The Elite Defense Bar and Expert Evidence

I was recently discussing with someone the record of the elite defense bar with regard to the law of expert testimony, and it’s not a happy history. Elite defense lawyers have often steered their clients in the wrong direction, to wit:

(1) In the early 1980s, when toxic tort cases were just beginning, defense lawyers argued (publicly and not just in court in specific cases) that statistical evidence of causation should not be admitted. They, like many others, seem to have been taken in by the late 1970s/early 1980s hysteria over toxic waste dumps and the like. As it turns out, only rarely have plaintiffs been able to present sound statistical evidence of causation. Fortunately, courts mostly held that statistical evidence is admissible to prove causation [and indeed many courts have held that it’s the most important evidence a party can provide, and some courts have held it’s necessary], which means it’s also admissible to prove lack of causation. This has saved defendants in many instances, including the Bendectin and breast implant litigation, where speculative plaintiffs’ evidence was ultimately ruled inadmissible thanks to contrary statistical data. Defense epidemiological evidence was especially important before and just after Daubert, when many courts held that speculative plaintiffs’ evidence is admissible unless the defendants have sound rebuttal evidence, usually in the form of negative epidemiological studies. (A couple of recent federal courts have continued to apply this standard, even though it lacks any basis in the current version of Federal Rule of Evidence 702).

(2) When the Supreme Court was deciding Daubert, many amicus defense briefs argued for retention of the Frye general acceptance standard. Fortunately, the main attorneys for Merrell Dow understood that (a) Frye was never the strict, demanding test that some lawyers came to believe it was–indeed, it was usually only applied to criminal evidence, and then only to an expert’s general methodology, not his reasoning process as federal law now requires; and (b) the Court was unlikely to endorse Frye regardless. Merrell Dow’s lawyers therefore relied on a clever, literal reading of FRE 702 and won the case.

(3) I wrote an op-ed for the Wall Street Journal days after Daubert explaining that the Court basically got things right, and the lower courts’ new gatekeeping function was going to keep out “junk science.” I’m not sure if mine was the majority view among defense lawyers, but I know that at least a significant minority of defense lawyers incorrectly thought Daubert would not serve to exclude unreliable expert testimony. This resulted in some very bad lawyering, including the briefing in Hopkins v. Dow Corning in the Ninth Circuit, an important case arguing that breast implants caused immune system disease. The court asked for rebriefing after Daubert. The defense argued, in order, (1) that the evidence that breast implants were harmful was so obvious so early that the statute of limitations had run before the plaintiff filed her claim; and (2) there was no reliable evidence that breast implants cause disease. Obviously, the defendants’ attorneys didn’t have much confidence that Daubert would be helpful, and the Ninth Circuit, affirming a plaintiffs’ judgment, not surprisingly reviewed the (quite poor) expert testimony in only a cursory fashion. The Hopkins ruling led to a flood of additional litigation, costing implant manufacturers hundreds of millions of dollars. A year later two other Ninth Circuit panels, including the Daubert remand panel, issued strict rulings on Daubert that if applied in Hopkins would have led to exclusion of the evidence in question. (Dow Corning, meanwhile, soon became an aggressive user of Daubert.)

(4) The organized defense bar spent much of the mid-to-late 1990s trying to encourage state courts to eschew Daubert for Frye. Frye states, as should have been predicted, have been much more liberal regarding admissibility than have Daubert states. (The defense bar belatedly recognized this, to the extent it has been organized on the issue, has been pushing for state adoption of amended Federal Rule 702).

(5) Once the Supreme Court decided the Daubert trilogy, and Federal Rule of Evidence 702 was amended to reflect the trilogy, the organized defense bar largely declared victory and abandoned the issue. From what I can tell, the plaintiffs’ bar has been much more active in trying to encourage federal judges to adopt a forgiving interpretation of Rule 702, and especially in trying to preserve liberal admissibility standards in the states.

Why did defense lawyers get things wrong so often? I think it has something to do with litigators believing that they can be and are experts on anything and everything having to do with litigation, and their clients accepting that as gospel. Just for example, I had a friend who was an attorney at a large but not “famous” law firm, who happened to be one of the leading experts in the country on the admissibility of expert testimony. After Daubert came out, I remarked to him that business must be booming. He replied that he hadn’t gotten a single client out of Daubert, that the big companies would rather hire a “famous” litigator with no experience in expert evidence issues than hire someone like him with a less prestigious letterhead with real expertise in the subject matter (he was, by the way, a graduate of one of the best law schools in the country, so that wasn’t the problem).