The State of State of Thoughts Testimony by Specialists

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The problem of the mind-set or intent of a celebration can play out quite a few methods based mostly on the character of the case.  Within the legal context, proof of the mens rea of the defendant is often a component within the statutory definition of the crime.  In a civil contract case, whether or not the events had a gathering of the minds and the way one social gathering really interpreted disputed provisions may be central points to resolve.  In an employment case, it might be the difficulty of whether or not the acknowledged purpose for taking an opposed employment motion was mere pretext for the actual purpose.  Within the product legal responsibility context, the main target may be on the plaintiff’s assumption of danger or the defendant’s alleged reckless indifference to the danger of the hurt that allegedly befell the plaintiff.  As a result of plaintiffs in large-scale drug and machine strive circumstances to get punitive damages, the latter is a recurring difficulty in our circumstances.

Again within the day, nicely earlier than The Case of Thorns gave rise to tort regulation and tort regulation finally gave rise to product legal responsibility claims, some trials had been determined based mostly on using oath helpers, purportedly upstanding residents who would swear that one social gathering was good and trustworthy and, thus, ought to prevail.  The oath serving to might contact on all manners of mind-set, equivalent to “Ruprecht is telling the reality that he thought it was his pig” or “Rolfe was not performing in self protection when he slew variety Alfred.”  In American jurisprudence, the distaste for this overtly classist apply—nobles tended to have higher oath helpers than commoners—morphed into one thing referred to as the “final difficulty rule.”  As a result of juries determined disputed information, no witness was presupposed to stray into direct testimony on a deciding difficulty, which was seen as “usurping the province of the jury” with “empty rhetoric” from the stand.  This historical past is ready out within the Advisory Committee Notes to Federal Rule of Proof 704, which abolished the unwieldy final difficulty rule in federal civil and legal trials when it was adopted in 1975.

The 2011 to current model of the Rule offers:

Rule 704. Opinion on an Final Situation

(a) In Normal — Not Robotically Objectionable. An opinion shouldn’t be objectionable simply because it embraces an final difficulty.

(b) Exception. In a legal case, an knowledgeable witness should not state an opinion about whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection. These issues are for the trier of reality alone.

On its face, the abolition applies to opinion testimony from each lay and knowledgeable witnesses, though the exception is only for consultants in legal circumstances.

The Notes additionally comprise a reasonably acquainted rationalization that references oath helpers:

The abolition of the final word difficulty rule doesn’t decrease the bars in order to confess all opinions. Beneath Guidelines 701 and 702, opinions should be useful to the trier of reality, and Rule 403 offers for exclusion of proof which wastes time. These provisions afford ample assurances in opposition to the admission of opinions which might merely inform the jury what end result to achieve, considerably within the method of the oath-helpers of an earlier day. Additionally they stand able to exclude opinions phrased by way of inadequately explored authorized standards. Thus the query, “Did T have capability to make a will?” can be excluded, whereas the query, “Did T have enough psychological capability to know the character and extent of his property and the pure objects of his bounty and to formulate a rational scheme of distribution?” can be allowed. McCormick §12.

We first ran throughout this language again in 2000 when posed with the difficulty forestall a plaintiff knowledgeable, certified in some self-discipline related to no less than some points within the case, from providing what amounted to a second opening from the witness stand, replete with all method of “opinions” on what the defendant drug producer knew, why it did what it did, and the way not doing what it didn’t do was proof of unhealthy intent.  We used to name this “intentology” testimony and, once we first appeared, the authority for excluding it was as skinny as the premise for admitting it, regardless that many courts had admitted it over faint objection.  Though we provided quite a few arguments for why the plaintiff consultants shouldn’t be allowed to sprinkle in all their musings on intent in the middle of their testimony, the one which has been probably the most impactful in serving to to create a line of federal MDL selections since 2000 is that consultants shouldn’t be permitted to usurp the jury’s operate with this kind of thinly veiled advocacy.  After our first two selections on this difficulty from the In re Weight loss plan Medication MDL, quite a few particular person selections adopted swimsuit, but it surely was the revealed resolution from the In re Rezulin MDL as a part of broader Daubert challenges that actually bought issues rolling in MDL after MDL. 

We detailed the primary eleven years of this line of circumstances right here.  With credit score to Kelly McNeill, we are able to current a mini-survey of federal selections since 2011, targeted on MDL and MDL remand circumstances, which makes it clear that the exclusion of knowledgeable opinion on the mind-set of a company defendant is the decidedly majority place.

                        FIRST CIRCUIT

  • In re Zofran (Ondansetron) Prod. Liab. Litig., No. 1:15-MD-2657-FDS, 2019 WL 5685269, at *9 (D. Mass. Nov. 1, 2019) (MDL excluded plaintiff knowledgeable’s challenged opinions; “Inferences concerning the intent or motive of events or others lie exterior the bounds of knowledgeable testimony.”) (citing In re Solodyn (Minocycline Hydrochloride) Antitrust Litig., 2018 WL 734655, at *2 (D. Mass. Feb. 6, 2018); In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2nd 531, 547, 551 (S.D.N.Y. 2004); In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2nd 1323, 1337-38 (S.D. Fla. 2010)).

                        SECOND CIRCUIT

  • In re Mirena IUD Prod. Liab. Litig., 169 F. Supp. 3d 396, 479–80 (S.D.N.Y. 2016) (MDL excluded frequent flyer plaintiff knowledgeable’s opinions on the “intent, motives or states of thoughts of firms, regulatory businesses and others,” however permitted testimony on “what data was in [defendant’s] possession” and the intent of defendant or FDA when “clearly indicated in public paperwork”).

                        THIRD CIRCUIT

  • Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 497 (D. Del. 2019) (“Professional testimony as to intent, motive, or mind-set provides not more than the drawing of an inference from the information of the case … and allowing knowledgeable testimony on this topic can be merely substituting the knowledgeable’s judgment for the jury’s and wouldn’t be useful to the jury.”).
  • In re: Tylenol (Acetaminophen) Mktg., Gross sales Pracs., & Prod. Liab. Litig., No. 2:12-CV-07263, 2016 WL 4039271, at *8 (E.D. Pa. July 28, 2016) (MDL excluded frequent flyer plaintiff knowledgeable’s opinions; citing quite a few selections on the identical knowledgeable, together with Heineman v. American House Merchandise Corp., No. 13–cv–02070–MSK–CBS, 2015 WL 1186777, at *12 (D. Colo. Mar. 12, 2015) (excluding Dr. Blume’s opinions about defendants’ mind-set); In re Viagra Prods. Liab. Litig., 658 F. Supp. 2nd 950, 964-965 (D. Minn. 2009) (“There isn’t a indication within the document that the jury right here would require particular help to interpret the paperwork on which Dr. Blume bases her opinion that Pfizer was extra apprehensive about unhealthy publicity than security. As a result of the jury is equally able to evaluating this explicit proof, Dr. Blume’s opinion on this matter should be excluded.”); Chandler v. Greenstone Ltd., No. C04–1300RSL, 2012 WL 882756, at *1 (W.D. Wash. Mar. 14, 2012) (excluding Dr. Blume’s opinions on defendants’ mind-set, intent, or information); Johnson v. Wyeth LLC, No. CV 10–02690–PHX–FJM, 2012 WL 1204081, at *3 (D. Ariz. Apr. 11, 2012) (excluding Dr. Blume’s opinions on defendants’ motive, intent, information, or different mind-set)).

                        FOURTH CIRCUIT

  • Quite a few selections from 2013 ahead by the decide overseeing a number of pelvic mesh MDLs expressed comparable rulings that broadly excluded intent opinions.  As an example, in Eghnayem v. Bos. Sci. Corp., 57 F. Supp. 3d 658, 670 (S.D.W. Va. 2014), aff’d 872 F.3d 1304 (eleventh Cir. 2017), the courtroom acknowledged:

First, as I’ve maintained all through these MDLs, I cannot allow the events to make use of consultants to usurp the jury’s fact-finding operate by permitting an knowledgeable to testify as to a celebration’s mind-set or on whether or not a celebration acted moderately. See, e.g., Huskey v. Ethicon, Inc., 29 F.Supp.3d 691, 702, 2:12–cv–05201, 2014 WL 3362264, at *3 (S.D.W. Va. July 8, 2014); Lewis, et al. v. Ethicon, Inc., 2:12–cv–4301, 2014 WL 186872, at *6, *21 (S.D.W. Va. Jan. 15, 2014); In re C.R. Bard, Inc., 948 F.Supp.2nd 589, 611, 629 (S.D.W. Va.2013). Though an knowledgeable might testify about his or her evaluate of inner company paperwork solely for the aim of explaining the premise for his or her opinions—assuming the opinions are in any other case admissible—a celebration’s information, mind-set, or different issues associated to company conduct and ethics are usually not acceptable topics of knowledgeable testimony as a result of opinions on these issues won’t help the jury.

                        FIFTH CIRCUIT

  • Greger v. C.R. Bard, Inc., No. 4:19-CV-675-SDJ, 2021 WL 3855474, at *9 (E.D. Tex. Aug. 30, 2021) (remand case precluded plaintiff knowledgeable from opining on the defendant’s “subjective intent, motives, or inner decision-making concerned in [product] testing,” whereas allowing opinions on defendant’s “goal actions or inactions with respect to [product] testing, and the sufficiency thereof”).

                        SIXTH CIRCUIT

  • In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 345 F. Supp. 3d 897, 902–03 (S.D. Ohio 2015) (“Courts have usually barred knowledgeable opinions or testimony regarding an organization’s mind-set, subjective motivation, or intent.”) (MDL No. 2433)

                        SEVENTH CIRCUIT

  • In re Fluidmaster, Inc., Water Connector Elements Prod. Liab. Litig., No. 14-CV-5696, 2017 WL 1196990, at *24 (N.D. Unwell. Mar. 31, 2017) (MDL excluded plaintiff knowledgeable on “the motivations, intent, and mind-set of an organization,” noting “[t]he jury won’t be aided by Plaintiffs’ knowledgeable speculating about why Defendant made design adjustments and outsourcing selections”).

                        EIGHTH CIRCUIT

  • Clinton v. Mentor Worldwide LLC, No. 4:16-CV-00319 (CEJ), 2016 WL 7491861, at *11 (E.D. Mo. Dec. 30, 2016) (“The query of company motive, intent, information or mind-set is one for the jury, not for an knowledgeable . . . . Recitation of defendant’s personal company paperwork doesn’t fall throughout the purview of knowledgeable testimony beneath Federal Rule of Proof 702.”) ( remand from MDL No. 2004); Kruszka v. Novartis Pharms. Corp., 28 F. Supp. 3d 920, 937 (D. Minn. 2014) (“The Courtroom agrees with the events that Dr. Vogel might not proffer an opinion regarding what people at Novartis thought of data present in sure inner paperwork or about their motivations relating to these paperwork.”) (remand from MDL No. 1760).

                        NINTH CIRCUIT

  • Stanley v. Novartis Pharms. Corp., No. CV1103191JGBOPX, 2014 WL 12573393, at *6 (C.D. Cal. Might 6, 2014) (“[T]he opinions of [expert] witnesses on the intent, motives, or states of thoughts of firms, regulatory businesses and others haven’t any foundation in any related physique of information or experience.”) (remand from MDL No. 1760).

                        TENTH CIRCUIT

  • Fischer v. BMW of N. Am., L.L.C., No. 18-CV-00120-PAB-MEH, 2020 WL 9259705, at *6 (D. Colo. Mar. 10, 2020) (non-MDL exclusion of plaintiff knowledgeable’s opinion on defendant’s intent) (citing In re Rezulin and Wells v. Allergan, 2013 WL 7208221, at *2 (W.D. Okla. Feb. 4, 2013)), aff’d sub nom. Fischer v. BMW of N. Am., LLC, No. 20-1399, 2021 WL 5458444 (tenth Cir. Nov. 23, 2021).

                        ELEVENTH CIRCUIT

  • In re 3M Fight Arms Earplug Prod. Liab. Litig., No. 3:19MD2885, 2021 WL 765019, at *42 (N.D. Fla. Feb. 28, 2021) (MDL excluded plaintiff knowledgeable on defendant’s “mind-set, together with his opinion as to what 3M ‘hop[ed],’ had ‘no concept’ about, and what 3M knew or didn’t know.”).

  * * *

Now the difficulty of the admissibility of knowledgeable testimony on a defendant’s mind-set is pending earlier than the Supreme Courtroom in a drug case.  Not product legal responsibility, thoughts you, however a legal prosecution for importing meth, Diaz v. United States. (The Ninth Circuit’s unpublished opinion is right here.)  As we famous up entrance, Fed. R. Evid. 704(b) precludes knowledgeable opinion on “whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection.”  After conviction, Diaz appealed to the Ninth Circuit on 4 grounds, three of which had been just about walkovers because of the defendant’s procedural failings under.  The fourth associated to the admission of “the federal government knowledgeable’s modus operandi testimony on drug trafficking organizations’ use of unknowing couriers.”  Slip op. at 5-6.  Diaz had provided a “blind mule” or “unknowing courier” protection and the federal government responded with testimony from an knowledgeable (who had testified many occasions in comparable circumstances earlier than the identical decide), whose testimony was decided to be dependable.  On attraction and we presume under, Diaz provided an extra argument beneath Rule 704(b):

Lastly, Diaz argues that testimony that drug trafficking organizations hardly ever use unknowing couriers is the “practical equal” of a prohibited opinion on psychological state. That is opposite to our precedent. Diaz is right that the Fifth Circuit has adopted this view, see, e.g., United States v. Gutierrez-Farias, 294 F.3d 657, 663 (fifth Cir. 2002), however we have now allowed such testimony as long as the knowledgeable doesn’t present an “express opinion” on the defendant’s mind-set, see, e.g., United States v. Gomez, 725 F.3d 1121, 1128 (ninth Cir. 2013) (quotation and inner citation marks omitted), and the knowledgeable didn’t achieve this right here.

Slip op. at 6-7.

The Supreme Courtroom accepted Diaz’s petition for cert.  It’s uncommon for the Supreme Courtroom to simply accept cert on a problem addressed in a single paragraph of an unpublished opinion, however the quote above from that opinion signifies {that a} circuit break up has existed for no less than ten years.  Protection of the oral argument two weeks in the past indicated that a number of justices questioned the relevancy of the knowledgeable’s testimony if, to keep away from Rule 704(b)’s exception, the knowledgeable’s opinion didn’t tackle whether or not Diaz’s “did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection,” on this case whether or not she was an harmless dupe or a understanding courier of the meth.  Primarily based on the questioning at oral argument, the stress is between knowledgeable opinion that does “not state an opinion about whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection” and knowledgeable opinion that’s not related to the defendant in any respect.  By way of graphic illustration, does the Venn diagram of 401 and 704(b) have an space of admissible overlapping knowledgeable opinion testimony?

This made us take into consideration the parallels to quasi-intent testimony introduced within the kind of circumstances in opposition to our shoppers.  If the federal government’s knowledgeable in Diaz was, as marketed, testifying concerning the modus operandi of Mexican drug cartels by way of their use of couriers of medication throughout the U.S.-Mexico border, then the testimony was provided to indicate {that a} blind mule is as frequent as a sighted unicorn and, thus, Diaz’s competition that she didn’t know she was carrying meth should be bogus.  That is akin to what’s typically known as sample and apply proof beneath Fed. R. Evid. 404(b)(2).  (As a result of we’re not legal legal professionals, we are able to put aside a dialogue of the discover requirement beneath 404(b)(3) when the prosecution tries to make use of such proof in a legal case.)  But, the sample and apply at difficulty on this testimony was not that of Diaz, however of cartels and drug carriers.  Utilizing the language of Rule 404, proof of different acts (by others) was provided to show “information . . . absence of mistake, or lack of accident.”  For Diaz, the argument in opposition to admissibility is that the knowledgeable’s testimony indicated that an harmless provider is a rarity, not whether or not Diaz knew she was transporting meth throughout the border.  In our circumstances, plaintiffs provide just a few variations of knowledgeable opinion on the defendant’s intent based mostly on the acts of others and knowledge regarding possibilities, though the plaintiffs are usually not ready for our shoppers to open the door to intent testimony.

For many years, plaintiff legal professionals in drug and machine product legal responsibility circumstances have overwhelmed the “income over security” drum and have tried to have consultants echo the phrase from the witness stand.  After all, savvy judges see that direct knowledgeable testimony that the defendant did, in actual fact, put income over security in making some resolution can be impermissible opinion on the defendant’s mind-set.  See In re Prempro Prods. Liab. Litig., 554 F. Supp. 2nd 871, 881 (E.D. Ark. 2008) (discussing exclusion of plaintiff knowledgeable’s “editorial about pharmaceutical firms placing gross sales and advertising and marketing earlier than science”), aff’d in pertinent half, rev’d partially on different grounds, 586 F.3d 547, 571 (eighth Cir. 2009). One approach to attempt to get across the prohibition of intent opinions is to supply knowledgeable proof on the defendant’s conduct that, with out saying what was within the heads of defendant’s resolution makers, makes clear that good firms don’t make the identical selections that defendant did as a result of they put security over income.  This has been used, together with different antics, to get large punitive damages awards, which require an intent discovering.    There’s not a lot daylight between this testimony and the knowledgeable’s in Diaz by way of the connection to the defendant’s intent.  Each are framed by way of the supposed intent of others to attract a distinction. 

One other approach to attempt to get across the prohibition on knowledgeable opinion on the defendant’s mind-set entails statistical flim flam.  We’ve seen variants utilized in civil RICO, third social gathering payor, and public nuisance litigation, amongst others, but it surely all follows a well-recognized sample whatever the principle of legal responsibility.  Primarily based on evaluation of information of orders, prescriptions, dispensation, reimbursement, and many others., the statistician/economist/mouthpiece can opine, in essence, that it’s overwhelmingly possible that the defendant’s actions had been taken with the requisite intent or that it’s overwhelmingly unlikely that they had been taken for an harmless, non-culpable purpose.  Once more, no matter how the knowledgeable comes up with the share (which is a matter for Rule 702), is there a elementary distinction by way of relevance between an knowledgeable opining that 98% of drug carriers are usually not “blind mules” and an knowledgeable opining that 98% of off-label prescriptions end result from intentional off-label promotion?  (Any opinion from an knowledgeable on why prescribing physicians, significantly physicians not within the case, prescribed particular medical merchandise is inherently suspect anyway.)  We might go on.

We have no idea what the Courtroom will maintain in Diaz in reference to the interaction between Rule 401 and Rule 704(b) by way of knowledgeable opinion on the intent of people or entities apart from the defendant.  We do strongly suspect, nevertheless, that the choice might present ammunition to oppose the kind of veiled knowledgeable opinion on intent—itself a response to the twenty-plus yr historical past of choices prohibiting the unveiled variant. 

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