Independent Experts in Toxic Torts and Product Liability Litigation

Cynthia H. Cwik

Ms. Cwik is a partner with the San Diego office of Latham & Watkins. This article is in part based on an article by Ms. Cwik, "Guarding The Gate: Expert Evidence Admissibility," which was published in the Summer 1999 issue of Litigation.

Expert evidence can be pivotal in many cases that involve issues on the frontiers of science. In toxic tort and products liability actions, the success or failure of the entire case may hinge upon the expert evidence. Expert evidence, however, presents certain unique challenges to judges, juries and litigators. As the United States Supreme Court explained, expert testimony "can be both powerful and quite misleading" because of a jury’s difficulty in evaluating such evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595 (1993). Similarly, the California Supreme Court has observed that experts can "assume a posture of mystic infallibility in the eyes of a jury." People v. Kelly, 17 Cal.3d. 24, 32 (1976). These problems are compounded by the fact that in high-stakes litigation involving complex issues, there may be "experts" willing to testify to the truth of almost any matter, even an opinion that has been rejected by the vast majority of mainstream professionals in that field.

In order to assist them with complex and contentious scientific and technological issues, courts have increasingly turned to court-appointed experts. Pursuant to Rule 706 of the Federal Rule of Evidence, a court has authority to appoint experts "on its own motion or on the motion of any party." Judges have suggested using court-appointed experts: (1) to advance the court’s understanding of the merits of the litigation; (2) to enhance the court’s ability to reach a correct decision on the merits; and (3) to enhance settlement prospects. Joe S. Cecil & Thomas E. Willging, "Court-Appointed Experts," in Reference Manual on Scientific Evidence at p. 537 (Fed. Jud. Center 1993). Court-appointed experts have been appointed in several different contexts, including in cases involving breast implants, DNA evidence, computers, the swine flu vaccination, and chemical injury claims. The vast majority of federal judges who actually used court-appointed experts reported that they were pleased with the results. Id. at 537.

This article will discuss instances in which courts have used independent experts, as well as some procedural issues involved with the appointment of such experts.

Courts and Scientists Encourage the Use of Independent Experts

Recognizing the difficulty of the task of ensuring that scientific arguments meet definable legal standards, the United States Supreme Court has encouraged judges to take advantage of Rule 706 in determining the validity of the methodology supporting an expert’s opinion. Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2797-98 (1993). Justice Breyer, in his concurring opinion in General Electric Co. v. Joiner, 118 S. Ct. 512, 520-21 (1997), discusses how difficult it can be for judges to "make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer," especially considering that "judges are not scientists and do not have the scientific training that can facilitate the making of such decisions." He then discusses how independent experts (along with other innovative techniques, including pretrial hearings on the science and the appointment of special masters and specially trained law clerks) can be used to "help secure the basic objectives of the Federal Rules of Evidence," i.e., "the ascertainment of truth and the just determination of proceedings." As was noted in the appellate court decision in Joiner, "[A]ugmentation of the record with the testimony of a competent, independent and philosophically neutral Rule 706 expert focused upon evaluating the reliability of the proffered expert evidence will likely promote a more comprehensive and adequate ruling by the trial court. As complex scientific and technical evidence becomes more commonplace, in this ever-advancing computer age, the need for the trial court generalist to seek expertise in discharging Daubert responsibilities becomes increasingly evident and compelling." Joiner v. General Elec. Co., 78 F.3d 524, 535 (11th Cir. 1996) (J. Birch, concurring).

The scientific and medical communities have also encouraged the courts to consider using independent experts. For example, three scientists who served on the scientific panel that was formed to advise the federal judiciary on silicone breast implants recently published an article stating that based on their experience, they recommend using similar panels in the future; they wrote that they "believe that such panels should be used more frequently, because they can bring unbiased information about complex scientific and medical issues into the courtroom." Hulka, B., Kerkvliet, N., and Tugwell, P., Sounding Board: Experience of a Scientific Panel Formed To Advise the Federal Judiciary on Silicone Breast Implants, The New England Journal of Medicine, Vol. 342, No. 11 at 812, March 16, 2000. Similarly, U.S. Supreme Court Justice Breyer, in his concurrence in General Electric v. Joiner, quoted a New England Journal of Medicine amicus brief stating: "[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority . . . to appoint experts. . . ." 118. S. Ct. at 521.

In a survey of federal judges regarding appointments under Rule 706, the vast majority of judges who had exercised their discretion to utilize independent experts were pleased with the results. Cecil & Willging, Court-Appointed Experts, Reference Manual on Scientific Evidence at p.537. (Despite the widely recognized advantages, court-appointed experts are used relatively infrequently. In a study of federal district court judges, it was revealed that there are several reasons why court appointed experts were not used more, including: (1) the failure of the parties to suggest appointing an expert; (2) the failure to recognize the need for such an expert until the eve of trial; and (3) a lack of appropriate ways to compensate the expert, especially when one of the parties is indigent. Cecil and Willging, "Court-Appointed Experts," Reference Manual on Scientific Evidence at 530.) As noted by one judge, "a court expert serves not only as a witness on whose opinion the Court can rely for assistance, but also as both a second set of ears for the court and a teacher who ... can explain the technical significance of the evidence presented." Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304, 1312 (S.D.N.Y. 1981).

While one court has noted that "[c]ourts are less assertive than they might be in enlisting the help of neutral experts," In re Joint E. & S. Dists. Asbestos Litigation, 830 F. Supp. 686, 693 (E. & S.D.N.Y. 1993), the concept of using independent experts has found support from many different judges overseeing complex litigation. One of the preeminent jurists in toxic tort litigation, Judge Weinstein of the Eastern District of New York, suggested that court-appointed experts are "especially critical in dealing with complex mass tort problems." See In re Joint E. & S. Dists. Asbestos Litigation, 830 F. Supp. 686, 693 (E. & S.D.N.Y. 1993).

Recent Cases Making Use of Court Appointed Experts

In the breast implant cases, independent experts have been used extensively. Judge Samuel Pointer, Jr., the judge who was overseeing all federal cases involving silicone breast implants, decided that in light of the complex scientific questions raised by this litigation, a neutral panel of scientific experts should be appointed to provide the federal bench with unbiased, scientific evidence on the relationship between the breast implants and certain types of diseases. Judge Pointer appointed a National Science Panel, which identified and recommended scientists for the panel itself. The National Science Panel chose four scientists: an immunologist, a toxicologist, an epidemiologist, and a rheumatologist. These scientists reviewed, critiqued and analyzed the scientific literature regarding whether there is a causal link between silicone breast implants and certain diseases, and then prepared a written report summarizing their findings.

Similarly, in Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996), the court used appointed experts to assist it with evaluating the reliability and relevance of scientific evidence under the Daubert standard. The independent panel selected by the court consisted of experts in the fields of epidemiology, immunology/toxicology, rheumatology and chemistry. Based on the advice of the panel, the court excluded as unreliable the plaintiffs’ expert testimony on the purported link between silicone breast implants and several types of connective tissue diseases and autoimmune disorders. Id. at 1414. In doing so, the court noted that no scientifically valid evidence existed to support plaintiffs’ contentions that silicone more likely than not caused these afflictions. Id.

In cases resulting from the Swine Flu Immunization Program, the district court appointed a panel of three experts, noting that "[d]ue to the technical complexity of certain issues involved in this litigation, the Court finds that the appointment of a Panel of Medical Experts will meaningfully assist in their resolution." In re Swine Flu Immunization Products Liability Litig., 495 F. Supp. 1185, 1186 (W.D. Okl. 1980).

Similarly, the court in Renaud v. Martin Marietta Corp., 749 F. Supp. 1545 (D. Colo. 1990), aff’d, 972 F.2d 304 (10th Cir. 1992), appointed independent experts in a toxic tort suit brought by Colorado residents alleging injuries drinking water contaminated with hydrazine. The plaintiffs alleged a variety of injuries from the hydrazines, including cancer, seizure disorders and birth defects. Id. at 1547. Faced with an impending evidentiary hearing on the admissibility of plaintiffs’ expert witnesses’ opinions, the court appointed three experts, a geochemist, a physician with expertise in environmental health and epidemiology, and a toxicologist, to determine whether the trial experts’ methodologies were of a type normally relied upon by experts in that field. Id. at 1548. The trial court relied on reports prepared by the independent experts in excluding certain testimony proffered by the plaintiffs. Id. at 1555. The Tenth Circuit upheld the trial judge’s reliance on the experts’ opinions. See Renaud, 972 F.2d at 308. See also Imazio Nursery Inc. v. Greenhouse, No. 92-20755 (SW), 1997 W.L. 195434 (N.D. Cal. 1997) (appointing an independent expert to perform genetic testing and interpret the results for the court); Computer Associates International, Inc. v. Altai, Inc., 775 F. Supp. 544 (E.D.N.Y. 1991), vacated in part on other grounds, 982 F.2d 693 (2d Cir. 1992); Gates v. United States, 707 F.2d 1141 (10th Cir. 1983); Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304 (S.D.N.Y. 1981); Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill. 1980); Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962); D. Pfaff, "Rare Concept Gains Wide Support" in The L.A. Daily Journal (February 26, 1997).

Procedural Issues

Requesting A Court To Appoint Independent Experts

Because of the great impact that expert evidence can have on a case, it is best to keep this issue in mind from the very beginning of the litigation. The decision regarding requesting court-appointed experts should be part of a comprehensive strategy for addressing expert issues. The motion to appoint an independent panel of experts may be brought as the opening motion educating the court about the science, well before there is any preliminary hearing pursuant to Federal Rule of Evidence 104(a) or other state requirements. (Rule 104(a) is the U.S. District Court's vehicle for determination of preliminary questions concerning the qualifications of a witness, the existence of a privilege, or the admissibility of evidence. Rule 104(a) requires the court to conduct a preliminary fact-finding and to make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue ...." Daubert, 509 U.S. at 592-93.)

The motion for independent experts may also precede, or follow, dispositive motions challenging the science. The approach that is frequently used in toxic tort and products liability cases is to couple a motion in limine to exclude the evidence under the Daubert standards with a motion for summary judgment, arguing that if the motion in limine to exclude the expert testimony is granted, then the other side is not able to establish a key element of their case, i.e., causation. (If you are in state court, you then may need to bring a Frye motion rather than a Daubert motion, because not all states have decided to follow Daubert. In some jurisdictions, the highest court has not yet answered the question of whether Daubert has supplanted Frye as the relevant inquiry for assessing the admissibility of expert scientific evidence. Other states have adopted different approaches. For example, the California Supreme Court decided to continue to follow Frye when assessing the admissibility of new scientific techniques, and to require that such evidence be generally accepted by a typical cross-section of the relevant scientific community. People v. Leahy, 8 Cal.4th 587 (1994).) In addition, critical expert evidence may be so conclusory that it fails to raise a genuine issue of fact, giving rise to a summary judgment motion. As the court stated in Daubert:

[I]n the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment . . . and likewise to grant summary judgment.

509 U.S. 579 at 596.

Selecting Independent Experts

Judges are afforded broad discretion under Rule 706 in fashioning a selection procedure for appointing independent experts. While courts have utilized a variety of selection procedures, one alternative is to have established scientific organizations recommend reputable experts to the court. (Some courts have selected independent experts based on nominations made by the parties. See, e.g., Gates v. United States, 707 F.2d 1141, 1144 (10th Cir. 1983). However, more often than not, the parties are unable to agree on recommendations. See Superior Beverage Co. v. Owens-Illinois, Inc., 1987 WL 9901 (N.D. Ill. Jan. 30, 1987) (after parties failed to agree on nominees, court canvassed individuals in judicial and academic circles to obtain names of potential experts).) Indeed, the authors of the Manual for Complex Litigation suggest that a court interested in selecting experts "call on professional organizations and academic groups to provide a list of qualified, willing and available persons," and then give the litigating parties an opportunity to comment. See Manual for Complex Litigation, § 21.51 (3d ed. 1995). The selected experts, representing neither side, could then evaluate the expert testimony and generally explain to the court the current scientific knowledge about the matter at hand. In doing so, the experts would assist the court in bridging the gap between science and the judicial process and help ensure that the jury can optimally evaluate complex scientific or technological issues.

Recently, two organizations have launched programs to provide judges with lists of experts who can provide advice in complicated cases. Specifically, the American Association for the Advancement of Science began a five-year pilot project in 1999 entitled the Court Appointed Scientific Experts Project, which will supply judges with lists of independent experts. Judge Pamela Ann Rymer, a judge with the U.S. Court of Appeals for the Ninth Circuit, is chair of the project’s advisory committee. The Private Adjudication Center at the Duke University School of Law also started last year a registry of independent scientific and technical advisors. The Center states that the registry "may have significant and potentially far-reaching benefits: improving the quality of science used in dispute resolution, reducing unwelcome pressure on the integrity of science caused by the purchase by adversaries of scientific opinions, facilitating settlement, reducing the number and length of legal proceedings, and lowering the costs of dispute resolution."

Of course, the selection process should also permit the parties to make any objections for bias or failure to meet minimum criteria. In some instances, the parties may agree to share the costs of the independent experts.

Appointing Technical Advisors

Wholly apart from rule 706, courts also have the inherent authority to appoint a technical advisor to assist in determining questions of admissibility. For example, in one case the court appointed an epidemiologist and a toxicologist to "assist in evaluating the reliability and relevance of the scientific evidence" of medical causation in the breast implant cases. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1393 (D. Or. 1996). Judge Thomas Reavley has endorsed this approach of using court-appointed experts for pre-trial screening of expert evidence. Specifically, he recommends:

[A] pretrial hearing with live testimony from all the experts, reviewed by the judge with the assistance of her own expert sitting alongside. . . . The hearing should be held after all experts have had an opportunity to study all expert reports. The court’s expert, along with the lawyers on each side, should have the opportunity to interrogate the contending experts. The hearing should be fully reported, and the lawyers on all sides should have the opportunity to respond to any contention, including an opinion of the court-appointed expert. The purpose of the court-appointed expert is not so much to become a witness in the trial itself, but to test and screen for the judge the statements and opinions of the experts who do propose to testify.

T.M. Reavley, "Judicial Control of Expert Opinion After Daubert," Scientific Evidence Review: Monograph No. 3 at 4-5 (1998).

Conclusion

Judge Learned Hand wrote in 1901 that "No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best." Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40 (1901). As we now enter the 21st century, the use of experts has increased significantly as questions involving science and technology have become more and more common in our courts, and litigators and courts continue to grapple with this issue of how to most effectively use expert evidence. Judges and juries are going to continue to be called on to make informed decisions about medical, scientific and technological evidence relating to many important issues. In some of these actions, the outcome of the case will be dependent upon which side’s experts (who often have diametrically opposed views) the trier of fact believes. Poor jury verdicts in cases involving crucial scientific and technical questions are often the result of poor evidentiary approaches and decisions regarding expert evidence.

As the American Medical Association noted in its amicus brief in the Joiner case, the admission of "expert" opinion that does not have sound support can have a negative impact well beyond the courtroom doors. As it pointed out, because of the liability imposed on the basis of unsound expert testimony, society has been deprived of a number of beneficial products, including certain drugs and vaccines. It thus is vital to our judicial system and to our society that we continue to be vigilant to ensure that only valid and reliable expert testimony is permitted to pass through the gate. The appointment of independent scientists is one way to facilitate the achievement of this goal.