When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected. One even claimed that I was merely spreading "corporate tort reform propaganda." Coincidentally, I just came across the following paragraph in a publication of the American Trial Lawyers Association, an organization for plaintiffs' attorneys:
In the years since Daubert, often the most daunting challenge faced by a plaintiff in a federal drug or medical device case is overcoming the defendant's challenge to the plaintiff's experts. As a result, many plaintiffs' attorneys choose to keep their cases out of federal court by any means possible, since the majority of state courts--even those that have adopted the Federal Rules of Evidence or a close approximation thereof--have rejected a strict application of Daubert and its progeny. In many cases, this has led plaintiffs' attorneys to bring in as additional defendants treating doctors, pharmacies, or suppliers, so as to destroy the diversity between all parties necessary for federal court jurisdiction. Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state.
Related Posts (on one page):
- Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
- New York Court of Appeals on the Frye General Acceptance Test:
I reviewed the prior comment thread to see how many commenters actually objected to your conclusion that plaintiffs' lawyers have been avoiding federal court, and the correct total is one.
A few commentators versus one. What's the difference? No need to get hypertechnical. Accuracy is overrated.
Ric Romero, alas, must cede his Pulitzer for investigative reporting this year. *grin*
So, is it your contention that 2 of the 3 Justin, r78, and Peter Nordberg are sock puppets?
Of course PAs want to avoid Daubert. Daubert has become an institutionalized mechanism for getting rid of scientific expert testimony, and, in conjunction with Kumho, all expert testimony. If you are in a Federal Court (slow) dealing with a deep-pockets D who can afford to Daubert all your experts, then you're not going to get very far. Finally, in addition to the standardized Daubert factors, the idea that the trial judge should have considerable leeway in rejecting evidence... well, that can allow for new, and idiosyncratic hurdles to getting expert testimony into a trial.
*shrug* So is the avoidance of Federal Courts a surprise? The line between excluding junk science (good) and denying a valid claim by allowing a D to Daubert a claim to death (bad) is a fine one. I don't know that Daubert got it right, but I don't have a better solution myself.
re: Daubert, it is true that many federal courts misconstrue Daubert and require that the opinion to be offered be the popular opinion rather one derived using accepted methodology. That's my view anyway.
It's all about marketing!
(And don't forget our 33% cut of your "justice.")
Actually, if you want to have a reality-based discussion about this, you previously posted:
I asked
In response, you have offered a link to a plaintiff's attorneys web site and an excerpt from an ATLA publication. I am sure that that lawyer and ATLA are tickled that you find them to be so accurate and authoritative, but I don't think such evidence would pass Daubert.
But, to get back to the question - your assertion that litigants are fleeing Federal Court because of Daubert is wrong for two reasons.
First, there is your belief that Daubert drives the preference for State Courts. Everybody who actually practices law knows that plaintiff’s prefer State court to Federal Court. I could give you ½ dozen reasons – but two that jump out at me immediately are the fact that it is easier for plaintiff’s to get a verdict when they need only 9 of 12 votes (as is usually the case in State courts) instead of 6 of 6 (as usual in Fed. Cts.) Also, fast track rules in many state courts insure that 90 or 95% of cases get tried within a year. Federal court dockets vary, of course, but the most recent case I filed in Federal Court (which was a very, very simple case and had to be filed there because the US was a defendant) was set for its initial CMC 4 months post filing and it is now set to be tried 19 months post filing.
Second you just don't have the numbers to back you up. Let’s remember that you posted:
"Virtually all" product liability suits have fled Federal Court eh? The Overlawyered website posted some time ago that federal product liability filings have actually been increasing post-Daubert (which was in 1993):
Overlawyered goes on to note that the “filings” include removals, but that doesn’t change anything because (again as anyone who actually practices law knows) Defendants will routinely remove almost any case they can and that was true before Daubert and after Daubert.
The only way you can be correct is if you were to show that actual initial product liability filings by plaintiffs in Federal Court dropped sharply after the institution of the Daubert regime.
Go ahead – prove me wrong.
Opinion: drinking water causes cancer, because I have consulted the horological charts and tested three lab mice while aided by a witch doctor, and
Opinion: the car was doing about 45 mph when I saw it, or I gave the suspect the horizontal nystygm .. whatever it is, test, and they were drunk, or I own the property and it's worth about $100K,
But I have trouble seeing the abstract dividing line between the two, in terms of when does it go to the finder of fact and when it is too worthless/junk science for them even to hear it.
Every time a PA lawyer begrudgingly parts with a dollar, an angel gets his wings.
\\When Mike BUSL07 has been working at that firm for a while, he'll thanks his stars for plaintiff's attorneys
Luntz is clever but I'm not sure he's right here. A basic problem faced by those Republicans (and others) who want to demonize the plaintiffs' bar is that a lot of people - maybe most people - don't think the plaintiffs' bar is so horrible. Tort reformers - with whom I have a lot of sympathy - focus on costly class actions cases involving junk science, but lots of people just think of lawyers who help injured people fight insurance companies.
That's not true: if state product liability filings have been going up faster than federal filings, that would also indicate plaintiffs avoiding federal court. Too, one can't tell much from "filings," because plaintiffs have, over time, changed tactics: we see many more suits with multiple plaintiffs and multiple defendants as plaintiffs have learned that fraudulent joinder is often a way to engage in forum shopping and jury confusion without consequence. Plaintiffs certainly have reasons other than Daubert to improperly steer cases into state court, but their own words show that Daubert is a contributing factor.
As I noted in the first place, many of those filings are removals; we don't know how many product liability suits are filed in federal court ab initio. (And, of course, to the extent that a plaintiffs' product-liability suit is meritorious, a Daubert court would be a superior option ceteris paribus, because Daubert excludes defendants' bogus expert evidence as easily as a plaintiff's.)
Indeed. That is what is at the heart of the case while lawyers are busy trying to generate procedural rules to get at short term aims. The correct teaching of Daubert is that the trial court should act as the gatekeeper. There is little to object there. Further, Frye emphasizes admitting generally acceptable expert testimony, often in the context of novel methodologies. Again, not a problem. The two do not even conflict.
Problem, comes in (maybe I am qualified to say this as a scientific researcher and a lawyer) when a party tries to get in bogus science (happens all the time-- you go to trial with the science you have not the science you should have) that most experts would end up dismissing if given enough time to evaluate it. The problem is of who should be an expert on experts? Frye says the field whiel Daubert says the trial court. Such testimony does matter as it is often the last step for staving off SJ.
Frye emphaiszes the field generally (general acceptability-- in the form of peer review etc., publications, citations), but sometimes such field may not exist or there may be other unrelated rivalries. Daubert, now sullied by various nonsensical factors as pure lawyers are prone to do, relies far too much on the judge, with review difficult.
What lawyers do is to try to get the most credentialed guy they can afford to stave off the expected attack. This is not most reliable expert, not the one who has interest in or studied the similar problems the most, or even the one with the most reliable analysis. Instead, this is a guy the judge will find hard to dismiss because of the degrees, awards, publications and the like. All of the latter are unrelated to the merits. And of course, he should be articulate, good looking, clean (as a whistle) and the like.
The thing that is buried is what David aimed at -- the testimony itself. This is often a problem of timing. It is not possible to generate enough analysis in the short time allowed by the trial calender. The judge may not allow Daubert expert testimony, which while painful, is often the plaintiff's burden as it is he who has to provide enough evidence to prevail. The challenge for the PA is to develop a record to allow review for abuse of discretion. Most attorneys or their cases are not up to this.
A better change that would allow the meritless cases or the cases with insufficient evidence to run to state court with Frye or Daubert being the deciding factors is to allow significant but later developed testimony in the record if the record was sparse due to to much emphasis on speed. Many of these cases takes years to litigate and by the time bankruptcy or judgement proceedings are in, so is the proper expert analysis, but it is too late to fix the error under the present rules. This will give each side an incentive to prove (a) the evidence could not be presented at trial, (b) the outcome was unexpected (and not cumulative) relative to the accepted expert testimony, and (c) accepting it would further justice. Denying entry of such expert evidence would arguably be abuse of discretion for failing to grant a new trial.
Alternative procedural rules can be devised if the focus is on a fair outcome to allow efficient review. Factors to aid in a challenge to an adverse Daubert decision can be devised. But, they should not be a substitute for actual ongoing inquiry into the underlying reality. Eventually something will be worked out. For now its the courts you got.
If I have meanwhile registered a modulated, non-vociferous skepticism about the blanket claim that Daubert is stricter than Frye, or that some lawyers may select forums with the admissibility of expert evidence in view, this was not to deny the obvious. Lawyers are known to think about these things when exercising their forum options. Products liability is certainly one area where lawyers ought to think about them very hard. I think Justin does have a point, though, in noting that plaintiffs' lawyers, as a group, have long tended to avoid federal court in the first place. And I also think the frequently Kafkaesque Daubert process would be a sufficient reason unto the day for plaintiffs to think twice about federal court, even if Daubert turned out to be somewhat more lenient than Frye, on the average, as measured by outcomes.
The main axe I'd want to grind, though, involves my view that the following pieces of popular wisdom fall somewhere in the spectrum between speculation and oversimplification:
(1) Setting some baseline standards for the quality of expert evidence inherently operates to defendants' advantage and plaintiffs' disadvantage.
(2) For that reason, defense lawyers favor standards and plaintiffs' lawyers oppose them and want to avoid them.
(3) Daubert is stricter than Frye, and so plaintiffs' lawyers prefer Frye to Daubert.
There are aspects of reality that these generalizations do capture, but there are other aspects of reality that they contradict, and still others that they ignore (e.g., the function Daubert has served in incentivizing plaintiffs to present stronger evidence; the more-than-occasional resort, by defendants, to experts whose thespian talent exceeds the rigor of their analysis; etc.). After fourteen years of Daubert, it is time, perhaps, to move beyond these over-general nostrums and battle-cries toward a more thickly descriptive and rigorously empirical characterization of the actual world. (Few of the broad claims commonly made about "Daubert" would themselves withstand scrutiny under either Daubert or Frye.) The excellent survey of state responses to Daubert in Jurimetrics a couple of years back, co-authored by Prof. Bernstein, is one example of an analysis that bores down to a finer description. It showed that merely labeling a state as a "Frye state" or a "Daubert state" is fairly uninformative. Alaska, for example, follows Daubert, but its high court has also said very explicitly that in its contemplation, Daubert will exclude almost nothing that Frye would permit. That is not the opposite of the federal version of Daubert, but it is certainly a major difference.
Maybe blogs are not the ideal forum for this finer level of analysis. But a man can dream.
Daubert is a concern in federal court but there is no shortage of reasons for plaintiff's lawyers to avoid going there.
the parties' motivations will not grant jurisdiction if it doesn't otherwise exist. All you have to do is meet the (objective) standard for defeating a fraudulent-joinder claim- i.e., state a plausible case against a nondiverse defendant; the courts will not go behind valid legal claims and say, "well they met all the standards but since they structured their otherwise legitimate suit with jurisdiction in mind, we will not remand." Plaintiffs are free to press any legitimate case against any defendant they choose, and if you have a plausible case the courts will not deprive you of your chosen forum merely because they know you don't want to be in federal court. Otherwise it's hard to see how any case would ever get remanded.
If however you file against diverse parties and subsequent to removal want to add a party that would deprive the court of jurisdiction, they WILL consider your motives.
This seems to me to be a flat linguistic imprecision -- one that might serve some polemical purpose in the tort-repeal debates, but only at the expense of inaccuracy.
The other consideration is that in states which allocate fault to nonparties, you wind up FORCED to join extra parties. And in some cases fault can be allocated to the parties even if they are immune!
Rough example: you represent a plaintiff who got run over in a crosswalk, and took damages of $100K. There is some slight argument that the city designed the intersection improperly. Normally, you would not name the city -- hey, the driver ran over your party on a clear day, against a red light.
BUT if you don't, the defense will allege the city is a nonparty at fault. Your client was semiblind, they didn't have a long enough time for a person to get across the intersection, the beeper stopped before they could do so. Defense will argue city is 10-50% at fault, which reduces your damages by 10-50 K.
Don't name them, and lose that. Do name them, the city may escape on immunity, tag your client for their costs, and you still get damages reduced.
Around here, the state vs. federal considerations are different. The federal court is almost entirely criminal, go there and you have a judge who is often very inexperienced in civil cases. And any appeal goes to a circuit court that is 900 miles away, instead of right downtown, and could care less about state law details. (I had one appeal that showed that clearly. The question was whether the statute of limitations hinged on the tort or knowledge of the tort, and the state law said knowledge of it, with two appellate cases to support the clear language of the statute. The federal court of appeals decided the matter without mentioning the language of the statute nor the two cases).
Here, the defense often removes to federal court, because the state appellate courts tend to favor plaintiffs.
I testify, in a criminal proceeding against you that will lead to jail time...
that I told you to focus your eyes on the tip of my finger as I moved it from side to side.
If I think your eyes tracked it smoothly, you are innocent. If they were jerky, falling behind and then jerking to catch up, you are guilty, in my opinion.
I have a high school diploma or at best a BA in an unrelated field. My opinion is based on having taken a short course in which the lecturer taught me this was true. At best, and this is at best, the students were allowed to test it on one person, and it seemed to work. But a previous appellate decision has said the test was OK. I know nothing else about it, and if cross examined on it, would say just that -- I was told it was a valid test, and was trained on it, and know little more about it.
Welcome to DUI and the horizontal nystygam ... I can't remember how to spell it, but whatever it is test. Perfectly admissible in state court.
In every lawsuit against Merck in state court outside of New Jersey, plaintiffs got there by naming in-state third parties. Often these in-state third parties have shallow pockets; in states without joint and several liability, it is a huge tactical mistake to bring these third parties to trial because the jury might decide to blame the third parties rather than the deep pocket. (Even in states with joint and several liability, why risk that the jury will exonerate Merck and put the entire damages award on the shoulders of the middle-class doctor?) And, indeed, not once has the in-state third party been brought to trial. What are we to conclude?
I would say that this is an improper evasion of federal jurisdiction and properly contained in the "fraudulent joinder" heuristic, even if one can construct a colorable claim against the third party. Some courts agree; others do not. The problem could be resolved by ending the requirement for complete diversity (which contradicts the purpose of diversity jurisdiction), which in turn would end the socially wasteful practice of harassing lawsuits against third parties who nobody intends to take to trial.
I am curious, what courts agree that fraudulent joinder can be shown if a defendant names a valid in-state defedant solely for the purpose of avoiding federal jurisdiction? I had a lot of experience a few years back in removal and remand in Missippi and Alabama and would have loved to make such an argument but I don't recall finding any cases to support the notion.
"Fraudulent Joinder" is really a misnomer. "Improper Joinder" is a much better term.
To the commenter who said both sides are guilty of forum shopping I disagree. Only a plaintiff can forum shop since they are the ones who choose where to bring suit and how to frame the claims and parties to avoid certain jurisidictions. Defendants can merely try and fight against it.
Arthur v. International Flavors &Fragrances, Inc., No. 05-5011-CV-RED (W.D. Mo. 2005) hedged its bets and found that there was no colorable claim against the resident defendant doctor, but that was almost certainly based on the parallel finding that "Plaintiffs have no real intention of prosecuting the action against" the resident defendant; previous cases brought against IFF and Dr. Scacewater had been tried in state court (with Scacewater dismissed before the case went to trial).
I knew about the Warner-Lambert case but it's not really useful. Neither of those cases really support the removal of a claim based on the deliberate inclusion of an in-state defendant solely for the purpose of destroying diveersity. It's a doctrine I wish the courts would adopt though and I think most people would agree even if they can't quite put their finger on why such joinder is wrong. It just doesn't seem right to sue somebody that you don't really intend to seek damages from just so you can pick your court. Sueing somebody isn't an abstract thing. Most often these instate defendants are individual people for whom a lawsuit is the kind of thing you'd lose sleep over. In a small rural town its also the kind of thing that people talk about. The whole game bothers me.