seems to lie in modifying the proponent’s burden of proving the lack of novelty into a burden on the opinion’s opponent to prove novelty.  But even with this shifting of the burden, the Superior Court seems to have lost sight of the complete absence of the “each and every fiber contributes” opinion from any textbook, article, or other scientific source.

The Superior Court went further than shifting the burden; it also suggested that studies conducted or sponsored by industry were unworthy of consideration when addressing the Frye issues.  The Court cited Justice Castille’s dissent in Blum v. Merrell Dow Pharmaceuticals, Inc., 563 Pa. 3, 13-15, 764 A.2d 1, 5-7 (2000), where he argued that courts should be wary of an orthodoxy created by “purchased research and the manipulation of scientific literature.”  Betz, slip op. at 26 n. 19.  What the Superior Court failed to recognize, however, is that the industry-sponsored study relied upon by the defense expert witnesses was a meta-analysis, which was as open and transparent as imaginable.  A meta-analysis simply takes the data from other published studies and calculates a summary estimate of risk for the entire dataset.  The meta-analysis in question included studies funded or sponsored by a various groups, including those that had no relationship to the litigation.  If the plaintiff believed that any important studies were omitted, it would have been relatively easy to challenge the scholarship or statistical analysis in the meta-analysis, and to have presented a revised analysis.  There was, simply put, no evidence of manipulation by industry to create an “orthodoxy.”  The Superior Court’s citation of Justice Castille’s dissent appears to have been completely gratuitous.

On April 30, 2010, the Pennsylvania Superior Court, sitting en banc, reversed the grant of summary judgment to brake manufacturers in an asbestos product liability case.  Betz v. Pneumo Abex LLC, 2010 Pa. Super. 74.  http://www.superior.court.state.pa.us/opinions/E02001_09.pdf  The plaintiff claimed that his work in the automotive repair industry had exposed him to asbestos from brakes and clutches, and that this exposure caused him to develop mesothelioma.  The brake manufacturers moved to exclude what they claimed were  the novel scientific opinions of plaintiff’s expert witnesses on medical causation.  The trial court held that the plaintiff’s expert witnesses opinions failed to satisfy Pennsylvania’s requirement of “general acceptance,” and excluded their opinions.  Finding the plaintiff without any admissible expert witness opinion to support for his causal claim, the trial court them granted summary judgment.  

In reversing the trial court’s summary judgment, the en banc panel managed to add to the confusion that is Pennsylvania’s law on expert witnesses.  Perhaps the best that can be said for the Betz decision is that one member of the panel, Judge Shogan concurred in the result, and wrote separately to suggest that the Pennsylvania Supreme Court “clarify the appropriate approach to be taken in cases involving experts employing extrapolation as a methodology to support their scientific opinions.”  Id. Concurring Statement, p.3.  Lawyers who practice in Pennsylvania, and who depend upon appellate court guidance on such matters, would welcome such clarification.

There are several remarkable aspects of the en banc court’s decision.  For now, let me point out the incoherence of the Superior Court’s reliance upon a non-Pennsylvania case that is a derelict upon the waters of federal expert witness law:  Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984).  The court cited to Ferebee with obvious enthusiasm and approval, but without any acknowledgement that Ferebee‘s holding with respect to expert witness testimony was dubious when delivered in 1984, and has been overruled by the United States Supreme Court in 1993, in that Court’s Daubert decision. Perhaps more troubling yet is the Pennsylvania court’s quotation of the most controversial, and the most thoroughly discredited dictum from Ferebee:

“Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease.  On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”

Betz, slip op. at 43 (quoting Ferebee, 736 F.2d at 1534).  This passage from Ferebee signifies that courts have no screening function once experts with appropriate qualifications appear, willing to offer opinions.  Of course, this aspect of Ferebee is utterly at odds with the last 17 years of federal court evidence law, just as it was at odds with most federal circuits at the time it was written.  Lawyers in Pennsylvania might well interpret this pronouncement from the Superior Court – an embrace of an  outmoded, discredited, and clearly overruled case – to be a signal that Pennsylvania has abandoned completely any judicial screening and review of expert witness testimony.  This part of the Betz decision is particularly disturbing given that the law of expert witness qualifications sets a very low standard; the witness needs only “a reasonable pretense of expertise” in Pennsylvania to offer an “expert” opinion.  Judge Shogan is clearly right that the Pennsylvania Supreme Court will now be needed to put the law of expert witnesses in Pennsylvania back on track.

The Supreme Court’s decision in Joiner was an important qualification to its earlier decision in Daubert.  Joiner correctly adjusted the dicta in Daubert that suggested that conclusions could not be evaluated for their reliability, a correction that is now embodied in Federal Rule of Evidence 702.  Joiner correctly assessed that plaintiffs’ expert witnesses in that case were relying upon pathologically deficient and unreliable evidence.  (Some of the expert witnesses in Joiner are known repeated offenders against Rule 702.)  Furthermore, in reversing and rendering a judgment of the 11^th Circuit, Joiner corrected the asymmetric standard of review for Rule 702 witness exclusions that the 11^th and other Circuits were using.

In reaching the right result, and in advancing the jurisprudence of the reliability of expert witness opinion testimony, Joiner, however, stumbled on one important analysis.  In his opinion in Joiner, Chief Justice Rehnquist gave considerable weight to the consideration that the plaintiffs’ expert witnesses relied upon studies, the authors of which explicitly refused to interpret as supporting a conclusion of human disease causation.  See General Electric Co. v. Joiner, 522 U.S. 136, 145-46 (1997) (noting that the PCB studies at issue did not support expert witnesses’ conclusion that PCB exposure caused cancer because the study authors, who conducted the research, were not willing to endorse a conclusion of causation). 

Although the PCB study authors were well justified in their respective papers in refraining from over-interpreting their data and analyses, this consideration is of doubtful general value in evaluating the reliability of an expert witness’s proposed testimony.  First, as some plaintiffs’ counsel have argued, the testifying expert witness may be relying upon a more extensive and supportive evidentiary display than considered by the study authors.  The study, standing alone, might not support causation, but when considered with other evidence, the study could take on some importance in supporting a causal conclusion.  (This consideration would not save the sadly deficient opinions challenged in Joiner.) Second, there are important methodological considerations that render the Discussion sections of published papers of little value.  They are almost never comprehensive reviews of the subject matter, and they are often little more than the personal opinions of the study authors.  Sometimes, the Introduction and Discussion sections are influenced by the need to get the paper published and satisfy the whims of peer reviewers and editors.  Thus, these sections, in addition to being uncross-examined statements of the authors, might well reflect also second-level hearsay, of opinions of anonymous reviewers, whose expertise, biases, and perceptions cannot be challenged.

 The use of a paper’s Discussion section to measure the reliability of a proffered expert testimony runs contrary to how scientists generally read and interpret papers.  Chief Justice Rehnquist’s emphasis upon the study authors’ Discussion of their own studies ignores the first important principal of interpreting medical studies, in an evidence-based world view:  In critically reading and evaluating a study, one should ignore anything in the paper other than the Methods and Results sections.

There are many clear statements in the medical literature, which caution the consumers of medical studies against misleading claims.  Several years ago, the British Medical Journal published a paper by Montori, et al., “Users’ guide to detecting misleading claims in clinical research reports,” 329 Br. Med. J. 1093 (2004).  The authors distill their advice down to six suggestions in a “[g]uide to avoid being misled by biased presentation and interpretation of data, the first [suggestion] of which is to:  “Read only the Methods and Results sections; bypass the Discuss section.”  Id. at 1093 (emphasis added).

Perhaps the Discussion section, in the context of a Rule 104(a) proceeding, has some role in evaluating the challenged expert witness’s opinion, but surely it is a weak factor at best.  And clearly, the disagreement with the study authors’ conclusions or opinions, as reflected by speculative Discussion sections, can cut both ways.  Study authors may downplay their findings – appropriately or inappropriately, but study authors often overplay their findings and distort or misinterpret how their findings fit into the full picture of other studies and other evidence.  The quality of peer-reviewed publications is simply too irregular and unpredictable to make the subjective, evaluative comments in hearsay papers the touchstone for admissibility or inadmissibility.

Furthermore, courts should be asking why a testifying expert witness, or the witnesses who are countering the challenged witness, should advert to the Discussion section of a published article.  If an expert witness cannot interpret the Methods and Results sections, then in all likelihood he or she lacks the requisite expertise to offer a reliable opinion.

Joiner’s misplaced emphasis upon study authors’ Discussion sections has gained a foothold in the case law interpreting Rule 702.  In Huss v. Gayden, 571 F.3d 442  (5th Cir. 2009), for example, the Court declared:

“It is axiomatic that causation testimony is inadmissible if an expert relies upon studies or publications, the authors of which were themselves unwilling to conclude that causation had been proven.”

Id. (citing Vargas v. Lee, 317 F.3d 498, 501-01 (5^th Cir. 2003) (noting that studies that did not themselves embrace causal conclusions undermined the reliability of the plaintiffs’ expert witness’s testimony that trauma caused fibromyalgia), and McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1247-48 (11^th Cir. 2005) (expert witnesses’ reliance upon studies that did not reach causal conclusions about ephedrine supported the challenge to the reliability of their proffered opinions).

This aspect of Joiner perpetuates an authority-based view of science to the detriment of requiring good and sufficient reasons to support the testifying expert witnesses’ opinions.  The problem with Joiner’s suggestion that expert witness opinion should not be admissible if it disagrees with the study authors’ Discussion section is that sometimes study authors grossly over-interpret their data.  When it comes to scientific studies written by “political scientists” (scientists who see their work as advancing a political cause or agenda), then the Discussion section often becomes a fertile source of unreliable, speculative opinions that should not be given credence in Rule 104(a) contexts, and certainly should not be admissible in trials.

There have been, and will continue to be, occasions in which published studies contain data, relevant and important to the causation issue, but which studies also contain speculative, personal opinions expressed in the Introduction and Discussion sections.  The parties’ expert witnesses may disagree with those opinions, but such disagreements hardly reflect poorly upon the testifying witnesses.  Neither sides’ expert witnesses should be judged by those out-of-court opinions.  Perhaps the hearsay Discussion section may be considered under Rule 104(a), which suspends the application of the Rules of Evidence, but it should hardly be an important or dispositive factor, other than raising questions for the reviewing court.

Expert witnesses should not be constrained or excluded for relying upon study data, when they disagree with the hearsay authors’ conclusions or discussions.  Given how many journals cater to advocacy scientists, and how variable the quality of peer review is, testifying expert witnesses should be required to have the expertise to interpret the data without substantial reliance upon, or reference to, the interpretative comments in the published literature.