Here’s what has us ticked off today.

(It’s a good thing something has us ticked off. Otherwise, where would we find the inspiration to write?)

The rules of evidence governing hearsay create an inequity in pharmaceutical product liability cases. Here’s how:

At trial, plaintiff offers into evidence scientific articles that say the defendant’s drug is bad. Defendant objects because the articles are hearsay — out-of-court statements offered to prove the truth of the matter asserted. Plaintiff says that the articles are not offered to prove their truth, but only to show that the defendant was on notice of the evils of its product. The articles are then admitted into evidence for the limited purpose of showing that the defendant was on notice of the nasty article.

At trial, the defendant wants to admit the opposing evidence — some scientific articles that say its drug is good. The articles are hearsay and not admissible. The defendant therefore uses the articles under Federal Rule of Evidence 803(18) as evidence upon which the defense experts rely. Under FRE 803(18), however, the articles can only be relied upon by experts and read to the jury; the articles themselves are not admitted into evidence.

So far, so good. But here’s the rub:

When the jury deliberates, it is given copies of the documents that were admitted into evidence — even if admitted only for a limited purpose. The jury therefore possesses copies of all of the articles that attack the drug, but it does not have copies of the articles that say the drug is good. That create a terribly unfair situation if the jury decides to read some of the evidence. And it creates a mismatch if the jury is divided: The pro-plaintiff jurors are armed with scientific literature to support their position, but the pro-defense jurors are seemingly disarmed by the rules of evidence.

What’s the solution?

Here are our thoughts (supplemented by responses we received from some members of the Product Liability Advisory Council who responded to an e-mail inquiry we circulated on this topic):

First, perhaps the articles that say the drug is good are admissible to prove “lack of notice.” For the jury to consider the reasonableness of the company’s response to notice, the jury must consider everything of which the defendant had notice — not just the bad stuff.

That’s an elegant solution if the good scientific literature appeared in print before the date the plaintiff bought (or ingested) the defendant’s product. Information known by the defendant before the date of the plaintiff’s exposure speaks to notice. This solution doesn’t work as well if the bad articles appeared in print before the plaintiff ingested the product, but the good articles appeared in print later — too late to provide pre-injury notice.

Second, the defendant could offer to stipulate to its knowledge of the existence of the earlier articles, which could (depending on the terms of the stipulation) establish the point to which the plaintiff is entitled without poisoning the jury room with a boatload of prejudicial hearsay. If the plaintiff refused the defendant’s proposed stipulation, that refusal would support the defense argument that the articles should be excluded as more prejudicial than probative under Rule 403.

Third, a defense expert could attach the helpful articles as exhibits to his or her expert report. The articles would support the expert’s qualifications and opinions. In courts that admit expert reports into evidence (which is, admittedly, not all courts), the helpful scientific articles would accompany the expert’s report into the jury room.

Fourth, perhaps the scientific literature that establishes notice should be viewed as a whole. If the plaintiff is allowed to admit one article — which, by its very nature, is only part of the scientific whole — then the defendant should be allowed to introduce additional articles into evidence for the sake of completeness.

Fifth, a defendant could attack the plaintiff’s scientific article on grounds other than the usual hearsay objection. Precisely what does the article provide “notice” of? That it was written by a certain person and published on a certain date? That the article purportedly states facts? That the stated facts are true? That one would be justified in drawing conclusions based upon those facts? That the authors of the article were qualified to draw those conclusions? If so, are those conclusions double hearsay because the authors’ conclusions rely on other out-of-court statements offered for their truth?

Sixth, if the position asserted in the plaintiff’s article has been discredited by later science, the plaintiff’s article should not be admitted for notice because the article is irrelevant (or more prejudicial than probative). (We like this concept, but it may serve no purpose. If the article can be excluded on the ground that it is not scientifically valid, then the defendant probably should have won its Daubert motion and defeated this lawsuit long before the evidence question arose at trial.)

Seventh, perhaps the judge has discretion to admit certain articles for the limited purpose of notice, but then to refuse to send those articles into the jury room to avoid precisely the prejudice we’ve identified in this post.

Finally, if plaintiff’s Complaint includes a claim for punitive damages (or perhaps mere negligence), then the scientific articles favorable to the defense should be admitted to show the reasonableness of the defendant’s conduct.

We’re calm now.

We may not have solved the legal problem, but we sure feel better for having vented. Thanks for tolerating us.