The ritualistic words “reasonable degree of medical certainty” (RDMC) are intoned by medical expert witnesses in most state and federal courts.  Courts in some liberal states, such as New Jersey, courts may dilute the typical formulation to require that expert witnesses opine with “reasonable degree of medical probability,” but the magic words are just as important.

Do the words have any meaning?

The words certainly have functional meaning in that their omission may lead to untoward consequences.  Although I have not seen many reported decisions on the issue, I have seen grown men cry when their adversaries pointed out that their expert witnesses failed to utter the magic words, and their trial judges seriously pondered striking the unadorned testimony.  In one case, my adversary begged me for a stipulation because his witness had failed to use the magic words, and had already fled the jurisdiction.  Because I (correctly) believed that the trial judge was going to grant a directed verdict on another ground, I cheerfully agreed to the stipulation that the witness, if he had been asked, would have stated that his opinions were all held and expressed to a RDMC.

Do the words have actual meaning besides the operational significance of being required by law?

David Faigman, who is truly a distinguished Professor, at the University of California Hastings College of Law, writes that the use of these words is an empty formalism.  The expression used in conjunction with a claim that X causes Y, or that X causes this particular case of Y, “has no empirical meaning and is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means.”  Faigman, “Evidentiary Incommensurability:  A Preliminary Exploration of the Problem of Reasoning from General Scientific Data to Individualized Decision-Making,” 75 Brooklyn Law Review 1115, 1134 (2010).  Faigman goes on to note that “less extreme versions” of RDMC attached to propositions about the causation of individual events are objectionable as well.  Faigman appears to take aim at both the RDMC qualifier as well as the assertion of some empirical propositions that are qualified by it.

In part, Professor Faigman’s concern about the lack of “empirical meaning” for some statements of individual causation are well taken.  He asks, for example, how can a witness say “more likely than not” that a given instance of cross-race identification is inaccurate. “Experts’ case-specific conclusions appear to be based largely on an admixture of an unknown combination of knowledge of the subject, experience over the years, commitment to the client or cause, intuition, and blind-faith.  Science it is not.” Id. at 1134 – 35.  Faigman gives other examples of the problem in the context of specific medical causation in personal injury cases, which illustrates that clinical training and practice often provide no basis for reliable attribution of causation in particular cases.  Id. at 1132 (“the core nature of clinical practice is at right angles to the crux of most legal inquiries); id. at 1133 & n.45 (citing Henricksen v. Conoco-Phillips Co., 605 F.Supp. 2d 1142 (E.D. Wash. 2009) for the proposition that differential etiology is useless when there is a large percentage of idiopathic cases and no discriminating feature of toxic causation in plaintiff’s case).

To the extent that Faigman has identified an embarrassing “lacuna” in the use of scientific evidence in courtrooms, his article is, as his articles usually are, an astute commentary on the sad state of how science is applied in court rooms.  Faigman, and a few other academic lawyers, have been willing to point to the naked judges and juries and boldly note that they are without clothes.

But is Faigman correct that the expression, RDMC, “is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means”?  Id. at 1134.

Faigman’s critique of RDMC appears to be aimed at expert witnesses who will utter the phrase, (and at courts that will superficially accept the utterance), without understanding the phrase, or perhaps not really meaning or caring what they say.  See generally H. Frankfurt, Bullshit 2005 (passim).  Surely, however, the phrase is not semantically empty.  “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion.  Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge.  A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers.  Objectively, the phrase conveys the notion of reliable knowledge.  To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.  Even if judges and lawyers were to take the phrase as empty (because they are inured to bullshit in this setting), jurors are likely to take it as having a plain language meaning that adds epistemic and personal “heft” to the opinion.

Furthermore, Faigman’s comment about RDMC is inaccurate in some states that take the utterance very seriously.  In Pennsylvania, for instance:

“the expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence.”

Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681, 684 (1954).   This “formalistic” requirement in Pennsylvania is particularly important because the appellate courts have seriously eroded the gatekeeping function under Pennsylvania Rule of Evidence 702.  The epistemic requirements of RDMC are thus, for the time being, the only way to ensure that science adequately informs the verdicts and judgments of Pennsylvania courts.

Professor Faigman’s article raises an additional, “case-specific” concern.  For reasons that are unclear, Faigman uses the connection between asbestos and mesothelioma to serve as an example of an outcome that has a unique cause:

“An example of this is the relationship between asbestos exposure and mesothelioma. The unique cause of mesothelioma is exposure to asbestos, but not everyone exposed to asbestos develops mesothelioma.”  Id. at 1120.

and

“In the example of mesothelioma, a civil plaintiff who has this disease will be able to trace it back to asbestos exposure.”  Id. at 1121.

Not really.  Faigman offers no support for these startling assertions, and they are wrong.  Mesothelioma is known to be caused by erionite, a non-asbestos zeolite mineral, and the disease is probably caused by radiation as well.  Young adult cases among survivors of childhood Wilms’ tumor have been frequently described (after therapeutic radiation).  There is much that is known and unknown about mesothelioma causation.  Some forms of asbestos clearly cause mesothelioma, but there are few competent experts who will say, with RDMC, that all cases of mesothelioma are caused by asbestos.

Plagiarism is serious academic sin. Back in the day, my junior high teachers instilled a fear of this sin, and its dire consequences, in me. Given that I had abandoned a religious worldview long ago, the Purple “P” was a much worse branding than the Scarlet “A,” for anyone who lives by the written word.

The Chronicle of Higher Education reported a story yesterday about a graduate student’s outing of a professor’s apparent plagiarism at Rutgers University (at one of its satellite campuses in Newark, New Jersey). See Bartlett, “Alan Sokal, the 1996 Hoaxer, Takes Aim at an Accused Plagiarist at Rutgers.” http://chronicle.com/article/Alan-Sokal-Takes-Aim-at-an/124969/

The protagonists in this morality play are Mr. Frank Fischer, a professor of political science at Rutgers, and Mr. Kresimir Petkovic, a graduate student in the field of political science. Petkovic submitted an article to Critical Policy Studies; the paper was critical of Fischer’s work. Fischer, an award-winning scholar, is an editor of Critical Policy Studies. As you might imagine, Mr. Petkovic’s article did not fare too well. According to Bartlett’s account, initially, the journal initially told Petkovic that the paper might be published along with a response from Fischer. Ultimately, Petkovic’s paper was rejected.

The rejection led Petkovic to investigate, perhaps peevishly, whether Fischer’s scholarly work, the subject of his critique, was original. With the advent of electronic search engines, and software for comparing documents, the process of identifying plagiarism has been simplified. Thinking that he had found “pay dirt,” Petkovic sought out help from the well-known debunker of social constructivism, Alan Sokal, who offered to help in the investigation. Fischer threatened to sue, but the Chronicle apparently took it upon itself to publish the Petkovic-Sokal report on Fischer’s work as a linked document to Bartlett’s article. http://chronicle.com/items/biz/pdf/plagiarism_fischer.pdf  Fischer defended himself against the charges of plagiarism by interposing a plea of mere sloppiness.

There are several interesting lessons from the Fischer-Petkovic affair.

First, the Fischer affair illustrates some of the failings of peer review. It is a system run by human beings, and peer review is only as strong as the integrity of not just the reviewers, but of the editors as well. Even if the peer reviewers were selected in a fair manner, they were selected by the editors of the journal conducting the review. The reviewers may well be part of the clique that is being critiqued, and even if not, they are likely reviewers because they want to keep the option of someday publishing their work in the journal in question. This does not seem like a good system to provide unbiased review, with meritorious inclusion and exclusionary decisions.

This process takes surely place in medical publishing as well, where editorial boards and their friends are often possessed by various “enthusiasm” for and against certain lines of research. There is an awful lot of “political” science in medicine, as well. For parties who litigate medico-scientific issues, this problem in peer review is often problematic.

Second, the Fischer affair illustrates the existence of a certain inbred arrogance among intellectual groups. Fischer is an award-winning scholar in his circle. Many academic intellectual circles are very “tight,” and they seem not to care about what those external to the circle think. This phenomenon was seen in the 2005 award of the Sedgwick Memorial Medal by the American Public Health Association to Barry S. Levy. The Sedgwick award is meant to recognize outstanding achievements in public health. Shortly before receiving the award, Levy was awarded other epithets from a federal district judge. In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Texas 2005)(expressing particular disappointment with Dr. Levy, who although not the worst offender of a bad lot of physicians, betrayed his “sterling credentials” in a questionable enterprise to manufacture diagnoses of silicosis for litigation). See also Schachtman, Silica Litigation: Screening, Scheming & Suing; Washington Legal Foundation Critical Legal Issues Working Paper Series No. 135 (Dec. 2005)(exploring the ethical and legal implications of the entrepreneurial litigation in which Levy and others were so heavily involved); available at http://www.wlf.org/upload/1205WPSchachtman.pdf. The Fischer affair is a reminder that qualifications do not substitute for indicia of reliability or integrity.

Third, the Fischer matter raises the interesting question for lawyers as to what is the permissible limit of plagiarism in the law? The law is built upon slavishly following what someone else did in the same or similar situation previously. That is “precedent.” Still, we would expect judges to attribute specific language to others when they use that language verbatim. Lawyers for litigants, however, may be all-too-happy to see their language in briefs appropriated wholesale by judges in their cases.

And what constraints operate upon lawyers themselves? Can they take, without attribution, language from another brief, for use in their most current case? Recently, I had the experience of circulating a draft appellate brief to my codefendants’ counsel for their review. My hope in doing so was to avoid unnecessary conflicts in our written submissions to the appellate court. Given the press of deadlines, I did not make much of not having my codefendants’ counsel return the favor in allowing me to see her draft brief. So imagine my consternation when I saw my codefendant’s brief, which used entire pages out of my brief! There appears to be no ethical canon, principle, or rule to address this issue.  Perhaps there should be.

Gregory Joseph posted a note about an interesting case, McElgunn v. CUNA Mutual Insurance Soc’y, 700 F. Supp. 2d 1141 (D.S.D. 2010)(first-party bad faith case for non-ERISA disability benefits), which addressed the vexing issues of whether lawyers’ objections and colloquy during a videotaped de bene esse deposition should be excised on play back before a jury.  See “No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition,” http://www.josephnyc.com/blog/?blogID=1485.  Apparently the trial court overruled the great majority of the objections, and the losing party further objected to the playback of its counsel’s repeated objections.  The court, noting no authority had been cited for requiring editing, permitted the playback without editing of the objections and colloquy.  The trial court further reasoned that the jury’s viewing of the objections on the videotape was “no different than what the jury would see if an attorney made similar objections at trial during an examination of a witness.”  The trial court also noted that the jury should be allowed to observe the witness’s reaction to the objections and the colloquy.

Joseph does not comment upon this ruling, which in some ways is a troubling precedent.  Of course it is not the district judge’s fault that the Rules Committee has not addressed the practical issues raised by the growing use of videotaped depositions at the time of trial.  The court, however, is incorrect to the extent that common sense would be some authority for allowing redaction of objections and colloquy.  If the testimony had taken place in court, the objecting party would have had three advantages.  First, its counsel could have had the benefit of the court’s rulings early in the testimony, and those rulings may have persuaded the counsel that the issue was not worth pressing or preserving further.  Second, the objecting lawyer could have requested a continuing objection to a line of testimony, and thus avoided appearing to be obstructionist before the jury.  Of course, such a request for a continuing objection could be made on the record of the deposition, but the defender would not know for sure that the court will ultimately honor the request.  Third, even if ruling on the objection were a discretionary call for the trial judge, the presentation of the testimony from a witness on the stand may have caused the trial judge to take greater control of the courtroom, despite overruling the objection overruled.  (How many times have trial judges overruled a leading question on direct examination, but then admonished the examiner to stop leading?)  Surely, the party defending a de bene esse videotaped deposition should not be disadvantaged by operating in the dark about how the court will ultimately rule on objections. 

Perhaps the Rules Committees will address the problems posed by the McElgunn decision; the issues have certainly been with us for long enough.

Recently, I presented to a local bar association about the rise of systematic review and meta-analysis in the medical and social sciences to resolve open scientific issues with the best available data.  I did not believe that this would be a particularly controversial topic.  There can be no denying that in the last 25 years, the systematic review has challenged and replaced the authoritative narrative review, which frequently was selective and incomplete, and which reflected the pre-existing beliefs of its author.  Similarly, meta-analysis has emerged as an important tool to analyze a body of studies, and to refine and perhaps resolve open issues of causation of benefit and harm.

Before the meeting began, I sat with two lawyers who ultimately would be in the audience.  I was fine tuning my slides, and they were talking excitedly and openly about various political issues.  It was obvious that these lawyers considered themselves liberal activists on a wide range of current issues.  So it was surprising when these same lawyers were the most outspoken, and frankly hostile, audience members.  They interrupted me incessantly, and their questions reflected skepticism and adversity to the notion that medical, and even some social, issues should be resolved based upon evidence-based principles that required pre-specification of the criteria for quality of evidence, and for the ultimate synthetic judgment of integrating the available evidence into a reliable conclusion. 

Living in the heart of liberal New York City, I expected hostility from people on the Far Right (not to be confused with conservatives), whose commitment to religious positions makes an evidence-based worldview impossible.  Ultimately, evidence does not matter in debates about Creationism, and perhaps about other issues as well.  The unscientific approach taken by people on the Religious Right on issues such as abortion and breast cancer, and in the Tobacco Industry on “sound science,” certainly led me to expect that they would fundamentally dissent from an evidence-based world view. 

I was surprised by two liberal auditors’ resistance and hostility to my description of the ascendancy of evidence-based medicine.  One of them seemed offended by the notion that there was a generally accepted hierarchy of evidence, and so, for instance, a randomized clinical trial would trump a mere anecdotal case report.

In pondering my audience’s reaction, I later remembered Alan D. Sokal’s wonderfully puckish article, “Transgressing the Boundaries:  Towards a Transformative Hermeneutics of Quantum Gravity,” published in Social Text 217-252 (Nos. 46 – 47, Spring 1996). Although Sokal is a socialist, he was frustrated and even horrified by the Left’s embrace of social constructivism, and its rejection of an evidence-based world view.  In a parody that he planted deep in Constructivist territory, Sokal perpetuated a hoax that has rightly become famous.  At the outset of his article, he claims:

“It has thus become increasingly apparent that physical ‘reality’, no less than social ‘reality’, is at bottom a social and linguistic construct; that scientific ‘knowledge’, far from being objective, reflects and encodes the dominant ideologies and power relations of the culture that produced it; that the truth claims of science are inherently theory-laden and self-referential; and consequently, that the discourse of the scientific community, for all its undeniable value, cannot assert a privileged epistemological status with respect to counter-hegemonic narratives emanating from dissident or marginalized communities.”

Sokal, at 217.  With his tongue planted firmly in his cheek, Sokal deconstructed the deconstructionists, and for that he has been hailed and vilified.

I realized that Sokal’s work, back in 1996, identified the source of my audience’s hostility.  My hostile auditors want to be free to embrace their counter-hegemonic narratives, without being troubled or delayed by considerations of reliable evidence.  Looking at a broader audience, we can see that Sokal’s hoax identifies the resistance and hostility to the evidence-based worldview embraced by the U.S. Supreme Court in Daubert, and codified in Federal Rule of Evidence 702.

As lawyers, of course, we see hostility to, or ignorance of, evidence-based positions with distressing frequency.  One recent example cropped up in an opinion of the New Jersey Appellate Division, in Sarkozy v. A.P. Green Industries, Inc., 2009 N.J. Super. Unpub. LEXIS 2052 (July 31, 2009), certif. denied sub nom. Patton v. A.O. Smith Corp., 2009 N.J. LEXIS 1465 (Dec. 14, 2009).  In Sarkozy, the Appellate Division reviewed what appears to have been a challenge to an award for medical monitoring to some of the plaintiffs, who had claimed injuries from occupational asbestos exposure.  Plaintiffs’ expert witnesses had opined that plaintiffs should have biannual chest radiographs, CT scans, and PET scans to detect lung cancer, and colonoscopies to detect colorectal cancer.  Remarkably, the Appellate Division failed to mention that no medical organization has endorsed CT scans, and certainly not PET scans, for the medical monitoring for lung cancer.  Those imaging modalities are not only expensive, but carry a risk of their own from ionizing radiation.  Furthermore, there is no reliable evidence that these imaging modalities actually improve outcomes or are medically necessary. 

With respect to colonoscopies, the evidence is even more extreme.  First, the screening a normal part of adult health, and so does not represent a differential, increased cost to the plaintiffs.  Second, and more important, there is no reliable evidence that asbestos exposure increases the risk of colorectal cancer.  Although the opinion that asbestos causes colorectal cancer was popularized by the late Irving Selikoff, and has been preached as gospel by his followers, there is little or no reliable evidence to support the opinion.  Recently, a select committee of the Institute of Medicine published its report on Asbestos:  Selected Health Effects (2006), in which it concluded that the evidence was insufficient to infer a causal relationship between asbestos exposure and colorectal cancer.  See id. at p. 10.  Plaintiffs’ expert witnesses, who appear to have hatched within the Selikoff nest, continue to propagate the Selikoff propaganda, and the propaganda continues to infect judicial decisions.  So much for evidence-based medicine in New Jersey courts.

Perhaps, in Sarkozy, the defendants’ counsel never objected.  If so, shame on them.  Perhaps the trial and appellate courts were simply resistant to analyzing and ensuring the reliability of the evidence.  Even so, it is hard to see how an award for medical monitoring for CT and PET scanning could be sustained without any consideration of the efficacy of those procedures.

Harry Frankfurt’s little book, On Bullshit (Princeton UniversityPress 2005), hardly shook up the world of philosophy, but it gave a valuable, succinct assessment of what is wrong with so much expert witness opinion testimony:

“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.”

On Bullshit, at 63.

Parties to litigation experience this compulsion to take a position and say something about the elements of their claims and defenses, lest they suffer an adverse judgment on a matter that is dear to them.  Frankfurt’s thesis helps to explain why plaintiffs’ expert witnesses are more prone to bullshit than the defense’s:  the plaintiffs must find someone to say something about those elements of their claims that require expert witness testimony, or else the plaintiffs will be out of court.  The defense, however, has the luxury of not saying anything, but putting the plaintiffs to their proofs.  If the burden of proof were shifted, the bullshit, no doubt, would emanate from the other side of the courtroom.  Plaintiffs must put forward evidence to meet their burden on every element of their claim; whereas defendants can concede, or not contest, some elements as long as they have defenses to at least one necessary element of the claim.

Several years ago, I was in a federal courtroom somewhere in the Midwest, where I was being treated to an oral argument by Richard (“Dickie”) Scruggs.  To show my disapproval of the liberties that Dickie was taking with the facts and law, on a break, I pulled out my copy of On Bullshit, and started leafing through it.  Dickie, gracious and good humored, came over to tell me how much he had enjoyed reading the book, and how he had bought ten copies to give out to friends for Christmas.  All I could say was what goes around, comes around.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So the bells really do toll for thee.