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The Relative Implausibility of Relative Plausibility

May 26th, 2025

For the moment, in the American legal academy, there seems to be a fair amount of support for the idea that the burden of proof in fact-finding is centered around a vigorous contest between the plausibility of competing stories advanced by the litigants. Professors Ronald Allen and Alex Stein, two well-respected evidence law scholars have written widely about this “relative plausibility” theory of adjudication and the burden of proof.[1] They claim to “demonstrate that factfinders decide cases predominantly by applying the relative plausibility criterion guided by inference to the best explanation … .”[2] As they see American courtroom practice, the norm is “the relative plausibility mode of factfinding involving a rigorous comparison between the parties’ stories about the individual event.”[3] They insist that their “theory aligns with ordinary people’s natural reasoning.”[4]

I am not so sure. Semantically, the authors’ choice of the term “plausibility” is curious. Plausibility in ordinary usage has only a tenuous relationship with epistemic warrant. Allen and Stein acknowledge that in law (as in science and in life), the “coin of the realm is truth.” Plausibility in epistemology and philosophy of science, however, is typically treated as a weak and often irrelevant factor in assessing the correctness of a factual (scientific) claim. A leading textbook of epidemiology, for instance, offers that

“[a] causal explanation is plausible if it appears reasonable or realistic within the context in which the hypothesized cause and its effect occur. *** Plausibility can change as the context evolves and will be misleading when current understanding is misleading or wrong.”[5]

A plausible fact is not the same as a known fact, or a well-established fact. In his oft-cited after-dinner speech, Sir Austin Bradford Hill, for instance, acknowledged that plausibility is a helpful but non-necessary consideration in evaluating an association for causality, but he cautions that plausibility

“is a feature I am convinced we cannot demand. What is biologically plausible depends on the biological knowledge of the day.”

Since Hill, many scientific writers have relegated plausibility to a limited role in assessing the correctness of a causal claim. In the language of a recent effort to modernize Hill’s factors, one author noted that “plausibility and analogy do not work well in most fields of investigation, and their invocation has been mostly detrimental.”[6]

To be sure, Allen and Stein do, in some places, make clear that they take plausibility to mean more than some uninformed Bayesian prior. Relative plausibility in their view thus has some connection to the coin of the realm. At least, fact finders are seen as considering more than the usual extent of plausibility; they must “determine which of the parties’ conflicting stories makes most sense in terms of coherence, consilience, causality, and evidential coverage.”[7]

Relativity of Plausibility

If we are truly concerned with “naturalism” (ordinary reasoning?) then we should give some weight to how people react to a claim that has support. In the real world, real people are implicitly aware of Brandolini’s Law. Inspired by his reading of Daniel Kahneman’s Thinking, Fast and Slow,[8] Alberto Brandolini articulated the “Bullshit Asymmetry Principle,” in a 2013 peer-reviewed tweet. According to Brandolini, The work needed to refute bullshit is [at least] an order of magnitude greater than the work needed to produce it.

Despite its crude name, the Bullshit Asymmetry Principle has a respected intellectual provenance. In 1845, economist Frédéric Bastiat expressed an early notion of the adage:

“We must confess that our adversaries have a marked advantage over us in the discussion. In very few words they can announce a half-truth; and in order to demonstrate that it is incomplete, we are obliged to have recourse to long and dry dissertations.”[9]

Recognition of Bullshit Asymmetry actually goes back to ancient times. The Roman lawyer and teacher of rhetoric, Marcus Fabius Quintilianus, known as Quintilian to his friends, addressed the principle in his Institutio Oratoria:

“The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems.”[10]

Quintilian’s insight explains why most people, without invoking economic efficiency or grand moral theories, believe it is natural to place the burden of proof upon the accuser or the pursuer, as opposed to the defender.

The demands made upon us by claims and “stories,” often frivolous, result in our naturally evaluating the warrant (or plausibility if you insist) for a claim before we become mired down in assessing “relative plausibility.” Courts have developed procedural mechanisms, such as summary adjudication and expert witness gatekeeping, to avoid unnecessary detailed assessments of relative plausibility. Even when cases are submitted to the factfinder, the decision may be made solely on “plausibility” of the story proffered by the party with the burden of proof.

The framing of adjudication and the burden of proof as relative plausibility seems to contradict what often happens in American courtrooms. Frequently, the defense does not put forward a “story,” but attempts to show that the plaintiff’s story is rubbish. Indeed, litigation may end without the plausibility of the defense position ever being considered. In the litigation over health claims involving exposure to Agent Orange, Judge Jack Weinstein granted summary judgment because the plaintiffs’ medical causation case was weak and insufficient.[11] The defense may have been even weaker in terms of its “coherence, consilience, causality, and evidential coverage,” but the party with the burden of proof attracts the first round of critical scrutiny in the summary judgment process. In Agent Orange, Judge Weinstein found the plaintiffs’ “proofs” to be rather crummy, without regard for the strength or weakness of the defendants’ evidence.

Similarly, Judge Weinstein granted summary judgment on plaintiffs’ claims of systemic disease injury in the silicone gel breast implant litigation. In granting judgment, Judge Weinstein pretermitted the defendants’ motions to exclude plaintiffs’ expert witnesses on grounds of Rules 702 and 703. Again, without comparison with the defendants’ “story,” Judge Weinstein found the plaintiffs’ story to be insufficient.[12]

The situation in Agent Orange and in Silicone Gel often obtains in trial itself. Defendants are often unable to disprove the plaintiffs’ claim, and the law does not require them to do so. When the evidentiary display is insufficient to support a claim, it may well be insufficient to show the claim is false. Defendants may want to be able to establish their own “story,” but the best they may have to offer is a showing that the plaintiffs’ story is not credible. Allen and Stein suggest that “[t]heoretically, a defendant can simply deny the plaintiff’s complaint, … but this virtually never occurs.”[13] They cite to no empirical evidence in claiming that “a rigorous comparison between the parties’ stories about the individual event is the norm in American courtrooms.”[14]

As shown by the summary judgment examples above, the burden of proof means something quite different from Allen and Stein’s contention about relative plausibility. Before the advent of expert witness gatekeeping, one of the few ways that a party could challenge an adversary’s expert witness was to object that the plaintiff’s medical expert witnesses offered conflicting opinions on a key factual issue in dispute. In Pennsylvania, dismissals for inconsistent expert witness opinion testimony is known as the “Mudano rule,” for a 1927 Pennsylvania Supreme Court case that held that “there must be no absolute contradiction in their essential conclusions.”[15] The Mudano rule arises because the plaintiff must furnish consistent evidence on key issues, even though the jury could otherwise freely choose to accept some or all or none of the inconsistent expert witnesses’ testimony. The Mudano rule requires dismissal without regard to the “plausibility” or implausibility of the defense case.[16]

The Mudano rule follows from the plaintiff’s having the burden of proof. When the party with the burden of proof proffers two conflicting opinions, the guesswork is simply too palpable for an appellate court to tolerate. The rule does not apply to the defense case, should the defense mange to proffer two inconsistent expert witnesses on a key issue raised by plaintiff’s case.[17]

The party without the burden of proof on causation or other key issue requiring expert witness testimony need not present any expert testimony. And if the opposing party does present expert witnesses, the law does not require that they be as precise or certain as those presented by the party with the burden. As one work-a-day appellate court put the matter:

“Absent an affirmative defense or a counterclaim, the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiff’s case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence, such as that offered by [the defendant] in this case, certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal would not qualify as proof.”[18]

A defendant need not engage in “story telling” at all; it may present an expert witness to testify that the plaintiff’s causation claim is bogus, even if the alternatives are merely possible. This statement of law with respect to the required certitude of expert witnesses and the burden of proof comes from a Pennsylvania case, but it appears to be the majority rule.[19]

The asymmetry created by the epistemic requirements of the burden of proof undermines the simplistic model of a court, or jury, deciding the “relative plausibility” of a claim.

Jury Instructions

The typical jury instruction on expert witness opinion testimony also shows that the burden of proof may operate without the head-to-head comparison of “stories,” as suggested by Allen and Stein. Under the law of most states, the trier of fact is free to accept some, all, or none of an expert witness opinion. In New Jersey, for instance, jurors are instructed that they

“are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You may accept or reject all or part of an expert’s opinion(s).”[20]

The practice of American courts with respect to burden of proof does not support the reductionist formula offered by the evidence law scholars. Burden of proof has implications in terms of summary judgment and directed verdict practice, which seem glossed over by “relative plausibility.” Furthermore, in situations in which the factfinder assesses both parties’ stories for relative plausibility, it must reject the story from the party with the burden of proof, when that party fails to show its story is more likely than not correct, even when the opponent’s story has a lesser plausibility.

Cases almost always involve incomplete evidence, and so we should expect that evidential warrant, or relative plausibility, or posterior probability of both sides’ cases to be less than complete or 100 percent.  If the party with the burden has a story with 40% probability, and then opponent’s story has a 30% probability, the case still results in a non-suit.

[1] Ronald J. Allen & Alex Stein, “Evidence, Probability, and the Burden of Proof,” 55 Ariz. L. Rev. 557 (2013) [cited herein as Allen & Stein].  They are not alone in endorsing relative plausibility, but for now I will key my observations to Allen and Stein’s early paper on relative plausibility.

[2] Id. at 4. Allen and Stein cite the classical proponents of inference to the best explanation, but they do not in this 2013 article describe or defend such inferences in detail. See Peter Lipton, Inference to the Best Explanation (2d ed. 2004); Gilbert H. Harman, “The Inference to the Best Explanation,” 74 Philosophical Rev. 88 (1965).

[3] Allen & Stein at 14.

[4] Allen & Stein at 15.

[5] Tyler J. VenderWeele, Timothy L. Lash & Kenneth J. Rothman, “Causal Inference and Scientific Reasoning,” chap. 2, in Timothy L. Lash, et al., Modern Epidemiology 17, 20 (4th ed. 2021).

[6] Louis Anthony Cox, Jr., “Modernizing the Bradford Hill criteria for assessing causal relationships in observational data,”  48 Crit. Rev. Toxicol. 682, 684 (2018).

[7] Allen & Stein at 1.

[8] Daniel Kahneman, Thinking, Fast and Slow (2011).

[9] Frédéric Bastiat, Economic Sophisms (1845), in The Bastiat Collection vol. 1, t 172 (2007).

[10] Quintilian, Institutio Oratoria, book V, chapters 13-14 (Butler transl. 1920).

[11] In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 785 (E.D.N.Y. 1984), aff’d 818 F.2d 145, 150-51 (2d Cir. 1987) (approving district court’s analysis), cert. denied sub nom. Pinkney v. Dow Chemical Co., 487 U.S. 1234 (1988); 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). See Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1987).

[12] In re Breast Implant Cases, 942 F. Supp. 958 (E.& S.D.N.Y. 1996).

[13] Allen & Stein at 12.

[14] Allen & Stein at 14.

[15] Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 60, 137 A. 104, 107 (1927).

[16] See Daniel E. Cummins, “The ‘Mudano’ Rule: Conflicting Expert Opinions Often Prove Fatal,” The Legal Intelligencer (Mar. 16, 2017). See also Brannan v. Lankenau Hospital, 490 Pa. 588, 596, 417 A.2d 196 (1980) (“a plaintiff’s case will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no guidance on the issue”); Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 501, 103 A.2d 681 (1954). See also Halper v. Jewish Family & Children Services of Great of Philadelphia, 600 Pa. 145, 963 A.2d 1282, 1287-88 (2009).

[17] See Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003).

[18] Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103, 109-110 (1987); see also Jacobs v. Chatwani, 2007 Pa. Super. 102, 922 A.2d 950, 958-960 (2007) (holding that defense expert witnesses are not required to opinion to reasonable medical certainty). See generally James Beck, “Reasonable Certainty and Defense Experts,” Drug & Device Law (Aug. 4, 2011).

[19] Jordan v. Pinamont, 2007 WL 4440900, at *2 (E.D. Pa. May 8, 2007) (“Defendants are entitled to inform the jury of other medical conditions which reasonably could have caused Plaintiff’s complaints, even if it cannot be stated to a reasonable degree of medical certainty that Defendants’ proffered alternatives were, in fact, the cause”); Johnesee v. The Stop & Shop Co., 174 N.J. Super. 426, 416 A.2d 956, 959 (N.J. Super. App. Div. 1980) (holding that defense expert witness may criticize plaintiff’s expert witness’s opinion as unfounded even though he can offer only possible alternative causes); Holbrook v. Lykes Bros. Steamship Co., 80 F.3d 777, 786 (3d Cir. 1996) (affirming admission of defense expert testimony that plaintiff had failed to exclude radiation as a possible cause of his mesothelioma, but reversing judgment for the defense on other grounds); Wilder v. Eberhart, 977 F.2d 673, 676-77 (1st Cir. 1992) (applying New Hampshire law); Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 574-75 (8th Cir. 2008) (applying South Dakota law).

[20] N.J. CHARGE 1.13, citing State v. Spann, 236 N.J. Super. 13, 21 (App Div. 1989). See Pennsylvania’s Suggested Standard Civil Jury Instructions. PA. SSJI (Civ), § 4.100, § 4.80 (2013) (providing that the jury is not required to accept an expert witness’s testimony); Nina Chernoff, Standard jury instruction in New York on expert testimony (2023) (“You may accept or reject such testimony, in whole or in part, just as you may with respect to the testimony of any other witness.”).

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Can Lawyers Sink Lower Than Plagiarizing a Bot?

May 16th, 2025

Several years ago, I submitted a brief, which I had written, in a New York case. When a co-defendant’s counsel filed the same brief, without acknowledging that it was plagiarised, I was annoyed. It seemed to me that such plagiarism clearly has professional and general ethical implications, especially if the plagiarists charged clients for writing something that they stole from another person.[1]

Legal culture does to some extent encourage plagiarism. Law students work as research assistants for professors and often write segments of legal treatises and hornbooks that are published under their professors’ names. Presumably the law students are satisfied that their work was used and that they received strong recommendations in future job searches. When bright young law school graduates accept judicial clerkships, they understand that their writing for draft opinions or memoranda will be “cannibalized” by their judges at will. Similarly, young law firm associates know that much of their writing may be used in briefs without attribution or signature lines on the brief. This practice goes too far, in my view, when partners require associates to draft articles for publication without making them authors, and with at most an anemic note of gratitude for “assistance.”

When courts use lawyers’ arguments and their actual language advanced in briefs, lawyers rarely complain. At least there are no complaints from the plagiarized lawyers who prevailed.

Sometimes the plagiarized argument reveals the source of a court’s error. In an opinion issued over Justice Sotomayor’s name, the Supreme Court adopted wholesale an argument advanced by the Solicitor General. The origin of the argument was unmistakable because the claim was so egregiously wrong. In its amicus brief, the Solicitor General argued that statistical significance was unnecessary for reaching a conclusion of causation between the use of Zicam and anosmia. In support of its argument, the Solicitor General’s amicus brief cited three cases: Best, Westberry, and Ferebee.[2] The three cited cases all involved disputes over specific causation, whereas the case sub judice purported to involve an issue of general causation. (The Court correctly decided that the corporate disclosure issue under the securities laws did not actually require general causation.) Nevertheless, the Solicitor General’s sloppy legal scholarship was incorporated into the Supreme Court’s opinion. Justice Sotomayor repeated the citation to the first two cases, dropped the reference to Ferebee, but curiously added an even more bizarre third case to the argument by citing the infamous Wells case.[3] Remarkably, as notorious and poorly reasoned as the Wells case was,[4] it involved plaintiffs’ expert witnesses’ reliance upon at least one poorly conducted study that reported nominal statistical significance. And thus the Supreme Court produced the following text, with three inapposite cases:

“We note that courts frequently permit expert testimony on causation based on evidence other than statistical significance. See, e.g., Best v. Lowe’s Home Centers, Inc., 563 F. 3d 171, 178 (6th Cir 2009); Westberry v. Gislaved Gummi AB, 178 F. 3d 257, 263–264 (4th Cir. 1999) (citing cases); Wells v. Ortho Pharmaceutical Corp., 788 F. 2d 741, 744–745 (11th Cir. 1986). We need not consider whether the expert testimony was properly admitted in those cases, and we do not attempt to define here what constitutes reliable evidence of causation.”[5]

I suspect that a law clerk acted as an intermediary, or a vcctor, in the plagiarism by incorporating the Solicitor General’s argument into a draft or a memorandum, which became part of the opinion that none of the justices considered carefully. At least, the three cases cited by the Solicitor General and the cases cited by Justice Sotomayor actually existed.

The introduction of large language models in artificial intelligence (A.I.) has taken plagiarism to a new level.[6] Lawyers can now prompt a machine to review the case law on a specified issue and to create an output of analysis in favor of an identified litigation position. And then the lawyers can submit the output to a court as their own work, and charge their clients for the brief writing. The submission of a brief or memorandum to a court, however, implies that the facts are supported, and that the legal precedents cited exist and are pertinent authorities for the court to consider.

The problem with the use of AI, however, is that AI “hallucinates” non-existent cases, all with citations, case specifics, and sometimes fanciful quotes that seem pertinent. It sucks to be a bot, but it is even worse for lawyers who take AI output, and present it as their own, without further research, in hopes of persuading a court.

Last week, Special Master Magistrate Judge Michael R. Wilner (retired) imposed a monetary sanction of $31,100 against the lawfirm K&L Gates for failing to fact check a brief prepared in substantial part by AI, as well as failing to disclose its use of AI, or to correct errors after notified of the Special Master’s concerns.[7] The Special Master noted that “no reasonably competent attorney should out-source research and writing to this technology – particularly without any attempt to verify the accuracy of that material.”[8] Ouch. K&L Gates is not the first firm, and it sadly will not be the last firm to be sanctioned for the improvident use of AI, and the submission of fraudulent authorities to a court.[9]

The Special Master’s outrage was generated by his discovery that one third of the legal citations were incorrect, and that two of them were non-existent. Several quotations from cases presented in support of the plaintiffs’ argument were entirely bogus.[10] Although the Special Master freely described the lawyers’ actions as “misconduct,” he concluded that disciplinary sanctions against the lawyers involved was unwarranted.[11]

The Special Master’s opinion elided the ethical significance of the plaintiffs’ lawyers’ conduct. The opinion never mentions the Rules of Professional Responsibility; nor does it suggest that a reference to the California State Bar’s Office of Chief Trial Counsel was in order. Plagiarism is, after all, research misconduct in most other professional domains. Under the regulations of the Office of Research Integrity (ORI), plagiarism is “the appropriation of another person’s ideas, processes, results, or words without giving appropriate credit.”[12] An AI model may not be eligible for copyright, or the moral rights of authors, but it seems that the spirit of the prohibition against plagiarism requires disclosure and credit to AI, however bogus AI’s contribution may have been.

Although I tend to think of plagiarism in briefs and other court submissions as a violation of a lawyers’ professional responsibility, the issue actually is not clear cut. Plagiarism would seem to violate core professional responsibilities of honesty and integrity. In disparaging plagiarism, courts have occasionally invoked Model Rule 8.4(c), which prohibits engaging in “dishonesty, fraud, deceit or misrepresentation.”[13] Legal commentators have divided over the propriety of recycling legal arguments and verbatim language without acknowledgments.[14] Context also matters. The legal analysis in a routine motion in a mass tort litigation, say for dismissal for lack of diversity, or for change of venue, probably should not be re-invented. Copying another lawyer’s appellate brief and and its consideration of a legal issue, without acknowledgment, seems ethically dodgy.

Of course, copying, whether permissible or not, does not mean that lawyers are freed from their ethical responsibility of ensuring that citations and interpretations of authorities are correct. Without having taken steps to ensure the relevance and correctness of cited authorities, lawyers cannot represent to the court that their argument has a good-faith basis in law and fact.

Hallucinations versus Delusions

Philosophy professor Hilarius Bookbinder (not Søren Kierkegaard) points out that describing bogus AI output as “hallucinations” is euphemistic and erroneous. When AI makes stuff up, the output is not really an hallucination, but delusional.[15]

Bookbinder channels the insight of William James, who gave extensive consideration to the phenomenon of hallucinations, and ultimately characterized them as correct reports of altered consciousness.[16] In a footnote to The Principles of Psychology, James offered the following helpful distinction:

“Illusions and hallucinations must both be distinguished from delusions. A delusion is a false opinion about a matter of fact, which need not necessarily involve, though it often does involve, false perceptions of sensible things. We may, for example, have religions delusions, medical delusions, delusions about our own importance, about other peoples’ characters, etc., ad libitum.”[17]

Bookbinder has a point about how we talk about large language models of AI. In James’ parlance, AI does not really hallucinate, but it clearly suffers delusions; or perhaps it simply fabricates unwittingly. This feature, or flaw, of AI makes lawyers’ uncritical reliance upon AI for legal research and writing not only unethical, not merely for plagiarizing, but for violating their professional duties of competence and candor to the tribunal. Outsourcing thinking to a machine seems unbecoming for a profession that is built upon careful, independent analysis.

Hallucinations and delusions are both distinguishable from a third phenomenon, bullshit – or willful indifference to the truth.[18] For bull shitters, the assertion is more important than the truth value of the statement. When Felonious Trump claimed a Civil War battle took place on one of his golf courses, and even went so far as to identify the site with a plague. Several historians pushed back, and pointed out, his mistake, to which Trump asked “How would they know that?” Were they there?”[19] Trumpian lies and bullshit have now begun to infiltrate into the judicial system, so we must sort delusions, bullshit, and lies among the pathology of lawyering. We can probably say fairly that AI lacks the intentionality to deceive, or the psychopathology that confuses assertion with fact.

There may well be conduct worse than plagiarizing a bot, but that is hardly a recommendation.

[1] Schachtman, “Copycat – Further Thoughts on Plagiarism in the Law,” Tortini (Oct. 24, 2010); “Plagiarism in the Law,” Tortini (Oct. 16, 2010).

[2] Brief for the United States as Amicus Curiae Supporting Respondents, in Matrixx Initiatives, Inc. v. Siracusano, 2010 WL 4624148, at *14-16 (Nov. 12, 2010) (“Best v. Lowe’s Home Centers, Inc., 563 F.3d 171, 178 (6th Cir. 2009) (“an ‘overwhelming majority of the courts of appeals’ agree” that differential diagnosis, a process for medical diagnosis that does not entail statistical significance tests, informs causation) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th Cir. 1999)),” and “Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1536 (D.C. Cir.) (‘[P]roducts liability law does not preclude recovery until a “statistically significant” number of people have been injured’.), cert. denied, 469 U.S. 1062 (1984)).

[3] Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff’d in relevant part, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S.950 (1986).

[4] See, e.g., James L. Mills and Duane Alexander, “Teratogens and ‘Litogens’,” 15 New Engl. J. Med. 1234 (1986); Samuel R. Gross, “Expert Evidence,” 1991 Wis. L. Rev. 1113, 1121-24 (1991) (“Unfortunately, Judge Shoob’s decision is absolutely wrong. There is no scientifically credible evidence that Ortho-Gynol Contraceptive Jelly ever causes birth defects.”). See also Editorial, “Federal Judges v. Science,” N.Y. Times, December 27, 1986, at A22 (unsigned editorial) (“That Judge Shoob and the appellate judges ignored the best scientific evidence is an intellectual embarrassment.”);  David E. Bernstein, “Junk Science in the Courtroom,” Wall St. J. at A 15 (Mar. 24,1993) (pointing to Wells as a prominent example of how the federal judiciary had embarrassed American judicial system with its careless, non-evidence based approach to scientific evidence); Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge,” 72 Texas L. Rev. 715, 733-34 (1994) (lawyers and leading scientist noting that the district judge “found that the scientific studies relied upon by the plaintiffs’ expert were inconclusive, but nonetheless held his testimony sufficient to support a plaintiffs’ verdict. *** [T]he court explicitly based its decision on the demeanor, tone, motives, biases, and interests that might have influenced each expert’s opinion. Scientific validity apparently did not matter at all.”) (internal citations omitted); Troyen A. Brennan, “Untangling Causation Issues in Law and Medicine: Hazardous Substance Litigation,” 107 Ann. Intern. Med. 741, 744-45 (1987) (describing the result in Wells as arising from the difficulties created by the Ferebee case; “[t]he Wells case can be characterized as the court embracing the hypothesis when the epidemiologic study fails to show any effect”).  Kenneth R. Foster, David E. Bernstein, and Peter W. Huber, eds., Phantom Risk: Scientific Inference and the Law 28-29, 138-39 (MIT Press 1993) (criticizing Wells decision); Hans Zeisel & David Kaye, Prove It With Figures: Empirical Methods in Law and Litigation § 6.5, at 93(1997) (noting the multiple comparisons in studies of birth defects among women who used spermicides, based upon the many reported categories of birth malformations, and the large potential for even more unreported categories); id. at § 6.5 n.3, at 271 (characterizing Wells as “notorious,” and noting that the case became a “lightning rod for the legal system’s ability to handle expert evidence.”).

[5] Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1319 (2011).

[6] Schachtman, “Artificial Intelligence May Be Worse Than None At All,” Tortini (Feb. 2, 2025); “Hallucinations in Law and in Government,” Tortini (Feb. 19, 2025).

[7] Lacey v. State Farm General Insurance Co., Case 2:24-cv-05205-FMO-MAA, doc. 119 (C.D. Calif. May 6, 2025).

[8] Id. at 7. The Special Master ducked the more interesting counter-factual question: what if AI had generated a perfect brief, with exactly the right citations, properly cited, with all inferences and conclusions proper and correct? Would the outsourcing of human intelligence be acceptable to us, with all the requisite disclosures? See Hilarius Bookbinder, “Why AI is Destroying Academic Integrity: It’s because students prefer The Experience Machine,” Scriptorium Philosophia (Jan. 02, 2025).

[9] See note 1, supra. See also Mata v. Avianca, 678 F. Supp. 3d 443 (S.D.N.Y. 2023) (ordering sanctions against lawyers who submitted briefs with six fabricated judicial opinions and fake quotes); Gauthier v. Goodyear Tire & Rubber Co., civil action no. 1:23-CV-281 (E.D. Tex Nov. 25, 2024) (imposing sanctions for citing non-existing cases with fabricated quotations). Canadian lawyers have also been seduced by the prospect of outsourcing their thinking, researching, analyzing, and writing to a bot. Ko v. Li, CV-25-00736891-00ES, 2025 Ontario Super. Ct. Justice 2766 (May 1, 2025) (ordering lawyer to show cause why she should not be held in contempt). See Bernise Carolino, “Ko v. Li, Ontario Superior Court, 2 nonexistent case citations, attorney referred for potential contempt proceedings,” Canadian Lawyering (May 13, 2025).

[10] Kat Black, “‘A Collective Debacle’: Ellis George and K&L Gates Ordered to Pay $31,000 after Using AI to Write Brief in Insurance Case,” Legal Intelligencer (May 13, 2025).

[11] Lacey, supra, at 7; Eugene Volokh, “AI Hallucination in Filings Involving 14th-Largest U.S. Law Firm Lead to $31K in Sanctions,” The Volokh Conspiracy, Reason (May 13, 2025).

[12] 42 CFR 93.103 (c) Department of Health and Human Services, Office of Research Integrity. See, e.g., Sena Chang, “Secretary of Defense Pete Hegseth ’03 ‘plagiarized’ small portions of his senior thesis, experts say. But how serious is it?” Daily Princetonian (May 10, 2025).

[13] See In re Mundie, 453 Fed.Appx. 9 (2d Cir. 2011) (publicly reprimanding lawyer for various acts, including copying extensively from another lawyer’s brief in a different case). See also In re Summit Financial, Inc., 2021 WL 5173331 (Bankr. C.D. Cal. Nov. 5, 2021); Lohan v. Perez, 924 F.Supp. 2d 447 (E.D.N.Y. 2013). Compare New York City Bar Formal Opinion 2018-3 (disapproving “extensive” copying, while noting that copying source material without attribution is not “per se” an ethical violation) with North Carolina State Bar Formal Ethics Opinion 2008-14 (acknowledging that lawyers may copy language used in other briefs without attribution).

[14] Dennis A. Rendleman, “Copy That!: What is plagiarism in the practice of law?,” YourABA (Mar. 2020) (arguing that unacknowledged copying in legal filings is different from such conduct in scholarly publications); Andrew M. Carter, “The Case for Plagiarism,” 9 U. Calif. Irvine L. Rev. 531 (2019); Carol M. Bast & Linda B. Samuels, “Plagiarism and legal scholarship in the age of information sharing: the need for intellectual honesty,” 57 Catholic Univ. L. Rev. 777 (2008); Peter A. Joy & Kevin C. McMunigal, “The Problems of Plagiarism as an Ethics Offense,” ABA Criminal Justice 56 (Summer 2011).

[15] Hilarius Bookbinder, “Hallucination, bullshit, confabulation: AI and the outsourcing of thinking,” Scriptorium Philosophia (May 15, 2025).

[16] William James, The Principles of Psychology, vol. 2 (ch. 18-19) (1918).

[17] Id. at ch. 19, n. 41.

[18] Harry Frankfurt, On Bullshit 63 (2005) (“Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about.  Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”).

[19] Joyce Chen, “Donald Trump’s Golf Course Plaque Honors Fake Civil War Battle,” Rollingstone (Aug. 17, 2017); Nicholas Fandos, “In Renovation of Golf Club, Donald Trump Also Dressed Up History,” N.Y. Times (Nov. 24, 2015).

Posted in Scientific Misconduct, Trial Procedure | No Comments »

Expert Witness Reports Are Not Admissible

August 23rd, 2021

The tradition of antic proposals to change the law of evidence is old and venerable in the common law. In the early 19th century, Jeremy Bentham deviled the English bench and bar with sweeping proposals to place evidence law on a rationale foundation. Bentham’s contributions to his contributions to jurisprudence, like his utilitarianism, often ignored the realities of human experience and decision making. Although Bentham contributed little to the actual workings of courtroom law and procedure, he gave rise to a tradition of antic proposals that have long entertained law professors and philosophers.[1]

Bentham seemingly abhorred tradition, but his writings have given rise to a tradition of antic proposals in the law. Expert witness testimony was uncommon in the early 19th century, but today, hardly a case is tried without expert witnesses. We should not be surprised, therefore, by the rise of antic proposals for reforming the evidence law of expert witness opinion testimony.[2]

A key aspect of the Bentham tradition is ignore the actual experience and conduct of human affairs. And so now we have a proposal to shorten trials by foregoing direct examination of expert witnesses, and admitting the expert witnesses’ reports into evidence.[3] The argument contends that since the Rule 26 report requires disclosure of all the expert witnesses’ substantive opinions and all bases for their opinions, the witnesses’ viva voce testimony is merely a recital of the report. The argument proceeds that reports can be helpful in understanding complex issues and in moving trials along more efficiently.

As much as all lawyers want to promote “understanding,” and make trials more efficient, the argument fails on multiple levels. First, judges can read the expert witness reports, in bench or in jury trials, to help themselves prepare for trial, without admitting the reports into evidence. Second, the rules of evidence, which are binding upon trial judges in both bench and jury trials, require that the testimony be helpful, not the reports. Third, the argument ignores that for the last several years, the federal rules have allowed lawyers to draft reports to a large extent, without any discovery into whose phraseology appears in a final report.

Even before the federal rules created an immunity to discovery into who drafted specific language of an expert report, it was not uncommon to find that there at least some parts of an expert witness’s report that did not accurately summarize the witness’s views at the time he or she gave testimony. Often the process of discovery caused expert witnesses to modify their reports, whether through skillful inquiry at deposition, or through the submission of adversarial reports, or through changes in the evidentiary display between drafting the report and testifying at trial.

In other words, expert witnesses’ testimony rarely comes out exactly as it appears in words in Rule 26 reports. Furthermore, reports may be full of argumentative characterization of facts, which fail to survive routine objections and cross-examination. What is represented as a fact or a factual predicate of an opinion may never be cited in testimony because the expert’s representation was always false or hyperbolic. The expert witnesses are typically not percipient witnesses, and any alleged fact would not be admissible, under Rule 703, simply because it appeared in an expert witness’s report. Indeed, Rule 703 makes clear that expert witnesses can rely upon inadmissible hearsay as long as experts in their fields reasonably would do so in the ordinary course of their professions.

Voir dire of charts, graphs, and underlying data may result in large portions of an expert report becoming inadmissible. Not every objection will be submitted as a motion in limine; and not every objection rises to the level of a Rule 702 or 703 pre-trial motion to exclude the expert witness. Foundational lapses or gaps may render some parts of reports to be inadmissible.

The argument for admitting reports as evidence reflects a trend toward blowsy, frowsy jurisprudence. Judges should be listening carefully to testimony, both direct and cross, from expert witnesses. They will have transcripts at their disposal. Although the question and answer format of direct examination may take some time, it ensures the orderly presentation of admissible testimony.

Given that testimony often turns out differently from the unqualified statements in a pre-trial report, the proposed admissibility of reports will create evidentiary chaos when there a disparity between report and testimony, or there is a failure to elicit as testimony something that is stated in the report. Courts and litigants need an unequivocal record of what is in evidence when moving for striking testimony, or for directed verdicts, new trials, or judgments notwithstanding the verdict.

The proposed abridgement of expert witness direct examinations would allow further gaming by not calling an expert witness once the witness’s report has been filed. Expert witnesses may conveniently become unavailable, after their reports have been admitted into evidence.

In multi-district litigations, the course of litigation may take years and even decades. Reports filed early on may not reflect current views or the current state of the science. Deeming filed reports “admissible” could have a significant potential to subvert accurate fact finding.

In Ake v. General Motors Corp.[4], Chief Judge Larimer faced a plaintiff who sought to offer in evidence a report written by plaintiffs’ expert witness, who was scheduled to testify at trial. The trial court held, however, that the report was inadmissible hearsay, for which no exception was available.[5] The report at issue was not a business record, which might be admissible under Rule 803(6), in that it did not record events made at or near the event at issue, and the event did not involve the expert witness’s regularly conducted business activity.

There are plenty of areas of the law in which reforms are helpful and necessary. The formality of presenting an expert witness’s actual opinions, under oath, in open court, subject to objections and challenges, needs no abridgement.

[1] See, e.g., William Twining, “Bentham’s Theory of Evidence: Setting a Context,” 20 J. Bentham Studies 18 (2019); Kenneth M. Ehrenberg, “Less Evidence, Better Knowledge,” 2 McGill L.J. 173 (2015); Laird C. Kirkpatrick, “Scholarly and Institutional Challenges to the Law of Evidence: From Bentham to the ADR Movement,” 25 Loyola L.A. L. Rev. 837 (1992); Frederick N. Judson, “A Modern View of the Law Reforms of Jeremy Bentham,” 10 Columbia L. Rev. 41 (1910).

[2] See “Expert Witness Mining – Antic Proposals for Reform” (Nov. 4, 2014).

[3] Roger J. Marzulla, “Expert Reports: Objectionable Hearsay or Admissible Evidence in a Bench Trial?” A.B.A.(May 17, 2021).

[4] 942 F.Supp. 869 (W.D.N.Y. 1996).

[5] Ake v. General Motors Corp., 942 F.Supp. 869, 877 (W.D.N.Y. 1996).

Posted in Evidence, Expert Witness Discovery, Expert Witnesses, Trial Procedure | 212 Comments »

April Fool – Zambelli-Weiner Must Disclose

April 2nd, 2020

Back in the summer of 2019, Judge Saylor, the MDL judge presiding over the Zofran birth defect cases, ordered epidemiologist, Dr. Zambelli-Weiner to produce documents relating to an epidemiologic study of Zofran,[1] as well as her claimed confidential consulting relationship with plaintiffs’ counsel.[2]

This previous round of motion practice and discovery established that Zambelli-Weiner was a paid consultant in advance of litigation, that her Zofran study was funded by plaintiffs’ counsel, and that she presented at a Las Vegas conference, for plaintiffs’ counsel only, on [sic] how to make mass torts perfect. Furthermore, she had made false statements to the court about her activities.[3]

Zambelli-Weiner ultimately responded to the discovery requests but she and plaintiffs’ counsel withheld several documents as confidential, pursuant to the MDL’s procedure for protective orders. Yesterday, April 1, 2020, Judge Saylor entered granted GlaxoSmithKline’s motion to de-designate four documents that plaintiffs claimed to be confidential.[4]

Zambelli-Weiner sought to resist GSK’s motion to compel disclosure of the documents on a claim that GSK was seeking the documents to advance its own litigation strategy. Judge Saylor acknowledged that Zambelli-Weiner’s psycho-analysis might be correct, but that GSK’s motive was not the critical issue. According to Judge Saylor, the proper inquiry was whether the claim of confidentiality was proper in the first place, and whether removing the cloak of secrecy was appropriate under the facts and circumstances of the case. Indeed, the court found “persuasive public-interest reasons” to support disclosure, including providing the FDA and the EMA a complete, unvarnished view of Zambelli-Weiner’s research.[5] Of course, the plaintiffs’ counsel, in close concert with Zambelli-Weiner, had created GSK’s need for the documents.

This discovery battle has no doubt been fought because plaintiffs and their testifying expert witnesses rely heavily upon the Zambelli-Weiner study to support their claim that Zofran causes birth defects. The present issue is whether four of the documents produced by Dr. Zambelli-Weiner pursuant to subpoena should continue to enjoy confidential status under the court’s protective order. GSK argued that the documents were never properly designated as confidential, and alternatively, the court should de-designate the documents because, among other things, the documents would disclose information important to medical researchers and regulators.

Judge Saylor’s Order considered GSK’s objections to plaintiffs’ and Zambelli-Weiner’s withholding four documents:

(1) Zambelli-Weiner’s Zofran study protocol;

(2) Undisclosed, hidden analyses that compared birth defects rates for children born to mothers who used Zofran with the rates seen with the use of other anti-emetic medications;

(3) An earlier draft Zambelli-Weiner’s Zofran study, which she had prepared to submit to the New England Journal of Medicine; and

(4) Zambelli-Weiner’s advocacy document, a “Causation Briefing Document,” which she prepared for plaintiffs’ lawyers.

Judge Saylor noted that none of the withheld documents would typically be viewed as confidential. None contained “sensitive personal, financial, or medical information.”[6]  The court dismissed Zambelli-Weiner’s contention that the documents all contained “business and proprietary information,” as conclusory and meritless. Neither she nor plaintiffs’ counsel explained how the requested documents implicated proprietary information when Zambelli-Weiner’s only business at issue is to assist in making lawsuits. The court observed that she is not “engaged in the business of conducting research to develop a pharmaceutical drug or other proprietary medical product or device,” and is related solely to her paid consultancy to plaintiffs’ lawyers. Neither she nor the plaintiffs’ lawyers showed how public disclosure would hurt her proprietary or business interests. Of course, if Zambelli-Weiner had been dishonest in carrying out the Zofran study, as reflected in study deviations from its protocol, her professional credibility and her business of conducting such studies might well suffer. Zambelli-Weiner, however, was not prepared to affirm the antecedent of that hypothetical. In any event, the court found that whatever right Zambelli-Weiner might have enjoyed to avoid discovery evaporated with her previous dishonest representations to the MDL court.[7]

The Zofran Study Protocol

GSK sought production of the Zofran study protocol, which in theory contained the research plan for the Zofran study and the analyses the researchers intended to conduct. Zambelli-Weiner attempted to resist production on the specious theory that she had not published the protocol, but the court found this “non-publication” irrelevant to the claim of confidentiality. Most professional organizations, such as the International Society of Pharmacoepidemiology (“ISPE”), which ultimately published Zambelli-Weiner’s study, encourage the publication and sharing of study protocols.[8] Disclosure of protocols helps ensure the integrity of studies by allowing readers to assess whether the researchers have adhered to their study plan, or have engaged in ad hoc data dredging in search for a desired result.[9]

The Secret, Undisclosed Analyses

Perhaps even more egregious than withholding the study protocol was the refusal to disclose unpublished analyses comparing the rate of birth defects among children born to mothers who used Zofran with the birth defect rates of children with in utero exposure to other anti-emetic medications.  In ruling that Zambelli-Weiner must produce the unpublished analyses, the court expressed its skepticism over whether these analyses could ever have been confidential. Under ISPE guidelines, researchers must report findings that significantly affect public health, and the relative safety of Zofran is essential to its evaluation by regulators and prescribing physicians.

Not only was Zambelli-Weiner’s failure to include these analyses in her published article ethically problematic, but she apparently hid these analyses from the Pharmacovigilance Risk Assessment Committee (PRAC) of the European Medicines Agency, which specifically inquired of Zambelli-Weiner whether she had performed such analyses. As a result, the PRAC recommended a label change based upon Zambelli-Weiner’s failure to disclosure material information. Furthermore, the plaintiffs’ counsel represented they intended to oppose GSK’s citizen petition to the FDA, based upon the Zambelli-Weiner study. The apparently fraudulent non-disclosure of relevant analyses could not have been more fraught for public health significance. The MDL court found that the public health need trumped any (doubtful) claim to confidentiality.[10] Against the obvious public interest, Zambelli-Weiner offered no “compelling countervailing interest” in keeping her secret analyses confidential.

There were other aspects to the data-dredging rationale not discussed in the court’s order. Without seeing the secret analyses of other anti-emetics, readers were deprive of an important opportunity to assess actual and potential confounding in her study. Perhaps even more important, the statistical tools that Zambelli-Weiner used, including any measurements of p-values and confidence intervals, and any declarations of “statistical significance,” were rendered meaningless by her secret, undisclosed, multiple testing. As noted by the American Statistical Association (ASA) in its 2016 position statement, “4. Proper inference requires full reporting and transparency.”

The ASA explains that the proper inference from a p-value can be completely undermined by “multiple analyses” of study data, with selective reporting of sample statistics that have attractively low p-values, or cherry picking of suggestive study findings. The ASA points out that common practices of selective reporting compromises valid interpretation. Hence the correlative recommendation:

“Researchers should disclose the number of hypotheses explored during the study, all data collection decisions, all statistical analyses conducted and all p-values computed. Valid scientific conclusions based on p-values and related statistics cannot be drawn without at least knowing how many and which analyses were conducted, and how those analyses (including p-values) were selected for reporting.”[11]

The Draft Manuscript for the New England Journal of Medicine

The MDL court wasted little time and ink in dispatching Zambelli-Weiner’s claim of confidentiality for her draft New England Journal of Medicine manuscript. The court found that she failed to explain how any differences in content between this manuscript and the published version constituted “proprietary business information,” or how disclosure would cause her any actual prejudice.

Zambelli-Weiner’s Litigation Road Map

In a world where social justice warriors complain about organizations such as Exponent, for its litigation support of defense efforts, the revelation that Zambelli-Weiner was helping to quarterback the plaintiffs’ offense deserves greater recognition. Zambelli-Weiner’s litigation road map was clearly created to help Grant & Eisenhofer, P.A., the plaintiffs’ lawyers,, create a causation strategy (to which she would add her Zofran study). Such a document from a consulting expert witness is typically the sort of document that enjoys confidentiality and protection from litigation discovery. The MDL court, however, looked beyond Zambelli-Weiner’s role as a “consulting witness” to her involvement in designing and conducting research. The broader extent of her involvement in producing studies and communicating with regulators made her litigation “strategery” “almost certainly relevant to scientists and regulatory authorities” charged with evaluating her study.”[12]

Despite Zambelli-Weiner’s protestations that she had made a disclosure of conflict of interest, the MDL court found her disclosure anemic and the public interest in knowing the full extent of her involvement in advising plaintiffs’ counsel, long before the study was conducted, great.[13]

The legal media has been uncommonly quiet about the rulings on April Zambelli-Weiner, in the Zofran litigation. From the Union of Concerned Scientists, and other industry scolds such as David Egilman, David Michaels, and Carl Cranor – crickets. Meanwhile, while the appeal over the admissibility of her testimony is pending before the Pennsylvania Supreme Court,[14] Zambelli-Weiner continues to create an unenviable record in Zofran, Accutane,[15] Mirena,[16] and other litigations.

[1]  April Zambelli‐Weiner, Christina Via, Matt Yuen, Daniel Weiner, and Russell S. Kirby, “First Trimester Pregnancy Exposure to Ondansetron and Risk of Structural Birth Defects,” 83 Reproductive Toxicology 14 (2019).

[2]  See In re Zofran (Ondansetron) Prod. Liab. Litig., 392 F. Supp. 3d 179, 182-84 (D. Mass. 2019) (MDL 2657) [cited as In re Zofran].

[3]  “Litigation Science – In re Zambelli-Weiner” (April 8, 2019); “Mass Torts Made Less Bad – The Zambelli-Weiner Affair in the Zofran MDL” (July 30, 2019). See also Nate Raymond, “GSK accuses Zofran plaintiffs’ law firms of funding academic study,” Reuters (Mar. 5, 2019).

[4]  In re Zofran Prods. Liab. Litig., MDL No. 1:15-md-2657-FDS, Order on Defendant’s Motion to De-Designate Certain Documents as Confidential Under the Protective Order (D.Mass. Apr. 1, 2020) [Order].

[5]  Order at n.3

[6]  Order at 3.

[7]  See In re Zofran, 392 F. Supp. 3d at 186.

[8]  Order at 4. See also Xavier Kurz, Susana Perez-Gutthann, the ENCePP Steering Group, “Strengthening standards, transparency, and collaboration to support medicine evaluation: Ten years of the European Network of Centres for Pharmacoepidemiology and Pharmacovigilance (ENCePP),” 27 Pharmacoepidemiology & Drug Safety 245 (2018).

[9]  Order at note 2 (citing Charles J. Walsh & Marc S. Klein, “From Dog Food to Prescription Drug Advertising: Litigating False Scientific Establishment Claims Under the Lanham Act,” 22 Seton Hall L. Rev. 389, 431 (1992) (noting that adherence to study protocol “is essential to avoid ‘data dredging’—looking through results without a predetermined plan until one finds data to support a claim”).

[10]  Order at 5, citing Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986) (describing public-health concerns as “compelling justification” for requiring disclosing of confidential information).

[11]  Ronald L. Wasserstein & Nicole A. Lazar, “The ASA’s Statement on p-Values: Context, Process, and Purpose,” 70 The American Statistician 129 (2016)

See also “The American Statistical Association’s Statement on and of Significance” (March 17, 2016).“Courts Can and Must Acknowledge Multiple Comparisons in Statistical Analyses” (Oct. 14, 2014).

[12]  Order at 6.

[13]  Cf. Elizabeth J. Cabraser, Fabrice Vincent & Alexandra Foote, “Ethics and Admissibility: Failure to Disclose Conflicts of Interest in and/or Funding of Scientific Studies and/or Data May Warrant Evidentiary Exclusions,” Mealey’s Emerging Drugs Reporter (Dec. 2002) (arguing that failure to disclose conflicts of interest and study funding should result in evidentiary exclusions).

[14]  Walsh v. BASF Corp., GD #10-018588 (Oct. 5, 2016, Pa. Ct. C.P. Allegheny Cty., Pa.) (finding that Zambelli-Weiner’s and Nachman Brautbar’s opinions that pesticides generally cause acute myelogenous leukemia, that even the smallest exposure to benzene increases the risk of leukemia offended generally accepted scientific methodology), rev’d, 2018 Pa. Super. 174, 191 A.3d 838, 842-43 (Pa. Super. 2018), appeal granted, 203 A.3d 976 (Pa. 2019).

[15]  In re Accutane Litig., No. A-4952-16T1, (Jan. 17, 2020 N.J. App. Div.) (affirming exclusion of Zambelli-Weiner as an expert witness).

[16]  In re Mirena IUD Prods. Liab. Litig., 169 F. Supp. 3d 396 (S.D.N.Y. 2016) (excluding Zambelli-Weiner in part).

Posted in Conflicts of Interest, Data Sharing, Expert Witness Discovery, Expert Witness Hall of Shame, Expert Witnesses, Scientific Misconduct, Scientific Publishing, statistical evidence, Trial Procedure, Underlying Data | Comments Off on April Fool – Zambelli-Weiner Must Disclose

Everything She Just Said Was Bullshit

September 26th, 2019

At this point, most products liability lawyers have read about the New Jersey verdicts returned earlier this month against Johnson & Johnson in four mesothelioma cases.[1] The Middlesex County jury found that the defendant’s talc and its supposed asbestos impurities were a cause of all four mesothelioma cases, and awarded compensatory damages of $37.3 million, in the cases.[2]

Johnson & Johnson was prejudiced by having to try four cases questionably consolidated together, and then hobbled by having its affirmative defense evidence stricken, and finally crucified when the trial judge instructed the jury at the end of the defense lawyer’s closing argument: “everything she just said was bullshit.”

Judge Ana C. Viscomi, who presided over the trial, struck the entire summation of defense lawyer Diane Sullivan. The action effectively deprived Johnson & Johnson of a defense, as can be seen from the verdicts. Judge Viscomi’s egregious ruling was given without explaining which parts of Sullivan’s closing were objectionable, and without giving Sullivan an opportunity to argue against the sanction.

During the course of Sullivan’s closing argument, Judge Viscomi criticized Sullivan for calling the plaintiffs’ lawyers “sinister,” and suggested that her argument was defaming the legal profession in violation of the Rules of Professional Conduct.[3] Sullivan did use the word “sinister” several times, but in each instance, she referred to the plaintiffs’ arguments, allegations, and innuendo about Johnson & Johnson’s action. Judge Viscomi curiously imputed unprofessional conduct to Sullivan for referring to plaintiffs’ counsel’s “shows and props,” as a suggestion that plaintiffs’ counsel had fabricated evidence.

Striking an entire closing argument is, as far as anyone has determined, unprecedented. Of course, Judge Haller is fondly remembered for having stricken the entirety of Vinny Gambini’s opening statement, but the good judge did allow Vinny’s “thank you” to stand:

Vinny Gambini: “Yeah, everything that guy just said is bullshit… Thank you.”

D.A. Jim Trotter: “Objection. Counsel’s entire opening statement is argument.”

Judge Chamberlain Haller: “Sustained. Counselor’s entire opening statement, with the exception of ‘Thank you’ will be stricken from the record.”

My Cousin Vinny (1992).

In the real world of a New Jersey courtroom, even Ms. Sullivan’s expression of gratitude for the jury’s attention and service succumbed to Judge Viscomi’s unprecedented ruling,[4] as did almost 40 pages of argument in which Sullivan carefully debunked and challenged the opinion testimony of plaintiffs’ highly paid expert witnesses. The trial court’s ruling undermined the defense’s detailed rebuttal of plaintiffs’ evidence, as well as the defense’s comment upon the plaintiffs’ witnesses’ lack of credibility.

Judge Viscomi’s sua sponte ruling appears even more curious given what took place in the aftermath of her instructing the jury to disregard Sullivan’s argument. First, the trial court gave very disparate treatment to plaintiffs’ counsel. The lawyers for the plaintiffs gave extensive closing arguments that were replete with assertions that Johnson & Johnson and Ms. Sullivan were liars, predators, manipulators, poisoners, baby killers, and then some. Sullivan’s objections were perfunctorily overruled. Second, Judge Viscomi permitted plaintiffs’ counsel to comment extensively upon Ms. Sullivan’s closing, even though it had been stricken. Third, despite the judicial admonition about the Rules of Professional Conduct, neither the trial judge nor plaintiffs’ counsel appear to have filed a disciplinary complaint against Ms. Sullivan. Of course, if Judge Viscomi or the plaintiffs’ counsel thought that Ms. Sullivan had violated the Rules, then they would be obligated to report Ms. Sullivan for misconduct.

Bottom line: these verdicts are unsafe.

[1]  The cases were tried in a questionable consolidation in the New Jersey Superior Court, for Middlesex County, before Judge Viscomi. Barden v. Brenntag North America, No. L-1809-17; Etheridge v. Brenntag North America, No. L-932-17; McNeill-George v. Brenntag North America, No. L-7049-16; and Ronning v. Brenntag North America, No. L-6040-17.

[2]  Bill Wichert, “J&J Hit With $37.3M Verdict In NJ Talc Case,” Law360 (Sept. 11, 2019).

[3]  Amanda Bronstad, “J&J Moves for Talc Mistrial After Judge Strikes Entire Closing Argument,” N.J.L.J. (Sept. 10, 2019) (describing Judge Viscomi as having admonished Ms. Sullivan to “[s]top denigrating the lawyers”; J&J’s motion for mistrial was made before the case was submitted to the jury).

[4]  See Peder B. Hong, “Summation at the Border: Serious Misconduct in Final Argument in Civil Trials,” 19 Hamline L. Rev. 179 (1995); Ty Tasker, “Stick and Stones: Judicial Handling of Invective in Advocacy,” 42 Judges J. 17 (2003); Janelle L. Davis, “Sticks and Stones May Break My Bones, But Names Could Get Me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases,” 42 Gonzaga L. Rev. 133 (2011).

Posted in Asbestos, Trial Procedure | Comments Off on Everything She Just Said Was Bullshit

Apportionment and Pennsylvania’s Fair Share Act

March 14th, 2019

In 2011, Pennsylvania enacted the Fair Share Act, which was remedial legislation designed to mitigate the unfairness of joint and several liability in mass, and other, tort litigation by abrogating joint and several liability in favor of apportionment of shares among multiple defendants, including settled defendants.1

Although the statute stated the general rule in terms of negligence,2 the Act was clearly intended to apply to actions for so-called strict liability:3

“(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection.”

The intended result of the legislation was for courts to enter separate and several judgments against defendants held liable in the amount apportioned to each defendant’s liability.4 The Act created exceptions for for intentional torts and for cases in which a defendant receives 60% or greater share in the apportionment.5

In Pennsylvania, as in other states, judges sometimes fall prey to the superstition that the law, procedural and substantive, does not apply to asbestos cases. Roverano v. John Crane, Inc., is an asbestos case in which the plaintiff claimed his lung cancer was caused by exposure to multiple defendants’ products. The trial judge, falling under the sway of asbestos exceptionalism, refused to apply Fair Share Act, suggesting that “the jury was not presented with evidence that would permit an apportionment to be made by it.”

The Roverano trial judge’s suggestion is remarkable, given that any plaintiff is exposed to different asbestos products in distinguishable amounts, and for distinguishable durations. Furthermore, asbestos products have distinguishable, relative levels of friability, with different levels of respirable fiber exposure for the plaintiff. In some cases, the products contain different kinds of asbestos minerals, which have distinguishable and relative levels of potency to cause the plaintiff’s specific disease. Asbestos cases, whether involving asbestosis, lung cancer, or mesothelioma claims, are more amenable to apportionment of shares among co-defendants than are “red car / blue car” cases.

Pennsylvania’s intermediate appellate court reversed the trial court’s asbestos exceptionalism, and held that upon remand, the court must:

“[a]pply a non-per capita allocation to negligent joint tortfeasors and strict liability joint tortfeasors; and permit evidence of settlements reached between plaintiffs and bankrupt entities to be included in the calculation of allocation of liability.”

Roverano v. John Crane, 2017 Pa. Super. 415, 177 A.3d 892 (2017).

The Superior Court’s decision did not sit well with the litigation industry, which likes joint and several liability, with equal shares. Joint and several liability permits plaintiffs’ counsel to extort large settlements from minor defendants who face the prospect of out-sized pro rata shares after trial, without the benefit of reductions for the shares of settled bankrupt defendants. The Roverano plaintiff appealed from the Superior Court’s straightforward application of a remedial statute.

What should be a per curiam affirmance of the Superior Court, however, could result in another act of asbestos exceptionalism by Pennsylvania Supreme Court. Media reports of the oral argument in Roverano suggest that several of the justices invoked the specter of “junk science” in apportioning shares among asbestos co-defendants.6 Disrespectfully, Justice Max Baer commented:

“Respectfully, your theory is interjecting junk science. We’ve never held that duration of contact corresponds with culpability.”7

The Pennsylvania Justices’ muddle can be easily avoided. First, the legislature clearly expressed its intention that apportionment be permitted in strict liability cases.

Second, failure-to-warn strict liability cases are, as virtually all scholars and most courts recognize, essentially negligence cases, in any event.8

Third, apportionment is a well-recognized procedure in the law of Torts, including the Pennsylvania law of torts. Apportionment of damages among various causes was recognized in the Restatement of Torts (Second) Section 433A (Apportionment of Harm to Causes), which specifies that:

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

Restatement (Second) of Torts § 433A(1) (1965) [hereinafter cited as Section 433A].

The comments to Section 433A suggest a liberal application for apportionment. The rules set out in Section 433A apply “whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm … .”

Id., comment a. The independent causes may be tortious or innocent, “and it is immaterial whether all or any of such persons are joined as defendants in the particular action.” Id. Indeed, apportionment also applies when the defendant’s conduct combines “with the operation of a force of nature, or with a pre-existing condition which the defendant has not caused, to bring about the harm to the plaintiff.” Just as the law of grits applies in everyone’s kitchen, the law of apportionment applies in Pennsylvania courts.

Apportionment of damages is an accepted legal principle in Pennsylvania law. Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987). Courts, applying Pennsylvania law, have permitted juries to apportion damages between asbestos and cigarette smoking as causal factors in plaintiffs’ lung cancers, based upon a reasonable basis for determining the contribution of each source of harm to a single harm.9

In Parker, none of the experts assigned exact mathematical percentages to the probability that asbestos rather than smoking caused the lung cancer. The Court of Appeals noted that on the record before it:

“we cannot say that no reasonable basis existed for determining the contribution of cigarette smoking to the cancer suffered by the decedent.”10

The Pennsylvania Supreme Court has itself affirmed the proposition that “liability attaches to a negligent act only to the degree that the negligent act caused the employee’s injury.”11 Thus, even in straight-up negligence cases, causal apportionment must play in a role, even when the relative causal contributions are much harder to determine than in the quasi-quantitative setting of an asbestos exposure claim.

Let’s hope that Justice Baer and his colleagues read the statute and the case law before delivering judgment. The first word in the name of the legislation is Fair.

1 42 Pa.C.S.A. § 7102.

2 42 Pa.C.S.A. § 7102(a)

3 42 Pa.C.S.A. § 7102(a)(1) (emphasis added).

4 42 Pa.C.S.A. § 7102(a)(2).

5 42 Pa.C.S.A. § 7102 (a)(3)(ii), (iii).

7 Id. (quoting Baer, J.).

8 See, e.g, Restatement (Third) of Torts: Products Liability § 2, and comment I (1998); Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991) (“Failure to warn claims purporting to sound in strict liability and those sounding in negligence are essentially the same.”).

9 Parker v. Bell Asbestos Mines, No. 86-1197, unpublished slip op. at 5 (3d Cir., Dec. 30, 1987) (per curiam) (citing Section 433A as Pennsylvania law, and Martin v. Owens-Corning Fiberglas Corp. , 515 Pa. 377, 528 A.2d 947, 949 (1987))

10 Id. at 7.

11 Dale v. Baltimore & Ohio RR., 520 Pa. 96, 106, 552 A.2d 1037, 1041 (1989). See also McAllister v. Pennsylvania RR., 324 Pa. 65, 69-70, 187 A. 415, 418 (1936) (holding that plaintiff’s impairment, and pain and suffering, can be apportioned between two tortious causes; plaintiff need not separate damages with exactitude); Shamey v. State Farm Mutual Auto. Ins. Co., 229 Pa. Super. 215, 223, 331 A.2d 498, 502 (1974) (citing, and relying upon, Section 433A; difficulties in proof do not constitute sufficient reason to hold a defendant liable for the damage inflicted by another person). Pennsylvania law is in accord with the law of other states as well, on apportionment. See Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988) (holding that a strict liability claim against General Motors for an unreasonably dangerous product defect was subject to apportionment for contribution from failing to wear a seat belt) (the jury’s right to apportion furthered the public policy of properly allocating the costs of accidents and injuries).

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Alabama Justice and Fundamental Fairness

November 20th, 2017

Judges from Alabama get a bad rap. Like Job, Roy Moore cannot seem to catch a break, despite his professions of great faith. Still Moore ought to be more liberal, given that he, and all of us, are descended from a transgendered woman. After all, Eve was made from a male rib, the tissue of which carried a Y chromosome:

“And the rib, which the LORD God had taken from man, made he a woman, and brought her unto the man.”

Genesis 2:22. Even if Eve magically ended up with two X chromosomes, certainly Judge Moore must accept that the result was part of a cosmic sex change operation. Moore might prefer Lillith, who was built female from the ground up, as his female progenitor.

But Alabama is not so bad, really. My Cousin Vinny got a fair trial for Bill Gambini and Stanley Rothenstein in Beechum County, Alabama. Vinny was surprised by the prosecutor’s generosity in turning over his file, based upon a casual oral request, but as his fiancée Mona Lisa Vito pointed out, the prosecutor had to do this; it’s the law. Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose to defense counsel any evidence that could reasonably be construed to favor the defendant.

Actually, Alabama law interpets Brady in the typical fashion to require the prosecutor to disclose only exculpatory evidence. Alabama Rules of Criminal Procedure Rule 16. And Judge Chamberlain Haller, who presided over State v. Gambini, was a stickler for the rules.

And Beechum County prosecutor, Jim Trotter III, was a decent sort. Not only did he offer Vinny his hunting lodge as a quiet place to prepare for trial, Trotter turned over his entire case file upon a casual oral request, without delay. When the evidence appeared to exclupate Gambini and Rothenstein, Trotter withdrew the charges. Outside of Beechum County, that sort of thing happens mostly in movies; in the real world, it is dog eat dog.

The recently publicized case of Wilbert Jones is probably a more typical case. Jones was duly convicted on the testimony of the woman he supposedly raped. The identification, which was the only inculpatory evidence, was shaky, but it was sufficient for one Louisiana jury. What the jury did not hear, however, was that there was another man, who fit the description of the rapist, and who had committed similar crimes in the vicinity. The prosecutor did not think to share that information with Jones’s counsel. When later challenged about the prosecution’s failure to disclose the information, the prosecutors argued that the information was not exculpatory, and would not have made a difference in any event to the “hanging” jury that heard the case. A federal judge, hearing Jones’s petition for the writ of habeas corpus, disagreed, and vacated Jones’s conviction. Jacey Fortin, “Louisiana Man Freed After 45 Years as Conviction is Tossed Out,” N.Y. Times (Nov. 17, 2017). Despite having their conviction vacated, the Louisiana prosecutors have vowed to appeal the decision and retry the case.

Chief Judge Janet DiFiore, of the New York Court of Appeals, is also a stickler for the rules, much like Judge Haller of Beechum County, Alabama. Recently Her Honor issued a new rule that requires trial judges to order, in each case, the prosecution to review their files and disclose all favorable (exculpatory) evidence, at least 30 days before trial. Imagine that; New York prosecutors have to be ordered to comply with the constitutional requirement of disclosure, set out in Brady! See Alan Feuer & James C. McKinley, “Rule Would Push Prosecutors to Release Evidence Favorable to Defense,” N.Y. Times (Nov. 8, 2017); Emmet G. Sullivan, “How New York Courts Are Keeping Prosecutors in Line,” Wall St. J., at A11 (Nov. 18, 2017). See also Andrew Cohen, “Prosecutors Shouldn’t Be Hiding Evidence From Defendants,” The Atlantic (May 13, 2013).

The news media accounts of Chief Judge DiFiore’s newly promulgated rule quotes Innocence Project founder Barry Scheck as stating that the new New York rule is a “big deal.” The New York rule strikes me as a “raw deal,” which leaves to prosecutors to dole out what they think is exculpatory, on the eve of trial. Murder suspects in Beechum County, Alabama, get much better treatment from the likes of Prosecutor Jim Trotter.

The problem, even under the new New York rule, is that prosecutors are advocates and constitutionally incapable of looking at their files from the defense perspective to determine fairly what must be disclosed. Allowing prosecutors to decide what is exculpatory or not is bad policy, bad law, and bad human psychology. The better view would be to require prosecutors to turn over their complete file well in advance of trial, to permit defense counsel to prepare an effective defense.

Criminal trials, like civil trials, end with each side’s lawyer arguing that all the admitted evidence at trial favors his or her side. From the prosecutor’s perspective, none of the evidence exculpates the defendant, or even creates the slightest smidgeon of doubt. How schizophrenic must prosecutors be in order to step inside the psyche of the adversary, before trial, to see the potential inferences and potential for arguments that they will vehemently reject at trial, as utterly implausible and too farfetched to create reasonable doubt?

The entire system of permitting prosecutors to decide the disclosure issue, ex parte, and without supervision, violates the spirit and mandate of Brady. Whatever we may think of Alabama Judge Roy Moore, we could all use some of that Beechum County sense of fair play and due process.

Posted in Cognitive Biases, Trial Procedure | Comments Off on Alabama Justice and Fundamental Fairness

Trial by Twitter

August 13th, 2017

Did you read Trump’s tweet from last night?

“Time to take down the Statue of Liberty. Ugly dress, too French, heavy calves. Sad, must go.”

OK. I admit, I made that up, but it could have been true. Trumpovich has said more outrageous, stupider things, frequently and with wild abandon.

I don’t really understand this Twitter thing. What worse is that I do understand how it feeds uncritical thinking by people who prefer sound bite to argument and discourse. But we live in a democracy, and this is what people want; right? This is what the First Amendment requires?

So why not make American great again, and merge two great institutions together: the right to trial by jury with the right to express one’s self in mindless sound bites? Let us admit it: Twitter has blossomed because Americans have the attention span of crickets. And many have no more cognitive ability than crickets, to boot, but you go to trial with the jurors you have, not the jurors you want.

Here is how trial by twitter might work. A “fair and impartial,” but appropriately ignorant jury is selected for a trial that involves a scientific controversy, at least a controversy in the minds of the litigants and their hired expert witnesses. The jurors need not be inconvenienced by travel to the local court house; they need only have their smartphones available at all times. If they cannot afford a smartphone, one will be given to them. The lawyers will then start to tweet their opening statements, alternating tweets. Each side is allowed 100 tweets. In trials designated complex, each side gets 150 tweets.

Then come the witnesses. One at a time, first for plaintiff; then for defendant. Each witness is permitted to tweet his or her testimony, after first tweeting an oath to tweet the truth, and nothing but the truth, so help me. The witness is permitted two tweets, after which the opposing counsel is permitted to cross-tweet once. Opposing counsel may interpose an objection tweet, with the trial judge tweeting his or her ruling. If the objection is sustained, then the offending tweet will be deleted. The 2:1 tweets are repeated until the witness has nothing left to tweet. After each witness, legal counsel are permitted interim argument of 25 tweets each, alternating. In an effort to promote early settlements, jurors are permitted to “like” tweets from witnesses or counsel, at every stage.

Final arguments are tweeted, of course, again with alternating tweets. The tweeter with the burden of proof gets the final tweet, followed by the judge’s instructions, delivered in tweets. A jury foreperson is appointed, and deliberations proceed by twitter, marked private. Verdicts are returned by the foreperson’s tweet, with the other jurors’ tweeting their agreement, or dissents. Post-verdict motions and appeals can easily be handled by twitter, as well.

Due process preserved, and the right to trial inviolate!

Half of advertising revenues go to Legal Services to pay for legal counsel for the indigent.

 

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Science Day Should Be Every Day in Our Courtrooms — Part I

March 24th, 2017

The following post and its sequel are an expansion upon a post that I wrote with Dr. David Schwartz, of Innovative Science Solutions, LLC. Dr. Schwartz is a talented scientist with whom I had the privilege and pleasure to work at McCarter & English, before he left to become an independent scientific consultant. Dr. Schwartz is one of the founding partners of his firm, which focuses on helping lawyers with the scientific issues in complex health effects litigation. Our earlier post can be found on the Courtroom View Network’s website. “Guest Analysis: Key Takeaways from Recent Talc Powder ‘Science Day’ Hearing in California,” Courtroom View Network (Mar 24, 2017).

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Every February 28th, India celebrates National Science Day in honor the Indian physicist Sir Chandrashekhara Venkata Raman, who discovered the Raman effect. The United States has no equivalent celebration, but “Science Days” have become a commonplace in complex state and federal Litigations, around the country.

Background

The major impetus for science tutorials seems to have come from the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The holding of Daubert, now incorporated into, and extended by Federal Rule of Evidence 702, requires trial judges to act as gatekeepers of the relevance and reliability of expert witness opinion testimony in their courtrooms. One of the first tests of the judiciary’s performance to perform this role came in the silicone gel breast implant litigation. The federal silicone cases were consolidated before Judge Pointer Sam C. Pointer, Jr., in MDL 926. Judge Pointer believed that trial judges in the transferor courts should conduct whatever review of expert witness opinion was needed to satisfy the then recent Daubert decision.

Some of the first federal silicone lawsuits remanded from the MDL went to Judge Robert Jones in Portland Oregon. These cases involved complex issues of immunology, clinical rheumatology, epidemiology, toxicology, surgery, and polymer and analytical chemistry. At the outset of his case management of the remanded cases, plaintiffs’ counsel requested that Judge Jones schedule an all-day tutorial for counsel to present on these scientific issues. The parties’ tutorials, along with an avalanche of defense Daubert motions, persuaded Judge Jones to take the unusual step of appointing technical advisors to assist him in assessing the scientific evidence, inferences and claims in the silicone litigation. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1415 (D. Ore. 1996).1 Judge Jones’s technical advisors attended court throughout the Daubert hearings conducted in Portland, and they delivered advisory reports to Judge Jones to assist him in his gatekeeping function. Judge Jones ultimately granted the defense motions to exclude the plaintiffs’ expert witnesses’ claims of silicone causation of connective tissue diseases.

In large measure because of Judge Jones’s case management and exclusion of expert witness testimony, the silicone MDL court appointed a panel of neutral expert witnesses, in the fields of epidemiology, rheumatology, immunology, and toxicology.2

One of the first requests received from the Science Panel in MDL 926 was for what turned out to be a series of Science Days in which the parties’ expert witnesses would present to them, and explain their interpretation of the vast array of evidence, from different disciplines. Each presenting party expert witness was allowed 15 to 20 minutes to present. The lawyers were not entirely reduced to potted plants; they had a chance to conduct a short cross-examination. Given that the primary audience was a panel of four distinguished scientists, there was an emphasis for most of the lawyers, for the plaintiffs and the defendants, to ask pertinent, substantive questions.

The Science Panel was not entirely satisfied with the party expert witnesses, and requested a second Science Day, at which the Panel could call its own slate of scientists to address the scientific claims made in the litigation. The proceedings took place at the National Academies of Science, in Washington, D.C.

These proceedings, along with extensive submissions of articles and briefings from the parties led to the Report of National Science Panel, on November 30, 1998.

Every Day is Science Day, Somewhere

Since the breast implant litigation, many MDL and other courts have faced complex causation claims in litigation involving pharmaceutical products, medical devices, consumer products and a host of chemical exposures. Appointment of independent, neutral expert witnesses remains unusual, but trial judges have welcomed tutorials in the form of “Science Days,” to help them learn the methodologies and vocabularies of the scientific disciplines that are involved in the litigations before them. For some reason, the parties, the judges, and the legal media often reference Science Days in scare quotes, signaling that perhaps other Science takes place in these proceedings. Whether the scare quotes are warranted remains to be determined.

“Science Days” have become a tradition in mass tort litigation.3 In the last few years, there is a Science Day somewhere, in some courtroom, going on, perhaps not daily, but with sufficient frequency that the phenomenon should receive more critical attention. Federal judges with multi-district litigation, or state judges with multi-county cases, set aside time to permit the parties a chance to educate them about the scientific and technical aspects of the litigations before them. Judges know that Daubert and Rule 702, or their state analogues, require them to act as gatekeepers. Furthermore, myriad motions in the discovery and trial phases of a case will require judges to make nuanced but accurate decisions about scope and content of discovery, and admissibility of documents and testimony,

Science Day – Have It Your Way

John Milton: We negotiating?

Kevin Lomax: Always.4

The Devil’s Advocate (1997).

There are no federal or state rules that set out procedures for science tutorials for judges or their appointed expert. The form and substance of Science Days depend upon a three-say negotiation among the plaintiffs, defendants, and the trial judge. Although the parties are often left to work out a plan for science day, most courts tend to weigh in by imposing time limits, and they may even rule in or rule out live witness testimony.

In 2007, the American Bar Association set out Civil Trial Practice Standards,5 which included an entire section on the use of tutorials to assist the court. [The relevant standards for tutorials is set out at the end of Part II of this post, as an appendix.]

1 See Laural L. Hooper, Joe S. Cecil, and Thomas E. Willging, “Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation,” at 9 (Federal Judicial Center 2001).

2 MDL 926 Order 31 (May 31, 1996) (order to show cause why a national Science Panel should not be appointed under Federal Rule of Evidence 706); MDL 926 Order No. 31C (Aug. 23, 1996) (appointing Drs. Barbara S. Hulka, Peter Tugwell, and Betty A. Diamond); Order No. 31D (Sept. 17, 1996) (appointing Dr. Nancy I. Kerkvliet).

3 See, e.g., Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges at 39 & n. 54 (Fed. Jud. Ctr. 2011); Sean Wajert, “‘Science Day’ In Mass Torts,” Mass Tort Defense (Oct. 20, 2008); Lisa M. Martin, “Using Science Day to Your Advantage,” 2(4) Pro Te: Solutio 9 (2009).

4 From the screenplay of the movie, directed by Taylor Hackford, written by Jonathan Lemkin and Tony Gilroy, and based on a novel by Andrew Neiderman.

5 American Bar Association’s “Civil Trial Practice Standards” (August 2007 & 2011 Update).

Posted in Rule 702, Scientific Evidence, Trial Procedure | Comments Off on Science Day Should Be Every Day in Our Courtrooms — Part I

Time to Retire Ancient Documents As Hearsay Exception

August 23rd, 2015

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has prepared a Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence (Aug. 2015). The Committee seeks approval of proposed amendments to Bankruptcy Rules 1001 and 1006, and to Federal Rules of Evidence Rules 803 (16)and 902. See Debra Cassens Weiss, “Federal judiciary considers dumping ‘ancient documents’ rule,” ABA Journal Online (Aug. 19, 2015).

Rule 803(16) of the Federal Rules of Evidence is the so-called ancient document exception to the rule against hearsay. The proposed amendment would abolish this hearsay exception.

The Federal Rules of Evidence, as well as most state rules and common law, allow for the authentication of ancient documents, by showing just three things:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

Federal Rule of Evidence 902(8) (“Evidence About Ancient Documents or Data Compilations”). Rule 803(16) goes beyond the authentication to permit the so-called ancient document, more than 20-years old, appearing to be authentic, to be admitted for its truth. The Committee is seeking the abrogation of Rule 803(16), the ancient documents exception to the hearsay rule. The proposal is based upon an earlier report of the Advisory Committee on Evidence Rules. See Hon. William K. Sessions, III, Chair, Report of the Advisory Committee on Evidence Rules (May 7, 2015).

The requested change is based upon the Committee’s understanding that the exception is rarely used, and upon the development of electronic documents, which makes the exception unneccessary because so-called ancient documents would usually be admissible under the business records or the residual hearsay exceptions. Comments can be submitted online or in writing, by February 16, 2016.

The fact that a document is old may perhaps add to its authenticity, but in many technical, scientific, and medical contexts, the “ancient” provenance actually makes the content unlikely to be true. The pace of change of technical and scientific opinion and understanding is too fast to indulge this exception that permits false statements of doubtful validity to confuse the finder of fact. The rule as currently in effect is thus capable of a good deal of mischief. With respect to statements or claims to scientific knowledge, the Federal Rules of Evidence has evolved towards a system of evidence-based opinion, and away from naked opinion based upon the apparent authority or prestige of the speaker. Similarly, the age of the speaker or of the document provides no warrant for the truth of the document’s content. Of course, the statements in authenticated ancient documents remain relevant to the declarant’s state of mind, and nothing in the proposed amendment would affect this use of the document. As for the contested truth of the document’s content, there will usually be better, more recent, and sounder scientific evidence to support the ancient document’s statements if those statements are indeed correct. In the unlikely instance that more recent, more exacting evidence is unavailable, and the trustworthiness of the ancient document’s statements can be otherwise established, then the statements would probably be admissible pursuant to other exceptions to the rule against hearsay, as noted by the Committee.

Posted in Scientific Evidence, Trial Procedure | Comments Off on Time to Retire Ancient Documents As Hearsay Exception

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