Expert Witnesses

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The other day we saw the Nevada Supreme Court’s decision in Williams v. Eight Judicial District Court, ___ P.3d ___, 2011 WL 3206963 (Nev. July 28, 2011).  One of the two “novel” questions the court decided in Williams is “whether defense expert testimony offering alternative causation theories must meet the ‘reasonable degree of medical probability’ standard” as plaintiff-side experts.  Id. at *1.  The Nevada court unanimously held that, because defendants don’t have the burden of proof, defense experts’ opinions don’t have to meet that standard, because that would effectively be shifting the burden of proof to the defendant:

[W]hen a defense expert’s testimony is used to contradict a plaintiff’s causation theory by comparing that theory to other plausible causes, each additional cause does not need to be stated to a greater-than-50-percent probability.  To hold otherwise would severely hinder a defendant’s ability to undermine the causation element of the plaintiff’s case and could result in an unfair shifting of the burden of proof to the defendant.

2011 WL 3206963, at *7. The court relied primarily on Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), which reached a similar result under New Hampshire law:

Were we to accept plaintiff’s argument that once a plaintiff puts on a prima facie case, a defendant cannot rebut it without proving another cause, the resulting inequities would abound.  For example if ninety-nine out of one hundred medical experts agreed that there were four equally possible causes of a certain injury, A, B, C and D, and plaintiff produces the one expert who conclusively states that A was the certain cause of his injury, defendant would be precluded from presenting the testimony of any of the other ninety-nine experts, unless they would testify conclusively that B, C, or D was the cause of injury. . . .  We think that such a result does not reflect the state of the law in New Hampshire, and furthermore would be manifestly unjust and unduly burdensome on defendants.

Id. at 676-77.Continue Reading Reasonable Certainty and Defense Experts

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There’s usually a moment in a trial, just before the first expert testifies, when the judge tells the jury how experts are different from other witnesses. Experts don’t have percipient, first-hand knowledge of the facts. Instead, they possess education, training, or experience that permits them to share helpful opinions with the jury. Such an instruction…

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Returning from the ALI meeting, Bexis had sitting in his inbox the final hard copies of update 14 for his Drug/Device products liability book.  For those of you that use Bexis’ book, that means there’s more to use, but for Bexis that means that it’s time to start on update 15.  A legal author’s work is never done.  This time he’s planning to update the chapter on evidence.
It’s also time for our Thursday long post – time to kill two birds with one stone.
Right now the book has a short subsection on corporate intent evidence in drug and device cases.  That section states simply that corporate motive and intent evidence (usually offered by some purported “expert”) has generally been found inadmissible by courts trying drug and medical device product liability cases.  There’s one footnote, citing four cases from three jurisdictions:  Smith v. Wyeth-Ayerst Laboratories Co., 278 F. Supp.2d 684, 700 (W.D.N.C. 2003); Figueroa v. Boston Scientific Corp., 2003 WL 21488012, at *4 (S.D.N.Y. June 27, 2003); In re Diet Drugs Products Liability Litigation, 2001 WL 454586, at *2 (E.D. Pa. Feb. 1, 2001); In re Diet Drugs Products Liability Litigation, 2000 WL 876900, at *9 (E.D. Pa. June 20, 2000).
We think Bexis can do better than that with this update – and we think we can make a blog post out of it as well.  So let’s take a look.  What have courts held about corporate motive and intent evidence lately?
Probably the best treatment of the subject, of the cases coming down since this part of the book was updated, is in In re Rezulin Products Liability Litigation, 309 F. Supp.2d 531 (S.D.N.Y. 2004). There, three purported corporate ethics “experts” were excluded for a variety of reasons.  First, their ethics opinions were “speculative” in the sense that they were based upon “subjective belief.”  Id. at 543-44.  Second, ethical matters were not relevant to product liability litigation, as it was unrelated to the alleged defects being claimed.  “While the defendants may be liable in the court of public opinion, or before a divine authority . . ., expert opinion as to the ethical character of their actions simply is not relevant to these lawsuits.”  Id. at 544.  Third, ethics evidence was argumentative and prejudicial.  Id. at 545.  Fourth, expert witnesses aren’t really qualified at divining corporate intent, which is something that lay jurors are equally competent to judge, should it be relevant to anything.  Id. at 546-47.Continue Reading Experts Offering Evidence of Corporate Intent, Ethics, And The Like

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One of the banes of our existence is the belatedly disclosed expert report.  The rules allow, indeed encourage, judges to set time limits for expert disclosures.  But we can’t count the number of times that, once the defense starts to make headway against a plaintiff’s theory after the time for disclosure has passed, the plaintiff…

We have reported periodically on rulings in the Aredia/Zometa litigation, including Daubert and summary judgment rulings by the MDL judge and choice of law rulings by Judge Arthur Spatt of the E.D.N.Y. in Deutsch v. Novartis Pharmaceuticals Corp., a case remanded for trial from the MDL. Judge Spatt has now decided Daubert motions in Deutsch and another remanded case, and his very long opinion is a bit like yesterday’s list of silly law songs : there is something in there for everyone. Deutsch v. Novartis Pharmaceuticals Corp., 2011 U.S. Dist. LEXIS 22755 (E.D.N.Y. March 8, 2011).
MDL rulings are law of the case. The MDL judge ruled on Daubert challenges to several plaintiffs’ experts. Novartis challenged those experts based both on arguments made to the MDL judge and on new arguments. Judge Spatt generally refused to consider the arguments previously decided by the MDL judge based on the law of the case doctrine, finding the doctrine particularly applicable when cases are transferred from an MDL. 2011 U.S. Dist. LEXIS 22755 at *18-21. “Reversing or otherwise undermining the decisions by the MDL court could lead to the type of inconsistent pretrial rulings that Congress sought to avoid [in the Multi-District Litigation Act], and therefore frustrate the very purpose of consolidation.” Id. at *21.
As a general matter, we agree that issues decided by the MDL judge should not be relitigated on remand. In Deutsch, however, the MDL rulings became the third rail, and anyone raising an argument that came within a few yards of an issue decided by the MDL court got zapped.Continue Reading A Grab Bag Of Rule 702 Rulings In A Remanded Aredia/Zometa Case

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It was a dark, non-stormy, and quiet Halloween night at our home. Maybe a lot of the kids in the neighborhood have grown up beyond trick-or-treating. We had way too much left-over candy. But this year we were smart because we bought candy we don’t like. By contrast, last year we ended up with two…

Every once in a great while, we read an opinion that stands out as an example of judicial craftsmanship. The facts and issues are explained in clear, lively prose. The reasoning is careful and thorough, leading inevitably to undeniable conclusions. The opinion articulates in a fresh way ideas we have often discussed, bringing to mind Alexander Pope’s definition of wit: “What oft was thought, but ne’er so well expressed.” The author treats the participants in the case with respect and has a sense of humility. Tamraz v. Lincoln Electric Co., Nos. 08-415/4016 (6th Cir. Sept. 8, 2010), available here, is such an opinion.
Jeff Tamraz worked as a welder for 25 years. After he began to suffer symptoms of parkinsonism, he and his wife sued several manufacturers of welding supplies, alleging that the fumes from their products caused his parkinsonism.
The main issue at trial was whether he had Parkinson’s Disease – the most common type of parkinsonism, which usually has an unknown cause – or manganism, a form of parkinsonism with symptoms distinct from Parkinson’s Disease, which is caused by overexposure to – guess what – manganese. Tamraz’s first treating doctor and the defense experts testified that he had Parkinson’s Disease; a hired litigation expert testified that he had manganism. Dr. Walter Carlini, one of Tamraz’s treating neurologists, took a middle ground by testifying that Tamraz did not have manganism, but something akin to Parkinson’s Disease that Dr. Carlini opined was caused by exposure to welding products containing manganese. The jury returned a whopping $20.5 million verdict for plaintiffs. Defendants appealed, contending, among other things, that the trial judge abused her discretion by admitting the opinion of Dr. Carlini about the cause of his disease.
The court started by clarifying that the precise issue was not Dr. Carlini’s diagnosis that Tamraz suffers from a form of parkinsonism, which was undisputed, but his etiology, i.e., his opinion about what caused the disorder. Although Dr. Carlini opined with a reasonable degree of medical certainty that Tamraz has manganese-induced Parkinson, the court showed by carefully parsing his reasoning that his etiology “was at most a working hypothesis, not admissible scientific ‘knowledge.’” Slip op. at 6. Dr. Carlini’s causation opinion was based on Tamraz’s development of Parkinson’s Disease after exposure to welding fumes that presumably contain manganese; the fact that manganese causes manganism and therefore might trigger Parkinson’s Disease as well; literature hypothesizing that toxins combined with genetic factors may cause Parkinson’s Disease; and other less compelling factors. Id. at 6-7.Continue Reading A masterly Rule 702 opinion

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