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The Recrudescence of Ferebee – Part One

June 29th, 2026

The infamous Ferebee decision is certainly a contender to be a Dred Scott decision involving scientific evidence,[1] by declaring that science has no validity issues that the law is bound to respect.[2] The decision is often cited for its dictum, written with impressive rhetorical flourish, about how courts should not interfere with expert witness opinion testimony. The dictum, when written in 1984, was contrary to the law of Federal Rule of Evidence 702, and was relegated in 1993 to the trash bin of jurisprudential history by the Supreme Court’s 1993 decision in Daubert.[3]

Since 1993, scofflaw judges continued to cite Ferebee’s discredited dictum, without looking at the specific facts of the case. Indeed, even after Rule 702 was amended to clarify its meaning, courts have cited Ferebee as precedential for a let-it-all-in approach to expert witness testimony. As recently as February 2026, the Chief Judge of the Federal Circuit, of the United States Court of Appeals, cited Ferebee in derogation of Federal Rule of Evidence 702.[4] This recrudenscence of Ferebee warrants revisiting the case, what was actually decided, and whether it has any continuing jurisprudential relevance.

The Ferebee case was a personal injury case against the manufacturer of paraquat, a herbicide, for damages for severe pulmonary fibrosis. Interestingly, the case is sometimes erroneously cited as a cancer causation case, which may explain why some commentators criticize its dismissal of epidemiology and statistical significance.

Critics of Ferebee, as well as its acolytes, rarely describe the factual context of the case. The facts of a case are always germane to its holding, and Ferebee cannot be cited appropriately without a sane appreciation of its facts.

  1. Ferebee is a government negligence case.

The plaintiff worked for the federal government when he was exposed to paraquat. Richard Ferebee began working for the Department of Agriculture’s Beltsville Agricultural Research Center (BARC), in Beltsville, Maryland. He started spraying paraquat in the summer of 1977, and used the herbicide regularly through the time he was diagnosed with pulmonary fibrosis, in November 1979.[5] Mr. Ferebee sued Chevron Chemical Company, the supplier of the paraquat, for failing to warn. The important failure to warn, however, was committed by the federal governmental, which had actual knowledge of the hazard, and which owned the BARC facility, employed Ferebee, controlled and supervised his use of paraquat, and failed to comply with Chevron’s instructions. The federal government itself further regulated the sale and use of paraquat extensively, first by the Department of Agriculture, and later by the Environmental Protection Agency. [6]

  1. The exposure.

Ferebee filed his lawsuit in 1981; he died in 1982. His case was tried twice. In the first trial, the jury deadlocked. In the second trial, the jury returned a verdict in favor of his estate, and for his family, for $60,000. In his deposition testimony, Ferebee described how he sprayed paraquat, in the summer of 1977. The chemical was diluted for use, per Chevron’s instructions. There was no evidence that Ferebee ever had direct contact with undiluted paraquat, or that the paraquat he was exposed to was not diluted according to the proportions recommended on Chevron’s label.[7]

Crediting Ferebee’s testimony, the federal government was at best grossly negligent; at worst, the government was an intentional tortfeasor. In flagrant disregard of Chevron’s written instructions (as required by federal regulation), Ferebee frequently had the chemical on his ungloved hands.[8] Ferebee further described an occasion when he was drenched with paraquat as he walked behind a tractor that was spraying the chemical, and another incident when he used a defective sprayer that leaked paraquat “all over his pants.”[9]

On the occasions of Ferebee’s being exposed to paraquat without appropriate protective gear, the federal government deviated from its employer common law, statutory, and regulatory duties. Ferebee did not wash when he was dermally exposed to paraquat, and he went home contaminated, where he fell asleep, tired and dizzy, without showering.[10]  The exposure that Ferebee described would not have occurred had his federal employer followed the instructions on the label that the government itself mandated. In 1978, the federal Occupational Health & Safety Administration published Guidelines on the need for protective clothing, respirators, immediate washing of contaminated skin. Ferebee’s federal governmental employer recklessly disregarded the guidelines it mandated that Chevron provide.

  1. The warnings.

Paraquat could be sold in the United States only when labeled in accordance with EPA regulations, promulgated pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[11] The statute bars EPA from allowing sale of regulated herbicides, such as paraquat, unless the chemicals, as labeled, will not cause “unreasonable adverse effects on the environment.”[12] Such effects are in turn defined as any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of [the] pesticide.[13] FIFRA further requires the EPA to require labeling that is “adequate to protect health and the environment” and that is “likely to be read and understood.”[14]

In the Ferebee case, both the district and the circuit courts failed to provide the complete warning label and the material data safety sheets that Chevron supplied to the federal government employer, as required by the federal government. There are “snippets” of the warning communications in the published opinions, which make clear that the government was largely if not entirely to blame for failing to comply with the directions required under FIFRA. For instance, the district court, in a footnote, acknowledged:

“For example, the label advised the user spraying paraquat to wear waterproof clothing and goggles, to avoid working in spray mist, and to wash splashes on the skin or eyes immediately with water.”[15]

The Court of Appeals Ferebee opinion described the label,[16] as stating a warning in large bold letters:

DANGER

CAN KILL IF SWALLOWED

HARMFUL TO THE EYES AND SKIN

The label also informed users to wash any exposed areas immediately, and to remove contaminated clothing.[17]

  1. The Stipulation.

Essential to understanding the holding in Ferebee are the facts of the case, including the parties’ stipulation:

“that Mr. Ferebee’s only significant exposure to paraquat was on his intact skin; i.e., there was no evidence that Mr. Ferebee swallowed or inhaled paraquat, or that he spilled or sprayed it on an area of his skin upon which he had any apparent cuts or scrapes. The jury was not, of course, precluded from concluding that a person engaged in Mr. Ferebee’s line of work could have had some, or even many, minor cuts or abrasions not readily discernible to the naked eye or likely to be remembered some time later.”[18]

Why did the plaintiffs try to present their case solely as a dermal exposure cases? As we will see, this stratagem made their medical causation case a little more difficult, but it avoided defenses of serious misuse and lack of proximate cause. Ferebee had been instructed by his co-workers and supervisors that paraquat was extremely dangerous if swallowed or inhaled. The warning label was unequivocal in detailing the dangers and the need to avoid ingestion. (Without the full label, it is difficult to evaluate how well the label warned against inhalation, but the 1978 OSHA guidelines address the use of a proper respirator for situations in which paraquat may be inhaled.) On the other hand, the label had a weakness, which could be exploited, as long as the preemption defense could be held at bay: the label urged protective clothing, goggles, and immediate washing of contaminated skin, but it failed to describe the consequence of dermal exposure other than irritation. Ferebee could thus try to avoid his own culpable conduct, as well as a sophisticated intermediary defense, by claiming that his exposure was only dermal.

Why did Chevron agree to the stipulation? Ferebee surely had some inhalational exposure when he walking behind applicators and when he was drenched in paraquat. The Chevron warning label, per government-employer regulations, did not specify respirator usage for ordinary work exposures of applicators (as opposed to workers who handled undiluted paraquat, or who worked in confined spaces). The defendant probably felt sanguine about its preemption defense, and thus also about the adequacy of its warnings overall. The stipulation limited the plaintiff’s medical causation case to a route of exposure that put it into an arguable “first instance” case report. Chevron stood to gain a claim of “lack of notice,” and thus lack of actual or constructive knowledge of the risk of lung disease from dilute dermal exposure. The clinical presentation itself differed from many of the cases of known paraquat poisoning, and Chevron probably believed that it could deal with the medical causation claim better if exposure was limited to transdermal absorption on unbroken skin.

  1. Medical causation

Chevron stridently argued that there had been no previous documented cases of pulmonary fibrosis in workers exposed to diluted paraquat on unbroken skin. The manufacturer’s argument was clever by halves.  The following facts were uncontroverted as known at the time of Chevron’s sale of the product:

  • Paraquat causes pulmonary fibrosis in humans.
  • The evidence that established paraquat as a cause of pulmonary fibrosis was largely case series of acute onset of pulmonary fibrosis after ingestion.
  • Paraquat induces pulmonary fibrosis relatively rapidly.
  • Paraquat can be absorbed through the skin.
  • The parties agreed that any type of exposure – ingestion, inhalation, or dermal absorption – could cause lung damage.[19]
  • Once paraquat is ingested, inhaled, or absorbed, it can travel to the lungs.
  • Lung fibrosis caused by dermal absorption of paraquat had been described previously only with skin lesions before or after the injury.[20]
  • The lungs are the target organ for paraquat, regardless of route of administration.
  • There are numerous causes of pulmonary fibrosis (such as asbestosis, scleroderma, rheumatoid arthritis, etc.).
  • The variants of pulmonary fibrosis do not all look alike clinically or pathologically, present alike, or progress alike.
  • Ferebee had no known other disease or exposure that could account for his pulmonary fibrosis.
  • There are cases of pulmonary fibrosis with no identifiable cause, known as idiopathic pulmonary fibrosis (IPF).
  • IPF is relatively rare; it too has a rapid onset and progression, although arguably not as fast as the cases described after exposure to undiluted paraquat.
  • Ferebee’s medical history was largely unhelpful in explaining his clinical course.
  • Ferebee had some shortness of breath before starting to use paraquat.[21]
  • Ferebee used or was exposed to paraquat occasionally over three years before he was diagnosed with pulmonary fibrosis.

These stipulated facts are rarely acknowledged in the discussion of the Ferebee case. The legal implications of these facts are far reaching. General causation in a sense was not contested. Paraquat causes pulmonary fibrosis. The issue was whether diluted paraquat through dermal exposure over three years causes pulmonary fibrosis, and whether this exposure caused Ferebee’s pulmonary fibrosis. Chevron stridently asserted that the “scientific method” required controlled experimental or observational (epidemiologic) studies. The problem with Chevron’s position was that general causation had already been established, and not by analytical epidemiologic studies. General causation between paraquat exposure of any kind and pulmonary fibrosis had been established by case reports, based upon close temporal proximity between exposure and pulmonary toxicity and fibrosis. Animal toxicology and mechanistic studies confirmed the toxicity observed in clinical studies.[22]

Because idiopathic pulmonary fibrosis is rare, the appearance of this disease in a series of exposed workers soon after they were exposed to a specific toxic chemical really did not require the rigors of analytical epidemiology. The causal analysis between paraquat and lung fibrosis was more akin to the analysis that is used to attribute liver failure to herbal exposure than the epidemiologic approach to the relationship between smoking and lung cancer. At the time of Ferebee’s exposure and his litigation, there was no serious dispute that paraquat caused pulmonary fibrosis when inhaled or swallowed, or that paraquat was absorbed dermally, or that the lung was a target organ of paraquat exposure of any sort.

  1. The expert witnesses.

Ferebee was initially treated by Dr. Muhammed Yusuf, a pulmonary specialist, who diagnosed pulmonary fibrosis. Dr. Yusef referred Ferebee to the National Institutes of Health (NIH), where he came under the care of Dr. Ronald G. Crystal of the Heart, Lung, and Blood Institute. (Dr. Crystal is now Chairman of Genetic Medicine at Weill-Cornell Medical College, where he continues to practice pulmonary medicine.)

In the litigation, Chevron called Dr. Carrington, who diagnosed Ferebee with idiopathic pulmonary fibrosis. Dr. Carrington challenged the plaintiffs’ expert witnesses’ opinions for lacking reliance upon controlled observational or experimental studies.[23] Dr. Carrington, however, acknowledged that dermal cases are too rare for observational epidemiologic analysis, but emphasized that no animal studies of sufficient size had been done to support plaintiffs’ hypothesis. Chevron also called a Dr. Fisher, who presented a toxicokinetic (TK) analysis of Ferebee’s dermal absorption. Based upon his TK analysis, Dr. Fisher concluded that the maximal amount of paraquat absorbed by Ferebee was too small, based upon known cases and animal studies, to have caused paraquat toxicity with lung fibrosis.[24]

  1. Chevron’s challenge to plaintiffs’ expert witnesses’ causation opinion.

None of the defendant’s expert witnesses examined Ferebee. The courts thought this was relevant, but the judicial opinions never articulated what would have been observed on physical examination that was important to resolving the differential diagnosis of paraquat toxicity versus IPF. There was no dispute that Ferebee had rapidly progressing pulmonary fibrosis. The expert witnesses on both sides evaluated Ferebee’s clinical data, presentation, clinical course, and arrived at different diagnoses, either paraquat-induced lung fibrosis or IPF. The plaintiffs’ expert witnesses’ diagnosis involved a causal attribution to paraquat exposure; the defendant’s expert witness’s diagnosis of IPF ruled out any causal toxic exposure.

The Ferebee case was litigated under Maryland law because federal statutory law requires state law to control in a wrongful death action arising out of the neglect or wrongful act of another on a federal enclave.[25] The choice of law had implications both for procedural and substantive law. Chevron appears to have relied upon Maryland’s articulation of the Frye general acceptance doctrine, and the courts analyzed Chevron’s arguments as a Frye challenge.[26] Under the Erie doctrine, a federal court should have applied its own procedural law to the case at hand, including Rule 702 of the Federal Rules of Evidence.[27] The use of Maryland law to determine an evidentiary issue in federal court was error.

Chevron pressed its challenge in terms of Maryland’s version of Frye, and not under Federal Rule of Evidence 702. The oft-repeated infamous language used by both the district and the circuit courts was, therefore, not an interpretation of federal law. Rule 702 was never cited or discussed in either the trial or the appellate court’s opinion. This oddity has profound implications for how we evaluate the Ferebee decision, and how it can be cited. Before the Supreme Court decided the Daubert case, the epistemic implications of Rule 702 were largely ignored. Defendants sometimes attempted to press the Frye twilight-zone general acceptance test into a rule of decision that would reject an expert witness’s opinion testimony.[28] The Frye case was decided by a federal appellate court, but superseded by the enactment of Rule 702, in 1975. Ferebee was, of course, decided before the Supreme Court breathed life into Rule 702, but Rule 702 was nonetheless the law when the Ferebee case was litigated.

  1. The judicial resolution of  Chevron’s Frye challenge

The district court insightfully recognized that Chevron was demanding a level of evidence, which had never been required to establish paraquat’s generally accepted ability to cause pulmonary fibrosis. This recognition led to the district court’s rhetorical language:

“It is true that medical expert testimony must be grounded in proper scientific methodology, but the extremely stringent standard that defendant suggests is beyond reason. Product liability law, especially as it relates to relatively new products or those with a relatively rare yet significant danger, would be rendered next to meaningless if a plaintiff could prove he was injured by a product only after a ‘statistically significant’ number of other people were also injured. A civilized legal system does not require that much human sacrifice before it can intervene. The fact that this is the first case of this exact type – or at least the first of its exact type in which the involvement of paraquat was discovered by alert doctors – cannot be enough by itself to shield defendant from liability. Defendant’s experts were not able to fault Dr. Crystal for his basic diagnostic methodology; in fact, they used the same kinds of test results, consultations, and other tools that he did. What they disagreed with chiefly were his conclusions.”[29]

The important observation is that general causation had been established case series and reports of human exposure. There never was statistical evidence that had been evaluated for “significance,” to establish general causation for undiluted paraquat, and the trial court refused, under Maryland law, to require such evidence for general causation for diluted paraquat. In this context, we can see that the trial court’s suggestion that statistical significance was not required has little bearing upon cases in which general causation could only be established using epidemiologic evidence, with its attendant statistical inferences.

Of course, the matter only became worse when Chevron persisted in its argument and presented it to a panel of the D.C. Circuit. The litigants pulled a panel of what can be described as activist judges not known for their scientific acumen. Judge Mikva wrote the opinion for a panel that included Judge Wald, and Senior Judge Bazelon. The panel’s decision ratcheted up the district court’s rhetoric:

“Thus, a cause-effect relationship need not be clearly established by animal or epidemiological studies before a doctor can testify that, in his opinion, such a relationship exists. As long as the basic methodology employed to reach such a conclusion is sound, such as use of tissue samples, standard tests, and patient examination, product liability does not preclude recovery until a ‘statistically significant’ number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical. In a courtroom, the test for allowing a plaintiff to recover is not scientific certainty, but legal sufficiency; if reasonable jurors could conclude from the expert testimony that paraquat more likely than not caused Ferebee’s injury, the fact that another jury might reach the opposite conclusion or that science would require more evidence before conclusively considering the causation question resolved is irrelevant. That Ferebee’s case may have been the first of its exact type, or that his doctors may have been the first alert enough to recognize such a case, does not mean that the testimony of those doctors, who are concededly well qualified in their fields, should not have been admitted.”[30]

Judge Mikva’s dichotomy between levels of certainty needed in science and in the law was false. On behalf of the plaintiff, Dr. Crystal had done much more than give a clinical diagnosis. His assessment of causality was informed by case series of exposure and lung fibrosis, along with physiological evidence of oral, inhalational, and dermal absorption and distribution to the lungs, with toxic effect soon after exposure.

The appellate court’s dismissive attitude towards statistically significant evidence is severely limited to the factual context of a causal analysis that had been made by scientists, to everyone’s satisfaction, for undiluted paraquat, without the need for epidemiologic, statistical evidence. Statistical significance was never really at issue. In this way, Ferebee resembles the untoward dictum on statistical significance from Matrixx Initiatives Inc. v. Siracusano,[31] where the Court held that causation was not at issue.

In Ferebee, causation was very much at issue, but it had been well established – and the subject of warnings – based upon clinical case reports of paraquat exposure and rapid development of lung fibrosis. Dermal absorption and systemic distribution with toxic effects in the lungs were well established, and not the stuff of epidemiologic proofs.

In both Ferebee and Matrixx Initiatives, statistical significance was never really at issue. In Ferebee, there was no statistical evidence needed or used to reach causal conclusions about paraquat’s ability to induce pulmonary fibrosis. In Matrixx Initiatives, allegations of statistical significance and causation were not necessary because the plaintiffs needed only to allege materiality of the facts suppressed by the company in order to plead a securities fraud case. The FDA could impose warnings or require a product recall on evidence that fell well short of establishing causality. Materiality thus could be established without causation, and neither causation nor statistical significance needed to be alleged.

As for Chevron’s Frye challenge, the district court rejected the implied call for a vote on the general acceptance of Dr. Crystal’s reasoning. Frye may require “vote counting” of some sort, but the process becomes irrelevant when virtually no one has registered to vote. Otherwise, both the defense and plaintiffs’ expert witnesses were indeed using the same technique of arguing by analogy to accepted cases of paraquat poisoning or IPF. Dr. Crystal opined that Ferebee’s case was “similar” to three other cases he had identified. Dr. Carrington argued that Ferebee’s case was more like IPF cases, although IPF cases themselves have some clinical heterogeneity as well. Most reported paraquat cases described onset of toxicity to death as a very rapid process. Ferebee did not present with significant symptoms for three years after his first exposure, and then he survived for another two plus years. Ferebee did not report skin lesions, which had been reported in previous cases of dermal exposure leading up to pulmonary fibrosis. On the other hand, there was no precise exposure assessment for Ferebee’s absorption of paraquat. The case presented, on the diagnostic level, with the implied causality, a difficult call, but it is easy to understand the courts’ impatience with the defendant’s insistence upon more stringent criteria and evidence than was used to establish the causal connection with undiluted paraquat. The ability of paraquat to cause pulmonary fibrosis had been well established based upon case reports, including case reports of dermal exposure to open sores, with documented systemic distribution with specific toxicity to the lung, regardless of the route of administration.

  1. Expert witness qualifications.

Chevron never challenged Dr. Yusuf’s or Dr. Crystal’s qualifications, both of whom were highly accomplished and respected clinicians and scientists. Neither was a “hired gun.” The oft-quoted comments about expert witness qualifications were made in the context of describing the appellate court’s standard of review, and the court’s role in not assessing credibility or weighing the evidence:

“These admonitions apply with special force in the context of the present action, in which an admittedly dangerous chemical is alleged through long-term exposure to have caused disease. 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.”[32]

Remarkably, this language has been mistakenly invoked as a standard for trial courts to use in determining the admissibility of expert witness opinion testimony. It is no such thing. Some other observations are in order. Although Ferebee worked with diluted paraquat, his exposures were hardly low level. He described himself as drenched in the herbicide, without protective gear, and without his governmental supervisors ever directing him to shower and change clothing.

  1. Preemption and Warnings Causation.

Ultimately, Chevron’s preemption defense was rejected by both the district and the circuit court. The defense’s claim of FIFRA preemption might have gone very differently today, after the Supreme Court’s decisive application of preemption to FIFRA labeling of glyphosate.[33]

Even more important in evaluating liability is the emphasis that both the district and the appellate courts gave to the important role of the employer in the case. The evidence showed that there was indeed a warning label that Ferebee had never read. The plaintiff’s case was thus in jeopardy of failing to show proximate causation between an allegedly inadequate warning and harm. The courts, however, emphasized the role that the employer, through its supervisors and responsible co-workers, play in the complex organizational situation of a modern workplace:

“Mr. Ferebee’s situation was quite different, however. He did not purchase paraquat for his personal use; rather, it was provided to him by his employer for use on the job. The evidence showed that his principal source of information about paraquat was the oral instructions of his supervisors and co-workers, not the written label. He learned from them how to mix the product and how to spray it. It was also from this source that he learned of the danger of getting the product in his mouth: one of his co-workers warned him that if he accidently swallowed paraquat, it would ‘get in his blood’ and poison him. This is a common pattern of instruction and use of occupational materials in the workplace. Learning by doing and learning by oral instruction are tried and true methods of educating manual workers in their jobs. Therefore, although it is crucial to plaintiff’s case that someone would have read the label, it was not necessary for Mr. Ferebee to have done so. And it is obvious that one or more employees at BARC did read the label, since information did reach Mr. Ferebee about the proportions for diluting the product and about the dangers about which the label did warn. It was appropriate for the jury to infer that a warning about the danger of fatal lung disease from dermal exposure would also have been communicated to Mr. Ferebee. See Restatement (Second) of Torts § 388 comment n (seller normally entitled to assume that adequate warning will be passed on by purchaser to ultimate user); cf. Chambers v. G.D. Searle & Co., 441 F.Supp. at 381 (in product liability case involving prescription drug, relevant warning is the one given to doctor, not patient).”[34]

There is significant irony in that the Ferebee case has been the subject of serious criticism from defense counsel, and yet it embraced Section 388, comment n, as well as applied the learned or sophisticated intermediary principles to a case not involving prescription drugs. The appellate court waxed enthusiastic about the principles of Section 388, and went so far as to cite the late Victor Schwartz in support:

“We live in an organizational society in which traditional common-law limitations on an actor’s duty must give way to the realities of society. *** In this case, Mr. Ferebee did not purchase the paraquat for his personal use, and there was substantial evidence that workplace communication about the dangers associated with various chemicals usually took the form of oral instructions from supervisors to workers, the latter of whom then retransmitted the information to co-workers. This, rather than individual reading of product warnings, is a typical method by which information is disseminated in the modern workplace. See Schwartz & Driver, “Warnings in the Workplace: The Need for a Synthesis of Law and Communication Theory,” 52 U. Cinn. L. Rev. 38, 66-83 (1983). The requirement that an improper warning proximately ‘cause’ the injury should be elaborated against this background. We believe Maryland would construe its tort law in this case to require only that someone in the workplace have read the label, not that Mr. Ferebee personally have read it. Because there is no dispute that one or more employees at BARC did read the label, we hold that the jury could properly have inferred that, had a warning about the danger of disease from dermal exposure been included on the label, that warning would have been communicated to Mr. Ferebee and that he would as a result have acted differently. Alternatively, the jury could have inferred that an adequate warning would have led Ferebee’s employers to undertake steps that would have protected him from paraquat poisoning-for example, provision of showers for use after spraying.”[35]

Judge Mikva’s prediction, of course, was accurate; Maryland tort law did, soon thereafter, embrace the sophisticated intermediary defense to exculpate the defendant in such remote supplier situations.[36] The principle invoked to excuse plaintiff from reading the warning label also works to exculpate the defendant when that warning label is otherwise adequate, or when the intermediary knows of the hazard in any event. Given that the employer was the federal government, including the scientists at EPA, OSHA, the National Institutes of Health, and the Public Health Service, as well as the plaintiff’s principal expert witness (Dr. Crystal), the employer had complete and superior knowledge to the seller about the known or knowable effects of diluted paraquat.[37]

[1]  Nathan Schachtman, Wells v. Ortho Pharmaceutical Corporation -A Dred Scott Case in Science Jurisprudence, ResearchGate (June 2026); DOI: 10.13140/RG.2.2.30242.18880

[2] Ferebee v. Chevron Chem. Co., 552 F. Supp. 1297 (D.D.C. 1982), aff’d, 736 F.2d 529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984).

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

[4] Willis Electric Co., Ltd. v. Polygroup Ltd., 166 F. 4th 1363, 1379, 1380-81 (Fed. Cir. 2026) (citing Ferebee, and declaring that the validity of assumptions underlying an expert witness’s methodology were fact questions for the jury, and not a a proper basis for excluding the challenged expert witness testimony). See also Barry v. DePuy Synthes Cos., 164 F.4th 896, 912 (Fed. Cir. 2026) (characterizing expert witness challenges to “purported flaws” in methodology as objections that “go to the weight the jury might accord to that evidence and not to its admissibility.”)

[5] Ferebee, 736 F.2d at 1531-32.

[6] Id. at 1532.

[7] 552 F. Supp. at 1295 & n. 3.

[8] Ferebee, 552 F. Supp. at 1294-95

[9] Ferebee, 736 F.2d at 1532.

[10] Id.

[11] 7 U.S.C. § 136, et seq.

[12] 7 U.S.C. § 136a(c)(5)(C).

[13] 7 U.S.C. § 136(bb).

[14] 7 U.S.C. § 136(q)(1)(E). See Ferebee 736 F.2d at 1539-40.

[15] 552. F. Supp. at 1304 n.40.

[16] Ferebee, 736 F.2d at 1536.

[17] Id.

[18] 552. F. Supp. at 1295 & n. 3.

[19] Ferebee, 552. F. Supp. at 1300 & n.28.

[20] Ferebee, 736 F.2d at 1538.

[21] Ferebee, 552. F. Supp. at 1295.

[22] See generally Leah Utyasheva, Prabath Amarasinghe & Michael Eddleston, Paraquat at 63 – the story of a controversial herbicide and its regulations: It is time  to put people and public health first when regulating paraquat, 25 BMC PUB. HEALTH 3089 (2025).

[23]  Ferebee, 552. F. Supp. at 1301.

[24] Id.

[25] 16 U.S.C. § 457; Ferebee, 736 F.2d at 1533.

[26] Ferebee, 552 F. Supp. at 1301; 736 F.2d at 1535.

[27] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 & n.6 (1993). See also Cavallo v. Star Enterprise, 100 F.3d 1150, 1157-58 (4th Cir. 1996); Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256 (2d Cir. 2002); Legg v. Chopra, 286 F.3d 286, 289-92 (6th Cir. 2002). See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Hanna v. Plumer, 380 U.S. 460, 470 (1965) (Erie does not displace the application of federal procedural rules in federal courts).

[28] Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

[29] Ferebee, 552 F. Supp. at 1301.

[30] Ferebee, 736 F.2d at 1535-36 (emphasis in original).

[31] 563 U.S. 27 (2011). See Nathan Schachtman & David Venderbush, Matrixx Unbounded:  High Court’s Ruling Needlessly Complicates Scientific Evidence Principles, 26(4) WASH. LEG. FDTN. LEG. BACKGROUNDER (2011).

[32] Ferebee, 736 F.2d at 1534.

[33] Monsanto v. Durnell, ___ U.S. ___, Slip op. (June 25, 2026), available at https://www.supremecourt.gov/opinions/25pdf/24-1068_n7ip.pdf

[34] Ferebee, 552 F. Supp. at 1303-04 (internal citations omitted).

[35] Ferebee, 736 F.2d at 1539 (emphasis in original; internal citation omitted).

[36] See, e.g., Kennedy v. Mobay Corp., 84 Md. App. 397 (1990) (applying sophisticated user defense to bar claims against manufacturers of toluene diisocyanate), aff’d, 325 Md. 385 (1992); Higgins v. E.I. DuPont de Nemours, Inc., 671 F. Supp. 1055 (D. Md. 1987) (Maryland law; holding that manufacturer of paint was in better position than bulk supplier to communicate warnings to customers’ employees), aff’d, 863 F.2d 1162 (4th Cir. 1988).

[37] See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, … [and] the Navy’s Bureau of Medicine and Surgery is the knowledge of the military.”).

Posted in Causation, Expert Witnesses, Frye, Learned and sophisticated intermediary, Rule 702, Scientific Evidence, Sophisticated User, statistical evidence, Toxicological Evidence | 1 Comment »

The First Daubert Motion

February 20th, 2026

As every school child knows, or at least every law student in the United States knows, Daubert was a Bendectin case. The plaintiff claimed that his mother’s use of Bendectin, a prescription anti-nausea medication, during pregnancy caused him to be born with a major limb reduction defect.

Filed in 1984, the Daubert case was pending, in summer 1989, before Judge Earl Ben Gilliam, in the Southern District of California. A trial date was approaching, and a deadline for motions for summary judgment. The first Daubert motion was filed in August 1989, in Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] It was a motion for summary judgment, not a motion specifically to exclude plaintiffs’ expert witness’s proffered testimony.

By the time of the first Daubert motion, the plaintiff was relying upon the anticipated testimony of John Davis Palmer, M.D. For the time, John Davis Palmer was not an unlikely expert witness. Although Palmer practiced internal medicine, he had a doctorate in pharmacology. Palmer, however, had no experience studying Bendectin, and no real expertise in epidemiology. He had never designed or published an epidemiologic study, and he had never done any kind of research on Bendectin. The standard for qualifying an expert witness, even in federal court, has always been very low, and thus not an effective way to police the quality of scientific evidence.

Palmer was a rather late substitute for expert witnesses previously listed by the plaintiff. Alan Kimball Done, a pediatrician, had been the main warhorse of the Bendectin plaintiffs, but he was withdrawn by plaintiff’s counsel after he was found to have committed perjury about his academic credentials in another Bendectin case.[2]

Plaintiff also needed to drop another expert witness, William Griffith McBride, who had been a star in plaintiff’s counsel’s stable. McBride helped show the teratogenicity of thalidomide in the early 1960s,[3] and his work in the Bendectin litigation gave these dodgy cases some patina of respectability. In 1988, however, McBride was accused of fraud, for which he would eventually lose his medical license.[4] McBride also chose, rather improvidently, to sue journalists, journals, and Merrell Dow executives, for reporting his rather extensive fees, only to lose that litigation.[5] When plaintiff’s counsel withdrew McBride, plaintiff was left with only Dr. Palmer to serve as plaintiff’s sole expert witness on both general and specific causation.

At the time that the first Daubert motion was filed, manufacturer Merrell Dow had voluntarily withdrawn Bendectin from the market, without any suggestion from the FDA that this action was necessary or in the public interest. The manufacturer had also enjoyed considerable success in court. The company had tried a case that consolidated the general causation claims of over 800 plaintiffs, to a defense jury verdict, in 1985, before Chief Judge Carl Rubin, of the Southern District of Ohio.[6] Despite some isolated trial losses, the company was vindicated in three federal circuits at the time its lawyers filed the “Daubert” motion.[7] The First, Fifth, and District of Columbia Circuits of the United States Court of Appeals, had all held that the plaintiffs’ case was legally insufficient to sustain a verdict against the defendant, or that the expert testimony involved was inadmissible.

In the Daubert case, Merrell Dow Pharmaceuticals was represented by the law firm Dickson, Carlson & Campillo. The important task of drafting the motion for summary judgment landed on the desk of a first year associate, Pamela Yates, who is now a partner at Arnold & Porter. Given that Merrell Dow had succeeded in other appellate courts, the task may have seemed straight forward, but the legal theories were actually all over the map.

The first Daubert motion was not styled as a motion to exclude expert witness opinion testimony, but rather as a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the issue of causation. Merrell Dow’s supporting brief did not clearly invoke the distinction between general and specific causation, which distinction was not widely drawn until later in the 1990s. The supporting brief implicitly addressed both general and specific causation.

At the time that the first Daubert motion was made, there was no clear consensus of precedent that identified the source of support for a trial court’s ruling peremptorily on a weak evidentiary display on the causation issue. The evidence supporting the defense expert witnesses’ opinion that Bendectin had not been shown to cause birth defects generally and limb reduction defects specifically was strong. For all major congenital defects, there had been no change in overall incidence for the years in which Bendectin was marketed. Such an ecological argument usually has no validity, but in the case of Bendectin, for several years, roughly half of all pregnant women used the medication. When the medication was abruptly withdrawn,[8] not because of the science but because of the cost of the litigation, the rate of birth defects remained unaffected. The great majority of birth defects have no known cause, and there was no scientific consensus that Bendectin caused birth defects; indeed by 1989, the nearly universal consensus was that Bendectin did not cause birth defects.[9]

There were also many analytical epidemiologic studies, which both individually or in combination failed to support a conclusion of causation.

In the face of the defense’s affirmative evidence, the plaintiff relied upon a potpourri of evidence:

1) chemical structure activity analysis;

2) in vitro (test tube) studies;

3 ) in vivo studies (animal teratology) studies; and

4) reanalysis of epidemiology studies.

Plaintiff’s lead counsel Barry Nace[10] had concocted this potpourri approach, which he called “mosaic theory,” and which might more aptly be called the tsemish or the shmegegge theory.[11] Whatever Nace called it, he fed it to his expert witness to argue that:

“Like the pieces of a mosaic, the individual studies showed little or nothing when viewed separately from one another, but they combined to produce a whole that was greater than the sum of its parts: a foundation for Dr. Done’s opinion that Bendectin caused appellant’s birth defects.”[12]

Although philosopher Harry Frankfurt had not yet written his seminal treatise on the subject, most courts saw that this was bullshit, which tends to result “whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”[13]

In addition to favorable opinions from the First, Fifth, and District of Columbia Circuits, Merrell Dow had a favorable Zeitgeist working in its favor. The plaintiff-friendly influential judge, Judge Jack Weinstein, had rolled up his sleeves and taken a hard look at the plaintiffs’ scientific evidence in the Agent Orange litigation. Judge Weinstein found that evidence wanting in an important opinion in 1985.[14] Although the alleged causal agent in Agent Orange was not Bendectin, Judge Weinstein recognized that epidemiological studies were, in a similar medico-legal context, “the only useful studies having any bearing on causation.[15] Judge Weinstein relied heavily upon Federal Rule of Evidence Rule 703, which governed what inadmissible studies expert witnesses could rely upon, to whittle down the reliance list of plaintiffs’ expert witnesses before declaring their opinions too fragile to support a reasonable jury’s verdict in favor of plaintiffs.

More generally, discerning members of the legal system were reaching the end of their tolerance for the common law laissez-faire approach to expert witness evidence. In 1986, the Department of Justice issued a report that explicitly called for meaningful judicial gatekeeping of expert witnesses.[16] And in that same year, 1986, Judge Patrick Higginbotham wrote an influential opinion, in which he warned that expert witness opinion testimony was out of control, with expert witnesses becoming mouth pieces for the lawyers and advocates of policy beyond their proper role. Judge Higginbotham observed that trial judges (with support from appellate court judges) had a duty to address the problem by policing the soundness of opinions proffered in litigation, and to reject the system’s reliance upon expert witnesses simply because they “say[] it is so:”[17]

“we recognize the temptation to answer objections to receipt of expert testimony with the short hand remark that the jury will give it ‘the weight it deserves’. This nigh reflective explanation may be sound in some cases, but in others it can mask a failure by the trial judge to come to grips with an important trial decision. Trial judges must be sensitive to the qualifications of persons claiming to be experts … . Our message to our able trial colleagues: It is time to take hold of expert testimony in federal trials.”[18]

Although Merrell Dow had a substantial tailwind behind its motion for summary judgment, there was no one clear theory upon which it could rely. Some of the Bendectin appellate court opinions were based upon the insufficiency of the plaintiffs’ expert witness evidence, on the basis of the entire record after trial. The evidence in Daubert was virtually the same if not more restricted than what was of record in some of those appellate court cases. The ecological evidence was clear.

Some of the judgments relied upon by Merrell Dow were based upon the Frye test, and some were based upon Rule 703, which addresses what kinds of otherwise inadmissible evidence expert witnesses may rely upon in formulating their opinions. Finally, some courts, such as Fifth Circuit in In Re Air Crash Disaster at New Orleans, were beginning to see Rule 702 as the source of their authority to control wayward expert witness opinion testimony.

Merrell Dow advanced multiple lines of analyses to show that plaintiffs cannot establish causation based upon the then current scientific record. The first Daubert motion had no clear line of authority, and so, understandably, it cast a wide net on all available potential legal rules and doctrines to oppose the plantiff’s potpourri Bendectin causation theory. The motion harnessed precedents based upon sufficiency of the plaintiffs’ proffered expert witness, Federal Rules 702 and 703, as well as the 1923 Frye case.[19]

The cases that invoked Frye doctrine presented several interpretative problems. Frye was a criminal case that prohibited expert witnesses from testifying about their interpretations of the output of a mechanical device. The Frye case’s insistence upon general acceptance, when imported into a causation dispute in a tort case, was ambiguous as to what exactly had to be generally accepted: the specific causal claim, or the method used to reach the causal claim, or the method used as applied to the facts of the case. Furthermore, Frye’s requirement of general acceptance was not explicitly incorporated into either Rule 702 or 703, when promulgated in 1975.[20]

Merrell Dow had ample evidence that there was no general acceptance of the plaintiff’s causal claim, but its counsel also showed that by applying generally accepted methodology, scientists could not reach the plaintiff’s causal conclusion, and no scientist outside of the litigation had done so. In particular, there was general acceptance of the propositions that non-human in vivo and in vitro teratology experiments have little if any predictive ability for human outcomes. Because randomized controlled trials were never an option for testing human teratogenicity, observational epidemiology was required, and the available studies were largely exonerative. Only by post-publication data dredging and manipulation was plaintiffs’ expert witness Palmer (following what Shann Swan had done in previous cases) able to raise questions about possible associations. Plaintiff’s expert witness Palmer could not show that these manipulations were a generally accepted method for interpreting or re-analyzing published studies.

In its last point, the first Daubert motion also maintained that the standard for medical causation required that the relevant relative risk exceed two.[21] As noted, the brief did not distinguish general from specific causation, a distinction that had not entered the legal lexicon fully in 1989. The brief’s citation to swine-flu cases, however, clarifies the nature of Merrell Dow’s argument. In the swine-flu litigation, the United States government assumed liability for adverse effects of a vaccine for swine flu. The government recognized that within a certain time window after vaccination, patients had more than a doubled risk of Guillain-Barré syndrome (GBS), an autoimmune neurological condition. The government refused compensation for claimants outside that window. Merrell Dow relied heavily upon one swine flu case, Cook v. United States, which articulated and applied the principle:

“Wherever the relative risk to vaccinated persons is greater than two times the risk to unvaccinated persons, there is a greater than 50% chance that a given GBS case among vaccinees of that latency period is attributable to vaccination, thus sustaining plaintiff’s burden of proof on causation.”[22]

In other words, the government had conceded that the swine-flu vaccine could cause GBS in some temporal situations, but not others. The magnitude of the causal association had been quantified in relative risk terms by epidemiologic studies. Only for those claimants vaccinated in time windows with relative risks greater than two could courts conclude that GBS was, more likely than not, caused by vaccination.

Unlike the federal government in the swine-flu GBS litigation, Merrell Dow was not, however, conceding general causation for any exposure scenarios. The first Daubert motion can only be read to deny general causation, but to explain further that even if the court were to assume, arguendo, that Bendectin causes limb reduction deficits based upon Palmer’s schmegegge and Swan’s re-jiggered risk ratios, that there would still be no proper inference that Bendectin more likely than not caused Jason Daubert’s birth defects.

In response to these arguments, the plaintiff’s counsel argued their mosaic, potpourri, schmegegge theories. Although plaintiffs were down to Dr. Palmer, they filed transcripts and affidavits from a host of other expert witnesses, from previous Bendectin cases.

As for the legal rules of decision, Barry Nace, on behalf of plaintiffs, argued that Rule 703 had “absorbed” the Frye rule. Having been shown to be qualified under the minimal standard of Rule 702, these expert witnesses then satisfied Rule 703 by relying upon “scientific evidence” of the sort that experts in their field rely upon, even if other scientists would not rely upon such evidence in support of a conclusion. Otherwise those expert witnesses were unrestrained by the law, and they were free to assess their relied upon facts and data as sufficient to show that Bendectin probably causes birth defects and that Bendectin caused Jason Daubert’s birth defects. Nace argued that as long as expert witnesses, properly qualified, offered relevant opinions, based upon “things of science,” they could opine that the earth was flat, and it was for the jury to sort out whether to believe them.

Judge Earl Gilliam found Nace’s position untenable, and granted summary judgment later in 1989.[23] Interestingly Judge Gilliam’s opinion in the district court never cited Federal Rule of Evidence 702. Instead, the opinion pointed to Rule 703, as restricting evidence, even if “science,” unless the proponent showed that the underlying principle had gained general acceptance in the relevant field.[24] Opinions not based upon facts or data “of a type reasonably relied upon by experts in the particular field” would be confusing, misleading, and unhelpful, and thus inadmissible. The reference to helpfulness might perhaps be taken as an implicit invocation of Rule 702.

Judge Gilliam had the benefit of the Circuit decisions in Brock, Richardson, and Lynch, with their various holdings of insufficiency or inadmissibility of plaintiffs’ expert witness evidence. In particular, Judge Gilliam cited Brock for the proposition that trial courts must “critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them.”[25] Following Judge Weinstein on Agent Orange, and the previous federal decisions on Bendectin, Judge Gilliam observed that causation in the Bendectin cases could be established, under the circumstances of plaintiffs’ evidentiary display, only through reliance upon epidemiologic evidence. Dr. Done’s schmeggege, concocted as it was by Barry Nace, would not get plaintiffs to a jury.

Judge Gilliam went further to point out that some of plaintiffs’ proffer did not even purport to claim causation. Shanna Swan’s prior testimony asserted that Bendectin was “associated” with limb reduction. Jay Glasser, a specialist in biostatistics, epidemiology and biometry had opined that “Bendectin is within a reasonable degree of epidemiological certainty associated with congenital disorders, including limb defects.” Dr. Johannes Thiersch, a specialist in pathology and pharmacology, proclaimed that “structure analysis” was “of great interest.”[26] In other words, there was a good deal of true, true, but immaterial opinion in what Mr. Nace had thrown over the transom, in opposition to the motion for summary judgment.

Nace appealed, and the Daubert case was argued to the Ninth Circuit in 1991. In a short opinion by Judge Kozinski, the appellate court affirmed the judgment below.[27] The affirmance did not mention Rule 702; rather it relied upon the decisions of other Circuits, in which the plaintiffs’ evidentiary display had been found insufficient to sustain a reasonable jury verdict.

Judge Kozinski’s opinion tilted towards Rule 703 and the Frye standard in citing to cases that stated, based upon Frye, that expert witnesses must use generally accepted techniques from the scientific community. As a legal determination, the determination of general acceptance vel non was a legal determination reviewable de novo. For its de novo decision on general acceptance, the Ninth Circuit relied upon the cases coming from the First, Fifth, and District of Columbia Circuits,[28] and of course, the record below.

By 1991, another Circuit, the Third, had weighed in on the same evidentiary display, when it reversed summary judgment for Merrell Dow, and remanded for reconsideration under the Third Circuit’s approach to Rule 702. Judge Kozinski declared that the Third Circuit’s approach was not followed in the Ninth Circuit, and proceeded to ignore the DeLuca case.[29]

Judge Kozinski treated the insufficiency and the invalidity of the Nace/Done schmeggege theory as legal precedent, and thus the court’s opinion gave very little attention by way of expository description or explanation of the problems with the four factors (in vitro, in vivo, structure analysis, and re-analysis of epidemiologic studies). As Judge Kozinski put the matter:

 “For the convincing reasons articulated by our sister circuits, we agree with the district court that the available animal and chemical studies, together with plaintiffs’ expert reanalysis of epidemiological studies, provide insufficient foundation to allow admission of expert testimony to the effect that Bendectin caused plaintiffs’ injuries.”[30]

And thus, summary judgment was proper in Daubert. Judge Kozinksi, like Judge Gilliam in the district court, never reached the specific causation argument that involved risk ratios less than two.

Some of the Circuit court cases relied upon by Judge Kozinski delved into the invalidity of these methods for determining the causes of human birth defects. The Lynch decision explored in some detail the Shanna Swan made-for-litigation rejiggering of a study based upon data from the Metropolitan Atlanta Congenital Defects Program, which included a challenge to whether it could be reasonably relied upon (Rule 703), as well as its pretense to support a scientific conclusion (Rule 702).[31] Later commentators would skirt the validity issue by asserting that re-analysis, in the abstract, is not impermissible or invalid, without addressing the specific issues discussed in the reported decisions. Other commentators have misrepresented Swan’s re-analysis as a meta-analysis, which it was not.

Some commentators have complained that the defense in Daubert made too much of the lack of statistical significance. Their complaint, in the abstract, might have some salience. In some contexts, an isolated and elevated risk ratio greater or less than one may well have important information, even if the p-value is a bit above 0.05. The lack of statistical significance at the conventional five percent, however, conveys important information about the finding’s imprecision, especially when there was a large dataset to evaluate. In 1994, a meta-analysis was published that found a summary estimate of all birth defects in the available epidemiologic studies to be an odds ratio of 0.95 (95% C.I., 0.88-1.04), and the summary estimate for limb reduction defects to be an odds ratio 1.12 (95% C.I., 0.83-1.48).[32]

[1] Defendant’s Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment on the Issue of Causation, Daubert v. Merrell Dow Pharms., Inc., Case No. 84-2013-G(I) (S.D. Cal. Aug. 2, 1989). The motion was made in a companion case before Judge Gilliam as well, Schuller v. Merrell Dow Pharms., Inc., Case No. 84-2929-G(I). The first Daubert motion may not have been the first one drafted. The linked brief is the first one as filed.

[2] See Oxendine v. Merrell Dow Pharms., Inc., 563 A.2d 330 (D.C. Ct. App. 1989).

[3] William Griffith McBride, Thalidomide and Congenital Abnormalities, 278 LANCET 1358 (1961).

[4] William Griffith McBride, McBride criticizes inquiry, 336 NATURE 614 (1988); Norman Swan, Disciplinary tribunal for McBride, 299 BRIT. MED. J. 1360 (1989); G. F. Humphrey, Scientific fraud: the McBride case, 32 MED. SCI. LAW 199 (1992); Mark Lawson, McBride found guilty of fraud, 361 NATURE 673 (1993); Leigh Dayton, Thalidomide hero found guilty of scientific fraud, NEW SCI. (Feb.27, 1993); William McBride: alerted the world to the dangers of thalidomide in fetal development, 362 BRIT. MED. J. k3415 (2018).

[5] McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208 (D.C. Ct. App. 1986). McBride ultimately failed against all his litigation targets.

[6] See In Re Richardson-Merrell. Inc. Bendectin Prods. Liab. Litig., 624 F.Supp. 1212 (S.D. Ohio 1985); aff’d sub nom. In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988); cert. denied, 488 US 1006 (1989).

[7] Brock v. Merrell Dow Pharmaceuticals Inc., 874 F.2d 307 (5th Cir. 1989); Richardson y. Richardson-Merrell, 857 F.2d 823 (D.C. Cir. 1988); Lynch v. Merrell-National Labs., 830 F.2d 1190 (1st Cir. 1987) (affirming grant of summary judgment).

[8] US Food & Drug Admin., Determination That Bendectin Was Not Withdrawn from Sale for Reasons of Safety or Effectiveness, 64 FED. REG. 43190–1 (1999).

[9] Brief at 3-4.

[10] Barry Nace was one of the lead plaintiffs’ counsel in the Bendectin litigation, and he represented the Daubert family. Nace was also formerly President of the lawsuit industry’s principal lobbying organization, the American Trial Lawyers Association (now the AAJ). See also In re Barry J. Nace, A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 130724), No. 13–BG–1439, Slip op. (Sept. 4, 2014), available at <https://www.dccourts.gov/sites/default/files/pdf-opinions/13-BG-1439.pdf>, last visited on Feb. 8, 2026.

[11] See Michael D. Green, Pessimism about Milward, 3 WAKE FOREST J. L & POL’Y 41, 63 (2013) (paraphrasing Nace as describing the mosaic theory as “[d]amn brilliant, and I was the one who thought of it and fed it to Alan [Done].”).

[12] Id. at 61 (2013) (citing Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1110 (D.C. 1986).

[13] Harry Frankfurt, ON BULLSHIT 63 (2005).

[14] In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

[15] Id. at p. 1231.

[16] United States Dep’t of Justice, Tort Policy Working Group, Report of the Tort Policy Working Group on the causes, extent and policy implications of the current crisis in insurance availability and affordability at 35 (Report No. 027-000-01251-5) (Wash. DC 1986), available at https://archive.org/details/micro_IA41152903_0369.

[17] In Re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1233-34 (5th Cir. 1986).

[18] Id. at 1233-34.

[19] The Brief, at 2, cited United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1987) (citing Frye).

[20] An Act to Establish Rules of Evidence for Certain Courts and Proceedings. Pub. L. 93–595, 88 Stat. 1926 (1975).

[21] Brief at 17.

[22] 545 F.Supp. 306, 308 (N.D. Cal. 1982). See generally Richard E. Neustadt & Harvey V. Fineberg, THE SWINE FLU AFFAIR: DECISION-MAKING ON A SLIPPERY DISEASE (Nat’l Acad. Sci. 1978).

[23] Daubert v. Merrell Dow Pharms., Inc., 727 F.Supp. 570 (S.D. Cal. 1989).

[24] Id. at 571, citing United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978).

[25] Id. at 572 (citing Brock, 874 F.2d at 310).

[26] Id. at 574. The use of “association” was at best ambiguous, because it begged the question whether it as an association that was “clear cut” (reasonably free from bias and confounding), and beyond that which we would care to attribute to chance.

[27] Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128 (9th Cir. 1991).

[28] Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, modified, 884 F.2d 166 (5th Cir.1989), cert. denied, 494 U.S. 1046 (1990); Richardson v. Richardson–Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882 (1989); Lynch v. Merrell–National Labs., 830 F.2d 1190 (1st Cir.1987).

[29] DeLuca v. Merrell Dow Pharmaceuticals, Inc., 131 F.R.D. 71 (D.N.J.) (granting summary judgment), rev’d and remanded, 911 F.2d 941 (3d Cir.1990). On remand, the district court entered summary judgment on the alternative reasoning of Rule 702, as interpreted by the Third Circuit. DeLuca v. Merrell Dow Pharms., Inc., 791 F.Supp. 1042, 1048 (D.N.J. 1992) (re-entering summary judgment after considering Rule 702), aff’d, 6 F.3d 778 (3d Cir.1993) (per curiam), cert. denied, 510 U.S. 1044 (1994).

[30] Daubert v. Merrell Dow Pharms., Inc., 951 F.2d 1128, 1131 (9th Cir. 1991).

[31] Lynch v. Merrell–National Labs., 830 F.2d 1190, 1194-95 (1st Cir.1987).

[32] Paul M. McKeigue, Steven H. Lamm, Shai Linn & Jeffrey S. Kutcher, Bendectin and Birth Defects: I. A Meta-Analysis of the Epidemiologic Studies, 50 TERATOLOGY 27 (1994). This meta-analysis made no correction for multiple comparisons in examining many different types of birth defects.

Posted in Causation, Expert Witnesses, Frye, Meta-analysis, Peer Review, Rule 702, Rule 703, Scientific Evidence | No Comments »

Consensus Rule – Shadows of Validity

April 26th, 2023

Back in 2011, at a Fourth Circuit Judicial Conference, Chief Justice John Roberts took a cheap shot at law professors and law reviews when he intoned:

“Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”[1]

Anti-intellectualism is in vogue these days. No doubt, Roberts was jocularly indulging in an over-generalization, but for anyone who tries to keep up with the law reviews, he has a small point. Other judges have rendered similar judgments. Back in 1993, in a cranky opinion piece – in a law review – then Judge Richard A. Posner channeled the liar paradox by criticizing law review articles for “the many silly titles, the many opaque passages, the antic proposals, the rude polemics, [and] the myriad pretentious citations.”[2] In a speech back in 2008, Justice Stephen Breyer noted that “[t]here is evidence that law review articles have left terra firma to soar into outer space.”[3]

The temptation to rationalize, and to advocate for reflective equilibrium between the law as it exists, and the law as we think it should be, combine to lead to some silly and harmful efforts to rewrite the law as we know it.  Jeremy Bentham, Mr. Nonsense-on-Stilts, who sits stuffed in the hallway of the University of London, ushered in a now venerable tradition of rejecting tradition and common sense, in proposing all sorts of law reforms.[4]  In the early 1800s, Jeremy Bentham, without much in the way of actual courtroom experience, deviled the English bench and bar with sweeping proposals to place evidence law on what he thought was a rational foundation. As with his naïve utilitarianism, Bentham’s contributions to jurisprudence often ignored the realities of human experience and decision making. The Benthamite tradition of anti-tradition is certainly alive and well in the law reviews.

Still, I have a soft place in my heart for law reviews.  Although not peer reviewed, law reviews provide law students a tremendous opportunity to learn about writing and scholarship through publishing the work of legal scholars, judges, thoughtful lawyers, and other students. Not all law review articles are non-sense on stilts, but we certainly should have our wits about us when we read immodest proposals from the law professoriate.

*   *   *   *   *   *   *   *   *   *

Professor Edward Cheng has written broadly and insightfully about evidence law, and he certainly has the educational training to do so. Recently, Cheng has been bemused by the expert paradox, which wonders how lay persons, without expertise, can evaluate and judge issues of the admissibility, validity, and correctness of expert opinion. The paradox has long haunted evidence law, and it is at center stage in the adjudication of expert admissibility issues, as well as the trial of technical cases. Recently, Cheng has proposed a radical overhaul to the law of evidence, which would require that we stop asking courts to act as gatekeepers, and to stop asking juries to determine the validity and correctness of expert witness opinions before them. Cheng’s proposal would revert to the nose counting process of Frye and permit consideration of only whether there is an expert witness consensus to support the proffered opinion for any claim or defense.[5] Or in Plato’s allegory of the cave, we need to learn to be content with shadows on the wall rather than striving to know the real thing.

When Cheng’s proposal first surfaced, I wrote briefly about why it was a bad idea.[6] Since his initial publication, a law review symposium was assembled to address and perhaps to celebrate the proposal.[7] The papers from that symposium are now in print.[8] Unsurprisingly, the papers are both largely sympathetic (but not completely) to Cheng’s proposal, and virtually devoid of references to actual experiences of gatekeeping or trials of technical issues.

Cheng contends that the so-called Daubert framework for addressing the admissibility of expert witness opinion is wrong.  He does not argue that the existing law, in the form of Federal Rules of Evidence 702 and 703, does not call for an epistemic standard for both admitting opinion testimony, as well for the fact-finders’ assessments. There is no effort to claim that somehow four Supreme Court cases, and thousand of lower courts, have erroneously viewed the whole process. Rather, Cheng simply asserts non-expert judges cannot evaluate the reliability (validity) of expert witness opinions, and that non-expert jurors cannot “reach independent, substantive conclusions about specialized facts.”[9] The law must change to accommodate his judgment.

In his symposium contribution, Cheng expands upon his previous articulation of his proposed “consensus rule.”[10] What is conspicuously absent, however, is any example of failed gatekeeping that excluded valid expert witness opinion. One example, the appellate decision in Rosen v. Ciba-Geigy Corporation,[11] which Cheng does give, is illustrative of Cheng’s project. The expert witness, whose opinion was excluded, was on the faculty of the University of Chicago medical school; Richard Posner, the appellate judge who wrote the opinion that affirmed the expert witness’s exclusion, was on the faculty of that university’s law school. Without any discussion of the reports, depositions, hearings, or briefs, Cheng concludes that “the very idea that a law professor would tell medical school colleagues that their assessments were unreliable seems both breathtakingly arrogant and utterly ridiculous.”[12]

Except, of course, very well qualified scientists and physicians advance invalid and incorrect claims all the time. What strikes me as breathtakingly arrogant and utterly ridiculous is the judgment of a law professor who has little to no experience trying or defending Rule 702 and 703 issues labeling the “very idea” as arrogant and ridiculous. Aside from its being a petitio principia, we could probably add that the reaction is emotive, uninformed, and uninformative, and that it fails to support the author’s suggestion that “Daubert has it all wrong,” and that “[w]e need a different approach.”

Judges and jurors obviously will never fully understand the scientific issues before them.  If and when this lack of epistemic competence is problematic, we should honestly acknowledge how we are beyond the realm of the Constitution’s seventh amendment. Since Cheng is fantasizing about what the law should be, why not fantasize about not allowing lay people to decide complex scientific issues? Verdicts from jurors who do not have to give reasons for their decisions, and who are not in any sense peers of the scientists whose work they judge are normatively problematic.

Professor Cheng likens his consensus rule to how the standard of care is decided in medical malpractice litigation. The analogy is interesting, but hardly compelling in that it ignores “two schools of thought” doctrine.[13] In litigation of claims of professional malpractice, the “two schools of thought doctrine” is a complete defense.  As explained by the Pennsylvania Supreme Court,[14] physicians may defend against claims that they deviated from the standard of care, or of professional malpractice, by adverting to support for their treatment by a minority of professionals in their field:

“Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.”[15]

The analogy to medical malpractice litigation seems inapt.

Professor Cheng advertises that he will be giving full-length book treatment to his proposal, and so perhaps my critique is uncharitable in looking at a preliminary, (antic?) law review article. Still, his proposal seems to ignore that “general acceptance” renders consensus, when it truly exists, as relevant to both the court’s gatekeeping decisions, and the fact finders’ determination of the facts and issues in dispute. Indeed, I have never seen a Rule 702 hearing that did not involve, to some extent, the assertion of a consensus, or the lack thereof.

To the extent that we remain committed to trials of scientific claims, we can see that judges and jurors often can detect inconsistencies, cherry picking, unproven assumptions, and other aspects of the patho-epistemology of exert witness opinions. It takes a community of scientists and engineers to build a space rocket, but any Twitter moron can determine when a rocket blows up on launch. Judges in particular have (and certainly should have) the competence to determine deviations from the scientific and statistical standards of care that pertain to litigants’ claims.

Cheng’s proposal also ignores how difficult and contentious it is to ascertain the existence, scope, and actual content of scientific consensus. In some areas of science, such as occupational and environmental epidemiology and medicine, faux consensuses are set up by would-be expert witnesses for both claimants and defendants. A search of the word “consensus” in the PubMed database yields over a quarter of a million hits. The race to the bottom is on. Replacing epistemic validity with sociological and survey navel gazing seems like a fool’s errand.

Perhaps the most disturbing aspect of Cheng’s proposal is what happens in the absence of consensus.  Pretty much anything goes, a situation that Cheng finds “interesting,” and I find horrifying:

“if there is no consensus, the legal system’s options become a bit more interesting. If there is actual dissensus, meaning that the community is fractured in substantial numbers, then the non-expert can arguably choose from among the available theories. If the expert community cannot agree, then one cannot possibly expect non-experts to do any better.”[16]

Cheng reports that textbooks and other documents “may be both more accurate and more efficient” evidence of consensus.[17] Maybe; maybe not.  Textbooks are typically often dated by the time they arrive on the shelves, and contentious scientists are not beyond manufacturing certainty or doubt in the form of falsely claimed consensus.

Of course, often, if not most of the time, there will be no identifiable, legitimate consensus for a litigant’s claim at trial. What would Professor Cheng do in this default situation? Here Cheng, fully indulging the frolic, tells us that we

“should hypothetically ask what the expert community is likely to conclude, rather than try to reach conclusions on their own.”[18]

So the default situation transforms jurors into tea-leaf readers of what an expert community, unknown to them, will do if and when there is evidence of a quantum and quality to support a consensus, or when that community gets around to articulating what the consensus is. Why not just toss claims that lack consensus support?

[1] Debra Cassens Weiss, “Law Prof Responds After Chief Justice Roberts Disses Legal Scholarship,” Am. Bar Ass’n J. (July 7, 2011).

[2] Richard A. Posner, “Legal Scholarship Today,” 45 Stanford L. Rev. 1647, 1655 (1993), quoted in Walter Olson, “Abolish the Law Reviews!” The Atlantic (July 5, 2012); see also Richard A. Posner, “Against the Law Reviews: Welcome to a world where inexperienced editors make articles about the wrong topics worse,”
Legal Affairs (Nov. 2004).

[3] Brent Newton, “Scholar’s highlight: Law review articles in the eyes of the Justices,” SCOTUS Blog (April 30, 2012); “Fixing Law Reviews,” Inside Higher Education (Nov. 19, 2012).

[4] “More Antic Proposals for Expert Witness Testimony – Including My Own Antic Proposals” (Dec. 30, 2014).

[5] Edward K. Cheng, “The Consensus Rule: A New Approach to Scientific Evidence,” 75 Vanderbilt L. Rev. 407 (2022).

[6] “Cheng’s Proposed Consensus Rule for Expert Witnesses” (Sept. 15, 2022);
“Further Thoughts on Cheng’s Consensus Rule” (Oct. 3, 2022).

[7] Norman J. Shachoy Symposium, The Consensus Rule: A New Approach to the Admissibility of Scientific Evidence (2022), 67 Villanova L. Rev. (2022).

[8] David S. Caudill, “The ‘Crisis of Expertise’ Reaches the Courtroom: An Introduction to the Symposium on, and a Response to, Edward Cheng’s Consensus Rule,” 67 Villanova L. Rev. 837 (2022); Harry Collins, “The Owls: Some Difficulties in Judging Scientific Consensus,” 67 Villanova L. Rev. 877 (2022); Robert Evans, “The Consensus Rule: Judges, Jurors, and Admissibility Hearings,” 67 Villanova L. Rev. 883 (2022); Martin Weinel, “The Adversity of Adversarialism: How the Consensus Rule Reproduces the Expert Paradox,” 67 Villanova L. Rev. 893 (2022); Wendy Wagner, “The Consensus Rule: Lessons from the Regulatory World,” 67 Villanova L. Rev. 907 (2022); Edward K. Cheng, Elodie O. Currier & Payton B. Hampton, “Embracing Deference,” 67 Villanova L. Rev. 855 (2022).

[9] Embracing Deference at 876.

[10] Edward K. Cheng, Elodie O. Currier & Payton B. Hampton, “Embracing Deference,” 67 Villanova L. Rev. 855 (2022) [Embracing Deference]

[11] Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996).

[12] Embracing Deference at 859.

[13] “Two Schools of Thought” (May 25, 2013).

[14] Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964 (1992).

[15] Id. at 40.  See also Fallon v. Loree, 525 N.Y.S.2d 93, 93 (N.Y. App. Div. 1988) (“one of several acceptable techniques”); Dailey, “The Two Schools of Thought and Informed Consent Doctrine in Pennsylvania,” 98 Dickenson L. Rev. 713 (1994); Douglas Brown, “Panacea or Pandora’ Box:  The Two Schools of Medical Thought Doctrine after Jones v. Chidester,” 44 J. Urban & Contemp. Law 223 (1993).

[16] Embracing Deference at 861.

[17] Embracing Deference at 866.

[18] Embracing Deference at 876.

Posted in Evidence, Expert Witnesses, Frye, Rule 702, Rule 703, Scientific Evidence | 1 Comment »

Science Bench Book for Judges

July 13th, 2019

On July 1st of this year, the National Judicial College and the Justice Speakers Institute, LLC released an online publication of the Science Bench Book for Judges [Bench Book]. The Bench Book sets out to cover much of the substantive material already covered by the Federal Judicial Center’s Reference Manual:

Acknowledgments

Table of Contents

  1. Introduction: Why This Bench Book?
  2. What is Science?
  3. Scientific Evidence
  4. Introduction to Research Terminology and Concepts
  5. Pre-Trial Civil
  6. Pre-trial Criminal
  7. Trial
  8. Juvenile Court
  9. The Expert Witness
  10. Evidence-Based Sentencing
  11. Post Sentencing Supervision
  12. Civil Post Trial Proceedings
  13. Conclusion: Judges—The Gatekeepers of Scientific Evidence

Appendix 1 – Frye/Daubert—State-by-State

Appendix 2 – Sample Orders for Criminal Discovery

Appendix 3 – Biographies

The Bench Book gives some good advice in very general terms about the need to consider study validity,[1] and to approach scientific evidence with care and “healthy skepticism.”[2] When the Bench Book attempts to instruct on what it represents the scientific method of hypothesis testing, the good advice unravels:

“A scientific hypothesis simply cannot be proved. Statisticians attempt to solve this dilemma by adopting an alternate [sic] hypothesis – the null hypothesis. The null hypothesis is the opposite of the scientific hypothesis. It assumes that the scientific hypothesis is not true. The researcher conducts a statistical analysis of the study data to see if the null hypothesis can be rejected. If the null hypothesis is found to be untrue, the data support the scientific hypothesis as true.”[3]

Even in experimental settings, a statistical analysis of the data do not lead to a conclusion that the null hypothesis is untrue, as opposed to not reasonably compatible with the study’s data. In observational studies, the statistical analysis must acknowledge whether and to what extent the study has excluded bias and confounding. When the Bench Book turns to speak of statistical significance, more trouble ensues:

“The goal of an experiment, or observational study, is to achieve results that are statistically significant; that is, not occurring by chance.”[4]

In the world of result-oriented science, and scientific advocacy, it is perhaps true that scientists seek to achieve statistically significant results. Still, it seems crass to come right out and say so, as opposed to saying that the scientists are querying the data to see whether they are compatible with the null hypothesis. This first pass at statistical significance is only mildly astray compared with the Bench Book’s more serious attempts to define statistical significance and confidence intervals:

“4.10 Statistical Significance

The research field agrees that study outcomes must demonstrate they are not the result of random chance. Leaving room for an error of .05, the study must achieve a 95% level of confidence that the results were the product of the study. This is denoted as p ≤ 05. (or .01 or .1).”[5]

and

“The confidence interval is also a way to gauge the reliability of an estimate. The confidence interval predicts the parameters within which a sample value will fall. It looks at the distance from the mean a value will fall, and is measured by using standard deviations. For example, if all values fall within 2 standard deviations from the mean, about 95% of the values will be within that range.”[6]

Of course, the interval speaks to the precision of the estimate, not its reliability, but that is a small point. These definitions are virtually guaranteed to confuse judges into conflating statistical significance and the coefficient of confidence with the legal burden of proof probability.

The Bench Book runs into problems in interpreting legal decisions, which would seem softer grist for the judicial mill. The authors present dictum from the Daubert decision as though it were a holding:[7]

“As noted in Daubert, ‘[t]he focus, of course, must be solely on principles and methodology, not on the conclusions they generate’.”

The authors fail to mention that this dictum was abandoned in Joiner, and that it is specifically rejected by statute, in the 2000 revision to the Federal Rule of Evidence 702.

Early in the Bench Book, it authors present a subsection entitled “The Myth of Scientific Objectivity,” which they might have borrowed from Feyerabend or Derrida. The heading appears misleading because the text contradicts it:

“Scientists often develop emotional attachments to their work—it can be difficult to abandon an idea. Regardless of bias, the strongest intellectual argument, based on accepted scientific hypotheses, will always prevail, but the road to that conclusion may be fraught with scholarly cul-de-sacs.”[8]

In a similar vein, the authors misleadingly tell readers that “the forefront of science is rarely encountered in court,” and so “much of the science mentioned there shall be considered established….”[9] Of course, the reality is that many causal claims presented in court have already been rejected or held to be indeterminate by the scientific community. And just when readers may think themselves safe from the goblins of nihilism, the authors launch into a theory of naïve probabilism that science is just placing subjective probabilities upon data, based upon preconceived biases and beliefs:

“All of these biases and beliefs play into the process of weighing data, a critical aspect of science. Placing weight on a result is the process of assigning a probability to an outcome. Everything in the universe can be expressed in probabilities.”[10]

So help the expert witness who honestly (and correctly) testifies that the causal claim or its rejection cannot be expressed as a probability statement!

Although I have not read all of the Bench Book closely, there appears to be no meaningful discussion of Rule 703, or of the need to access underlying data to ensure that the proffered scientific opinion under scrutiny has used appropriate methodologies at every step in its development. Even a 412 text cannot address every issue, but this one does little to help the judicial reader find more in-depth help on statistical and scientific methodological issues that arise in occupational and environmental disease claims, and in pharmaceutical products litigation.

The organizations involved in this Bench Book appear to be honest brokers of remedial education for judges. The writing of this Bench Book was funded by the State Justice Institute (SJI) Which is a creation of federal legislation enacted with the laudatory goal of improving the quality of judging in state courts.[11] Despite its provenance in federal legislation, the SJI is a a private, nonprofit corporation, governed by 11 directors appointed by the President, and confirmed by the Senate. A majority of the directors (six) are state court judges, one state court administrator, and four members of the public (no more than two from any one political party). The function of the SJI is to award grants to improve judging in state courts.

The National Judicial College (NJC) originated in the early 1960s, from the efforts of the American Bar Association, American Judicature Society and the Institute of Judicial Administration, to provide education for judges. In 1977, the NJC became a Nevada not-for-profit (501)(c)(3) educational corporation, which its campus at the University of Nevada, Reno, where judges could go for training and recreational activities.

The Justice Speakers Institute appears to be a for-profit company that provides educational resources for judge. A Press Release touts the Bench Book and follow-on webinars. Caveat emptor.

The rationale for this Bench Book is open to question. Unlike the Reference Manual for Scientific Evidence, which was co-produced by the Federal Judicial Center and the National Academies of Science, the Bench Book’s authors are lawyers and judges, without any subject-matter expertise. Unlike the Reference Manual, the Bench Book’s chapters have no scientist or statistician authors, and it shows. Remarkably, the Bench Book does not appear to cite to the Reference Manual or the Manual on Complex Litigation, at any point in its discussion of the federal law of expert witnesses or of scientific or statistical method. Perhaps taxpayers would have been spared substantial expense if state judges were simply encouraged to read the Reference Manual.

[1]  Bench Book at 190.

[2]  Bench Book at 174 (“Given the large amount of statistical information contained in expert reports, as well as in the daily lives of the general society, the ability to be a competent consumer of scientific reports is challenging. Effective critical review of scientific information requires vigilance, and some healthy skepticism.”).

[3]  Bench Book at 137; see also id. at 162.

[4]  Bench Book at 148.

[5]  Bench Book at 160.

[6]  Bench Book at 152.

[7]  Bench Book at 233, quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993).

[8]  Bench Book at 10.

[9]  Id. at 10.

[10]  Id. at 10.

[11] See State Justice Institute Act of 1984 (42 U.S.C. ch. 113, 42 U.S.C. § 10701 et seq.).

Posted in Causation, Evidence, Expert Witness Discovery, Expert Witnesses, Frye, Reference Manual on Scientific Evidence, Rule 702, Rule 703, Scientific Evidence, statistical evidence | Comments Off on Science Bench Book for Judges

N.J. Supreme Court Uproots Weeds in Garden State’s Law of Expert Witnesses

August 8th, 2018

The United States Supreme Court’s decision in Daubert is now over 25 years old. The idea of judicial gatekeeping of expert witness opinion testimony is even older in New Jersey state courts. The New Jersey Supreme Court articulated a reliability standard before the Daubert case was even argued in Washington, D.C. See Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 447 (1991). Articulating a standard, however, is something very different from following a standard, and in many New Jersey trial courts, until very recently, the standard was pretty much anything goes.

One counter-example to the general rule of dog-eat-dog in New Jersey was Judge Nelson Johnson’s careful review and analysis of the proffered causation opinions in cases in which plaintiffs claimed that their use of the anti-acne medication isotretinoin (Accutane) caused Crohn’s disease. Judge Johnson, who sits in the Law Division of the New Jersey Superior Court for Atlantic County held a lengthy hearing, and reviewed the expert witnesses’ reliance materials.1 Judge Johnson found that the plaintiffs’ expert witnesses had employed undue selectivity in choosing what to rely upon. Perhaps even more concerning, Judge Johnson found that these witnesses had refused to rely upon reasonably well-conducted epidemiologic studies, while embracing unpublished, incomplete, and poorly conducted studies and anecdotal evidence. In re Accutane, No. 271(MCL), 2015 WL 753674, 2015 BL 59277 (N.J.Super. Law Div., Atlantic Cty. Feb. 20, 2015). In response, Judge Johnson politely but firmly closed the gate to conclusion-driven duplicitous expert witness causation opinions in over 2,000 personal injury cases. “Johnson of Accutane – Keeping the Gate in the Garden State” (Mar. 28, 2015).

Aside from resolving over 2,000 pending cases, Judge Johnson’s judgment was of intense interest to all who are involved in pharmaceutical and other products liability litigation. Judge Johnson had conducted a pretrial hearing, sometimes called a Kemp hearing in New Jersey, after the New Jersey Supreme Court’s opinion in Kemp v. The State of New Jersey, 174 N.J. 412 (2002). At the hearing and in his opinion that excluded plaintiffs’ expert witnesses’ causation opinions, Judge Johnson demonstrated a remarkable aptitude for analyzing data and inferences in the gatekeeping process.

When the courtroom din quieted, the trial court ruled that the proffered testimony of Dr., Arthur Kornbluth and Dr. David Madigan did not meet the liberal New Jersey test for admissibility. In re Accutane, No. 271(MCL), 2015 WL 753674, 2015 BL 59277 (N.J.Super. Law Div. Atlantic Cty. Feb. 20, 2015). And in closing the gate, Judge Johnson protected the judicial process from several bogus and misleading “lines of evidence,” which have become standard ploys to mislead juries in courthouses where the gatekeepers are asleep. Recognizing that not all evidence is on the same analytical plane, Judge Johnson gave case reports short shrift.

“[u]nsystematic clinical observations or case reports and adverse event reports are at the bottom of the evidence hierarchy.”

Id. at *16. Adverse event reports, largely driven by the very litigation in his courtroom, received little credit and were labeled as “not evidentiary in a court of law.” Id. at 14 (quoting FDA’s description of FAERS).

Judge Johnson recognized that there was a wide range of identified “risk factors” for irritable bowel syndrome, such as prior appendectomy, breast-feeding as an infant, stress, Vitamin D deficiency, tobacco or alcohol use, refined sugars, dietary animal fat, fast food. In re Accutane, 2015 WL 753674, at *9. The court also noted that there were four medications generally acknowledged to be potential risk factors for inflammatory bowel disease: aspirin, nonsteroidal anti-inflammatory medications (NSAIDs), oral contraceptives, and antibiotics. Understandably, Judge Johnson was concerned that the plaintiffs’ expert witnesses preferred studies unadjusted for potential confounding co-variables and studies that had involved “cherry picking the subjects.” Id. at *18.

Judge Johnson had found that both sides in the isotretinoin cases conceded the relative unimportance of animal studies, but the plaintiffs’ expert witnesses nonetheless invoked the animal studies in the face of the artificial absence of epidemiologic studies that had been created by their cherry-picking strategies. Id.

Plaintiffs’ expert witnesses had reprised a common claimants’ strategy; namely, they claimed that all the epidemiology studies lacked statistical power. Their arguments often ignored that statistical power calculations depend upon statistical significance, a concept to which many plaintiffs’ counsel have virulent antibodies, as well as an arbitrarily selected alternative hypothesis of association size. Furthermore, the plaintiffs’ arguments ignored the actual point estimates, most of which were favorable to the defense, and the observed confidence intervals, most of which were reasonably narrow.

The defense responded to the bogus statistical arguments by presenting an extremely capable clinical and statistical expert witness, Dr. Stephen Goodman, to present a meta-analysis of the available epidemiologic evidence.

Meta-analysis has become an important facet of pharmaceutical and other products liability litigation[1]. Fortunately for Judge Johnson, he had before him an extremely capable expert witness, Dr. Stephen Goodman, to explain meta-analysis generally, and two meta-analyses he had performed on isotretinoin and irritable bowel outcomes.

Dr. Goodman explained that the plaintiffs’ witnesses’ failure to perform a meta-analysis was telling when meta-analysis can obviate the plaintiffs’ hyperbolic statistical complaints:

“the strength of the meta-analysis is that no one feature, no one study, is determinant. You don’t throw out evidence except when you absolutely have to.”

In re Accutane, 2015 WL 753674, at *8.

Judge Johnson’s judicial handiwork received non-deferential appellate review from a three-judge panel of the Appellate Division, which reversed the exclusion of Kornbluth and Madigan. In re Accutane Litig., 451 N.J. Super. 153, 165 A.3d 832 (App. Div. 2017). The New Jersey Supreme Court granted the isotretinoin defendants’ petition for appellate review, and the issues were joined over the appropriate standard of appellate review for expert witness opinion exclusions, and the appropriateness of Judge Johnson’s exclusions of Kornbluth and Madigan. A bevy of amici curiae joined in the fray.2

Last week, the New Jersey Supreme Court issued a unanimous opinion, which reversed the Appellate Division’s holding that Judge Johnson had “mistakenly exercised” discretion. Applying its own precedents from Rubanick, Landrigan, and Kemp, and the established abuse-of-discretion standard, the Court concluded that the trial court’s ruling to exclude Kornbluth and Madigan was “unassailable.” In re Accutane Litig., ___ N.J. ___, 2018 WL 3636867 (2018), Slip op. at 79.3

The high court graciously acknowledged that defendants and amici had “good reason” to seek clarification of New Jersey law. Slip op. at 67. In abandoning abuse-of-discretion as its standard of review, the Appellate Division had relied upon a criminal case that involved the application of the Frye standard, which is applied as a matter of law. Id. at 70-71. The high court also appeared to welcome the opportunity to grant review and reverse the intermediate court reinforce “the rigor expected of the trial court” in its gatekeeping role. Id. at 67. The Supreme Court, however, did not articulate a new standard; rather it demonstrated at length that Judge Johnson had appropriately applied the legal standards that had been previously announced in New Jersey Supreme Court cases.4

In attempting to defend the Appellate Division’s decision, plaintiffs sought to characterize New Jersey law as somehow different from, and more “liberal” than, the United States Supreme Court’s decision in Daubert. The New Jersey Supreme Court acknowledged that it had never formally adopted the dicta from Daubert about factors that could be considered in gatekeeping, slip op. at 10, but the Court went on to note what disinterested observers had long understood, that the so-called Daubert factors simply flowed from a requirement of sound methodology, and that there was “little distinction” and “not much light” between the Landrigan and Rubanick principles and the Daubert case or its progeny. Id at 10, 80.

Curiously, the New Jersey Supreme Court announced that the Daubert factors should be incorporated into the New Jersey Rules 702 and 703 and their case law, but it stopped short of declaring New Jersey a “Daubert” jurisdiction. Slip op. at 82. In part, the Court’s hesitance followed from New Jersey’s bifurcation of expert witness standards for civil and criminal cases, with the Frye standard still controlling in the criminal docket. At another level, it makes no sense to describe any jurisdiction as a “Daubert” state because the relevant aspects of the Daubert decision were dicta, and the Daubert decision and its progeny were superseded by the revision of the controlling statute in 2000.5

There were other remarkable aspects of the Supreme Court’s Accutane decision. For instance, the Court put its weight behind the common-sense and accurate interpretation of Sir Austin Bradford Hill’s famous articulation of factors for causal judgment, which requires that sampling error, bias, and confounding be eliminated before assessing whether the observed association is strong, consistent, plausible, and the like. Slip op. at 20 (citing the Reference Manual at 597-99), 78.

The Supreme Court relied extensively on the National Academies’ Reference Manual on Scientific Evidence.6 That reliance is certainly preferable to judicial speculations and fabulations of scientific method. The reliance is also positive, considering that the Court did not look only at the problematic epidemiology chapter, but adverted also to the chapters on statistical evidence and on clinical medicine.

The Supreme Court recognized that the Appellate Division had essentially sanctioned an anything goes abandonment of gatekeeping, an approach that has been all-too-common in some of New Jersey’s lower courts. Contrary to the previously prevailing New Jersey zeitgeist, the Court instructed that gatekeeping must be “rigorous” to “prevent[] the jury’s exposure to unsound science through the compelling voice of an expert.” Slip op. at 68-9.

Not all evidence is equal. “[C]ase reports are at the bottom of the evidence hierarchy.” Slip op. at 73. Extrapolation from non-human animal studies is fraught with external validity problems, and such studies “far less probative in the face of a substantial body of epidemiologic evidence.” Id. at 74 (internal quotations omitted).

Perhaps most chilling for the lawsuit industry will be the Supreme Court’s strident denunciation of expert witnesses’ selectivity in choosing lesser evidence in the face of a large body of epidemiologic evidence, id. at 77, and their unprincipled cherry picking among the extant epidemiologic publications. Like the trial court, the Supreme Court found that the plaintiffs’ expert witnesses’ inconsistent use of methodological criteria and their selective reliance upon studies (disregarding eight of the nine epidemiologic studies) that favored their task masters was the antithesis of sound methodology. Id. at 73, citing with approval, In re Lipitor, ___ F.3d ___ (4th Cir. 2018) (slip op. at 16) (“Result-driven analysis, or cherry-picking, undermines principles of the scientific method and is a quintessential example of applying methodologies (valid or otherwise) in an unreliable fashion.”).

An essential feature of the Supreme Court’s decision is that it was not willing to engage in the common reductionism that has “all epidemiologic studies are flawed,” and which thus privileges cherry picking. Not all disagreements between expert witnesses can be framed as differences in interpretation. In re Accutane will likely stand as a bulwark against flawed expert witness opinion testimony in the Garden State for a long time.

1 Judge Nelson Johnson is also the author of Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City (2010), a spell-binding historical novel about political and personal corruption.

2 In support of the defendants’ positions, amicus briefs were filed by the New Jersey Business & Industry Association, Commerce and Industry Association of New Jersey, and New Jersey Chamber of Commerce; by law professors Kenneth S. Broun, Daniel J. Capra, Joanne A. Epps, David L. Faigman, Laird Kirkpatrick, Michael M. Martin, Liesa Richter, and Stephen A. Saltzburg; by medical associations the American Medical Association, Medical Society of New Jersey, American Academy of Dermatology, Society for Investigative Dermatology, American Acne and Rosacea Society, and Dermatological Society of New Jersey, by the Defense Research Institute; by the Pharmaceutical Research and Manufacturers of America; and by New Jersey Civil Justice Institute. In support of the plaintiffs’ position and the intermediate appellate court’s determination, amicus briefs were filed by political action committee the New Jersey Association for Justice; by the Ironbound Community Corporation; and by plaintiffs’ lawyer Allan Kanner.

3 Nothing in the intervening scientific record called question upon Judge Johnson’s trial court judgment. See, e.g., I.A. Vallerand, R.T. Lewinson, M.S. Farris, C.D. Sibley, M.L. Ramien, A.G.M. Bulloch, and S.B. Patten, “Efficacy and adverse events of oral isotretinoin for acne: a systematic review,” 178 Brit. J. Dermatol. 76 (2018).

4 Slip op. at 9, 14-15, citing Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 447 (1991) (“We initially took that step to allow the parties in toxic tort civil matters to present novel scientific evidence of causation if, after the trial court engages in rigorous gatekeeping when reviewing for reliability, the proponent persuades the court of the soundness of the expert’s reasoning.”).

5 The Court did acknowledge that Federal Rule of Evidence 702 had been amended in 2000, to reflect the Supreme Court’s decision in Daubert, Joiner, and Kumho Tire, but the Court did not deal with the inconsistencies between the present rule and the 1993 Daubert case. Slip op. at 64, citing Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 320-21, 320 n.8 (3d Cir. 2003).

6 See Accutane slip op. at 12-18, 24, 73-74, 77-78. With respect to meta-analysis, the Reference Manual’s epidemiology chapter is still stuck in the 1980s and the prevalent resistance to poorly conducted, often meaningless meta-analyses. See “The Treatment of Meta-Analysis in the Third Edition of the Reference Manual on Scientific Evidence” (Nov. 14, 2011) (The Reference Manual fails to come to grips with the prevalence and importance of meta-analysis in litigation, and fails to provide meaningful guidance to trial judges).

Posted in Evidence, Expert Witnesses, Frye, Meta-analysis, Reference Manual on Scientific Evidence, Rule 702, Scientific Evidence, statistical evidence, Statistical Power | Comments Off on N.J. Supreme Court Uproots Weeds in Garden State’s Law of Expert Witnesses

Mississippi High Court Takes the Bite Out of Forensic Evidence

November 3rd, 2017

The Supreme Court’s 1993 decision in Daubert changed the thrust of Federal Rule of Evidence 702, which governs the admissibility of expert witness opinion testimony in both civil and criminal cases. Before Daubert, lawyers who hoped to exclude opinions lacking in evidentiary and analytical support turned to the Frye decision on “general acceptance.” Frye, however, was an outdated rule that was rarely applied outside the context of devices. Furthermore, the meaning and application of Frye were unclear. Confusion reigned on whether expert witnesses could survive Frye challenges simply by adverting to their claimed use of a generally accepted science, such as epidemiology, even though their implementation of epidemiologic science was sloppy, incoherent, and invalid.

Daubert noted that Rule 702 should be interpreted in the light of the “liberal” goals of the Federal Rules of Evidence. Some observers rejoiced at the invocation of “liberal” values, but history of the last 25 years has shown that they really yearned for libertine interpretations of the rules. Liberal, of course, never meant “anything goes.” It is unclear why “liberal” cannot mean restricting evidence not likely to advance the truth-finding function of trials.

Criminal versus Civil

Back on April 27, 2009, then President Barack Obama announced the formation of the President’s Council of Advisors on Science and Technology (PCAST). The mission of PCAST was to advise the President and his administration on science and technology, and their policy implications. Although the PCAST was a new council, presidents have had scientific advisors and advisory committees back to Franklin Roosevelt, in 1933.

On September 20, 2016, PCAST issued an important report to President Obama, Report to the President on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. Few areas of forensic “science,” beyond DNA matching, escaped the Council’s withering criticism. Bite-mark evidence in particular received a thorough mastication.

The criticism was hardly new. Seven years earlier, the National Academies of Science issued an indictment that forensic scientists had largely failed to establish the validity of their techniques and conclusions, and that the judiciary had “been utterly ineffective in addressing this problem.”1

The response from Obama’s Department of Justice, led by Loretta Lynch, was underwhelming.2 The Trump response was equally disappointing.3 The Left and the Right appear to agree that science is dispensable when it becomes politically inconvenient. It is a common place in the community of evidence scholars that Rule 702 is not applied with the same enthusiasm in criminal cases, to the benefit of criminal defendants, as the rule is sometimes, sporadically and inconsistently applied in civil cases. The Daubert revolution has failed the criminal justice system perhaps because courts are unwilling to lift the veil on forensic evidence, for fear they may not like what the find.4

A Grudging Look at the Scientific Invalidity of Bite Mark Evidence

Sherwood Brown was convicted of a triple murder in large measure as a result of testimony from Dr. Michael West, a forensic odontologist. West, as well as another odontologist, opined that a cut on Brown’s wrist matched the shape of a victim’s mouth. DNA testing authorized after the conviction, however, rendered West’s opinions edentulous. Samples from inside the female victim’s mouth yielded male DNA, but not that of Mr. Brown.5

Did the PCAST report leave an impression upon the highest court of Mississippi? The Supreme Court of Mississippi vacated Brown’s conviction and remanded for a new trial, in an opinion that a bitemark expert might describe as reading like a bite into a lemon. Brown v. State, No. 2017 DR 00206 SCT, Slip op. (Miss. Sup. Ct. Oct. 26, 2017). The majority could not bring themselves to comment upon the Dr. West’s toothless opinions. Three justices would have kicked the can down to the trial judge by voting to grant a new hearing without vacating Brown’s convictions. The decision seems mostly predicated on the strength of the DNA evidence, rather than the invalidity of the bite mark evidence. Mr. Brown will probably be vindicated, but bite mark evidence will continue to mislead juries, with judicial imprimatur.

1 National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward 53 (2009).

2 See Jordan Smith, “FBI and DoJ Vow to Continue Using Junk Science Rejected by White House Report,” The Intercept (Sept. 23, 2016); Radley Balko, “When Obama wouldn’t fight for science,” Wash. Post (Jan. 4, 2017).

3 See Radley Balko, “Jeff Sessions wants to keep forensics in the Dark Ages,” Wash. Post (April 11, 2017); Jessica Gabel Cino, “Session’s Assault on Forensic Science Will Lead to More Unsafe Convictions,” Newsweek (April 20, 2017).

4 See, e.g., Paul C. Giannelli, “Forensic Science: Daubert’s Failure,” Case Western Reserve L. Rev. (2017) (“in press”).

Posted in Expert Witnesses, Frye, Rule 702 | Comments Off on Mississippi High Court Takes the Bite Out of Forensic Evidence

Every Time a Bell Rings

July 1st, 2017

“Every time a bell rings, an angel gets his wings.”
Zuzu Bailey

And every time a court issues a non-citable opinion, a judge breaks fundamental law. Whether it wants to or not, a common law court, in deciding a case, creates precedent, and an expectation and a right that other, similarly situated litigants will be treated similarly. Deciding a case and prohibiting its citation deprives future litigants of due process and equal protection of the law. If that makes for more citable opinions, more work for judges and litigants, so be it; that is what our constitution requires.

Back in 2015, Judge Bernstein issued a ruling in a birth defects case in which the mother had claimed to have taken sertraline during pregnancy and this medication use caused her child to be born with congenital malformations. Applying what Pennsylvania courts insist is a Frye standard, Judge Bernstein excluded the proffered expert witness testimony that attempted to draw a causal connection between the plaintiff’s birth defect and the mother’s medication use. Porter v. SmithKline Beecham Corp., No. 03275, 2015 WL 5970639 (Phila. Cty. Pennsylvania, Ct. C.P. October 5, 2015) (Mark I. Bernstein, J.) Judge Bernstein has since left the bench, but he was and is a respected commentator on Pennsylvania evidence1, even if he was generally known for his pro-plaintiff views on many legal issues. Bernstein’s opinion in Porter was a capable demonstration of how Pennsylvania’s Frye rule can be interpreted to reach essentially the same outcome that is required by Federal Rule of Evidence 702. See “Demonstration of Frye Gatekeeping in Pennsylvania Birth Defects Case” (Oct. 6, 2015); In re Zoloft Prod. Liab. Litig., No. 16-2247 , __ F.3d __, 2017 WL 2385279 , 2017 U.S. App. LEXIS 9832 (3d Cir. June 2, 2017) (affirming exclusion of dodgy statistical analyses and opinions, and the trial court’s entry of summary judgment on claims that sertraline causes birth defects).

In May of this year, the Pennsylvania Superior Court affirmed Judge Bernstein’s judgment, and essentially approved and adopted his reasoning. Porter v. SmithKline Beecham Corp., No. 3516 EDA 2015,2017 WL 1902905 (Pa. Super. May 8, 2017). What the Superior Court purport to giveth, the Superior Court taketh away. The Porter decision is franked as a “Non-Precedential Decision – See Superior Court I.O.P. 65.37.”

What is this Internal Operating Procedure that makes the Superior Court think that it can act and decide cases without creating precedent? Here is the relevant text from the Pennsylvania Code:

  1. An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited
  1. when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and
  1. when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding.

210 Pa. Code § 65.37. Unpublished Memoranda Decisions. So, in other words, it is secret law.

No citation and no precedent rules are deeply problematic, and have attracted a great deal of scholarly attention2. And still, courts engage in this problematic practice. Prohibiting citation of Superior Court decisions in Pennsylvania is especially problematic in a state in which the highest court hears relatively few cases, and where the Justices involve themselves in internecine disputes. As other commentators have noted, prohibiting citation to prior decisions admitting or excluding expert witness testimony stunts the development of an area of evidence law, in which judges and litigants are often confused and in need of guidance. William E. Padgett, “‘Non-Precedential’ Unpublished Decisions in Daubert and Frye Cases, Often Silenced,” Nat’l L. Rev. (2017). The abuses of judge-made secret law from uncitable decisions has been abolished in the federal appeals courts for over a decade3. It is time for the state courts to follow suit.

1 See, e.g., Mark I. Bernstein, Pennsylvania Rules of Evidence (2017).

2 See Erica Weisgerber, “Unpublished Opinions: A Convenient Means to an Unconstitutional End,” 97 Georgetown L.J. 621 (2009);  Rafi Moghadam, “Judge Nullification: A Perception of Unpublished Opinions,” 62 Hastings L.J. 1397 (2011);  Norman R. Williams, “The failings of Originalism:  The Federal Courts and the Power of Precedent,” 37 U.C.. Davis L. Rev.761 (2004);  Dione C. Greene, “The Federal Courts of Appeals, Unpublished Decisions, and the ‘No-Citation Rule,” 81 Indiana L.J. 1503 (2006);  Vincent M. Cox, “Freeing Unpublished Opinions from Exile: Going Beyond the Citation Permitted by Proposed Federal Rule of Appellate Procedure 32.1,” 44 Washburn L.J. 105 (2004);  Sarah E. Ricks, “The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of The Substantive Due Process State-Created Danger Doctrine in One Circuit,” 81 Wash. L.Rev. 217 (2006);  Michael J. Woodruff, “State Supreme Court Opinion Publication in the Context of Ideology and Electoral Incentives.” New York University Department of Politics (March 2011);  Michael B. W. Sinclair, “Anastasoff versus Hart: The Constitutionality and Wisdom of Denying Precedential Authority to Circuit Court Decisions”; Thomas Healy, “Stare Decisis as a Constitutional Requirement,” 104 W. Va. L. Rev. 43 (2001); David R. Cleveland & William D. Bader, “Precedent and Justice,” 49 Duq. L. Rev. 35 (2011); Johanna S. Schiavoni, “Who’s Afraid of Precedent,” 49 UCLA L. Rev. 1859 (2002); Salem M. Katsh and Alex V. Chachkes, “Constitutionality of ‘No-Citation’ Rules,” 3 J. App. Prac. & Process 287 (2001); David R. Cleveland, “Appellate Court Rules Governing Publication, Citation, and Precedent of Opinions: An Update,” 16 J. App. Prac. & Process 257 (2015). See generally The Committee for the Rule of Law (website) (collecting scholarship and news on the issue of unpublished and supposedly non-precedential opinions). The problem even has its own Wikipedia page. See “Non-publication of legal opinions in the United States.”

3 See Fed. R. App. Proc. 32.1 (prohibiting federal courts from barring or limiting citation to unpublished federal court opinions, effective after Jan. 1, 2007).

Posted in Causation, Expert Witnesses, Frye, Rule 702 | Comments Off on Every Time a Bell Rings

New York Rejects the Asbestos Substantial Factor Ruse (Juni Case)

March 2nd, 2017

I recall encountering Dr. Joseph Sokolowski in one of my first asbestos personal injury cases, 32 years ago. Dr. Sokolowki was a pulmonary specialist in Cherry Hill, New Jersey, and he showed up for plaintiffs in cases in south Jersey as well as in Philadelphia. Plaintiffs’ counsel sought him out for his calm and unflappable demeanor, stentorious voice, and propensity for over-interpreting chest radiographs. (Dr. Sokolowski failed the NIOSH B-Reader examination.)

At the end of his direct examination, the plaintiff’s lawyer asked Dr. Sokolowski the derigueur “substantial factor” question, which in 1985 had already become a customary feature of such testimonies. And Dr. Sokolowski delivered his well-rehearsed answer: “Each and every exposure to asbestos was a substantial factor in causing the plaintiff’s disease.”

My cross-examination picked at the cliché. Some asbestos inhaled was then exhaled. Yes. Some asbestos inhaled was brought up and swallowed. Yes. Asbestos that was inhaled and retained near the hilum did not participate in causing disease at the periphery of the lung. Yes. And so on, and so forth. I finished with my rhetorical question, always a dangerous move, “So you have no way to say that each and every exposure to asbestos actually participated in causing the plaintiff’s disease?” Dr. Sokolowski was imperceptibly thrown off his game, but he confessed error by claiming the necessity to cover up the gap in the evidence. “Well, we have no way to distinguish among the exposures so we have to say all were involved.”

Huh? What did he say? Move to strike the witness’s testimony as irrational, and incoherent. How can a litigant affirmatively support a claim by asserting his ignorance of the necessary foundational facts? The trial judge overruled my motion with alacrity, and the parties continued with the passion play called asbestos litigation. The judge was perhaps simply eager to get on with his docket of thousands of asbestos cases, but at least Dr. Sokolowski and I recognized that the “substantial factor” testimony was empty rhetoric, with no scientific or medical basis.

Sadly, the “substantial factor” falsehood was already well ensconced in 1985, in Pennsylvania law, as well as the law of most other states. Now, 32 years later, with ever increasingly more peripheral defendants, each involving less significant, if any, asbestos exposure, the “substantial factor” ruse is beginning to unravel.1

Juni v. A.O. Smith Water Products Co.

Arthur Juni was a truck and car car mechanic, who worked on the clutches, brakes, and manifold gaskets of Ford trucks. Juni claimed to have sustained asbestos exposure in this work, as well as in other aspects of his work career. In 2012, Juni was diagnosed with mesothelioma; he died in 2014. Juni v. A.O. Smith Water Products Co., at *1,No. 190315/12 2458 2457, 2017 N.Y. Slip Op. 01523 (N.Y. App. Div. 1st Dep’t, Feb. 28, 2017).

Juni sued multiple defendants in New York Supreme Court, for New York County. Most of the defendants settled, but Ford Corporation tried the case against the plaintiff’s widow. Both sides called multiple expert witnesses, whose testimony disputed whether the chrysotile asbestos in Ford’s brakes and clutches could cause mesothelioma. The jury returned a verdict in favor of the plaintiff, but the trial court granted judgment nothwithstanding the verdict, on the ground that the evidence failed to support the causation verdict. Id. At *1; see Juni v. A. 0. Smith Water Prod., 48 Misc. 3d 460, 11 N.Y.S.3d 415 (N.Y. Sup. Ct. 2015).

Earlier this week, the first department of the New York Appellate Division affirmed the judgment for Ford. 2017 N.Y. Slip Op. 01523. The Appellate Division refused to approve plaintiffs’ theory of cumulative exposure to show causation. The plaintiffs’ expert witnesses, Drs. Jacqueline Moline and Stephen Markowitz, both asserted that even a single asbestos exposure was a “substantial contributing” cause. The New York appellate court, like the trial court before, saw through the ruse, and declared that both expert witnesses had failed to support their assertions.

The “Asbestos Exception” Rejected

Although New York has never enacted a codified set of evidence rules, and has never expressly adopted the rule of Daubert v. Merrill Richardson, the New York Court of Appeals has held that there are limits to the admissibility of expert witness opinion testimony. Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762 (2014); Sean Reeps. v BMW of North Am., LLC, 26 N.Y.3d 801 (2016). In Juni, the Appellate Division, First Department, firmly rejected any suggestion that plaintiffs’ expert witnesses in asbestos cases are privileged against challenge over admissibility or sufficiency because the challenges occur in an asbestos case. The plaintiff’s special pleading that asbestos causation of mesothelioma is too difficult was invalidated by the success of other plaintiffs, in other cases, in showing that a specific occupational exposure was sufficient to cause mesothelioma.

The Appellate Division also rejected the plaintiff’s claim, echoed in the dissenting opinion of one lone judge, that there exists a “consensus from the medical and scientific communities that even low doses of asbestos exposure, above that in the ambient environment, are sufficient to cause mesothelioma.” The Court held that this supposed consensus is not material to the claims of a particular plaintiff against a particular defendant, especially when the particular exposure circumstance is not associated with mesothelioma in most of the relevant studies. In Juni, the defense had presented many studies that failed to show any association between occupational brake work and mesothelioma. The court might also have added that a characterization of low exposure is extremely amiguous, depending upon the implicit comparison that is being made with other exposures. It is impossible to fit a particular plaintiff’s exposure into the scale of low, medium, and high without some further context.

Single Exposure Sufficiency Rejected

The evidence that chrysotile itself causes mesothelioma remains weak, but the outcome of Juni turned not on the broad general causation question, but on the question whether even suggestive evidence of chrysotile causation had been established for the exposure circumstances of an automobile mechanic, such as Mr. Juni. Plaintiffs’ expert witnesses maintained that Juni’s cumulative asbestos exposures caused his mesothelioma, but they had no meaningful quantification or even reasonable estimate of his exposure.

Citing the Court of Appeals decision in Reeps, the Appellate Division held that plaintiff’s expert witnesses’ causation opinions must be supported by reasonable quantification of the plaintiff’s exposure, or some some scientific method, such as mathematical modeling based upon actual work history, or by comparison of plaintiff’s claimed exposure with the exposure of workers in reported studies that establish a relevant risk from those workers’ exposure. In the Juni case, however, there were no exposure measurements or scientific models, and the comparison with workers doing similar tasks failed to show a causal relationship between the asbestos exposure in those tasks and mesothelioma.

Expert Witness Admissibility and Sufficiency Requires Evaluation of Both Direct and Cross-examination Testimony and Relied Upon Studies

The Juni decision teaches another important lesson for challenging expert witness testimony in New York: glib generalizations delivered on direct examination must be considered in the light of admissions and concessions made on cross-examination, and the entire record. In Juni, the plaintiffs’ expert witnesses, Jacqueline Moline and Stephen Markowitz, asserted that asbestos in Ford’s friction products was a cause of plaintiff’s mesothelioma. Cross-examination, however, revealed that these assertions were lacking in factual support.

Cumulative Exposure

On cross-examination, the plaintiffs’ expert witnesses’ statements about exposure levels proved meaningless. Moline attempted to equate visible dust with sufficient asbestos exposure to cause disease, but she conceded on cross-examination that studies had shown that 99% of brake lining debris was not asbestos. Most of the dust observed from brake drums is composed of resins used to manufacture brake linings and pads. The heat and pressure of the brake drum causes much of the remaining chrysotile to transform into a non-fibrous mineral, fosterite.

Similarly, Markowitz had to acknowledge that chrysotile has a “serpentine” structure, with individual fibers curling in a way that makes deeper penetration into the lungs more difficult. Furthermore, chrysotile, a hydrated magnesium silicate, melts in the lungs, not in the hands. The human lung can clear particulates, and so there is no certainty that remaining chrysotile fibers from brake lining exposures ever reach the periphery of the lung, where they could interact with the pleura, the tissue in which mesothelioma arises.

Increased Risk, “Linking,” and Association Are Not Causation – Exculpatory Epidemiologic Studies

When pressed, plaintiffs’ expert witnesses lapsed into characterizing the epidemiologic studies of brake and automobile mechanics as showing increased risk or association, not causation. Causation, not association, however, was the issue. Witnesses’ invocation of weasel words, such as “increased risk,” “linkage,” and “association” are insufficient in themselves to show the requisite causation in long-latency toxic exposure cases. For automobile mechanics, even the claimed association was weak at best, with plaintiffs’ expert witnesses having to acknowledge that 21 of 22 epidemiologic studies failed to show an association between automobile mechanics’ asbestos exposure and risk of mesothelioma.

The Juni case was readily distinguishable from other cases in which the Markowitz was able to identify epidemiologic studies that showed that visible dust from a specific product contained sufficient respirable asbestos to cause mesothelioma. Id. (citing Caruolo v John Crane, Inc., 226 F.3d 46 (2d Cir. 2000). As the Appellate Division put the matter, there was no “no valid line of reasoning or permissible inference which could have led the jury to reach its result.” Asbestos plaintiffs must satisfy the standards set out in the New York Court of Appeals decisions, Parker v. Mobil Oil Corp., 7 NY3d 434 2006), and Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014), for exposure evidence and causal inferences, as well.

New York now joins other discerning courts in rejecting regulatory rationales of “no safe exposure,” and default “linear no threshold” exposure-response models as substitutes for inferring specific causation.2 A foolish consistency may be the hobgoblin of little minds, but in jurisprudence, consistency is often the bedrock for the rule of law.

1 The ruse of passing off “no known safe exposure” as evidence that even the lowest exposure was unsafe has been going on for a long time, but not all judges are snookered by this rhetorical sleight of hand. See, e.g., Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 358 (Tex. 2014) (“the failure of science to isolate a safe level of exposure does not prove specific causation”).

2 See, e.g. Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 358 (Tex. 2014) (failing to identify safe levels of exposure does not suffice to show specific causation); Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1165-66 (E.D. Wash. 2009) (rejecting a “no threshold” model of exposure-response as unfalsifiable and unvalidated, and immaterial to the causation claims); Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 679 (6th Cir. 2011) (rejecting claim that plaintiff’s exposure to benzene “above background level,” but below EPA’s maximum permissible contaminant level, caused her cancer); Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 10006, 1015 (E.D. Wash. 2010) (rejecting Dr. David Egilman’s proffered testimony on specific causation based upon his assertion that there was no known safe level of diacetyl exposure).

Posted in Asbestos, Causation, Expert Witnesses, Frye, Rule 702, Scientific Evidence | Comments Off on New York Rejects the Asbestos Substantial Factor Ruse (Juni Case)

Omalu and Science — A Bad Weld

October 22nd, 2016

Bennet Omalu is a star of the silver screen and in the minds of conspiratorial thinkers everywhere. Actually Will Smith[1] stood in for Omalu in the movie Concussion (2015), but Smith’s skills as an actor bring out the imaginary best in Omalu’s persona.

Chronic Traumatic Encephalopathy (CTE) is the name that Bennet Omalu, a pathologist, gave to the traumatic brain injuries resulting from repeated concussions experienced by football players.[2]  The concept is not particularly new; the condition of dementia pugilistica had been described previously in boxers. What was new with Omalu was his fervid imagination and his conspiratorial view of the world.[3] The movie Concussion  actually gives an intimation of some of the problems in Omalu’s scientific work.  See, e.g., Daniel Engber, “Concussion Lies: The film about the NFL’s apparent CTE epidemic feeds the pervasive national myths about head trauma,” Slate (Dec. 21 2015); Bob Hohler, “BU rescinds award to ‘Concussion’ trailblazer,” Boston Globe (June 16, 2016).

Omalu has more dubious claims to fame. He has not cabined his unique, stylized approach to science to the subject of head trauma. Although Omalu is a pathologist, not a clinician, Omalu recently he weighed in with observations that Hillary Clinton was definitely unwell. Indeed, Bennet Omalu has now made a public nuisance of himself by floating conspiratorial theories that Hilary Clinton has been poisoned. Cindy Boren, “The man who discovered CTE thinks Hillary Clinton may have been poisoned,” Wash. Post (Sept. 12, 2016); Christine Rushton, “‘Concussion’ doctor suggests without evidence that poison a factor in Clinton’s illness,” Los Angeles Times. (Sept. 13, 2016).

In the courtroom, in civil cases, Omalu has a poor track record for scientific rigor. The United States Court of Appeals, for the Third Circuit, which can be tough and skeptical of Rule 702 expert witness exclusions, readily affirmed an exclusion of Omalu’s testimony in Pritchard v. Dow Agro Sciences, 705 F. Supp. 2d 471 (W.D. Pa. 2010), aff’d, 430 F. App’x 102, 104 (3d Cir. 2011). In Pritchard, Omalu was caught misrepresenting the statistical data from published studies in a so-called toxic tort case. Fortunately, robust gatekeeping was able to detoxify the proffered testimony.[4]

More recently, Omalu was at it again in a case in which a welder claimed that exposure to welding and solvent fumes caused him to develop Parkinson’s disease. Brian v. Association of Independent Oil Distributors, No. 2011-3413, Westmoreland Cty. Ct. Common Pleas, Order of July 18, 2016. [cited here as Order].

James G. Brian developed Parkinson disease (PD), after 30 years of claimed exposure to welding and solvent fumes. It is America, so Brian sued Lincoln Electric and various chemical companies on his theory that his PD was caused by his welding and solvent exposures, either alone or together. Now although manganese in very high exposures can cause a distinctive movement disorder, manganism, manganese in welding fume does not cause PD in humans.[5] Omalu was undeterred, however, and proceeded by conjecturing that welding fume interacted with solvent fumes to cause Brian’s PD.

At the outset of the case, Brian intended to present testimony of expert witnesses, Bennet Omalu, Richard A. Parent, a toxicologist, and Jordan Loyal Holtzman, a pharmacologist.  Parent commenced giving a deposition, but became so uncomfortable with his own opinion that he put up a white flag at the deposition, and withdrew from the case.  On sober reflection, Holtzman also withdrew from the case.

Omalu was left alone, to make the case on general and specific causation. Defendant Lincoln Electric and others moved to exclude Omalu, under Pennsylvania’s standard for admissibility of expert witness opinion testimony, which is based upon a patch-work version of Frye v. United States, 293 F. 1013 (D. C. Cir. 1923).

Invoking a quirky differential diagnosis, and an idiosyncratic reading of Sir Austin Bradford Hill’s work, Omalu defended his general and specific causation opinions. After briefing and a viva voce hearing, President Judge Richard E. McCormick ruled that Omalu had misapplied both methodologies in reaching his singular opinion. Order at 8.

Omalu did not make the matter easy for Judge McCormick. There was no question that Brian had PD.  Every clinician who had examined him made the diagnosis. Knowing that PD is generally regarded as idiopathic, with no known cause, Omalu thought up a new diagnosis: chronic toxic encephalopathy.

When confronted with the other clincians’ diagnoses, Omalu did not dispute the diagnosis of PD. Instead, he attempted to evade the logical implications of the diagnosis of idiopathic PD by continually trying to change the terminology to suit his goals. Judge McCormick saw through Omalu’s semantic evasions, which bolstered the case for excluding him at trial.

Madness to His Method

In scrutinizing Omalu’s opinions, Judge McCormick found more madness than method. Omalu claimed that he randomly selected studies to rely upon, and he failed to explain the strengths and weaknesses of the cited studies when he formed his opinion.

Despite his claim to have randomly selected studies, Omalu remarkably managed to ignore epidemiologic studies that were contrary to his causal conclusions. Order at 9.  Indeed, Omalu missed more than half the published studies on welding and PD.  Not surprisingly, Omalu did not record his literature search; nor could explain, in deposition or at the court hearing, his inclusionary or exclusionary criteria for pertinent studies. Id. at 10. When confronted about his “interaction” opinions concerning welding and solvent fumes, Omalu cited several studies, none of which measured or assessed combined exposures.  Some of the papers flatly contradicted Omalu’s naked assertions. Id. at 9.

Judge McCormick rejected Omalu’s distorted invocation of the Bradford Hill factors to support a causal association when no association had yet been found. The court quoted from the explanation provided by Prof. James A. Mortimer, the defense neuroepidemiologist, at the Frye hearing:

“First, the Bradford Hill criteria should not be applied until you have ruled out a chance association, which [Omalu] did not do. In fact, as I will point out, carefully done epidemiologic studies will show there is no increased risk of Parkinson’s disease with exposure to welding fume and/or solvents, therefore the application of these criteria is inappropriate.”

Order at 11, citing to and quoting from Frye Hearing at 318 (Oct. 14, 2015).

When cornered, Omalu asserted that he never claimed that Mr. Brian’s PD was caused by welding or solvents; rather his contention was simply that occupational exposures had created a “substantial increased risk” of PD. Id. at 14. Risk creation, however, is not causation; and Omalu had not even shown unquantified evidence of increased risk before Brian developed PD. The court found that Omalu had not used any appropriate methodology with respect to general causation. Id. at 14.

Specific Causation

Undaunted, Omalu further compromised his credibility by claiming that Bradford Hill’s factors allowed him to establish specific causation, even in the absence of general causation. Id. at 12. Omalu suggested that he had performed a differential diagnosis, even though he is not a clinician, and as a pathologist had not evaluated any brain tissue. Id. at 10. The court deftly saw through these ruses. Id. at 11.

Judge McCormick’s conclusion should be a precautionary lesson to future courts that must gatekeep Omalu’s opinions, or Omalu-like opinions:

“In conclusion, we agree with the Defendants that while Dr. Omalu’s stated methodology in this case is generally accepted in the medical and scientific community, Dr. Omalu failed to properly apply it. He misused and demonstrated a lack of understanding of the Bradford Hill criteria and the Schaumburg criteria when he attempted to employ these methodologies to conduct a differential diagnosis or differential etiology analysis.”

Id. at 16. Gatekeeping is sometimes viewed as more difficult in Frye jurisdictions, but the exclusion of Omalu shows that it can be achieved when expert witnesses deviate materially from scientifically standard methodology.

[1] For other performances by Will Smith in this vein, see Six Degrees of Separation (1993); Focus (2015).

[2] See Bennet I. Omalu, Steven DeKosky, Ryan Minster, M. Ilyas Kamboh, Ronald Hamilton, Cyril H. Wecht, “Chronic Traumatic Encephalopathy in a National Football League Player, Part I,” 57 Neurosurgery 128 (2005); Bennet I. Omalu, Steven DeKosky, Ronald Hamilton, Ryan Minster, M. Ilyas Kamboh, Abdulrezak Shakir, and Cyril H. Wecht, “Chronic Traumatic Encephalopathy in a National Football League Player, Part II,” 59 Neurosurgery 1086 (2006).

[3] See Jeanne Marie Laskas, “The Doctor the NFL Tried to Silence,” Wall St. J. (Nov. 24, 2015).

[4] See “Pritchard v. Dow Agro – Gatekeeping Exemplified” (Aug. 25, 2014).

[5] See, e.g., Marianne van der Mark, Roel Vermeulen, Peter C.G. Nijssen, Wim M. Mulleners, Antonetta M.G. Sas, Teus van Laar, Anke Huss, and Hans Kromhout, “Occupational exposure to solvents, metals and welding fumes and risk of Parkinson’s disease,” 21 Parkinsonism Relat Disord. 635 (2015); James Mortimer, Amy Borenstein & Laurene Nelson, Associations of Welding and Manganese Exposure with Parkinson’s Disease: Review and Meta-Analysis, 79 Neurology 1174 (2012); Joseph Jankovic, “Searching for a relationship between manganese and welding and Parkinson’s disease,” 64 Neurology 2012 (2005).

Posted in Causation, Frye, Risk and Risk Factor | Comments Off on Omalu and Science — A Bad Weld

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]

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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

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