Plaintiffs in DC cell phone litigation avoid knockout punch, for now

"Can cell phones cause brain cancer?"  With that question, which he did not answer, Judge Weisberg of the Superior Court for the District of Columbia began a 76-page discourse on the admissibility of the testimony of eight plaintiffs' experts in the DC cell phone litigation.  The Court excluded the testimony of some of the Plaintiffs' experts and did not exclude the testimony of others.  The Court, based on the extensive record before him, clearly found the scientific evidence too inconclusive for any scientist to say to a reasonable degree of scientific certainty whether cell phones can cause brain cancer. 

The Court's opinion included this sobering plea to other branches of government to do the research necessary to figure this out:

Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discover thirty or forty years from now that the early signs were pointing in the right direction.  As the inconclusive results of the IARC Monograph make clear, more research is necessary to answer definitively the fundamental question of carcinogenicity.  If the probability of carcinogenicity is low, but the magnitude of the potential harm is high, good public policy dictates that the risk should not be ignored.  See Richard Posner, Catastrophe: Risk and Response (2004).  The court recognizes, however, that policy debates of this kind do not belong in the judicial branch.


The restyled Federal Rules of Evidence became effective on Dec. 1

The Federal Rules of Evidence were restyled, and the new version became effective on December 1, 2011.  Here is a link to the restyled version of the Rules, which is defnitely worth reading.   As a sample, the restyled version of Fed. R. Evid. 702 is as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

A copy of the Report of the Advisory Committee can be found here, and discusses in some detail the contributors to the effort to make the Rules more easily understandable.  Among other things, Bryan Garner's legal style guide was used in the rewrite of the Rules.

As reported by, there are also amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure which also became effective on Dec. 1.  

Trouble and how not to meet it: Landrum v. Chippenham and Johnston-Willis Hospitals

As a young associate, I once read an ABA pamphlet on how to manage a law practice, and one of the recommendations was to have a regular meeting of all attorneys, at which one of the agenda items would always be "trouble and how to meet it."   The idea is that usually you can see trouble coming at you from down the road, and that's precisely when an attorney needs the collective wisdom and experience of the firm.  Trouble and how NOT to meet it is illustrated by the recent decision of the Virginia Supreme Court in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

Landrum was a Virginia medical malpractice case in which the plaintiff was represented by an out-of-state counsel from Missouri, with Virginia local counsel.  The Virginia Supreme Court affirmed the trial court's exclusion of the plaintiff's expert witness designations for failure to have them signed by local counsel, and the summary judgment in favor of the defense based on the plaintiff's lack of expert testimony.

The trouble was coming down the road for a couple months before the end.  Plaintiff's intial effort at expert witness designations failed to state the substance of the facts and opinions to which the experts were expected to testify and a summary of the grounds for each opinion.  The defense moved to exclude the expert witnesses and for summary judgment.

Plaintiff then attempted to cure the deficiency by providing the expert witnesses' reports, but failed to supplement the designation.

There was a hearing before the Circuit Court on the defense motions, in which the Court warned:

THE COURT: . . . I will give you seven days from today, and I'm going to give you a time that you file your answer to these interrogatories and you file a copy of it in the clerk's office and you do it in the proper manner. I'm not going to sit here and lecture how you're supposed to do it.
. . . .
I will tell you, sir, if you fail to do that, I will dismiss the case after that.

Plaintiff's next effort at filing an expert witness designation also did not comply with the Virginia Rules, as it was not signed by Plaintiff's local counsel, and the defense again moved to exclude the plaintiff's expert witnesses and for summary judgment.

This time, the trial court granted the motions, and dismissed the case with prejudice. 

About two full months passed between the first effort at filing expert witness designations, and the last.  The trial judge gave the plaintiff a week to file a compliant expert witness designation, after delivering a clear warning to comply with the Virginia Rules.  There was time to reread the Virginia Rules, and conference with Virginia counsel. 

Unfortunately, this was a very harsh result in a medical malpractice case, and the Virginia Supreme Court granted an appeal -- a rare and golden opportunity for claim repair.  However, as noted here, plaintiff failed to comply fully with the Virginia appellate rules as well, and the appeal did not go well.  Now it is big trouble.

The reason why in Virginia, local counsel must sign all the pleadings, is that being local counsel in Virginia is not regarded as a pro forma responsibility.    As the Virginia Supreme Court has stated:

The purpose of the Rule is to facilitate the efficient administration of court business by permitting a court to deal exclusively with local counsel, upon whom all notices and processes may be served. It is necessary that our courts have access to attorneys of record who are personally subject to their supervisory control rather than risk delays in communicating with foreign attorneys who may be inaccessible, uncooperative or unfamiliar with the rules and statutes governing the trial of cases in Virginia.

Ortiz v. Barrett, 278 S.E.2d 833 (Va. 1981). 








How Nobel Prize-winning economist Joseph Stiglitz was precluded from testifying as his own damages expert

I previously noted the legal malpractice claim that Joseph Stiglitz, the famous economist, brought in D.C. against his divorce lawyer.  The outcome of the trial was covered by the Legal Times, among others.

That trial was a good case study of how to hamstring a professional plaintiff from testifying as an expert on his own behalf.  Here, the defense, represented by Richard A. Simpson, Esq., was able to obtain a ruling that Joseph Stiglitz, a nobel prize winning economist, could not testify on his own behalf concerning his own damages, where his damages were among other things his own stream of royalty income and the value of his own time.  This turned out not to matter so much, as the jury verdict for the defendant on liability meant that the jury never even had to reach the damages issues. 

In his expert witness disclosures, Stiglitz included himself among his designated experts, albeit without much specificity.  Rather, his counsel simply incorporated Stiglitz's deposition testimony and discovery responses.  However, the expert witness disclosures were vulnerable to attack.

First, the defense moved to strike the testimony of Stiglitz's retained damages expert, Michael Cragg.  The main line of argument was that Cragg's Rule 26(a)(2) report was not submitted until a week before the close of discovery, and more than a year after the deadline for such reports. Cragg's untimely report included a discussion of the value of Stiglitz's lost time and the value of his book royalties, among other things.  The Court granted the motion to strike Cragg as an expert on January 7, 2008.  (In hindsight, given that the trial ultimately took place more than two years later, this ruling seems a bit harsh.)

Subsequently, the defense moved to strike Stiglitz as his own damages expert, arguing that the plaintiff would be attempting to circumvent the Court's prior order if he were allowed to testify as his own expert on the very elements of damages that Cragg would have covered, and that in any event, Stiglitz was not qualified to be an expert on the specific damages issues to be considered by the jury, such as royalties.  

The Court on August 25, 2010, entered a minute order granting the defense motion in limine to preclude Stiglitz's purported damages evidence.






Former Chairman of SEC struck as expert witness in securities fraud case

Who would have thought that a former head of the SEC would for any reason be struck as an expert witness in a securities fraud case? Yet, that's what happened in In re Fannie Mae Securities Litigation, No. 04-1639 (DDC March 8, 2011). Former SEC Chairman Harvey Pitt had been retained as an expert by the lead plaintiff, and was deposed for a day. However, he refused to continue his deposition after he learned that former SEC Chief Accountant Donald Nicolaisen had been deposed in the action, because he had not had an opportunity to review Nicolaisen's testimony.

In their motion the defendants argued that the discovery schedule for expert witnesses had been negotiated with great effort, and that allowing Plaintiffs' to unilaterally delay Mr. Pitt's deposition and then potentially have him change or add to his opinions would upset the schedule, and would waste the time the defense experts had already expended to rebut those opinions.

Judge Leon had harsh words for lead plaintiff's counsel for failing to provide Mr. Pitt with that transcript, stating "Of course, the repeated failure of Lead Plaintiffs' counsel to provide Mr. Pitt with Nicolaisen's deposition transcript, both prior to the submission of his expert report, and prior to his deposition, is inexplicable and inexcusable!"

The Court pointed out the Lead Plaintiffs' counsel had initiated the litigation which had required the deposition of Mr. Nicolaisen in the first place. The Court struck Mr. Pitt as an expert witness, finding that the prejudice to the defendant could not be overcome by simply allowing the deposition to continued one week later.

Hat tip to the Blog of the Legal Times for first covering this.

Upcoming amendments to the Federal Rules of Civil Procedure

The following is a summary of amendments to the Federal Rules of Civil Procedure that will become effective in December, 2010:

The proposed amendments to Rule 8 delete the reference to “discharge in bankruptcy” from the rule’s list of affirmative defenses that must be asserted in response to a pleading.

The proposed amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.

The proposed amendments to Rule 56 are intended to improve the procedures for presenting and deciding summary judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The amendments are not intended to change the summary judgment standard or burdens. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when an assertion of fact has not been properly supported by the party or responded to by the other party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (4) setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.

 See Summary of Proposed Amendments to Federal Rules.

Here are the relevant Rules with the amendments incorporated.

Under the amended Rule 26, hybrid fact/expert witnesses who have not been retained to testify, such as treating physicians, do not have to write reports, but the Rule requires expert witness disclosures concerning any expert opinions they intend to offer.

Under the amended Rule 56, the undisputed material facts justifying the motion for summary judgment will need to be supported by pinpoint cites to the record.  

Virginia Supreme Court Reverses JNOV In Food Poisoning Case

In Bussey v. E.S.C. Restaurants, the Virginia Supreme Court reversed the trial court's award of JNOV to the defendant in a food poisoning case, and reinstated a jury verdict of $111,765.25.

The trial court granted the JNOV because it found that the testimony of the treating physician as to causation lacked sufficient factual basis because of “the non-contemporaneous medical examination, the lack of laboratory testing, and the discrepancy in the timeline.”

The Supreme Court rejected that, and among other things found that although the treating physician did not use laboratory testing to definitely identify food poisoning, Virginia law has never required such testing.  In this case, it was enough for the treating physician to have excluded other causes of the symptoms, and to have relied upon other factors.  The Court summarized the relevant Virginia law as follows:

In the context of unwholesome food, the proof necessary to sustain a cause of action based upon negligence or breach of warranty is the same. "[T]he burden requires the plaintiff to show ‘(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands.’ " Harris Teeter v. Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802 (1991) (quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)). The implied warranty of wholesomeness applies to the sale of food by restaurants. Levy v. Paul, 207 Va. 100, 106, 147 S.E.2d 722, 726 (1966). With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is "a probability rather than a mere possibility." Southern States Coop. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982).

The Court concluded in this case that there was sufficient credible evidence of record to support the jury's verdict.

Virginia Supreme Court Requires New Trial Where Plaintiff's Damages Expert Based Opinion on Fictional Assumptions

In Vasquez v. Mabini, the Virginia Supreme Court reversed a $2 million judgment in favor of the plaintiffs in a wrongful death case, and remanded for a new trial limited to the issue of damages.  The sole issue on appeal was whether the verdict had to be overturned because it was based on speculative opinions of plaintiff's damages expert, Richard B. Edelman, a Professor Emeritus at American University.  The assumptions made by the expert included an assumption that the decedent's dependent adult son would have continued to live 24 years into the future even though the witness knew that he had died before trial. 

The Court found that the following assumptions made the Edelman opinion inadmissible:

The economic value of the decedent’s lost income was projected from a base of $16,000 per year, beginning the day after the accident and continuing until retirement, based upon an assumption of full-time clerical work with added annual increases and fringe benefits. On cross-examination, however, the expert admitted that Mrs. Mabini had little experience as a clerical worker, had earned less than $1000 the previous year and that her annual earnings for the preceding several years had never exceeded $7000. She had been seeking full-time clerical employment since  moving to Virginia, but had been unable to find anything but part-time work. The record does not show that she had ever held fulltime employment or received any fringe benefits.. . .

. . . .

The expert’s assumption that the decedent would have received a 3.7% retirement benefit in addition to her salary was premised on his further assumption that she would have found full-time clerical employment the day after the accident. He testified: “most full-time employees get that.” His conclusion, however, was based only upon a statistic applied to facts entirely unrelated to the personal circumstances of the decedent. Similarly, his assumption that her income would have increased 4.25% each year until retirement was based upon a statistical projection of wage rate increases applied to the unfounded assumption of fulltime employment.

In calculating the value of Mrs. Mabini’s lost services, protection, care and assistance, the expert made the assumption that her son, Pomeroy, would have lived throughout his mother’s remaining life expectancy, an additional 24 years, and that he would continue as an adult dependent throughout that time. In fact, the expert was aware that Pomeroy had died before trial, less than six months after his mother’s death.