Frustrated Pedagogues Speak Out

Over at TortsProf Blog, Professor Childs has invited a number of guest commenters to chime in with their opinions about what students should be taught in the law school torts curriculum, that isn't getting taught now. We're among the participants, but it's an interesting set of views anyway.

Blog 702 Goes Postal

We are proud to be the first blog on the block to offer our own postage stamp.

It's legitimate. Honest it is. They're lawful stamps, acceptable to the U.S. Postal Service, and you can actually use them to mail stuff. For just $17.99, you get a sheet of twenty first-class stamps.

True, at 90 cents a stamp, you're paying something of a premium.*

But you're also doing your part to promote sound standards for expert evidence.

So take a stand, and buy a sheet today.
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* We don't actually get any of the money. If we had any entrepreneurial sense, we wouldn't be practicing law. The money gets split up somehow between the post office, stamps.com, and Cafe Press.

Is Pluto Now a Planet Under Daubert?

We're fearful that the nuns at St. Robert's Elementary School would somehow track us down to rap our knuckles, were we to rethink any of the astronomical knowledge they so painfully imparted in our youth. So we're working on a declaratory judgment complaint, to secure a definitive ruling on Pluto's planetary status. We haven't retained an expert yet, but that hasn't stopped us from preparing a preliminary draft of his opinion.

Testing. The decision of the International Astronomical Union to expel Pluto from the ranks of official "planets" is essentially taxonomical, and so it does not lend itself to hypothesis testing in the usual sense. We do know that if we had been asked on a quiz how many planets there are, Sister Doloretta would have marked it wrong if we had answered "eight." Not only that. She would have mocked us for our ignorance. In front of the entire class.

Peer Review & Publication. This critically important factor weighs decisively in Pluto's favor. The published literature overwhelmingly classifies Pluto as the ninth planet. Plus they can't say something in a How and Why Wonder Book if it isn't true.

Rate of Error. This factor deserves little weight. The members of the IAU can't agree on Pluto's classification from week to week.

Standards. We expect the opposition to emphasize this factor. When they do, we plan to mention Uranus. Everyone will start to giggle, and the judge will get all flustered and forget what we were talking about.

General Acceptance. If it's all the same to you, we're going to accept whatever Sister Doloretta says.

8th Circuit Upholds Admission of Expert Evidence from Voting Rights Plaintiffs

In a Voting Rights Act case brought by Native Americans in South Dakota, the Eighth Circuit has published an opinion upholding the district court's ruling admitting the plaintiffs' expert statistical evidence over defendants' Daubert objection. See Bone Shirt v. Hazeltine, No. 05-4010 (8th Cir. Aug. 22, 2006) (Smith, Heaney, & Gruender, JJ.).

Laws Profs Debut New "Science & Law Blog"

Law professors David L. Faigman, David H. Kaye, Michael J. Saks, Joseph Sanders, and Edward K. Cheng have launched the Science & Law Blog as part of the Law Professor Blogs Network. From their inaugural post:

This Blog is directed at the intersection of science and law. Its focus concerns the integration of applied scientific research and the substantive law. It thus is not limited by subject area, on either the law or science side of the ledger. Topics of interest, therefore, include everything from mass toxic torts to fingerprint identification. Of course, Daubert and its progeny are very much within the realm of topics of discussion, but this is not a Daubert or Rule 702 Blog. Several excellent resources on Daubert already exist, including a blog (here), and a tracking service (here). Instead, this page is organized around the single question of how do, and how should, courts and policy makers use the more or less certain findings (or lack of findings) from science when making decisions. On the law side, therefore, not only are evidentiary matters of concern, but this question implicates substantive areas of law, including, but not limited to, torts, criminal, administrative, and constitutional. On the science side, subjects of interest will include, but are not limited to, psychology, sociology, political science, economics, toxicology, and epidemiology.

On Attorneys Retained as Experts on the Law

Remember Harriet Miers? During her brief and ill-fated run at a spot on this nation's highest court, Karl Rove phoned his friend Nathan Hecht, the longest-sitting current justice on the Texas Supreme Court, to ask for Hecht's support of Miers's nomination. Hecht obliged, but Miers's nomination failed, and Hecht is now up on ethics charges. The issue is whether his support for Miers violated provisions in the Texas Code of Judicial Conduct that bar judges from publicly endorsing candidates for public office or lending their judicial prestige to advance the private interests of another. The Austin American-Statesman has more.

We have no opinion on the merits of the charges -- none that we'll be reciting in public, anyway. What more caught our attention was a dispute over one of the experts that Justice Hecht seeks to call in his defense: Tom Phillips, a former chief justice of the Texas high court. Phillips would reportedly opine that Hecht's conduct did not constitute a violation of the CJC.

There is something that many find bothersome about the use of legal "experts" to offer their lofty views on what the outcome of a legal dispute should be. What we're wondering is whether that bothersome element can be stated in clear doctrinal terms of general applicability. Leave aside the occasional situation where the expert's role is to explain, to some trier of fact, the arcane meaning of legal doctrine within some specialized niche -- a complex regulation, say, or Cambodian antitrust law. In some settings, the trier of fact may need to know about such things. We're talking more about legal "experts" retained to offer analyses in the nature of a brief, for the purpose of persuading the tribunal to adopt some particular view of the law.

It is something of a misnomer, of course, to call such experts "witnesses" at all. Where they've been retained to persuade the court to some particular view of the law, they are serving more as legal advocates. It is sometimes said, as a way of explaining decisions to exclude or discount their "testimony," that their legal opinions are of no assistance to the court, which is itself presumed to be expert in the law. But if that were literally true, then ordinary advocacy would be of no assistance to the court either, and litigators could dispense with legal briefs altogether. That might be a good idea, all in all. But it would represent a change in the prevailing custom.

A better statement of the difficulty might focus on the manner in which the legal "expert" is performing the advocacy function. We were tempted, at first, to say that if the "expert" is not a member of the relevant court's bar, then engaging in advocacy before that court might constitute the unauthorized practice of law. But even if that is technically true, it doesn't seem to capture the heart of the problem, which many would see as equally acute even where the "expert" is licensed to appear before the relevant tribunal.

We tentatively venture, therefore, that it can offend professional norms, to offer legal advocacy on behalf of some litigant, without submitting to the regulatory regime normally associated with such advocacy -- e.g., retention as counsel by some client, appearance as counsel of record for that client, and unequivocal submission to the disciplinary standards to which counsel of record are subject.

We do not say that legal "experts" or their clients are necessarily motivated by a desire to circumvent disciplinary codes of conduct (although that issue may sometimes warrant inquiry). Nor do we say that any such attempt to circumvent them would be successful. We are saying that it serves salutary purposes to require legal advocates to dress in legal advocates' clothing. In many cases, the sole apparent reason to present some lawyer's views in "expert" format, rather than in the normal course of legal advocacy, would be to promote the false appearance of disinterested neutrality. It might be said that nobody's fooled. But we're not sure of that. If there were no real hope of portraying the legal "expert" as a dispassionate authority, hovering above the fray, then why would anyone pursue this course? Why, in any event, should the charade be countenanced?

In some cases, of course, there may be obstacles to the "expert's" involvement as counsel of record. Law schools sometimes have rules about the private practice of law by faculty, and sitting judges aren't supposed to moonlight as litigators. Perhaps an exception should be made in such cases -- or perhaps the same reasons that militate against active courtroom practice by law professors or judges also argue against their participation as "experts." We're not completely sure. We do think that in many cases, a fair and effective way to shut down this often dubious practice would be to require that the legal "expert" frankly don an advocate's mantle, or else hold his peace.

Still More on Lawyer-Expert Communications

From today's opinion by Judge Kessler in United States v. Philip Morris USA, Inc.:

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.

What a sad and disquieting chapter in the history of an honorable and often courageous profession.

6th Circuit Requires Disclosure of Work Product Furnished to Experts

From the eagle-eyed C.E. Petit, we learn that notwithstanding the ABA's view that attorney-expert communications should be privileged, the Sixth Circuit issued an opinion today holding that attorney work product transmitted to testimonial experts must be disclosed under Fed. R. Civ. P. 26(a)(2)(B). See Reg'l Airport Auth. v. LFG, LLC, No. 05-5754 (6th Cir. Aug. 17, 2006) (Suhrheinrich, Gilman, & Rogers, JJ.).

Expert Perjury Watch (National Edition)

Via the New Jersey Law Journal, via law.com, via TortsProf Blog: Last week, at its annual meeting, the ABA passed a resolution calling for experts' draft reports and communications with attorneys to be privileged from discovery, in both state and federal court.

The text of the resolution, as proposed to the ABA delegates (and presumably as approved in their 207-137 vote), reads as follows:

RESOLVED, That the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expert’s report, as follows:

(i) an expert’s draft reports should not be required to be produced to an opposing party;

(ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances;

(iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expert’s opinions.

FURTHER RESOLVED, That the American Bar Association recommends that, until federal, state and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery draft expert reports and communications between attorney and expert relating to an expert’s report.

As Professor Childs notes, the New Jersey Law Journal report at law.com says little or nothing about the arguments offered in favor of this proposal by its sponsors. It's always true, of course, that nationally uniform rules would do something to simplify compliance, but national uniformity has not traditionally been a special aspiration in matters of privilege. Federalism has been more the privilege watchword, hitherto. See, e.g., Fed. R. Evid. 501.

Nor, if national uniformity is to be the new fashion, is it plain why we should not have a uniform national policy that repudiates any notion of privilege. The best argument we can come up with, on the spot, might be that the current federal regime -- in which expert-attorney communications are treated as unprivileged, in the main -- rewards sharp practice, and may encourage some amount of perjury. ("No, I prepared no drafts of my report.") Perhaps honest experts and litigators should not be forced to operate at an inherent disadvantage.

That argument would seemingly be at its strongest for drafts of reports -- especially drafts that are never transmitted to counsel. The prospect of disclosing one's every tentative expository brainstorm may well promote writer's block to an undesirable degree. The truth-seeking function is ultimately promoted if expert reports are legible, and an expert's ability to prepare drafts without attorneys peering over the expert's shoulder may be indispensable to legibility.

But the ABA resolution goes considerably further than drafts of reports, and in our view, the price of national uniformity begins to grow exorbitant, if all attorney-expert communications are to become privileged. The salutary modern trend has been to move toward full testimonial transparency. The disclosure requirements in Fed. R. Civ. P. 26(a)(2)(B), for example, currently call for disclosure of all information "considered" by the expert, whether or not the expert acknowledges formal reliance on the information. That requirement is consistent with a recognition that disputes on admissibility are not the only reason for expert discovery. It is also justifiable to inquire into issues that bear on the expert's credibility, so that the trier of fact may evaluate that question.

It is difficult to think of a credibility issue more central than the expert's communications with counsel. We have only the plain text of the ABA resolution to guide us, so far, but on our reading, it seems likely that the following lines of deposition inquiry, for example, would be barred:

• May I see a copy of your retention letter?
• Did counsel suggest that you adopt or abandon any particular method of inquiry?
• What suggestions did counsel make about the language to use, or the topics to address, or the conclusions to reach, in your report and testimony?
• What advice did counsel offer you about what data to consider or ignore?

We say they would be barred because that seems the only interpretation that would reconcile paragraphs (ii) and (iii) of the resolution. We take it, that is, that paragraph (iii) merely clarifies that an expert may not withhold data on which the expert is relying on the mere ground that the data were obtained from or through counsel. If paragraph (iii) meant more -- e.g., if "facts or data the expert is relying on in forming his or her opinion" included communications from counsel that might be seen as nudging the expert toward the desired result -- then seemingly paragraph (ii) would be vitiated.

Meanwhile, the resolution also seems likely to promote incomplete and sometimes perjurious answers to such questions as the following:

• What led you to use this method, rather than another?
• What led you to consult this data, rather than that?

Moreover, until we learn what constitutes waiver of the privilege, the resolution may risk stifling cross-examination into such statements by experts as:

• I made an independent inquiry, in which I was solely responsible for selecting the methodology and the data, and in which my conclusions were driven solely by the neutral aim of determining the truth of the matter.

One of the main rationales advanced by conservatives for adopting restrictive rules on expert testimony has been that when lawyers get the expert alone in a smoke-filled room and tell the expert what to say (perhaps while waving bankrolls in the expert's face), the result is junky expert opinion, concocted for mercenary litigation purposes, rather than the sort of neutral and dispassionate analysis that the expert might produce in nonlitigation contexts, working independently from lawyers. As debate over the ABA resolution unfolds, we'll watch with interest to see whether the defense bar remains faithful to that thinking.

Stossel's Story: A Polemic

We are violating our own prescription against polluting the national discourse on medical malpractice liability with partisan polemic. We're sorry, but we just can't help ourselves.

Having made its original appearance in the August 4 New York Sun, an anti-tort* column by ABC's John Stossel (you know, the guy who needs a break) has now been pressed into service as a retread at Point of Law.

It is a retread in more than one particular. In the space of a few short paragraphs, it deploys so many shopworn propagandistic parlor tricks that it's hard to keep track of them all.

But we're going to take a stab at nailing down a few of them.

The Association of Trial Lawyers of America recently changed its name to the American Association for Justice. It may be a smart PR move, because everyone likes the word "justice," and apparently the name "trial lawyers" has acquired a negative tinge. It's good that it has, because although trial lawyers say they "protect the little guy," that's a myth. In truth, for every little guy they help, they hurt thousands.

Stossel cannily deploys the traditional opening gambit of almost all anti-tort invective: an ad hominem attack on lawyers. In these philippics, it is customary, in particular, to trot out the phrase "trial lawyers" at the first opportunity. Like so many words and phrases with double meanings, this one serves handily as a rhetorical pivot point. Its more expansive meaning ("litigators in general") helpfully maximizes the universe of lawyers toward whom the reader is invited to feel antipathy, thereby improving the odds that each reader will hit upon some particularly contemptible exemplar, drawn from personal experience, hearsay acquaintance, or some suitable work of fiction. The availability of this more expansive interpretation also helps the anti-tort rhetorician present himself as fair-minded and even-handed. It's not lawsuits he necessarily dislikes, we're invited to think, so much as litigators of all stripes. (A simple matter of taste, perhaps, but who could really argue?) After the reader has assented to the truism that litigators are a generally shifty and unpleasant crowd, the meaning of the phrase can segue to the narrower category actually in the anti-tort rhetorician's crosshairs: litigators who represent plaintiffs.

Stossel actually manages to improve on this time-honored rhetorical tactic, by conflating no fewer than three distinct groups under the "trial lawyer" rubric: litigators, plaintiffs' lawyers, and ATLA members. In fairness, Stossel did not invent this particular embellishment, but he does carry it off with remarkable panache. Look at the first paragraph from Stossel's piece again, and notice its stark and ominous message. Trial lawyers have a club. They have recently changed the name of this club, hoping to confuse you about its membership and true purpose. But that is only one of their ruses. They have also tried to sell you a myth. They'll tell you that by suing on behalf of the little guy, they are somehow helping to protect the little guy. Don't be fooled. Every time they file a lawsuit, what they're really doing is hurting the little guy -- thousands of little guys, in fact, each time they do it.

Stossel's portrayal is so vivid, you can practically hear the chorus of a thousand little-guy squeals.

In sum, Stossel's opening paragraph briskly paints the propagandist's standard portrait: a shadowy group of suspect persons who are less than forthcoming about their real agenda (and who may even disclaim membership in the suspect group) are pretending to be your friends, but they are actually doing things that will harm you and people like you.

This picture once painted, Stossel is able to dress himself in sympathetic garb, as Debunker of the suspect group's mythology. We should pause to consider the poor fit of that costume. If there is a received wisdom about litigation in America these days, it is a received wisdom of the Manhattan Institute's authorship. After years of relentless anti-tort PR, even Americans who are otherwise oblivious to issues of policy have learned to say "frivolous lawsuit." So Stossel isn't exactly swimming against the tide of popular perception here. Yet he sticks to his story: a myth is abroad, and Stossel is here to puncture it.

When those big medical malpractice awards hit the headlines, it sounds like the little guy was helped. "$1 million awarded to victim of medical device!" But the headline leaves out a great deal. First, the suit cost everyone involved — and that includes you — much more than $1 million. In addition to the million-dollar settlement, there were the court costs and legal fees charged by the defense lawyers — many defense lawyers, considering the plaintiff probably sued not just the maker of the medical equipment, but the surgeon, an internist, some nurses, the hospital, and God knows how many others. Lawsuits routinely name as many as a dozen people, because to not include someone who is later revealed to be at fault may expose the lawyer to a charge of legal malpractice.

Note how Stossel continues to cast himself as the Unveiler of Hidden Truths. There are simplistic headlines that tell part of the story, but Stossel is able to bore down beneath them. This boring down, however, does not entail analysis of hard, documented facts. Instead, Stossel bores down via parable. His parable of choice involves a $1 million settlement of a claim for personal injury from an allegedly defective medical device. Completely missing from this parable, intriguingly, is any discussion of whether the notional device was defective or negligently implanted. Completely missing, as well, is any discussion of the extent of the notional patient's physical or economic injury. Stossel will be more than content, perhaps, if the reader assumes the claim was fraudulent and extortionate. Or maybe Stossel will be happy enough if the reader shares Stossel's own apparent attitude that the victim's injuries simply don't matter, even if the victim was torturously maimed through wanton medical malfeasance. The main thing, in Stossel's parable, is that the trial lawyers ran amok, sued so many defendants that only an omniscient deity would be able to ascertain their true number, and scared the pretty nurses.

Oh, wait. Let's not forget those costs. We are first supplied with an arbitrary figure of $1 million as the base award. Is this the mean or median award that Stossel's investigation of jury verdict reports or insurance company data has disclosed for medical device cases? Is it supposed to be typical on at least the anecdotal level? It is, at all events, a nice round number, and one that sounds suitably lavish, no doubt, in a parable devoting no attention whatsoever to the actual victim's predicament. It also functions, however, as a convenient rhetorical benchmark for "other" costs -- the ones that raise Stossel's overall ante to something "much more than $1 million." It is to serve as such a benchmark, we suspect, that the number is floated at all, even in its purely hypothetical form. How much, we wonder, is "much more than $1 million"? Some additional fractional increment of another million? Or some multiple? Is something more in the neighborhood of $2 million or $3 million, in other words, being suggested? Stossel lets this question dangle -- perhaps because he'd like the reader's imagination to run away with itself, or perhaps because the whole parable is a simple exercise in storytelling to begin with. The point here, for Stossel, is not to get tiresomely empirical, as might only bore the reader.

Stossel's narrative does slip up in one minor detail. Were he a faithful reader of Point of Law, Stossel would know that plaintiffs' lawyers don't name extra defendants to ward off legal malpractice claims. They would have little incentive to do so, because lawyers enjoy de facto immunity from malpractice claims -- or so we're told.

For the lawyers and people like me, a lawsuit is just another part of our work, but for most people, it's a life-wrecking experience. Nurses are terrified. Doctors can't sleep. Their hard-earned reputations are trashed by newspapers quoting plaintiffs' lawyers, who paint deceitful pictures of the doctors' incompetence and negligence. The doctors are forced to hire defense lawyers who eat up their time, energy, and entire life savings. Patients suffer while their physicians spend several hours a week with attorneys, preparing for and giving depositions. The suit drags on for years.

Stossel continues with the time-honored tactic of personalizing the issues. Well-meaning doctors are juxtaposed with plaintiffs' lawyers (now called by their true name) who think nothing of casually destroying the lives and reputations of everyone they touch. This is no mere parable any more. This is the putatively normal case -- the kind encountered by "most people." In this putatively normal world, all the nurses are terrified; the doctors, sleepless over the decimation of their hard-won reputations; the plaintiffs' lawyers, deceitful. Patients meanwhile languish unattended on gurneys in hospital hallways whilst their caregivers are closeted with lawyers doing deposition prep, which consumes "several hours a week" in a lawsuit that "drags on for years." It was foolish of those doctors, by the way, to pay those skyrocketing malpractice premiums, because their insurers are apparently disclaiming coverage -- or so we deduce, given that the fees from the defense lawyers these doctors were "forced" to retain typically eat up the doctors' "entire life savings."

Again, Stossel's is the standard propagandistic move in this context: construct a model according to which the normal case is that medical malpractice suits are meritless, rapacious, and Dickensian. Describe this supposedly normal case in almost cinematic fashion. Depict the defendants as innocent naifs and the plaintiffs' lawyers as mean, cynical, and unpleasant people. Acknowledge, if pressed, that there may be scattered exceptions, but give them short shrift. Assign all responsibility for the arduous litigation process to the injured patient who could have taken his lumps, ignored the blandishments of his lawyer, and refrained from suing, but who chose instead to whine and play the victim. Assign no responsibility to medical error, insurer intransigence, or defense counsel. It's plaintiffs' counsel, remember, who stirred up this fray, probably for reasons of greed. Defense counsel, by contrast, are hired because people are "forced" to retain them.

Soon doctors begin practicing hyperdefensive medicine, ordering expensive and largely unnecessary tests to avoid lawsuits. Some of the tests are painful for the patients. Today, 51% of doctors recommend invasive procedures like biopsies more often than they believe are medically necessary.

Here Stossel advances the only solidly testable empirical claim in his entire piece. Given the ardor with which the "defensive medicine" argument has been pressed for decades, Stossel's solitary foray into the empirical realm should strike the reader as pathetically weak. No citation or documentation is given for the "51% of doctors" statement. Rather, it is blandly recited in factoidal manner, as though this were a commercial for an over-the-counter hemorrhoid preparation -- perhaps with the idea of validating the intellectual laziness of any readers who have already been won over by Stossel's narrative powers and therefore feel no need to bother with mere evidence. Stossel is meanwhile oddly incurious about the 49% of all physicians who apparently order "invasive procedures like biopsies" less often than they believe necessary, or exactly as often as they think necessary. How many are there of which? If the 49% fall preponderantly in the "exactly as often" category, is that because they consider the tests necessary more often, or because they perform them more grudgingly? Or shouldn't we care? Are we nitpicking now, obstinately refusing to enter into the factoidal spirit in which this number was offered?

Doctors become more secretive, talk less openly with patients and become averse to acknowledging any mistake. Insurance premiums rise, and both doctors and hospitals pass the cost on to patients. Newly fearful, the medical device manufacturer decides to stick to proven technologies, dropping its plan to pursue a new line of tools that would make surgery less painful and less risky. I could go on, but you get the idea.

It is tempting to engage the narrative on the merits at this point. It is tempting to ask whether reticence to admit mistakes is not intrinsic to any regime that includes some measure of accountability for them. It is tempting to wonder how those rising malpractice premiums can get entirely "passed on" to patients, if the expense of paying those premiums is also driving providers to widespread economic ruination -- a staple of anti-tort lore. What interests us more, however, is that little slip at the end of this paragraph, where Stossel lets his guard down and betrays that he himself is growing bored with the all-too-familiar plot in this little tale. "Then the carriage turns into a pumpkin but the prince . . . well, I could go on, but you get the idea. He figures it all out in the end, and they live, you know, happily ever after, like always. Now go to sleep."

Lawyers, of course, get a big percentage of any award, but to cover what the lawyers take, the price tags of all consumer goods are a little higher. Life-saving products are especially penalized by the "lawyer tax." A manufacturer who produces pacemakers says lawsuits add thousands of dollars to the cost of every pacemaker. Lawsuits punish hundreds, if not thousands, of innocent people.

Back to the lawyers. They get a big percentage. It's a tax. "Life-saving products" -- inanimate objects -- are "penalized" by this tax. Especially the life-saving ones, in fact (for reasons, however, which Stossel leaves obscure). Take pacemakers. They're more expensive, by thousands of dollars, than they would be if we didn't have lawsuits. The pacemaker manufacturers themselves (i.e., the people sued in these lawsuits) tell us so.

All of this is half-hearted prolegomenon to the ultimate payoff: "Lawsuits punish hundreds, if not thousands, of innocent people." Each lawsuit "punishes" hundreds or thousands of innocents? Utter hooey. All lawsuits, considered collectively, "punish" hundreds, if not thousands? That doesn't sound so bad, in a nation of almost 300 million -- depending, we suppose, on what the "punishment" is. Does the punishment in question consist of paying the higher prices that Stossel says litigation causes? Well, how much higher are those prices? Meanwhile, are these consumers also "punished" whenever the manufacturer incurs any cost? Or is it only the costs of dispute-resolution that count as punitive? And why, by the way, are we calling these consumers innocent? Would they themselves not be quick to sue, if injured by the products they purchased? If not, then where do all these lawsuits come from? Whatever their provenance, would they not mostly go away, if the products never injured people?

No matter. The key thing is that Stossel's readers have been encouraged to see themselves as victims -- a mentality that would be roundly decried, ironically enough, if an injured patient fell prey to it. They have also been told that "lawsuits" are the real economic culprit, while the injuries that occasion those lawsuits, and whose costs must be born by someone, have been swept under an expository rug.

Critics of lawsuit abuse tend to focus only on the cost of litigation. The cost is nasty. But the higher cost is just the start of the nasty side effects. What's worse is that fear of lawsuits now deprives us of things that make our lives better.

Sure, fear of the "invisible fist" makes manufacturers more careful. Some lives have been saved because the litigation threat got companies to make their products safer. That's the "seen" benefit.

But that benefit comes with a bigger unseen cost: The fear that stops the bad things stops good things, too — new vaccines, new drugs, new medical devices. Fear suffocates the innovation that, over the past century, has helped extend our life spans by almost 30 years. Every day, we lose good things.

We can't even begin to imagine the life-saving products that might have existed — if innovators didn't live in a climate of fear. That'll be the subject of next week's column.

We "cannot imagine" what new products might have improved our lives, had a litigious culture not strangled innovation (a litigious culture, however, that has existed to one degree or another over the entire past century, during which Stossel says medical innovation has extended our life-spans by thirty years).

Stossel could be perfectly right, of course. Just look at how fear of legal liability has so utterly stifled stem cell research.

But if we cannot imagine these foregone miracle innovations, how can Stossel purport to know that the costs of foregoing them are "bigger" than the safety benefits that tort liability has conferred?

Stossel knows this, we submit, in the way that the faithful can know things even in the absence of evidentiary support. He knows it because its truth is integral to Stossel's canonical story. Are there features of reality that correspond to parts of this story? You bet there are. Princesses and pumpkins really exist as well. But that doesn't make Cinderella anything more than a popular fairy tale.
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* We nearly said "tort reform," but we stopped ourselves, for two reasons. First of all, Stossel's piece shows no interest in "reforming" anything. It simply complains. But secondly, we've come to the view that even scare-quotes do not sufficiently confront the Orwellian qualities of this phrase. In our view, the word "reform" simply does not capture the actual agenda of most self-identified "tort reformers," which is to "reform" the tort system by so radically shrinking its field of operation as to effect its de facto abolition, save perhaps in cases of battery and tortious interference with prospective economic advantage. From now on, we plan to refer to that agenda forthrightly as the "anti-tort" position. There may be some risk that the occasional reader will mistakenly interpret the new phrase to denote simple opposition to tortious misconduct. But as potential misunderstandings go, we prefer to live with that one, rather than contribute any further to mistaken perceptions that "reform" is really the issue on the table.

Kentucky Court Bars Testimony on "Shaken Baby Syndrome"

From the Louisville Courier-Journal, via Michael Stevens: "In what experts say is the first such ruling in the nation, a Greenup [KY] Circuit Court judge has barred the prosecution from introducing expert testimony that a baby was injured by shaking, unless there is other evidence of abuse."

Villanova Symposium on Daubert

Via TortsProfBlog:

VILLANOVA LAW SCHOOL CONFERENCE ON
EXPERTISE IN THE COURTROOM

Saturday, Oct. 21, 2006, 9 am-3 pm
Villanova University School of Law

The 2006 Norman J. Shachoy Annual Symposium, sponsored by the Villanova Law Review, will be held at Villanova University School of Law on Saturday, October 21, 2006, from 9 am-3 pm. The theme for this year's conference will be EXPERTISE IN THE COURTROOM: SCIENTISTS AND WIZARDS. Speakers include Professors Susan Haack (Miami), Michael Risinger (Seton Hall), Jennifer Mnookin (UCLA), Simon Cole (Univ. Calif.-Irvine), Gary Edmond (Univ. New South Wales), L.H. LaRue (Washington and Lee University), Robert Mosteller (Duke), Micheal Lynch (Cornell), and David Caudill (Villanova).

THEME:

Controversies persist in the regulation of expertise in the courtroom, even after the Daubert/Joiner/Kumho Tire Trilogy, and even in Frye jurisdictions (like Pennsylvania). Judicial images of science and scientists -- of their capabilities and their limitations -- continue to affect judicial evaluation of expertise. Indeed, as Professors Caudill and LaRue argue in their forthcoming NO MAGIC WAND: THE IDEALIZATION OF SCIENCE IN LAW (Rowman & Littlefield, 2006), trial judges who defer too easily to science, or who expect too much of science, end up (respectively) admitting questionable evidence or rejecting some of the best science.

Please join us for an exploration of the latest developments in the dynamic field of courtroom expertise and admissibility issues.

REGISTRATION/FURTHER INFORMATION:

For further information or for registration materials, please contact:

CONTACT: Professor Caudill
Email: caudill [at] law [dot] villanova [dot] edu

NJ Supreme Court Holds Hypnotically Refreshed Memories Inadmissible

New Jersey's Supreme Court issued an opinion yesterday holding that hypnotically refreshed memories will generally be inadmissible, henceforth, in criminal trials. See State v. Moore, No. A-38-2003 (Aug. 10, 2006). The majority opinion, which overrules the approach previously followed under State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), concludes that hypnotically refreshed testimony fails to satisfy the reliability test for scientific evidence established in Rubanick v. Witco Chem. Corp., 125 N.J. 421, 593 A.2d 733 (1991). Criminal defendants, however, will continue to enjoy the right to offer their own hypnotically refreshed testimony in light of Rock v. Arkansas, 483 U.S. 44 (1987).

10th Circuit to Plaintiff's Counsel: Sez Who?

The Tenth Circuit has published an opinion upholding the trial court's exclusion of damage testimony from the plaintiff's economist in an antitrust case.

Plaintiff's counsel argued that the economist had good reason to take downstream market share as a proxy for upstream market share, because the economist could reasonably conclude that "any given distributor will sell downstream what it purchased upstream."

That might be true, said the Tenth Circuit. But the economist never gave that reason. Only plaintiff's counsel did.

See Champagne Metals v. Ken-Mac Metals, Inc., No. 04-6222 (10th Cir. Aug. 7, 2006) (Kelly, Seymour, & Ebel, JJ.).

National Academies Committee on Daubert

In 2005, an ad hoc committee convened by the National Academies met to discuss various issues involving Daubert, including the problem of causation. Committee members included such luminaries as Prof. Margaret Berger of Brooklyn Law School, Dr. Doug Weed of the National Cancer Institute at NIH, Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court, Dr. Joe Cecil of the Federal Judicial Center, Prof. Joel Cohen of Rockefeller and Columbia Universities, Prof. Steven Goodman of Johns Hopkins, Prof. Sander Greenland of Berkeley, Patrick Malone of Stein, Mitchell & Mezines, Prof. Jennifer Mnookin of MIT, and Prof. Judith Resnik of Yale Law School.

The National Academies Press has now made their report available online. See Discussion of the Committee on Daubert Standards: Summary of Meetings (2006).

3d Circuit Reverses Exclusion of Expert Evidence on Eyewitness Identification, Reverses Conviction, Remands for New Trial

The news is a couple of weeks old, by now. But while we were busy with other things, the Third Circuit issued an important decision reversing a trial court's exclusion of expert testimony on the fallibility of eyewitness testimony, in a carjacking case where the defense proceeded primarily on a mistaken-identity theory. See United States v. Brownlee, No. 04-4134 (3d Cir. July 18, 2006).

Diznerty. Woop-wop. Weezy. Shake My Speezy.

Do you know what those words mean? The government's drug-jargon expert in United States v. Decoud, No. 04-50318 (9th Cir. Aug. 2, 2006), evidently heard them for the first time when he was listening to the surveillance tapes in that case. But that did not prevent him, according to the Ninth Circuit, from offering reliable testimony on their meaning, based on his "experience" and the "context." From the Decoud opinion:

For example, the expert gave a lengthy explanation of how he interpreted "diznerty" based on his understanding of a common speaking style in "most black communities" where they "will put an 'e' or 'ez' in words, such as, 'I'm at his housez,' something like that. Just as a certain slang, certain words. And here[,] 'diznerty' is just a slang on dirty."

But where's the ez? And where did that n come from?

After a little research, we can inform any aspiring crimefighters in our readership that sometimes your carefully cultivated ear for street vernacular is all you can go on. No definition of diznerty is offered, for example, at urbandictionary.com. There's nothing at that site on woop-wop either. On the other hand, no fewer than ten definitions are given for weezy. And apparently speezy can be either a noun, referring to a "place to congregate and enjoy life," or an adjective, "describing a pre-ejaculatory prone male." The noun use would presumably be intended in "shake my speezy," given the fifth meaning offered for shake.

8th Circuit Upholds Exclusion of Toxicologist's Causation Testimony

The Eighth Circuit released an opinion today upholding the trial court's exclusion of a toxicologist's opinion that the plaintiff's health condition was caused by exposure to hydrogen sulfide gas released from the defendant's wastewater treatment lagoons. See Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006) (Arnold, Smith, & Magnuson, JJ.).

Michigan Supreme Court Issues Sharply Divided Opinion on Competency Requirements for MedMal Experts

Like a number of other states, Michigan has a statute imposing specific competency requirements on experts who opine on the standard of care in medical malpractice cases. The Michigan statute calls for the expert to be board-certified in the defendant physician's specialty (if the defendant himself is board-certified in it), and also (in general) to have devoted a majority of the expert's clinical practice to that specialty during the year immediately preceding the date of the alleged malpractice.

What happens, though, if the defendant physician is certified and/or practices in more than one specialty? How is it determined which specialty or specialties are relevant to the competency determination?

On Monday, the Michigan Supreme Court issued a decision on that subject. The court was so badly splintered that the justices couldn't even agree on which opinion spoke for the majority and which opinion represented the dissent. Some measure of chaos will surely now ensue. See Woodard v. Custer, No. 124994 (Mich. July 31, 2006).

Blogging Resumes

We've finished up with our all-consuming brief-writing crusade of the moment, and so we're back on the beat.