February 17, 2007
Suits in Peanut Butter Salmonella Case
The (Partial) Failure of Daubert
That's the conclusion David Bernstein (George Mason) in a new SSRN posting, "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution." The abstract:
This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision. First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test? Second, once we have identified this rationale, has the “Daubert revolution” succeeded on its own terms?
I conclude that the implicit rationale for the reliability test is to preserve the perceived advantages of the adversarial system, while mitigating the harms to the courts' truth-seeking function by the inevitable strong biases that accompany adversarial expert testimony. These biases include the conscious biases of hired guns, the unconscious biases of other paid experts, and the selection biases that result from the fact that attorneys “shop” for their experts from a large pool of qualified individuals.
Rule 702 thus attempts to serve a worthy goal, but it far from fully succeeds in efficiently achieving this goal. First, in the context of forensic expertise in criminal cases, Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony.
Second, Rule 702, applied correctly, does succeed in barring “junk science” causation evidence in toxic torts cases. However, it does so at the expense of excluding speculative evidence supporting causation, even when most experts in the field would conclude that the relevant evidence is a sufficient basis from which to find causation by a preponderance of the evidence. While Rule 702 is easily preferable to the prior overly permissive regime, it likely goes too far in insisting on a reliability test that makes the courtroom stricter about causation evidence than is the scientific community itself. The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses.
Finally, Rule 702 puts severe restrictions on the testimony of experience-based testimony by connoisseurs. Such experts may only testify if their field of expertise is a legitimate one, and they have proven to the court that they truly have the expertise they claim. Rule 702 also properly prevents attorneys from shopping for outlier and hired gun connoisseurs, given that there is no objective way for a jury to determine whether an experience-based expert's views are correct or representative of other experts in the field. Therefore, in the context of connoisseur testimony, courts should either replace adversarial experts with a panel of nonpartisan experts, or only allow an adversarial expert to testify if his conclusions are consistent with those of a nonpartisan advisory panel.
February 16, 2007
OT: Orval Allen Childs
My grandfather, Orval Allen Childs (left, with my grandmother Floy, who died some years earlier), died nine years ago today, a few months shy of my graduating from law school. He was a farmer (meat cattle, mostly, some vegetables, and, before I was born, dairy) and a professor at Southern Arkansas University in Magnolia, Arkansas, where he chaired the agriculture department.
I knew that my grandfather was a good teacher in part by the school naming an Agri building after him, but more from the steady stream of former students coming by to see him years or even decades after they finished school. We’d be sitting around watching college football and almost without fail, someone would come by who “went to school to” my grandfather. They’d talk about how farming was going, or their kids, or whatever.
His example (and the example of his students, who were and are working farmers, like most of our graduates are working lawyers) is a substantial part of why I teach. Seeing his former students come back and recognizing the difference he made in helping them achieve their vocation was a genuinely inspiring thing. He didn't like many of my frolics and detours (running a record store, working on a Senate campaign, taking leaves of absence from college for both), and he told me so. But he kept on being supportive. And until he stopped farming (that's part of his farm in that picture to the right), I kept on getting to help at the farm, even if my "help" may well have slowed him down in the long run. I can assure you that you don't really want me driving a tractor, even if I enjoyed it.
There's some sort of nice symmetry to the fact that I learned today that my colleagues have voted to promote me to associate professor, as of this fall. To the extent I'm good at this stuff, I owe a lot to him and a lot of other family.
I'll be back to your usually-scheduled snark soon enough, promise.
JPML to Try to Avoid Falling in the Riverwalk
The hospitality industry in San Antonio is no doubt bracing for the arrival of the JPML hearing to be there in March. Torts-related matters on the hearing agenda (excluding those being considered on the papers):
- MDL-1830 -- In re Air Crash at Lexington, Kentucky, on August 27, 2006
- MDL-1834 -- In re Helicopter Crash Near Zachary, Louisiana, on December 9, 2004
And that's it. Lots of antitrust, and what seems (without checking) to perhaps be a lighter load than usual.
May I recommend the Emily Morgan Hotel to the JPML? The weekend before my 1L finals at Texas, my wife and I won a very nice stay at the Emily Morgan Hotel on the Riverwalk, along with tickets to see Green Day and dinner at one of those tourist restaurants, either Hard Rock or Planet Hollywood. (The concert and dinner were underwhelming, especially since I'd seen Green Day play an in-store for about 20 people at my record store back in '91 or '92.) The hotel was lovely, though.
ConsumerAffairs.com - Front? Legit? A Front but Disclosed?
A self-described consumer watchdog website that forwards complaints to at least one plaintiffs' attorney has helped boost consumer lawsuits by trial lawyers and has been a source for negative media reports on various companies. The organization is now facing litigation from disgruntled firms that claim it is misrepresenting itself and its motives.
ConsumerAffairs.com, a for-profit website operating at least partly on ad revenue, appears to be a news site. It was started by former journalist Jim Hood and boasts a stable of accomplished contributors.
It looks like a typical website, but as consumer advocates often warn: Read the fine print. In this case, the fine print can be found at the bottom of certain pages on the site.
According to the organization's site, it works "in association with" lawyers, namely Horwitz, Horwitz & Associates in Illinois, but also with Joan E. Lisante in Washington, D.C. and Virginia, who according to Hood no longer practices law but frequently writes for the site.
Two lawsuits are pending or imminent alleging defamation and that the site misleads readers into believing it is purely a consumer-oriented news site.
We work with attorneys with specific expertise in many areas of consumer law. It is sometimes necessary for them to contact you in order to determine whether there is a legal remedy for your complaint. There is no charge for any such consultation. Check below if you DO NOT want to be contacted by an attorney.
That said, the site does have the distinct feel of a place that's trying to suggest that it's strictly news and information for consumers. (It also has the feel of a place that's trying to see just how many Google ads can be fit on one screen.)
February 15, 2007
"Judicial Tort Reform"
That's the concept behind a new article, "Judicial Tort Reform in Texas," in the Texas Review of Litigation from David Anderson (Texas) (hook 'em), summarized helpfully by the blog of plaintiffs' firm Perlmutter & Schuelke.
The article (not available for free online) examines tort opinions in 2004 and 2005 of the Texas Supreme Court, concluding that the Court is more defendant-friendly than average, in particular in its use of "no evidence" as a way to reverse a jury's factual findings.
CDA Blocks MySpace Suit
Via Overlawyered, the LA Times Story summarizes the Judge Sparks opinion [PDF via Bashman]. In addition to the CDA immunity, the Court also explicitly finds no duty under Texas law (making me flatly wrong (comments)), mostly addressing nonfeasance issues but particularly noting the context, where the plaintiff herself misrepresented her age.
February 14, 2007
NYT Covers Zyprexa
And the story does a pretty good job of giving an overview, including the judge's conclusions about the paper's reporter's conduct. The opening paragraph:
A federal district judge in Brooklyn ruled yesterday that confidential marketing materials belonging to Eli Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned to the company by a doctor and a lawyer who, the judge said, engaged in a scheme to leak them to the news media.
The story does later note that Weinstein called Berenson's conduct "reprehensible," but I probably would have included him in the lede.
February 13, 2007
AP & Bloomberg on the Zyprexa Documents
Bloomberg has a story on Judge Weinstein's order. The new stuff is here:
New York Times spokeswoman Diane McNulty noted that Berenson and the newspaper declined Weinstein's invitation to come to court to explain how they obtained the documents.
``Unfortunately, that resulted in an opinion which vastly overstates Alex's role in the release of the documents,'' McNulty said. ``We continue to believe that the articles we published were newsworthy and accurate and we stand by our reporting.''
Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, called the judge's order ``troubling.''
``Any time you have a federal judge finding that a reporter participated in a conspiracy, that's a frightening notion,'' she said. ``This is an area where I don't think the law is crystal clear.''
* * *
Dalglish added that, while Weinstein didn't issue any sanctions against Berenson, ``it's not often that you have a federal judge on the record finding that a reporter engaged in a conspiracy.''
The story adds that Mr. Gottstein is contemplating an appeal and that Berenson is on a leave to write a book.
Meanwhile, the AP story has the plainly inaccurate title, "Court Halts Spread of Lilly Documents," when of course the documents remain easily findable and will stay so; Judge Weinstein made no real effort to prevent their further distribution, so long as the distribution is done by someone other than those to whom they were originally leaked. It also adds this:
Egilman's attorney, Edward Hayes, said: The judge has "told us not to do certain things, and our response is, 'We're sorry, and we'll never do it again.'"
In a statement, Gottstein insisted that his only concern was "patient safety" and that he never meant to defy the court.
"This was not a conspiracy to harm Eli Lilly," he said.
Some More on the Zyprexa Order
Some overall reactions to Judge Weinstein's order (linked to below):
The basic takeaway is that Judge Weinstein is completely convinced that Dr. Egilman, James Gottstein, and Alex Berenson conspired (a term he uses, along with "conspiracy," thirty-eight times in the order) to avoid the protective order, and he wants to do what is practical to mitigate the effects of that conspiracy. But he recognizes the futility of really preventing the documents' distribution (something I've noted before too). The bottom line result -- enjoining the people who received the documents from Gottstein and have not returned them, refusing to enjoin websites, and presumably scaring the hell out of the "conspiracy" trio -- tracks those conclusions precisely. The actual impact on the availability of the documents will be approximately zero.
I'm a little skeptical of the Court's First Amendment conclusions, but I'm not a con law guy either, so my view is relatively uneducated. And the breadth with which he sees his powers to enjoin seems perhaps enthusiastic, but it's not something I've looked at carefully.
The order points up what is a real problem (one I'm writing about in long form, hopefully to get submitted this spring) -- that past treatment of leaking documents in disregard of protective orders -- hasn't put in place the right kind of incentives to ensure that orders are enforced. When litigants and courts perhaps once could hope to unring the bell, today it's impossible with internet distribution. Judge Weinstein certainly hints in this order that he's going to make at least two of the three involved very uncomfortable, but to my knowledge courts have been if not blase, not particularly enthusiastic about tracking down or punishing those who violate their orders. He expressly acknowledges the need to set up proper incentives:
Conspirators in the instant case who deliberately thwarted a federal court’s power to effectively conduct civil litigation under the rule of law, as well as those in concert with them, should be enjoined to deter further violations of this and other courts’ orders.
* * *
It is not necessary now to decide whether in the long run the public was better served by this conspiracy to flout CMO-3 than by seeking direct and open revelation through amendment of the court’s protective order. Even if one believes, as apparently did the conspirators, that their ends justified their means, courts may not ignore such illegal conduct without dangerously attenuating their power to conduct necessary litigation effectively on behalf of all the people. Such unprincipled revelation of sealed documents seriously compromises the ability of litigants to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes.
There's another effect of electronic communication that I don't think I've mentioned before (and that I'll also address in the article), and that's the exponential growth of the number of pages in play. I don't know how many pages have been produced by Lilly; the Order references "millions" of documents. One case I was involved in had, if memory serves, something approaching tens of millions of pages produced, with individual witnesses sometimes having hundreds of thousands of pages of documents on a server. Colleagues who had been involved in pre-e-mail litigation suggested that it would have been uncommon to see even a million pages in one case; perhaps someone else can confirm.
It boggles the imagination to think that a litigant can do a particularly good job of designating documents accurately as to confidentiality, and no doubt it frustrates people like Dr. Egilman to see documents he believes are inaccurately designated as confidential (especially since he is, I think, unlikely to conclude that Lilly's commercial concerns are a reasonable basis for keeping many thinigs confidential). And that frustration -- that view that there is massive overdesignation -- may well make experts, attorneys, litigants, and others more prone to want to disregard protective orders. (It's worth observing that Judge Weinstein concludes that in fact the bulk of the documents were appropriately designated as confidential.)
Of course, neither Gottstein, Egilman, Berenson, nor indeed anyone else (besides apparently some third-party payors) made any effort to follow the mechanism set forth in the protective order to de-designate the documents. As I've mentioned before, if you're looking for a judge who is likely to be friendly to such an effort, Judge Weinstein is a good one. But there was no effort at all.
And of course, the plaintiffs' signing on to keeping the documents confidential may reflect a recognition that keeping the documents secret gives the plaintiffs greater leverage in further settlement discussions (recall that tens of thousands of cases have already settled).
In any event, some money quotes:
A New York Times reporter, Alex Berenson, was aware of the protective order. He discussed with a plaintiffs’ expert, Dr. David Egilman, means of escaping the order’s restrictions and obtaining protected documents in the expert’s possession . . . even though Egilman had agreed in writing to be bound by the order. . . .
Both Berenson and Egilman were cognizant of the fact that paragraph 14 of CMO-3 took account of the possibility that the protected documents could be subpoenaed by courts or executive agencies. So Berenson provided Egilman with the name of an Alaska attorney, James Gottstein, unconnected to the instant litigation, who might be willing to employ a pretense to subpoena the documents and help disseminate them in violation of the protective order. . . .
To carry out the scheme for obtaining and disseminating the protected documents, Gottstein intervened in a state case in Alaska wholly unrelated to Zyprexa. In that case, he then subpoenaed from Egilman confidential documents he knew to be under the protective order which bore no relevance to the Alaska litigation. The subpoenaed documents were sent by Egilman to Gottstein pursuant to an expedited amended subpoena about which Lilly was deliberately kept in the dark so that it would be unable to make a timely objection. . . . Gottstein immediately sent the confidential documents on to Berenson and others. . . . .
None of the three conspirators, Berenson, Egilman, and Gottstein, sought a lifting or modification of the protective order, despite the declassification procedures provided for in paragraph 9 of CMO-3. See In re Zyprexa, No. 04-MD-1596, 2004 WL at *5.
While the order ends up rejecting some of the arguments (presented by the EFF and others) that the breadth of the injunction sought by Lilly would run into constitutional problems, Judge Weinstein does explicitly recognize the First Amendment relevancy:
A perplexing issue is presented by Lilly’s request for an injunction against websites to which the conspirators sent the documents or which might have been used for further dissemination by those to whom the documents were originally sent. . . . The internet, with its almost infinitely complex worldwide web of strands and nodes, is a major modern tool of free speech and freedom both here and abroad. Its reach extends as far as, and perhaps exceeds, that of newspapers and other traditional media. The law is rightly hesitant about allowing government –– including the courts –– to inhibit and restrict the use of such modern instruments of communication. See U.S. Const. amend. I.
I think it was perhaps more significant than was made explicit here that the PSC was on board:
Irresponsible people may exercise their own right and opportunity to speak in a manner abusive and constrictive of the rights of others on the internet, in the press, and in other fora. Those whose rights have been abused by the conspirators in violation of the court’s protective order include Lilly and tens of thousands of plaintiffs and their attorneys who depended upon CMO-3 and sealing orders of the court to effectively prosecute this important litigation without unnecessary breach of the parties’ privacy. It is significant that both the PSC and Lilly support the issuance of the injunction now being issued.
On the notion that the Times's situation is analogous to the Pentagon Papers:
Nor is this a case of a newspaper obtaining, with clean hands, documents provided to it by government employees, whistleblowers, or protestors. See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979) (“[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.”) (emphasis supplied). It is unlike New York Times Co. v. United States, 403 U.S. 713 (1971) (hereinafter “Pentagon Papers”). In the Pentagon Papers case, there was no suggestion that the documents were purloined at the New York Times’ or Washington Post’s instigation. Here, a reporter was deeply involved in the effort to illegally obtain the documents. . . . Affirmatively inducing the stealing of documents is treated differently from passively accepting stolen documents of public importance for dissemination. . . . But see Bartnicki v. Vopper, 532 U.S. 514, 528-29 (2001) (noting that the issue has been left open). The New York Times itself appears to recognize the distinction. See The New York Times, Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments, 9 (Sept. 2004) (“Staff members must obey the law in pursuit of news. They may not break into buildings, homes, apartments, or offices. They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages. They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources. In short, they may not commit illegal acts of any sort.”).
On what happened after Gottstein started to distribute the documents:
Individuals to whom Gottstein sent the documents began devising schemes to evade court orders to return the documents even before any such orders had been issued. In an email dated December 16, 2006, Robert Whitaker wrote to Gottstein: “I would consider building a website that would, ahem, make all the documents available. What could they do to me? And how could they know how the documents got to me? There are several channels apparently that could be the source. You should proceed now in whatever way makes it easiest for you, and let others worry about getting this information out or making it public.” Pet’r Findings of Fact, supporting ex. 30.
[Time to make dinner for the kids. More later.]
The Government's Role in Torts
Walter Olson has a provocative piece in Reason today about the government's role in various torts that are typically considered primarily due to private actors. One representative excerpt:
Asbestos exposure has been a genuine public health calamity, having caused much death and disability among exposed workers. Much of the early journalistic coverage, taking its lead from Paul Brodeur's early series in The New Yorker, has treated the episode as a case study in the callousness of private enterprise, which is said to have exposed workers to the lethal mineral for decades until at last brought to heel by the efforts of public-health activists, government regulators, and trial lawyers. That's consistent with the wider conventional view, which treats hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies' actions.
Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.
Zyprexa Order Issued!
Good heavens, that was fast. Briefing finished yesterday, and here's the order: Download memorandum_final_judgment_order_injunction_07504.pdf
I haven't read it yet, but it appears to conclude that the immediate recipients are still within an injunction, but that secondary (and those further out) are not. A very quick glance suggests that this paragraph is a reasonable summary of what Judge Weinstein thinks about Egilman, Gottstein, and Berenson:
Berenson’s, Egilman’s, and Gottstein’s brazen flouting of this court’s protective order raises serious questions about their responsibility. The court, based on the evidence before it, is not satisfied that they can be counted on to return all copies of the documents they may have in their possession or control. Egilman and Gottstein are therefore being permanently enjoined as noted in Part IV.H.5, supra. Berenson is not being enjoined since no injunction against him has been sought by Lilly. See Part IV.H.4, supra.
More -- much more -- to come, probably this afternoon.
A Zyprexa Update
Some new documents of note are noted below. More are available on the PsychRights website; I haven't, for example, gone through all of the battling proposed findings of fact.
- MindFreedom et al.'s brief [PDF] opposing the extension of the injunction as to them;
- David Egilman's brief [PDF] about...something. There hasn't actually been a request to hold him in contempt or to otherwise sanction him that I've seen, though one is no doubt coming. But he instead (and I think wisely) is challenging Lilly's proposed findings of fact that would, if adopted, prejudice his defense of the expected contempt motion.
Among other things, he argues that since the civil findings here would likely impact a criminal contempt proceeding against him, his decision to invoke his Fifth Amendment rights should not be used to create a negative inference (as it could in a civil setting). He also contends that his silence should not be held against the third parties involved in the injunction setting.
Probably the core issue is and will be what a "reasonable opportunity" meant in the CMO and whether Dr. Egilman provided Lilly with that opportunity to object to the production of documents. The problem as I see it is the change in subpoena date - a change that Lilly was never notified of - and the (in my view reasonable) inference that the date was changed to prevent an objection from being made. (As a reminder, the original subpoena for the documents had one date; the date was moved up substantially, but that new date was not given to Lilly.)
And then he also argues that Lilly overdesignated documents (which looks probable from news coverage anyway) and that its potential violation of the CMO should prevent it from invoking its protections now.
- The EFF's brief [PDF] on behalf of various third parties objecting to the extension of the injunction as to them.
- Various third parties brief [PDF] seeking to intervene to challenge confidentiality and the Court's Order [PDF] denying that motion without prejudice, essentially delaying it until after the injunction matters are resolved.
- Terrie Gottstein's opposition [PDF] to extension of the injunction as to her, contending among other things that an e-mail used by Lilly falls within the marital privilege.
- Jim Gottstein's opposition [PDF] to extension of the injunction. He argues, among other things, that the CMO should be voided as being far too easy to abuse through overdesignation of documents. He also makes the argument that Lilly failed to establish that, even if the CMO were valid, that it was violated (much the same argument as Egilman presents).
It also presents for the first time that I've seen an allegation that third-party payors challenged the confidentiality of various Zyprexa documents back in 2005, and that Lilly failed to timely respond, contending that the documents were made non-confidential then. Lilly's reply brief (cited below) seems to deal with this allegation fairly convincingly; the parties involved continue to be dealing with that challenge and nobody involved in it contends that Lilly waived the challenge.
He also presents his arguments that Alex Berenson's involvement was just good old-fashioned reporting, and that finding a case just to use to subpoena the documents was proper public interest litigation.
- Lilly's reply brief.
February 12, 2007
Michigan Considering Rolling Back Immunity
Via Pharmalot, Democrats in Michigan are considering rolling back the mostly-immunity that approved pharmaceuticals enjoy there from tort suit. The AP story reports more. There's also RXVictims.com, which is a project of Michigan Citizen Action. And here is the bill itself, which basically just strikes out the immunity provision.
February 11, 2007
The September 11 relief efforts present a unique prism through which to view the status of same-sex relationships and to consider which families count when the United States is supposedly at its most generous, most united, and most injured. On a basic human level, would the nation grieve for Peggy Neff, who lost her partner of 18 years when Flight 77 crashed into the Pentagon, as it had for the widow of a fire fighter? Would Neff be eligible to file a claim with the multi-billion dollar federal September 11 Victim Compensation Fund, which Congress established to compensate victims and their “relatives”? Or, consistent with state probate law, would Neff be considered a ‘mere stranger'? Would the Virginia state crime victim compensation board recognize Neff's claim as a surviving partner even though she did not otherwise qualify as a “spouse” or a dependent? And, what about the private charitable contributions, which within five weeks of the attacks exceeded $1 billion? Would such funds be distributed to surviving same-sex partners or would they, as Reverend Sheldon urged, be dispensed based on the “priority of one man and one woman in a marital relationship”?
This Article examines the status of surviving same-sex partners under the federal September 11 Victim Compensation Fund, the Virginia, New York, and Pennsylvania state crime victims compensation boards, and the Red Cross disaster guidelines. Because many of the positions taken by the different assistance programs reference or replicate existing laws, Part II outlines the treatment of surviving same-sex partners in the three areas of law most directly relevant to the survivors of the victims of the September 11 attacks: probate law, employment-related survivor death benefits, and wrongful death actions. Part III discusses the federal Victim Compensation Fund. Part IV compares the disparate policies of the three state victim compensation boards with regard to the recognition of same-sex surviving partners. Part V describes the guidelines adopted by the Red Cross which embrace an expansive definition of family.