TORTINI

For your delectation and delight, desultory dicta on the law of delicts.

Judicial Notice of Untruths

March 3rd, 2014

Judicial notice is a procedure for admitting facts the truth of which are beyond dispute. A special kind of magically thinking occurs when judges take judicial notice of falsehoods, myths, or lies.

In the federal judicial system, Federal Rule of Evidence 201 addresses judicial notice of adjudicative facts, and provides:

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Procedurally, Rule 201 provides that a court must take judicial upon the request of a party who has supplied any needed basis for the fact to be noticed. A court may take notice sua sponte. Rule 201(c)(1), (2).

In the Chantix litigation, counsel for Pfizer challenged plaintiffs’ expert witness, Curt Furberg, on Rule 702 grounds. According the MDL judge, the Hon. Inge Prytz Johnson, Pfizer asserted that Furberg’s proferred testimony because the FDA approved Chantix as safe and effective. In re Chantix (Varenicline) Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1285 n.8 (N.D. Ala. 2012). Citing no authority or text, Judge Johnson announced that “[a]pproval by the FDA is not evidence of the safety of a medication.” Id.

To be sure, safety issue can sometimes arise after initial approval, but before the FDA or the manufacturer and sponsor of the medication can react to the new safety data. The sweeping statement, however, that the FDA’s approval is not any evidence of safety seems bereft of factual support and common sense.

Judge Johnson went on, however, to invent supporting evidence out of thin air:

“The court takes judicial notice of such things as that at one time, thalidomide was used for morning sickness in pregnant women. Unfortunately, 10,000 children were born with birth defects from it before it was banned. And 50 years elapsed before doctors understood why thalidomide caused limbs to disappear. See e.g. http://www.nytimes.com/2010/03/16/science/16limb.html?pagewanted=all. Similarly, the fact that the FDA at one time approved Vioxx did not prevent the same being removed from the market due to growing concerns that it increased the risk of heart attacks and strokes. http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm103420.htm. Hence, initial approval by the FDA is not proof of the safety of a medication.”

The point about the FDA’s approval not constituting evidence of safety may simply be sloppy writing and reasoning. In the quote above, perhaps Her Honor merely meant to say that initial approval is not evidence that a medication is safe in view of later obtained data that were not available to the FDA on its review of the new drug application. If so, fair enough, but the sweeping statement that the initial approval is no evidence of safety ignores the considerable time, cost, and energy that goes into the FDA’s review of safety before agency approves marketing.

More egregious, however, is Judge Johnson’s taking judicial notice of the marketing of thalidomide as though it had some relevancy and probative value for her claim about the inefficacy of the FDA’s safety reviews.[1] Consider the recent review of the FDA’s handling of thalidomide by Margaret Hamburg, M.D., Commissioner of the U. S. Food and Drug Administration:

“Fifty years ago, the vigilance of FDA medical officer Dr. Frances Kelsey prevented a public health tragedy of enormous proportion by ensuring that the sedative thalidomide was never approved in the United States. As many remember, in the early 1960’s, reports were coming in from around the world of countless women who were giving birth to children with extremely deformed limbs and other severe birth defects. They had taken thalidomide. Although it was being used in many countries, Dr. Kelsey discovered that it hadn’t even been tested on pregnant animals.”

Margaret Hamburg, “50 Years after Thalidomide: Why Regulation Matters” (Feb. 7, 2012).

Judge Johnson took judicial notice of a non-fact. The FDA never approved thalidomide for use in the United States, back in the 1950s or 1960s.[2]

[1] Judge Johnson’s fantastical history of the FDA was recently cited by plaintiffs’ counsel in the Zoloft birth defects litigation. See Plaintiffs’ Opposition to Defendants’ Motion to Exclude the Testimony of Anick Berard, Ph.D., at 13 (Filed Feb. 24, 2014), in In re Zoloft (sertraline hydrochloride) Prods. Liab. Litig., Case 2:12-md-02342-CMR Document 713.

[2] Judge Johnson’s errant history may have resulted from her European perspective of the thalidomide tragedy. Judge Inge Prytz Johnson immigrated from Denmark, where she was born and educated. She became a U.S. citizen in 1978, and a state court judge one year later. In 1998, she was nominated by President Clinton to the Northern District of Alabama. In October 2012, Judge Johnson assumed senior status. See Kent Faulk, “U.S. District Judge Inge Johnson goes into semi-retirement” (Oct. 19, 2012) (quoting Judge Johnson as saying that “One thing I like about my job is I don’t have to take sides.”)

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Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases

February 14th, 2014

Worker’s compensation legislation was part of great compromise in the rough-and-tumble battles between labor and management in the first few decades of the last century. In virtually every state, employers had a common law duty to provide a reasonably safe workplace. In tort litigation, however, employers enjoyed several powerful affirmative defenses: contributory negligence, the fellow-servant rule, and assumption of risk. Workers enjoyed increasingly sympathetic juries and generous damage awards. Worker’s compensation statutes made recovery for most injuries a certainty, with schedules of damages that were deeply discounted from what might be had in a jury trial. In return for well-nigh absolute liability, employers gained certainty of outcome, reduction of administrative costs, and immunity to tort liability for all but intentional harms.

After World War II, tort law began to change dramatically. Contributory negligence gave way to comparative negligence. Assumption of risk defenses were curtailed, and the fellow-servant rule was severely modified or abandoned. Labor was feeling buyers’ remorse over the workman’s compensation deal.

In 1965, the American Law Institute adopted § 402A which provided for “Special Liability of Seller of Product for Physical Harm to User or Consumer,” based upon concerns of unequal knowledge of defects and latent hazards of products sold to consumers. Liability followed for harm caused by a product irrespective of privity of contract or warranty, and even if “the seller has exercised all possible care in the preparation and sale of his product.” Restatement (Second), Torts § 402A (2)(a),(b) (1965).

Section 402A was inspired by tort cases in New Jersey and California, involving consumer products, but the Restatement was quickly, and unthinkingly, applied to sales made to large manufacturing employer-purchasers in which there was no real inequality of knowledge between seller and purchaser, or hidden or latent hazard in the product or material. (Think about how knowledgeable the United States Navy was about the hazards of asbestos insulation products it bought for ship building.) Section 402 became the vehicle for injured workers to ditch their capped damages in worker’s compensation court, and to put their cases back in front of juries, with the prospect of unlimited awards for non-economic damages.

In the workers’ compensation era, very few injured workers succeeded in making out intentional torts that would overcome their employers’ immunity to suit. Late last year, however, Pennsylvania workers regained their common law right to sue employers for negligence and other torts, for occupational diseases that manifest more than 300 weeks after last employment. Section 301(c)(2) of the Pennsylvania’s Workman’s Compensation Act, 77 P.S. § 411(2) removes these delayed manifested occupational disease claims from the scope of the Act. Since the Act’s inception, most courts have held that late manifestation (over 300 weeks) deprived the claimant of a recovery under the Act, but did not remove the employer’s immunity from suit. In an opinion issued in November 2013, Justice Todd, writing for herself and four other justices, held that the statute’s exclusion of late-manifesting occupational diseases (after 300 weeks) does not leave claimants without a remedy; the statute simply removes the latent disease cases from the purview of the Act, and returns them to the vicissitudes of common law litigation. Tooey v. AK Steel Corp., 81 A.3d 851 (2013).

The Tooey decision has profound implications for how occupational disease litigation claims will be litigated. For decades, Pennsylvania juries were treated to a faux spectacle that suggested that plaintiffs, with claimed occupational diseases, were the “victims,” of remote suppliers’ failure to warn, when in reality their diseases were largely or totally the result of employer and employee negligence. Not only will plaintiffs sue their employers, but third-party vendors will seek contribution or indemnification from negligent employers. Employers will assert comparative negligence and assumption of risk defenses, which will give the lie to the plaintiffs’ claims of inadequate warnings from the remote suppliers. Just possibly, Tooey will let the truth come out.

Posted in Learned and sophisticated intermediary, Trial Procedure | Comments Off on Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases

Styles of Judicial Opinion Writing

May 28th, 2013

Not Enough Original Words

You copy a little,
But not too much.
Some people say it’s degrading.

In Cojocaru v. British Columbia Women’s Hospital and Health Centre, the Supreme Court of Canada confronted an interesting question whether a litigant may challenge an adverse judgment on grounds that the trial judge plagiarized from the plaintiffs’ submissions. Cojocaru (May 24, 2013).

In this complex medical malpractice case, the trial court issued its written judgment in 368 paragraphs, of which only 47 were discernibly original. The overwhelming majority of the paragraphs, 321, were plagiarized from the plaintiffs’ submissions, without attribution. The Supreme Court agreed that this degree of plagiarism raises a serious question whether the trial judge’s judgment should be set aside as not a truly independent evaluation of the facts and law. Id. at para. 10-11.

The Court proceeded to note that trial court judgments are “entitled” to a presumption of integrity and impartiality. The defendants argued that any such presumption was vaporized by the “the extent of the copying, the quality of the copying, the lack of attribution for the copying, the nature of the case and the failure to fulfill the basic functions of reasons for judgment.” Id. at para. 52.

Although acknowledging that the trial court had copied over 87% of its judgment from the plaintiffs’ briefs, the Supreme Court held that the defendants had failed to rebut the presumption of judicial integrity and impartiality. Id. at para. 73. Judicial plagiarism is, according to the Supreme Court, “a longstanding and accepted practice.” Id. at para 30. The Court, however, acknowledged that excessive plagiarism “may raise problems.” Id.

The Supreme Court rejected the notion that judges should express themselves in their own language, and that their reasons should be their “original” work product. Id. at 31. Copying, according to the Court, does not mean that plagiarist judges have failed to think about and resolve the issues before them. Id.

The Court conceded that it was not “best practice for judges to bulk up their judgments with great swaths of borrowed material.” If the carried the copying to excess (presumably much greater than 87%), the copying “may raise problems.”

Rules and prohibitions against plagiarism do not apply to judges, say the Canadian Supreme Court judges. Id. at para. 32. According to the high court, lack of originality is a virtue in a system that depends upon precedent. “Judges are not selected, and are only rarely valued, because of their gift for original expression.” Id. (quoting, with attribution, thankfully, Simon Stern, “Copyright Originality and Judicial Originality” 63 Univ. Toronto L. J. 1 (2013)).

The Supreme Court cited precedential support of its judgment that judges are too busy to think and write in their own words. See id. at para. 37, 38 (citing English v. Emery Reimbold & Strick Ltd., [2002] EWCA Civ 605, [2002] 3 All E.R. 385 (holding that copying does not invalidate a court’s decision); id. at para. 41 (citing United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964) (noting that when trial judge “adopt[s] verbatim” the findings of fact submitted by counsel, “[t]hose findings, though not the product of the workings of the … judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence”).

The majority of the intermediate appellate court, the Court of Appeal, had held that the extent and nature of the plagiarism was “cogent evidence” of lack of the trial judge’s judicial integrity. Although the Supreme Court rejected the conclusion that the trial judge had failed to make an independent decision, the Supreme Court did display some original, independent thought in upholding the defendants’ assignments of error. The Supreme Court reversed the judgment for plaintiffs on the merits. Id. at para. 76.

Judicial Verbosity – Too Many Original Words

There is a tradition in New Jersey appellate cases to never issue a short, succinct opinion when a long one is at hand. Plaintiff Alison Rosenberg took Merck’s drug, Fosamax, for osteoperosis. After undergoing a tooth extraction, Rosenberg developed bone complications of her jaw. She claimed that she developed osteonecrosis of the jaw (ONJ), and that this condition was caused by her use of Fosamax, and by Merck’s negligent failure to warn that Fosamax causes ONJ. Rosenberg et al. v. Merck Sharp & Dohme Corp., No. A-5271-10T3, 2013 WL 1187916 (N.J. Super. Ct. App. Div. Mar. 25, 2013) (per curiam).

Merck defended and affirmatively sought to show that Rosenberg did not have ONJ. Its expert witness, Brent Ward, D.D.S., M.D., an expert in ONJ and in maxillofacial surgery, testified that Rosenberg suffered from osteomyelitis, not from ONJ.

At the end of the case, the trial judge instructed the jury to make findings:

“(1) whether plaintiff proved it was more likely than not that plaintiff had ONJ;

(2) whether plaintiff’s development of ONJ was a result of taking Fosamax; and

(3) whether Merck negligently failed to adequately warn about the risks of ONJ from Fosamax.”

The jury resolved the first question by finding that the plaintiff had not suffered from ONJ, and pursuant to the trial court’s instructions, ceased deliberations and notified the court of their final verdict, upon which judgment was entered. The jury thus never reached the questions about ONJ and Merck’s liability.

Rosenberg, et vir., appealed, contending that the trial judge erred in excluding evidence of Merck’s 2010 change in its warning label, which impeded her attempt to impeach Dr. Ward on the relationship between Fosamax and ONJ. The problem is that the excluded evidence was relevant only to an issue that the jury never reached. Somehow the New Jersey Appellate Division managed to draw out its per curiam opinion to eleven pages, in its own words.

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UC Davis Daubert Symposium

March 28th, 2013

Earlier this month, I wrote about a Symposium on Daubert at the University of California Davis School of Law. The UC Davis Law Review has now published the proceedings of the Symposium, including a transcript of the direct and cross-examinations of the mock expert witnesses:

Symposium — The Daubert Hearing: From All the Critical Perspectives

Edward J. Imwinkelried, “Introductions”
Hypothetical (Basis for the Mock Daubert Hearing)
Transcript of the Mock Daubert Hearing
David L. Faigman, “The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science”
Edward J. Imwinkelried, “A Trial Advocacy Postscript to the Daubert Hearing”

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Professor Faigman on the Dual Goals of the Daubert Revolution

March 9th, 2013

Academic commentators on Daubert and its progeny tend to fall into two camps: acolytes and heretics. The acolytes have generally supported the changes brought about by Daubert and the ultimate statutory embrace of active expert witness gatekeeping. The heretics have maintained a rearguard action against Daubert, and Rule 702; they have tried to undermine gatekeeping at every turn.

Among the chief acolytes is David Faigman, whose books and articles have contributed substantially to the discussions and debates about the law of scientific evidence and expert witnesses. Professor Faigman’s recent article is an important contribution to the law review literature on Daubert. David L. Faigman, “The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science,” 102 U.C. Davis Law Rev. 101 (2013) [“Revolution”]. It is well worth reading.

Professor Faigman declares himself “a fan” of Daubert, and embraces the revolution in expert witness law heralded by the Supreme Court’s 1993 decision. Id. at 103. He emphasizes that the decision, quickly approaching its 20th anniversary, was truly revolutionary in how the federal courts engaged with expert witness opinion testimony, and that the consequences of the revolution are still taking shape. Id.

Faigman acknowledges that Daubert and its progeny, and the statutory embrace of gatekeeping in Rule 702, at the end of the last millennium, were important developments in ensuring the epistemic warrant of federal courts’ judgments. Some authors, hostile to the gatekeeping enterprise, have suggested that this aspect of Daubert resulted from persistent pressures from the defense bar and industry to limit plaintiffs’ access to the courts. Faigman does not address such suggestions, and I believe that they are cynical and incorrect. The federal courts, by the mid-1980’s, were deeply embarrassed by the scientific community’s opprobrium, meted out over notorious decisions, such as Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff’d and rev’d in part on other grounds, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S.950 (1986). See also In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234 (5th Cir. 1986) (“Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials.”). Daubert and its progeny were, in my view, the judicial response to the scientific community’s criticisms.

Faigman’s thesis in this paper, however, lies elsewhere. He argues that the Supreme Court’s excursions into expert evidence law, in Daubert and in the later cases, were intended primarily to give trial courts greater control over their dockets by being able to excluding dubious testimony and to grant summary dispositions. Revolution at 104 Scientific verisimilitude was secondary to docket control. Id. at 105.

Faigman’s thesis is plausible and should be taken seriously. The first three cases in the “Revolution,” Daubert, Joiner, and Kumho Tire, were all tort cases with “mass tort” overtones. Daubert was one of many Bendectin cases. Joiner was a case involving occupational PCB exposures. If the tenuous scientific opinions were deemed “admissible,” there were sure to be many more such cases. And Kumho Tire was a case involving dubious allegations of a defect in a tire, the sort of allegations that plague American industry because they are so easy to manufacture, and so costly to defend.

Faigman builds an impressive case for the proposition that the justices really were trying to give trial courts managerial power to control their own dockets by filtering out essential, but deficient, expert witness testimony. Id. at 118. After all, if the Supreme Court were really interested in improving judicial use of scientific evidence, why would it have created an abuse of discretion standard for reviewing Rule 702 determinations? The abuse standard signals that decisions either way are tolerable if they are accompanied by the right verbiage and procedural steps.

Faigman also points out that the abuse-of-discretion standard deprives the appellate courts of any meaningful review of the validity of scientific opinion testimony. The claims and conclusions advanced by expert witnesses in individual cases will often be of interest and importance to scientists, policy makers, plaintiffs, defendants, beyond the confines of the individual case. The appellate courts are in a better position to ascertain validity questions, and maintain consistency in them, as a matter of law. Freed of the pressures of trial courts, and with input from amici curiae, the appellate court can evaluate validity issues more deliberately with a view to harmonizing competing factors across many cases. The scientific issues are, in any event, often non-case specific, or they have the tendency to recur in many cases of the same type. Id. at 131.

Faigman’s thesis sheds light upon who the heretics are, and why they have worked so hard to undermine expert witness gatekeeping. At stake is not only greater scientific validity, but also summary disposition of litigation rent-seeking. Rule 702 gatekeeping challenges judges and commentators to identify their priorities: commitment to scientific principles or to litigation as an alternative to regulation and legislation on behalf of a special constituency.

There are some ironies inherent in Faigman’s thesis. The trial bench has been reluctant to exercise its gatekeeping function as a method of docket control. Instead, it has moved towards greater use of pre-trial consolidations in multi-district litigations to achieve economies of scale. The MDL trend, however, has its problems. Placing responsibility for expert witness gatekeeping in the MDL court may be counter to its “pre-trial” rationale of the MDL statute. Furthermore, exercising gatekeeping across hundreds or thousands of cases heightens and highlights the anxieties, fears, distaste, and institutional incompetence for deciding scientific issues. The move toward MDL handling has had the apparent result of diluting the gatekeeping mandate and reducing the use of summary dispositions.

The procedural and the validity goals of Daubert are quite independent. Validity may have been, as Faigman argues, a secondary goal for the Justices, but it was a worthy goal in and of itself. I believe Professor Faigman would agree. In describing the Supreme Court’s path on validity, Faigman notes that there were two competing models of expert witness admissibility determinations that vied for acceptance: Frye, and then Daubert. Id. at 105. He likens Frye to nose counting among the “relevant” scientific community for support of the witness’s methodology. All a trial judge need do is identify the relevant community and then to count the noses. Daubert represented a possible alternative:

“to charge judges with the responsibility to consider the methods and principles underlying proffered expert opinion and have them make the validity determination.”

Id. at 105. Making trial judges responsible for warranting the validity of scientific evidence, and ultimately all expert witness opinion testimony, was one of the important changes that resulted in the Revolution and its embrace of “good grounds” or epistemic validity:

“[p]roposed testimony must be supported by appropriate validation.”

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993)

Professor Faigman correctly observes that, although lawyers and lower court judges have obsessed over the so-called Daubert factors, the actual holding of Daubert was “the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.” Revolution at 111 (quoting Daubert, 509 U.S. at 590). Despite the improvident dictum about focus on methodology and not on conclusions, the Supreme Court, in Daubert, had made clear that there are necessary implications of Rule 702’s requirement that expert witness testimony relate to specialized “knowledge”:

“This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

Daubert, 509 U.S. at 592-93.

Professor Faigman writes to point out the erroneous interpretations and distortions of Daubert, its progeny, and Rule 702:

“The holding of Daubert is the requirement that judges find as a preliminary fact that the methods and principles underlying proffered expert testimony are sufficiently valid to support that testimony. The four ‘Daubert factors’ were offered as guidelines to help courts assess expert testimony.”

Revolution at 114.

Faigman’s writing is a useful reminder to those judges and commentators who would simplify and abridge the entire gatekeeping project into one or another dictum found in Daubert (or Joiner or Kumho Tire), and who ignore the actual holding of the cases, or the mandate of the subsequent statute. For those writers who try to evade the difficult scientific determinations and discriminations inherent in evaluating causal claims and other scientific opinions, Faigman reminds us that Justice Breyer, in his concurrence in Joiner, was not shy about pointing out that gatekeeping:

“will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer.”

General Electric Company v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 520 (1997) (Breyer, J., concurring). I take Faigman’s essay as an eloquent importuning of the judiciary to heed Justice Breyer, to stop whining, and to start learning.

It is a measure of Professor Faigman’s concern for the accuracy and validity of scientific testimony that he cannot bring himself to address a third way: ignore validity, reliability, sufficiency, and simply allow expert witnesses to battle out.

This third way was what really prevailed before Daubert in much of civil litigation over health effects. The Frye rule was rarely if ever applied to such cases, and most states excepted the opinion testimony of physicians, in any event. Before Frye, we had whatever was dished up by ready, willing, able (and sufficiently glib) testifiers. To be sure, expert witnesses had to be qualified, but the threshold was astonishingly low. In Pennsylvania, for instance, the standard is that the putative “expert” must have “a reasonable pretense of expertise.” See, e.g., Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 9-10 (1991); Kuisis v. Baldwin-Lima-Hamilton Corp.,457 Pa. 321, 319 A.2d 914 (1974)(“the witness must have a reasonable pretension to specialized knowledge on the subject under investigation”). The federal courts were not far behind. Ferebee v. Chevron Chem. Co., 552 F. Supp. 1297 (D.D.C. 1982), aff’d, 736 F.2d 1529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984).

Indeed, there is a pervasive, reactionary movement afoot, among judges and academic commentators to return to the wild, woolly days, celebrated in Ferebee’s famous dictum:

“On questions … 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.”

Ferebee, 736 F.2d at 1534. This third way then is simply to delegate to the expert witnesses themselves to assess the “weight of the evidence,” and offer up their opinions, without any scrutiny from the courts as to the validity or sufficiency of the bases for those opinions. This retrograde step is not just the stuff of naive law student musings. See, e.g., Note, “Admitting Doubt: A New Standard for Scientific Evidence,” 123 Harv. L. Rev. 2021 (2010). Reactionaries in the Academy and in the judiciary are intent to reduce gatekeeping to a weak test of relevancy, without any determination of content validity.

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Politics of Expert Witnesses – The Treating Physician

June 7th, 2012

If a party retains an expert witness who has actually conducted research on the issue in controversy, the witnesses’ underlying data and analyses will be sought in discovery. Of course, litigants are entitled to every man’s (and woman’s) evidence, and independent research, but the involvement of an investigator-author as an expert witness will almost certainly increase the scope of discovery. Counsel will seek manuscript drafts, emails with co-authors, interim data, protocols and protocol amendments, preliminary analyses, among other documents. Many would-be expert witnesses are reluctant to put their own research into issue. The result is that expert witnesses frequently do not have “hands-on” experience with respect to the exact issue raised by the litigation in which they serve.

The combination of these factors creates vulnerabilities for witnesses. Expert witnesses who have not conducted research or written about the issue end up being more attractive to lawyers. But even these witnesses will be flawed in the eyes of a jury or trial judge: they have been paid for their time in reviewing literature, preparing reports, sitting for depositions, traveling, appearing at trial. The compensation of a highly skilled and experienced professional can lead to large amounts of money, amounts sufficient to make juries skeptical and lawyers’ uncomfortable.

Physicians, who care and treat a claimant, represent a litigation Holy Grail: the prospect of having a neutral, disinterested, and caring expert witness opine about causation, diagnosis, damages, or prognosis, without the baggage of having been selected and paid by lawyers. A lot of sharp elbows are thrown in the process of trying to align treating physicians with one side or the other’s litigation positions.

In some litigations, in some states, ex parte interviews by defense counsel are forbidden, but similar interviews by plaintiffs’ counsel are allowed. Much mischief results. The practice of trying to turn the treating physician into a “causation” or “damages” witness runs amuck, especially when trial courts do not require full Federal Rules of Civil Procedure Rule 26 disclosures from the treating physicians.

Jurors will want to know what treating physicians said, and may regard them as disinterested. Indeed, the supposed neutrality and beneficence of the treating physician is often emphasized by counsel in their addresses to juries. See, e.g., Simmons v. Novartis Pharm. Corp., 2012 WL 2016246, *2, *7 (6th Cir. 2012)((affirming exclusion of retained expert witness, as well as a treating physician who relied solely upon a limited selection of medical studies given to him by plaintiffs’ counsel); Tamraz v. BOC Group Inc., No. 1:04-CV-18948, 2008 WL 2796726 (N.D.Ohio July 18, 2008)(denying Rule 702 challenge to treating physician’s causation opinion), rev’d sub nom. Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010)(carefully reviewing record of trial testimony of plaintiffs’ treating physician; reversing judgment for plaintiff based in substantial part upon treating physician’s speculative causal assessment created by plaintiffs’ counsel), cert. denied, ___ U.S. ___ , 131 S. Ct. 2454, 2011 WL 863879 (2011). See generally Robert Ambrogi, “A ‘Masterly’ Opinion on Expert Testimony,” Bullseye: October 2010; David Walk, “A masterly Daubert opinion” (Sept. 15, 2010); Ellen Melville, “Comment, Gating the Gatekeeper: Tamraz v. Lincoln Electric Co. and the Expansion of Daubert Reviewing Authority,” 53 B.C. L. Rev. 195 (2012) (student review that mistakenly equates current Rule 702 law with the Supreme Court’s 1993 Daubert decision, while ignoring subsequent precedent and revision of Rule 702).

In the silicone gel breast implant litigation, plaintiffs corralled a herd of rheumatologists who were sympathetic to their claims of connective tissue disease, and who would support their “creative” causation theories. As a result, defense rheumatologists were not likely to have seen many of the claimants in their practice. The plaintiffs’ counsel capitalized upon this “deficiency” in their experience, by attacking the defense experts’ expertise and their experience with the newly emergent phenomenon of “silicone-associated disease” (SAD). The treating physicians were involved early on in the SAD litigation exploit.

In New Jersey, defense counsel have a limited right to ex parte interviews of treating physicians. Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985). Certain New Jersey state trial judges, however, have ignored the Stempler holding in mass tort contexts, and have severely limited defendants’ ability to get information from treating physicians. Last week, the New Jersey Appellate Division waded into this contentious area, by reversing an aberrant trial judge’s decision that severely restricted defendants’ retention of any physician who had treated a plaintiff in the mass tort. In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4 (N.J. Super. App. Div. June 1, 2012).

The defendants, Johnson & Johnson and Ethicon, Inc., designed, made, marketed, and sold pelvic mesh medical devices for the treatment of pelvic organ prolapse and stress urinary incontinence. In re Pelvic at 2. Several hundred personal injury cases against the defendants were assigned to the Atlantic County law division. In a pretrial order, the trial court barred “defendants from consulting with or retaining as an expert witness any physician who has at any time treated one or more of the plaintiffs.” Id. Remarkably, the trial court’s order was not limited to attempts to contact a physician for purposes of discussing a particular plaintiff’s case. The trial court’s order had the effect of severely limiting defendants access to expert witnesses, as well as disqualifying expert witnesses already retained. Plaintiffs’ counsel, however, were free to line up their clients’ treating physicians, and other treating physicians with substantial clinical experience with the allegedly defective device.

The Appellate Division reversed the trial court’s asymmetrical rules regarding treating physicians as manifestly inconsistent with the New Jersey Supreme Court’s mandate in Stempler and other cases. The Appellate Division showed little patience for the trial court’s weak attempt to justify the uneven-handed treatment of access to treating physicians. The trial court had invoked the potential for interference with the doctor-patient privilege as a basis for its pretrial order, but hornbook law, in New Jersey and in virtually every state, treats the filing of a lawsuit as a waiver of the privilege. Id. at 11. Similarly, the Appellate Division rejected the trial court’s insistence that a treating physician was obligated to protect and advance patients’ litigation interests by either testifying for patients or refraining from testifying for defendants. Id. at 15. A treating physician has no “duty of loyalty” to help advance a patient’s litigious goals. Id. at 26. The trial court had myopically confused a duty to provide medical care and treatment with helping plaintiffs’ counsel advance their view of the patients’ welfare.

The Appellate Division’s reversal is a welcome return of sanity and equity to New Jersey law of expert witnesses. The over-reaching rationale of the trial court posed some incredible implications. The appellate court noted, as an example, that “radiologists, orthopedists, and neurologists who routinely testify as experts for the defense in numerous personal injury cases in our courts are likely to be treating or consulting physicians for other patients with similar injuries, and some of those patients may also have filed lawsuits or may do so in the future.” Id. at 16. The trial court’s reasoning would strip defendants in virtually all personal injury litigation of access to expert physician opinion. In asbestos litigation, for instance, the defense would find any and all pulmonary physicians who was treating a worker with asbestos-related disease to be off limits to consulting or testifying. The Appellate Division’s strong ruling should be seen as a cloud on the validity of the continuing practice of barring defense counsel from ex parte interviews of treating physicians in mass or other tort litigation.

Posted in Causation, Expert Witnesses, Rule 702, Trial Procedure | Comments Off on Politics of Expert Witnesses – The Treating Physician

Litigation Funding

May 8th, 2012

An internet search on the phrase “litigation funding” returns thousands of hits. There are an incredible number of companies and persons “out there” who will buy equity shares in a lawsuit. Hedge funds are actively seeking opportunities to invest in lawsuits.

Putting aside the concerns about champerty and maintenance, I wonder whether defense counsel are doing enough to work on this issue in trials. Assuming that these websites really are engaged in the practice they describe, shouldn’t defense counsel include questions related to investments in lawsuits, in their voir dire of the jury panel?

Obviously if potential jurors owned stock in the defendant company, they would be disqualified. Equity ownership in a chose in action surely is relevant to counsel’s evaluation of a prospective juror’s impartiality. Even if the prospective juror is not invested in this particular lawsuit, the question is important. If the investment is in the litigation generally, or in other plaintiffs’ cases within the same litigation, then a jury verdict in favor of the plaintiff would likely benefit the juror by increasing the settlement value of the other cases. Even investments in unrelated personal injury litigation, the investments have the potential to prejudice the juror against the defense. For instance, if the juror has investments in another personal injury litigation, returning a large verdict in the present case could benefit the investment by making the company defending against the juror’s chose in action believe that trying cases in the particular venue was too dangerous to risk, and those claims should be settled.

Certainly, the existence and extent of investment by others in a lawsuit should be a worthy line of discovery to conduct in mass tort litigation.

Are we doing enough to stop this insanity?

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The MDL Pocket Guide

February 22nd, 2012

Multi-district litigation is the way that the great bulk of products liability cases are now handled in the federal courts. Once the Judicial Panel on Multi-District Litigation decides that MDL treatment is appropriate, the district courts, around the country, where cases have been filed, transfer their cases to the single district court judge for pre-trial consolidation. Along with the products cases, the districts will transfer related cases, such as consumer and securities fraud and medical monitoring class actions to the transferee court.

The Federal Judicial Center has recently published a “pocket guide” to describe the process of managing an MDL for products liability cases: Barbara J. Rothstein and Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (2011). Link or download The guide weighs in at 53 pages with some standard, and some non-standard, guidance for judges managing MDL products liability cases. Judge Rothstein, a veteran judge in MDL products litigation, recently stepped down as head of the Federal Judicial Center.

Because there is a significant risk that your MDL judge will read the Pocket Guide, this pamphlet should be on your and your clients’ reading list. Much of the pamphlet is unexceptional, but there is some non-standard guidance, which you may want to flag for the MDL judge in early briefings. What follows are just some brief comments on the Guide.

Expert Discovery

Much of the Guide‘s discussion on expert discovery is hornbook law, but the following passage gives some novel, dubious guidance:

“You should be aware of the possibility that not only the parties’ testifying experts, but also the published research on which the experts rely, may be subject to charges of bias. For example, where parties directly or indirectly fund authors of research articles and studies that are relied upon by testifying experts, such funding may be discoverable as relevant to the issue of bias.⁴⁸ In cases involving disputed evidence on causation, there will often be ongoing scientific studies addressing the disputed issue. You may need to establish procedures for discovery regarding such studies. Generally, courts protect researchers from disclosure of data or opinions relating to an ongoing unpublished study. By contrast, courts generally allow discovery into party-sponsored studies.⁴⁹“

Pocket Guide at § 9.e (citations omitted). The Guide suggests that courts protect researchers from compulsory process to obtain data from “ongoing unpublished” studies, but this begs the question what should be done for studies that already have been published and are being relied upon by the parties, one side, or the other, or both, in litigation. More troubling is the Guide’s suggestion that an MDL court should unleash discovery against authors of published works for evidence of bias, with a citation to a case that ordered parties to produce lists of payments to authors of articles relied upon by expert witnesses.

The case-law support for the suggested approach is thin – just one case – and it involves serious problems. For instance, expert witnesses must itemize all studies, publications, data, and the like, which they have “considered.” The expert witnesses’ reports must give a detailed recitation of their opinions and the bases for their opinions. Does the mere appearance of an article on an expert witness’s “consideration” list trigger this invasive discovery? The Guide‘s language and citation suggest so, but there is little reason or logic to support such an inquiry. The authors of a study relied upon might appear to be more appropriate targets for this inquiry, but sometimes studies cut different ways, and an expert witness for one side or the other might reasonably rely upon some data and analyses and not others from a single study. The process contemplated by the Guide appears to dichotomize, in a simple-minded way, the entire body of research that might bear upon scientific questions in a litigation.

Second, the discovery exercise described in pamphlet raises concerns about the confidentiality of consultations made with experts who were never considered for a testifying role in litigation. These consultations may have been made with the understanding that the fact and the substance of the consultation would be confidential. Some consultants, on both sides of litigations, may be concerned about powerful superiors in their universities who are allied with litigants or their regulatory allies on one side or the other.

Third, both sides in MDL cases are likely to speak to a good number of experts in the field. The parties on all sides will generally interview experts based upon their reported views or their interest in issues that are relevant to the litigation. Before courts create lists of “tainted” scientific papers, they might well consider the timing of the authorship and whether the payments were made before or after the author in question wrote the article that is relied upon.

Fourth, there is an unfair asymmetry involved in this exercise. Many MDL cases involve one or a few defendants, and it is generally feasible for those defendants and their counsel to trace all payments made to scientists, for whatever reason. Plaintiffs’ counsel, serving on a Steering Committee, may express an inability to contact every plaintiffs’ counsel who has taken state or federal cases related to the MDL, or who has considered taking cases, and who has spoken to experts as part of their research or representations. While that claimed inability may well be real (or not), it leaves the reporting on one side incomplete, and creates prejudice to the side (usually the defense) that has the ability to provide a definitive list.

Fifth, the scope of the disclosure exercise cannot be easily and fairly circumscribed. The defendants or the Plaintiffs’ Steering Committee may not have paid any money to scientists who has worked with other litigants in other litigations. Those scientists, who are not financially tied to the parties in the particular MDL, may still have substantial biases as a result of having worked with counsel – indeed, they may be the same counsel as are involved in the MDL – but the disclosure rules obscure their biases and create an imbalanced view of who is “interested,” and who is “disinterested.” For instance, a prominent plaintiffs’ counsel on the MDL’s Plaintiffs’ Steering Committee may have worked with an expert, and even may have encouraged that expert to publish on a topic that would affect a wide array of litigations, including the MDL where discovery is proposed into the expert’s “biases.” If the expert, however, had no engagement for the MDL itself, the association with plaintiffs’ counsel in other cases would appear to immunize this expert from discovery into payments and biases.

Sixth, the suggested procedure will not bring in information from plaintiffs’ counsel, whose cases are filed only in state courts, and who are thus not subject to orders of the MDL court. The state court plaintiffs could work up any number of consulting expert witnesses, and have them publish extensively on the MDL issues, but the federal MDL court’s discovery will not reveal the subterfuge. The practice of the state court consultations will be “privileged” under most states’ rules on expert witnesses. The defendants, of course, will be in both state and federal courts, and thus all their consulting expert witnesses will be subject to discovery.

The Guide‘s suggestion does not appear to have been thought through very carefully.

Attorney Fees

Who can be against attorney’s fees, but common-benefit funds raise some thorny cy pres problems when the MDL has wound down:

“In a large MDL, many courts appoint common benefit fee committees, charged either with auditing and recommending common benefit compensation requests, or determining the final allocation of a common benefit fee award among the competing common benefit attorneys.”

Pocket Guide at § 4.b.

The discussion of common-benefit funds could benefit from discussing some of the mechanics of ensuring that monies in the funds are returned to claimants at the conclusion of the litigation to avoid improprieties, such as have been seen in MDL 926, In re Silicone Gel Breast Implants Litigation. See SKAPP A LOT (April 30, 2010).

Name that MDL

The Pocket Guide has no suggestions about how to name the MDL, but while I am whining, here is another complaint: why are product MDLs typically given names like: In re Widget Products Liability Litigation? Doesn’t this prejudge the issue in a way unfairly to the defendant? Every videotaped deposition will begin with a statement from the videographer to the effect that the deposition is being taken in the Widget liability litigation, or something like that. Why aren’t these MDLs named: In re Widget Safety Litigation? Or, In re Widget Alleged Product Liability Litigation? The names are already a mouthful; they should at least be fair.

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Unreported Decisions on Expert Witness Opinion in New Jersey

February 21st, 2012

In New Jersey, as in other states, unpublished opinions have a quasi-outlaw existence. According to the New Jersey Rules of Court, unpublished opinions are not precedential. By court fiat, the court system has declared that it can act a certain way in a given case, and not have to follow its own lead in other cases:

No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.

New Jersey Rule of Court 1:36-3 (Unpublished Opinions).

Litigants down the road may feel that they are not being given the equal protection of the law, but never mind. Res judicata and collateral estoppel are in, but stare decisis is out. Consistency and coherence are so difficult, surely it is better to be free from having from these criteria of rationality unless we decide to “opt in” by publishing opinions with our decisions. As many other scholars and commentators have noted, rules of this sort allow decisions from other states, and even other countries, to be potentially persuasive, whereas by court rule and fiat, an unpublished decision of the deciding court can not have any precedential value. Why then permit unpublished cases to be cited at all?

Having tracked decisions, published and un-, in New Jersey for many years, I am left with an impression that the Appellate Division has a tendency to refuse to publish opinions of decisions in which it has reversed the trial court’s refusal to exclude expert witness testimony, or in which it has affirmed the trial court’s exclusion of expert testimony. Opinions that explain the affirmance of a denial of expert witness exclusion or the reversal of a trial court’s grant of exclusion appear to be published more often. Stated as a four-fold table:

	Trial Court Permits Expert	Trial Court Bars Expert
Appellate Court Affirms	Published	Not Published
Appellate Court Reverses	Not Published	Publish

My impression is that there is an institutional bias against creating a body of law that illuminates the criteria for admission and for exclusion of expert witness opinion testimony. This is only an impression, and I do not have statistics, descriptive or inferential on these judicial behaviors. From a jurisprudential perspective, the affirmance of an exclusion below, or the reversal of a denial of exclusion below, should be at least as important as publishing the reversal of an exclusion below. The goal of announcing to the Bar and to trial judges the criteria for inclusion and exclusion would seem to suggest greater publication of the opinions, from the two unpublished cells, in the contingency table, above.

No citation and no precedent rules are deeply problematic, and have attracted a great deal of scholarly attention. 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.” See generally The Committee for the Rule of Law (website) (collecting scholarship and news on the issue of unpublished and supposedly non-precedential opinions).

What would be useful is an empirical analysis of the New Jersey Appellate Division’s judicial behavior in deciding whether or not to publish decisions for each of the four cells, in the four-fold table, above. If my impression is correct, the suggestion of institutional bias would give further support to the abandonment of N.J. Rule of Court 1:36-3.

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Interstitial Doubts About the Matrixx

February 6th, 2012

Statistics professors are excited that the United States Supreme Court issued an opinion that ostensibly addressed statistical significance. One such example of the excitement is an article, in press, by Joseph B. Kadane, Professor in the Department of Statistics, in Carnegie Mellon University, Pittsburgh, Pennsylvania. See Joseph B. Kadane, “Matrixx v. Siracusano: what do courts mean by ‘statistical significance’?” 11[x] Law, Probability and Risk 1 (2011).

Professor Kadane makes the sensible point that the allegations of adverse events did not admit of an analysis that would imply statistical significance or its absence. Id. at 5. See Schachtman, “The Matrixx – A Comedy of Errors” (April 6, 2011)”; David Kaye, ” Trapped in the Matrixx: The U.S. Supreme Court and the Need for Statistical Significance,” BNA Product Safety and Liability Reporter 1007 (Sept. 12, 2011). Unfortunately, the excitement has obscured Professor Kadane’s interpretation of the Court’s holding, and has led him astray in assessing the importance of the case.

In the opening paragraph of his paper, Professor Kadane quotes from the Supreme Court’s opinion that “the premise that statistical significance is the only reliable indication of causation … is flawed,” Matrixx Initiatives, Inc. v. Siracusano, _ U.S. _, 131 S.Ct. 1309 (2011). The quote is accurate, but Professor Kadane proceeds to claim that this quote represents the holding of the Court. Kadane, supra at 1. The Court held no such thing.

Matrixx was a security fraud class action suit, brought by investors who claimed that the company misled them when they spoke to the market about the strong growth prospects of the company’s product, Zicam cold remedy, when they had information that raised concerns that might affect the product’s economic viability and its FDA license. The only causation required for the plaintiffs to show was an economic loss caused by management’s intentional withholding of “material” information that should have been disclosed under all the facts and circumstances. Plaintiffs do not have to prove that the medication causes the harm alleged in personal injury actions. Indeed, it might turn out to be indisputable that the medication does not cause the alleged harm, but earlier, suggestive studies would provoke regulatory intervention and even a regulatory decision to withdraw the product from the market. Investors obviously could be hurt under this scenario as much as, if not more than, if the medication caused the harms alleged by personal-injury plaintiffs.

Kadane’s assessment goes awry in suggesting that the Supreme Court issued a holding about facts that were neither proven nor necessary for it to reach its decision. Court can, and do, comment, note, and opine about many unnecessary facts or allegations in reaching a holding, but these statements are obiter dicta, if they are not necessary to the disposition of the case. Because medical causation was not required for the Supreme Court to reach its decision, its presence or absence was not, and could not, be part of the Court’s holding.

Kadane makes a similar erroneous statement that the lower appellate courts, which earlier had addressed “statistical significance,” properly or improperly understood, found that “statistical significance in the strict sense [was] neither necessary … nor sufficient … to require action to remove a drug from the market.” Id. at 6. The earlier appellate decisions addressed securities fraud, however, not regulatory action of withdrawal of a product. Kadane’s statement mistakes what was at issue, and what was decided, in all the cases discussed.

Kadane seems at least implicitly to recognize that medical causation is not at issue when he states that “the FDA does not require proof of causation but rather reasonable evidence of an association before a warning is issued.” Id. at 7 (internal citation omitted). All that had to have happened for the investors to have been harmed by the Company’s misleading statements was for Matrixx Initiatives to boast about future sales, and to claim that there were no health issues that would lead to regulatory intervention, when they had information raising doubts about their claim of no health issues. See FDA Regulations, 21 U.S.C. § 355(d), (e)(requiring drug sponsor to show adequate testing, labeling, safety, and efficacy); see also 21 C.F.R. § 201.57(e) (requiring warnings in labeling “as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.”); 21 C.F.R. § 803.3 (adverse event reports address events possibly related to the drug or the device); 21 C.F.R. § 803.16 (adverse event report is not an admission of causation).

Kadane’s analysis of the case goes further astray when he suggests that the facts were strong enough for the case to have survived summary judgment. Id. at 9. The Matrixx case was a decision on the adequacy of the pleadings, not of the adequacy of the facts proven. Elsewhere, Kadane acknowledges the difference between a challenge to the pleadings and the legal sufficiency of the facts, id. at 7 & n.8, but Kadane asserts, without explanation, that the difference is “technical” and does not matter.” Not true. The motion to dismiss is made upon receipt of the plaintiffs’ complaint, but the motion for summary judgment is typically made at the close of discovery, on the eve of trial. The allegations can be conclusory, and they need have only plausible support in other alleged facts to survive a motion to dismiss. The case, however, must have evidence of all material facts, as well as expert witness opinion that survives judicial scrutiny for scientific validity under Rule 702, to survive a motion for summary judgment, which comes much later in the natural course of any litigated case.

Kadane appears to try to support the conflation of dismissals on the pleadings and summary judgments by offering a definition of summary judgment that is not quite accurate, and potentially misleading: “The idea behind summary judgment is that, even if every fact alleged by the opposing party were found to be true, the case would still fail for legal reasons.” Id. at 2. The problem is that at the summary judgment stage, as opposed to the pleading stage, the party with the burden of proof cannot rest upon his allegations, but must come forward with facts, not allegations, to support every essential element of his case. A plaintiff in a personal injury action (not a securities fraud case), for example, may easily survive a motion to dismiss by alleging medical causal connection, but at the summary judgment stage, that plaintiff must serve a report of an appropriately qualified expert witness, who in turn has presented a supporting opinion, reliably ground in science, to survive both evidentiary challenges and a dispositive motion.

Kadane concludes that the Matrixx decision’s “fact-based consideration” is consistent with a “Bayesian decision-theoretic approach that models how to make rational decisions under uncertainty.” Id. at 9. I am 99.99999% certain that Justice Sotomayor would not have a clue about what Professor Kadane was saying. Although statistical significance may have played no role in the Court’s holding, and in Kadane’s Bayesian decision-theoretic approach, I am 100% certain that the irrelevance of statistical significance to the Court’s and Prof. Kadane’s approaches is purely coincidental.

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