asbestos litigation: a crash course for associates

Transcription

HB LITIGATION CONFERENCES
PRESENTS:
ASBESTOS LITIGATION:
A CRASH COURSE FOR
ASSOCIATES
What are the Emerging Trends?
New Plaintiffs, New Defendants
and
New Theories
Amee A. Mikacich
Filice Brown Eassa & McLeod LLP
THE OLD PROFILE:
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-Male in his 50’s, 60’s or 70’s
-Tradesman, i.e. an insulator or boilermaker
-Union Member
-Direct Exposure
-Pleural plaques, asbestosis, lung cancer or
mesothelioma
-Suing manufacturers
-Negligence and strict product liability
-Medical monitoring or compensatory damages
Who Are The New Plaintiffs?
 Bystander Exposure
-Take home, household
contamination or paraoccupational
exposures
-Wives & children
- Household contact, laundry
activities, family car, family home
-Office staff
-Delivery personnel
New Plaintiffs’ Occupations
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Plasterers/ Drywallers
Auto Mechanics
Plumbers/ HVAC Mechanics
Electricians
Laborers
Construction Workers
Sandblasters/Painters
Farmers
Secretaries/ Teachers
Machinists
Stay-At-Home Spouses
Inspectors
Other Occupations
 Winery workers
 Hollywood set designers
 Middle East refinery workers
 International exposures
 Dentists/ Lab workers
 Laundry workers
New Medical Claims
 Pleural Mesothelioma
 Mesothelioma in women
 Mesothelioma in young people
 Testicular Mesothelioma
 Peritoneal Mesothelioma
 Well Differentiated Papillary Mesothelioma
Other Cancers
 Renal Cell Carcinoma
 Laryngeal Carcinoma
 Non-Hodgkins Lymphoma
 Pancreatic Cancer
Who Are The New Defendants?
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Friction Manufacturers – brake, clutch, gasket,
muffler, sound deadeners, aircraft
Premises Owners – refineries, factories, auto
repair facilities, private manufacturing, railroads
Fiber Suppliers – raw asbestos miners and
processors
Equipment Suppliers – replacement part
suppliers, pumps & valves, dryer felts, wine
filters, gaskets & packing
“Contaminated Clothing Defendants” – laundry
customers
What are the New Theories of
Liability?
 Negligence and Strict Product Liability
 Failure to Warn/Company Conduct
 Civil Battery
 Mixed Dust – silica, coal, polycyclic
aromatic hydrocarbons, bitumen fumes
 Others?
Conclusion
 Bankruptcies have eliminated viable
parties from the litigation
 Created new plaintiffs, new defendants
and new theories of liability
 Constantly evolving
 Will continue to see new and different
parties and theories in the future
Questions?
Primer on Expert Admissibility
And Preparing an Expert for
Trial
February 24, 2010
Ross Stomel, Esq.
Shrader & Associates
(Plaintiff Perspective)
F. Ford Loker, Esq.
Miles & Stockbridge
(Defense Perspective)
Overview
1. Finding and using experts
2. The standards of Daubert and Frye
(make/defend admissibility
challenges).
3. Preparing for expert admissibility
hearings and trial.
4. Practice Pointers.
Perspectives
Plaintiffs:
Usually DEFEND
expert admissibility challenges.
Defendants:
Usually MAKE
expert admissibility challenges.
Where Does Each Side Begin?
Offering Party:
Always begin with the
end in mind.
– Whose Best For the Job?
– What Methodology Used?
– What Testimony is “Out There”?
– What Opinions Needed?
Where Does Each Side Begin?
Objecting Party
What Relief Is Wanted?
– Exclude Written Scientific
Data or Report
– Strike / Limit Oral Opinions?
– Both?
– Create Reversible Error?
Defense: Making the Attack
Finding experts to help
make your challenge:
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Talk with other Defendants
HB Conferences, ABA, DRI etc.
Mealey’s/Toxic Tort Publications
Research Med Line/ published literature
www.Rountable.com
www.ims-expertservices.com
Academia/ex-government witnesses
Where to Attack
?
• Use experts well-versed in specific
disease at issue, without “baggage”.
• Use “relevant” experts – active in cutting
edge scientific/medical literature.
• Focus on failure of methodology (in Frye
states) or failure to account for
confounding contributory factors (for
Daubert states).
• In short, is your epidemiologist “bulletproof?”
Plaintiffs: Defending the Attack
- Witness prep begins on day-one.
- Expert must detail his methodology in
his report
- Report must include references
supporting general acceptance
- Don’t put your expert in a position where
they get stuck on desert island
- Make sure expert is preparing as hard
as you are!
Overview of the Law Governing
Admissibility of Scientific Evidence
• FRE 401/402/403 (Relevance)
*
• FRE 702/203 (Scientific Evidence Generally)
• Frye v. United States (1923)
• Daubert v, Merrill Dow (1993)
* And Know YOUR State’s Equivalents
Frye States vs. Daubert States
*
• Frye- 22 (includes the District of
Columbia)
• Daubert- 29
• “Hybrids” 12 (Most are Frye – Plus)
* Know your jurisdiction’s “wrinkles” !
Frye States vs. Daubert States*
Frye States:
Alabama
Arizona
California
Colorado
Dist. of Col.
Florida
Hawaii
Illinois
Kansas
Maryland
Michigan
Minnesota
Mississippi
Missouri
Nebraska
New Hampshire
New Jersey
New York
North Dakota
Pennsylvania
Tennessee
Washington
* This list may change over time. Know your jurisdiction.
Frye States vs. Daubert States*
Daubert States:
Alaska
Arkansas
Connecticut
Delaware
Georgia
Idaho
Indiana
Iowa
Kentucky
Louisiana
Maine
Massachusetts
Montana
Nevada
New Mexico
North Carolina
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming
Hybrid States: Using “Frye-plus” or Rules Of Ev.*
Arkansas
Delaware
Georgia
Iowa
Minnesota
Montana
North Carolina
Oregon
Utah
Vermont
Wyoming
Frye v. U.S.,
54 App. D.C. 46 (D.C. Cir. 1923)
Landmark case requiring that:
(1)an expert has ample knowledge, skill, or
expertise to assist the trier of fact in
determining the truth and
(2) the expert’s methodology is (a)
"generally accepted by scientists” in the
(b) “relevant field.”
Frye v. United States
• Burden of proving “novelty” may be on
challenger.
• Focus is on methodology, not conclusion.
• Extrapolation from an accepted principle is
appropriate.
• Epidemiology studies not necessarily
required.
When “New” is Not Always “New”
A methodology that 1) lacks support in the published
literature, 2) is based on flawed logic, and 3) has not
gained general acceptance in the relevant scientific
community is “novel” for purposes of Frye no matter how
long the methodology has been around. See Trach v.
Fellin, 817 A.2d 1102, 1124 (Pa. Super. 2003).
Despite the fact that Plaintiffs’ experts have offered the “every
exposure counts” opinion in numerous previous asbestos
cases does not prevent it from being challenged as “new” –
inadmissible under Frye.
Lie detector tests and hypnosis are good analogies for
defendants.
Frye Victories for Plaintiffs
• Berger v. Amchem Products, 818 N.Y.S. 2d 754
(N.Y. Sup. Ct. 2006)
- Chrysler Frye motion on asbestos brake
exposure denied without a hearing
• In re New York City Asbestos Litigation, 806
N.Y.S. 2d 531 (N.Y. App. Div. 1st Dept. 2005)
- No hearing required; argument over causation of
asbestos disease not novel
Trend in Asbestos Case Frye
Challenges
Despite the fact that the Frye standard is
slowly in decline in most state courts,
Defendants have had some recent success
in making Frye challenges to general
opinions (i.e. every fiber causes/contributes
to disease/friction product surface science).
Is it a moving “trend” or series of one-off’s?
Recent Frye Wins for the Defense
• Bahnemann v. Allied Signal et al., No. AD 03-319
(Ct. Com. Pleas, Allegheny Co., Pa. Aug. 17, 2006)
– Drs. Maddox and Lemen’s “every fiber” general causation opinions
excluded.
• Free v. Ametek et al., No.:07-2-04091(Sup. Ct.,
Wash. Cty, Wa, Feb. 28, 2008)
– Drs. Hammar, Brody, and Brodkin’s “every fiber” general causation
opinions excluded.
• In Re: Asbestos Litigation Philadelphia County, (Ct.
Com. Pleas, Philadelphia Co., Pa, Sept. 24, 2008)
– Drs. Gelfand, Lemen, Longo, Mark, and Frank case-specific “every
fiber” testimony excluded.
Daubert v Merrill Dow
The Standard for Admissibility of Expert Testimony
Trial judge is GATEKEEPER keeping out
experts whose methodology is
untrustworthy or whose expertise is
irrelevant to the issue at hand.
Three Part Gatekeeper Inquiry
1. Is the expert qualified?
2. Does the proffered testimony have a reliable
basis in the knowledge and experience of the
expert’s discipline?
3. Is the proposed testimony sufficiently relevant
to the task at hand? Does it pass the “fit” test?
• To evaluate reliability, courts look to a
number of factors including:
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Testability
Error rate
Peer review and publication
General acceptance
• All of the factors are generally helpful for
defendants in emerging toxic torts.
Daubert Has Not Favored Defendants
in Asbestos Litigation
In re: Asbestos Litig., 911 A.2d 1176 (Del. Sup. Ct.
2006). Motion in limine to exclude plaintiffs' friction
product causation witnesses denied by trial court
("the Court finds plaintiffs' medical and scientific
evidence that exposure to friction products
increases the risk of contracting an asbestos
related disease is sufficiently reliable to pass
through the Daubert filter…") at 1180. Drs.
Dodson; Hammar; Lemen; Frank; and Goodman
allowed to give “every fiber” opinions.
Is the Tide Turning?
General Motors Corp. v. Grenier, Nos. 453, 2007,
578, 2007, 2009 WL 267665 (Del. Feb. 4, 2009).
Ronald Dodson opined that "chrysotile contained
in brake linings and clutches is no different than
the chrysotile he has studied in other types of
products." Remanded to determine if Dr. Dodson's
opinion is “sufficiently reliable.”
Case remanded to reconsider Dr. Lemen's general
causation opinions regarding friction products and
disease in light of court’s error in admitting
Dodson’s opinions above.
Recap of Daubert & Frye
Daubert
Frye
• Testimony is based
upon sufficient facts or
data
•Testimony has
support in the
published literature
• Testimony is the
product of reliable
principles and methods
•Testimony is based on
sound logic
• Witness has applied
the principles and
methods reliably to the
facts of the case.
• Opinion has gained
general acceptance in
the relevant scientific
community
Preparing an Expert Witness
Plaintiff’s Perspective:
– Concentrate on methodology
– Go back to basics; start with scientific
principle that is immune from challenge (e.g.,
dose –response)
– Witness must be able to discuss contrary
studies
– Witness needs to be knowledgeable of the
case specifics—the good and the bad
– And we must do our homework to protect them. Read
prior transcripts and see what answers have hurt them
or how they can make them better/also anticipate the
hard questions.
Preparing an Expert Witness
Defense Perspective:
– Are all prior expert’s affidavits and testimony
are consistent?
– If not, why not?
– Does expert acknowledge contrary science
and medicine.
– Is expert going to appear “fair and
balanced.”
– Will expert attack methods—not results
AND not ad hominem.
– It’s all about the Epi.
Practical Tips: Making Your Record
Plaintiff’s Perspective:
– Know admissibility standards—and make
sure those “key words” are included in
evidence (in report or testimony).
– Be certain details of exposure are part of the
case.
– Ensure that all helpful documentary
evidence has been admitted and included in
record.
– Inform the Court of other States’ beneficial
rulings.
Practical Tips: Making Your Record
Defense Perspective:
– Push for CMOs that include separate expert challenge
schedule before trial.
– If no CMO, push for a separate Frye/Daubert hearing
before trial so you can have a clean record.
– Routine Motion in Limine is often poor vehicle to
adequately address serious expert admissibility issues.
– Defense experts should testify “live.”
– Prepare notebooks (tabbed and indexed) for the judge
with the key studies/articles.
– K.I.S.S.
Questions?
Ross Stomel
Shrader & Associates
1021 Main St.,Ste1450
Houston, TX 77002
Phone: 713-782-0000
[email protected]
Ford Loker
Miles & Stockbridge, PC
10 Light Street.
Baltimore, Maryland
Phone: 404-881-7670
[email protected]
THE USE OF EXPERT
TESTIMONY IN
ASBESTOS TRIALS
Presented at HB Litigation Conferences Seminar:
Asbestos Litigation: A Crash Course for Associates
February 24, 2010
___________
F. Ford Loker, Esquire
Miles & Stockbridge P.C.
10 Light Street
Baltimore, Maryland 21202
Direct: (410) 385-3840
[email protected]
THE USE OF EXPERT TESTIMONY
IN ASBESTOS TRIALS
A.
Introduction............................................................................................1
B.
Retention of Expert Witnesses..............................................................2
C.
1.
General Principles .......................................................................2
2.
Locating the Right Expert ..........................................................7
3.
Use of Experts as Consultants and/or Witnesses....................18
Challenging the Expert at Trial .........................................................23
1.
Motion in Limine to Exclude Expert Testimony ....................24
2.
Experts on the Witness Stand ..................................................28
3.
Attacking Bogus Science in the Courtroom............................33
Appendix – State Standards for Admitting Scientific Evidence .............A-1
F. Ford Loker, Esquire
Miles & Stockbridge P.C.
10 Light Street
Baltimore, Maryland 21202
Direct: (410) 385-3840
[email protected]
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A.
INTRODUCTION
This paper focuses on the selection, development and presentation of the expert
witness as a crucial portion of a trial. 1 Strategies definitely will vary from jurisdiction to
jurisdiction and even from trial to trial. They also will vary depending upon which side is
sponsoring or opposing the expert. However, certain core principles apply. The practitioner
is responsible for modifying the general notions in this paper to meet the unique facts and
laws governing an individual matter.
Virtually every case can benefit from the inclusion of expert testimony at trial. This
is true whether the trial is before a judge sitting without a jury or in a jury trial. Both triers of
fact have limits upon their education and experience, making the correctly chosen expert
helpful in resolving the dispute. Because virtually every case can benefit from expert
testimony, every litigator should anticipate that his adversary also will rely on experts to
counter crucial elements of his opponent's claim or defense.
Standard reference texts are readily available to catalog common issues where expert
testimony is or is not required and is or is not admissible. See, e.g. West's Maryland Digest
2d, evidence Sections 471-501. The purpose of this paper is not to compile a comprehensive
index of subject matters for expert testimony, but rather in a general sense to describe how
best to find your experts, how best to protect them during the development of the case,
including the discovery phase, and how best to present them at trial.
Planning, preparation and practice are key. As with all critical aspects of trial, hope
for the best and plan for the worst.
1
The statements and opinions expressed and any legal positions asserted in this presentation are those solely of the
authors and do not necessarily reflect those of Miles & Stockbridge P.C., its other attorneys and its clients. The
contribution of Roberto Vela, Esquire to the Frye discussion is gratefully acknowledged.
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B.
RETENTION OF EXPERT WITNESSES
1.
General Principles
What is an Expert?
In most jurisdictions, the definition of an expert witness is simple and broad. Witnesses
qualifying for recognition as experts need only demonstrate that they possess special, peculiar or
technical knowledge in their field of expertise which is superior to the general expected
experience of the trier of fact and which will assist the trier of fact in better understanding and
deciding the matter in dispute. See e.g. Troja v. Black & Decker Mfg. Co., 62 Md. App. 101,
488 A.2d 516, cert. den., 303 Md. 471, 494 A.2d 939 (1985); Pennsylvania Threshermen &
Farmer's Mutual Casualty Ins. Co. v. Messenger, 181 Md. 295, 29 A.2d 653 (1943); Boleski v.
American Export Lines, Inc., 385 F.2d 69 (4th Cir. 1967). 2
What Differentiates a "Fact Witness" from an "Expert Witness"?
Fact witnesses are limited to testimony on matters about which the witness has personal
knowledge. Absent an exception to the hearsay rule, the fact witness may not repeat or rely on
hearsay evidence in presenting the testimony. While the lay witness may offer opinions on
common subjects based on personal knowledge, he may not provide his opinion on matters of
special, peculiar or technical matters. Galusca v. Dodd, 189 Md. 666, 57 A.2d 313 (1948);
Brown v. Rogers, 19 Md. App. 562, 313 A.2d 547 (1974). An owner of property is competent to
opine on its value; a vehicle driver is competent to estimate speed. As with any opinion
evidence, it may be the subject of numerous objections, including foundation and relevance. It
2
For the most part, citations are to Maryland law. Readers should “Shepardize” them to ensure continued viability
and research their applicability in the jurisdiction where they are to be cited.
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may be tested on cross-examination. In short, merely designating certain testimony as “expert
opinion” does not lend any greater level of believability than any other type of evidence.
However, experts may add a higher degree of weight even to mundane subjects. This is why
finding the right expert is crucial to separate valuable opinions and conclusions from the
background noise in a trial.
Experts as Exception to Sequestration Order
While non-party fact witnesses must be excluded from the courtroom during the
testimony of others on a motion to sequester witnesses, an exception permits the expert
witness to remain in the courtroom to observe the parties and to hear the evidence of the
witnesses, including opposing expert witnesses. It should be proffered to the court that the
presence of the expert is required to assist in the formation of his opinions and the
presentation of them to the jury.
Opinions Concerning the Possible vs. the Probable
For the proponent of an expert, it is important to elicit those opinions on direct
examination using the rubric "to a reasonable degree of probability [within the witness's field
of expertise]". Hines v. State, 58 Md. App. 637, 473 A.2d 1335 (1984). Thus, the standard is
only that it is more likely than not, or 50.1%, that the proposition is accurate. Opinions that
are nothing more than speculation, guesswork or conjecture do not rise to the level of
“probability.” Nevertheless, expert opinions expressed in terms of possibility may be
admitted into evidence on direct examination, if one can infer what actually occurred from
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facts evidencing a sequence of events, "plus proof of possible causal relationship . . ."
Charlton Brothers Transportation Co. v. Garretson, 188 Md. 85, 51 A.2d 642 (1947).
In general, possible causal sequences of facts occurring in the past may be admissible,
whereas opinion as to future occurrences, such as the nature and cost of future medical care,
future lost wages, future loss of earning capacity and the like, must be stated in terms of what
is reasonable and probable. See, e.g., Pierce v. Johns-Manville Sales Corp., 296 Md. 656,
464 A.2d 1020 (1975).
Opinions Based on Hypothetical Questions
Hypothetical questions allow experts to testify beyond their personal knowledge of
the facts. As useful a tool as the hypothetical questions can be, merely interjecting the term
"hypothetical" into the question virtually always triggers a Pavlovian objection. These
objections usually are based on failing to include all relevant facts in the hypothetical
question, or including disputed or contradictory facts in the record. Counsel should take the
time to write out, in full, every hypothetical question to defeat any anticipated objections.
True, the resulting question becomes inordinately verbose and obtuse, but once the question
is permitted, the witness can begin to break it into more manageable bites for the jury to
digest.
Hypothetical questions can be useful tools to summarize the factual bases for the
expert's opinion. To avoid pitfalls, one should preface the hypothetical with the request that
the expert witness "presume the truth of the following facts." The facts thereafter recited
should be clearly supported by the evidence and fairly characterize those facts. Kruszewski v.
Holz, 265 Md. 434, 290 A.2d 534 (1972).
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Restrictions of the content and completeness of hypothetical questions on crossexamination are more lax. There, "possibilities", disputed facts and even facts which will not
be proven at trial may be included. However, matters which are argumentative, misleading
or calculated to confuse the jury may be stricken. Donnelly v. Donnelly, 156 Md. 81, 143 A.
648 (1928).
Opinions Going to the “Ultimate Issue”
In the past, even expert witnesses were not supposed to express opinions upon the
"ultimate issue" to be decided by the jury, i.e., the guilt or innocence of the accused, or
conclusions of law, i.e., the negligence of the defendant. Western Union Telegraph Co. v.
Ring, 102 Md. 677, 62 A.2d 801 (1906); Burch v. Prudential Ins. Co. of America, 184 Md.
664, 42 A.2d 671, 163 A.L.R. 1466 (1945). Such expressions were deemed to invade the
province of the court and jury. The prohibition on opinion evidence concerning the ultimate
issue largely has been supplanted by the federal or state codes, such as the Maryland Rules of
Evidence, Rule 5-704.
Opinions constituting conclusions of law may still draw objections, but they are
easily circumvented. The line between opinion from inferences drawn from underlying facts
and opinions on the ultimate fact to be determined by the jury is increasingly blurred.
Cirincione v. State, 75 Md. App. 166, 540 A.2d 1151 (1988). An expert witness, such as a
highway patrolman, can testify that a driver appeared intoxicated, walked unsteadily, reeked
of alcohol, had glassy eyes and slurred speech, or that he was observed driving in excess of
100 mph through a blizzard, at night without headlights, or that he was texting, tweeting, web
browsing or reading Finnegan's Wake at the time of the collision. Even if the officer is
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prevented from “concluding” that the driver was negligent, the jury will nevertheless glean
his view on that ultimate issue. The point can be driven home in closing argument, where the
trial attorney can “opine” on ultimate issues at will, not because he is an expert, but because
the argument is not evidence.
Competence vs. Admissibility of Opinion
Even though the expert may be eminently qualified to offer an opinion and even
though that opinion is totally supported by undisputed facts, the opinion nevertheless may be
excluded on the ground that it is irrelevant or immaterial. In the example above dealing with
the drunken, reckless or distracted driver, opinions relating to the negligence of the driver
may be irrelevant in a products liability action against the manufacturer of faulty brakes
which were the sole and proximate cause of injury. See, Ritz v. Myers, 85 Md. App. 714, 584
A.2d 1306 (1991).
Weight Accorded to Expert Testimony
Experts are special witnesses. By virtue of their particularized knowledge and
training, their opinions are singled out as helpful to the jury. Yet, even an expert's opinion is
of no greater probative value than the soundness of the reasons given for it. Anderson v.
Sawyer, 23 Md. App. 612, 329 A.2d 716 (1974). As the trial judge instructs at the
conclusion of every case, the jury is at liberty to accept some, none or all of the testimony of
any witness, including experts. See, e.g., Maryland Civil Pattern Jury Instructions 2d Ed.,
Instruction Nos. 1:3, 1:4.
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2.
Locating The Right Expert
Case Evaluation
Most cases benefit from expert testimony. Some absolutely require it. The wrong
expert, however, is worse than no expert at all. The goal and the art of the successful trial
lawyer is understanding how and when to winnow the field of candidates, resulting in
selection of the one individual embodying the perfect match of personality, experience and
viewpoint compatible with the particular facts you must establish to prevail at trial.
Most trial lawyers jealously guard the actual identities and methods of procuring the
services of expert witnesses. The quest for the correct expert begins as soon as the case file
crosses the attorney's desk; this applies to the lawyer for the plaintiff as well as for the
defendant.
Some early considerations in narrowing the focus for the appropriate expert witness are:
(1)
Jurisdiction where the action is or may be filed;
(2)
Skill and track record of opposing counsel, if known;
(3)
Sophistication, visibility and relative status of all of the
parties to the litigation;
(4)
Demographics of the jury venire;
(5)
Case budget/cost-benefit analysis from investing in
expert witnesses:
a.
Contingency fee cases;
b.
Insurance or other third party payer.
(6)
The message to be delivered by the expert;
(7)
The image to be projected by the expert witness.
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When to Engage Expert Witness vs. When to Disclose Expert Witness
Many successful trial lawyers are perfectionists. Perfectionists in turn tend to be
procrastinators. There is a tendency in developing a case to postpone decision making and to
keep viable as many options as possible; perhaps even to deal with budget concerns of the
client or insurer. Forcing oneself to select experts early in the life of the lawsuit is essential.
Be pro-active in the case development, whether for the plaintiff or for the defense. You may
even be able to control the pace and momentum of the dispute. The rule of thumb is the
earlier the better.
Early selection of the expert is of particular importance when the area of expertise is
narrow and the range of competent persons in that field is restricted. One can literally
preempt the field by locking in the services of all or most of the premier expert witnesses
before your opponent has the opportunity to engage them. Early selection of the expert also
elongates the period during which the expert can educate the trial lawyer and plan for the
successful organization of the facts and the presentation of those facts at trial. Plaintiffs
clearly have the advantage because expert witness selection is a critical aspect of pre-filing
investigation of the claim.
Even though selection of the expert can and should be made early in the process,
disclosure of the expert by and large should await the controlling deadline under the rules or
under a particular case management order of the court. This satisfies the natural desire to
keep all options available and permits mid-course corrections, where earlier assumptions on
the proper expert are invalidated by later developments or further investigation.
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Search Criteria
Once initial case evaluation has identified the issues in need of an expert witness and
the ideal characteristics of that witness, the search for the appropriate person can begin.
Among the factors to be considered in deciding where to look for expert assistance are:
1.
Local vs. Distant. Will the homegrown expert play better in your town than
the international wunderkind with a foreign accent which the jury may not invest the effort
and concentration to understand?
2.
Nobel Laureate vs. Marcus Welby, M.D. What background will resonate
truer with the expected make-up of the jury?
3.
Prior Litigation Experience. In choosing between the professional witness
and the well-qualified first-timer, the decision should lean toward the most effective
communicator in the courtroom.
4.
Time Constraints. One must allow for the time necessary to work up the
expert's opinion within the limitations imposed under a discovery schedule and the other
pressures on the schedule of the expert.
5.
The Number of Experts Per Subject Matter. A "consensus" of one yields no
internal conflict but two or more increase the likelihood of communicating successfully with
jurors from vastly different backgrounds.
Finding the Existing Expert Witness
As indicated earlier, there is no want of persons hungry for fees as expert witnesses.
Why is it that the ones you want most are also the ones that want nothing to do with lawyers?
Why is it that the ones that advertise or bombard your inbox with spam are so unappealing?
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Knowing where to find the correct expert is the key to a successful trial presentation. Do not
count on your brothers and sisters at the trial bar to divulge their favorites. The search for the
correct expert begins close to home and extends in ever widening circles.
1.
Your Client. Start with the client who may know more about the facts in
dispute and have greater expertise in his / her chosen field than anyone you could retain
“cold.” The drawback is obvious: bias and interest obviously are fair game on crossexamination. If the client is a business concern, perhaps there are in-house experts
knowledgeable on the subject matter. If not, expand the hunt to the independent consultants
retained by the client.
2.
Similar Case. Research court dockets and legal/litigation newsletter and
published appellate decisions in similar cases -- locally and nationally. Trial summaries and
answers to interrogatories and other discovery responses in similar law suits can provide
leads for appropriate experts.
3.
Attorney-to-Attorney Networking. The client may have actions pending in
other jurisdictions or the subject matter of the litigation may extend nationwide, or at least
outside of your own backyard. Contact counsel identified in reported cases, in specialty
litigation reporters and in specialty bar organizations. You can develop relationships with
other lawyers situated similarly to you.
4.
Professional Organizations. This extends not only to legal organizations such
as ATLA or DRI, with their expert witness banks, but also to professional organizations of
the expert, such as the AMA, engineering societies and the like.
10
5.
Learned Publications and Trade Journals. Literature searches can be
conducted on such computerized data bases as NEXIS, Medline and in university and
medical libraries in your vicinity. After identifying publications discussing the issues of your
trial, the authors and researchers can be contacted as potential experts.
6.
Direct Mail Solicitation. Increasingly, the trial lawyers' mailboxes are being
filled with glossy brochures prepared for mass-mailing by the expert interested in breaking
into the lucrative litigation business or by umbrella organizations touting the ability to deliver
an expert on virtually any subject matter under the sun. Undoubtedly, some of them are
worthy and strong candidates, but extra caution and vetting may be in order. How many of
us have selected an investment consultant, a personal physician or insurance agent through
mass mailing and cold calling? The same caution should be utilized with experts. If the
expert is too "hungry", his effectiveness will be impaired and his bias easily uncovered. The
advertising materials themselves may be discoverable and offer a fertile area of crossexamination.
Developing a New Expert
There are numerous occasions where due to the trial lawyer's own inexperience or the
novelty of the subject matter in litigation, a tried and true slate of expert witnesses is not
available. Successful expert witnesses in the courtroom have a limited shelf life (the more
they testify, the more they earn and the more vulnerable to cross-examination on bias and
interest they become). The search for new experts never ends. Utilizing the expanding
search patterns described in the preceding section, new experts may also be identified. For
11
example, there is nothing untoward about approaching another well-travelled expert for his
recommendation of a colleague almost as intelligent and persuasive as he is.
1.
Qualifications and Experience. The first order of business in considering
anyone as an expert witness is a thorough review of his or her qualifications and experience
in the subject matter. Putting aside the niceties of image, personality and availability, the
trial ultimately is the search for the truth and the successful trial lawyer wants to lead, not
mislead, the jury to the correct conclusion.
2.
Interest. The new expert has to be interested in working with you and
working with your facts in bringing the case on for trial. If the attorney picks up vibrations
from the expert that his or her heart is not in the case, all the experience in the world will not
overcome that lack of commitment.
3.
Availability. You may be able to locate the world's leading authority on
“idiopathic mesothelioma” or “micro-architecture of the alveolus,” but if that individual is
too busy teaching, conducting research and scratching himself, he will not make a good
expert witness for you.
4.
Personality. Note found in a fortune cookie, “Arrogance diminishes wisdom.”
Who cares how smart an expert is if no one can stand to listen to him — and learn from him?
The best expert witnesses are part detective, part teacher, and part interpreter. The expert
needs the instinct and intuition of Boston Blackie or Sherlock Holmes to ferret out the
strengths and weaknesses in the science that controls the outcome of trial. Great experts are
gifted teachers, patient, understanding, and accessible. The witness needs to teach the jurors
— not pontificate — because they are likely to ignore his opinion unless they can relate to
12
him as a person and understand why he has formed it. The unsuccessful expert pompously
and condescendingly declaims that his opinions should be accepted just because he says so or
because he knows what he is talking about and the jurors could never keep up intellectually.
Good experts, on the other hand, simplify and interpret complex concepts into common sense
principles. Scientific and technical vocabulary constantly has to be translated into language
the jurors understand. By explaining the methodology of his investigation in a way that
captures the jurors' interest, the expert can succeed in getting the jurors to accept his
conclusions.
5.
Income Expectations. In developing a new expert, it is critical that you and
the witness have a clear understanding of the income expectations of the consultation. The
rate and frequency of payment needs to be clearly enunciated. The source of payment, by the
lawyer, by a third party, etc., needs to be presented and accepted. The ethics of contingent or
premium billing depending on a successful outcome needs to be addressed. Finally, just as
the lawyer needs a realistic budget in line with the damages sought in the litigation, so too the
expert must realize he or she does not have carte blanche in reviewing documents,
performing literature searches, writing reports and the like. In the rare case, where such
budgets are not a factor, the expert needs to understand that thoroughness is not only
acceptable but expected.
6.
Receptive to Criticism. The new expert, particularly in the long-running
history of asbestos litigation, probably is inexperienced in the art of testifying at deposition
and trial. While the trial lawyer may be largely unschooled in the technical knowledge and
experience in the chosen field of the, the lawyer is an important link to having the views of
13
the expert be well received by the trier of fact. The confident bearing of the expert should
not be permitted to get in the way of constructive criticism on how successful courtroom
presentations are delivered and how common courtroom pratfalls are avoided. Practice
sessions or mock examinations, whether or not on videotape for replay, need to be
considered. This aspect of developing the new expert is related to his personality, interest
and availability. As usual, the lawyer's case budget and income expectations of the expert
are closely intertwined.
"Due Diligence"
Each time an expert is retained for a matter in litigation, the trial lawyer needs to do
or redo a background check on the expert. Among the factors to be actively investigated and
updated are:
1.
Prior Litigation Experience.
For the plaintiff
For the defendant
For the court
2.
Depositions and Trial Appearances.
Read all the transcripts carefully.
3.
Publications. Read and force yourself to understand the expert’s articles and
drafts of papers received for publication.
4.
Lectures. Were they recorded? To what audience? Is he in the mainstream or
out in left field?
14
5.
Examine the CV Under a Microscope. Are there gaps in the chronology of
employment, education, etc.? Have the degrees and certifications been
verified by the issuing institutions?
6.
Personal Life. Has your expert forgotten to mention that he has been indicted
in a hit and run accident (don't laugh -- this is an actual case.)? Has he failed
to pay his taxes, been held in contempt, driven his Escalade into a tree? Have
you forgotten to ask, "Now, doctor, is there anything going on in your
personal/domestic/financial life that would cause either of us embarrassment
if it comes out at trial?"
Expert Etiquette
Expert witnesses are people too. Frequently, the trial lawyer needs the expert witness
to go the extra mile, to juggle the all too busy schedule, to cool his or her heels on a bench
outside the courtroom. Treating the expert witness with consideration and respect throughout
the engagement is crucial. Some factors to consider from the perspective of the expert
witness are:
1.
It is his Livelihood. While working on your case may not be the only thing on
the expert's schedule, it does distract him from everything else in his professional and
personal life. The lawyer must not squander his meager supply of good will by setting
unrealistic deadlines or crying wolf over false emergencies. Be flexible.
2.
Time is a Commodity. For most expert witnesses the value of services
provided is directly proportional to the time spent delivering them. If you need to make a
preliminary appointment to interview the expert for potential use in your case, be prepared to
15
compensate him for the time spent. Be prepared to schedule an appointment of a predesignated length with the expert's staff. Be prepared to compensate the expert for all of the
time spent developing the case, including the time spent in portal-to-portal travel, travel
expenses, time waiting before depositions and trial appearances.
3.
Have an Early Warning System. Develop communication with the expert
witness to alert him or her as far in advance as possible to the deadlines for providing the
expert report, for sitting at the expert's deposition and for his use at trial. Obviously,
accommodating the schedule of the expert on all of these events is a priority, but when such
flexibility is curtailed by the dictates of the court or other factors, the expert needs to be
advised well in advance so that appropriate arrangements in his or her schedule can be made.
Nothing can be worse for the trial lawyer than to have developed the expert, worked
assiduously to provide facts supporting the winning opinion and on the day of presentation of
the expert to the jury, learn that the expert has an unavoidable conflict.
While it is no substitute for a personal appearance, the option of videotaping the trial
presentation by a busy expert should be evaluated in every case.
4.
Communication Skills: Yours, Not the Expert's. You must learn to speak as
clearly to the expert as you hope the expert will speak to the jury. The trial lawyer cannot be
too busy to spend the time with the expert that the expert requires to develop his opinions.
The expert will not wish to be shunted off to your uninformed and ill-prepared underling. If
you want to enjoy the fruits of a dynamic expert appearance at your trial, you must invest
your own time and effort in providing the expert with personal access and an unvarnished
assessment of the facts and expectations of the case.
16
5.
Garbage In/Garbage Out. If you cannot deliver to your expert complete and
accurate facts, you are building certain disaster into your case. An effective crossexamination always will be to undermine the expert's opinion which is based on erroneous
facts. Therefore, great care must be made to provide the expert with all the documentation
and all the factual support in the form of prior testimony that the expert needs not only to
reach his own conclusions and opinions. Be sure the pathology slides in Mr. Jones' case do
not really belong to Mrs. Smith. Also complete access to facts, helpful and harmful, is
needed to fend off a vigorous cross-examination by opposing counsel. It is pennywise and
pound foolish to scrimp on photocopying materials from the file for review by your expert.
6.
Listen to your Expert. The expert knows vastly more about his subject matter
than you do. If you are to translate the opinions to the jurors in your opening statements,
closing arguments and examinations of the witnesses, you need to be educated by the expert.
Just because this expert is working with you on your twentieth trial in the same general
subject matter, does not mean that there is nothing new for you to learn.
7.
Avoid Monetary Distractions. The expert usually understands that he is being
hired by the lawyer, not by the client. He looks to the lawyer for prompt payment of his fees.
He is no more interested in waiting endlessly for his invoices to be satisfied than you yourself
would be. It is easy to destroy the interest and availability of your expert by distracting him
from the task at hand with worry over receiving compensation. Take care to explain when an
opposing party is responsible for payment of the expert's fee. The expert needs to understand
that his fee needs to be "reasonable," in order to avoid problems with payment by the
opposition. See, e.g., Md. Rule 2-402(e)(3). Under the theory of what goes around comes
17
around, you should be diligent in processing the invoices of opposing expert witnesses when
it is your obligation to pay.
8.
Follow the Golden Rule. Again under the theory of what goes around comes
around, one must be civil, polite and respectful to the opponent’s expert. This is so, whatever
one’s personal opinion of the bona or mala fides of the opposing expert, however often one
sees the same expert in the litigation, however much money the expert has earned, and
regardless of how effective he has been against your client.
3.
Use Of Experts As Consultants And/Or Witnesses
Once the identification of experts is accomplished, the role of the expert as either
consultant, or witness, or both needs to be addressed. Some experts never occupy the witness
box, whether because their consultations go to the process and not to the facts of the dispute,
such as jury consultants, or because their opinions militate against continuing the dispute.
Not every expert retained will fulfill the traditional functions of a witness.
Expert as Consultant (Only)
The law acknowledges and protects the necessity of the trial lawyer to explore the
positive and negative aspects of the case without the attention and perhaps interference of the
adversary. Maryland Rule 2-402 defines the scope of discovery. While that scope is broad,
it is not without limitation. Privileged communications, including between attorney and
expert, enjoy protection from disclosure. Maryland Rule 2-402(a) places restrictions upon
the reach of discovery, " . . . if the matter sought is relevant to the subject matter involved in
the action, whether it relates to the claim or defense of the party seeking discovery or to the
18
claim or defense of any other party." (Emphasis added.) With respect to experts consulted
for the process, as with jury consultants, the subject matter of that consultation is not relevant
to the facts in dispute and therefore beyond the scope of inquiry.
Nearly Full Protection from Disclosure
The trial lawyer who consults with an expert not expected to be called at trial
concerning items relevant to the subject matter involved in the action has no absolute
guaranty of nondisclosure of those communications under any circumstances. Maryland
Rule 2-402(e)(2) provides:
"When an expert has been retained by a party in
anticipation of litigation or preparation for trial but is not
expected to be called as a witness at trial, discovery of the
identity, findings, and opinions of the expert may be
obtained only if (A) a showing of the kind required by
Section (c) of this rule is made; or (B) in a condemnation
proceeding, the expert at the request of the party has
examined or appraised all or part of the property sought to
be condemned for the purpose of determining its value or
has prepared a report pertaining to its value."
The demonstration of need under subsection (c) of the rule requires a showing that the
discovery is relevant to the subject matter involved in the litigation and " . . . that the party
seeking discovery has substantial need for the materials in the preparation of the case and is
unable without undue hardship to obtain the substantial equivalent of the materials by other
means."
Adding possible solace and certain confusion to the trial practitioner is that portion of
Maryland Rule 2-402(a) which absolutely protects, despite a showing of substantial need,
undue hardship and the inability to obtain the substantial equivalent of the materials sought
19
by the opposition, the mental impressions, conclusions, opinions, and legal theories of the
attorney or other representative of a party. Included among a party's representatives are
consultants, sureties, indemnitors, insurers and agents. Maryland Rule 2-402(c).
The ramifications of discovery violations can be severe. Prudence dictates that the
practitioner, in a quandary over whether nondisclosure of facts in the possession of an expert
not expected to be called at trial could be sanctionable, pursue a protective order under
Maryland Rule 2-403. The obvious risk in filing the motion for protective order is disclosing
enough clues as to the identity of the expert and opinions to be protected that the disclosure is
complete upon the filing of a motion to preclude such disclosure.
Expert as Witness (Only)
Where an expert has been consulted about the subject matter in dispute and is
expected to be called at trial, the most prudent course of action is to expect that every
communication, every writing and every fact supplied to that expert is fair game for
disclosure to the other side. Maryland Rule 2-402(e)(1) declares:
"Discovery of findings and opinions of experts,
otherwise discoverable under provisions of Section (a) of
this Rule and acquired or developed in anticipation of
litigation or for trial, may be obtained without the showing
requiring under Section (c) of this Rule only as follows:
(A) a party by interrogatories may require any other party
to identify each person whom the other party expects to call
as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, to state the
substance of the findings and the opinions to which the
expert is expected to testify, any summary of the grounds
for each opinion, and to produce any written report made
by the expert containing those findings and opinions; (B) a
party may obtain further discovery, by deposition or
otherwise, of the findings and opinions to which an expert
20
is expected to testify at trial, including any written reports
made by the expert containing those findings and
opinions."
The rules of discovery will be liberally construed to facilitate, not obfuscate,
discovery. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A.2d 768 (1961); Kelch v.
Mass Transit Admin., 287 Md. 223, 411 A.2d 449 (1980); Laws v. Thompson, 78 Md. App.
665, 554 A.2d 1264 (1989).
As with other adverse rulings regarding disclosure of discovery materials, there is no
right to an interlocutory appeal. The disputed production of discovery materials must go
forward and the trial must proceed to final judgment before the aggrieved party can obtain
appellate review on the merits of the pretrial disclosure. Alford v. Commission of Motor
Vehicles, 227 Md. 45, 175 A.2d 23 (1961); Public Service Commission v. Patuxent Valley
Conservation League, 300 Md. 200, 477 A.2d 759 (1984).
There is essentially no protection for an expert's work product where that expert is
offered as a witness at trial. Full and complete discovery of the opinions and basis for each
opinion is permitted. This extends to obtaining copies of notes, drafts, computer programs,
raw test data and the like.
Expert’s Reliance on all Underlying Facts (including hearsay)
The Maryland Rules of Evidence, as do the analogs of many other States, codify the
scope of information a jury may be permitted to hear from the expert. All facts and data
reasonably provided to and relied upon by the expert if, in the court's discretion, they are
trustworthy, necessary to illustrate testimony and not otherwise privileged, may come into
evidence. Thus, the expert witness may rely on statements of other physicians and healthcare
21
providers in medical records in determining his opinions. He may recount the statements of
the plaintiff during medical examinations. He can repeat the observations of out-of-court
declarants. Similarly, he could describe conversations with members of the plaintiff's family
concerning symptoms and effects of injury for which the opinion is offered. Where the
proponent of an expert determines not to bring to light the full factual basis for the opinions,
cross-examination would permit a deeper inquiry, at the risk of the questioner eliciting
otherwise inadmissible hearsay.
Whether to Introduce the Experts' Report into Evidence
Whether to admit the written report of a testifying expert witness is commended to
the sound discretion of the trial judge. Some courts exclude the written report, because the
expert is present to provide full testimony on direct and cross-examination, making the
introduction of the report repetitive and unnecessary. The case law in the jurisdiction where
trial is conducted needs to be researched as to the introduction of the written report as a
summary of the experts' opinions and conclusions or as a business record.
It may make more sense not to introduce into evidence the reports prepared for
purposes of litigation by a testifying expert. The jury should concentrate on the oral
presentation and the attorneys should use direct- and cross-examination to score or
underscore key points and weaknesses. Permitting a technical report to go to the jury
deliberation room creates the risk of misreading the document or overemphasizing certain
portions out of context.
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General Advice for Any Testifying Expert
Of course, your expert should be reminded of the general rules applicable to all
witnesses.
1.
Listen closely and completely understand the question being asked before
responding.
2.
Respond completely and directly but only to the question asked.
3.
Do not guess at the answer to any question. An acceptable answer can be, "I
do not know" or “I do not recall.”
4.
Do not attempt to bedazzle counsel or the jury with fancy vocabulary when
simple responses will suffice.
5.
If it is absolutely necessary to supplement or explain an answer, then do so,
but avoid volunteering information beyond the question.
6.
Never argue with opposing counsel or the trial judge.
7.
Do not try to win the case singlehandedly or out-lawyer the lawyers; experts
are assets not advocates.
8.
C.
Tell the truth.
CHALLENGING THE EXPERT AT TRIAL
This section explores methods of limiting the effectiveness of the adversary's expert
at trial. By understanding what the trial lawyer can do in this respect, he will also learn what
to expect when his adversary attempts the same strategy. Forewarned is forearmed.
Traditionally, interposing timely objections and belated motions to strike testimony
were the most used tools in controlling the flow and content of the adversary's case,
23
including expert testimony. Increasingly, battles over the content of expert testimony are
waged out of the presence of the jury, even months before commencement of trial. This will
define the evidence which the jury will consider, and may well spur early settlement or
determine the more likely outcome of trial.
1.
Motion in Limine To Exclude Expert Testimony
While frequently couched in terms of eliminating or limiting the opposing party's
evidence, the motion in limine refers to its timing, not relief sought. The Latin term, in
limine, literally is translated as, "at the threshold." Absent different instructions pursuant to a
court's discovery schedule or pre-trial rulings, the motion in limine can be made at any time
during a hearing or a trial and can be made either in writing or orally.
a.
Strategic Considerations in the Timing of the Motion in Limine
Again, subject to contrary order of court, the practitioner needs to evaluate what is to
be accomplished from the motion in limine in order to determine its most beneficial timing.
Obtaining an order eliminating the opponent's principal expert witness long before trial on
the basis, for example, that the opinions expressed do not comport with Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), may ring the death knell of the
opponent's claim or defense. The earlier such a blow is struck, usually the cheaper the
litigation costs to the client. Knocking out the opponent's expert certainly facilitates settling
the dispute on favorable terms or perhaps obtaining summary judgment or voluntary
dismissal of the action altogether.
Some courts will treat their "gatekeeper role" under Daubert proactively and will
ferret out bogus and unscientific opinion as soon as the issue is fully developed. Other courts
24
will tend to keep the ball in play longer, assigning to the lawyer the conduct of a crossexamination sufficient to apprise the jury of the lack of weight of opinion based on shaky
scientific foundations by expert witnesses. Knowing the jurist presiding over your case may
aid in the timing of the motion in limine.
A downfall obviously to an "early" motion in limine is that to present the issue fully
to the court, one of necessity tips one’s hand concerning weaknesses in the opponent's case.
Winning the battle in eliminating one expert may nevertheless result in the loss of the war, if
the opponent has sufficient time to regroup and consult with experts who "cure" the earlier
shortcoming.
On the other hand, delaying the filing of the motion in limine until too late in the
development of the case also has untoward effects. For example, deferring such a motion
until after your opponent has given the opening statement may permit a prejudicial, even if
unfulfilled, presentation to reach the jury's ears and perhaps unconsciously set up within the
court's mind the desirability of permitting cross-examination to determine the weight of
evidence, rather than ordering its outright exclusion. Electing to forego the motion in limine
and delaying a challenge to an expert witness's opinions until objection during direct
examination by the adversary or until cross-examination is dangerous and ineffective. The
objection, if overruled, of course is meaningless to stop the challenged evidence from
reaching the jury's attention. Even the sustained objection may follow a question detailed
enough to transmit the offending message to the jury. A motion to strike, by definition,
offers too little too late. The adage about not being able to unring a bell is particularly apt.
25
A timely motion in limine may also eliminate a ground for mistrial, an expensive and
wasteful happenstance for all involved. Medical Mutual v. Evans, 330 Md. 1, 266 A.2d 103
(1993).
b.
Preservation of Ruling on Motion in Limine for Appellate Review
Even though a motion in limine is fully argued and decided prior to trial or outside of
the presence of the jury, such denial is not automatically — and certainly not immediately —
reviewable on appeal. Maryland Rule 2-517 declares:
"(a) Objections to Evidence. An objection to the admission of
evidence shall be made at the time the evidence is offered
or as soon thereafter as the grounds for objection become
apparent. Otherwise, the objection is waived." (Emphasis
added)
i.
Motion Denied. Where the proponent of the motion in limine
fails to receive a favorable ruling, he must preserve the point for appellate review by
objecting "contemporaneously" with the offer of the offending evidence. Failure to object
then, ". . . or as soon thereafter as the grounds for objection become apparent," results in
waiver of the objection. Md. Rule 2-517; Collier v. Eagle-Picher Industries, Inc., 86 Md.
App. 38, 585 A.2d 256 (1991).
Obtaining from the trial court permission for a continuing objection to a line of
questions by an opposing party may preserve an issue for appellate review without the
necessity of repeated interruptions, as long as the series of questions is clearly within the
scope of the original objections. However, the continuing objection is not so broad as to
guarantee preservation of the subject of a motion in limine for appellate review where the
26
"contemporaneous objection" rule is ignored. Beghtol v. Michael, 80 Md. App. 387, 564
A.2d 82 (1989).
ii.
Motion Granted. Where a motion in limine is granted, the
proponent of the excluded evidence also needs to take additional steps to preserve the point
for appellate review. Md. Rule 2-517(c) declares in pertinent part:
"Objections to other rulings or orders. For purposes of
review . . . on appeal of any other ruling or order, it is
sufficient that a party, at the time the ruling or order is
made or sought, makes known to the court the action that
the party desires the court to take or the objection to the
action of the court. The grounds for the objection need
not be stated unless these rules expressly provide
otherwise or the court so directs."
A person on the losing side of a motion in limine ruling in civil litigation needs to
prepare a proffer of all the facts which would have been introduced, had the motion in limine
been decided otherwise. Logically, the proffer should occur at that juncture of the trial where
the evidence would have been introduced, but for the adverse ruling on the motion in limine.
As long as the proffer is made prior to the conclusion of presentation of evidence, it is
difficult to understand how an appellate court could find a waiver.
Finally, on the point of preservation of issues for appeal, the motion in limine should
be detailed and complete. Ideally, the motion should be in writing, supported by a
comprehensive legal memorandum and fleshed out with evidentiary support in the form of
affidavits and/or excerpts of relevant depositions, documents, reports and other records
obtained during discovery and copies of learned treatises and periodicals not likely to be
available to an appellate court. A full evidentiary hearing may be necessary.
27
2.
Experts on the Witness Stand
Where the motion in limine has not been successful in preventing the trier of fact
from hearing the opinions of your opponent's expert witness, and with due regard for one’s
cross-examination skills to expose the opposing expert's bias and incompetence, the trial
presented by two evenly matched litigators frequently is distilled to a battle of experts. Each
side, having done its homework, simply leaves to the jury the resolution of knotty scientific
disputes which even the eminently and equally qualified experts are unable to resolve. If
there is any weakness in the American jury system, it must relate to resolution of complex
and technical areas by lay persons, carefully screened during voir dire to eliminate anyone
with experience in the subject matter. The hapless juror is left to founder in a sea of
technical data. The personality and teaching skills of the "better" expert is the likely tiebreaker.
a.
Preliminary Cross-Examination on the Expert's Qualifications and
Competence (Voir Dire)
In the usual case the proponent of an expert, "qualifies" him or her through a
predictable and largely boring regurgitation of the expert's resume. "Where did you go to
school? Where have you worked? What subjects do you teach? What publications have you
authored? Where else have you testified?"
Thereafter, an equally predictable preliminary voir dire cross-examination as to
qualifications only is conducted by opposing counsel. "So, doctor, you are not a radiologist,
are you? So doctor, you are not a mineralogist, are you. So, doctor, you are not a . . .?"
Whereupon, the court recognizes the witness as an expert in the proffered field(s). There
may be a better way to proceed.
28
Unless the practitioner is certain the voir dire of the expert is likely to result in the
preclusion of his testimony, such rote tactics are wasted. There is no procedural requirement
that a challenge to the expert's qualifications and competence be made before opposing
counsel's seeking to have him recognized by the Court as an expert. There should be no
waiver of the opportunity for a vigorous cross-examination testing the age, expertise,
experience, financial interest and bias of the opposing expert by electing to consolidate all
attacks on the expert until cross-examination.
Out of an abundance of caution, it is prudent to inform the trial court of your
reservation of cross-examination on qualifications until the conclusion of the direct. First, it
alerts the lawyer to any odd notions of the trial court of the proper order of the examination
of an expert. Second, it telegraphs to the jurors that you are saving your ammunition and that
they should maintain their curiosity for later, when the first salvo is launched.
Following a successful "full-court press" on cross-examination, a motion to strike the
expert's evidence on his lack of qualifications may be indicated, despite the court's earlier and
as of then uncontested recognition of the expert as requested during the direct examination.
See Trimble v. State, 300 Md. 387, 478 A.2d 1143 (1984).
b.
The Art of the Direct Examination of Experts
In the battle of experts, the element most likely to be ignored is the direct examination
of your expert. This is because your expert is such an old pro that no preparation is required.
Right? Wrong!
The worst mistake for the trial attorney to make is to take his own witness for
granted. Experts need to be informed of the particular "tone" that you hope to set through the
29
expert's presentation, as well as the unique "themes" of your case in opening statement and
closing argument. These obviously vary case-by-case, making preparation for each and
every appearance important. The exchange of mental impressions and work product between
attorney and consultant is privileged and immune from disclosure during discovery. Why not
take advantage of the protection to include your expert in your trial plans.
The expert wants to help, wants you to succeed and wants to avoid embarrassment.
He needs to know what to expect from the other side, the judge and the jury. Importantly, he
needs to know exactly which part or parts of your burden of proof he is supplying. If he is to
"carry all the water," he needs to understand and prepare a one-man show. If he is to fill in
one small segment and avoid global pronouncements, he needs to understand that reduced
role too.
While this program is not specifically on trial tactics, a few allusions to the stagecraft
of direct examination are appropriate here.
1.
The trial is drama and experts are leading actors.
2.
The expert is the star performer; the attorney plays a supporting role.
3.
Preparation (rehearsal) is the key to a smooth performance for the
entire cast of characters.
4.
Know your star's strengths and weaknesses, playing to the former and
blunting the latter.
5.
Build each scene toward the denouement, by reverse-engineering the
script from the closing argument backwards to the expert's direct examination.
30
6.
Eliminate stage fright by alerting your expert well in advance of his
trial appearance of exactly when and where he will be needed, what his direct examination
will cover what his cross-examination is likely to cover and give him plenty of time (and
plenty of your attention) to hone his presentation.
7.
Theater is boring without sets, props and special effects. The expert's
dry intonation of mathematical formulae, chemical reactions, medical procedures and the like
need to be spiced up with colorful illustrations, demonstrations and reenactments. The best
teachers “demonstrate” their opinions with anything from a simple white board and markers
to sophisticated multi-media Powerpoints and computer simulations. The expert should
never simply read canned lecture notes to his “students,” the jury.
8.
Good drama zips along with the rapt audience oblivious to the passage
of time. The trial attorney is like a stage director, establishing the pace of the production.
The direct examination should be crisp, to the point, and unmistakable in its purpose.
c.
Identifying Pitfalls During the Expert's Testimony.
Experts — except in legal malpractice cases — tend not to be practicing trial lawyers.
The lawyers can enhance the credibility of their witnesses in the battle of the experts by
teaching the applicable law to them. For instance, the current hot-buttons for scientific
presentations are either the Frye or Daubert decisions. The experts need to be made to
understand the benefits of expressing their views in jargon soothing to the "gatekeeper."
Brilliant innovations in scientific method should be explained as being built upon solid
foundations of accepted principles. They should not be described as "cutting-edge," novel or
31
experimental. Similarly, in states like Maryland that still apply the Frey-Reed test, the expert
needs to understand the pertinent terminology and to phrase his evidence consistently.
Opinions based upon "reasoned estimates" and "extrapolations of data" are more
likely to be admissible than ballpark guesses and rank speculation, although the distinction is
sometimes hard to discern by the uninitiated.
Do not permit your witness' humility get in the way of his acceptance as an expert.
Occasionally, you will encounter the expert who keeps his light under a bushel. The trick
question, "Doctor, you don't consider yourself an expert in the field of radiology, do you?",
can confuse the family practitioner intending to interpret the radiograph of the compound
fracture of the plaintiff's femur. The witness might not apprehend that he does not have to be
a board certified radiologist to do that which he competently does day in and day out in his
own office.
Do not permit your expert to become flustered and defensive over the fact that he
charges for his services and drives a nice car. Most people are reticent to discuss their
income. Experts need to understand that the question of fees is coming and that the rates
charged are both reasonable given the years of education and training involved and
comparable to similarly situated peers.
Insist that your expert keep his explanations simple, especially on cross-examination.
Precision of terminology is important, but equally important is simultaneous translation. The
expert who is lured into a vocabulary bee with opposing counsel or who dazzles the readers
of the transcript at the next medical society dinner is missing the point. If the jury does not
get it, the point is lost no matter how correct.
32
In the final analysis, sound science, preparation and sincerity should win the day in a
battle of experts.
3.
Attacking Bogus Science in the Courtroom
The Frye Standard
For over seventy years the sole standard for admissibility of novel scientific evidence was
the so-called Frye Doctrine. In Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), the
court refused to admit evidence derived from a crude precursor to the polygraph machine. In
doing so, the Frye court required that "expert testimony deduced from a well-recognized
scientific principle or discovery . . . must be sufficiently established to have gained general
acceptance in the particular field in which it belongs." Id. This “general acceptance” test was the
judicial standard of admissibility of expert testimony and scientific evidence until 1993, when
the Supreme Court supplanted it with its interpretation of Federal Rule of Evidence, Rule 702.
Daubert v. Merrell Dow Pharmaceuticals Inc.,, 509 U.S. 579, 589 (1993).
States are not required to follow the Federal Rules of Evidence and many do not.
Daubert has been adopted by almost 30 States. 3 Several dozen others, however, continue to rely
on some form of the Frye standard of general acceptance when considering the admissibility of
expert or scientific evidence. 4 In addition to case law setting out the tests for admitting expert
3
The Appendix has a State-by-State compendium through 1999, published by the National Traffic Law Center
showing jurisdictions applying Daubert, Frye or a hybrid test. As with all citations, and particularly given the age of
the report, updated research is needed before citing these authorities.
4
These states include, inter alia, Alabama, S. Energy Homes Inc. v. Washington, 774 So.2d 505, 517 n.5
(Ala.2000); Arizona, Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000); California, People v. Leah, 882 P.2d 321
(Cal. 1994); Colorado, Lindsey v. People, 892 P.2d 281 (Colo. 1995); District of Columbia, Nixon v. United States,
728 A.2d 582, 588 (D.C. 1999); Florida, Flanagan v. State, 625 So.2d 827 (Fla.1993); Illinois, People v. Miller,
670 N.E.2d 721, 731 (Ill. 1996); Kansas, State v. Heath, 957 P.2d 449 (Kan. 1998); Maryland, Hutton v. State,
663 A.2d 1289 (Md.1995); Michigan, DePyper v. Navarro, 1995 WL 788828, at *34 (Mich. Cir. Ct., 1995);
33
evidence, there is a crazy-quilt of State and Federal codifications of the rules of evidence.
Maryland, for example, has enacted rules of evidence that govern the admissibility of expert
testimony that is unrelated to scientific issues. See MD. R. EVID. 5-702. A litigant attempting to
introduce scientific evidence, on the other hand, must satisfy the Frye test of general
admissibility, which was explicitly adopted by the Maryland Court of Appeals in 1978. See
Reed v. State, 283 Md. 374, 399 (1978) (holding the use of spectrograms inadmissible in
Maryland courts for failure to achieve, as of the time of the opinion, the general acceptance in
the scientific community required by the Frye test).
As mentioned, the Frye test requires a trial judge to determine whether the methodology
used has been generally accepted by the applicable scientific community. A court considering
evidence pursuant to the Frye test does not focus so much with the reliability and validity of the
scientific issues involved, as with whether the methodology for reaching the conclusions uses
generally accepted principles. This is typically shown through learned treatises and applicable
technical literature, such as peer-reviewed journal articles and the like. See, e.g., United States v.
Horn, 185 F.Supp.2d 530, 552, n.39 (D. Md. 2002).
The Daubert standard, on the other hand, requires a judge to analyze the validity,
reliability, relevance, and scope of highly-specialized matters. Daubert at 554, n.41 (“The main
difficulty with the Daubert case is that courts are ill equipped to make independent judgments on
the validity of science.”)
Minnesota, Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000); Mississippi, Gleeton v. State, 716 So.2d 1083
(Miss. 1998); New Jersey, State v. Harvey, 699 A.2d 596 (N.J. 1997); New York, People v. Wesley, 633 N.E.2d 451,
454 n.2 (N.Y.1994); Pennsylvania, Commonwealth v. Blasioli, 713 A.2d 1117 (Pa. 1998); and Washington, State v.
Copeland, 922 P.2d 1310 (Wash. 1996).
34
In practice, a scientific opinion is inadmissible pursuant to the Frye test if its validity is
disputed in the relevant scientific community, or if it is regarded as experimental or results from
a subjective judgment that merely appears objective because of sophisticated machinery
involved. Reed, 391 A.2d at 381, 385. As the Court of Appeals summarized, “as long as the
scientific community remains significantly divided, results of controversial techniques will not
be admitted.” Id. at 388.
In Keene Corp. v. Hall, 96 Md. App. 636, 626 A. 2d 997 (1993), the defense moved in
limine to bar expert opinion evidence by Dr. Gerritt Schepers on the causation of Mr. Hall’s
laryngeal cancer under the Fry/ Reed test. Plaintiff produced no evidence from the scientific
and medical fields showing that anyone besides this doctor used his bizarre technique. The trial
court nevertheless denied the motion and permitted Dr. Schepers to testify to the jury about his
use of polarized light microscopy (PLM) to visualize uncoated asbestos fibers in the biopsied
lung tissue of the plaintiff. From that “observation,” he opined, over objection, that asbestos
caused plaintiff to develop his disease. On appeal, the Court of Special Appeals reversed the
lower court, holding:
Because Dr. Schepers use of PLM to identify asbestos in
undigested human tissue was not demonstrated to be
generally accepted in the relevant scientific and medical
communities, we must reverse the judgment and remand
the case for a new trial.
Id., 96 Md. App. At 660.
That said, recent case law shows a tendency in some courts to stretch the Frye analysis to
be almost coextensive with Daubert, stopping just short enough to avoid reversing years of
precedent. In Maryland, for example, courts increasingly have focused on the reliability and
35
validity of scientific methods underlying an expert opinion, and even excluded testimony on
grounds that it was unreliable regardless of whether it was generally accepted. See Giant Food,
inc. v. Booker, 152 Md. App. 166, 183-84 (2003) (excluding expert testimony because it was not
“the product of reliable principles and methods”).
Even though the Maryland Court of Appeals maintains that the Frye standard still
governs, case law is instructing trial judges to qualify the admissibility of expert testimony so
that general acceptance in the scientific community is not the single determining factor. See
Clemons v. State, 392 Md. 339 (2006) (holding that scientific evidence is inadmissible when a
genuine controversy exists within the scientific community about the reliability and validity of
the technique in question). This and the codified rules of evidence are “hybridizing” Frye.
The holding articulated in Frye became referred to as the "general acceptance" test and
served as the majority rule in both federal and state courts for expert testimony based upon new
scientific theories. With the promulgation of the 1975 Federal Rules of Evidence, many within
the legal community questioned whether the Frye test was still in force or whether it had,
instead, been superseded by the Federal Rules. Most federal courts attempted to read the
"general acceptance" test in a manner consistent with the requirements of Rules 702 and 703.
There were, however, a few courts (most notably in the Second and Third Circuits) that held that
Frye was not compatible with the Federal Rules. These courts held that the Federal Rules
required the trial court to look at a variety of factors to determine whether the novel scientific
theory was reliable and relevant to proving causation. See generally, United States v. Williams,
583 F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S. 1117 (1979) (the court refused to apply
Frye stating that the Federal Rules of Evidence govern the admissibility of expert testimony). In
36
United States v. Downing, 753 F.2d 1224 (3rd Cir. 1985) the court held that reliability of
scientific evidence should be determined by;
(1)
the method's potential rate of error;
(2)
the existence and maintenance of standards for the method;
(3)
the care and concern with which a scientific technique has been employed, and
whether it appears to lend itself to abuse;
(4)
the relationship between the scientific technique and other types of scientific
techniques routinely admitted into evidence; and
(5)
the presence of "fail safe" characteristics.
The Daubert Standard
Over time and seemingly in lock-step with advances in science and technology,
courts steadily eroded the Frye doctrine, riddling it with clarifications and exceptions. States
supplemented the Frye holdings with codifications of the rules of evidence, including those
governing expert testimony. Seventy years after Frye, the Supreme Court of the United
States moved the inquiry beyond Frye’s mere general acceptance test in Daubert v. Merrell
Dow Pharmaceutical, 113 S.Ct. 2786 (1993).
In Daubert, the Supreme Court held that Rule 702 of the Federal Rules of Evidence
superseded Frye and the "general acceptance" test. Id. at 2786. In this case, the families of
two children who were born with deformed limbs sued Merrell Dow Pharmaceutical. Id. at
2790. They alleged that Bendectin, a drug manufactured by Merrell Dow Pharmaceutical to
treat nausea during pregnancy caused the deformities. To support their claim, the plaintiffs'
experts relied on animal studies, chemical structure analysis and "reanalysis" of previously
37
unpublished epidemiological studies. Merrell Dow's experts countered the plaintiffs' experts
with testimony concerning more than thirty epidemiological studies which concluded that
there was no statistically significant correlation between Bendectin and birth defects. Id. at
2791. The United States District Court for the Southern District of California ruled that the
plaintiffs' evidence was insufficient under the "general acceptance" test. Id. at 2792. The
U.S. Court of Appeals for the Ninth Circuit relying on precedent that embraced Frye,
affirmed the lower court's holding. Id. The Supreme Court granted certiorari, eventually
reaching the conclusion that the general acceptance of a scientific theory was no longer a
prerequisite for admissibility of expert scientific evidence.
Thus, it appeared, the common law standard had been supplanted by the more liberal
Federal Rules of Evidence. With Daubert's embrace of the Federal Rules of Evidence, the
following developments with respect to the admissibility of novel scientific evidence now
control:
(1)
The Federal Rules of Evidence do not contain a requirement that scientific
evidence be generally accepted in the field to be admissible in trial.
(2)
Federal Rule of Evidence 702 requires that trial judges ensure that an expert's
testimony is based on scientific knowledge and will assist the trier of fact.
(3)
The "scientific knowledge" requirement establishes the standard of evidentiary
reliability for expert testimony.
(4)
Under Federal Rule of Evidence 104(a), a trial judge must determine whether
the expert is proposing to testify to scientific knowledge that will assist the trier
of fact.
38
(5)
Factors to use are: Whether the scientific knowledge or theory has been subject
of peer review or publication; the known or potential error rate; and whether it
has gained general acceptance in the field. Daubert v. Merrell Dow
Pharmaceutical Inc. Introduction and Overview, Product & Safety Liability
Reporter, BNA, Vol. 21, No. 30 (1993).
For the first time in Daubert, the Supreme Court finally clarified that Rule 702, not
Frye, controlled the admission of expert testimony in the federal courts. The Supreme Court
held that when expert evidence based upon “scientific knowledge” is offered at trial, the judge,
upon proper motion by a litigant who challenges the admissibility of the testimony, should act
as a gatekeeper and first determine whether the proffered evidence is “reliable”— whether it is
evidence that can be trusted to be scientifically valid. For almost a decade after Daubert,
courts continued to address the unresolved issue whether the Daubert factors by which
reliability was to be tested should also be applied to experts offering opinion testimony that
was not based on clearly identified scientific principles, but which sprung from “technical or
other specialized knowledge.” Perhaps to establish uniformity and predictability, Federal Rule
of Evidence 702 was amended in 2000 to include:
(1)
that to be admissible, expert testimony must be adequately based upon reliable
facts or data.
(2)
that to be admissible, expert testimony must be product of reliable principles
and methods, and
(3)
that to be admissible, the expert witness must demonstrate that he has applied
the principles and methods reliably to the facts of the case.
39
Before the 2000 amendment to Rule 702 was effective, but certainly while it was wellknown and understood by the Supreme Court, it Court clarified its Daubert opinion in the case
of Kumho Tire Co. v.Carmichael, 119 S.Ct. 1167 (1999). Seeming to give advance
benediction over the proposed rule change, the Kuhmo court reiterated that trial judges
continue to be “gatekeepers,” allowing only reliable expert opinion evidence to reach a jury.
The court widened the scope of Daubert gate-keeping duties all forms of expert testimony.
With amendment of Rule 702 in 2000, the specific factors demonstrated by the
Daubert Court are:
(1)
whether the expert’s theory or technique can be challenged in some objective or
in a subjective sense, conclusory approach that cannot reasonably be assessed for
reliability;
(2)
whether the technique or theory has been subject to peer review and publication;
(3)
the known or potential rate of error of the technique or theory when applied;
(4)
the existence and maintenance of standards and controls; and
(5)
whether the technique or theory has been generally accepted in the scientific
community.
Rather than standardizing the expert evidence inquiry, Kumho unwittingly may have
made the issue more complicated. Daubert analyses now extend to all forms of expert opinion
testimony. Rather than insisting to rote adherence to these standards, Kuhmo diluted the
“standards” to “guidelines, imbuing the trial court/gatekeeper with broad discretion to fashion
flexible tests to meet the type of expertise at hand. Not all experts are scientists or physicians
40
and different means may be used to permit an assessment of the reliability of the nonscientific
expert opinion testimony. The Court specifically declared that the gate-keeping function of
trial judges applies not only to testimony based on scientific knowledge, but also to knowledge
based on technical and other specialized knowledge. Every specialty or expertise
encompassed by “other specialized knowledge” will be difficult to predict or limit.
The Daubert Court in 1993 explicitly stated that trial judge’s focus must be towards
examining the “principles and methodology, not on the conclusions they generate”. Yet, just a
few years later, the Court changed its opinion from this announced position and recognized
that “conclusions and methodology are correlated and not entirely distinct from one another.”
General Electric v. Joiner, 522 U.S. 136 (1997). The language of the new Rule 702 covers
both methodology as well as the conclusion, in that it directs a trial court to determine not only
whether the methods used by an expert and the principles upon her analysis rests have been
determined to be reliable, but also whether “the witness has applied the principles and methods
reliably” to the facts that are in controversy in the particular case.
The Reliability Factors In Daubert
The trial courts make a preliminary determination of admissibility. This job involves a
preliminary assessment of whether the evidence is relevant, competent, and material. In short,
can the evidence be properly applied to the facts in this case? This is the traditional "gate
keeping" function of courts. A number of reliability factors can enter into this and subsequent
hearings using the Daubert standard:
(1)
Has the scientific theory or technique been empirically tested?
41
(2)
Has the scientific theory or technique been subjected to peer review and
publication?
(3)
What is the known or potential error rate?
(4)
What is the expert's qualifications and stature in the scientific community?
(5)
Does the technique rely upon the special skills and equipment of one expert, or
can it be replicated by other experts elsewhere?
(6)
Can the technique and its results be explained with sufficient clarity and simplicity
so that the court and the jury can understand its plain meaning?
As discussed above, although Daubert remains the standard by which admissibility in
federal cases is measured under Federal Rule of Evidence 702, states remain free to apply Frye
and other evidentiary standards, and over two dozen States, many with substantial asbestos
dockets, currently do.
Current Trends in Expert Opinion Evidence in Asbestos Litigation
At the center of the debate over causation in asbestos litigation, particularly those cases
alleging mesothelioma, is the admissibility and sufficiency of expert testimony. The uncertainty
surrounding causation in these claims has made the need for sound expert testimony that much
more vital. Some courts permit plaintiffs’ experts to opine that every exposure to asbestos stood
alone as a substantial contributing factor to a plaintiff’s disease. Under this “single fiber” theory,
because the precise amount of exposure required to cause an individual’s disease is unknown,
even the slightest contact or those most limited in duration cannot be ruled out as a substantial
contributing factor in the asbestos-related disease.
42
In recent years, courts have begun to realize that more must be done to prevent bogus
science from influencing verdicts. Many have come to the realization that, in what is universally
conceded to be a “dose-response” illness, dose does matter. The question is not simply whether
“asbestos” in all its forms causes the response. 5 In an order dated September 24, 2008, the
Pennsylvania Court of Common Pleas in In re Asbestos Litigation, Certain Asbestos Friction
Cases Involving Chrysler LLC, No. 0001-084682, 2008 Phila. Ct. Com. Pl. LEXIS 229 (Pa. Ct.
Com. Pl. Sept. 24, 2008) precluded plaintiffs’ experts from asserting that “each and every
exposure” to asbestos was a substantial factor in causing the plaintiffs’ disease. 6
The court reasoned that the experts failed to cite generally accepted scientific
methodologies in support of their conclusions and that their reports were unsupported by
methodology and lacking consideration of the “Lohrmann” 7 substantial factor test as to the
frequency, regularity, and proximity of a plaintiff’s exposure evidence. Judge Tereshko noted
that the experts’ “claimed methodology simply [did] not exist or [was] so convoluted and
inherently contradictory so as to defy any comprehension.” Id. Moreover, he recognized the
contradictory nature of the phrase “each and every breath of asbestos is a substantial factor in
plaintiff’s disease,” id. at 49, stating that “the general population is exposed to asbestos in one
5
See, e.g., Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 226-27 (Pa. 2007) (It is not “a viable solution to indulge
in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures,
implicates a fact issue concerning substantial factor causation[.]”); Borg-Warner v. Flores, 232 S.W.3d 765, 772-74
(Tex. 2007) (Exposure to “some” respirable asbestos fibers was insufficient to establish asbestos-containing product
as a substantial cause of plaintiff’s disease.)
6
The court excluded the opinions of Drs. Eugene Mark, Jonathan Gelfand, Arthur Frank and Mr. William Longo.
7
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986.) (Where an element of plaintiff’s burden of
proof is identifying specific defendants’ products in addition to the 3-factor exposure test.)
43
form or another whether it is a background rate or a discrete exposure, some get an asbestos
related disease, some do not. Therefore, not all asbestos exposures cause disease.” Id. at 50.
The court went on to examine the shortcomings of the plaintiffs’ experts’ methods,
concluding that the experts did not employ any scientific methodology to reach their conclusion.
With regard to their purported methodologies, Judge Tereshko noted that, “within this maze, no
recognizable methodology was found . . . The mere mention of methodologies . . . without a
detailed explanation of how [they] were used in arriving at certain conclusions, produces
scientifically incoherent opinions based upon scientifically incoherent methodologies and such
are not generally accepted in the relevant scientific community.” Id. at 102-03.
Judge Tereshko’s order solidified earlier Pennsylvania decisions. In Vogelsberger v.
Owens-Illinois, Inc., 2006 WL 2404008, at *13 (Pa. Ct. Com. Pl. Aug. 17, 2006), the court,
applying Frye, precluded plaintiffs’ experts 8 from opining that each and every exposure to
asbestos was a substantial contributing factor in the development of the plaintiffs’ asbestos
related disease. The court held that “there is no medical authority or generally accepted
methodology that would support the conclusion that . . . ‘each and every exposure’ substantially
contributed to a particular plaintiff’s disease.” 1d., at *13. Reasoning that the “each and every
exposure” theory was, at most, a “best guess” approach not suitable for courtroom testimony, the
court enunciated:
In the end, my decision ultimately rests upon whether the
plaintiffs’ experts’ opinions were based upon methodologies
utilizing discrete and specific scientific principles logically applied
in a manner that can be affirmatively articulated, referenced,
reviewed, and tested, and empirically verified or whether the
testimony was based upon the “best estimate,” the “gut instinct,” or
8
The testimony of Drs. John Maddox and David Lemen were excluded.
44
the “educated guess” of the experts. Thorough review of the
transcripts and the various authorities relied upon by the plaintiffs’
experts’ foundational opinions are based upon the latter rather than
the former.
Id. at *2.
The court rejected the “each and every exposure” theory, in part, because it is
inconsistent with the fact that background exposures and ambient concentrations of asbestos do
not cause disease. The court asserted that plaintiffs’ experts have to identify a relevant, causative
dose above the ambient concentrations in the air:
No one, including the plaintiffs’ experts, proffers an opinion that
this level of exposure creates an increased risk of the development
of any asbestos-related disease. Accordingly, this background or
ambient exposure is simply not sufficient to allow experts to
causally attribute asbestos-related disease to it.
Everyone,
including the plaintiffs’ experts, agrees that something greater is
required. The argument in this Frye challenge, in part, revolves
around the questions of how much greater quantity of exposure is
necessary to permit the causal attribution of an asbestos-related
disease to a particular asbestos exposure.
Id. at *3. Likewise, in Summers v. CertainTeed Corp., 9 the Superior Court of Pennsylvania
made the following analogy:
[S]uppose an expert said that if one took a bucket of water and
dumped it in the ocean, that was a “substantial contributing factor”
to the size of the ocean. Dr. Gelfand’s statement saying every
breath is a “substantial contribution factor” is not accurate.
886 A.2d 240, 244 (Pa. Super. 2005). The court went on to point out:
If someone walks past a mechanic changing brakes, he or she is
exposed to asbestos. If the person worked for thirty years at an
asbestos factory making lagging, it can hardly be said that the one
whiff of the asbestos from the brakes is a “substantial” factor in
causing the disease.
9
In Summers, the court excluded the opinion of Dr. Jonathan Gelfand.
45
Id.
In Gregg v. V-J Auto Parts, Inc., 943 A.2d 216 (Pa. 2007), the court recognized:
[O]ne of the difficulties courts face in the mass tort cases arises on
account of a willingness on the part of some experts to offer
opinions that are not fairly grounded in a reasonable belief
concerning the underlying facts and/or opinions that are not
couched within accepted scientific methodology.
Id. at 226. See also Basile v. Am. Honda Motor Co., No. 11484 CD 2005 at 11 (Pa. Ct. Com. Pl.
Feb. 22, 2007) (excluding the testimony of Dr. Maddox based on the fact that his opinion offered
“no methodology to support a ‘single fiber’ opinion, much less general acceptance of any such
methodology.”)
Courts in other jurisdictions also have tossed the testimony of experts trying to sell this
unsupported causation theory. A trial court in Washington granted defendant’s motion in limine
to disallow several of plaintiffs’ experts from testifying that each and every exposure was a
substantial cause of the plaintiff’s disease. 10 In reaching its conclusion, the court in Free v.
Ametek, No. 07-2-04091-9-SEA (Wash. King County Super. Ct. Feb. 29, 2008), stated:
Conventional wisdom is that there is no safe level of exposure to
asbestos. A more accurate statement of conventional wisdom,
however, would be that there is no known safe level of exposure,
just as there is no known threshold level for causation of asbestosrelated disease. Dr. Hammar’s hypothesis, therefore, is not
supported by replicable, scientific methodology. While it may be
assumed to be accurate and sufficient for purposes of connecting
asbestos exposure to mesothelioma in general, the assumption that
every exposure to asbestos over a life’s work history, even every
exposure greater than 0.1 [fiber years], is a substantial factor
contributing to development of an asbestos related disease, is not a
scientifically proved proposition that is generally accepted in the
10
The court excluded the opinions of Drs. Carl Brodkin and Samuel Hammar.
46
field of epidemiology, pulmonary pathology, or any other field
relevant to this case.
There is no known threshold; there is no known level of exposure.
That does not mean none exists; it simply means modern science
has not and cannot, with current scientific expertise or relying on
existing studies, determine what that level of exposure is.
Dr. Hammar may not testify that any exposure at the level of 0.1
[fiber years] or less is a substantial contributing factor to the
development of mesothelioma.
Id., at 3-4; see also Anderson v. Asbestos Corp., Ltd., No. 05-2-04551-5 SEA (Wash. King
County Super. Oct. 31, 2006) (Transcript of Bench Ruling, at 144-45).
Dr. Samuel Hammar was also stopped from testifying on this point, where he “posited
that all asbestos fibers caused mesothelioma because all asbestos fibers have the ability to cause
cancer-inducing mutations in cells and it is not possible to pinpoint which particular fibers
actually caused the mutations.” Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304, 320 (Tex.
App.-Hous. 2007). In rejecting Dr. Hammar’s position, the court held that Dr. Hammar “failed
to show . . . that the ‘any exposure theory’ is generally accepted in the scientific community—
that any exposure to a product that contains asbestos results in a statistically significant increase
in the risk of developing mesothelioma.” Id. at 321. The court further articulated:
Each of the experts acknowledged at trial that mesothelioma, like
asbestosis, is dose responsive — some non de minimis
occupational exposure must occur to increase one’s risk of
developing the disease. Although the lay testimony presented at
trial is sufficient to show that [Plaintiff] worked in close proximity
to Georgia-Pacific joint compound so as to be exposed to enough
of its asbestos to increase his risk of developing mesothelioma.
The record does not contain any quantitative estimate of
[Plaintiff’s] exposure to Georgia-Pacific’s joint compound[.]
47
The Stephens court relied on the reasoning set forth in Borg-Warner Corp. v. Flores,
232 S.W.3d 765 (Tex. 2007), in which the Texas Supreme Court held that the lower court erred
in finding, “if there is sufficient evidence that the defendant supplied any of the asbestos to
which the plaintiff was exposed, then the plaintiff has met the burden of proof.” Id. at 774 (Tex.
2007). 11 In rejecting the notion that “some” exposure from a defendant’s product was sufficient
to meet the plaintiff’s burden, the court announced:
It is not adequate simply to establish that “some” exposure
occurred. Because most chemically induced adverse health effects
clearly demonstrate “thresholds,” there must be reasonable
evidence that the exposure was of sufficient magnitude to exceed
the threshold before a likelihood of “causation” can be inferred.
Id. (omitting citations). See also In re Asbestos, No. 2004-3,964 at 3 (Tex. Dist. Ct. Jul. 18,
2007) (Letter Ruling) (stating that the “one fiber” theory “confuses the difference between a
potential cause and a substantial cause, and encourages speculation on how little exposure, and
how infrequently the exposure must take place before causation can be said to have been
proven.”); In re Asbestos, No. 2004-03964 at 4 (Tex. Dist. Ct., 11th Dist., Harris Country
Jan. 20, 2004) (Letter Ruling) (excluding Dr. Eugene Mark as a witness because “while it is true
that any exposure to an asbestos product increases the risk of mesothelioma or some other
asbestos disease, the extent to which any type of asbestos does so is not measurable nor is it
scientifically verifiable”).
In state court in Mississippi and in federal court in Ohio, judges also have rejected the
notion that any exposure to asbestos could be considered a substantial factor in causing an
asbestos-related disease. In Brooks v. Stone Architecture, 934 So.2d 350, 354 (Miss. Ct. App.
11
Plaintiff’s insufficient evidence included the testimony of Dinah Bukowski and Barry Castleman.
48
2006), the Court of Appeals of Mississippi rejected the opinion of Dr. Gaeton Lorino who
asserted that mesothelioma is not a dose-related disease. In rendering its decision, the court
stated that the doctor’s opinion lacked “the necessary factual foundation required to reach that
conclusion.” In addition, the court made it clear that:
[C]ourts are not required to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert,
because self-proclaimed accuracy by an expert is an insufficient
measure of reliability.
Id. (Internal quotations omitted). In Bartel v. John Crane Inc., Judge Polster for the United
States District Court for the Northern District of Ohio held:
It is not sufficient to assert, as did Plaintiff’s expert Dr. Frank, that
even one asbestos fiber that got into [Plaintiff’s] lungs could have
caused his mesothelioma, and that there is, therefore, no medically
safe level of asbestos exposure. This is a strict liability standard,
which the law does not impose upon manufacturers of products
containing asbestos. This argument would completely obviate the
“substantial factor” and the “proximate cause” standards, which
Sixth Circuit case law directs me to apply.
316 F.Supp.2d 603, 605 (N.D. Ohio 2004), aff’d Lindstrom v. A-C Prod. Liab. Trust, 424
F.3d 488 (6th Cir. 2005).
With thousands of asbestos cases still pending in dozens of busy state courts, and with
Judge Eduardo C. Robrẽno vowing to clear out the logjam of cases in MDL 875, by returning
viable cases that cannot be settled to the transferor courts, controlling how expert opinion
evidence will be handled at trial is as important as ever. Reason and reliability are the gold
standards for judges handling asbestos dockets, so the trends in guarding the gates to keep
junk science from reaching the jurors needs to continue.
49
APPENDIX
STATE STANDARDS FOR
ADMITTING SCIENTIFIC EVIDENCE
The following chart indicates the standard by which each state admits scientific testimony into
evidence, either Frye, the FRE or some other standard. The first column of the chart lists the
states and the District of Columbia. The next two columns separate those states into two
categories: those that have adopted the opinion of the U.S. Supreme Court in Daubert and those
states that follow the Frye standard (in some instances the decision preceded Daubert and its
continued validity may be open to question).
Each of those columns is separated further into two more columns. Under the "Follow FRE"
column, an "X" under "Adopted FRE" means that the state has adopted an evidence code exactly
like or similar to the Federal Rules of Evidence and follows the rationale of the Daubert Court
by abandoning the Frye standard. An "X" under "Did not adopt FRE" means that although the
state does not have an FRE-type evidence code, it follows the Daubert rationale anyway, unless
otherwise noted.
Under the "Follow Frye" column, an "X" under "Adopted FRE" means that although the state
has adopted an FRE-type evidence code, it continues to adhere to the Frye standard despite the
Daubert ruling. An "X" under the "Did not adopt FRE" indicates the state has not adopted a
FRE-type evidence code and continues to follow Frye.
The last column gives the case name and cite of the seminal case in that state dealing with the
admissibility standard for scientific evidence. You will notice that many of the states that have
adopted FRE-type evidence codes but continue to follow Frye have cases that may pre-date
Daubert. Unless otherwise noted, the case cited is the last case in the jurisdiction to address the
admissibility of scientific evidence. Until a state court renders a decision either expressly
rejection or adopting the Daubert rationale, it is assumed that the Frye standard remains the
scientific standard in that jurisdiction.
STATE
FOLLOW FRE or
Daubert rationale
FOLLOW FRYE
Adopted
FRE
Adopted
FRE
Did not
adopt
FRE
ALABAMA
ALASKA
X
X
CASE
Did not
adopt FRE
Ex Parte Perry, 586 So.2d
242 (Ala. 1991)
State v. Coon, 1999 Alas.
Lexis 28 (March 5,
1999).
A-1
STATE
FOLLOW FRE or
Daubert rationale
FOLLOW FRYE
ARIZONA
ARKANSAS
X
State v. Prater, 820
S.W.2d 429 (Ark. 1991)
CALIFORNIA
X
COLORADO
DELAWARE
X
People v. Kelly, 549 P.2d
1240 (Cal. 1976); and see
People v. Leahy, 882
P.2d 321 (Cal. 1994)
(expressly rejecting
Daubert)
Fishback v. People, 851
P.2d 884 (Colo. 1993);
and see Lindsey v.
People, 892 P.2d 281
(Colo. 1995) (expressly
rejecting Daubert)
X
State v. Porter, 698 A.2d
739 (Conn. 1997)
X
State v. Pennell, 584 A.2d
513 (Del. Super. Ct.
1989)
DISTRICT OF
COLUMBIA
X
FLORIDA
GEORGIA
State v. Bible, 858 P.2d
1152 (Ariz. 1993); and
see State v. Johnson, 922
P.2d 294 (Ariz. 1996)
Daubert)
X
CONNECTICUT
CASE
X
X
Jones v. United States,
548 A.2d 35 (D.C. App.
1988)
Flanagan v. State, 625
So.2d 827 (Fla. 1993);
See Hadden v. State, 690
So. 2d 573 (1997)
Daubert)
Harper v. State, 292
S.E.2d 389 (Ga. 1982)
HAWAII
X
A-2
State v. Montalbo, 828
P.2d 1274 (Hawaii 1992)
STATE
IDAHO
FOLLOW FRE or
Daubert rationale
FOLLOW FRYE
X
CASE
State v. Crea, 806 P.2d
445 (Idaho 1991)
ILLINOIS
X
People v. Baynes, 430
N.E.2d 1070 (Ill. 1981)
INDIANA
X
Steward v. State, 652
N.E.2d 490 (Ind. 1995)
IOWA
X
State v. Hall, 297 N.W.2d
80 (Iowa 1980)
KANSAS
X
Smith v. Deppish, 807
P.2d 144 (Kan. 1991)
KENTUCKY
X
Cecil v. Commonwealth,
888 S.W.2d 669 (Ky.
1994)
LOUISIANA
X
State v. Foret, 628 So.2d
1116 (La. 1993)
MAINE
X
State v. Williams, 388
A.2d 500 (Me. 1978)
MARYLAND
MASSACHUSETTS
X
X
Reed v. State, 391 A.2d
364 (Md. 1978); and see
Hutton v. State, 663 A.2d
1289 (Md. 1995)
(expressly keeping Frye)
Commonwealth v.
Lanigan, 641 N.E.2d
1342 (Mass. 1994)
MICHIGAN
X
People v. Young, 340
N.W.2d 805 (Mich. 1983)
MINNESOTA
X
State v. Jobe, 486
N.W.2d 407 (Minn.
1992)
MISSISSIPPI
X
Polk v. State, 612 So.2d
381 (Miss. 1991)
MISSOURI
X
State v. Davis, 814
S.W.2d 593 (Mo. banc.
1991)
MONTANA
X
State v. Clark, 762 P.2d
853 (Mont. 1988)
A-3
STATE
FOLLOW FRE or
Daubert rationale
FOLLOW FRYE
NEBRASKA
NEVADA
X
CASE
State v. Reynolds, 457
N.W.2d 405 (Neb. 1990);
and see State v. Carter,
524 N.W.2d 763 (Neb.
1994) (expressly keeping
Frye)
X
Santillanes v. State, 765
P.2d 1147 (Nev. 1988)
NEW HAMPSHIRE
X
State v. Vandebogart, 616
A.2d 483 (N.H. 1992)
NEW JERSEY
X
State v. Spann, 617 A.2d
247 (N.J. 1993)
NEW MEXICO
X
State v. Alberico, 861
P.2d 192 (N.M. 1993)
NEW YORK
NORTH
CAROLINA
X
X
People v. Hughes, 453
N.E.2d 484 (N.Y. 1983)
State v. Pennington, 393
S.E.2d 847 (N.C. 1990)
NORTH DAKOTA
X
State v. Brown, 337
N.W.2d 138 (N.D. 1983)
OHIO
X
State v. Williams, 446
N.E.2d 444 (Ohio 1983)
OKLAHOMA
X
Taylor v. State, 889 P.2d
319 (Okla. Crim. App.
1995)
OREGON
X
State v. Brown, 687 P.2d
751 (Or. 1984)
PENNSYLVANIA
X
Commonwealth v. Zook,
615 A.2d 1 (Pa. 1992)
RHODE ISLAND
X
State v. Wheeler, 496
A.2d 1382 (R.I. 1985)
SOUTH
CAROLINA
X
State v. Ford, 392 S.E.2d
781 (S.C. 1990)
SOUTH DAKOTA
X
State v. Hofer, 512
N.W.2d 482 (S.D. 1994)
TENNESSEE
X
A-4
See Comments to Tenn.
STATE
FOLLOW FRE or
Daubert rationale
FOLLOW FRYE
CASE
Evid. Rule 702 (stating
that the Rule is consistent
with Frye); State v.
Johnson, 717 S.W.2d 298
(Tenn. Crim. App. 1989)
TEXAS
X
Kelly v. State, 824
S.W.2d 568 (Tex. Crim.
App. 1992)
UTAH
X
State v. Crosby, 927 P.2d
638 (Utah 1996)
VERMONT
X
State v. Brooks, 643 A.2d
226 (Vt. 1993)
VIRGINIA
X
O’Dell v.
Commonwealth, 364
S.E.2d 491 (Va. 1988)
WASHINGTON
X
State v. Martin, 684 P.2d
651 (Wash. 1984); See
State v. Copeland, 922
P.2d 1304 (Wash. 1996)
Daubert)
WEST VIRGINIA
X
State v. Woodall, 385
S.E.2d 253 (W.Va. 1989)
WISCONSIN
X
State v. Walstad, 351
N.W.2d 469 (Wis. 1984)
WYOMING
X
Rivera v. State, 840 P.2d
933 (Wyo. 1992)
TOTALS
26
3
17
5
For future updates, please contact the National Traffic Law Center, 99 Canal Center Plaza,
Suite 510,
Alexandria, Virginia, 22314, Phone:(703) 549-4253, Fax: 703-836-3195.
Last update: 3/17/99
A-5
TRIAL AND
SETTLEMENT
A Defense Perspective
FRANK D. POND
POND NORTH LLP
Los Angeles, San Francisco, Suburban Boston and Providence
QUESTIONS TO
CONSIDER GENERALLY
How do I get trial experience?
 What should I do to be ready for trial?
 Do exhibits Matter?
 How about Witnesses?
 How about Jury Instructions and the
Verdict Form?
 What is going to be my Opponent’s
Story?

QUESTIONS:
SETTLEMENT






Should I settle the case?
If so, how do I get the best settlement?
How are damages calculated?
Are they, or any portion, joint and
several?
How about set-offs for prior settlements
and/or comparative fault?
Who am I settling with?
QUESTIONS: JURY
SELECTION






How should I focus my trial “style?”
How best to pick a jury?
Should I use a Jury Consultant?
How much should I try to pre-condition the
jury?
Am I trying to make the jury like me or am I
pushing their buttons?
What are the practicalities I should be
concerned with?
QUESTIONS: OPENING
How detailed should my Opening be?
 Powerpoint or Demonstratives?
 When should I start my Closing
Argument?
 How should I focus my trial “style?”
 How best to pick a jury?
 Should I use a Jury Consultant?

QUESTIONS: Trial
What is the best way to present my
trial?
 Should I be difficult with my Opponent
about Witness order etc.?
 Should I order Daily Transcripts?
 Who handles paying the Court Fees?
 Should I have a Second Chair?
 Are there books I should rely on?

QUESTIONS: TRIAL
Should I have lots of Expert
Witnesses or Few?
 How much should I rely on Facts as
Opposed to Science and Medicine?
 What do I need to know about
Science and Medicine?
 How do I comport myself with
witnesses?

QUESTIONS: CLOSING
When should I begin drafting it?
 How detailed should my closing be?
 Should I use powerpoint or
demonstratives?
 Should I discuss Jury Instructions?
 How about Damages?
 Comparative Fault—who’s burden?

QUESTIONS: JURY
DELIBERATION AND AFTER
Should I wait around at the
courthouse?
 What about jury questions?
 Should I report regularly even though
little is happening?
 Should I ask to have the jury polled?
 Should I talk to jurors after the
verdict?

TRIAL 101: THE BASICS
Avoid Hubris
 Treat Jurors with Respect for their
Intelligence
 Treat your Opponent with Respect
 Common Sense is your Best Friend
 Don’t take the Bait
 Controlling Emotions

Don’t be in it to Prove Yourself
 Don’t overcomplicate the Facts
 Don’t get mad unless you mean to
 Focus on facts
 Contradictions and common sense
are your best friends
 Never put yourself ahead of your
Client

Be upfront about the Plaintiff’s
Disease
 Pay close attention to the Jury
 Proper deference to Judge and
Opposing Counsel and Witnesses
 Don’t ever take your eye off of
Settlement
 Report, Report, Report

DON’T FORGET
SETTLEMENT OPTION
A good settlement sometimes comes
at the most surprising of moments—
don’t miss the moment
 Importance of trial credibility—lawyer
and Client
 Both sides feel a little bit bad or the
true win/win
 There are no “one-off” settlements in
asbestos

SETTLEMENT:
QUESTIONS
What is the downside risk dollar-wise?
 What are the real chances of a win?
 How is “win” defined?
 What is path to “best case likely
verdict?”
 Is there a benefit to simply starting
trial? Is there a detriment?
 How will a “good loss” be viewed?

SETTLEMENT BASICS:
Damages
Economic v. Non-Economic damages
 Settlement Set-offs
 Comparative Fault
 Likely best and worst cases
 Rules of law to keep in mind
 Choice of law

SETTLEMENT BASICS: Past
is prologue and Future Matters
Historical Settlements
 Overall or with Plaintiffs’ Counsel
 Change in Strategy
 Other cases pending?
 How will the deal be viewed and will it
“bite you?”

SETTLEMENT BASICS:
Leverage
Relationships matter
 Do you get help from the Court?
 Grouping of Cases or Multiple Case
Settlements?
Medicare Conundrum
Myth of National Counsel

YOU CAN’T WIN WITHOUT
A GOOD JURY
Path to winning starts with jury
selection
 Jury Consultants?
 Push the Panel
 Endear yourself?
 Jury Questionnaire?
 Pre-Conditioning

JURY SELECTION
Don’t make assumptions or profile
 Multiple Defendants
 Science, Medicine and Experts
 Corporations: new Supreme Court
ruling on Personhood
 Objections, Levity, Seriousness and
Presentation
 Unique Facts

THE OPENING
STATEMENT
Humanize the Company
 Case is Serious and Plaintiff didn’t
deserve to get sick—say it and mean
it
 The context of History—Make State of
the Art Come Alive
 FACTS Matter—Focus the Jury
 Science and Medicine 101 and not 2.0

THE OPENING
STATEMENT
Don’t overshare
 Embed your themes and talking points
 Repeat
 Don’t bore the Jury or make them
mad (at you)
 When to go/What order?
 Never waive

TRIAL: SHORT IS SWEET
More is not better
 You aren’t Perry Mason
 Gotcha Moments happen on TV
 Impeachment
 Expert Impeachment and Questioning
 Don’t oversell
 Always remain in Control and Respect
Judge, Jury, Counsel and Witnesses

TRIAL: Common-Sense
Matters
Technology in its right place
 Limit Exhibits
 Limit Witnesses
 Don’t go off path but LISTEN
 Work with Opposing Counsel where
you can and be reasoned and
reasonable
 Jury Instructions, Verdict Form

The Trial: Doesn’t End at
4:30 pm






Summarize the Day (for yourself) for
your Client
Make a list of your accomplishments
Compare the list to your promises and
deal with problems
Check on your witness availability (daily)
Work on Your Closing
Ask Yourself: Can I shorten the Trial?
CLOSING SHOULD WRITE
ITSELF BUT YOU NEED TO
EDIT IT
Powerpoint or demonstratives?
 Kept your promises or explain why not
 Remind the Jury of Opening
 Follow Opening Order
 Point out Weakness in Plaintiff case
 Don’t blame the Plaintiff
 Show Fairness in Process

CLOSING ARGUMENT








Focus the jury on the upcoming deliberation
Discuss certain jury instructions
Discuss burden of proof
Discuss damages?
Discuss comparative fault
Focus on the Verdict Form
Summarize the Summary
Keep a poker face
DELIVER US FROM
DELIBERATIONS
Do you hang out and wait?
 How do you handle questions and
readback?
 Do you talk to your Opponent?
 See and Be Seen
 Polling the Jury
 Talking to the Jury
 Be humble when you Win

TRIAL AND SETTLEMENT: A DEFENSE PRIMER
Frank D. Pond
Pond North LLP
350 S. Grand Avenue
Suite 3300
Los Angeles, California 90071
213-617-6170
[email protected]
Offices in Los Angeles, San Francisco, South Shore Boston, Providence, RI
For most lawyers, trials are the best part of practicing law. Unfortunately, trial
work seems to happen far less often than advertised through television shows, movies or
even in law school. Trial work seems to be narrowing in that the risks of a verdict often
outweigh the desire of the litigants to go to verdict. In the asbestos arena, however, trials
still happen and they happen more often than in most areas of litigation practice.
Several questions need go into the decision of whether and how to try a case.
How does one get trial experience? What can one do to qualify oneself for trial? As trial
nears, what should the defense lawyer do to prepare herself for trial? What about
settlement? A lawyer may want to try a case but that call ultimately belongs to the party
not the lawyer. What style should the trial lawyer follow? Should he mimic more senior
trial lawyers he has seen? Should she follow a script? How about hiring a Jury
consultant and expert witnesses? How detailed should an Opening Statement be and how
should it be presented? When does one actually draft Closing Argument? What does a
lawyer do if he doesn’t know the science and medicine as well as the experts? Are there
books a lawyer should read?
These are all legitimate questions and ultimately this paper focuses on the reality
of the final preparation and trial of an asbestos case from the defense perspective. Of
course, the ideas and suggestions are those of this author and may not work for the reader
because the first and foremost rule of trying cases is “BE YOURSELF.” Once one
masters that, the road to victory (however defined for that individual case) becomes more
clear and easier to follow. Two other critical rules need be established at the outset of
trial. First, beware of hubris—don’t assume the side you are on is good and the other
evil. Jurors will determine right and wrong and do so with a careful eye on the lawyers’
demeanor, conduct, words and body language. While confidence is key, a true believer is
often left hurting after a trial is concluded. Second, don’t talk down to Jurors or try to
impress them with your knowledge, skillful oration, clever Perry Mason like questioning
or too much science and medicine. Don’t “dumb it down” but also don’t “dress to
impress” in terms of your presentation. Be straight with the Jury and they will decide the
case where you need them to: on the facts—because the facts and common sense often
favor the defense especially in this fourth wave of the asbestos litigation.
Whether this is your first trial or your fiftieth, some rules never change. Be
yourself. Avoid Hubris. Treat Jurors with Respect for their Intelligence and the Blessing
of Common Sense. Treat your opponent with Respect too. Don’t take the bait—because
your opponent will try to make you emote rather than keep to the facts. Sympathy and
emotion are tools of the Plaintiffs’ bar. Never feel you need to prove yourself—just win
the case. Try not to get mad and beware showing that in front of the Jury—unless you
have planned to do so but keep that to a minimum. One or two showings of righteous
indignation might work during a long trial but multiple or daily outbursts will not. Don’t
overcomplicate the facts. Focus on showing why what the Plaintiff’s counsel (not the
Plaintiff) is presenting contradictions or trying to play down common-sense. Admit that
the Plaintiff is suffering and never attack a living Plaintiff or a widow(er). Never forget
that you are in trial to help your Client. Sometimes, settlement is not the best path for a
Client but you as trial lawyer should always keep settlement under consideration even if
strategically the plan was to try the case and never resolve it. Pay close attention to the
Jury and try not to overwhelm, overburden or insult them. Beware of insulting your
opponent in that such conduct is often seen by Jurors as a sign of weakness. Remember
the Jury is watching you at all moments. Jurors generally respect the Judge and you
should too.
DON’T FORGET ABOUT SETTLEMENT
A good settlement sometimes comes at the most surprising of moments. If a
lawyer isn’t paying attention, that moment may be missed. Face it, when one is a lawyer
for a Defendant in the asbestos arena, one has to always consider the option of settlement.
The downside risk of a verdict is real and the costs of trial are significant. But, unlike in
most litigation contexts, settlement itself has a downside risk. A history of paying
settlements without showing a willingness to go to trial can cause an upward drift of
settlement maximums. No-pay can work in certain contexts and is a legitimate
consideration for certain clients. Cherry-picking trials often represents the best path even
though that means that in some riskier cases, a Defendant may pay more than they would
like. Cherry-picking is the art of pushing back on the right cases and trying these if
Plaintiffs’ counsel isn’t reasonable in terms of settlement but paying on those which are
high risk even if those lead to a drift upward of the historical settlements. But, beware
that cherry-picking only works if sometimes trials start and finish.
How does a lawyer know if a settlement is a good one? Most lawyers will say
that a settlement is good only if both sides feel a little bit bad about the final number.
While that shouldn’t be the goal (win/win is possible in the settlement of cases), the truest
test for a Defense Attorney in the asbestos context is “does the settlement move the ball
forward in terms of my overall strategy for this Client.” There are no “one-off”
settlements in asbestos. Even a first-time Defendant is setting up precedent with that first
settlement. The costs of trial are generally never a good thing to look at in terms of mass
torts due to the fact that no settlement is within a vacuum.
The settlement decision in any individual case should address the following
components (and in any case there may well be more than these—but these are common
to all cases):
1. What is the downside risk of verdict dollar-wise, net to the Client?
2. What are the chances of a defense win?
3. If a win doesn’t happen what is the most likely best case result and the most
likely worst case result to the Client?
4. If we try the case, what is the path to getting to a win or, if a win is not likely,
how do we get to the likely best case result?
5. What benefit accrues to the Client by starting Trial (does it reduce the
settlement number? Does it show strength in purpose and benefit the Client in
future cases?)?
6. Is there a detriment to even starting Trial?
7. How will a “good loss” be seen in terms of future cases and in terms of this
and other Plaintiffs’ Counsel?
8. What resources can be of assistance in gaining leverage to settle?
Some of the factors that one needs to consider in terms of answering these questions
include:
A. How are damages determined in this jurisdiction?
1. Is there a difference between the calculation of economic and noneconomic damages?
2. Are settlements considered in terms of any set-off of the verdict or part
of the verdict?
3. What comparative fault rules apply—who can be on the verdict form
and to what benefit?
4. Calculate a likely best and worst case verdict (outside of win v.
runaway Jury).
5. Are there any rules of law that can make a win or the likely best case
scenario more likely?
B. Assess settlement in terms of the past and future impact of settlement
1. Consider historical settlement numbers for like cases (like medical,
age, occupation, exposures, alternate cause, prior payments overall,
prior payments to this Plaintiff’s counsel).
2. Is there a change in strategy?
3. What other cases are pending?
4. How will this settlement be viewed by this Plaintiff’s Counsel? By
other Plaintiffs’ counsel? By the Court? By the Client?
C. Are there any Leverage points to rely on?
1. What is your relationship with this Plaintiffs’ counsel?
a. Relationships matter
b. Honesty and prior conduct matters.
c. What works and has worked in the past?
2. How about the Court?
a. Would getting a Judge (or Settlement Coordinator) help or hurt
the likelihood of a deal?
b. Will the Court get involved whether you like it to or not?
3. Grouping of Cases and Multiple Case Settlements.
a. The new Medicare conundrum.
b. Negotiating Allocations.
4. How does the Plaintiff’s Counsel and the Court view your Client and
You?
a. Track record re trial.
b. Track record re settlements.
c. the Myth of the National Counsel.
d. Do you know what your Client is Doing Elsewhere—and Here?
e. Don’t Cave but Don’t be Afraid of Settlement.
5. To Start Trial or Not?
a. Burning Jurors.
b. Proving a Point.
c. Knowing and Respecting your Opponent.
d. Impact on Judge and Judiciary.
e. Impact on Client.
A good trial lawyer cannot ever take her eye off of the potential of settlement and
must be keenly aware of the value of timing in terms of gaining the best deal possible.
Sometimes, it is better to separate trial and settlement responsibilities (i.e. one attorney
tries the case and another settles and they function somewhat if not totally separately).
Ultimately, the key is to never assume settlement will happen (Murphy’s law is that a
good settlement will only happen if the trial lawyer is fully prepared to try the case and
fully invested in doing so) but never get so caught up in the facts or strategies beneficial
to the Client such that a good opportunity to resolve short of verdict is missed.
YOU CAN’T WIN WITHOUT A GOOD JURY
Trial lawyers will argue as to which is the most critical part of a trial. Some argue
that it is Closing Arguments; Others are proponents of Winning through Opening
Statement; Some believe that science and medicine are the key so Expert Presentation
and Impeachment is the most satisfying; and some would posit that good verdicts come
through owning the Facts and presenting them with clarity through Fact Witnesses.
While there is truth to all of the above being key and positive points in a trial, none of
these are possible if the trial lawyer doesn’t pick the right Jury.
Thus, the path to winning starts in Jury selection.
How do you get the right Jury? Some lawyers swear by Jury consultants,
scientific methodology, studying the adjectival characteristics of the Juror’s life, use of a
detailed—some would say intrusive—Jury questionnaire, and a whole lot of preconditioning in questioning the Jury.
After lots of trials and trying lots of things, I have come to some different
conclusions. First, I do believe that Jury selection is key to winning at trial. Second, I
don’t personally use Jury consultants but I won’t tell you that they don’t have benefit.
Third, I have thrown out almost all of my pre-conceptions as to “which Jurors” are right
for me. Fourth, I don’t stereotype generally by adjectival characteristics—there are no
Jurors who are ruled out or in. Fifth, I don’t look for clones or people I think will
socially or politically favor my Client (generally I represent corporations and I can tell
you that pro-corporation or corporatist Jurors are very few in number and generally only
take those positions during voir dire so as to be excluded from the Jury). Sixth, I have
moved away from wanting detailed and lengthy Jury questionnaires and from attempting
to “try my case” by pre-conditioning Jurors to the law or facts.
What has become clear in trying asbestos cases for Defendants is that a fair, smart
Jury is the Jury to aim for during voir dire. A Jurors politics or social views, like those of
most trial lawyers, cannot be pigeon-holed so as to make an assumption as to how they
will perform and vote as a Juror. Likewise, a person’s job (especially in today’s fluid job
market and/or in economic down times) doesn’t define the person. That said, there are
certain jobs which warrant more questioning during voir dire by a Defense attorney. For
instance, Nurses often care for patients and can see their role as a care-giver and extend
that to a trial. I wouldn’t rule out a Nurse or only look for a Nurse Ratchid—but rather I
would probe a Nurse on sympathy and the natural proclivity (for all humans) to favor a
sick person over a company. There are also Jurors who make it clear they don’t like
companies, lawyers, etc. which warrant significant questioning.
Voir Dire has been limited more and more by Judges. That is one of the reasons
why some lawyers fight for lengthy and detailed Jury questionnaires. While I find a brief
questionnaire helpful for organizing my questions and strategizing with whom I will
focus the questions, I find the lengthy questionnaires unwieldy and often a cause of
Judge’s limiting the time and scope of voir dire. Thus, I will abandon questionnaires if I
believe these will hurt the defense in terms of time being able to be spent with the Jury.
If Voir Dire is limited, the following are key areas I feel need to be addressed:
1. Multiple Defendants and Defense Counsel v. One Plaintiff (and his/her
counsel)
I make point that trial isn’t really one trial but many with Plaintiff v. My
Client as one Trial; Plaintiff versus Defendant B as another Trial; etc. and,
sometimes too bluntly for my defense colleagues, I make the point that I
have no stake nor care how the Jury might find for or against a coDefendant.
2. Science, Medicine and Experts are going to be a Key Part of the Trial
I try to determine if any Jurors will be swayed solely by an experts
pedigree; whether Jurors will forgive lengthy testimony about science and
medicine since such may be coming and it is best to forewarn the Jury;
whether Jurors, or some of them, have an understanding and appreciation
of “scientific method.”
3. Corporations
I have to make the point that my Client is a company or corporation and
determine whether that will unfairly bias the Jury. I learned from a very
good Jury consultant to focus on this first and through hard questioning
and then and only then try to “make nice” with the Jury.
4. Objections, Levity, Seriousness, Presentation of Trial
I don’t try to pre-condition on the law but I do think it critical that the Jury
know that the ultimate burden is on the Plaintiff and if the Jury were to
vote right now they would have to vote for my Client. I ask Jurors to hear
all of the evidence presented before making up their minds. I raise the fact
that I will object during trial—often right before an answer they really
wanted to hear—so they will not hold that against me. Similarly, I raise
issue of levity during trial and voir dire so that they don’t think any of the
defense counsel are taking this case less seriously or in any way meant to
demean the process, the seriousness of the Plaintiff’s illness, or the critical
role Jurors play in the trial. I make it clear that Jurors should not be
researching, discussing the case or on the internet (simply type in asbestos
or mesothelioma and you will know why). I also make it clear that the
Judge will instruct them and the lawyers to have no contact with Jurors so
no one will take offense by my ignoring them or not thanking them if they
accidentally hold the men’s room door open for me etc. Finally, I often
refer to the Plaintiff’s disease as serious and show respect to the Plaintiff
him or herself.
5. Jurors and the Plaintiff/Defendant
While I stay away from the facts, I do want to find out if any Juror has a
unique history that might impact her/his deliberation on the case. For
instance, if the Plaintiff served in the US Navy, I will ask about USN
service by Jurors. If the case revolves around buying something from a
retail client in a geographic area, I will ask about the geographic area. Of
course, I will ask about any issues any Juror may have with my Client
(retail Defendants especially).
Beyond these, the key is to disqualify any problematic Juror for cause and
rehabilitate any Juror problematic to the Plaintiff(s). I don’t fear offending Jurors by
using challenges for cause or peremptory challenges and try to work in that such is
appropriate during some portion of the voir dire. I also like to take lead or be second in
asking the Jury questions as I feel that connecting with the Jury during voir dire is
probably one of the most critical aspects of a trial.
HOW MUCH OR LITTLE: THE OPENING STATEMENT
Somewhat controversially, I do not feel that the Opening Statement is as critical
to the defense case nor to any individual Defendant as it is to the Plaintiff. I am a
proponent of “shorter is better” during Opening and I do not favor use of powerpoint or
significant demonstratives by a Defendant. I think that the most critical points
surrounding Opening Statement by a Defendant are:
1. Humanize the Company—tell its history and that it isn’t simply a monolith.
2. Make sure the Jury knows (again) that you take this case seriously and address
first-hand the severity of the Plaintiff’s inJury and the fact that while you
submit that the facts will show your Client to not be liable, that doesn’t take
away from the fact that Everyone should understand that the Plaintiff is
suffering and that is wrong (some consideration of how this might be stated in
a case where the Plaintiff’s election to smoke allows for contributory
negligence or where the Plaintiff may qualify as a “sophisticated user” of the
products in question.
3. Today isn’t yesterday and yesterday is at issue. It is critical for the Jury to
consider historical perspective especially in a negligence and/or failure to
warn trial. State of the Art is a key component to knowledge and duty and the
Jury must recall that knowledge and societal norms were different 20, 30, 40
or more years ago.
4. Make sure Jury hears you say that FACTS Matter and where the facts are in
any way discordant or there is any controversy in the facts, where you might
impeach on the facts or may hear differences of memory, make sure the Jury
knows that is coming and to listen for these facts.
5. Briefly provide an overview of medicine, science, state of the art but full
blown advocacy pieces on any of these generally fall on deaf ears.
6. Don’t tell the Jury what they will hear or who they will hear it from.
Witnesses and who you think you will call or what the Plaintiffs’ experts will
say will often change in trial. Best to remain a bit vague.
7. Tell the Jury—quickly and succinctly—your main themes and talking points.
Leave these embedded by repeating them. If you know you are going to
repeat things with witnesses start saying them now.
8. Get on and off the stage without boring the Jurors. Make them want to hear
more. If multiple Defendants are going to address the Jurors, go first, last or
second (ideally in that order). If you know that a co-Defendant Attorney
needs to go first (or will say something in a way you would like to
differentiate yourself from—then go after them and clean it up). Benefit from
co-defense lawyers who oversell by paying attention and differentiating your
Client and/or stating what your Case will say that is different.
9. Never waive Opening. You can never get the introduction to the Jury back.
No matter how much you may have a fact that would be fun or good to
sandbag or you think that the Jury will benefit from hearing from you
unimpeded by a response by the Plaintiff, forget it. You will have lost the
Jury by not speaking to them right up front. Also, it is a hint of a lack of
seriousness or confidence in your case that will likely drive up any possible
settlement demand.
TRIAL PRESENTATION: SHORTER IS SWEETER
Most trial lawyers like to hear themselves speak. Good trial lawyers learn to
avoid this pitfall. The days of Perry Mason questioning (and results) are over (or were
never real to start with). While every once in awhile a witness will come in a give you a
“gotcha” moment (and the sign of a good trial lawyer is one that listens and doesn’t get
lost in the minutae of a script so they can react), most of the time the presentation of facts
at trial are pretty much cast in stone (or prior transcript) so a good defense lawyer can
pick and choose battles and keep the trial simple and straight-forward.
The magic moment at trial is not impeaching an expert (though it does feel good)
but rather when the facts and evidence falls together as you predicted it would for the
Jury. If you keep your word and the facts support what you told the Jury in Opening (and
somewhat in Voir Dire), you are on the road to a good result. I am of the belief that if an
asbestos Defendant is primarily focused on experts for their defense, they are unlikely to
win. Rather, the key to prevailing is to find facts that you focus on during trial and keep
these to a minimum. These facts can be contradictions, holes in testimony, problems of
logic or faulty memory or otherwise that you need to keep foursquare in front of the Jury.
These become your overarching mantra (though don’t simply repeat them or you run the
risk of alienating the Jury). Telling the Jury what they will hear and then having them
hear it improves your credibility and makes it harder for a Juror to decide by sympathy or
being over-impressed by Plaintiff experts or impeachment of your experts. For these
reasons, I tend to shy away from all of the usual “gotcha” moments in a trial such as
“how much experts make” (get in and get out unless you know your experts are new
testifiers) or impeaching experts by playing word games. Instead, use every witness as a
building block towards the case you have straight-forwardly always intended to put on
and outlined for the Jury. The more consistency you have the more credibility and a
credible Defendant is one that is more likely to win.
Don’t oversell your case though. And don’t be snide or argumentative (to
witnesses, the Judge or Plaintiff’s counsel). Again, the right moment of “righteous
indignation” might arise but don’t overplay it. If you are ever mad never express it when
you are feeling mad. Store the energy for a moment when it pays off or maybe never if
such moment doesn’t arrive. Always be in control—of the witness, your demeanor, the
order of presentation of the facts and don’t argue with your opponent until the Jury is out
of the room. Show the Judge respect even if you feel that the Judge isn’t treating you
with respect—Jurors will sense that anyway and it can inure to your benefit.
Don’t be afraid of technology but also don’t be in awe of it. Too much tech can
make a Defense attorney appear slick (and make the fact that the Client Corporation may
be of high net worth more apparent). Limit your exhibits and impeachment. Don’t chase
every contradiction and don’t get caught up in impeachment wordplay—something
tempting to do regarding experts. The Jury is not there to compare your knowledge to
that of the expert. Of course, if you can get an opposing expert to speak to you with
condescension, all the better—unless you got there by your own condescension.
Again, decide before the trial where you are going and don’t get off path even
though something may be said that tempts you. Of course, listen because something may
be said that you didn’t expect and make hay of it IF it helps your bottom line strategy.
Don’t be against something simply because the Plaintiff’s counsel suggests it.
Sometimes they, like you, are simply trying to streamline things and one of the hardest
parts of any trial (on both sides) is the order and availability of witnesses. Assume you
will have trouble in this regard so don’t be a jerk to the other side if they are having
witness problems. That doesn’t mean roll-over but rather pick your battles and definitely
don’t pick those that will later be reciprocated.
Constantly be thinking about Jury instructions and the verdict form. Don’t be
afraid to suggest amendments to same based on the evidence. Keep good track of the
testimony as it comes in and don’t assume you will have clear daily transcripts to rely on
(but convince your Client to allow you to order dailies). Constantly outline your Closing
and add in the evidence as it comes in. A check list of the elements you are trying to
show (and likely have promised the Jury the evidence would show) is helpful.
Summarize each day for your Client immediately upon return to your office. These
summaries will be particularly helpful in going back at the end of the trial to make sure
that you have done what you need and these may remind you of things which happened
weeks ago that time may have processed out of your head. Don’t sugarcoat the summary
though. If you are in trial this far, your Client has confidence in you already. Don’t sell
them on how great you are doing. Rather, be honest assessing the day, the pros and cons.
If you think you scored big that day though, be wary to over-emphasize it in that, as often
happens with time, you will revisit that “score” later and realize that it didn’t have the
punch overall that it might have felt, emotively, that day.
At the end of every day do the following:
1. Summarize the day for your Client and those in the Firm helping you with the
Trial;
2. Make a list of what you accomplished;
3. Compare your list to what you need to accomplish overall in the trial and what
you promised to the Jury;
4. Decide what you are doing the next day and the day after and follow up to
make sure (daily) that you have no witness or proof problems;
5. Add/edit your Closing (Closing Outline);
6. Ask yourself whether, as a result of the day, you can shorten the trial
somewhat—always, always, always be looking to shorten the trial so you
don’t overtry the case (but compare your notes to your goals so you don’t
leave anything out);
7. Prepare for the next day.
Trials are exhausting and somewhat overwhelming. Try to do something each
day unrelated to the trial whether it be exercise, a movie, walking the dog, etc. Don’t
psych yourself out. Keep your focus on the overall and not simply day by day. Don’t
fear changing tactics but make sure that you keep to the overarching strategy you set
forth in your Opening and promised the Jury would be the result of the trial.
One additional issue is when or whether to have a representative of the Client in
the courtroom. Know that any representative, arguably other than a lawyer in the General
Counsel’s office, may well be “invited” by the Plaintiff’s counsel to take the witness
stand. Sometimes, having a face to introduce to the Jury is helpful and other times
testimony by a Client representative is critical to a case especially if you have factual
information to convey. I believe that having a Client be there throughout the trial is not
necessary however and is sometimes overblown as something a lawyer believes will
carry more weight (positively with the Client there or negatively if not present) than it
actually does.
THE CLOSING ARGUMENT SHOULD WRITE ITSELF
BUT YOU NEED TO KNOW HOW BEST TO PRESENT IT
There is probably nothing more personal than a Closing Argument. The style,
presentation, points made are all unique both to the facts and dynamics of the trial and to
your personal approach. Here are some things critical to consider when putting the final
touches of the Closing Argument together:
1. Should you use powerpoint and/or demonstratives? Unlike in Opening, I
generally do favor a powerpoint for Closing especially for a long trial where
the goal of the closing is to wash away a lot of surplusage and refocus the Jury
on the fact that you met your promises. Powerpoint can especially be helpful
in pointing out contradictions in the facts or testimony and where the Judge
has imposed time-limits on Closing.
2. Was there something you “promised” the Jury that didn’t come together
exactly as you said it would? If so, this is a key part of the Closing—fixing
that point and explaining why the difference or absence is benign. Ideally,
this doesn’t happen but it can and nothing is more critical to fix in a Closing—
although you may want to fix it in a downplayed fashion rather than
overemphasize it.
3. Remind them of your Opening. I often try to keep the same sequence or order
in Closing as I had in Opening. Bring the trial to Closure by referencing how
it started.
4. Point out any weakness in Plaintiff’s case. Go through this in detail but don’t
oversell and don’t over-congratulate your skills in gaining a point.
5. Remind the Jury that you were and remain fair and that while your Client may
have been wronged by this suit, you can’t blame the Plaintiff him or herself.
6. Focus the Jury on deliberations and go through the verdict form and any
unique instructions. Remind them of the burden of proof.
7. Decide how you will address money. Don’t sugarcoat and don’t simply aim
for the win. Juries need guidance on each point they will be deciding. Try to
tell them that they should find in your favor but, if they don’t what should
they do. A key part of that is what damages might be appropriate and how
they should calculate same reminding them all along that the correct result is a
defense verdict. If you don’t do that, a Jury may think that they are doing you
a favor by awarding an amount smaller than asked for by the Plaintiff but still
too high. This will require more finesse and nuance than any other part of the
trial.
8. Similarly, if you are in a jurisdiction with shares or comparative fault, you
will have the burden and cannot meet that burden without likely having to
suggest how the Jury should apportion fault. This also requires sensitivity,
finesse and nuance since they will only get there if they have already found
you liable. Thus, you need be prepared to explain why you give youself the
lowest reasonable share possible and why you apportion or suggest they
apportion to others. Play with different approaches on this and the “money
question” while preparing and running through your Closing.
9. Determine what, if anything, co-Defendants might say and how you may need
to “fix it.” Determine the order for Closings. Here I always prefer to go last
(before the Plaintiff’s final Closing).
10. Thank the Jury and close by summarizing the summary. Take them back to
the core talking points and how they were proven. Leave them there. It is not
necessary to end dramatically (in fact the less drama in Closing the better) or
with something for them to remember. Better to methodically take apart the
Plaintiff’s case and clearly show that you met your promises and what that all
means and then summarize that summary and sit down. Leave it to the
Plaintiff’s counsel to have to counter facts not flourish.
11. Keep a neutral face when Plaintiff is Closing. Don’t show her scoring points
or that you disagree. Trust the Jury to remember the facts that you have
simply and successfully summarized.
THE WORST PART—WAITING FOR THE JURY TO DECIDE
Often the hardest part of a trial occurs while you are sitting on a hard bench, often
talking with your Opponent because you will see him again and you both need to let go
of the emotive parts of the trial when you necessarily had to go at one another, and
waiting for the Jury to deliberate. I find it better to wait in the courthouse in that the Jury
may well have questions and require readback and the best person to deal with that is you
not someone Junior to you etc. You also don’t want the Jury to be kept waiting on an
answer to a question and, frankly, you want the Jurors to see you sitting there while they
are deliberating. It shows you care about the trial, your Client and the Jury.
Once the verdict is read, have the Jury polled if you lost but never ask them to do
so if you have won and the Plaintiff doesn’t make that request. I have been in trials
where a loss became a win after it became clear that the Jury didn’t understand the
Verdict Form or how their voting needed to be counted.
I recommend talking to the Jury after the verdict (regardless of the outcome) as
there is much to be learned from a Jury and occasionally there may be information
gathered which would allow one side to challenge the verdict and the other side to have
factual opposition to that challenge. Talking to Jurors is always key to honing trial skills
and often what they say will surprise even a seasoned trial lawyer.
ASBESTOS PATHOLOGY:
KNOWLEDGE YOU NEED
TO KNOW IN THE
COURTROOM
Stanley J. Geyer, M.D.
Pathologist
OVERVIEW
•
•
•
•
Asbestos fiber types
Anatomy
Clearance of asbestos fibers
Asbestos-related diseases
–
–
–
–
Parietal pleural plaques
Asbestosis
Lung cancer
Mesothelioma
• Fiber burden analysis
ASBESTOS MINERALOGY
• SERPENTINE
– Chrysotile only
commercial
member of this
group
– Curly and flexible
– Behavior in lung
• Dissolves
• Breaks into
shorter fibers
• Less persistent
in lung
• AMPHIBOLES
– Several types two used
commercially
– Stiff, needle-like
fibers
– Behavior in lung
• Does not dissolve
• Maintains length
• More persistent
in lung
ASBESTOS STRUCTURE
CHRYSOTILE AND AMPHIBOLE
ANATOMY OF THE
RESPIRATORY SYSTEM
FIBER CLEARANCE FROM THE
LUNG
MUCOCILIARY TRANSPORT
• Nose, throat, trachea bathed in mucous
• Parts of throat and trachea lined by cells with
cilia (microscopic hair-like structures)
• Mucous traps particles and cilia move particles
up to throat where they are expectorated or
swallowed
FIBER CLEARANCE FROM THE
LUNG
• PHAGOCYTOSIS - Ingestion by macrophages
(cells that reside in lungs for the purpose of
ingesting foreign materials)
– Fragmentation - The silica matrix is broken up at
acid pH
– Dissolution - The outer layer of magnesium is
dissolved at neutral pH (equivalent to water) found
in the lung
PATHOLOGY OF ASBESTOSRELATED DISEASES
•
•
•
•
Parietal pleural plaques
Asbestosis
Malignant mesothelioma
Lung cancer
PARIETAL PLEURAL PLAQUES
• Characteristic (not diagnostic)
• Circumscribed, ivory colored thickenings
over the domes of the diaphragm or
posterolateral chest wall
• Often calcified
ASBESTOSIS
HISTOLOGIC DIAGNOSIS
• Diffuse interstitial fibrosis
AND
• Asbestos bodies
ASBESTOSIS
ASBESTOS BODIES - sine qua non
ASBESTOS AND LUNG CANCER
• Dose-response relationship
• Long latency (>15 years)
• Three hypotheses
– Asbestosis must be present
– Dose rather than fibrosis
– No threshold
CIGARETTE SMOKING AND ASBESTOS
Tobacco smoke exposure is the primary
cause of lung cancers and is sufficient by
itself to cause the great majority of lung
cancers, thus, tobacco smoke is a
powerful confounding factor in most
cases of lung cancers in workers with
asbestos exposure.
• Asbestos burden alone may not fully explain
risk of lung cancer
• Types of diffuse pulmonary fibrosis with
increased risk of lung cancer
– Usual interstitial fibrosis (UIP)
– Scleroderma
• Role of inflammatory mediators
• A unique marker for asbestos-related
lung cancer has not been identified.
• The pathologist
– Confirmation of the diagnosis
– Identification of “second” diagnoses
MALIGNANT MESOTHELIOMA
INTRODUCTION
• Uncommon tumors
– <1% of cancer deaths worldwide
– 15-20 cases per year in North American men
• Few descriptions in literature prior to 20th
century
• Strong association with asbestos exposure
makes it a “signal” malignancy
• Other causes - Erionite, Radiation
•
•
•
•
DIFFERENTIAL DIAGNOSIS
Reactive vs. malignant
Mesothelioma vs. lung cancer
Mesotheliomoa vs. metastatic cancer
Mesothelioma vs. primary tumors of the
pleura
MALIGNANT
MESOTHELIOMA
•
•
•
•
Calretinin
Keratin 5/6
WT-1
D2-40
•
•
•
•
•
•
MOC-31
CEA
B72.3
Ber-EP4
TTF-1
CD15
LOOK ALIKE CONDITIONS
• Primary pleural neoplasms
– Well-differentiated papillary mesothelioma
– Malignant solitary fibrous tumor
– Synovial sarcoma
•
•
•
•
GENERAL RECOMMENDATIONS
Adequate tissue sample
Asbestos history should NOT be
considered in making diagnosis
Monoclonal antibody usage
Limited usefulness of cytology, electron
microscopy, molecular markers
FIBER BURDEN ANALYSIS
• What to evaluate?
– Lung parenchyma vs. tumor
• How to evaluate?
– Bleach digestion vs. ashing
– PCM vs. SEM vs. TEM
• How to interpret?
– Comparison to reference range for
testing laboratory
THANK YOU FOR YOUR
ATTENTION
QUESTIONS?
Literature references available on request: [email protected]
The Rockin’ Rules of Court
By Judge Mark Davidson
1. The Jagger Doctrine of
Discovery
 “You
can’t
always get what
you want, but if
you try
sometimes, you
just might find
you get what you
need.”
Here is what Mick is telling us:
Any discovery request that asks for
more than what you need will be
presumed to be asked solely for
purposes of harassment.
 Don’t ask for the sun, the moon
and the stars, when all you need is
the moon and a few stars.
 Discovery requests that begin with
“Any and all documents that…” are
viewed with suspicion.
2. Henley’s Imperative of
Advocatorial Candor
 There
ain’t no
way to hide
your lyin’ eyes.
The Eagles.
If you break this rule even once, you will
end up asking every judge the question
first sung by the King of Rock and Roll…
Why can’t you see…
What you’re doing to
me….
When you don’t
believe a word I
say?
Elvis Presley –
Suspicious Minds
3. Charles’ Advice to
Prevaricators and the
Careless
Hit the road, Jack,
and don’t you come
back no more…


If you are consistently
“careless” in your statements
to judges, move out of the
county.
If you get caught lying to a
judge, change professions.
4. The Temptations’ Advisory
against unnecessary recusals
“I
know you
want to leave
me, but I refuse
to let you go.”
Holly’s ruling on recusals “That’ll be the day, when you say goodbye!”
Sonny and Cher's refrain
“I got you babe.”
5. Carpenter’s rule on postdefeat behavior

“Sometimes you’re the
windshield, sometimes
you’re the bug.”
Mary Chapin Carpenter
If you lack the patience to wait your
turn to be a windshield, remember:
Cougar’s Post-hearing Philosophy
Oh yeah, Life Goes On…


No case is worth more
than a momentary temper
tantrum.
Handling a loss well can
help your reputation.
6. Poison’s Rule of PostVictory Behavior
Every rose
has its
thorn.
The Thorns of Victory
 You
have to prepare an order reflecting the
victory you just won.
You have to get the judge to sign it.
You can’t run back to your office, prepare an order,
and then messenger the order to me. I will not sign it.
Don’t trash talk to your defeated adversary. This
isn’t the NBA!
7. Everly Brothers Imperative
of Punctuality
Wake up,
Little Susie!
Wake up!
Ignoring this rule will force me to ask:
7a. Chicago’s Interrogatory
Concerning Punctuality
Does anybody know what time it is?
Does anybody really care?
8. Dire Straits’ Imperative of
Case Economy



Don’t take unneeded
depositions.
Endless paper
discovery wars are
pointless.
Don’t bill time just to
make partner.
They get you “money for
nothing and checks for free”
 The
middle class has been priced out of
the litigation system.
 The system of justice is becoming
increasingly irrelevant to most citizens.
 The juror turnout rate is down to 21%!!!!
9. Brooks’s Alternative to
Precipitous Advocacy
NEVER ask for
something you are not
absolutely, positively
certain that you really
want!
Following this rule will result in you thanking:
The God of Unanswered Prayers
“Just because he
doesn’t answer,
doesn’t mean he
don’t care.”
Garth Brooks
10. Newton-John’s Queries on
Behavior During Hearings
Have you never been mellow?
Have you ever tried to find
a comfort from inside you?


No matter how much you
may disagree with your
adversary, grunts, groans,
rolling eyes and chuckles
are not an effective
advocacy tool!
Bringing lawyers to a
hearing whose sole job is
to nod while you are
speaking is a waste of
their time and your
client’s money.
11. Coasters’ Admonition on
Judicial Ruling Acceptance
Yakkity Yak.
Yakkity Yak.
Don’t talk
back!
12. Morgan’s Inquiry
Concerning Frivolous Motions
for Rehearing.
“What part of
NO don’t you
understand?”
13. The Beatles’s Warning
Against Appellate Incompetence.
Don’t let me down!
14. Arrowsmith’s Hollow
Threat
Can I Take you
Higher?
DON’T threaten a judge with
an appeal.
 All
trial judges are well aware of the
existence of appellate courts.
 Judges actually like to be appealed. That is
the only way we can be affirmed!
 If you are going to threat, make sure you
carry it out.
15. No Doubt’s Warning Against
Excessive Advocacy.
Don’t speak.
I know just what you’re saying.
So please stop explaining.
Don’t tell me ‘cause it hurts. (you)
16. Rogers’s Rule on Previctory Behavior.




Know when to hold
‘em.
Know when to fold ‘em.
Know when to walk
away.
Know when to run.
OR
Put another way…
When the Judge is about to rule for you,
nothing you say can
possibly help!
17. The Beatles’ Rule of Courthouse Staff
Relations.
HELP! I need somebody!
HELP! Not just anybody!
Treat the Court’s staff with the
respect that, as professionals, they
deserve. If you do, they will help you
when you need help.
If you are inclined to do otherwise, please consider:
A few things about the court’s staff
you are really dense if you haven’t
figured out:
 The
clerks can look for (or not find the time
to find) your response to your adversary’s
motion for summary judgment.
 The court reporter can honestly make you
look like a blithering idiot on the appellate
record.
 The bailiff has contact with your jury
throughout the trial.
18. Orbison’s Law of Court
Administration
Anything you want,
you got it,
Anything you need,
you got it,
Anything at all, you
got it….

Roy Orbison – You got it

Judges, Clerks and
Coordinators are public
servants
We are here to help,
within the law.
19. Milli Vanilli’s Responsibility
Avoidance Technique
Blame it on the rain.
Blame it on the stars.
Whatever you do,
Don’t put the blame on you!
20. Fuller Four’s Warning
Against Overly Inventive
Pleadings.
I fought the law…
And the law won.
Following this rule will help you avoid :
20a. THE LOVIN’ SPOONFUL’S
DILEMMA ON ELECTION OF REMEDIES
Did you ever have to make up
your mind?
Pick up on one and leave the
other behind.
It’s not often easy, and not
often kind.
Did you ever have to make up
your mind?
21. Police’s Warning on
Juries’ Observations
Every breath you take
Every move you make
Every bond you break
Every step you take
I’ll be watching you.
Sting and the Police
Every Breath you Take
JURORS WATCH EVERYTHING




Unlike the appellate record, juries record how you
and your clients behave at all times. Non-verbal
actions matter.
Lavish shows of wealth (i.e., catered lunches,
limousine service, seventeen lawyers on one side)
have an effect on them.
They expect you to share the same sacrifices of a
trial they are experiencing.
All of your behavior, in and out of the courtroom,
affects how they view you and your client.
22. ZZ Top’s Advisory on
Courthouse Dress
Every Jury’s Crazy
about a sharp
dressed lawyer.
23. Neville’s Requirement of
Responsive Answers
Tell it like it is…
I’m not someone to play with.
24. Franklin’s Doctrine of Jury
Relations
RESPECT
Here’s what Aretha and every
jury is telling you:
What you want, Baby I’ve got it.
What you need, Baby I have it.
All I’m asking for is a little respect.
PUT ANOTHER WAY:
Don’t insult a jury’s collective
intelligence!




Repeating things twice is at least one time too
many.
Lengthy individual voir dire of every member of a
jury panel wastes the time of everyone you aren’t
talking to.
Try to minimize the inconvenience of jury duty.
They are citizens doing their civic duty, and are
not chattel!
25. The Foundations’ Query
on Promises to Jurors
Why do you build me up (Buttercup
Baby)
Just to let me down?



When you tell a jury that a case is going to last
three days, make sure they are in the jury room
on the afternoon of the third day.
Don’t tell them you will prove something that
you aren’t sure you can (or that the judge won’t
let you try).
Ignore this rule only if your personal credibility
with a jury is not important to you.
26. Crosby’s Alternative to
Forum Shopping
If you can’t be with the
judge you love…
Love the one you’re
with.
27. Marley’s Rule of
Professionalism
What goes around comes around.
27a. Santa Ana’s Payback
Rule


Deguello
No Quarter Asked, No
Quarter Given
28. Hall & Oates’s Ruling on
Excessive Attorney’s Fees
Ready. Willing. Overtime.
Where does it stop, where do
you dare me to draw the line?
Well, I can’t go for that! (no
can do)
29. Gaye’s Rationale on Posttrial Silence.
I heard it through the grapevine…



Judges read the Blue Sheets. Telling its
reporter about all the bad rulings the judge
made doesn’t help your post-trial motion
practice.
The staff reports everything you or your
staff tells them about the judge.
When you bad-mouth a judge to other
lawyers, it will almost always get back.
…and someday, you’re going to be
mine….
…and you’re just about to lose your case….
There is more wisdom to be found in the
songs of Marvin Gaye. If you say real ugly
things about me to the newspaper
(questioning my integrity, for example),
and make my mother cry, when you next
have a case, expect me to say….
Let’s get it on!
30. Benatar’s Command for
Effective Advocacy
Hit me with your best shot!
Fire
Away!
31. The Outsiders’s Ruling on the
Length of Voir Dire
I can’t wait forever, even
though you want me to.
I can’t wait forever, just to
know if you’ll be true.
Time won’t let me, oh no.
Time won’t let me wait that
long.
If you think you can really win
a case with a great voir dire
and very little evidence…
You have forgotten the lesson taught
to us by the Mamas and the Papas:
32. Phillips’s Lament on
Factual Insufficiency
Monday, Monday, so good to me
Monday mornin’, it was all I hoped it would be
Oh Monday Mornin’, Monday Mornin’ couldn’t guarantee,
That Monday evening you would still be here with me.



No matter how good your voir dire is, you
still have to have evidence!
Most juries forget the voir dire by the time
they deliberate.
Promises to prove something made in voir
dire not kept kill your case.
A few obvious facts about voir dire:
 Every
judge will give you the time you
need to voir dire the jury panel.
 Excessive voir dire alienates the jury panel
from you and the judge.
 Jury questionnaires are vital in some cases,
and a waste of time on others.
 Don’t confuse voir dire with opening
argument.
33. Manchester’s Anti-lacrimony
advisory
Don’t cry out loud.
34. Bachman Turner
Overdrive’s Grievance
Avoidance Technique
Takin’ care of business, everyday
Takin’ care of business, in every way….
35. Zevon’s Alternative to
Takin’ Care of Business



I took a little risk. Send lawyers, guns and
money. Dad, get me out of this.
I'm the innocent bystander, But somehow I
got stuck. Between a rock and a hard place
And I'm down on my luck.
Now I'm hiding in Honduras. I'm a desperate
man. Send lawyers, guns and money. The
#$%@ has hit the fan .
Warren Zevon - Lawyers, Guns and Money
36. Blondie’s Sanctions
Avoidance Technique
CALL ME!
37. Blondie’s Response to
“Busy” Lawyers Avoiding Trial.



It’s not your choice
which case goes to
trial, it’s the judges’.
Trials always trump
hearings.
Judges’ coordinators
always call each other
if you claim to be in
another court.
One way or another,
I’m gonna find ya’. I’m
gonna get ya’, get ya,
get ya, get ya….



38. The Fixx’s Advisory on
Translator Questions
Translators can’t
remember long
questions.
Eliminate parenthetical
phrases.
Ask the judge for some
leniency on leading
questions.
One thing leads to
another
You told me something
wrong, I know I listen
too long,
But then one thing
leads to another.
39. Womack’s Defense of the
Judicial System
I hope you never fear those
mountains in the distance
Never settle for the path of
least resistance
And when you get the chance
to sit it out or dance
I hope you dance.
-Lee Ann Womack
I hope you dance
Don’t be bullied into unjustly
settling a case!




Dance!
Don’t let judges or coordinators
bully you into selling your client
down the river. Try your case.
Many mediators see it as their
job to settle a case “whatever it
takes” – your job is different.
Try your case.
If you are afraid to try cases,
change jobs.
Our system of justice is under
attack! Defend it.
40. Burdon’s Judicial Plea for Forgiveness
I’m just a soul whose intentions
are good.
Oh Lord, please don’t let me be
misunderstood
Eric Burdon and the Animals
Forgive us when we err.
 We
have bad days too!
 We often will base rulings on justice more
than law, or law more than justice.
Invariably, most lawyers want one more
than the other.
 We are under constant pressure to rule
NOW.
 Personal, professional and political
pressures sometimes lead to distractions or
temper tantrums.

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