The issue of the state of mind or intent of a party can play out a number of ways based on the nature of the case.  In the criminal context, proof of the mens rea of the defendant is typically an element in the statutory definition of the crime.  In a civil contract case, whether the parties had a meeting of the minds and how one party actually interpreted disputed provisions can be central issues to decide.  In an employment case, it may be the issue of whether the stated reason for taking an adverse employment action was mere pretext for the real reason.  In the product liability context, the focus can be on the plaintiff’s assumption of risk or the defendant’s alleged reckless indifference to the risk of the harm that allegedly befell the plaintiff.  Because plaintiffs in large-scale drug and device try cases to get punitive damages, the latter is a recurring issue in our cases.

Back in the day, well before The Case of Thorns gave rise to tort law and tort law eventually gave rise to product liability claims, some trials were decided based on the use of oath helpers, purportedly upstanding citizens who would swear that one party was good and honest and, thus, should prevail.  The oath helping could touch on all manners of state of mind, such as “Ruprecht is telling the truth that he thought it was his pig” or “Rolfe was not acting in self defense when he slew kind Alfred.”  In American jurisprudence, the distaste for this overtly classist practice—nobles tended to have better oath helpers than commoners—morphed into something called the “ultimate issue rule.”  Because juries decided disputed facts, no witness was supposed to stray into direct testimony on a deciding issue, which was seen as “usurping the province of the jury” with “empty rhetoric” from the stand.  This history is set out in the Advisory Committee Notes to Federal Rule of Evidence 704, which abolished the unwieldy ultimate issue rule in federal civil and criminal trials when it was adopted in 1975.

The 2011 to present version of the Rule provides:

Rule 704. Opinion on an Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

On its face, the abolition applies to opinion testimony from both lay and expert witnesses, although the exception is just for experts in criminal cases.

The Notes also contain a fairly familiar explanation that references oath helpers:

The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed. McCormick §12.

We first ran across this language back in 2000 when posed with the issue how to prevent a plaintiff expert, qualified in some discipline relevant to at least some issues in the case, from offering what amounted to a second opening from the witness stand, replete with all manner of “opinions” on what the defendant drug manufacturer knew, why it did what it did, and how not doing what it did not do was proof of bad intent.  We used to call this “intentology” testimony and, when we first looked, the authority for excluding it was as thin as the basis for admitting it, even though many courts had admitted it over faint objection.  Although we offered a number of arguments for why the plaintiff experts should not be allowed to sprinkle in all their musings on intent in the course of their testimony, the one that has been the most impactful in helping to create a line of federal MDL decisions since 2000 is that experts should not be permitted to usurp the jury’s function with this sort of thinly veiled advocacy.  After our first two decisions on this issue from the In re Diet Drugs MDL, a number of individual decisions followed suit, but it was the published decision from the In re Rezulin MDL as part of broader Daubert challenges that really got things rolling in MDL after MDL. 

We detailed the first eleven years of this line of cases here.  With credit to Kelly McNeill, we can present a mini-survey of federal decisions since 2011, focused on MDL and MDL remand cases, which makes it clear that the exclusion of expert opinion on the state of mind of a corporate defendant is the decidedly majority position.

                        FIRST CIRCUIT

• In re Zofran (Ondansetron) Prod. Liab. Litig., No. 1:15-MD-2657-FDS, 2019 WL 5685269, at *9 (D. Mass. Nov. 1, 2019) (MDL excluded plaintiff expert’s challenged opinions; “Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.”) (citing In re Solodyn (Minocycline Hydrochloride) Antitrust Litig., 2018 WL 734655, at *2 (D. Mass. Feb. 6, 2018); In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 547, 551 (S.D.N.Y. 2004); In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1337-38 (S.D. Fla. 2010)).

                        SECOND CIRCUIT

• In re Mirena IUD Prod. Liab. Litig., 169 F. Supp. 3d 396, 479–80 (S.D.N.Y. 2016) (MDL excluded frequent flyer plaintiff expert’s opinions on the “intent, motives or states of mind of corporations, regulatory agencies and others,” but permitted testimony on “what information was in [defendant’s] possession” and the intent of defendant or FDA when “clearly indicated in public documents”).

                        THIRD CIRCUIT

• Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 497 (D. Del. 2019) (“Expert testimony as to intent, motive, or state of mind offers no more than the drawing of an inference from the facts of the case … and permitting expert testimony on this subject would be merely substituting the expert’s judgment for the jury’s and would not be helpful to the jury.”).
• In re: Tylenol (Acetaminophen) Mktg., Sales Pracs., & Prod. Liab. Litig., No. 2:12-CV-07263, 2016 WL 4039271, at *8 (E.D. Pa. July 28, 2016) (MDL excluded frequent flyer plaintiff expert’s opinions; citing a number of decisions on the same expert, including Heineman v. American Home Products Corp., No. 13–cv–02070–MSK–CBS, 2015 WL 1186777, at *12 (D. Colo. Mar. 12, 2015) (excluding Dr. Blume’s opinions about defendants’ state of mind); In re Viagra Prods. Liab. Litig., 658 F. Supp. 2d 950, 964-965 (D. Minn. 2009) (“There is no indication in the record that the jury here would require special assistance to interpret the documents on which Dr. Blume bases her opinion that Pfizer was more worried about bad publicity than safety. Because the jury is equally capable of evaluating this particular evidence, Dr. Blume’s opinion on this matter must be excluded.”); Chandler v. Greenstone Ltd., No. C04–1300RSL, 2012 WL 882756, at *1 (W.D. Wash. Mar. 14, 2012) (excluding Dr. Blume’s opinions on defendants’ state of mind, intent, or knowledge); Johnson v. Wyeth LLC, No. CV 10–02690–PHX–FJM, 2012 WL 1204081, at *3 (D. Ariz. Apr. 11, 2012) (excluding Dr. Blume’s opinions on defendants’ motive, intent, knowledge, or other state of mind)).

                        FOURTH CIRCUIT

• A number of decisions from 2013 forward by the judge overseeing multiple pelvic mesh MDLs expressed similar rulings that broadly excluded intent opinions.  For instance, in Eghnayem v. Bos. Sci. Corp., 57 F. Supp. 3d 658, 670 (S.D.W. Va. 2014), aff’d 872 F.3d 1304 (11th Cir. 2017), the court stated:

First, as I have maintained throughout these MDLs, I will not permit the parties to use experts to usurp the jury’s fact-finding function by allowing an expert to testify as to a party’s state of mind or on whether a party acted reasonably. See, e.g., Huskey v. Ethicon, Inc., 29 F.Supp.3d 691, 702, 2:12–cv–05201, 2014 WL 3362264, at *3 (S.D.W. Va. July 8, 2014); Lewis, et al. v. Ethicon, Inc., 2:12–cv–4301, 2014 WL 186872, at *6, *21 (S.D.W. Va. Jan. 15, 2014); In re C.R. Bard, Inc., 948 F.Supp.2d 589, 611, 629 (S.D.W. Va.2013). Although an expert may testify about his or her review of internal corporate documents solely for the purpose of explaining the basis for his or her opinions—assuming the opinions are otherwise admissible—a party’s knowledge, state of mind, or other matters related to corporate conduct and ethics are not appropriate subjects of expert testimony because opinions on these matters will not assist the jury.

                        FIFTH CIRCUIT

• Greger v. C.R. Bard, Inc., No. 4:19-CV-675-SDJ, 2021 WL 3855474, at *9 (E.D. Tex. Aug. 30, 2021) (remand case precluded plaintiff expert from opining on the defendant’s “subjective intent, motives, or internal decision-making involved in [product] testing,” while permitting opinions on defendant’s “objective actions or inactions with respect to [product] testing, and the sufficiency thereof”).

                        SIXTH CIRCUIT

• In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 345 F. Supp. 3d 897, 902–03 (S.D. Ohio 2015) (“Courts have typically barred expert opinions or testimony concerning a corporation’s state of mind, subjective motivation, or intent.”) (MDL No. 2433)

                        SEVENTH CIRCUIT

• In re Fluidmaster, Inc., Water Connector Components Prod. Liab. Litig., No. 14-CV-5696, 2017 WL 1196990, at *24 (N.D. Ill. Mar. 31, 2017) (MDL excluded plaintiff expert on “the motivations, intent, and state of mind of a corporation,” noting “[t]he jury will not be aided by Plaintiffs’ expert speculating about why Defendant made design changes and outsourcing decisions”).

                        EIGHTH CIRCUIT

• Clinton v. Mentor Worldwide LLC, No. 4:16-CV-00319 (CEJ), 2016 WL 7491861, at *11 (E.D. Mo. Dec. 30, 2016) (“The question of corporate motive, intent, knowledge or state of mind is one for the jury, not for an expert . . . . Recitation of defendant’s own corporate documents does not fall within the purview of expert testimony under Federal Rule of Evidence 702.”) ( remand from MDL No. 2004); Kruszka v. Novartis Pharms. Corp., 28 F. Supp. 3d 920, 937 (D. Minn. 2014) (“The Court agrees with the parties that Dr. Vogel may not proffer an opinion relating to what individuals at Novartis thought about information found in certain internal documents or about their motivations regarding those documents.”) (remand from MDL No. 1760).

                        NINTH CIRCUIT

• Stanley v. Novartis Pharms. Corp., No. CV1103191JGBOPX, 2014 WL 12573393, at *6 (C.D. Cal. May 6, 2014) (“[T]he opinions of [expert] witnesses on the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.”) (remand from MDL No. 1760).

                        TENTH CIRCUIT

• Fischer v. BMW of N. Am., L.L.C., No. 18-CV-00120-PAB-MEH, 2020 WL 9259705, at *6 (D. Colo. Mar. 10, 2020) (non-MDL exclusion of plaintiff expert’s opinion on defendant’s intent) (citing In re Rezulin and Wells v. Allergan, 2013 WL 7208221, at *2 (W.D. Okla. Feb. 4, 2013)), aff’d sub nom. Fischer v. BMW of N. Am., LLC, No. 20-1399, 2021 WL 5458444 (10th Cir. Nov. 23, 2021).

                        ELEVENTH CIRCUIT

• In re 3M Combat Arms Earplug Prod. Liab. Litig., No. 3:19MD2885, 2021 WL 765019, at *42 (N.D. Fla. Feb. 28, 2021) (MDL excluded plaintiff expert on defendant’s “state of mind, including his opinion as to what 3M ‘hop[ed],’ had ‘no idea’ about, and what 3M knew or did not know.”).

  * * *

Now the issue of the admissibility of expert testimony on a defendant’s state of mind is pending before the Supreme Court in a drug case.  Not product liability, mind you, but a criminal prosecution for importing meth, Diaz v. United States. (The Ninth Circuit’s unpublished opinion is here.)  As we noted up front, Fed. R. Evid. 704(b) precludes expert opinion on “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  After conviction, Diaz appealed to the Ninth Circuit on four grounds, three of which were pretty much walkovers due to the defendant’s procedural failings below.  The fourth related to the admission of “the government expert’s modus operandi testimony on drug trafficking organizations’ use of unknowing couriers.”  Slip op. at 5-6.  Diaz had offered a “blind mule” or “unknowing courier” defense and the government responded with testimony from an expert (who had testified many times in similar cases before the same judge), whose testimony was determined to be reliable.  On appeal and we presume below, Diaz offered an additional argument under Rule 704(b):

Finally, Diaz argues that testimony that drug trafficking organizations rarely use unknowing couriers is the “functional equivalent” of a prohibited opinion on mental state. This is contrary to our precedent. Diaz is correct that the Fifth Circuit has adopted this view, see, e.g., United States v. Gutierrez-Farias, 294 F.3d 657, 663 (5th Cir. 2002), but we have allowed such testimony so long as the expert does not provide an “explicit opinion” on the defendant’s state of mind, see, e.g., United States v. Gomez, 725 F.3d 1121, 1128 (9th Cir. 2013) (citation and internal quotation marks omitted), and the expert did not do so here.

Slip op. at 6-7.

The Supreme Court accepted Diaz’s petition for cert.  It is unusual for the Supreme Court to accept cert on an issue addressed in one paragraph of an unpublished opinion, but the quote above from that opinion indicates that a circuit split has existed for at least ten years.  Coverage of the oral argument two weeks ago indicated that multiple justices questioned the relevancy of the expert’s testimony if, to avoid Rule 704(b)’s exception, the expert’s opinion did not address whether Diaz’s “did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense,” in this case whether she was an innocent dupe or a knowing courier of the meth.  Based on the questioning at oral argument, the tension is between expert opinion that does “not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense” and expert opinion that is not relevant to the defendant at all.  In terms of graphic representation, does the Venn diagram of 401 and 704(b) have an area of admissible overlapping expert opinion testimony?

This made us think about the parallels to quasi-intent testimony presented in the sort of cases against our clients.  If the government’s expert in Diaz was, as advertised, testifying about the modus operandi of Mexican drug cartels in terms of their use of couriers of drugs across the U.S.-Mexico border, then the testimony was offered to show that a blind mule is as frequent as a sighted unicorn and, thus, Diaz’s contention that she did not know she was carrying meth must be bogus.  This is akin to what is sometimes referred to as pattern and practice evidence under Fed. R. Evid. 404(b)(2).  (Because we are not criminal lawyers, we can set aside a discussion of the notice requirement under 404(b)(3) when the prosecution tries to use such evidence in a criminal case.)  Yet, the pattern and practice at issue in this testimony was not that of Diaz, but of cartels and drug carriers.  Using the language of Rule 404, evidence of other acts (by others) was offered to prove “knowledge . . . absence of mistake, or lack of accident.”  For Diaz, the argument against admissibility is that the expert’s testimony indicated that an innocent carrier is a rarity, not whether Diaz knew she was transporting meth across the border.  In our cases, plaintiffs offer a few versions of expert opinion on the defendant’s intent based on the acts of others and data relating to probabilities, although the plaintiffs are not waiting for our clients to open the door to intent testimony.

For decades, plaintiff lawyers in drug and device product liability cases have beaten the “profits over safety” drum and have tried to have experts echo the phrase from the witness stand.  Of course, savvy judges see that direct expert testimony that the defendant did, in fact, put profits over safety in making some decision would be impermissible opinion on the defendant’s state of mind.  See In re Prempro Prods. Liab. Litig., 554 F. Supp. 2d 871, 881 (E.D. Ark. 2008) (discussing exclusion of plaintiff expert’s “editorial about pharmaceutical companies putting sales and marketing before science”), aff’d in pertinent part, rev’d in part on other grounds, 586 F.3d 547, 571 (8th Cir. 2009). One way to try to get around the prohibition of intent opinions is to offer expert evidence on the defendant’s conduct that, without saying what was in the heads of defendant’s decision makers, makes clear that good companies do not make the same decisions that defendant did because they put safety over profits.  This has been used, along with other antics, to get big punitive damages awards, which require an intent finding.    There is not much daylight between this testimony and the expert’s in Diaz in terms of the relationship to the defendant’s intent.  Both are framed in terms of the supposed intent of others to draw a contrast. 

Another way to try to get around the prohibition on expert opinion on the defendant’s state of mind involves statistical flim flam.  We have seen variants used in civil RICO, third party payor, and public nuisance litigation, among others, but it all follows a familiar pattern regardless of the theory of liability.  Based on analysis of data of orders, prescriptions, dispensation, reimbursement, etc., the statistician/economist/mouthpiece can opine, in essence, that it is overwhelmingly likely that the defendant’s actions were taken with the requisite intent or that it is overwhelmingly unlikely that they were taken for an innocent, non-culpable reason.  Again, regardless of how the expert comes up with the percentage (which is an issue for Rule 702), is there a fundamental difference in terms of relevance between an expert opining that 98% of drug carriers are not “blind mules” and an expert opining that 98% of off-label prescriptions result from intentional off-label promotion?  (Any opinion from an expert on why prescribing physicians, particularly physicians not in the case, prescribed specific medical products is inherently suspect anyway.)  We could go on.

We do not know what the Court will hold in Diaz in connection with the interplay between Rule 401 and Rule 704(b) in terms of expert opinion on the intent of individuals or entities other than the defendant.  We do strongly suspect, however, that the decision could provide ammunition to oppose the sort of veiled expert opinion on intent—itself a response to the twenty-plus year history of decisions prohibiting the unveiled variant.