innsofcourt.orginnsofcourt.org/committee/ProgramAwards/P12968.pdfSection Header Program Submission Form Program Title ...

Section Header Program Submission Form

Program Title ______________________________________________________________________________________________________________

Date Presented Inn Year

Presenting Inn ___________________________________________________________________________ Inn Number ________________________

Inn City _______________________________________________________________ Inn State ____________________________________________

Contact Person _________________________________________________________ Phone ______________________________________________

E-mail Address _____________________________________________________________________________________________________________

Please consider this program for the Program Awards: Yes No This program is being submitted for Achieving Excellence: Yes No

Program Summary:Indicate the legal focus and be concise and detailed in summarizing the content and setup of your program. Please attach additional sheets if necessary.

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

Program Materials: The following materials checklist is intended to insure that all the materials that are required to restage the program are included in the materials submitted to the Foundation office. Please check all that apply and include a copy of any of the existing materials with your program submission:

Script Articles Citations of Law Legal Documents Fact Pattern List of Questions Handouts

PowerPoint Presentation CD DVD Other Media (Please specify) ___________________________

Specific Information Regarding the Program:

Number of participants required for the program Has this program been approved for CLE? Yes No

Which state’s CLE? How many hours?

Recommended Physical Setup and Special Equipment:i.e., VCR and TV, black board with chalk, easel for diagrams, etc. When submitting video, please indicate the length of all videos. i.e., 30 or 60 min.

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

Comments:Clarify the procedure, suggest additional ways of performing the same demonstration, or comment on Inn members’ response regarding the demonstration.

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________

THIS FORM IS AVAILABLE FOR DOWNLOAD ON OUR WEBSITE: WWW.INNSOFCOURT.ORG

Program Submission Form

Agenda of Program:List the segments and scenes of the demonstration and the approximate time each step took; i.e., “Introduction by judge (10 minutes).”

Item Time

Program_Submission_Form.indd [Rev. 10/2012]

Roles:List the exact roles used in the demonstration and indicate their membership category; i.e., Pupil, Associate, Barrister or Master of the Bench.

Role Membership Category

Program Awards: Please complete this section only if the program is being submitted for consideration in the Program Awards.

Describe how your program fits the Program Awards Criteria:

Relevance: How did the program promote or incorporate elements of our mission? (Fostering Excellence in Professionalism, Ethics, Civility, and Legal Skills)

__________________________________________________________________________________________________________________________

Entertaining: How was the program captivating or fun?

__________________________________________________________________________________________________________________________

Creative and Innovative: How did the program present legal issues in a new way?

__________________________________________________________________________________________________________________________

Educational: How was the program interesting and challenging to all members?

__________________________________________________________________________________________________________________________

Easily Replicated: Can the program be replicated easily by another Inn? Yes No This program is: Original Replicated

Questions:Please contact Christina Hartle at (703) 684-3590 ext 105 or by e-mail at [email protected].

Please include ALL program materials. The committee will not evaluate incomplete program submissions.

1

2014-2015 INN OF COURT PRESENTATION TEAM 4 – EXPERT DEPOSITIONS

FEBRUARY 10, 2015

Set Up Set up two (or more) chairs at the front-center of the room faced at a 45-degree angle so the people sitting in the chairs are looking partially at each other and partially at the audience. The people participating in each skit segment can sit in these chairs so the audience can more easily see and hear what’s going on.

Set up TVs on either side of the room so what’s shown on the TVs (video clips, PPTs) can be seen by all audience members. Stephanie Wolf will be in charge of setting up equipment and operating it during our presentation. (Thanks Stephanie!) Highlighting means a clip or PPT needs to be cued up for that segment.

Vernon I. Introduction to Fact Pattern A. Play shower scene video clip from Psycho (01 - DVD)

B. Explain lawsuit that resulted:

1. Marion Crane was killed by Norman Bates

2. Ms. Crane’s estate sued Bates’ psychologist, “Willie Keller”

3. The family claims that Dr. Keller failed to diagnose Bates’ “dissociative identity disorder” (“DID”) and failed to warn Ms. Crane that Bates was dangerous.

C. We are now at expert deposition phase and Dr. Keller’s expert (also a psychologist) is about to be deposed

D. Introduce Dr. Mirsky

E. Three main portions of presentation:

1. Introduction to rules and legal issues related to experts

2. Several segments re: preparing an expert for his depositions

3. Several segments re: taking an expert’s depositions

II. Introduction to Relevant Law / Medical Issues

George A. Discuss expert witness rules/requirements under Federal Rules and in D.C. Superior Court (02 - PPT)

Nancy B. Discuss bringing in inadmissible evidence via experts (03 - PPT)

III. Defending an Expert Deposition

Amy A. Preliminary steps attorney should take (04.1 Video & 04.2 PPT)

Steve, Adrian & Dr. M

B. Prep Session #1 – Report review (05 - Skit)

2

Katherine & Dr. M

C. Prep Session #2 – Review CV (06 - Skit)

Vernon D. Break for audience feedback, questions, comments

Gabrielle E. Prep Session #3 – Magic Phrases (07 - PPT)

Vernon (Farrah)

F. Prep Session #4 – Changes to Expert Discovery Rules (08 - PPT)

IV. Taking an Expert Depositions

Billy A. Preliminary steps to take before deposing expert (09 - PPT)

David B. & Dr. M

B. Depo #1 – Attempting to show witness is unqualified (10 - Skit)

Stephanie & Dr. M

C. Depo #2 – Demonstrating witness is a “hired gun” (11 - Skit)

Isabella D. “Do”s and “Don’t”s of Expert Depositions (12 – PPT)

Vernon E. Break for audience feedback, questions, and comments

Judge Howell, Judge Edelman, and Dr. Mirsky

F. Q&A for our resident experts

1

William B Bryant American Inn of Court

February 10, 2015

Dr. Allan F. Mirsky

Steve: Hi Dr. Mirsky, thanks for coming in to prepare for your

deposition. I think you’ve met my partner, Adrian Sneed. He

and I have a couple of questions about your report that we

want to go over with you before your deposition next week.

Thus shouldn’t take long. So let’s get started.

Al: Before we do, let me ask you a question. I know I billed you

for my time reviewing the documents you sent me and

preparing my report, and I know I’m billing opposing counsel

for the deposition itself, but who gets the bill for today’s

preparation?

Steve: That also comes to us. But we won’t be long, so let’s get

started.

Al: Before we do, let me ask you another question. Who gets

billed for the time I spent yesterday, preparing for our meeting

today?

Steve: You prepared yesterday for the meeting today?

Al: Yes I did.

Steve: How much time did you spend?

Al: About 5 hours.

Steve: Oh my. Well, let me ask you this—weren’t you really preparing

for your upcoming deposition?

2

Al: Does it matter?

Adrian: It might.

Al: Which is better?

Adrian: Well, it seems to me that you’d want to prepare pretty

carefully for your deposition, but today is just an informal

meeting off the record, so I’m not sure why you spend 5 hours

preparing to meet with us.

Al: [tentatively] So… how about if I was preparing for the

deposition?

Steve: Glad to hear it. There’s some case law here in DC that

indicates that the opposing party has to compensate the

expert for time spent preparing to be deposed, at least where

the attorney is not part of that prep time. So bill Marion

Crane’s Estate.

Al: OK. Well I may spend lots more time then, after I Ieave here.

Steve: No problem. We’ll send that bill to the Crane Estate also. So

can we get started now?

Al: Sure.

Steve: OK. So we read your report—pretty technical stuff—and we

want to make sure we understand it, and more importantly,

we want to make sure you’ll explain it to the jury in terms

they’ll understand.

3

So 1st, as we understand it, you’re saying that Norman Bates

might have been suffering from dissociative identity disorder

at the time he was being treated by Dr. Willie Keller.

Al: That’s right .

Steve: 1st of all, that’s a mouthful. I’m sure I’ll stumble over it at trial.

Is there anything else we can call it?

Al: Well, it used to be called “multiple personality disorder.”

Steve: I don’t like that either. Sounds too Jekyll and Hyde. What else

can we call it?

Al: Well, it’s commonly abbreviated “DID.”

Steve: “DID.” I like it. Sounds like a gov’t agency that protects us

from disaster. Let’s just call it DID.

But now, it’s the P—Marion Crane’s Estate—who’s contending

that Bates had DID, and that Willie Keller should have

diagnosed it. How does it help us to concede that Bates might

have had DID?

Al: Well, I don’t know that it helps you, but I don’t think it hurts

you either. My point is that DID consists of a constellation of

symptoms that are very hard to distinguish from

schizophrenia, and that schizophrenia is a much more common

condition. So it was reasonable for Dr. Keller to assume

schizophrenia.

4

Adrian: So if the reasonably competent psychologist (RCP) hears hoof

beats, it’s reasonable to assume they’re being made by a horse

and not a zebra?

Al: I wouldn’t necessarily put it that way, but yes—more or less.

Adrian: We may need you to say that it’s your opinion, w/ reasonable

medical certainty, that Bates was not suffering from DID.

Those are the magic words, “reasonable medical certainty.”

Al: But I can’t say that—for two reasons. 1st, I’m not a medical

doctor-- I’m a neuropsychologist. I’m comfortable that we’re

within my field of expertise, but my opinions can only be

stated with reasonable neuropsychological certainty.

Steve: Ok. We can live with that. What’s the 2nd reason?

Al: The second reason is that we don’t have enough information

to rule out DID. I can say w/ reasonable neuropsychological

certainty that DID was a less likely explanation for Mr. Bates’

symptoms—at least before he stabbed that poor girl in the

shower—but I don’t have enough information to rule out DID,

and neither did Willie Keller before the stabbing.

Steve: Ok. We can live with that too. Anything else?

Al: Yes. Schizophrenia is treatable, with psychotropic drugs. So

once you have schizophrenia as a reasonable working

diagnosis, it’s entirely appropriate for Dr. Keller to refer Mr.

Bates to a psychiatrist , who could prescribe appropriate drug

therapy. Which is exactly what he did. If the drug therapy

didn’t work, it would have been appropriate at that time to

5

entertain other diagnoses, but Mr. Bates stabbed Ms. Crane

before that could happen.

Adrian: Couldn’t Dr. Keller prescribe the meds himself?

Al: No. Psychologists like Dr Keller can prescribe meds in some

jurisdictions, but not here.

Steve: I like it. It makes us sound very reasonable. Instead of denying

that DID was a possible dx, we confess and avoid. We say yea,

it was possible, but this other dx was more likely— and we

can’t be negligent for proceeding to treat the more likely

problem.

Adrian: But it all seems to hinge on the similarity of symptoms

between DID and schizophrenia. You talked about that at

length in your report, but they jury won’t necessarily get to see

your report. So how can we effectively communicate all that

technical stuff?

Al: I was thinking about that myself. So I prepared a synopsis , in

chart form, that I thought we could use at trial, and I could talk

about. Here-- see what you think.

[chart is projected]

Steve: [reviewing chart] This is excellent, thank you! It will make it

much easier to explain these very technical matters to the jury.

Al: So should I bring this to the deposition next week?

Steve: What do you think, Adrian?

6

Adrian: What if we call it a demonstrative aid and spring it at trial. If

that becomes a problem, we could ask Dr. Mirsky to recreate

it, by hand, at an easel?

Al: I could do that.

Steve: Excellent. So I guess that does it.

Al: Actually, there’s one small point I’m concerned about. I didn’t

mention it in my report, but when I reviewed Dr. Keller’s

counseling records and then his deposition, I didn’t see where

he said that he asked Mr. Bates if he had any suicidal or

homicidal ideations.

Steve: [looking to Adrian): Did he?

Adrian: I don’t remember the question being asked. Is that a problem?

Al: It could be. It’s a standard part of a psychological evaluation.

If it wasn’t asked, then I really can’t say that a thorough

evaluation was done.

Steve: OK, well, I’ll check with Dr. Keller. Maybe he’ll remember

asking the question and just not making a note of it. But if he

doesn’t, and it comes up, how can deal with it?

Al: Well, this is something else I was thinking about yesterday. If

Dr. Keller had diagnosed DID instead of schizophrenia as Ms.

Crane’s Estate says he should have, what then? I’m not aware

of any literature that compares the risk of homicide in DID

patients versus schizophrenics; who’s to say that the dx of DID

would have resulted in a greater suspicion of homicidal

tendency than a dx of schizophrenia?

7

And even if there were any such literature, the risk is going to

be very small in both diagnoses— so one could never say that

either dx carries with it a risk greater than 50% that the pt

would commit a murder— and then even if the risk were

greater than 50%-- which I can assure you it’s not—what’s the

reasonably competent psychologist to do?

There’s no identifiable victim to warn. There’s no indication

that Willie Keller had any information to suggest that Norman

Bates was thinking of stabbing Marion Crane. So even if the dx

of DID rather than schizophrenia somehow meant that it was

more likely than not that Norman Bates would kill someone,

the most Willie Keller could do was seek his involuntary

commitment, so he could not harm anyone. On these facts,

there’s no way I would have sought involuntary commitment.

Adrian: That sounds great, Dr. Mirsky, except for the last part. You

said you wouldn’t have sought involuntary commitment . . .

Al: That’s right, there wasn’t nearly enough indication to do that.

Adrian: I appreciate that, but the standard of care is not what you

would have done, it’s what a reasonably competent

psychologist in the same or similar circumstances would have

done.

Al: Are you suggesting that I’m not a reasonably competent

psychologist?

Adrian: Oh my no—not at all! It’s just that the standard is objective;

it’s not what any particular person would do, it’s what any

reasonably competent member of the profession would do.

8

Al: And that’s not me?

Steve: Of course it’s you, but it’s also a lot of other members of the

profession. It’s a hypothetical construct.

Al: Ah, a hypothetical construct. Now that’s clear.

Steve: Great, so don’t fall into the trap of describing the standard of

care as what you would do.

So here’s how I’ll ask you the question at trial:

Dr Mirsky, do you have an opinion, with reasonable

neuropsychological certainty, as to whether Dr Willie

Keller violated the SOC in his counseling of Norman

Bates?

and you’ll say “I do”---

and then I’ll ask—

“what is that opinion?”

and you’ll say “he did not”—

and then I’ll ask—“and what is the basis for that

opinion?”

and you’ll discuss all the reasons we talked about today.

Got it?

9

Al: Got it.

Steve: Good. OK. So let me say how pleased I am that you’ve agreed

to help us out here Dr. Mirsky. Now ______, who’s also on

our trial team, wants to review your cv with you, just so we

don’t have any surprises.

Adrian: And oh yes-- remember that the bill for all the great

preparation you did yesterday goes to the Crane Estate .

1

B. Deposition #1 – Attempting to Demonstrate Witness is Unqualified

1) Lack of Appropriate Education

Question: Dr. Mirsky, did your college education at the City College of New York involve the study of

Dissociative Identity Disorder?

Dr. Mirsky: No, it did not. I majored in Psychology in college. Of course one would not expect to delve

that deeply into subject matter like this in an undergraduate setting.

Question: Well, you received a Master’s Degree in Clinical and Physiological Psychology from Yale

University; did you focus any of your work there on the study of Dissociative Identity

Disorder?

Dr. Mirsky: No I didn’t; I studied a broad range of topics that may have touched on that disorder but that

was not my area of focus.

Question: Finally, you received your Ph.D., also in Clinical and Physiological Psychology, again from

Yale.

Dr. Mirsky: Yes, that was in 1954.

Question: Did you complete a dissertation as part of your course of study for your Ph.D.?

Dr. Mirsky: Yes

Question: What was your dissertation about?

Dr. Mirsky: Well, it was titled Maze retention deficit following electro-convulsive shock independent of

feeding schedule.

Question: Did your dissertation have anything to do with Dissociative Identity Disorder?

Dr. Mirsky: No.

2) Lack of Appropriate Experience

Question: Dr. Mirsky, you’ve been in practice since 1954.

Dr. Mirsky: Yes, I began my career as a Research Psychologist at NIH in Bethesda.

Question: Could you briefly describe the different places you’ve worked during your career.

Dr. Mirsky: I’ve been a Professor of Neuropsychology, a Professor of Psychology, a Chief of

Laboratory Psychology, and a Clinical Neuropsychologist at various medical schools,

such as the Boston University School of Medicine, the National Institute of Mental

Health, and Walter Reed National Military Medical Center.

Question: Dr. Mirsky, during the 60+ years you’ve been in practice, have you ever treated someone

with Dissociative Identity Disorder before?

2

Dr. Mirsky: No.

3) Showing Mismatch between specific experience and specific issues

Question: Dr. Mirsky, the primary focuses of your career as a Clinical Neuropsychologist have been

on research and teaching, is that correct?

Dr. Mirsky: Yes, I have extensive experience as a researcher over my 61 year career and have worked

in an academic setting as a professor for 54 years.

Question: Have you published the results of your work?

Dr. Mirsky: Yes, I have published 109 times in peer-reviewed publications and I have 5 other

publications pending.

Question: And you’ve published on topics that range from for example, the Effect of subcortical

aluminum cream lesions on attentive behavior and the electroencephalogram in monkeys

(#36 in CV) to Evaluation of traumatic brain injury: Brain potentials in diagnosis,

function, prognosis. (#107 in CV)

Dr. Mirsky: I’ve conducted research on a wide range of topics.

Question: You’ve published 3 books.

Dr. Mirsky: Yes.

Question: And you’ve written or participated in the writing of 55 chapters of various books.

Dr. Mirsky: Yes I have.

Question: But in of your 109 peer-reviewed research publications, 3 books, and 55 chapters, have

you ever researched or written about Dissociative Identity Disorder?

Dr. Mirsky: No.

4) Showing that the Expert Lied in CV:

Question: Dr. Mirsky, I’m showing you what I’ve marked as Plaintiff’s Exhibit 1 for the purpose of

this deposition. Can you tell us what this is?

Dr. Mirsky: This is a copy of my Curriculum Vitae.

Question: Your Curriculum Vitae, or CV, describes your education and professional

accomplishments.

Dr. Mirsky: Yes

Question: You created your CV

3

Dr. Mirsky: Well, I did the original version, but my assistant edits it.

Question: Well, you have reviewed your own CV for accuracy before sending it to others.

Dr. Mirsky: Yes

Question: You’ve provided your CV to people who were considering you for teaching positions.

Dr. Mirsky: Yes

Question: You’ve provided your CV to people who were deciding whether to hire you for positions

where you would work in a clinical setting.

Dr. Mirsky: Yes

Question: You’ve provided your CV to attorneys involved in litigation.

Dr. Mirsky: Yes

Question: You’ve testified in court before.

Dr. Mirsky: Yes, 16 times.

Question: And your CV has been provided to judges as an exhibit.

Dr. Mirsky: Yes it has.

Question: And each time you’ve provided your CV, you have represented that it is accurate.

Dr. Mirsky: Yes

Question: That your CV is truthful.

Dr. Mirsky: Yes

Question: But on page one of your CV, it indicates that you graduated with a “M.S.,” a Master’s of

Science Degree, in Clinical and Physiological Psychology from Yale University.

Dr. Mirsky: It does say that.

Question: That is not true, is it.

Dr. Mirsky: That’s a typo. I actually received an “M.A.,” a Master’s of Arts Degree in Clinical and

Physiological Psychology.

Question: A Master’s of Science Degree is different from a Master’s of Arts Degree.

Dr. Mirsky: Yes

Question: And when you provided your CV to potential employers, universities, and to attorneys,

you knew that this “typo” was present on your CV.

4

Dr. Mirsky: Yes I did.

5) Bringing out lawsuits that have been filed against the expert

Question: Dr. Mirsky, have you ever been sued.

Dr. Mirsky: Yes I have.

Question: How many times have you been sued.

Dr. Mirsky: I’ve been sued 4 times over the course of my career.

Question: Let’s break this down a little bit. When were you sued?

Dr. Mirsky: I was sued in 1977, 1998, 2003, and 2009.

Question: What were the grounds of the lawsuits.

Dr. Mirsky: Well, in 1977 I was sued by Boston University regarding my employment contract. In

1998, Merck sued me in a contract dispute regarding research I’d conducted. The lawsuit

in 2003 involved Raven Press, the publisher of one of my books, and it had to do with

royalty payments to me. Finally, in 2009 I was accused of plagiarism by one of the

professors who’d worked me on my monkey research.

Question: Did any of these suits go to trial?

Dr. Mirsky: No, they all settled out of court.

REPORT

Name of Patient: Norman Bates

Date of Birth: 05/20/1976

Referred by: Alfred Hitchcock, Esq.

Evaluation by: Allan F. Mirsky, Ph.D., ABPP-CN

I have been asked to address three issues: (a) whether Mr. Norman Bates was likely

suffering from dissociative identity disorder (DID) at the time he was being treated by Mr.

Hitchcock’s client, Dr. Willie Keller; (b) whether Dr. Keller violated the applicable

standard of care by not reaching the diagnosis of DID; and (c) whether—if he had been

able to make the diagnosis of DID—the standard of care required Dr. Keller to cause Mr.

Bates to be involuntarily committed on an emergent basis. For the reasons explained

below, it is my opinion with reasonable certainty in the field of clinical psychology that

although Mr. Bates may have been suffering from DID while he was being counseled by

Dr. Keller, Dr. Keller’s failure to reach that diagnosis was not a violation of the applicable

standard of care, and it was likewise not a violation of the standard of care for Dr. Keller to

refer Mr. Bates to a psychiatrist rather than seek involuntary commitment on an emergent

basis.

In order to address the first two issues-- whether Mr. Bates was likely suffering from

dissociative identity disorder (DID) at the time he was being treated by Dr. Keller and

whether Dr. Keller violated the applicable standard of care by not reaching the diagnosis of

DID, I reviewed the records of Dr. Keller’s counseling sessions, all of Mr. Bates’ other

medical records, and the deposition of Dr. Keller.

Dr. Keller’s records reveal that Mr. Bates was very cooperative and compliant throughout

his counseling sessions. He smiled and laughed occasionally at times, although Dr. Keller

was not able to ascertain the stimulus or basis for his amusement. Dr. Keller administered

a number of standard psychological tests, which revealed that Mr. Bates was of average

intelligence. The tests also revealed a pattern that is characteristic of persons with

schizophrenia, which is the principal diagnosis that Dr. Keller entertained for Mr. Bates.

Dr. Keller’s opinion was further supported by the account of Mr. Bates’ history, which is

replete with examples of hallucinations, delusions and odd behavior beginning at least as

early as age 22. The early appearance of these symptoms is entirely consistent with the

literature on this disorder, beginning with the report by Professor Emil Kraepelin in 1896.

He noted the poor attention of young patients with what he termed “dementia praecox,” the

dementia of the young. Other eminent researchers, such as David Shakow (1946) and

Joseph Zubin (1975) have pointed out the impairment patients with schizophrenia have on

attention tests. Mr. Bates’ neuropsychological test results, therefore fully support a

diagnosis of schizophrenia. That diagnosis is also consistent with the bizarre

Re: William Bates

9/27/13

2

verbalizations, grimacing and inappropriate amusement shown by Mr. Bates during his

counseling, that Dr. Keller recorded. (cf, Boston Naming Test, Similarities).

It is possible that, in addition to schizophrenia, Mr. Bates was also suffering from DID, but

it is not reasonable to fault Dr. Keller for not reaching that diagnosis. People with DID

are diagnosed with five to seven comorbid disorders on average—much higher than other

mental illnesses. Due to overlapping symptoms, differential diagnosis includes

schizophrenia, normal and rapid-cycling bipolar disorder, epilepsy, borderline personality

disorder and Asperger syndrome. Delusions or auditory hallucinations can be mistaken for

speech by other personalities. Persistence and consistency of identities and behavior,

amnesia, measures of dissociation or hypnotizability and reports from family members or

other associates indicating a history of such changes can help distinguish DID from other

conditions, but no such information was available to Dr. Keller. Distinguishing DID

from malingering is a concern when financial or legal gains are an issue, and factitious

disorder may also be considered if the patient has a history of help or attention seeking.

Individuals who state that their symptoms are due to external spirits or entities entering

their bodies are generally diagnosed with dissociative disorder not otherwise

specified rather than DID due to the lack of identities or personality states. Most

individuals who enter an emergency department and are unaware of their names are

generally in a psychotic state. Although auditory hallucinations are common in DID,

complex visual hallucinations may also occur. Those with DID generally have adequate

reality testing; they may have positive Schneiderian symptoms of schizophrenia but lack

the negative symptoms. They perceive any voices heard as coming from inside their heads

(patients with schizophrenia experience them as external).

It can be very difficult to distinguish schizophrenia from DID, as both may be comorbid

with a variety of disorders including mood disorders, psychosis, anxiety

disorders, posttraumatic stress disorder, personality disorders, cognitive

disorders, neurological disorders, epilepsy, somatoform disorder, factitious

disorder, malingering, other dissociative disorders and trance states. An additional aspect

of the controversy of diagnosis is that there are many forms of dissociation and memory

lapses, which can be common in both stressful and non-stressful situations and can be

attributed to much less controversial diagnoses. Individuals faking or mimicking DID due

to factitious disorder will typically exaggerate symptoms (particularly when observed), lie,

blame bad behavior on symptoms and often show little distress regarding their apparent

diagnosis. In contrast, genuine DID patients typically exhibit confusion, distress and shame

regarding their symptoms and history. There is a lack of specific and reliable criteria for

diagnosing DID as well as a lack of prevalence rates due to the failure to examine

systematically selected and representative populations. A specific relationship between

DID and borderline personality disorder has been posited several times, with various

clinicians noting significant overlap between symptoms and patient behaviors and it has

been suggested that DID may arise "from a substrate of borderline traits." Reviews of DID

patients and their medical records concluded that the majority of those diagnosed with DID

would also meet the criteria for either borderline personality disorder or more generally

borderline personality.

Re: William Bates

9/27/13

3

DID is among the most controversial of the dissociative disorders, and among the most

controversial disorders found in the DSM-IV-TR. The primary dispute is between those

who believe DID is caused by traumatic stresses forcing the mind to split into multiple

identities, each with a separate set of memories, and the belief that the symptoms of DID

are produced artificially by certain psychotherapeutic practices or patients playing a role

they believe appropriate for a patient suffering from DID. The debate between the two

positions is characterized by intense disagreement. Psychiatrist Joel Best notes that the idea

that a personality is capable of splitting into independent alters is an unproven assertion

that is at odds with research in cognitive psychology.

There are few systematic data on the prevalence of DID. The International Society for the

Study of Trauma and Dissociation states that the prevalence is between 1 and 3% in the

general population, and between 1 and 5% in inpatient groups in Europe and North

America. DID is diagnosed more frequently in North America than in the rest of the world,

and is diagnosed three to nine times more often in females than in males. The prevalence

of DID increased greatly in the latter half of the 20th century, along with the number of

identities (often referred to as "alters") claimed by patients (increasing from an average of

two or three to approximately 16). DID is also controversial within the legal system where

it has been used as a rarely successful form of the insanity defense. The 1990s showed a

parallel increase in the number of court cases involving the diagnosis.

SUMMARY

In summary, it is my opinion with reasonable psychological certainty that although Mr.

Bates may have been suffering from DID at the time he was being counseled by Dr. X,

DID is a poorly understood, controversial condition that often and easily mimics other

personality disorders, including schizophrenia, and that it was not a violation of the

standard of care for Dr. Keller to believe that Mr. Bates was likely suffering from

schizophrenia rather than DID.

Schizophrenia is a treatable disease that does not require commitment to a hospital on an

emergent basis, and it was therefore appropriate for Dr. Keller to make that diagnosis and

refer Mr. Bates to a psychiatrist who could prescribe an appropriate course of treatment,

which likely would have included antipsychotic medication. It is unfortunate that Mr.

Bates stabbed Ms. Crane at the Bates Motel before he could be seen and appropriately

treated for his condition by the psychiatrist to whom Dr. Keller referred him, but it is my

opinion that that criminal act was not caused or permitted by any violation of the standard

of care by Dr. Willie Keller.

/s/ Allan F. Mirsky, Ph.D., ABPP-CN

American Board of Professional Psychology

Diplomate in Clinical Neuropsychology

Re: William Bates

9/27/13

4

References and Related Publications:

Mirsky AF, DeLisi LE, Buchsbaum MS, Quinn OW Schwerdt, P., Siever, L.J., Mann, L.,

Weingartner, H., Zec, R., Sostek, A., Alterman, I., Revere, V., Dawson, S.D., Zahn, T.P.

The Genain Quadruplets: Psychological studies. Psychiatry Research, 1984, 13, 77-93.

Mirsky AF, Duncan-Johnson, C. C. Nature vs. nurture in schizophrenia: The struggle

continues. Integrative Psychiatry, 1984, 2, 137-141.

Mirsky AF, Duncan CC. Etiology and expression of schizophrenia: Neurobiological and

psychosocial factors. Annual Review of Psychology, 1986, 37, 291-319.

Mirsky AF, Anthony BJ, Duncan CC, Ahearn MB, Kellam SG. Analysis of the elements

of attention: A neuropsychological approach. Neuropsychology Review, 1991, 2, 109-

145.

Mirsky AF, Lochhead S, Jones BP, Kugelmass S, Walsh, D, Kendler KS. On familial

factors in the attentional deficit in schizophrenia: A review and report of two new subject

samples. Journal of Psychiatric Research, 1992, 26, 383-403.

Mirsky AF, Yardley SJ, Jones BP, Walsh D, Kendler KS. Analysis of the attention deficit

in schizophrenia -- a study of patients and their relatives in Ireland. Journal of Psychiatric

Research. 1995, 29, 23-42.

Seidman LJ, Stone WS, Jones R, Harrison RH, Mirsky AF. Comparative effects of

schizophrenia and complex partial epilepsy on memory. Journal of the International

Neuropsychological Society. 1998, 4, 342-352.

Heinrichs RW, Zakzanis KK. Neurocognitive deficit in schizophrenia: a quantitative

review of the evidence. Neuropsychology, 1998, 12, 426-445.

Mirsky AF, Duncan CC. A nosology of disorders of attention. In Wasserstein J, Wolff

L, LeFever FF. (Eds.) Adult attention deficit disorder: Brain mechanisms and life

outcomes. Annals of the New York Academy of Sciences, 2001, 931, 17-32.

Mirsky AF, Duncan CC. Lessons from High-Risk Studies: A Neuropsychological

Perspective on Vulnerability to Schizophrenia. In: Stone W, et al., (Eds.) Early Clinical

Intervention and Prevention of Schizophrenia. 2004. Humana, Totowa NJ, 115-132.

Mirsky AF, Duncan CC. The pathophysiology of mental illness: The view from the fourth

ventricle. International Journal of Psychophysiology, 2005, 58: 162-178.

MacDonald AW. Building a clinically relevant cognitive task: Case study of the AX

paradigm. Schizophrenia Bulletin, 2008, 34, 619-628.

Re: William Bates

9/27/13

5

Carter CS, Barch DM, Buchanan RW et al. The CNTRICS Initiative. Biological

Psychiatry, 2008, 64, 4-10.

Kraepelin E. Dementia Praecox and Paraphrenia. Translated by R M Barclay, Krieger,

Huntington NY, 1971 (facsimile of 1919 edition).

Shakow D. The nature of deterioration in schizophrenic conditions. Nervous and Mental

Disease Monographs, Coolidge Foundation, NY, 1946.

Zubin J. Problem of attention in schizophrenia. In Experimental approaches to

psychopathology, ML Kietzman, S Sutton and J Zubin, (eds.) Academic, NY, 1975,

136-166.

Andreason NC. The Scale for the Assessment of Positive Symptoms (SAPS. Iowa City,

IA: The University of Iowa; 1984.

Andreasen NC. The Scale for the Assessment of Negative Symptoms (SANS). Iowa City,

Iowa: The University of Iowa; 1983.

Andreasen NC. Negative symptoms in schizophrenia. Definition and reliability. Arch Gen

Psychiatry. 1982 Jul;39 (7):784-788.

Andreasen NC, Nasrallah HA, Dunn VD, Olson SC, Grove WM, Ehrhardt JC, et al.

Structural abnormalities in the frontal system in schizophrenia: A magnetic resonance

imaging study. Arch Gen Psychiatry, 1986, 43:136-44,

Inn of Court Group 4 Presentation

I. Script segment for Part IIIC Prep Session #2 – Review CV and find out that

some of it is false

Attorney: Good afternoon, Mr. Mirsky.

Mr. Mirsky: Good afternoon.

Attorney: We are glad that you will be testifying on behalf of our client and wanted to go

through your CV a bit with you beforehand.

Mr. Mirsky: Sounds good.

Attorney: You have a very impressive background.

Mr. Mirsky: Thank you.

Attorney: Great education.

Mr. Mirsky: Yes. Thanks.

Attorney: You have a very impressive list of positions held and of peer-reviewed

publications.

Mr. Mirsky: Thank you. I have been very fortunate to have some great opportunities. Of

course I have done very well with the opportunities afforded to me. You saw the sections on

honors and awards, right?

Attorney: Yes, of course. Very impressive. Ok. Well, you know that our client has been

sued for failing to diagnose Mr. Bates’ dissociative identity disorder.

Mr. Mirsky: Right.

Attorney: We will need to discuss the portions of your experience and your research that

relate most directly to diagnosing such a disorder.

Mr. Mirsky: Ok.

Attorney: Let’s start with some specifics on your education.

Mr. Mirsky: Ok.

Attorney: Your CV states you earned a B.S. in Psychology from the City College of New

York.

Mr. Mirsky: Correct.

Attorney: And a Master’s degree from Yale.

Mr. Mirsky: Yes. I received a M.S. from Yale in Clinical and Physiological Psychology.

Attorney (repeating): Ok. M.S. in Clinical and Physiological Psychology…

Attorney (confused): But your CV states you received M.A. in Clinical and Physiological

Psychology.

Mr. Mirsky: It does? (Pause.) Well, you know the field of psychology is very interesting. It

has a liberal arts angle as well as a scientific angle. You can study it from the social science side

or from the more biological side.

Attorney: Ok. But which one did you study? Which one did you get your master’s in?

Mr. Mirsky: I got a Master’s of Science Degree. M.S. Just like I said.

Attorney: Why does your CV state M.A., Master of Arts?

Mr. Mirsky: It’s probably just a typo.

Attorney: A typo? Haven’t you used this CV before? You’ve been an expert in many other

cases.

Mr. Mirsky: Yes. Well, you know. It’s just a typo. It’s not a big deal.

Attorney: Ok. (Pause.) I guess we can just send opposing counsel a corrected version.

Mr. Mirsky: You have to do that?

Attorney: Yes. Why? Is that a problem?

Mr. Mirsky: Well, I don’t see why we have to call attention to the matter. It’s just one letter.

It’s obviously a typo.

Attorney: Ok. Let’s take a break for a second.

II. Discussion Issues

a. Identify problems

i. Error on CV

1. Could be honest error

2. Does it signal a general inattention to detail?

a. Issues for rest of CV

b. Issues for expert report, cross examination

ii. Reluctance to correct

1. Does it signal that it’s a larger error? (Article about Fla

accountant)

2. Does it affect willingness to continue working with this expert?

b. Immediate steps

i. Error on CV must be corrected

1. Correct version to opposing counsel

2. Script assumes that CV has only been submitted to opposing

counsel. If anything inaccurate has been submitted to the court –

obviously need to correct it.

ii. May want to determine scope of MA/MS problem

1. Review transcripts (how is degree described)

2. Discuss with other attorneys who have used the witness

3. Get copies of older versions of CV

4. Contact institution to verify degree

c. Larger implications

i. Do you trust this guy?

ii. Does client trust this guy?

iii. Withdraw expert?

iv. Report matter to court?

v. Report to licensing authority?

vi. Report to attorneys who have used the expert previously?

III. Sample Authority – ABA Model Rules

a. Rule 3.3 Candor Toward the Tribunal

3.3(a) A lawyer shall not knowingly: (1) make a false statement of fact or

law to a tribunal or fail to correct a false statement of material fact or law

previously made to the tribunal by the lawyer . . . (3) offer evidence that

the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness

called by the lawyer, has offered material evidence and the lawyer comes

to know of its falsity, the lawyer shall take reasonable remedial measures,

including, if necessary, disclosure to the tribunal. A lawyer may refuse to

offer evidence, other than the testimony of a defendant in a criminal

matter, that the lawyer reasonably believes is false.

b. Rule 4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly: (a)

make a false statement of material fact or law to a third person; or (b) fail

to disclose a material fact to a third person when disclosure is necessary to

avoid assisting a criminal or fraudulent act by a client, unless disclosure is

prohibited by Rule 1.6.

c. Rule 8.4 Misconduct (Maintaining the Integrity of the Profession)

A lawyer shall not knowingly … (c) engage in conduct involving

dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that

is prejudicial to the administration of justice[.]

Depo of Dr. Mirsky “Hired Gun”/Expert Bias Portion 

Q:  Do you still treat patients, Dr. Mirsky? 

  A:  No.  I now focus primarily on evaluating patients. 

Q:  What do you mean by that? 

A:  I do some evaluations on soldiers at Walter Reed, where I work part time.  In those cases I’m evaluating them in order to help them form plans and goals that are appropriate and realistic given their condition.  Outside of Walter Reed, I have a private practice that is also focused on neuropsychological evaluations.  In that context I’m usually evaluating the cause or the extent of someone’s disability or illness. 

Q:  So when you say ‘evaluation’, you mean you meet a patient once and then give an opinion about their condition. 

A:  Usually, yes.  But there could be circumstances where I would meet someone more than once. 

Q:  But you’re not treating the same patient over a period of time? 

  A:  No. 

Q:  You’re just forming an opinion about what their condition is, or what caused it, or whatever it is that you’ve been asked to evaluate? 

  A:  Right 

Q:  And when you’re performing these neuropsychological evaluations in your private practice, that’s usually for litigation, isn’t it? 

  A:  It is. 

Q:  And that business takes up most of your time? 

A:  Yes. 

Q:  How much are you being paid for your time today? 

  A:  $ 375 per hour 

Q:  And if this case goes to trial, how much would you be paid to testify in court? 

  A:  It’s the same rate, $375 per hour. 

Q:  You’re also paid for preparation work? 

  A:  Yes. 

Q:  At what rate? 

  A:  It’s all the same rate‐‐ $375 per hour. 

Q:  And at the time that a party agrees to hire you, you know who the party is, right? 

  A:  Yes. 

Q: You know their position in the litigation? 

  A:  Yes, although I may not know all the details yet. 

Q:  So you can infer, at least generally, what they might want an expert to testify to? 

  A:  I suppose, in a general sense, yes. 

Q:  After you’re hired, you’d get more information, conduct your evaluation, and start to put together a more detailed opinion? 

  A:  That’s correct. 

Q:  And then the party that hired you will decide whether they want you to testify? 

  A:  Yes. 

Q:  And if they decide that they want you to testify, there will be more preparation work? 

  A:  Yes.   

Q:  You’ll have to write an expert report?   

  A:  Yes. 

Q:  And there will be a deposition, so you’ll have to prepare for that and then be deposed? 

  A:  Yes. 

Q:  And you’ll testify in court if the case goes to trial? 

  A:  Yes. 

Q:  And you’ll spend time preparing for that too? 

  A:  Yes. 

Q:  And you’ll be paid $375 for every hour that you spend on all of those things? 

A:  Yes. 

Q:  Thank you.  I’m almost done, I just want to ask a bit about other cases in which you’ve been hired as an expert.  Have you ever testified in a case where a psychiatrist or psychologist was the defendant? 

  A:  Yes. 

Q:  How many times? 

  A:  About 6 times. 

Q:  Have you ever testified that a psychiatrist or psychologist breached the standard of care? 

  A:  No. 

8/12 CURRICULUM VITAE

Allan F. Mirsky, Ph.D. Clinical Neuropsychologist Walter Reed National Military Medical Center PLACE OF BIRTH Brooklyn, New York EDUCATION

1950 B.S. City College of New York Major: Psychology Minors: Chemistry and Biology

1952 M.A. Yale University Majors: Clinical and Physiological Psychology

1954 Ph.D. Yale University Majors: Clinical and Physiological Psychology

MILITARY SERVICE

1954-1961 Commissioned Corps, U.S. Public Health Service, Active Reserve 1980-2009 Present Rank: Scientist Director (O-6) Inactive Reserve 2005 Deployed as a Commissioned Officer for Hurricane Relief, Marlin Texas POSITIONS HELD

1950-1954 Student Assistant, Yale Lobotomy Project, Yale University, New Haven, CT 1954-1961 Research Psychologist, Section on Neuropsychology, Laboratory of Psychology,

National Institute of Mental Health, Bethesda, Maryland

1956-1961 Lecturer in Statistics, Experimental Design, Neuropsychology, Department of Psychology,

The Catholic University of America, Washington, D.C. 1961-1965 Assistant Professor to Associate Professor of Psychology, Division of Psychiatry,

Boston University School of Medicine, Boston Massachusetts (Research Career Development Award, NIMH)

1965-1968 Professor of Neuropsychology, Division of Psychology, Boston University School

of Medicine, Boston Massachusetts (Research Scientist Award, NIMH)

1968-1980 Professor of Psychiatry (Neuropsychology) and Neurology, Boston University School of Medicine, Boston, Massachusetts (Research Scientist Award, NIMH)

1978-1980 Professor of Psychology, College of Liberal Arts, Director of Clinical Psychology

Training, Boston University, Boston, Massachusetts

1980-1995 Chief, Laboratory of Psychology and Psychopathology, Division of Intramural Research, National Institute of Mental Health, Bethesda, Maryland

1995-2007 Chief, Section on Clinical and Experimental Neuropsychology, Division of

Intramural Research, National Institute of Mental Health, NIH, Bethesda, Maryland

1986-2004 Adjunct Professor, Department of Mental Hygiene, Johns Hopkins University School of Hygiene and Public Health, Baltimore, Maryland

1994- Adjunct Professor, Department of Psychiatry, Johns Hopkins University School of

Medicine, Baltimore, Maryland

1999- Adjunct Professor, Department of Psychiatry, Uniformed Services University School of Medicine, Bethesda, Maryland

2007-2009 Scientific Review Officer, Division of Extramural Activities, NIMH 2009- Clinical Neuropsychologist, Walter Reed National Military Medical Center

BIBLIOGRAPHY Original Science - Peer Reviewed 1. Mirsky AF, Rosvold HE. The effect of electroconvulsive shock on food intake and hunger drive in the rat. Journal of Comparative and Physiological Psychology, 1953, 46, 153-157. 2. Mirsky AF, Looney E, Rosvold HE. Maze retention deficit following electro-convulsive shock independent of feeding schedule. Journal of Comparative and Physiological Psychology, 1954, 47, 403-405. 3. Rosvold HE, Mirsky AF. The closed-field intelligence test for rats adapted for water-escape motivation. Canadian Journal of Psychology, 1954, 8, 10-16. 4. Rosvold HE, Mirsky AF, Pribram KH Influence of amygdalectomy on social behavior in monkeys. Journal of Comparative and Physiological Psychology, 1954, 47, 173-178. 5. Mirsky AF. The influence of sex hormones on social behavior in monkeys. Journal of Comparative and Physiological Psychology, 1955, 48, 327-335. 6. Peters, R.H., Rosvold HE, Mirsky AF. The effect of thalamic lesions upon delayed response-type tests in the rhesus monkey. Journal of Comparative and Physiological Psychology, 1956, 49,111-116. 7. Rosvold HE, Mirsky AF, Sarason I , Bransome ED Jr., Beck LH. A continuous performance test of brain damage. Journal of Consulting Psychology, 1956, 20, 343-350. 8. Mirsky AF, Rosvold HE, Pribram KH. Effects of cingulectomy on social behavior in monkeys. Journal of Neurophysiology, 1957, 20, 588-601. 9. Primac DW, Mirsky AF, Rosvold HE. Effects of centrally acting drugs on two tests of brain damage. Archives of Neurology and Psychiatry, 1957, 77, 328-332. 10. Mirsky AF, Katz MS. Avoidance "conditioning" in paramecia. Science, 1958, 127, 1498-1499. 11. Kornetsky C, Mirsky AF, Kessler EK, Dorff JE. The effects of dextroamphetamine on behavioral deficits produced by sleep loss in humans. Journal of Pharmacology and Experimental Therapeutics, 1959, 127, 46-50. 12. Mirsky AF, Primac DW, Bates R. The effects of chlorpromazine and secobarbital on the CPT. Journal of Nervous and Mental Disease, 1959, 128, 12-17. 13. Mirsky AF. Studies of the effects of brain lesions on social behavior in Macaca mulatta: Methodological and theoretical considerations. Annals of the New York Academy of Sciences, 1960, 85, 785-794 14. Mirsky AF, Primac DW, Ajmone Marsan C, Rosvold HE, Stevens JA. A comparison of the psychological test performance of patients with focal and nonfocal epilepsy. Experimental Neurology, 1960, 2, 75-89.

15. Townsend A, Mirsky AF. A comparison of the effects of meprobromate, phenobarbital, and d-amphetamine on two psychological tests. Journal of Nervous and Mental Disease, 1960, 130, 212-216. 16. Rosvold HE, Szwarcbart M., Mirsky AF, Mishkin M. The effect of frontal lobe damage on delayed response performance in chimpanzees. Journal of Comparative and Physiological Psychology, 1961, 54, 368-374. 17. Fedio P, Mirsky AF, Smith WJ, Parry D. Reaction time and EEG activation in normal and schizophrenic subjects. Electroencephalography and Clinical Neurophysiology, 1961, 13, 923-926. 18. Mirsky AF, Cardon PV. A comparison of the behavioral and physiological changes accompanying sleep deprivation and chlorpromazine administration in man. Electroencephalography and Clinical Neurophysiology, 1962, 14, 1-10. 19. Lansdell H, Mirsky AF. Attention in focal and centrencephalic epilepsy. Experimental Neurology, 1964, 9, 463-469. 20. Mirsky AF, Kornetsky C. On the dissimilar effects of drugs on the digit symbol substitution and continuous performance tests. Psychopharmacologia, 1964, 5, 161-177. 21. Dorff JE, Mirsky AF. Mishkin M. Effects of unilateral temporal lobe removals in man on tachistoscopic recognition in the left and right visual fields. Neuropsychologia, 1965, 3, 39-51. 22. Kornetsky C, Mirsky AF. On certain psychopharmacological and physiological differences between schizophrenic and normal persons. Psychopharmacologia, 1966, 8, 309-318. 23. Mirsky AF, Van Buren JM. On the nature of the "absence" in centrencephalic epilepsy: A study of some behavioral, electroencephalographic and autonomic factors. Electroencephalography and Clinical Neurophysiology, 1965, 18, 334-348. 24. Mirsky AF, Bloch S, McNary WF. Experimental "petit mal" epilepsy produced with chlorambucil. Acta Biologiae Experimentalis, 1966, 26, 55-69. 25. Mirsky AF, Bloch-Rojas S. Effects of chlorpromazine, secobarbital and sleep deprivation on attention in monkeys. Psychopharmacologia, 1967, 10, 388-399. 26. Tecce JJ, Mirsky AF. A system for off-line computer analysis of EEG amplitude and frequency. IEEE Transactions of Biomedical Engineering, 1967, BME-14, 202-203. 27. Butter CM., Mishkin M., Mirsky AF. Emotional response toward humans in monkeys with selective frontal lesions. Physiology and Behavior, 1968, 3, 213-215. 28 Mirsky AF, Tecce JJ. The analysis of visual evoked potentials during spike-and-wave EEG activity. Epilepsia, 1968, 9, 211-220. 29. Bakay Pragay E., Mirsky AF, Abplanalp JM. The effects of chlorpromazine and secobarbital on matching from sample and discrimination tasks in monkeys. Psychopharmacologia, 1969, 16, 128-138. 30. Fedio P, Mirsky AF. Selective intellectual deficits in children with temporal lobe or centrencephalic epilepsy. Neuropsychologia, 1969, 7, 287-300. 31. Mirsky AF. Neuropsychological bases of schizophrenia. Annual Review of Psychology, 1969, 20, 321-348. 32. Abplanalp JM, Mirsky AF. EEG correlates of delayed-alteration and visual discrimination learning in rhesus monkeys. Journal of Comparative and Physiological Psychology, 1973, 85, 123-131. 33. Bakay Pragay E, Mirsky AF. The nature of performance deficit under secobarbital and chlorpromazine in the monkey. A behavioral and EEG study. Psychopharmacologia, 1973, 28, 73-85. 34. Bloch S, Bakay Pragay E, Mirsky AF. Heart rate and respiratory rate changes during drug-induced impairment in a conditioned avoidance task in monkeys. Pharmacology, Biochemistry and Behavior, 1973, 1, 29-34. 35. Mirsky AF, Bloch S, Tecce JJ, Lessell S, Marcus E. Visual evoked potentials during experimentally induced spike-wave activity in monkeys. Electroencephalography and Clinical Neurophysiology, 1973, 35, 25-37. 36. Mirsky AF, Oshima, H.I. Effect of subcortical aluminum cream lesions on attentive behavior and the electroencephalogram in monkeys. Experimental Neurology, 1973, 39, 1-18.

37. Ricks NL, Mirsky AF. Sustained attention and the effects of distraction in underachieving second-grade children. Journal of Education, Boston University, 1974;156:4-17. 38. Bakay Pragay E., Mirsky AF, Fullerton BC, Oshima HI, Arnold SW. Effect of electrical stimulation of the brain on visually controlled (attentive) behavior in the Macaca mulatta. Experimental Neurology, 1975, 49, 203-220. 39. Luborsky L., Docherty JP, Todd TC, Knapp PH, Mirsky AF, Gottschalk LP. A context analysis of psychological states prior to petit mal EEG paroxysms. Journal of Nervous and Mental Disease, 1975, 160, 282-298. 40. Mirsky AF, Tecce JJ, Harman N, Oshima H. EEG correlates of impaired attention performance under secobarbital and chlorpromazine in the monkey. Psychopharmacologia, 1975, 41, 35-41. 41. Orren MM, Mirsky AF. Relation between ocular manifestations and onset of spike-and-wave discharges in petit mal epilepsy. Epilepsia, 1975, 16, 771-779. 42. Otero J, Mirsky AF. Influence of secobarbital and chlorpromazine on precentral neuron activity during attentive behavior in monkeys. Psychopharmacologia, 1976, 49, 1-9. 43. Herman J, Mirsky AF, Ricks N, Gallant D. Behavioral and electrographic measures of attention in children at risk for schizophrenia. Journal of Abnormal Psychology, 1977, 86, 27-33. 44. Mirsky AF, Bakay Pragay E., Harris S. Evoked potential correlates of stimulation-induced impairment of attention in Macaca mulatta. Experimental Neurology, 1977, 57, 242-256. 45. Bakay Pragay E., Mirsky AF, Ray CL, Turner DF, Mirsky CV. Neuronal activity in the brain stem reticular formation during performance of a "go - no go" visual attention task in the monkey. Experimental Neurology, 1978, 60, 83-95. 46. Mirsky AF. Epilepsy, attentiveness and consciousness. Recent contributions from behavioral and physiological investigations. Contemporary Clinical Neurophysiology EEG Suppl. No. 34, 1978, 269-275. 47. Mirsky AF, Orren MM, Stanton L, Fullerton B, Harris S, Myers RE. Auditory evoked potentials and auditory behavior following prenatal and perinatal asphyxia in rhesus monkeys. Developmental Psychobiology, 1979, 12, 369-379. 48. Skoff BF, Mirsky AF, Turner D. Prolonged brainstem transmission time in autism. Psychiatry Research, 1980, 2, 157-166. 49. Fein D, Skoff BF, Mirsky AF. Clinical correlates of brainstem dysfunction in autistic children. Journal of Autism and Developmental Disorders, 1981, 11, 303-315. 50. Ray C, Mirsky AF, Bakay Pragay, E. Functional analysis of attention-related unit activity in

the reticular formation of the monkey. Experimental Neurology, 1982, 77, 544-562. 51. Siegel A, Grady CL Mirsky AF. Prediction of spike-wave bursts in absence epilepsy by EEG power spectrum signals. Epilepsia, 1982, 23, 47-60 52. Lowing PA, Mirsky AF, Pereira R. The inheritance of schizophrenia spectrum disorders: A reanalysis of the Danish Adoptee Study data. American Journal of Psychiatry, 1983, 140, 1167-1171. 53. Buchsbaum M., Mirsky AF, DeLisi LE, Morihisa J, Karson CN, Mendelson WB, King AC, Johnson J, Kessler R. The Genain Quadruplets: Electrophysiological, positron emission, and X-ray tomographic studies. Psychiatry Research, 1984, 13, 95-108. 54. DeLisi LE, Mirsky AF, Buchsbaum MS, van Kammen DP, Berman KF, Caton C, Kafka MS, Ninan PT, Phelps BH, Karoum F, Ko GN, Korpi ER, Linnoila M., Sheinan M., Wyatt RJ. The Genain Quadruplets 25 years later: A diagnostic and biochemical followup. Psychiatry Research, 1984, 13, 59-76. 55. Mirsky AF, DeLisi LE, Buchsbaum MS, Quinn OW Schwerdt, P., Siever, L.J., Mann, L., Weingartner, H., Zec, R., Sostek, A., Alterman, I., Revere, V., Dawson, S.D., Zahn, T.P. The Genain Quadruplets: Psychological studies. Psychiatry Research, 1984, 13, 77-93. 56. Mirsky AF, Duncan-Johnson, C. C. Nature vs. nurture in schizophrenia: The struggle continues. Integrative Psychiatry, 1984, 2, 137-141. 57. Mirsky AF, Duncan CC. Etiology and expression of schizophrenia: Neurobiological and psychosocial factors. Annual Review of Psychology, 1986, 37, 291-319.

58. Mirsky AF, Duncan CC., Myslobodsky M. Petit mal epilepsy: A review and integration of recent information. Journal of Clinical Neurophysiology, 1985, 3, 179-208. 59. Mirsky AF. Behavioral and psychophysiological markers of disordered attention. Environmental Health Perspectives, 1987, 74, 191-199. 60. Nakamura RK, Myslobodsky MS, Coppola R., Johannesen-Conway J, Mirsky AF. Effects of gamma-hydroxybutyrate on the performance of monkeys in a go/no-go visual discrimination task. Behavioral Brain Research, 1987, 26, 19-27. 61. Pragay EB, Mirsky AF, Nakamura RK. Attention-related unit activity in the frontal association cortex during a go/no-go visual discrimination task. Experimental Neurology, 1987, 96, 481-500. 62. Ingraham, LJ, Chard F, Wood M., Mirsky AF. A Hebrew language version of the Stroop test. Perceptual and Motor Skills, 1988, 67, 187-192. 63. Ingraham LJ, Bridge TP, Janssen R, Stover E, Mirsky AF. Neuropsychological effects of early HIV-1 infection: Assessment and methodology. Journal of Neuropsychiatry, 1990, 174-182. 64. Mirsky AF, Anthony BJ, Duncan CC, Ahearn MB, Kellam SG Analysis of the elements of attention: A neuropsychological approach. Neuropsychology Review, 1991, 2, 109-145. 65. Kendler KS, Ochs A, Gorman A, Hewitt J, Mirsky AF. The structure of schizotypy; a multitrait twin study. Psychiatry Research, 1991, 36, 19-36. 66. Jones BP, Duncan CC, Brouwers P, Mirsky AF. Cognition in eating disorders. Journal of Clinical and Experimental Neuropsychology, 1991,13, 711-728. 67. Mirsky AF, Ingraham LJ, Lowing PL. Childhood stress events and the development of schizophrenia. Progress in Experimental Personality Research, 1992, 15, 110-130. 68. Mirsky AF, Lochhead S, Jones BP, Kugelmass S, Walsh, D, Kendler KS. On familial factors in the attentional deficit in schizophrenia: A review and report of two new subject samples. Journal of Psychiatric Research, 1992, 26, 383-403. 69. Jones PP, Duncan CC, Mirsky AF, Post RM, Theodore WH. Neuropsychological profiles in bipolar affective disorder and complex partial seizures. Neuropsychology, 1994, 8, 55-64. 70. Egan MF, Duncan CC, Suddath RL, Kirch DG, Mirsky AF, Wyatt RJ. Event-related potential abnormalities correlate with structural brain alterations and clinical features in patients with chronic schizophrenia. Schizophrenia Research, 1994, 11, 259-271. 71. Mirsky AF. Neuropsychological Assessment of Epilepsy. New Issues in Neurosciences, 1992, IV, 25-39. 72. Hans SL, Marcus J, Henson L, Auerbach JG, Mirsky AF. Interpersonal behavior of children at risk for schizophrenia. Psychiatry, 1992, 55, 314-335. 73. Streissguth AP, Sampson PD, Carmichael-Olson H, Bookstein FL, Barr HM, Scott M, Feldman J, Mirsky AF. Maternal drinking during pregnancy: attention and short-term memory performance in 14-year-old offspring: a longitudinal prospective study. Alcoholism: Clinical and Experimental Research. 1994, 18, 202-218. 74. Levav M, Mirsky AF, Schantz PM., Castro S, Cruz ME. Parasitic infestation in malnourished school children: effects on behavior and EEG. Parasitology. 1995, 110, 103-111. 75. Levav M, Cruz ME, Mirsky AF. EEG abnormalities, malnutrition, parasitism and goiter: a study of children in Ecuador. Acta Paediatrica. 1995, 84, 197-202. 76. Mirsky AF, Yardley SJ, Jones BP, Walsh D, Kendler KS. Analysis of the attention deficit in schizophrenia -- a study of patients and their relatives in Ireland. Journal of Psychiatric Research. 1995, 29, 23-42. 77. Levav M., Mirsky AF, Cruz ME. Cruz I. Neurocysticercosis and performance on neuropsychological tests: a Family study in Ecuador. American Journal of Tropical Medicine and Hygiene. 1995, 53, 552-557. 78. Cruz ME, Levav M, Ramirez I, Cruz I, Mirsky AF, Bartko J, Castro S, Izurieta G. Niveles

de nutricion y rendimiento en pruebas neuropsicologicas en ni os escolares de una comunidad rural andina. Parasitos Cerebral e Intestinal Problemas de Salud Publica. 1993, Quito, Ecuador: Academia Ecuatoriana de Neurociencias.

79. Mirsky AF. Perils and pitfalls on the path to normal potential: the role of impaired attention. Homage to Herbert G. Birch. Journal of Clinical and Experimental Neuropsychology. 1995, 17, 1-18. 80. Pascualvaca D, Anthony B, Arnold LE, Rebok G, Ahearn MB, Kellam SG, Mirsky AF. Attention performance in an epidemiological sample of urban children. The role of gender and verbal intelligence. Child Neuropsychology. 1997, 3, 13-27. 81. Rebok GW, Smith CB, Pascualvaca DM, Mirsky AF, Anthony BJ, Kellam SG. Developmental changes in attentional performance in urban children from eight to thirteen years. Child Neuropsychology. 1997, 3, 28-46. 82. Seidman LJ, Stone WS, Jones R, Harrison RH, Mirsky AF. Comparative effects of schizophrenia and complex partial epilepsy on memory. Journal of the International Neuropsychological Society. 1998,4, 342-352. 83. Pascualvaca D, Fantie BF, Papageorgiou M, Mirsky AF. Attention capacities in children with autism: Is there a general deficit in shifting focus? Journal of Autism and Developmental Disorders. 1998, 28, 467-478. 84. Kosmidis M., Duncan CC, Mirsky AF. Sex differences in seasonal variations in P300. Biological Psychology, 1998,49, 249-268. 85. Rosvold HE, Mirsky AF, Sarason I, Bransome ED Jr, Beck L.H. A continuous performance test of brain damage. Journal of Consulting Psychology, 1956, 20, 343-350. (Reprinted as a Landmark Publication in The Journal of NIH Research, November 1997,9, 41-48). 86. Levav M., Mirsky AF, French L, Bartko JJ. Multinational neuropsychological testing: the performance of children and adults. Journal of Clinical and Experimental Neuropsychology, 1998, 20, 658-672. 87. Mirsky AF, Pascualvaca DM, Duncan CC, French LM. A model of attention and its relation to ADHD. Mental Retardation and Developmental Disabilities Research Reviews, 1999, 5, 169-176. 88. King VL, Kidorf MS, Mirsky AF, Brooner RK, Stoller KB. ADHD and treatment outcome in opioid abusers entering treatment. The Journal of Nervous and Mental Disease, 1999, 187, 487-495. 89. Zahn TP, Mirsky AF. Reaction time indicators of attention deficits in closed head injury. Journal of Clinical and Experimental Neuropsychology, 1999, 21, 352-367. 90. Zahn TP, Mirsky AF. Autonomic activity during task performance in adults with closed head injury. International Journal of Psychophysiology, 1999, 33: 113-126. 91. Denicoff KD, Omar Ali S, Mirsky AF, Smith-Jackson EE, Leverich GS, Duncan CC, Connell EG, Post RM. Relationship between prior course of illness and neuropsychological functioning in patients with bipolar disorder. Journal of Affective Disorders, 1999, 56: 67-73. 92. Ali SO, Denicoff KD, Altshuler LL, Hauser P, Li XM, Conrad AJ, Mirsky AF, Smith-Jackson EE, Post RM. A preliminary study of the relation of neuropsychological performance to neuroanatomic structures in bipolar disorder. Neuropsychiatry Neuropsychology And Behavioral Neurology, 2000, 13: 20-28. 93. Levav M, Mirsky AF, Herault J, Xiong L, Amir N, Andermann E. Familial association of neuropsychological characteristics in patients with generalized and partial seizure disorders. Journal of Clinical and Experimental Neuropsychology. 2002, 24, 311-326. 94. Mirsky AF, Herbert C. Lansdell, 1922-2000, Obituary. American Psychologist, 2002. 95. Duncan CC, Kosmidis MH, Mirsky AF. (2003). Event-related potential assessment of information processing after closed head injury. Psychophysiology, 40, 45-59. 96 Gabbay FH, Duncan CC, Morris EK, Mirsky AF, et al. Disinhibition and risk for drug abuse: Amphetamine effects on auditory P300. Psychophysiology 2001, 38, S43-S43 Suppl. 1 97. Mirsky AF, Kellam SG, Pascualvaca D, et al. Bone lead level and sustained attention - a longitudinal study. The Clinical Neuropsychologist 2001,15, 265-265. 98. Duncan CC, Gabbay FH, Mirsky AF. Sex differences in information processing in a test of sustained attention: An event-related potential analysis Psychophysiology. 2000 37, S37-S37 Suppl. 1.

99. Gabbay FH, Duncan CC, Mirsky AF. Target P300 in a three-stimulus oddball task distinguishes amphetamine-choosing from nonchoosing subjects Psychophysiology. 2000 37, S41-S41 Suppl. 1. 100. Gabbay FH, Duncan CC, Mirsky AF. Individual differences in the target P300 elicited during the continuous performance test are related to boredom susceptibility Psychophysiology. 2000 37, S41 S41 Suppl. 1. 101. Artiola i Fortuny L, Feldman,E, Fernández Barillas H, Garolera M., Hermosillo Romo D, Keefe R., Lemaître MJ, Ortiz Martín A, Mirsky AF, Monguió I, Morote G, Parchment S, Parchment L J, da Pena E, Politis D G, Sedó MA, Taussik I, Valdivia F, de Valdivia LE, Verger Maestre K. (2005). Research With Spanish-Speaking Populations In The United States: Lost In the Translation. A Commentary and A Plea. Journal of Clinical and Experimental Neuropsychology, 27:555-564. 102. Duncan CC, Kosmidis MH, Mirsky AF. Closed head injury-related information processing deficits: An event-related potential analysis. International Journal of Psychophysiology, 2005, 58: 133-157. 103. Mirsky AF, Duncan CC. The pathophysiology of mental illness: The view from the fourth ventricle. International Journal of Psychophysiology, 2005, 58: 162-178.

104. Duncan C.C., Mirsky A.F., Lovelace C.T., & Theodore, W.H. Assessment of the attention impairment in absence epilepsy: Comparison of visual and auditory P300. International Journal of Psychophysiology, 2009, 73, 118-122. 105. Mirsky, A. F., & Duncan, C. C. Studies In the neuropsychology of attention. In A.-L. Christensen, E. Goldberg, & D. Bougakov (Eds.), Luria’s legacy in the 21st century (pp. 85-102). New York: Oxford University Press, 2009. 106. Duncan, C. C., Gabbay, F. H., Mirsky, A.F., Vynatheya, J., Kahn, R., Elkashef, A., & Cantilena, Jr., L. Does atomoxetine improve cognitive function in cocaine users? Results of a double-blind, placebo-controlled Phase I trial. Submitted. 107. Duncan, C. C., Summers, A. C., Perla, E. J., Coburn, K. L., & Mirsky, A. F. (in press). Evaluation of traumatic brain injury: Brain potentials in diagnosis, function, prognosis. International Journal of Psychophysiology. 108. Mirsky, A.F., French, L.M., Duncan, C.C. et al. The Case of S.R., Profound Anterograde Memory Deficit in the Absence of Evident Hippocampal Damage. Submitted 109. Mirsky, A.F., Bieliauskas, L.A., Duncan, C.C. and French, L.M. Letter to the editor. Schizophrenia Research, 2013. Plus five other publications in press or in preparation

Proceedings 1. Bakay Pragay E, Mirsky AF. Frontal-cortical EEG and attentive behavior in monkeys administered secobarbital and chlorpromazine. Proceedings of the 75th Annual American Psychological Association Convention, 1967, 2, 71-72. 2. Mirsky AF, Tecce JJ. The relationship between EEG and impaired attention following administration of centrally-acting drugs. Proceedings of the 5th International Congress of the Collegium Internationale Neuropsychopharmacologicum, 1968, 638-645. 3. Mirsky AF. Comment on paper by Dr. Sidney Cohen "The psychopharmacology of amphetamine and barbiturate dependence." Some comments on the issue of altered consciousness in drug addiction. In Wittenborn JR, Brill H, Smith JP, Wittenborn SA. (Eds.), Drugs and Youth. Proceedings of the Rutgers Symposium on Drug Abuse. Springfield, Ill.: Charles C. Thomas, 1969, 138-140. 4. Mirsky AF, Orzack MH. Psychosurgery Pilot Study. Proceedings of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1976. DHEW Publication No. (OS) 77-000,2.

Books 1. Chall JS, Mirsky AF. Education and the Brain. Chicago: The University of Chicago Press, 1978. 2. Bridge TP , Mirsky AF, Goodwin FK. (Eds.), Psychological, Neuropsychiatric and Substance Abuse Aspects of AIDS, New York: Raven Press, 1988. 3. Myslobodsky MS, Mirsky AF. (Eds.), Elements of Petit Mal Epilepsy. New York: Peter Lang, 1988. Book Chapters 1. Mirsky AF, Rosvold HE The use of psychoactive drugs as a neuropsychological tool in studies of attention in man. In Miller JG, Mirsky AF, Uhr L (Eds.), Drugs and Behavior, New York: Wiley, 1960. 2. Mirsky AF, Rosvold HE. Behavioral and physiological studies in impaired attention. In The Effects of Psychopharmacological Drugs on Higher Nervous Activity. London: Pergamon Press, 1963, 302-315. 3. Mirsky AF. The continuous performance test. In D. Rosenthal (Ed.), The Genain Quadruplets. A Case Study and Theoretical Analysis of Heredity and Environment in Schizophrenia. New York: Basic Books, 1964. 4. Mirsky AF, Bakay Pragay E. The relation of EEG and performance in altered states of consciousness. In E.V. Evarts, (Ed.), Sleep and Altered States of Consciousness. Baltimore: Williams & Wilkins, 1967, 514-534. 5. Mirsky AF. Studies of paroxysmal EEG phenomena and background EEG in relation to impaired attention. In C.R. Evans, Mulholland TB (Eds.), Attention in Neurophysiology. London: Butterworths, 1969, 310-322. 6. Mirsky AF, Kornetsky C. The effects of centrally acting drugs on attention. In Efron DE (Ed.), Psychopharmacology: A Review of Progress 1957-1967. Washington, D.C.: U.S. Government Printing Office, 1969, 91-104. 7. Mirsky AF. Neuroelectrophysiological studies of centrally-acting drugs: An overview. In. DiMascio A, Shader RI (Eds.), Clinical Handbook of Psychopharmacology. New York: Science House, 1970, 121-136. 8. Mirsky AF, Some speculations on the relation between drug use and neurobiological factors among differing age groups in our society. In Wittenborn JR, Smith JP, Wittenborn SA (Eds.), Communication and Drug Abuse. Springfield, Ill.: Charles C. Thomas, 1970, 157-166. 9. Mirsky AF, Bakay Pragay E. EEG characteristics of impaired attention accompanying secobarbital and chlorpromazine administration in monkeys. In Mostofsky D. (Ed.), Attention: Contemporary Theory and Analysis. New York: Appleton-Century Crofts, 1970, 403-417. 10. Mirsky AF, Harman N. The problem of attention impairment in aging. In Survey Report of the Aging Nervous System. Washington, D.C.: U.S. Government Printing Office, 1975, 187-194. 11. Mirsky AF, Harman N. On aggressive behavior and brain disease--some questions and possible relationships derived from the study of men and monkeys. In Whalen R. (Ed.), The Neuropsychology of Aggression. New York: Plenum Press, 1975, 12, 185-210. 12. Mirsky AF, Orren MM. Attention. In L.H. Miller, C.A.Sandman, A.J. Kastin (Eds.), Neuropeptide Influences on the Brain and Behavior. New York: Raven Press, 1977, 233-267. 13. Mirsky AF. Attention--a commentary. In Callaway E, Tueting D, Koslow SH. (Eds.), Event Related Brain Potentials in Man. New York: Academic Press, 1978, 323-347. 14. Mirsky AF. Attention--a neuropsychological perspective. In Chall JS, Mirsky AF., Education and the Brain. Chicago: University of Chicago Press, 1978, 33-60.

15. Tecce JJ, Orzack, MH, Mirsky AF. Absence of CNV rebounds in psychosurgery patients. In Otto DA. (Ed.), Multidisciplinary Perspectives in Event-Related Brain Potential Research, 1978, U.S. EPA Publication No. EPA-600/9-77-043, 383-386. 16. Mirsky AF, Mesulam, M. Attention. In Report of the Panel on Neurological Aspects of Behavior to the National Advisory on Neurological and Communicative Disorders and Stroke Council, 1979, NIH Publication No. 79-1917. 17. Mirsky AF, Valenstein E. Psychosurgery. In Report of the Panel on Neurological Aspects of Behavior to the National Advisory on Neurological and Communicative Disorders and Stroke Council, 1979, NIH Publication No. 79-1917. 18. Mirsky AF, Orzack MH. Two retrospective studies of psychosurgery. In Valenstein ES. (Ed.), The Psychosurgery Debate: Scientific, Legal and Ethical Perspectives. San Francisco: Freeman, 1980, 205-244. 19. Mirsky AF, Orzack MH. Response to Dr. Chorover’s critique of the psychosurgery studies. In Valenstein ES. (Ed.), The Psychosurgery Debate: Scientific, Legal and Ethical Perspectives. San Francisco: Freeman, 1980, 264-268. 20. Tecce JJ. Orzack M, Mirsky AF. Psychosurgery outcome and CNV asymmetry. In Kornhuber HH, Deecke L. (Eds.), Motivation, Motor and Sensory Processes of the Brain. Progress in Brain Research , 54. Amsterdam: Elsevier, North Holland, 1980, 790-797. 21. Browne T, Mirsky AF. Absence seizures. In Browne T, Feldman RG. (Eds.), Epilepsy: Diagnosis and Management. Boston: Little, Brown, 1983, 61-74. 22. Rubinow DR, Joffe RT, Brouwers P, Squillace K, Lane HT, Mirsky AF. Neuropsychiatric impairment in patients with AIDS. In Bridge TP, Mirsky AF, Goodwin FK. (Eds.), Psychological, Neuropsychiatric and Substance Abuse Aspects of AIDS. New York: Raven Press, 1988, 111-115. 23. Mirsky AF, Neuropsychological manifestations and predictors of HIV disease in vulnerable persons. In Bridge TP, Mirsky AF, Goodwin FK. (Eds.), Psychological, Neuropsychiatric and Substance Abuse Aspects of AIDS. New York: Raven Press, 1988, 117- 123. 24. Mirsky AF, Duncan CC, Silberman E., Nagler S, Kugelmass S, Sohlberg S, Shotten JH. Early neuropsychological and other behavioral predictors of later psychotic disorder. In Shagass C, Simpson G, Bridger W, Josiassen R, Stoff D, Weiss K. (Eds.), Biological Psychiatry. New York: Elsevier, 1986, 1118-1120. 25. Mirsky AF, Duncan CC. An introduction to modern techniques of clinical neuropsychology. In Fava GA, Wise TN. (Eds.), Research Paradigms in Psychosomatic Medicine. Basel: Karger, 1987, 167-184. 26. Mirsky AF, Quinn OW, DeLisi L, Buchsbaum M, Schwerdt P. The Genain Quadruplets--25 year follow-up of four monozygous women discordant for the severity of schizophrenic illness. In Cohen G, Miller N. (Eds.), Schizophrenia and Aging. New York: Guilford Publications, 1987, 83-94. 27. Mirsky AF. Behavioral and psychophysiological effects of petit mal epilepsy in the light of a neuropsychologically based theory of attention. In Myslobodsky MS, Mirsky AF. (Eds.), Elements of Petit Mal Epilepsy. New York: Peter Lang, 1988, 311-340. 28. Mirsky AF. The Israeli high-risk study. In Dunner DL, Barrett JE, Gershon ES.( Eds.), Relatives at Risk for Mental Disorders . New York: Raven Press, 1988, 279-297. 29. Mirsky AF, Grady C. Toward the development of alternative treatments in absence epilepsy. In M.S. Myslobodsky, Mirsky AF, (Eds.), Elements of Petit Mal Epilepsy. New York: Peter Lang, 1988, 285-310. 30. Mirsky AF, Ray C. Studies in the neuropsychology of attention impairment: Human symptoms and animal models. In Galbraith GC, Kietzman ML, Donchin E. (Eds.), Neurophysiology and Psychophysiology: Experimental and Clinical Applications. Hillsdale, N.J.: Erlbaum, 1988, 114-137. 31. Myslobodsky MS, Mirsky AF. Update on Petit Mal: The Case for Heterogeneity. In Myslobodsky MS, Mirsky AF. (Eds.), Elements of Petit Mal Epilepsy. New York: Peter Lang, 1988, 365-392.

32. Mirsky AF. Information processing in petit mal epilepsy. In Hermann B, Seidenberg M. (Eds.), Childhood Epilepsies: Neuropsychological, Psychosocial, and Intervention Aspects. New York: John Wiley and Sons, 1989, 51-70. 33. Mirsky AF, The neuropsychology of attention. Elements of a complex behavior. In Perecman E. (Ed.), Integrating Theory and Practice in Clinical Neuropsychology. Hillsdale, NJ: Erlbaum, 1989, 75-91. 34. Mirsky AF, Rosvold HE. The case of Carolyn Wilson--a thirty-eight year followup of a schizophrenic patient with two prefrontal lobotomies. In Goldberg E. (Ed.). Contemporary Neuropsychology and the Legacy of Luria. Hillsdale, N.J.: Erlbaum, 1990, 51-75. 35. Mirsky AF, Duncan CC. Behavioral and electrophysiological studies of absence epilepsy. In Avoli N, Gloor P, Kostopoulos G, Naquet R. (Eds.). Generalized epilepsy: Neurobiological approaches. New York: Plenum, 1990, 254-269. 36. Duncan CC, Mirsky AF, DeldincPJ, Skwerer RG, Jacobsen FM, Rosenthal NE. P300 as an index of treatment response in seasonal affective disorder. In: Stefanis CN, Soldatos CR, Rabavilas AD. (Eds.), Psychiatry: A world perspective , 2; 1990, Amsterdam: Elsevier, 398-401. 37. Freedman R, Mirsky AF. Event-related potentials: Exogenous components. In Zubin J, Steinhauer SR, Gruzelier JH, Zubin J (Eds.), Handbook of Schizophrenia. Volume 4, Experimental Psychopathology, Neuropsychology and Psychophysiology. Amsterdam: Elsevier, 1991, 71-90. 38. Miczek KA, Mirsky AF, Carey G, DeBold J, Raine E. An overview of biological influences on violent behavior. In Reiss AJ, Miczek KA, Roth JA. (Eds.),Understanding and preventing violence, Volume 2, Biobehavioral influences. Washington, D.C.: National Academy Press 1994, 1-58. 39. Mirsky AF, Siegel A. The neurobiology of violence and aggression. In Reiss AJ, Miczek KA, Roth JA. (Eds.), Understanding and preventing violence, Volume 2, Biobehavioral influences. Washington, D.C.: National Academy Press, 1994, 59-172. 40. Duncan CC, Mirsky AF, Deldinc PJ, Skwerer RG, Jacobsen FM, Rosenthal NE. Brain potentials index treatment response in seasonal affective disorder. In: Ansseau M, von Frenckell R, Franck G. (Eds.), Biological Markers of Depression: State of the Art (pp. 117-120). Amsterdam: Elsevier Science Publishers B. V., 1991. 41. Mirsky AF, Fantie BD, Tatman JE. Assessment of attention across the lifespan. In: Mapou RL, Spector J.(Eds.), Clinical Neuropsychological Assessment: A Cognitive Approach. Plenum, 1995, 17-48. 42. Mirsky AF. Familial factors in the impairment of attention in schizophrenia: Data from Ireland, Israel and the District of Columbia. In: Matthysse S, Benes DF, Levy D, Kagan J. (Eds.), Psychopathology -- The Emerging Science of Mental Disorder. Cambridge, Cambridge University Press, 1996. 43. Mirsky AF. Disorders of attention: a neuropsychological perspective. In: Lyon GR, Krasnegor NA. (Eds.) Attention, Memory and Executive Function, Baltimore, Paul H. Brookes, 1995, 71-95. 44. Mirsky AF, Duncan CC, Levav M. Neuropsychological and psychophysiological aspects of absence epilepsy. In: Duncan JS, Panayiotopoulos CP. (Eds.)Typical absences and related epileptic syndromes. London, Churchill, 1995, 112-121. 45. Cruz ME, Levav M, Schantz PM, Mirsky AF. Neuropsychological sequelae of helminthic infections in school children. In: Rose FC. Advances in tropical neurology. Amsterdam, Elsevier, 1995, 75-85. 46. Mirsky AF. The Rise of Psychopharmacology in the 1960s-A Memoir. In: Ban TA, Healy D , Shorter E. (Eds.)The rise of psychopharmacology and the story of CINP. Budapest, Animula, 1998, 299-302. 47. Mirsky AF, Duncan CC. A nosology of disorders of attention. In Wasserstein J, Wolff L, LeFever FF. (Eds.) Adult attention deficit disorder: brain mechanisms and life outcomes. Annals of the New York Academy of Sciences, 2001, 931, 17-32. 48. Mirsky AF, Duncan CC. Lessons from High-Risk Studies: A Neuropsychological Perspective on Vulnerability to Schizophrenia. In: Stone W, et al., (Eds.) Early Clinical Intervention and Prevention of Schizophrenia. 2004. Humana, Totowa NJ, 115-132.

49. Elliott AE, Mirsky AF. Cognitive antecedents of violence and aggression. In The neurobiology of criminal behavior. Glickson J. (Ed.), Kluwer, Boston, 2002, 111-136. 50. Mirsky AF, Duncan CC. The Attention Battery: A Systematic Approach to the Assessment of Attention in Children. In Goldstein G. (Ed.), Clinical Handbook of Psychological Assessment, 2003, Wiley, Hoboken, 611-649. 51. Duncan CC, Mirsky AF A Systematic Approach to the Assessment of Attention in Adults - The Attention Battery. In Goldstein G. (Ed.), Clinical Handbook of Psychological Assessment, 2003, Wiley, Hoboken, 582-610. 52. Mirsky AF, Elliott AE. Children of persons with schizophrenia—an overview of empirical research. In Early detection and management of mental disorders, M. Maj et al., Eds., 2004, Wiley, London, 111-133. 53. Jones BP, Mirsky AF, Duncan, CC. ROCF performance, attention disorders, and

neuropsychiatric disorders. In J. A. Knight & E. Kaplan (Eds.), Handbook of the Rey- Osterrieth Complex Figure Usage: Clinical and research applications (pp. 441-451). Lutz, FL: Psychological Assessment Resources Press, 2003. 54. Mirsky, AF, Duncan, CC, Levav, M. Neuropsychological and psychophysiological aspects of absence epilepsy. In J. S. Duncan & C. P. Panayiotopoulos (Eds.), Typical absences and related epileptic syndromes (pp. 112-121). London: Churchill, 1995. 55. Mirsky AF, Duncan, CC. The triune brain and the functional analysis of attention. In G. A. Cory, Jr., & R. Gardner, Jr. (Eds.), The evolutionary neuroethology of Paul MacLean: Convergences and frontiers (pp.215-228). Westport, CT: Praeger Publishers, 2002. Commentaries and Letters to the Editor 1. Jönsson EG, Mirsky AF, Johannesson T, Wahlström J, Bieliauskas LA, van Kammen DP, Sedvall GC. No cytogenetical abnormalities in a set of schizophrenic quadruplets. (Letter to the editor) Biological Psychiatry, 1997, 42, 1186-1187. 2. Mirsky AF, Duncan CC. Neuropsychological and psychophysiological contributions to the diagnosis of schizophrenia. Commentary on “Diagnosis” by Pull CB. In Maj M, Sartorious N. (Eds.)Evidence and experience in psychiatry. World Psychiatric Association Series, Chichester: Wiley, 1999, 72-74. 3. Mirsky AF, Duncan CC. Is there a place for the nature-nurture hypothesis in the etiology of schizophrenia spectrum disorders? Commentary on “Schizophrenia spectrum disorders” by Maier W, Falkai P, Wagner M. In In Maj M, Sartorious N. (Eds.) Evidence and experience in psychiatry. World Psychiatric Association Series, Chichester: Wiley, 1999, 398-399. Book Reviews 1. Mirsky AF. Molecules and mental health, F.A. Gibbs (Ed.). (Book Review). Journal of Nervous and Mental Disease, 1960, 131, 86-88. 2. Mirsky AF. Brain mechanisms and learning, J.F. Delafresnaye, et al. (Eds.) (Book Review). Archives Italiennes de Biologie, 1963, 101, 105-109. 3. Mirsky AF. Motivation and emotion by P.T. Young, (Book Review). Journal of Nervous

and Mental Disease, 1964, 137, 96-97. 4. Mirsky AF. Higher cortical functions in man, A.R. Luria, (Book Review). Journal of Nervous and Mental Disease, 1967, 144, 234-237.

5. Mirsky AF. Aggression and defense: Neural mechanisms and social patterns. Clemente CD, Lindsley DB(Eds.) (Book Review). Electroencephalography and Clinical Neurophysiology, 1969, 26, 344-345. 6. Mirsky AF. The electrophysiology of the central nervous system. Rusinow VS. (Ed.). Translation ed. by Robert Doty (Book Review). Science, 1974. 7. Mirsky AF. The Pulvinar-LP Complex. Cooper IS, Riklan M, Racik P(Eds.). (Book Review). Electroencephalography and Clinical Neurophysiology, 1974, 37, 560. 8. Mirsky AF. Cognitive components in cerebral event-related potentials and selective attention. J.S. Desmedt (Ed.). (Book Review). Trends in Neuroscience, 1981, XXI. 9. Mirsky AF. Children at risk for schizophrenia. Watt NF, Anthony EJ, Wynne LC, Rolf JE. (Eds.). (Book Review). British Journal of Child Psychiatry, 1987. 10. Mirsky AF. The frontal lobes by Stuss DT, Benson DF. (Book Review). Journal of Clinical Neurophysiology, 1987, 4, 89. 11. Mirsky AF. Frontiers of infant psychiatry. Vol. 2., Call JD, Galenson E, Tyson RL (Eds.). (Book Review). Contemporary Psychology, 1987. 12. Mirsky AF. Epilepsy and the reticular formation: the role of the reticular core in convulsive seizures. Fromm GH, Faingold C, Browning RA, Burham WM.(Eds.). New York: Liss, 1987. (Book Review). Quarterly Review of Biology, 1990, 529-530. 13. Mirsky AF. Epilepsy and quality of life. Trimble MR, Dodson WE. (Eds.). New York: Raven Press,1994. (Book Review)Quarterly Review of Biology, 1995, 70, 539. 14. Mirsky AF, Pediatric Neuropsychology in the Medical Setting. Baron IS, Fennell EB, Voeller KKS. New York: Oxford, 1995. (Book Review) Contemporary Psychology. 1997, 42, 915-916. 15. Mirsky AF. The Attentive Brain. Parasuraman, R., Ed., (Book review) Journal of the International Neuropsychological Society, 2002, 8, 731-732. Psychopharmacology Bulletin 1. Bakay Pragay E, Mirsky AF. Effect of secobarbital and chlorpromazine on cortical and subcortical visual evoked potentials in the monkey. Psychopharmacology Bulletin, 1977, 13, 61-64. 2. Bridge TP, Mirsky AF, Macdonald DI. Acquired immunodeficiency syndrome (AIDS): Neuropsychologic and psychoimmunologic aspects. Psychopharmacology Bulletin, 1986, 22, 675-677. Schizophrenia Bulletin 1. Mirsky AF, Addendum: Bringing the Israel high-risk study to completion. Schizophrenia Bulletin, 1985, 11, 30. 2. Mirsky AF, Silberman EK. (Eds.), The Israeli high-risk study. Schizophrenia Bulletin, 1985, 11, 19-154. 3. Mirsky AF, Silberman EK, Latz A, Nagler S. Adult outcomes of high-risk children: Differential Effects of Town and Kibbutz Rearing. Schizophrenia Bulletin, 1985, 11, 150-154. 4. Nagler S, Mirsky AF. Introduction: The Israeli high-risk study. Schizophrenia Bulletin, 1985, 11, 19-29. 5. Silberman EK, Mirsky AF. The NIMH-Israel schizophrenia projects: The history of a high-risk study. Schizophrenia Bulletin, 1985, 11, 146-149. 6. Mirsky AF. The Israeli high-risk study: Reply to Kaffman. Schizophrenia Bulletin, 1986, 12, 158-161. 7. Marcus J, Hans SL, Nagler S, Auerbach JG, Mirsky AF, Aubrey A. Review of the NIMH Israeli kibbutz-city study and the Jerusalem infant development study. Schizophrenia Bulletin, 1987, 13, 425-438.

8. Mirsky AF. Research on schizophrenia in the NIMH Laboratory of Psychology and Psychopathology, 1954-1987. Schizophrenia Bulletin, 1988, 14, 151-156. 9. Mirsky AF, Quinn OW. The Genain Quadruplets. Schizophrenia Bulletin, 1988, 14, 595-612. 10. Mirsky AF, Israeli High-Risk Study: Editor’s Introduction. Schizophrenia Bulletin, 1995, 21, 179-182. 11. Mirsky AF, Ingraham LJ, Kugelmass S. Neuropsychological assessment of attention and its pathology in the Israeli cohort. Schizophrenia Bulletin, 1995, 21, 193-204. 12. Ingraham LJ, Kugelmass S, Frenkel E, Nathan M, Mirsky AF. Twenty-five-year followup of the Israeli high-risk study: current and lifetime psychopathology. Schizophrenia Bulletin, 1995, 21, 183-192. 13. Mirsky AF, Kugelmass S, Ingraham LJ, Frenkel E, Nathan M. Overview and Summary: Twenty-Five Year Followup of High-Risk Children. Schizophrenia Bulletin, 1995, 21, 227-239. 14. Kugelmass S, Faber N, Ingraham LJ, Frenkel E, Nathan M, Mirsky AF, Shakar GB. Reanalysis of SCOR and anxiety measures in the Israeli high-risk study. Schizophrenia Bulletin, 1995, 21, 205-217. 15. Mirsky AF, Bieliauskas LA, French LM, Van Kammen DP, Jönsson E, Sedvall G. A 39-year followup of the Genain Quadruplets. Schizophrenia Bulletin, 2000, 26: 699-708. Poster

1. Sun HF, Ialongo N, Rebok GW, Tien AY, Kellam SG, Mirsky AF. Aspects of executive function and the development of aggressive behavior. Poster presented at the American Psychological Association Meeting, August 2002.

In Press/Preparation 1. Levav M, Mirsky AF, Bartko JJ, Izurieta G, Castro S, Cruz ME. The effect of drug treatment on the cognitive abilities of children infected with intestinal parasites. Social and Clinical Psychiatry, in press.

2. Mirsky AF. The Laboratory of Psychology in the NIMH in the 1950s, American Psychological Association, In Press, 2006.

3. Mirsky AF, Duncan CC. Studies in the neuropsychology of attention. Festschrift in

honor of Anna-Liese Christensen

4. Mirsky AF In Pursuit of the locus of consciousness: From centrencephalon to chromosome or,

Absence makes the heart grow fonder

5. Mirsky AF Adult Learning Disorders: Contemporary Issues, L E Wolf, H

Schreiber, J Wasserstein (eds.), Introduction

EDUCATIONAL ACTIVITIES Teaching Post-graduate Two-year Neuropsychology Certificate course, Fielding Graduate University

(1996 – 2009) Group leader and discussant, Ethics of Research, Uniformed Services School of Medicine (2002 – present)

Guest lecturer, George Washington University Psy.D. program (2001- present) Occasional guest lectures, Johns Hopkins University Department of Psychiatry Grand Rounds speaker, Department of Neurology, VA Medical Center, Washington, DC (2004, 2005, 2006) Neuropsychology Course, Walter Reed Army Medical Center, 2010 Mentoring Summer student Intramural Research Trainees (N = 4, since 2002) Volunteers, ranging from college undergraduates to faculty members from University

Departments of Psychology (total of 7 in the past 3 years, including 3 currently and 2 pending) I served on the dissertation committee for a doctoral student from the Fielding Graduate University (2005)

Editorial Activities Editorial Boards Electroencephalography and Clinical Neurophysiology Epilepsia Journal of Abnormal Psychology Psychopharmacologia Journal of Clinical Neuropsychology Contemporary Psychology Neuropsychology Journal of Clinical and Experimental Neuropsychology Neuropsychology Review Consulting Editor American Journal of Psychiatry Archives of General Psychiatry Biological Psychiatry Psychiatry Research Science Journal of Neurophysiology CLINICAL ACTIVITIES BOARD CERTIFICATIONS

American Board of Clinical Neuropsychology of the American Board of Professional Psychology, Diplomate, 1983; Board Member, 1983-1990 Licensed Psychologist, Commonwealth of Massachusetts, 1973; State of Maryland, 1988 #2419; District of Columbia, 2007

National Register of Health Service Providers in Psychology (until 2005) Clinical Center, NIH, Staff Affiliate PRIVATE PRACTICE OF CLINICAL NEUROPSYCHOLOGY Center for Psychological Evaluation and Consultation 5502 Spruce Tree Avenue Bethesda, MD 20814-1623 tel 301: 530-9332; fax 301: 564-9562 ORGANIZATIONAL ACTIVITIES MEMBERSHIP IN PROFESSIONAL SOCIETIES Eastern Psychological Association American College of Neuropsychopharmacology (Fellow) American Psychological Association (Fellow) American Association for the Advancement of Science (Fellow) Collegium Internationale Neuropsychopharmacologicum (Fellow) Eastern Society of Electroencephalographers American EEG Society (Fellow) American Epilepsy Society Society for Neuroscience Potomac Chapter, Society for Neuroscience, President, 1982-1983 International Neuropsychological Symposium American Psychopathological Association (Fellow) Society for Research in Psychopathology, Executive Board, 1986-1990 Membership Committee 1988, 1989-1992 (Chair) PROFESSIONAL EXPERIENCE 1965-1969 Mental Health Small Grants Committee, NIMH (Chair, 1966-1969) 1969-1973 Neuropsychology Research Review Committee, NIMH (Chair,1970-1973) 1974-1975 Consultant, National Science Foundation 1975-1976Consultant, National Commission for the Protection of Human Subjects

in Biomedical and Behavioral Research 1977-1978 Panel on Neurological Aspects of Behavior: Psychosurgery; Attention 1977-1978 Veterans Administration Neurobiology Merit Review Board 1978-1981 Executive Committee Member, Division of Physiological and

Comparative Psychology, American Psychological Association 1981-1985 Research Scientist Development Review Committee, NIMH 1982-1983 President, Division of Physiological and Comparative Psychology,

American Psychological Association 1982-1983 Council Member, Assembly of Scientists, NIMH and NINCDS Intramural Research Programs

1983-1984 President-Elect, Assembly of Scientists, NIMH and NINCDS Intramural Research Programs

1984-1985 President, Assembly of Scientists, NIMH and NINCDS Intramural Research Programs

1987-1988 Consultant, Evaluation Project for Ph.D. Programs in Psychology, State University of New York

1988-1993 Consultant, Psychiatric Institute of Montgomery County 1989-1994 Consultant, National Research Council of the National Academy of Sciences 1990-1993 Member, Regional Board, American Board of Professional Psychology 1991-1994 Member, Board of Trustees, American Board of Professional Psychology 1992 Consultant, WHO Division of Mental Health 1995- Consultant, WHO Division of Mental Health, Neuropsychology Advisory

Committee 1995 Consultant, Professional Examination Service, for construction of new licensing

examination for psychologists 1996- Chair, WHO Division of Mental Health, Neuropsychology International Advisory Board RECOGNITION HONORS AND AWARDS 1950 Psi Chi 1954 Sigma Xi Scientific Research Society 1965-1969 Research Career Development Award, NIMH 1969-1980 Research Scientist Award, NIMH 1973 International Neuropsychological Society, President 1982-1983 Division of Physiological and Comparative Psychology, American

Psychological Association, President 1989 Distinguished Contribution to Psychology, Department of Psychology, City College

of New York 1994 H. G. Birch Honorary Lectureship (Keynote Address) of the International

Neuro-psychological Society 1998 Who’s Who in America 2000 Division of Clinical Neurosychology, American Psychological

Association, President-elect 2000 Max Hutt Memorial Lectureship, University of Michigan, Department of

Psychiatry 2001 Division of Clinical Neurosychology, American Psychological Association, President 2002 Keynote Speaker, Massachusetts Neuropsychology Society 2002 Keynote Speaker, Houston Neuropsychological Society 2003 Keynote Speaker International Congress on Neuropsychology, Chinese

University of Hong Kong, December 2003 2003 Keynote Speaker Taiwan Neuropsychology Society, Taiwan, December 2003 2004 Keynote Speaker International Congress of Psychophysiology, Thessaloniki,

Greece, September 2004 2005 Invited Speaker American Epilepsy Society, Symposium on Absence Epilepsy December 2005

2007 Invited speaker, National Academy of Neuropsychology, November 2007 2007 Distinguished Service Award, American Board of Professional Psychology, August 2007 2008 Distinguished Contribution Award, International Neuropsychological Society

2009 Distinguished Contribution to Psychology—Maryland Psychological Association

OTHER PROFESSIONAL ACCOMPLISHMENTS CLUB MEMBERSHIPS 1980 - Member, the Cosmos Club

William  B.  Bryant  American  Inn  of  Court:  Team  4  Presenta:on  

   Deposing  Expert  Witnesses  

February  10,  2015  

Team  Leaders:  Vernon  Johnson  &  Amy  Kossak  

Expert  Witness  Requirements  Under  Federal  and  D.C.  Law  

Prepared  by  George  ValenNne  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Form  of  Expert  Disclosures  in    Local  DC  and  Federal  Courts  

Superior Court Rule 26(b)(4)

•  Requires identification of each expert testifying in court and disclosure through a Rule 26(b)(4 statement disclosing:

•  (a) the subject matter of on which the expert is expected to testify; •  (b) the substance of the facts and opinions to which the expert is expected to testify; •  (c) and a summary of the grounds for each opinion •  The Rule 26(b)(4) statement is not signed by the expert but is signed by the attorney; •  The Rule 26(b)(4) statement is filed with the court and served electronically on the other side; •  In the scheduling order, the Rule 26(b)(4) statement for the proponent (generally the plaintiff) is due first

and defendant’s expert statement due 30 days later;

•  Each party is under an obligation to supplement their expert reports; •  The party deposing an expert has to pay a reasonable fee for the expert’s time in deposition and a

reasonable time preparing for the deposition (excluding attorney preparation time).

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Form  of  Expert  Disclosures  in    Local  DC  and  Federal  Courts  

Fed. R. Civ. Pro--Rule 26(a)(2)(B) •  a party offering an expert witness for trial must provide a written report signed by the expert that includes the following

information: •  A complete statement of all opinions the witness will express and the basis and reasons for them; •  The facts or data considered by the witness in forming them; •  Any exhibits that will be used to summarize or support them; •  The witness’s qualifications, including a list of all publications authored in the previous 10 years; •  A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by depositions; and •  A statement of compensation to be paid for the study and testimony in the case

The expert witness statement/report must be disclosed within the time period set by court order; Absent a court ordered date, the expert’s report must be disclosed 90 days before the trial date or for the case to be ready for trial; or if the evidence is intended solely to contradict or rebut evidence by another party within 30 days of the other party’s disclosure Trial experts, when requested, must be made available for deposition. The deposition may be conducted only after the expert’s report is provided. The rule has been amended to provide protection to drafts of any report regardless of the form in which the draft is recorded. In addition, communications between a party’s attorney are protected regardless of form of communication, except for (1) information regarding compensation, (2) facts or data provided to the expert by the attorney relied upon by the expert in forming the opinions to be expressed; or (3) assumptions that the expert relied upon in forming the opinions to be expressed.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Form  of  Expert  Disclosures  in    Local  DC  and  Federal  Courts  

A party seeking to depose the expert must pay a reasonable fee for the time the expert is being deposed and for a reasonable time the expert spent preparing for the deposition (excluding time spent by the expert being prepared by the attorney who retained the expert). There is a continuing obligation to supplement an expert’s information. The party’s duty to supplement extends both to information included in the report and to information provided in the expert’s deposition. Any additions or changes to this information must be disclosed by the time of the party’s pretrial disclosures under Rule 26(a)(3).

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Admission  of  Expert  TesNmony  under  Frye  and  Daubert  (Rule  702)    

Frye    (DC  Superior  Court)      In  the  District  of  Columbia  Superior  Court,  a  three-­‐part  test  governs  the  admissibility  of  expert  tesNmony:    (1)  the  subject  maZer  must  be  so  disNnctly  related  to  some  science,  profession,  business  or  occupaNon  as  to  be  

beyond  the  ken  of  the  average  juror;    (2)  the  witness  must  have  sufficient  skill,  knowledge,  or  experience  in  that  field  or  calling  as  to  make  it  appear  that  

his  opinion  or  inference  will  probably  aid  the  trier  of  fact  in  his  search  for  truth;  and    (3)  expert  tesNmony  is  inadmissible  if  the  state  of  the  perNnent  art  or  scienNfic  knowledge  does  not  permit  a  

reasonable  opinion  to  be  asserted  even  by  an  expert.          Frye  v.  United  States,  293  F.  1013  (D.C.  Cir.  1923).    Under  Frye,  the  expert  must  use  a  “generally  accepted  methodology”  in  reaching  the  proffered  opinion.      The  Frye  standard    does  not  require  that  the  conclusions  that  the  expert  reached  be  generally  accepted  but  the  methodology  used  by  the  expert  in  reaching  an  opinion  must  have  gained  general  acceptance.      

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Admission  of  Expert  TesNmony  under  Frye  and  Daubert  (Rule  702)    

Daubert  –  Rule  702,  Federal  Rules  of  Evidence    (U.S.  District  Court)    In  Daubert  v.  Merrill  Dow  Pharms.  Inc.,  509  U.S.  579,    587    (1993),  the  Supreme  Court  held  that  the  Frye  test  had  been  superseded  by  Fed.  R.  Evid.  702.  The  Daubert  Court  held  that  “general  acceptance”  is  not  an  “absolute  prerequisite  to  admissibility.”      Rather,  the  test  for  expert  admissibility  focuses  more  generally  on  the  reliability  of  the  proposed  opinion  even  if  the  area  of  experNse  or  opinions  are  in  subject  areas  that  are    relaNvely  new.  •  Rule  702  provides  that:  •  A  witness  who  is  qualified  as  an  expert  by  knowledge,  skill,  experience,  training,  or  educaNon  may  tesNfy  in  the  

form  of  an  opinion  or  otherwise  if:  •  (a)  the  expert’s  scienNfic,  technical,  or  other  specialized  knowledge  will  help  the  trier  of  fact  to  understand  the  

evidence  or  to  determine  a  fact  in  issue;  •  (b)  the  tesNmony  is  based  on  sufficient  facts  or  data;  •  (c)  the  tesNmony  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.    Under  Daubert,  the  judge,  as  the  gate  keeper,  must  preliminarily  determine  whether  the  reasoning  or  methodology  underlying  the  tesNmony  is  scienNfically  valid  and  whether  that  reasoning  or  methodology  properly  can  be  applied  to  the  facts  in  issue.      Both  the  methodology  and  conclusions  must  be  reliable.        Today,  the  federal  courts  and  40  states  follow    Fed.  R.  Evid.  702  and  Daubert.    The  District  and  a  few  states    follow  Frye.      

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Admission  of  Otherwise  Inadmissible  Evidence  Through  

Expert  Witnesses  Prepared  by  Nancy  Eyl  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Rule  703  –  Bases  of  Opinion  TesNmony  by  Experts  

 Sets  forth  the  circumstances  in  which  an  expert  may  rely  upon  informaNon  obtained  by  third  parNes  or  other  evidence  that  might  itself  be  inadmissible.    

9  

Rule  703    

•  Expert  may  base  opinion  on  facts  or  data  that  expert  aware  of  or  personally  observed.    

•  These  facts  or  data  upon  need  not  be  admissible  if  the  type  experts  reasonably  rely  on.  

•  But  if  the  facts  or  data  would  otherwise  be  inadmissible,  the  proponent  of  the  opinion  may  disclose  them  to  the  jury  only  if  their  proba3ve  value  in  helping  the  jury  evaluate  the  opinion  substan3ally  outweighs  their  prejudicial  effect.    

10  

Rule  703  vs.  D.C.  common  law  of  evidence  

D.C.  common  law    •  Favors  admission  of  

expert  tesNmony  about  hearsay  bases  of  opinion  

•  Permits  its  presentaNon  on  direct  unless  legiNmate  probaNve  value  substanNally  outweighed  by  risk  of  unfair  prejudice.  

Rule  703    •  Advisory  CommiZee  note:  

“presumpNon  against  disclosure”  

•  Requires  exclusion  of  hearsay  bases  of  expert  opinion  unless  risk  of  unfair  prejudice  is  substanNally  outweighed  by  legiNmate  probaNve  value  

11  

 In  re  Melton,  597  A.2d  892  (D.C.  1991)  (en  banc)  

A  paranoid  schizophrenic  was  commiZed  to  Saint  Elizabeths  Hospital.  At  the  mental  health  trial,  the  government's  only  witnesses  were  two  psychiatrists,  who  tesNfied  about  their  diagnosis  of  Mr.  Melton  and  their  assessment  of  his  future  dangerousness.  During  their  tesNmony,  the  doctors  recounted  events  leading  up  to  hospitalizaNon,  including  the  report  of  an  incident  at  which  neither  of  them  was  present,  when  Melton  punched  his  mother  in  the  nose.  

     Was  this  admissible?  12  

Yes.  

Psychiatrists  reasonably  rely  on  informaNon  from  family  members  in  reaching  their  conclusions,  and  thus  that  the  experts  who  evaluated  Melton  were  permiZed  to  rely  on  such  informaNon.      Court  also  noted  that  the  tesNmony  was  admiZed  "for  the  purpose  of  evaluaNng  the  reasonableness  and  correctness  of  the  doctors'  conclusions”  and  not  “to  establish  the  truth  of  the  maZers  asserted."    (limiNng  instrucNon)  

13  

In  re  Amey,  40  A.3d  902  (D.C.  2012)  

Amey  arrested  for  punching  strangers  in  the  face.  At  mental  health  trial,  a  St.  Elizabeths  Hospital  psychiatrist  tesNfied  as  government’s  expert  witness.  Diagnosis  of  paranoid    schizophrenia  partly  based  on  reports  and  statements  of  others,  e.g.,  notes  in  hospital  records  about  paNent  picking  fights,  interviews  with  family,  etc.  

   Was  this  admissible?  

14  

Yes.  

No  error  in  allowing  to  psych  to  refer  on  direct  to  hearsay  bases  of  opinion  without  first  finding  that  legiNmate  probaNve  value  of  hearsay  substanNally  outweighed  risk  of  unfair  prejudice.    Subject  to  proper  limiNng  instrucNon  –  not  proof  of  facts;  statements  only  to  evaluate  reasonableness  of  expert’s  conclusions.     15  

Defending  an  Expert  DeposiNon:  Preliminary  Steps  

Prepared  by  Amy  Kossak  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Defending  an  Expert  DeposiNon:    Preliminary  Steps  

•  Contact  aZorneys  who  have  worked  with  (or  against)  the  expert  in  previous  cases.  

•  Read  expert’s  report  closely  and  in  its  enNrety  (looking  for  porNons  that  may  trigger  quesNons).  

•  Obtain  and  read  copies  of  all  prior  transcripts.  •  Review  resume/CV  for  relevant  publicaNons  and  public  statements,  obtain  them,  and  read  them.  

•  Use  Google,  Lexis,  Facebook,  etc.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Preparing  the  Medical  Expert:  The  “Magic”  Phrases  

Prepared  by  Gabrielle  Best-­‐Husband  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

The  Magic  or  Key  Phrases  

Reasonable  Degree  of  Medical  Certainty    

SubstanNal  ContribuNng  Factor    

Reliable  Principles  and  Methods    

Facts  or  Data  Reasonably  Relied  Upon  By  Experts  In  the  Field  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Reasonable  Degree  of  Medical  Certainty  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Reasonable  Degree  of  Medical  Certainty  

Reasonable  Degree  of  Medical  Certainty  

“A  standard  requiring  a  showing  that  the  injury  was  more  likely  than  not  caused  by  a  parNcular  sNmulus,  

based  on  the  general  consensus  of  recognized  medical  thought.”  Black’s  

Law  DicNonary  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Reasonable  Degree  of  Medical  Certainty  

The  expert  must  feel  must  feel  that  the  opinion  is  more  likely  than  not  

accurate  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

The  American  Law  InsNtute  (ALI)  declared,  in  its  Restatement  (Third)  of  

Torts:  Liability  for  Physical  and  EmoIonal  Harm  (§  28,  Comment  e,  2010  that  Reasonable  Degree  of  Medical  Certainty  means  that  an  

expert's  opinion  is  "more  likely  than  not"  accurate.    

The  ALI  reasoned  that  the  standard  for  "reasonable  degree  of  medical  certainty"  should  not  exceed  the  standard  of  proof  considered  by  juries  in  tort  cases,  i.e.,  a  

preponderance  of  the  evidence.  

Reasonable  Degree  of  Medical  Certainty  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Reasonable  Degree  of  Medical  Certainty  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Reasonable  Degree  of  Medical  Certainty  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

SubstanNal  ContribuNng  Factor  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

SubstanNal  ContribuNng  Factor  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Federal  Rules  of  Evidence  702:  TesNmony  By  Expert  Witness  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

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

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

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

(c)  the  tesNmony  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.  

Reliable  Principles  and  Methods  (FRE  702  (c))  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

(c)  the  tes:mony  is  the  product  of  reliable  principles  and  methods;  and  

Facts  or  Data  Reasonably  Relied  Upon  By  Experts  In  the  Field  (FRE  702  (d))  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

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

Federal  Rules  of  Evidence  703  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

But  if  the  facts  or  data  would  otherwise  be  inadmissible,  the  proponent  of  the  opinion  may  disclose  them  to  the  jury  only  if  their  probaNve  value  in  helping  the  jury  evaluate  the  opinion  substanNally  outweighs  their  prejudicial  effect.    

If  experts  in  the  parNcular  field  would  reasonably  rely  on  those  kinds  of  facts  or  data  in  forming  an  opinion  on  the  subject,  they  need  not  be  admissible  for  the  opinion  to  be  admiZed.    

An  expert  may  base  an  opinion  on  facts  or  data  in  the  case  that  the  expert  has  been  made  aware  of  or  personally  observed  

Admissibility  of  Expert  TesNmony:  3  Part  Test  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

The  criteria  for  admiqng  expert  tesNmony  in  DC  are  set  forth  in  the  three-­‐part  test  in  Dyas  v.  United  States,  376  A.2d  827  (D.C.1977),  cert.  denied,  434  U.S.  973,  98  S.Ct.  529,  54  L.Ed.2d  464  (1977)  

Admissibility  of  Expert  TesNmony:  3  Part  Test  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

1  • the  subject  maZer  ‘must  be  so  disNncNvely  related  to  some  science,  profession,  business  or  occupaNon  as  to  be  beyond  the  ken  of  the  average  [lay  person]’;    

2  • The  witness  must  have  sufficient  skill,  knowledge,  or  experience  in  that  field  or  calling  as  to  make  it  appear  that  his  [or  her]  opinion  or  inference  will  probably  aid  the  trier  in  his  [or  her]  search  for  truth’;  

3  • Expert  tesNmony  is  inadmissible  if  ‘the  state  of  the  perNnent  art  or  scienNfic  knowledge  does  not  permit  a  reasonable  opinion  to  be  asserted  even  by  an  expert.’  

A  BRIEF  OVERVIEW:  2010  AMENDMENTS  TO  THE    

EXPERT  DISCOVERY  PROVISIONS  OF  RULE  26  OF  THE  FEDERAL  RULES  OF  CIVIL  PROCEDURE  

Prepared  by  Farrah  Champagne  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Purpose  

•  Changes  to  the  expert  discovery  provisions  of  Rule  26  went  into  effect  on  December  1,  2010.  The   changes   clarified   limits   on   discoverable  informaNon  concerning  the  work  of  experts.    

•  This   presentaNon   will   explain   what   expert  material  is  sNll  discoverable  and  what  is  not  as  a  result  of  the  new  amendments.    

•  This   presentaNon   will   also   provide   pracNcal  Nps   and   quesNons   that   aZorneys   should   ask  during  deposiNons.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Pre  -­‐2010  Amendments  to  Rule  26    

 Purpose  of  the  Rule  •  Before  the  Amendments,  the  

expert  discovery  rules  encouraged  complete  disclosure  of  “all  data  and  other  informaNon”  that  an  expert  considered.  

•  Other  informaNon  included:  research,  drax  reports,  notes,  emails,  and  other  correspondence.    That  informaNon  also  included  informaNon  that  was  ulNmately  rejected.  

Effect  •  The    disclosure  requirements  

incenNvized  aZorneys  and  experts  to  minimize  wriZen  communicaNon.  

•  There  were  minimal,  if  any  notes  or  email  exchanges.  

•  If  an  expert  were  not  going  to  tesNfy,  aZorneys  would  only  rarely  consult  with  that  person.  

•  This  was  a  defensive  strategy  that  proved  to  serve  as  a  handicap  to  the  experts  and  to  the  aZorneys.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

2010  Amendments  to  Rule  26    

Under  the  amendments,  only  “facts  or  data”  that  the  expert  considered  need  to  be  disclosed.  The  change  of  “other  informaNon”  to  “facts”  was  designed  to  protect  work-­‐product,  thus  limiNng  the  disclosure  of  mental  impressions  and  theories.  Arguably,  there  was  not  much  change  at  all.    The  Advisory  CommiZee  Note  to  2010  Amendment  to  Rule  26  stated  that  “facts  or  data”  should  be  “interpreted  broadly.”  The  main  changes  include:  

1.  Draxs  of  expert  reports  and  other  required  disclosures  are  protected  “regardless  of  the  form  in  which  the  drax  is  recorded.”  2.  CommunicaNons  between  counsel  and  experts  are  protected  from  disclosure,  “regardless  of  the  form  of  communicaNon,”  with  certain  excepNons.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

A.  Reports  

•  The  courts  have  not  come  to  a  clear  consensus  about  what  consNtutes  a  non-­‐discoverable  drax.    

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Viewpoint  1  

•  Courts  that  rely  on  the  strict  language  in  Rule  26(b)(4)(B),  which  refers  to  “draxs  of  any  report,”  have  found  that  drax  notes,  lists,  outlines,  and  memoranda  are  discoverable  because  they  are  not  technically  “draxs”  of  reports.    See  Dongguk  University  v.  Yale  University,  No.  3:08-­‐CV-­‐00441,  2011  BL  335699,  at  *1  (D.  Conn.  May  19,  2011).  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Viewpoint  2  

•  Other  courts,  however,  have  found  that  drax  notes,  lists,  outlines,  and  memoranda  are  protected  from  discovery.    The  theories  employed  by  the  courts  include:  1.  Those  materials  could  have  been  part  of  the  drax,  since  Rule  26(b)(4)(B)  says  the  drax  can  be  in  any  form.  2.  On  par  with  the  amendments,  which  were  designed  to  protect  work  product,  discoverable  “facts  or  data”  does  not  include  everything  the  expert  used  when  forming  their  opinion  or  analyzing  the  informaNon.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Case  Law:  In  Helmert  v.  BuXerball,  LLC,  No.  4:08CV00342,  2011  BL  194901,  at  *2  (E.D.  Ark.  July  27,  2011),  the  court  stated  there  is  not  any  “suggesNon  in  Rule  26(a)(2)  that  an  expert  report  is  incomplete  unless  it  contains  sufficient  informaNon  and  detail  for  an  opposing  expert  to  replicate  and  verify  in  all  respects  both  the  method  and  results  described  in  the  report.”    The  court  in  In  re  Levaquin  Products  Liability  LiIgaIon.,  MDL  No.  08-­‐1943,  2012  BL  209558,  at  *5  (D.  Minn.  Aug.  17,  2012),  found  no  discovery  violaNon  for  the  aZorney’s  failure  to  produce  a  recreaNon  of  “a  calculaNon  that  the  expert  did  not  remember  doing  and  of  which  he  had  no  record.”  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

The  Reasonable  Approach  

•  The  plain  reading  of  the  expert  discovery  rules  protects  any  drax  “regardless  of  the  form  in  which  the  drax  was  recorded.”      

•  The  rules  as  amended  were  designed  to  protect  work  product,  mental  impressions,  and  theories.  

•  Requiring  an  expert  to  turn  over  everything  included  in  his  analysis  so  another  expert  could  recreate  his  analysis  in  each  and  every  way  would  be  inconsistent  with  the  above  stated  intent.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Possible  Consequences  of  Relying  Strictly  on  “Draxs  of  any  Report”  Language    

 If  the  courts  strictly  required  drax  notes,  memoranda,  lists,  and  outlines  to  be  discoverable,  experts  could  theoreNcally  create  a  “drax  report”,  and  shield  it  from  discovery  unNl  there  was  a  review  by  the  court  in  camera.  The  buried  “drax  report”  could  include  otherwise  discoverable  notes,  lists,  outlines,  and  memoranda.     Team  4  Inn  of  Court  PresentaNon  

February  10,  2015  

B.  CommunicaNons  

•  Under  the  new  rules,  all  communicaNons  between  counsel  and  experts  who  will  be  tesNfying  are  protected  from  discovery  “regardless  of  the  form  of  the  communicaNons.”    

•  ExcepNons:  •  CommunicaNons  related  to  –  1.  CompensaNon;  –  2.  Facts  or  data  provided  by  counsel  that  the  expert  considered  in  her  analysis;  

–  3.  AssumpNons  of  counsel  that  the  expert  relied  upon  when  conducNng  her  analysis  and  forming  her  opinion.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Case  Law  –    CommunicaNons  Containing  Facts,  Data,  &  

AssumpNons  •  In  Fialkowski  v.  Perry,  Civ.  AcNon  No.  11-­‐5139,  2012  BL  248993,  at  *4-­‐5  (E.D.  Pa.  June  29,  2012),  the  court  stated  that  even  if  the  documents  were  considered  counsel-­‐expert  communicaNons,  they  were  discoverable  to  the  extent  that  there  were  facts,  data,  or  assumpNons  that  were  considered  by  the  expert.  

•  In  Coffeyville  Resources  Refining  &  MarkeIng  v.  Liberty  Surplus  Insurance  CorporaIon,  2012  BL  105122,  at  *2  (D.  Kan.  April  26,  2012),  the  court  granted  a  moNon  to  compel  facts,  data,  and  assumpNons  that  were  provided  to  the  expert  even  when  they  were  part  of  correspondence  with  counsel.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Case  Law  –    CommunicaNons  That  Do  Not  Contain  Facts,  Data,  &  

AssumpNons  •  CommunicaNons  that  do  not  contain  facts,  data,  and  assumpNons  

provided  to  the  expert  the  communicaNons  are  protected.  •  In  Sara  Lee  CorporaIon  v.  Kra_  Foods  Inc.,  273  F.R.D.  416,  420-­‐421  

(N.D.  III.  Apr.  1,  2011),  the  court  found  that  the  requested  communicaNons  were  not  discoverable  even  if  they  were  related  to  the  expert’s  tesNmony  because  “none  of  the  communicaNons  contain  facts,  data,  or  assumpNons  that  the  expert  could  have  considered  in  assembling  his  expert  report.”  

•  The  communicaNons  in  that  case  contained  informaNon  about  how  to  conduct  a  pilot  survey  of  an  adverNsement  involved  in  a  false  adverNsing  suit.    The  expert  in  this  case  did  not  conduct  the  survey  or  learn  the  results  of  the  survey,  thus  could  not  have  considered  the  survey  when  forming  his  opinion.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

What  Counsel  Should  Do  Concerning  CommunicaNons  

1.  Determine  on  a  case-­‐by-­‐case  whether  the  communicaNon  contains  informaNon  about  the  expert’s  

A.  CompensaNon  B.  Facts  considered  by  the  expert  C.  Data  considered  by  the  expert  D.  AssumpNons  relied  upon  by  the  expert  including:  

i.  Liability  ii.  CausaNon  iii.  The  truthfulness  of  tesNmony  or  evidence  iv.  The  reliability  of  another  expert’s  conclusions  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Unresolved  Issues  

1.  Courts  differ  as  to  what  consNtutes  a  non-­‐discoverable  expert  “drax”  report.  2.  The  amendments  only  protect  communicaNons  between  counsel  and  experts;  other  communicaNons  are  discoverable.  

A.  In  In  re  ApplicaIon  of  the  Republic  of  Ecuador,  280  F.R.D.  506,  515-­‐516  (N.D.  Cal.  2012),  the  court  found  that  communicaNons  between  an  expert  and  consultants,  other  experts,  and  party  employees  were  not  protected.  B.    Copying  counsel  on  an  email  between  the  expert  and  a  third-­‐party  consultant  was  not  protected.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

More  Unresolved  Issues  

3.  The  communicaNons  excepNon  only  applies  to  facts,  data,  or  assumpNons  that  were  provided  to  the  expert  by  counsel.    If  the  expert  already  has  knowledge  of  the  informaNon,  communicaNons  regarding  the  informaNon  may  not  need  to  be  disclosed.  4.  There  is  sNll  a  duty  to  supplement  expert  disclosures.    The  duty  extend  unNl  the  Nme  pre-­‐trial  disclosures  are  due.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

PracNcal  Tips  1.  Limit  the  number  of  drax  expert  reports  2.  Do  not  bury  otherwise  discoverable  informaNon  into  what  could  be  labeled  as  a  “drax”  expert  report.  3.    Create  a  document  containing  all  facts,  data,  and  assumpNons  that  counsel  provides  to  the  expert.  4.  Limit  communicaNons  with  the  expert.  5.  Select  an  expert  who  already  knows  the  necessary  facts,  data,  and  assumpNons.  6.  Enter  into  a  sNpulaNon  regarding  the  scope  of  expert  tesNmony.  7.  Create  logs  lisNng  withheld  materials,  including  drax  reports,  and  communicaNons  between  counsel  and  the  expert.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

QuesNons  to  Ask  During  Expert  DeposiNons  

1.  Ask  about  any  facts  or  data  considered  by  the  witness.  2.  Ask  about  the  source  of  the  facts  or  data  considered.  3.  Ask  about  any  form  of  direct  benefit  the  expert  may  receive  for  the  work  he  is  performing.  4.  Ask  whether  the  expert  was  instructed  to  rely  on  certain  assumpNons  that  may  not  show  in  the  report.  •  Note:  Follow  up  exhausNvely  on  the  given  answers.  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Deposing  an  Expert:    Preliminary  Steps  

Prepared  by  Billy  Laxton  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Preliminary  Steps  to  Take  Before  Deposing  an  Expert  

54

Read everything provided.

•  Carefully read the report looking for inaccuracy, inconsistency, and incompleteness.

o  Legal jargon? Language similar to pleadings or other filings?

o  Relying on other opinions? Is there anything about that expert or her opinions that you can use?

•  Under Federal Rules, expert report must include:

o  List of all publications authored in the previous 10 years.

o  List of all cases where the expert testified as an expert at trial or by deposition in previous 4 years.

Preliminary  Steps  to  Take  Before  Deposing  an  Expert  

55

Find things not provided.

•  Use Google and LinkedIn

o  Articles not listed in publication list.

o  Information from expert’s company webpage or faculty webpage (course syllabi can be rich sources of information).

o  Opinions/articles by colleagues.

•  Use Westlaw or other legal research site.

o  Search for Court opinions and briefs.

o  Find past deposition and trial transcripts if available.

Preliminary  Steps  to  Take  Before  Deposing  an  Expert  

56

•  Talk to your expert.

o  About the opposing expert or her company.

o  About the report of the expert you are going to take.

•  Talk to other attorneys.

o  From court filings or through word of mouth, find someone who has been adverse to the expert in the past.

“Do”s  and  “Don’t”s  for  Expert  Witness  DeposiNons  

Prepared  by  Isabella  Demougeot  

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

TIP  #1  

DO: •  Gear the deposition

toward identifying and understanding key weaknesses in the expert’s report.

•  In order to do this: Do a thorough reading of both the opposing expert’s and your expert’s report before the deposition.

DON’T: •  Skim the report •  Solely focus on your

Expert

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Tip  #2  

DO: •  Check expert credentials. They

can be a deciding factor in a close case. Get and go through the expert’s most current C.V. and have the expert explain what he or she did to obtain each of his or her credentials.

•  Before the deposition, do your own research on the credentials he or she has. Is the expert still practicing in the field or is she or he a “professional expert witness.”

•  Knowing whether the credential requires classroom hours, practical experience and submitting reports and/or peer review can all make a difference.

DON’T: •  Assume that because an

expert has previously been qualified to mean that they are the best expert for your case.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Tip  #  3  

DO: •  Put an expert witness

that is going to appeal to the trier of fact on the stand.

DON’T: •  Put the wrong expert

witness on the stand. Is the expert witness squirmy? Does he or she come off as untrustworthy? If yes, the expert witness might not make a good testifying expert.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Tip  #4  

DO: •  Consider whether to

provide the expert with all of the facts and all of the information from the case. Opposing counsel on cross-examination can sometimes get the expert witness to change their opinion if their opinion does not include all of the relevant facts.

DON’T: •  Weaken your case by not

providing your expert witness with a strong base on which to stand on.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Tip  #5  

DO: •  Ask an expert who and what

is considered authoritative in the field.

•  Often, experts on both sides of a case know each other. Similarly, if the expert will rely on a treatise, study, or some other reliable source, try to induce the opposing expert to agree that it is authoritative in the field. These admissions become great nuggets to use down the road.

DON’T: •  Assume that the

resources your expert or the other’s expert are using are authoritative.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Tip  #6  

DO: •  Read prior transcripts of

the expert’s depositions. •  Your local bar association,

your firm, or colleagues at other firms may have on file scores of transcripts from prior depositions of the expert. Reviewing just one or two of these transcripts can give you a feel for what the expert is like in terms of how cooperative or evasive the expert is, and possibly even what the expert’s testimony will likely be in your case.

Team  4  Inn  of  Court  PresentaNon  February  10,  2015  

Page 1

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

United States District Court, D. Oregon. Heinrich GERKE, Plaintiff,

v. TRAVELERS CASUALTY INSURANCE COM-PANY OF AMERICA, a foreign corporation, De-

fendant/Counterclaimant and

Valley Forge Insurance Company, a foreign corpora-tion, Defendant.

Travelers Casualty Insurance Company of America, a foreign corporation, Third–Party Plaintiff,

v. Trans Lease, Inc., Third–Party Defendant.

No. 3:10–CV–1035–AC.

Feb. 19, 2013. Background: In suit arising from an insurance cov-erage dispute, parties sought to resolve discovery dispute as to the extent to which attorney work-product privilege protected insured's lawyer's communications with a testifying expert and the con-tents of expert's file. Holdings: The District Court, Acosta, United States Magistrate Judge, held that: (1) insured's counsel did not meet discovery rule's expert disclosure requirements and did not comply with the court's order when he failed to review in-sured's expert's file before producing documents to insurer defendants, and (2) additional disclosure of communications between insured's counsel and insured's expert were warranted to enable court to determine whether expert's final report contained facts, data, and assumptions provided by insured's counsel, and whether expert adopted that

information as his own opinion and included it in his final report.

Order in accordance with opinion.

West Headnotes

[1] Federal Civil Procedure 170A 1278 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1278 k. Failure to respond; sanctions. Most Cited Cases

Insured's counsel did not meet discovery rule's expert disclosure requirements and did not comply with the court's order when he failed to review in-sured's expert's file before producing documents to insurer defendants; such failure disrupted expert's deposition, required defendants to incur additional time and expense to prepare and submit materials to the court for in camera review, and required that ex-pert's deposition be reconvened to allow defendants to question expert about non-disclosed documents. Fed.Rules Civ.Proc.Rule 26(b)(4), (g), 28 U.S.C.A. [2] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases

A lawyer must actually review a retained expert's case file in preparation for making the disclosures required by discovery rule pertaining to expert's re-

Page 2

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

port; under rule, lawyer certifies that he or she has made a “reasonable inquiry” that the response is complete and correct, and the “reasonable inquiry” determination is governed by an “objective reasona-bleness” standard. Fed.Rules Civ.Proc.Rule 26(b)(4), 28 U.S.C.A. [3] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases

In suit arising from an insurance coverage dis-pute, additional disclosure of communications be-tween insured's counsel and insured's expert were warranted to enable court to determine whether ex-pert's final report contained facts, data, and assump-tions provided by insured's counsel, and whether ex-pert adopted that information as his own opinion and included it in his final report; further disclosure in-cluded materials and communications expert consid-ered, which included any materials he reviewed or received even if he did not rely upon them in reaching his opinions. Fed.Rules Civ.Proc.Rule 26(b)(4), 28 U.S.C.A. [4] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases Federal Civil Procedure 170A 1604(1) 170A Federal Civil Procedure

170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things 170AX(E)3 Particular Subject Matters 170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(1) k. In general. Most Cited Cases

Under discovery rules, communications between a lawyer and the lawyer's retained expert, including draft or preliminary reports, are protected from dis-closure as attorney work-product, but such protection is not unlimited, as exceptions exist to preserve the integrity of experts' opinions by making discoverable lawyers' communications that jeopardize the experts' independence. Fed.Rules Civ.Proc.Rule 26(b)(4), 28 U.S.C.A. [5] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases Federal Civil Procedure 170A 1604(1) 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things 170AX(E)3 Particular Subject Matters 170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(1) k. In general. Most Cited Cases

Counsel's assistance drafting some or all of re-tained expert's report removes counsel's communica-

Page 3

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

tions with expert, including drafts, from discovery rule's attorney work-product protection. Fed.Rules Civ.Proc.Rule 26(b)(4), 28 U.S.C.A. [6] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases

Others may assist in the preparation of an expert's report but the expert must freely authorize and adopt the changes as his or her own, and the final report must be that of the expert. Fed.Rules Civ.Proc.Rule 26(b), 28 U.S.C.A. [7] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases Federal Civil Procedure 170A 1604(1) 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things 170AX(E)3 Particular Subject Matters 170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(1) k. In general. Most Cited Cases

Communications between a lawyer and the law-

yer's testifying expert are subject to discovery when the record reveals the lawyer may have comman-deered the expert's function or used the expert as a conduit for his or her own theories; when the record presents that possibility, the lawyer may not use the attorney work-product privilege as a shield against inquiry into the extent to which the lawyer's in-volvement might have affected, altered, or “corrected” the expert's analysis and conclusions. Fed.Rules Civ.Proc.Rule 26(b), 28 U.S.C.A. [8] Federal Civil Procedure 170A 1274 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1272 Scope 170Ak1274 k. Evidentiary matters. Most Cited Cases

Expert's adoption or ratification of a lawyer's changes and additions to the expert's report does not preclude opposing counsel from learning how the lawyer's contributions affected the expert's final opinions, and does not insulate the expert's opinion from either evidentiary exclusion or challenge through impeachment. Fed.Rules Civ.Proc.Rule 26(b), 28 U.S.C.A. *318 Brian D. Chenoweth, Brooks Macinnes Foster, James Patrick Graves, Jr., Chenoweth Law Group, PC, Portland, OR, for Heinrich Gerke, Trans Lease, Inc. Lloyd Bernstein, Elizabeth A. Eames, Gordon & Polscer, LLP, Portland, OR, for Travelers Casualty Insurance Company of America. Larry M. Arnold, Cummins & White, LLP, Newport Beach, CA, Daniel E. Thenell, Jillian M. Hinman, Thenell Law Group, PC, Portland, OR, for Valley Forge Insurance Company.

Page 4

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

OPINION AND ORDER ACOSTA, United States Magistrate Judge.

This opinion and order resolves the parties' dis-pute over disclosure of Plaintiff's expert's file in this insurance coverage lawsuit.

OPINION Background

Plaintiff hired Rob Painter to give an expert opinion whether plaintiff intentionally burned his Matco Tools truck, as defendant insurers claim. Ex-pert disclosures and depositions were to be completed by the end of October 2012, but Painter's deposition did not occur by the deadline. The parties deferred his deposition after a dispute arose over the scheduling of Painter's deposition, as well as which side would bear the cost of Painter's travel to Portland for his deposi-tion and the cost of his time to testify at deposition.

On November 3, 2012, Plaintiff filed a motion for protective order regarding the scheduling of and payment arrangements for Painter's deposition. Dur-ing the November 7, 2012, hearing on Plaintiff's mo-tion, Defendants asserted they had not yet received documents from Painter's file, which documents they needed prior to deposing Painter. Following the hearing, the court issued an order memorializing its rulings at the hearing, which order reads in relevant part:

5. Plaintiff shall produce to Defendants those por-tions of Painter's file not excluded from discovery by Federal Rule of Civil Procedure 26(b)(4), ex-cluded documents specifically being Painter's draft reports, and documents containing facts, data, or assumptions from Plaintiff's counsel to Painter. Any document containing such information and also containing attorney work-product must be produced in redacted form. Letters and emails from Plaintiff's counsel to Painter to which are attached discovera-ble information must also be produced, in redacted form if necessary. Plaintiff shall produce to De-fendants a category-based privilege log of the

documents in Painter's file withheld from produc-tion.

Defendants deposed Painter on November 16,

2012. During Painter's deposition a dispute arose whether Plaintiff had produced all discoverable por-tions of Painter's file for this case. The parties' lawyers contacted the court by telephone during the deposition to obtain a ruling on their dispute. Defendants' counsel argued that Plaintiff had not produced all discoverable materials from Painter's file, that Plaintiff's counsel had not reviewed Painter's file before producing dis-coverable documents from his file, and that Painter had been instructed not to answer questions whether Plaintiff's counsel had written any portion of Painter's expert report. Plaintiff's counsel responded he had complied with the court's order by producing to De-fendants all documents from Painter's *319 file not already in Defendants' possession and had provided a privilege log of the documents withheld under claim of attorney work-product privilege, and further con-tended the privilege precluded disclosure of draft reports and information about counsel's assistance in preparing the expert's report.

After hearing argument from both sides, the court ordered Painter and each party's counsel to submit documents to the court. The court's November 16, 2012, minute order memorializes the court's rulings during the deposition:

MINUTES of Proceedings: Telephone Discovery Conference held by Judge Acosta addressing issues arising during the deposition of plaintiff's expert, Mr. Painter. It is hereby ORDERED that: 1) Mr. Painter shall produce to the court for in camera re-view no later than November 30, 2012, the entirety of his file contents regarding his consulting en-gagement in this case. “File contents” is to be in-terpreted and applied as broadly as possible and shall include but not be limited to the expert report prepared and produced in this case, letters, emails, notes, deposition transcripts, affidavits, drafts of

Page 5

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

reports, reports of other experts, work product of other experts, data, drawings, diagrams, schematics, retainer agreements, and any other document, whether in hard-copy or digital form, contained in Mr. Painter's file, whether or not Mr. Painter read, reviewed, consulted, studied, or considered the document, and from whatever source received, be that source plaintiff's counsel, other experts, assis-tants, lay persons, or any other source. Mr. Painter is not to consult with plaintiff's counsel or any other person when determining which file documents to include in his submission to the court, and he is to err on the side of being inclusive of materials about which he is uncertain are within the scope of the court's order to produce his “file.” Mr. Painter may include a cover letter explaining his inclusion of such documents, if desired. Mr. Painter is not to copy plaintiff's counsel or defendants' counsel with his submission to the court. 2) Plaintiff's and de-fendants' counsel may submit to the court the por-tions of Mr. Painter's file plaintiff's counsel pro-duced to defendants counsel, no later than Novem-ber 30, 2012, those submissions to be served on all other counsel. 3) Mr. Painter is to answer at depo-sition questions regarding whether other persons provided information included in his expert report and whether other persons, including but not limited to plaintiff's counsel, wrote portions of his final report, and whether Mr. Painter included in his final report portions written by others in edited or uned-ited form,

(Order of November 16, 2012, Dkt. No. 120.)

As ordered, Painter, Plaintiff's counsel, and De-

fendants' counsel submitted their materials to the court by the November 30, 2012 deadline, Painter's file consists of four file folders generally organized by type of document: one file contains printed emails exchanged between Painter and Plaintiff's counsel, and between Plaintiff's counsel and Defendants' counsel; one file contains Painter's report; and two files contains reports of Defendants' experts. Painter's

file also includes two DVD disks labeled with the case name and titled “Truck Raw Footage.” In addition, the folders also contain a complete unredacted copy of Painter's consulting agreement, five case summaries from jury verdict reporting services in which Painter testified as a witness, emails exchanged between Painter and Plaintiff's counsel in preparation for the depositions of Defendants' experts, a document enti-tled “Preliminary Report,” dated October 18, 2012, and a second preliminary report document, with at-tachments, dated October 18, 2012. Painter's file contains no letters, working notes, entries of time spent reviewing materials and preparing his report, deposition transcripts, recorded or printed statements or interviews, drawings, or any other materials.

Plaintiff's counsel submitted a three-and-one-half-inch three-ring binder represented to contain all of Painter's file materials produced to Defendants. The binder included a cover letter iden-tifying each produced document and setting forth Plaintiff's position, with supporting authority, re-garding the correctness of Plaintiff's disclosure of Painter's file, Defendants' counsel jointly submitted *320 their own three-ring binder of Painter's file ma-terials received from Plaintiff and accompanied their binder with a cover letter that contained a list of the binder's contents. Defendants also included in their binder the complete transcript of Painter's November 16, 2013, deposition, a highlighted mini-transcript of the deposition, and a DVD copy of the deposition.

Issues The parties' dispute turns on the extent to which

the attorney work-product privilege protects a lawyer's communications with a testifying expert and the con-tents of an expert's file under Federal Rule of Civil Procedure 26(b). Defendants' specific issues are these:

1. Plaintiff's counsel did not review Painter's file before producing documents from Painter's file to defendants.

Page 6

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

2. Painter did not bring his file to his deposition.

3. Plaintiff produced as Painter's “file” only a handful of documents to defendants, consisting of redacted emails and redacted excerpts of Painter's retainer agreement.

4. In some of the emails plaintiff produced there are reference to documents transmitted with the emails but those documents are not mentioned in Painter's written expert report.

5. Plaintiff's counsel instructed Painter to not an-swer questions inquiring whether anyone other than Painter, including Plaintiff's counsel, wrote portions of Painter's expert report.

6. Painter's unredacted retainer agreement should be produced.

7. Plaintiff's counsel could not have provided de-fendants with an accurate privilege log because he did not review Painter's file.

Defendants acknowledge plaintiff produced these

materials:

1. Plaintiff's October 22, 2012, Rebuttal Expert Disclosures.

2. Plaintiff's November 15, 2012, Amended Rebut-tal Expert Disclosures.

3. A & R Forensic Auto Lab November 15, 2012, invoice with Spirit Airlines confirmation.

4. Painter's “file,” as previously described above.

5. Plaintiff's privilege log regarding Painter's file.

Plaintiff's counsel responds that although he did not review Painter's file, he inquired of Painter about the contents of the file to inform his production of documents from Painter's file and his preparation of the privilege log, and that he believes both the pro-duction to Defendants and the content privilege log are complete. Plaintiff's counsel also states he provided Painter with various documents to review and he produced copies of those documents to defendants. Plaintiff's counsel further observes that Painter's written expert report contains a list of the documents Painter considered in reaching his opinion, so de-fendants are aware of the documents and information Painter relied upon in this case. Finally, plaintiff's counsel contends that draft reports are protected from disclosure under the express language of Rule 26(b)(4), regardless of who authored the draft or any portion of it.

Plaintiff represents he produced these documents to defendants:

1. Plaintiff's October 22, 2012, written expert report (“Painter Report”).

2. Exhibit A to Painter Report, curriculum vitae of Rob Painter.

3. Exhibit B to Painter Report, October 15, 2013, Declaration of Ryan Luton.

4. Exhibit C to Painter Report, photocopy of disc containing digital photos.

5. Printouts of digital photos contained on disc.

6. Exhibit D to Painter Report, photos of intact GMC C5500 truck.

7. Exhibit E to Painter Report, December 22, 2009, Hillsboro Fire Department Investigation Report.

Page 7

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

8. Plaintiff's November 15, 2012, Amended Rebut-tal Expert Disclosures.

9. Two discs containing a November 1, 2012, video of plaintiff's burned truck.

*321 10. Plaintiff's November 17, 2012, privilege log regarding Painter file.

11. Redacted copies of documents labeled GERKE285091–96 from Painter file.

12. Painter's November 15, 2012, invoice.

13. Letter from Dr. Ron Jones, DO, labeled GERKE285087, regarding Painter's medical condi-tion.

Plaintiff also points out he did not produce to

defendants those documents given to Painter that plaintiff received from defendants, and which Painter considered, because defendants already had those documents in their possession. Plaintiff identifies those documents as these:

1. August 17, 2012, report of defendants' expert, Darryl Stoutsenberger (considered by Painter and listed in his report, but not attached to his report).

2. August 17, 2012, report of defendants' expert, Bernard Maddox (considered by Painter and listed in his report, but not attached to his report).

3. Gerke truck diagram, labeled TRUCK # 06–097, in digital format.

4. Gerke Final Report by defendants' non-testifying expert Richard Benzo of L & W Investigations, dated May 31, 2012, in digital format.

5. Summit Body Works documents, including No-vember 22, 2011, Ryan Luton Declaration, ProVan vehicle quote, and diagram.

6. General Motors documents produced in response to August 17, 2011, subpoena, Bates Nos. GMLLC000000001–25.

Standard

Federal Rule of Civil Procedure 26(b) governs disclosure of expert witness materials. In relevant part, the rule reads:

(4) Trial Preparation: Experts.

* * * *

(B) Trial–Preparation Protection for Draft Re-ports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial–Preparation Protection for Communi-cations Between a Party's Attorney and Expert Witnesses, Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert's study or testimony;

(ii) identify facts or data that the party's attor-ney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party's at-torney provided and that the expert relied on in

Page 8

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

forming the opinions to be expressed.

(5) Claiming Privilege or Protecting Tri-al–Preparation Materials.

(A) Information Withheld. When a party with-holds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not pro-duced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

Federal Rule of Civil Procedure 37, entitled

“Failure to Make Disclosures or to Cooperate in Discovery; Sanctions,” sets out the consequences to a party who fails to make required discovery or does not comply with court-ordered discovery. In relevant part, the rule reads:

(b) Failure to Comply with a Court Order.

(2) Sanctions in the District Where the Action Is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party's officer, *322 director, or man-aging agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as es-tablished for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated mat-ters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

* * * *

(c) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that par-ty, or both to pay the reasonable expenses, in-cluding attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

Discussion

I. Counsel's Failure to Review Expert's File [1][2] Numerous cases address the question of

what materials from an expert's file must and must not be disclosed, but little guidance exists on the question

Page 9

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

whether a lawyer must actually review a retained expert's case file in preparation for making the dis-closures required by Rule 26(b)(4). The rational an-swer is a lawyer must review the expert's file. Alt-hough Rule 26 does not address this precise question, its language establishes boundaries for disclosure and nondisclosure of expert materials which cannot be accomplished without counsel's meaningful review of the expert's file's contents. Finding this requirement subsumed in Rule 26(b)'s directives is a reading con-sistent with the certifications a lawyer is deemed to make when filing or submitting documents pursuant to obligations imposed by other rules. Under Rule 11, a lawyer who files a document with the court certifies he or she has made a “reasonable inquiry” that the con-tent of the document is true. Under Rule 26(g), a lawyer making discovery disclosures, responses, re-quests, and objections certifies he or she has made a “reasonable inquiry” that the response is complete and correct. The “reasonable inquiry” determination is governed by an “objective reasonableness” standard. In re Keegan Management. Co., Securities Litigation, 78 F.3d 431, 434 (9th Cir.1996).

Finding this requirement subsumed within Rule 26(b) also is sensible because it furthers the purposes served by the discovery rules. First, the discovery process is the foundation of every civil case and under the rules it is conducted by lawyers without court oversight. The integrity of the process depends on lawyers to perform the duty of disclosure imposed by the rules to ensure that all discoverable infor-mation—whether favorable or unfavorable to that lawyer's client—is provided to the opposing party. That duty cannot be fully met if lawyers certify that all discoverable documents from a file have been pro-duced without ever having reviewed the file or by leaving to a lay person—even an expert witness—the task of determining which documents the rules require be disclosed to the opposing party.FN1

FN1. A lawyer can carry out this duty by delegating the task to another qualified legal

professional, such as a less senior lawyer or paralegal working under a lawyer's supervi-sion, so long as the file actually is reviewed to ensure that all discoverable documents are produced and all documents withheld on claim of privilege are listed on a privilege log.

*323 Second, the obligation to review an expert's

file to determine its producible contents certainly is present, if not heightened, when production of the expert's file is court ordered. Discovery orders issue usually because a lawyer or a party has not met the discovery rules' requirements to disclose all produci-ble information. The court's order to make discovery imposes on the lawyer a direct duty to the court to produce the documents that are the subject of the order. A lawyer cannot fulfill that duty unless he or she reviews the actual documents at issue to determine whether they fall within the scope of the court's order.

Plaintiff's expert disclosure in this case illustrates the importance of lawyer review because some doc-uments contained in Painter's file do not appear in the binder containing the expert disclosure materials Plaintiff produced to Defendants, and they are not listed as withheld documents on the privilege log Plaintiff served on Defendants. Painter's file contains individual summaries from jury verdict reporting services of four lawsuits in which Painter gave expert testimony, as well as a complete copy of an appellate case in which Painter is not mentioned. The summar-ies and appellate opinion were not produced to De-fendants and they do not appear on Plaintiff's privilege log. Unclear is how Painter obtained the summaries and appellate opinion, the purpose for which he ob-tained them, and what bearing, if any, they had on his opinion in the case. The explanation might be that Plaintiff's counsel did not know Painter's file con-tained the summaries and appellate opinion. If true, that explanation demonstrates why counsel must ac-tually review a retained expert's case file as part of the expert disclosure process. If Plaintiff's counsel did

Page 10

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

know Painter's file contained the summaries and ap-pellate opinion, it is unclear why they were not pro-duced; the summaries and appellate opinion hardly can be claimed as attorney work-product because all appear to be publically available documents. If Plain-tiff's counsel thought them work-product, then there is no explanation why he did not list them on the privi-lege log he provided to Defendants.

Painter's file also contains an entire file folder of email communications between Plaintiff's counsel and Painter, some with attachments and some which in-dicate attachments but to which nothing is attached. Plaintiff's privilege log consists of one and one-half pages and lists emails by three broad categories of date groups, not by individual Bates number, specific date, subcategory, or other specific identifier. This format makes virtually impossible comparison of Painter's file contents against Plaintiff's counsel's privilege log. As for the redacted emails Plaintiff produced to De-fendants as Painter's “file” at his deposition, those emails are not contained in their original or redacted form in the file Painter submitted to the court. Their absence from Painter's file casts doubt on the com-pleteness of Painter's file disclosure. All of these is-sues could have been avoided if Plaintiff's counsel had reviewed Painter's file.

The court concludes that Plaintiff's counsel did not meet Rule 26's expert disclosure requirements and did not comply with the court's November 7, 2012, order when he failed to review Painter's file before producing documents to Defendants. This failure disrupted Painter's deposition, required Defendants to incur additional time and expense to prepare and submit materials to the court for in camera review, and will require that Painter's deposition be recon-vened to allow Defendants to question Painter about the non-disclosed documents. The additional docu-ments that must be disclosed and the sanction for failing to make discovery under the court's order and Rule 37 are described in the “Order ” section at the end of this opinion.

II. Counsel's Participation in Preparing Expert's Re-port

[3] During Painter's November 16, 2012, deposi-tion, defense counsel asked Painter whether anyone other than Painter wrote any portion of his October 22, 2012, report. (Deposition of Robert Painter (“Painter Dep.”) 46.) Plaintiff's counsel asserted the attorney work-product privilege and instructed*324 Painter to answer the question without disclosing “communica-tions with counsel.” (Painter Dep. 47.) Plaintiff's counsel then asked Painter: “Outside of that universe, did anyone help you write the report?” (Painter Dep. 47.) “No,” was Painter's answer. (Painter Dep. 47.) Defendant's counsel then asked Painter whether Plaintiff's counsel or any member of his firm wrote portions of Painter's report; Plaintiff's counsel again asserted the attorney work-product privilege and in-structed Painter not to answer the question, (Painter Dep. 47–48.) Defendant's counsel responded that they were “entitled to know if [Plaintiff's counsel] or the members of [his] firm wrote any of the report.” (Painter Dep. 48.)

Counsel subsequently contacted the court for as-sistance in resolving this and other disputes that arose during Painter's deposition. After hearing from all counsel on this issue, the court ruled as follows:

THE COURT: All right. There is one other issue not covered by that order, and that is the question whether anyone else wrote any portion of Mr. Painter's report that has been produced to defense counsel. That is a proper question, and Mr. Painter has to answer it.

It is not uncommon for retained experts to have as-sistants or junior engineers, for example, prepare portions of reports under the supervision of the consulting expert. That may or may not be the case here with Mr. Painter. And there may have been other individuals who prepared text, paragraphs,

Page 11

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

sections, portions of the report. Mr. Painter is re-quired to answer that question and identify the people who may have drafted any portion of his report, and he has to identify the portions of the report that those other individuals drafted.

MR. THENELL: Including anybody from the plaintiff's office, correct? Plaintiff's attorney's of-fice?

THE COURT: That's exactly right.

MR. THENELL: Okay.

MR. FOSTER: Well, Your Honor, I'd like to make a record on that point.

THE COURT: Well, you can. But let me make a point first. Mr. Foster, if you or any lawyer in your office wrote portions of Mr. Painter's report, sent them to him, and told him to include that in his re-port, that is discoverable by the defendants. That is not work product.

MR. FOSTER: Well, Your Honor, you are the judge. I would like to make a record that—

THE COURT: Well, go ahead.

MR. FOSTER:—under Rule 26(b)(4), drafts, as I read the rule, are strictly protected from exclu-sion—or from production.

THE COURT: Drafts are, but if you wrote a para-graph or a section of his report, sent it to him, and told him to include it, that goes directly to Mr. Painter's credibility. It's one thing to talk to the ex-pert about the topics to be covered and any gaps, holes, or lack of clarity in an expert's report. But if you write portions and he adopts them or incorpo-rates them in their entirety or in substantial form,

then that goes to Mr. Painter's credibility because, Mr. Foster, you are not the expert; Mr. Painter is. This is supposed to be his opinion, not the opinion of his lawyer or his client. And that goes at least to the credibility of the expert's testimony, and it may well go to the admissibility at trial or on motion of the expert's opinion. Because then you have a [ Daubert ] issue.

So, I know what the rule says. I also know that lawyers are not supposed to write their experts' re-ports or any portion of them. And if that's happened here, then that goes to credibility and it goes to admissibility, and Mr. Painter has to answer those questions.

(Painter Dep. 69–71.) FN2

FN2. The court's minute order summarized this ruling as follows: “3) Mr. Painter is to answer at deposition questions regarding whether other persons provided information included in his expert report and whether other persons, including but not limited to plaintiff's counsel, wrote portions of his final report, and whether Mr. Painter included in his final report portions written by others in edited or unedited form.” (Order of Novem-ber 16, 2012, Dkt. No. 120.)

Once Painter's deposition continued, defense

counsel asked him “did anybody besides yourself write any portions of your report?” (Painter Dep. 72.) Painter responded:*325 “I wrote this report. The conclusions and opinions are all mine, but [Plaintiff's counsel] helped me clean it up, edit it, make it more professional, if you will.” (Painter Dep. 72.) Defense counsel then asked Painter to identify the portions of the report, by paragraph, that Plaintiff's counsel wrote, (Painter Dep. 72.) Ultimately, Painter stated that he could not identify which paragraphs Plaintiff's counsel might have written without comparing the report to his

Page 12

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

original draft. (Painter Dep. 75–76, 80–81, 86, 92.) Painter said he emailed his original draft to Plaintiff's counsel in Word format and Plaintiff's counsel “cleaned it up,” but he could not specify which words or portions Plaintiff's counsel changed without seeing his original draft. (Painter Dep. 84–85.)

Resolution of this issue begins with an examina-tion of Rule 26's purpose and evolution regarding expert discovery since its adoption in 1937. The 1970 amendments added the language contained in the specific subsection protecting trial preparation mate-rials of expert witnesses. Advisory Committee Notes, 1970 Amendment, comments to subdivision (b). One purpose of the new language was to eliminate surprise at trial and reduce the time of expert cross-examination by lawyers whose first knowledge of the expert's opinion and reasoning came at trial. Id. But the new language also ensured that lawyers would not abuse the work-product privilege by invading the province of expert witnesses:

“What the [Advisory] Committee sought to promote [in the 1970 amendments to Rule 26] was a fair opportunity to expose whatever weaknesses, unreliabilities, or biases might infect the opinions of testifying experts called by [the] adverse party. Pursuit of such fairness would have been thoroughly frustrated if the rule prohibited a party from show-ing that the opinions an expert was presenting at trial as his own had in fact been spoon fed to him and written for him by the lawyer who retained him.”

United States v. City of Torrance, 163 F.R.D.

590, 593 (C.D.Cal.1995), quoting Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 389 (N.D.Cal.1991), aff'd without opinion, 991 F.2d 808 (Fed.Cir.1993).

The 1993 amendments added the requirement under Rule 26(a)(2)(B) that an expert provide a “de-tailed and complete” written report stating the testi-

mony and underlying reasoning the expert expected to give at trial. Advisory Committee Notes, 1993 Amendments, comments to subdivision (a). The Committee emphasized that this amendment sought to correct the prior practice of providing “sketchy and vague” answers to opponent's interrogatories about the “substance” of the expert's testimony, rendering, which were of little use in preparing for the expert's deposition. Id. Testimony not disclosed could not be used at trial, providing the disclosing party incentive to ensure the expert's report is fully forthcoming. Id. The Committee then noted:

Rule 26(a)(2)(B) does not preclude counsel from providing assistance to the experts in preparing the reports, and indeed with experts such as automobile mechanics, this assistance may be needed. Never-theless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.

Advisory Committee Notes, 1993 Amendments,

comments to subdivision (a).

The 1993 amendments also imposed the privilege log requirement for documents “otherwise discovera-ble” but withheld from an expert's file under claim of privilege. Advisory Committee Notes, 1993 Amend-ments, comments to subdivision (b) “The withholding party must provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.” Id. Each withheld document's date, authors and recipients, and general subject matter must be provided by the party claiming privilege. Id. However, “the court ultimately decides whether, if this claim is challenged, the privilege or protection applies.” Id.

The 2010 amendments added work-product pro-tection for drafts of expert's reports and expert's “pre-

Page 13

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

liminary reports” under Rule 26(b)(4)(B). Advisory Committee Notes, *326 2010 Amendments, com-ments to subdivision (b)(4). The amendments also protect from disclosure attorney-expert communica-tions, in whatever form, to “ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery.” Id. The amendments specified three exceptions to this protection: expert compensation, facts or data pro-vided to the expert by counsel and which the expert considered in forming his or her opinion, and as-sumptions counsel provided to the expert and that the expert relied upon in forming his or her opinions. Id. Discovery outside these three exceptions or of draft reports may be had only upon a showing of “substan-tial need.” Id. If that showing is made, the court “must protect against disclosure of the attorney's mental impressions, conclusions, opinions, or legal theories [.]” Id.

[4][5][6] Rule 26(b)(4)'s purpose is to protect from disclosure communications between a lawyer and the lawyer's retained expert, including draft or preliminary reports, as attorney work-product, but this protection is not unlimited. Rule 26(b)(4)'s exceptions preserve the integrity of experts' opinions by making discoverable lawyers' communications that jeopardize the experts' independence. Here, the parties' dispute presents the question whether Plaintiff's counsel's assistance drafting some or all of Painter's report in-vokes one or more of the rule's exceptions and re-moves those communications, including drafts, from Rule 26(b)(4)'s protection. The answer depends on the nature and extent of the lawyer's assistance:

The advisory committee note observes that Rule 26(a)(2)(B) does not preclude counsel from providing assistance to the experts in preparing the reports and recognizes that such assistance may be necessary. Courts have followed the advisory committee note and found that counsel may assist the expert in preparing the report, as long as the attorney does not change the substance of the

opinion of the expert witness....

....

When a challenge is raised as to whether the ex-pert actually prepared the report, courts focus on whether the expert witness offered substantial input into what was put into the report. Whether counsels' assistance in preparing an expert report violates Rule 26 is a fact-specific inquiry.

The fact that counsel helped with preparation of

an expert report goes to the weight to be accorded to the opinions, rather than admissibility.

6 Daniel R. Coquillette, Gregory P. Joseph, et. al.,

MOORE'S FEDERAL PRACTICE, § 26.23[5] (3d ed. 2012)(footnotes omitted). Others may assist in the preparation of the report but the expert must freely authorize and adopt the changes as his or her own, and the final report must be that of the expert. Id.

In McClellan v. I–Flow Corp., et. al., 710 F.Supp.2d 1092 (D.Or.2010), Chief Judge Aiken addressed this issue in deciding whether plaintiffs' experts offered reliable testimony on general causa-tion between an allegedly defective medical device known as a “pain pump,” and plaintiff's shoulder injury, chondrolysis. Id. at 1098.FN3 Much of Chief Judge Aiken's opinion resolved defendants' numerous challenges under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), But separate from their Daubert challenges, defendants also as-serted that plaintiffs' experts' opinions were “driven by litigation.” Id. at 1115. Defendants in part based this challenge on the assertion that “many of plaintiffs' experts' reports were drafted by counsel in violation of Federal Rule of Civil Procedure 26[.]” McClellan, 710 F.Supp.2d at 1118.

FN3. Glenohumeral chondrolysis is the rapid

Page 14

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

and permanent loss of cartilage in the shoulder joint. “Pain Pumps” were used to administer local anesthetics during after ar-throscopic surgery. McClellan, 710 F.Supp.2d at 1094.

Chief Judge Aiken reviewed Rule 26 and the ad-

visory committee notes that elucidated the rule on this point, as well as cases construing the rule. She noted that while Rule 26 “does not prohibit counsel's assis-tance in preparing or drafting an expert report ... an expert report ‘ghost-written’ from ‘whole cloth’ vio-lates the spirit, if not the letter of *327 the Rule, as do reports that have been altered by counsel or prepared ‘merely for appeasement or because of intimidation or some undue influence by the party or counsel who has retained him.’ ” McClellan, 710 F.Supp.2d at 1118 (citations omitted). She stated that expert reports “may be discredited if they ‘merely express the opinions of the lawyers who hired them.’ ” Id. (citation omitted). She then observed:

Whether counsel's assistance in preparing an expert report violates Rule 26 is a fact-specific inquiry. Generally, I find no more than acceptable editorial assistance from counsel. To the extent counsel's involvement flirted with the outer boundaries of Rule 26, I consider the above principles when dis-cussing each expert's opinion.

McClellan, 710 F.Supp.2d at 1118.

Chief Judge Aiken then evaluated the testimony

of those of plaintiffs' experts defendants had chal-lenged to determine whether and to what extent liti-gation bias had affected their testimony. She began with the opinion of plaintiffs' first of three expert orthopedic surgeons and concluded that it “fail[ed] to reach the threshold of reliability.” Id. Most relevant to the issue here are Chief Judge Aiken's findings re-garding the involvement of plaintiff's counsel, Wihtol, in shaping the expert surgeon's opinion. First, the idea

for study upon which the expert surgeon based his opinion originated at least in part with Wihtol, during McClellan's lawsuit, Id. at 1121. Second, Wihtol pro-vided the patient data for the study. Id. Third, Wihtol obtained the patient data from the another surgeon he had sued on behalf of former patients over the same medical device and with whom the surgeon had set-tled. Id. Fourth, Wihtol provided the patient records in electronic format to a nurse he chose for the task of extracting the data used in the study. Id. Fifth, Wihtol and the expert surgeon developed the idea for the study and compiled the data for it after Wihtol had retained the expert surgeon as an expert witness and during the litigation. Id. Chief Judge Aiken concluded that “[t]hese facts alone raise the disquieting specter of litigation bias.” Id.

Chief Judge Aiken then found that emails ex-changed between Wihtol, the expert surgeon, another of plaintiffs' experts, and the nurse reflected “a degree of involvement by counsel that goes far beyond providing information.” Id. Chief Judge Aiken quoted excerpts from nine emails as examples of counsel's involvement, and summarized their significance this way:

Thus, not only did Mr. Wihtol create the idea for the 396–study, provide the raw patient data for the study, and select the nurse to perform data extrac-tion for the study, Mr. Wihtol also compared his (or his “team's”) findings from the data with those of [the expert surgeon] and encouraged [the expert surgeon] to do the same, identified patients who should be diagnosed with chondrolysis, conferred with [the expert surgeon] to “correct” diagnoses of chondrolysis, and directed [the expert surgeon] to include certain patients in the study. Contrary to plaintiffs' strenuous assertions, Mr. Wihtol was more than a “mere conduit” for the delivery of raw data.

Id. at 1123. Chief Judge Aiken found that the

expert surgeon's “analysis was affected, altered, and

Page 15

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

‘corrected’ by Mr. Wihtol or information obtained from him.” Id. at 1124. Accordingly, she excluded the expert surgeon's testimony. Id. at 1125.FN4

FN4. Chief Judge Aiken also found that the expert surgeon undertook his expert witness task with a preconceived opinion that the medical device at issue caused the plaintiff's injury, and she expressed concern that the unreliable study forming the basis for the expert surgeon's opinion had originated at the suggestion of Wihtol and later had been re-peatedly rejected for publication in peer-reviewed journals. McClellan, 710 F.Supp.2d at 1119–21.

Chief Judge Aiken next reviewed the testimony of

plaintiff's second expert surgeon. Relevant to the issue here, defendants claimed Wihtol drafted this expert's report “in contradiction of the requirements of Rule 26.” Id. at 1127. Chief Judge Aiken observed:

Given the evidence presented, it cannot be disputed that Mr. Wihtol authored the report, while [the ex-pert surgeon] reviewed and edited it. In fact, [the expert surgeon] informed Wihtol that part of the report *328 sounded more like “an attorney making his case than a doctor giving his opinion,” and that the language should be “toned down” to avoid the appearance of putting “words in [his] mouth,”

While I recognize the realities of litigation often

necessitate counsel's assistance in the preparation of expert reports, the extent of Mr. Wihtol's role in drafting [the second expert surgeon's] report ap-proaches the outer limits of acceptable assistance, Nevertheless, I do not exclude [the second expert surgeon's] testimony on this ground. Importantly, [the second expert surgeon] conducted his study and formulated his opinion prior to his retention as an expert. Further, through his deposition testimony, [the second expert surgeon] adopted the substance

of his report and explained the basis for his opin-ion.... Thus, counsel's involvement does not warrant exclusion of [the second expert surgeon's] testi-mony, though “it may undermine its weight and credibility,”

Id. (citations omitted). Thus, Chief Judge Aiken

found the second expert surgeon's testimony admissi-ble for trial but also found that counsel's involvement in preparing the expert's report could bear on the weight and credibility to give the expert's trial testi-mony.FN5

FN5. Chief Judge Aiken also reached the same conclusion on the same issue with re-spect to the testimony of plaintiff's third ex-pert surgeon. Id. at 1127 n. 27.

[7] McClellan teaches that Rule 26(b)'s attorney

work-product protection has limits. Communications between a lawyer and the lawyer's testifying expert are subject to discovery when the record reveals the lawyer may have commandeered the expert's function or used the expert as a conduit for his or her own theories. When the record presents that possibility, the lawyer may not use the attorney work-product privi-lege as a shield against inquiry into the extent to which the lawyer's involvement might have affected, altered, or “corrected” the expert's analysis and conclusions.

[8] Here, the record gives rise to the question whether Plaintiff's counsel's involvement in the crea-tion of Painter's expert report exceeded Rule 26's limits. First, Painter's deposition testimony suggests that Plaintiff's counsel might have authored portions of Painter's final report. Painter acknowledged Plain-tiff's counsel changed his preliminary report after Painter emailed it to him, and he could not identify the portions of his October 22, 2012, final report that Plaintiff's counsel wrote without comparing the final report to his October 18, 2012, preliminary report. Although Painter testified the final report's conclu-

Page 16

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

sions and opinions were his, that statement does not create a barrier to further inquiry. McClellan makes clear that the expert's adoption or ratification of a lawyer's changes and additions to the expert's report does not preclude opposing counsel from learning how the lawyer's contributions affected the expert's final opinions, and it does not insulate the expert's opinion from either evidentiary exclusion or challenge through impeachment.

Second, Painter's October 22, 2012, final report contains opinions and analyses about additional parts or areas of Gerke's Matco Tools truck not discussed or mentioned in Painter's October 18, 2012, preliminary report or his second October 18, 2012, report, and the record is unclear how and why Painter arrived at those additional opinions. Only four days passed between the date of Painter's two October 18, 2012, reports and the date of Painter's final report. Painter testified that he never inspected Gerke's tool truck, that Gerke's tool truck is the first Matco Tools truck he has “been in-volved in,” that he was retained and first received the materials for this case on October 15, 2012, that he made no working notes during his review of this case, and that he spent a total of four hours reviewing the file and issuing his report. (Painter Dep. 18, 22–23, 34, 35, 38.) These facts create a genuine question whether Painter came to these additional opinions and analyses so quickly because they were suggested or given to him by Plaintiff's counsel.

Third, additional disclosure is consistent with the privilege exceptions specified in Rule 26(b)(4)(C). Painter's testimony suggests his final report contains facts, data, and *329 assumptions provided by Plain-tiff's counsel. If Painter adopted that information as his own opinion and included it in his final report, then under the exceptions Painter considered and relied on that information in forming his opinion. Indeed, the facts, data, and assumptions provided by Plaintiff's counsel might well have become Painter's opinion or have formed part of it.

Accordingly, additional disclosure of communi-cations between Plaintiff's counsel and Painter are warranted, as is a continuation of Painter's deposition to permit further inquiry on this topic by Defendants' counsel. Disclosure includes materials and commu-nications Painter considered, which include any ma-terials he reviewed or received even if he did not rely upon them in reaching his opinions. These rulings are consistent with McClellan and with other courts' readings of the limits of Rule 26's work-product priv-ilege protection. See, e.g., In re Commercial Money Center, Inc., Equipment Lease Litigation, 248 F.R.D. 532, 537 (N.D.Ohio 2008) (“For Rule 26 purposes, a testifying expert has “considered” data or information if the expert has read or reviewed the privileged ma-terials before or in connection with formulating his or her opinion,”) (collecting cases) (citations and internal quotations omitted); Pinal Creek Group v. Newmont Min. Corp., No. CV–91–1764–PHX–DAE–(LOA), 2006 WL 1817000, at *5 (D.Ariz., June 30, 2006) (“Discovery of documents shown to an expert, but not retained in the expert's file, assures the independence of the expert's thinking, both her analysis and her conclusions. The risk is that the lawyer will do the thinking for the expert, or, more subtly, that the expert will be influenced, perhaps appreciably, by the way the lawyer presents or discusses the information.”) (citation and internal quotations omitted); Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 465 (E.D.Pa.2005) (“Plaintiff's expert must disclose the content of all oral communications that plaintiff's expert considered in formulating his opinions as a testifying expert in this case, regardless of whether these oral communications come from plaintiff's counsel or plaintiff itself. The Court sees no principled distinction between the discoverability of oral and written communications that a testifying expert con-siders in fashioning her opinions.” (collecting cases)); Kooima v. Zacklift Intern., Inc., 209 F.R.D. 444, 446–47 (D.S.D.2002) (“As a general rule, the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure make clear that documents and information disclosed to a testifying expert in connection with his

Page 17

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

testimony are discoverable by the opposing party, whether or not the expert relies on the documents and information in preparing his report.... This includes correspondence between counsel and the expert wit-ness.”) (citation and internal quotes omitted); TV–3 Inc. v. Royal Ins. Co. of America, 193 F.R.D. 490, 491 (S.D.Miss.2000) (“If the attorney hiring the expert sets forth the desired theory of the case on the front end, then the opposing side should have the right to be made aware of the fact that the expert's viewpoint was initially couched by the attorney's desired theory.”); B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 63 (S.D.N.Y.1997) (work-product doctrine did not protect from disclosure attorney's mental impressions, opinions, strategies if expert considered them in forming opinion, including oral communications); United States v. City of Tor-rance, 163 F.R.D. 590, 593 (C.D.Cal.1995) (“[A]bsent an extraordinary showing of unfairness that goes well beyond the interest generally protected by the work product doctrine, written and oral com-munications from a lawyer to an expert that are related to matters about which the expert will offer testimony are discoverable, even when those communications would be deemed opinion work product,” and noting this approach “is most consistent with the purpose of the Federal Rules of Civil Procedure”) (citation and internal quotation marks omitted).FN6

FN6. The court reserves for later determina-tion, as appropriate, any questions regarding the admissibility or relevancy of Painter's opinions.

ORDER

After review the file Painter submitted to the court, it is hereby ORDERED that the *330 following documents from that file shall be produced to De-fendants:

1. An unredacted copy of Painter's consulting agreement. Rule 26(b)(4)(C)(i) excepts from non-disclosure of information and communications

that “relate to compensation for the expert's study or testimony.” Nothing in or about Painter's consulting agreement suggests the exception should not apply to the entire content of the consulting agreement.

2. A copy of Painter's October 18, 2012, “Prelimi-nary Report.” This document is disclosed for the reasons discussed above.

3. A copy of Painter's October 18, 2012, second preliminary report, with attachments. This docu-ment is disclosed for the reasons discussed above.

4. A copy of the November 2, 2012, Declaration of Rob Painter, with attachments. This document is disclosed for the reasons discussed above.

5. Copies of jury verdict reporting service sum-maries of four cases in which Painter testified as an expert witness. Nothing about these summaries suggests they are protected by the attorney work-product privilege.

6. A copy of an appellate opinion in a case in which Painter testified as an expert witness. Nothing about this appellate opinion suggests it is protected by the attorney work-product privilege.

7. A redacted copy of Plaintiff's counsel's October 15, 2012, email to Painter posing the questions on which Painter is to render his expert opinion. These questions, as formed, contain assumptions provided by Plaintiff's counsel to Painter.

8. A copy of Plaintiff's counsel's October 22, 2012, email to Painter transmitting an attached document labeled “Rebuttal_Expert_Report_of_Rob_ Paint-er_Oct_22_2012–draft_(2),doc.” This document is disclosed for the reasons discussed above.

The court will provide each party's counsel with

copies of the above-listed documents accompanied by

Page 18

289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 (Cite as: 289 F.R.D. 316)

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

a copy of this opinion, by mail. The court has retained a complete set of these documents in the court's file. The court will return Painter's original file to Painter, by mail.

FURTHER ORDERED that Plaintiff's counsel is to produce to Defendants' counsel the following documents:

1. All drafts of Painter's expert report in this case, prepared by Painter, Plaintiff's counsel, or any other person. “Drafts” includes inserts, excerpts, pro-posed language and content, revised or “marked-up” drafts, and any other document pre-pared for use in or as part of Painter's expert report, whether or not the document or any part of it ulti-mately was incorporated into Painter's October 22, 2012, final report.

2. All emails, cover letters, memoranda, notes, and other documents transmitting the documents de-scribed in No. 1, above.

Plaintiff's counsel shall produce the above-listed

documents to Defendants' counsel no later than March 6, 2013.

FURTHER ORDERED that Plaintiff is to make Painter available to Defendants for further deposition regarding the documents and information ordered produced in this opinion, such deposition to be in Portland and to occur at a mutually agreed-upon date, time, and place.

FURTHER ORDERED that as sanctions for vi-olation of the court's November 7, 2012, discovery order and under Rule 37 for failing to make discovery, Plaintiff shall:

1. Plaintiff shall bear all expense and cost incurred by Painter for round-trip travel, lodging, meals, ground transportation, and any other expenses, to

attend his continuation deposition in Portland. In the event Plaintiff is later deemed the “prevailing party” in this case, these expenses shall not be recoverable costs.

2. Plaintiff shall reimburse Defendants for the at-torney and staff time, and out-of-pocket costs, in-curred by Defendants to prepare, serve, and submit their joint in camera submission to the court pur-suant to the court's November 16, 2012, order. De-fendants' counsel shall present to Plaintiff's counsel an itemized statement of attorney time, staff time, and out-of-pocket costs. Defendants' counsel shall serve *331 their itemized statement on Plaintiff's counsel no later than March 6, 2013. Plaintiff shall tender reimbursement to Defendants no later than March 27, 2013.

IT IS SO ORDERED.

D.Or.,2013. Gerke v. Travelers Cas. Ins. Co. of America 289 F.R.D. 316, 84 Fed.R.Serv.3d 1297 END OF DOCUMENT

No. 14-DA-18

DISTRICT OF COLUMBIA COURT OF APPEALS

MOTOROLA, INC., et al., ~r~{ ~~ ~~ [t'~~ nn~-'~-~u ~i ~L;

Applicants/Petitioners, p~T 2 4 204v. D1S7'R1CT (7~ CC~UR7- pF ~~-~.11~'~pq

ti~'~'EALSMICHAEL PATRICK MURRAY, et al.,

Respondents.

APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

BUSINESS COALITION AMICI CURIAE BRIEF IN SUPPORT OF COMBINED

APPLICATION FOR PERMISSION

TO APPEAL ORDER ON EXPERT WITNESS ADMISSIBILITY

AND PETITION FOR HEARING EN BANG

Steven P. Lehotsky (D.C. Bar No. 992725)Sheldon Gilbert

U.S. CHAMBERLITIGATION CENTER, INC.1615 H Street, NWWashington, DC 20062(202) 463-5337

Counsel for Chamber of Commerce of

the United States ofAmerica

Jce G. Hollingsworth (DC Bar No. 203273)Eric G. Lasker (DC Bar No. 430180)

HOLLINGSWORTH LLP1350 I Street, N.W.Washington, DC 20005(202) 898-5800

Counsel for all Amici

4

TABLE OF CONTENTS

Page

I. INTRODUCTION AND STATEMENT OF INTEREST ..............................................1

II. ARGUMENT ......................................................................................................................2

A. Adoption of Daubers in Place of Frye Would Be Consistent With District of

ColumbiaLaw ..........................................................................................................2

B. Adoption of Daubert Would Enable District of Columbia Courts to Serve as

Gatekeepers Against Unreliable Expert Testimony .................................................4

C. Adoption of Daubers Would Create a Level Playing Field For District of

Columbia Businesses ...............................................................................................9

III. CONCLUSION ................................................................................................................12

i

TABLE OF AUTHORITIES

Pages)

CASES

Arias v. DynCorp.,928 F. Supp. 2d 10 (D.D.C. 2013), aff''d 752 F.3d 1011 (D.C. Cir. 2014)..........................6, 10

Bailey Lumber &Supply Co. v. Robinson,98 So.3d 986 (Miss. 2012) .......................................................................................................10

Brady v. Elevator Specialists, Inc.,653 S.E.2d 59 (Ga. App. 2007) ................................................................................................10

Clifford v. United States,532 A.2d 628 (D.C. 1987) .........................................................................................................4

Conde v. Velsicol Chem. Corp.,24 F.3d 809 (6th Cir. 1994) .......................................................................................................6

*Daubert v. Merrell Dow Pharm. Inc.,509 U.S. 579 (1993) ......................................................................................................... passim

Drevenak v. Abendschein,773 A.2d 396 (D.C. 2001) .........................................................................................................4

Dyus v. United States,376 A.2d 827 (D.C. 1.977) .........................................................................................................3

Eason v. United States,704 A.2d 284 (D.C. 1.997) (en banc) .........................................................................................3

*Frye v. United States,293 F. 1013 (D.C. Cir. 1923) ...........................................................................................passim

Gaines v. United States,994 A.2d 391 (D.C. 2010) .........................................................................................................4

General Electric v. Joiner,522 U.S. 136 (1997) ...............................................................................................................3,6

Goon v. Gee Kung Tong, Inc.,544 A.2d 277 (D.C. 1988) .........................................................................................................3

Haidak v. Corso,841 A.2d 316 (D.C. 2004) .........................................................................................................8

u

Holander v. Sandoz Pharm. Corp.,

289 F.3d 1193 (10th Cir. 2002) .................................................................................................8

Ibn-Tamas v. United States,407 A.2d 626 (D.C. 1979) .........................................................................................................7

In re Melton,597 A.2d 892 (D.C. 1991) .....................................................................................................7,4

Jazairi v. Royal Oaks Apt. Assoc.,217 Fed. Appx. 895 (11th Cir. 2007) .......................................................................................10

Jenkins v. United States,307 F.2d 637 (D.C. Cir. 1962) ...................................................................................................3

Johnson v. District of Columbia,655 A.2d 316 (D.C. 1995) .........................................................................................................4

Jung v. George Washington University,875 A.2d 95 (D.C. 2005) ...........................................................................................................7

King v. United States,74 A.3d 678, 681 (D.C. 2013) ...................................................................................................4

Kumho Tire Co. v. Carmichael,526 U.S. 137 (1999) ...................................................................................................................6

Middleton v. United States,401 A.2d 109 (D.C. 1976) .........................................................................................................7

*Mississippi Transp. Comm'n v. McLemore,863 So.2d 31 (Miss. 2003) .........................................................................................................8

Nixon v. United States,728 A.2d 582 (D.C. Cir. 1999) ..................................................................................................4

Perry v. Novartis Pharm. Corp.,564 F. Supp. 2d 452 (E.D. Pa. 2008) .........................................................................................6

Pettus v. United States,37 A.3d 213 (D.C. 2012) .......................................................................................................4,7

Raynor v. Merrell Pharnt. Inc.,104 F.3d 1371 (D.C. Cir. 1997) ...............................................................................................10

Rider v. Sandoz Pharm. Corp.,295 F.3 d 1194 (11th Cir. 2002) .............................................................................................5,6

iii

Samaan v. St. Joseph Hospital,

670 F.3d 21 (1st Cir. 2012) ......................................................................................................10

*Schafersman v. Agland Coop.,631 N.W.2d 862 (Neb. 2001) .....................................................................................................5

Smith v. United St~~tes,26 A.3d 248, 260 (D.C. 2011) ...................................................................................................3

Smith v. United States,389 A.2d 1356 (D.C. 1978) .......................................................................................................7

Sponaugle v. Pre-Term, Inc.,411 A.2d 366 (D.C. 1980) .........................................................................................................8

*State v. Coon,974 P.2d 386 (Alaska 1999) .......................................................................................................8

*State v. Porter,698 A.2d 739 (Conn. 1997) .......................................................................................................5

State v. Slazar-Mercado,325 P.3d 996 (Ariz. 2014) ..........................................................................................................4

Steele v. D.C. Tiger Market,854 A.2d 175 (D.C. 2004) .........................................................................................................4

Taylor v. United States,661 A.2d 636 (D.C. 1995) .........................................................................................................4

United States v. Amaral,488 F.2d 1148 (9th Cir. 1973) ...................................................................................................3

Ventura v. United States,927 A.2d 1090 (D.C. 2007) .......................................................................................................7

OTHER AUTHORITIES

FederalRule of Evidence 702 ..........................................................................................................4

Fla. Evid. Code § 90.702 .................................................................................................................4

Hon. Stephen Breyer, Introduction, in Federal Judicial Center, Reference Manual on

Scientific Evidence (3d ed. 2011) ....................................................................................................1

KansasSenate Bi11311 ....................................................................................................................4

Margaret A. Berger, The Admissibility of Expert Testimony, in Federal Judicial Center,

Reference Manual on Scientific Evidence (3d ed. 2011) ................................................................9

iv

Scientific Evidence in the State Courts: Daubert and the Problem of Outcomes, 44 No. 4Judges' J. 6 (2005) ...........................................................................................................................5

v

I. INTRODUCTION AND STATEMENT OF INTEREST

Amici Curiae, the Chamber of Commerce of the United States of America, the

International Association of Defense Counsel, the National Association of Manufacturers, and

the National Federation of Independent Business submit this brief urging the Court to grant the

Combined Application for Permission to Appeal Order on Expert Witness Admissibility and

Petition for Hearing En Banc.

As explained in individualized detail in Appendix A, the amici have a significant interest

in the issue before this Court: the standards governing the admissibility of expert testimony in

District of Columbia courts. The District of Columbia is one of a vanishingly small number of

jurisdictions that continues to follow a 1923 federal circuit court opinion on admissibility criteria

for expert testimony. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).1 The Frye court in

1923 could not have anticipated the nature and extent of expert testimony that now defines the

modern practice of civil and criminal litigation. Today, "[s]cientific issues permeate the law,"`

and the proper treatment of science in the courtroom is central to the fair adjudication of legal

disputes. As the trial court below recognized, the continued adherence to the Frye rule in the

District of Columbia — rather than the modern Daubert rule, Daubert v. Merrell Dow Pharm.

Inc., 509 U.S. 579 (1993), followed in federal court and by forty-five States (in whole or in part)

— is incompatible with core principles of justice and litigation management routinely espoused by

this Court.

For the amici and their members, who are frequently the targets of litigation premised on

expert testimony, the ability of trial courts to serve as gatekeepers to exclude unreliable expert

' See Combined Application, Ex. C.

2 Hon. Stephen Breyer, Introduction, in Federal Judicial Center, Reference Manual on Scientific

Evidence 3 (3d ed. 2011).

evidence can help prevent excessive litigation costs and coercive settlements that are not

warranted based on the scientific merits of plaintiffs' allegations. This case cleanly presents the

opportunity to address this issue of great importance and warrants review by this Court.

II. ARGUMENT

Judge Weisberg's opinion below aptly lays out the dilemma confronting District of

Columbia courts in their review of scientifically unreliable expert testimony. Unlike the federal

courts and the vast majority of State courts that have adopted Daubert, District of Columbia

courts currently lack the authority to ensure that scientific evidence presented to juries is reliable

and grounded not only in sound methodology but also in the sound application of that

methodology. The present case illustrates the problem. Because Frye is an antiquated tool for

shielding jurors from expert testimony based on "bad science," Judge Weisberg was compelled

to admit expert evidence that he concluded was unreliable and inadmissible under Daubert. The

Court should grant review of the question certified by the trial court to determine whether

District of Columbia judges should have the same gatekeeping authority exercised by their

judicial colleagues in federal and State courts across the country.

A. Adoption of Daubert in Place of Frye Would Be Consistent With District of

Columbia Law.

In opposing the motion for certification below, plaintiffs sought to portray the issue

before the Court as a choice between District of Columbia and federal law. It is not. It is a

choice between the past and the present. More specifically, it is a choice between two federal

evidentiary standards: the first adopted more than ninety years ago by the D.C. Circuit in Frye

and the second adopted for the modern litigation environment by the Supreme Court of the

United States in Dar~bert.

2

The issues before the courts in Frye and Daubert highlight the vast historical chasm

between the expert issues facing the courts in the 1920s and today. In Frye, the D.C. Circuit

addressed the admissibility of a "systolic blood pressure deception test." 293 F. at 1013. The

theory underlying the proposed expert evidence was that blood pressure increases when an

individual lies and that honesty accordingly could be determined through a simple monitoring of

blood pressure. The scientific a~ialysis in applying this methodology — to the extent there was

one —lay simply in measuring whether a subject's blood pressure rose and, if so, by what extent.

In this historical context, Frye's sole focus on the general acceptance of the methodology was

understandable.

In sharp contrast, Daubers —like the present case — addressed causation testimony based

upon sophisticated epidemiologic, toxicological and "in vitro" studies of a type that did not even

exist in the 1920s. 509 U.S. at 583. Joiner addressed similar testimony. See Gen. Electric v.

Joiner, 522 U.S. 136, 144 (1997). In crafting the modern rule of expert admissibility, the

Supreme Court accordingly was informed by the far more challenging issues posed by expert

testimony in today's courtrooms.

This Court also has rejected plaintiffs' suggestion that it should disregard federal

evidentiary rules. To the contrary, the Court has held that it "will look to [federal evidentiary

rules] for guidance."~ In addition, "this [C]ourt has looked to the principles underlying the

federal rules of evidence concerning expert testimony."~ The Court's ruling in Dyas on the

3 Smith v. United States, 26 A.3d 248, 260 (D.C. 2011) (quoting Goon v. Gee Kung Tong, lnc.,

544 A.2d 277, 280 n. 9 (D.C. 1988)).

4 Eason v. United States, 704 A.2d 284, 285 n.3 (D.C. 1997) (erz banc).

3

admissibility of expert testimony relied on the then-existing federal standards And over the

years, the Court has adopted much of Article VII of the Federal Rules of Evidence covering

opinion and expert testimony.6

In sum, the District of Columbia is well positioned to take the next step and join the more

than forty States that have adopted Daubert and the standards set forth in Federal Rule of

Evidence 702 as proper guides for expert admissibility.

B. Adoption of Daubert Would Enable District of Columbia Courts to Serve as

Gatekeepers Against Unreliable Expert Testimony

It has been more than a dozen years since this Court noted that Frye "has been called ̀ an

antiquated standard."'~ In the intervening thirteen years, numerous States have elected to update

their own evidentiary rules to adopt Daubert or a similar standard.$ This case presents the Court

with the opportunity to join those sister jurisdictions — as well as the large majority of other

States that already followed some version of Daubert — in adopting the modern standard of

expert admissibility.9

Dyas v. United States, 376 A.2d 827, 831 (D.C. 1977) (citing to Jenkins v. United States, 3Q7

F.2d 637 (D.C. Cir. 1962) and United States v. Amurul, 488 F.2d 1148 (9th Cir. 1973)).

6 See King v. United States, 74 A.3d 678, 681 n.12 (D.C. 2013) (FRE 701); Melton, 597 A.2d at

901 (FRE 703); Clifford v. United States, 532 A.2d 628, 633 (D.C. 1987) (FRE 705); Steele v.

D.C. Tiger Market, 854 A.2d 175, 181 (D.C. 2004) (FRE 704(a)); see also Johnson v. District of

Columbia, 655 A.2d 316, 318 (D.C. 1995) (FRE 615 as applied to expert witnesses). But see

Gaines v. United States, 994 A.2d 391, 402-03 (D.C. 2010) (rejecting FRE 704(b)).

~ Drevenak v. Abendschein, 773 A.2d 396, 418 n.32 (D.C. 2001) (citing Taylor v. United States,

661 A.2d 636, 651-52 (D.C. 1995) (Newman J., dissenting)).

g See generally, Combined Application, Ex. C (state-by-state listing). Over the past sixteen

months alone, three more states have moved to Daubers. See State v. Slazar-Mercado, 325 P.3d

996 (Ariz. 2014); Fla. Evid. Code § 90.702 (as amended effective July 1, 2013); Kansas Senate

Bi11311 (effective July 1, 2014).

9 Cf. Pettus v. United States, 37 A.3d 213, 217 n.4 (D.C. 2012) (noting that ̀ [n]either party asks

us to depart from the Frye test ... in favor of Daubert").

4

The experience of federal courts and the Daubert State courts provides strong testament

to the advantages of using some version of Daubert over Frye to screen expert testimony.

Federal courts have recognized that "[t]he Daubert trilogy, in shifting the focus to the kind of

empirically supported, rationally explained reasoning required in science, has greatly improved

the quality of the evidence upon which juries base their verdicts."10 For State courts that have

adopted some version of Daubert, the experience has been similar. The Nebraska Supreme

Court, for example, has described the Daubers framework as "a more effective means of

excluding unreliable expert testimony than is the Frye test."" That is because, according to the

Connecticut Supreme Court, "Dnubert's focus on scientific validity properly directs trial judges

to the core issue that they should address as gatekeepers of scientific evidence. ... [S]cientific

evidence is likely neither relevant nor helpful to the fact finder if it does not meet some

minimum standard of validity."12

In addition to improving the quality of evidence presented to juries, "adopting D~cubert"

has given State courts access to an enormous well of precedent "for guidance on almost any

likely set of facts."~~ In the present case, for example, Judge Weisberg had to assess the

admissibility of expert causation testimony based upon epidemiology, which he concluded Frye

was ill-suited to address. See Mern. Op. &Order on Witness Admissibility ("Order") at 28 (Ex.

B to Combined Application). Unfortunately, because no D.C. court has considered the

admissibility of epidemiologic-based expert testimony since the pre-Daubert Oxendine case in

10 Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir. 2002).

11 Schafersman v. Agland Coop., 631 N.W.2d 862, 873 (Neb. 2001).

lZ State v. Porter, 698 A.2d 739, 752 (Conn. 1997).

13 Scientific Evidence in the State Courts: Daubers and the Problem of Outcomes, 44 No. 4

Judges' J. 6, 7 (2005).

5

the 1980s, the District of Columbia case law provides scant guidance on how to assess such

evidence. In sharp contrast, federal case law assessing the admissibility of epidemiologic-based

evidence is legion.~`~ Thus, abandoning the antiquated Free test and embracing Daubert would

make the judicial task easier, by tapping into the wealth of analyses from other jurisdictions that

apply Dcaubert.

Indeed, Daubert and its Supreme Court progeny provide trial courts with a clear roadmap

by which to evaluate the reliability of expert testimony. In Daubert, the Supreme Court held that

the subject of an expert's testimony must be "scientific knowledge" which "implies a grounding

in the methods and procedures of science." 509 U.S. at 589-90. The Supreme Court explained

that "the requirement that an expert's testimony pertain to ̀ scientific knowledge' establishes a

standard of scientific reliability," which the Supreme Court further defined as "trustworthiness."

Id. at 590 & n.9. And "in order to qualify as ̀ scientific knowledge,' an inference or assertion

must be derived by the scientific method" and "must be supported by appropriate validation."

Id. at 590. Thus, under Daubert, litigants can be assured that "in a case involving scientific

evidence, evidentiary reliability will be based upon scientific validity." Id. at 590 n.9 (emphasis

in original).15 Daubert accordingly provides a framework for District of Columbia courts to

evaluate the admissibility of proffered expert testimony.

la See, e.g., Joiner, 522 U.S. at 146 (excluding expert testimony based on epidemiology that was

not statistically significant and subject to confounding); Rider, 295 F.3d at 1198 (explaining that

epidemiologic evidence is "generally considered to be the best evidence of causation in toxic tort

actions"); Conde v. Velsicol Chem. Corp., 24 F.3d 809, 813-14 (6th Cir. 1994) (excluding expert

testimony that failed to properly consider contrary epidemiology); Arias v. DyriCorp., 928 F.

Supp. Zd 1.0, 24-25 (D.D.C. 201.3) (granting summary judgment after excluding expert causation

testimony based on cherry-picked epidemiologic literature), aff'd 752 F.3d 1011 (D.C. Cir.

2014); Perry v. Novartis Pharm. Corp., 564 F. Supp. 2d 452, 465 (E.D. Pa. 2008) (excluding

expert testimony based upon scientifically unsound assessment of epidemiologic evidence).

15 See also Joiner, 522 U.S. at 146 ("[N]othing in either Daubert or the Federal Rules of

Evidence requires a district court to admit opinion evidence that is connected to the existing data

Furthermore, the Daubers framework fits well with this Court's description of the judicial

role in policing the admissibility of expert testimony. The Court already has recognized that trial

courts should "function as the gatekeepers for expert testimony,"16 and that trial courts "may not

abdicate [their] independent responsibilities to decide if the bases [for expert testimony] meet

minimum standards of reliability as a condition of admissibility."~~ The Court further has

explained that "because expert or scientific testimony possesses an ̀ aura of special reliability and

trustworthiness,' the proffer of such testimony must be carefully scrutinized."~g Indeed,

"[b]ecause of the authoritative quality which surrounds expert opinion, courts must reject

testimony which might be given undue deference by jurors and which could thereby usurp the

truthseeking function of the jury."19 And the Court also has recognized the importance of the

scientific reliability of expert testimony as an essential factor in the search for truth, pointing to

the need to ensure "scientific reliability — to yielding consistently accurate and confirmable

results."20 The Court has stated that "there is good reason for courts to take steps to assure that

reliable [expert] opinions are given" and noted that "[t]his is particularly important where the

only by the ipse dixit of the expert."); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)

(directing that trial courts, as gatekeepers must, "make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the courtroom the same

level of intellectual rigor that characterizes the practice of the expert in the relevant field.").

16 Jung v. George Washington Univ., 875 A.2d 95, 104 (D.C. 2005); see also Ventura v. United

States, 927 A.2d 1090, 1101 n.13 (D.C. 2007) (citing to trial court's "traditional discretion as the

gatekeeper for admissible [scientific] evidence").

~~ In re Melton, 597 A.2d 892, 903 (D.C. 1991) (citation omitted).

'g Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C. 1979); see also Middleton v. United

States, 401 A.Zd 109, 131 n.45 (D.C. 1976) (pointing to "the possible dominance of the jury by

the expert witnesses" as a "source of potential prejudice").

19 Smith v. United States, 389 A.2d 1356, 1359 (D.C. 1978).

20 Pettus v. United States, 37 A.3d 213, 228 (D.C. 2012).

7

causation element is unclear."21 Finally, the Court has stated that "expert testimony may be

excluded when the expert is unable to show a reliable basis for their theory."22

As sister jurisdictions have observed, Frye is inadequate for the achievement of these

judicial functions. Frye is concerned solely with whether the expert cited a "generally accepted"

methodology in reaching an opinion. The expert's application (or misapplication) of that

methodology is not part of the Frye inquiry, even if the expert grossly departs from scientific

procedures necessary to reach a reliable opinion that could properly assist the jury. Thus, as the

Supreme Court of Alaska has noted, "Frye is potentially capricious because it excludes

scientifically reliable evidence that is not generally accepted, and admits scientifically unreliable

evidence which, although generally accepted, cannot meet rigorous scientific scrutiny."23

Likewise, the Mississippi Supreme Court has noted that "the Frye test can result in the exclusion

of relevant evidence or the admission of unreliable evidence."24 Indeed, the present case is yet

another compelling example of Frye's inadequacies. As Judge Weisberg explained, by focusing

exclusively on the acceptance of a methodology rather than the reliability of its application in a

given case, "under Frye, as applied in this jurisdiction, even if a new methodology produces

`good science,' it will usually be excluded, but if an accepted methodology produces ̀ bad

science,' it is likely to be admitted." Order at 26.

Judge Weisberg accordingly believed he was compelled to admit the proffered expert

testimony because his gatekeeping responsibility was sharply circumscribed by Frye. "The Frye

21 Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C. 1980).

22 Haidak v. Corso, 841 A.2d 316, 327 (D.C. 2004) (citing Hollander v. Sandoz Pharm. Corp.,

289 F.3d 1193, 1208 (10th Cir. 2002)).

23 State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999).

24 Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31, 39 (Miss. 2003).

test does not ask — or even permit —the court to ascertain [the] scientific validity" of an expert's

opinion. Order at 19. Judge Weisberg concluded, "[a]t least where the science is fraught with

doubt as inferences of causation in epidemiology can be, Frye does not seem like the best way to

insure a just result." Id. at 28.

It is vitally important for the Court to accept review so that it can address the proper

stand~u-d of expert admissibility in the District of Columbia. The present case — with a fully-

developed expert evidentiary record — is an ideal vehicle to do so.

C. Adoption of Daubert Would Create a Level Pla~n~ Field for District of

Columbia Businesses.

The current inability of District of Columbia courts to serve as gatekeepers against

scientifically unreliable testimony places D.C. businesses at a significant disadvantage in

comparison to businesses in the vast majority of other States that have adopted Daa~bert.

Purported expert testimony often is the necessary linchpin for tort claims seeking sizable

monetary damages. Under Daubert, business defendants have the assurance that such claims can

proceed only if grounded in sound science,. Without such protection, however, business owners

may see no option but to settle rather than taking their chances with a jury, even when there are

real doubts about the science involved. See Margaret A. Berger, The Admissibility of Expert

Testimony, in Federal Judicial Center, Reference Manual on Scientific Evidence 19 (3d ed. 2011)

("[A]n inability by the defendant to exclude plaintiffs' experts undoubtedly affects the

willingness of the defendant to negotiate a settlement.").

For D.C. businesses —and for businesses considering whether to locate in the District —

the risk of unwarranted tort liability and litigation expense based upon speculative science is

demonstrable. As set forth in the Application, for example, the District of Columbia court's

inability to screen out speculative science regarding the drug Bendectin resulted in an expensive

D

and prolonged litigation battle that stands in stark contrast to the experience in other

jurisdictions, where Bendectin plaintiff experts' testimony was unanimously excluded.25 The

present case sends a similarly clear signal. As Judge Weisberg noted, "no American court has

found that cell phones can cause brain tumors," Order at 5, and based upon his analysis as well,

plaintiffs' claims here likewise "would almost certainly be excluded under Daubert." Id. at 25;

see also Order Amending Aug. 8, 2014, Mem. Op. &Order To Include Certification For

Interlocutory Appeal at 2 ("If the adoption of a new standard results in the exclusion of

Plaintiffs' general causation experts, Plaintiffs do not have a case.") (Ex. A to Combined

Application). Under Frye, however, Judge Weisberg concluded that he lacked authority to

exclude plaintiffs' expert's unreliable testimony. If the testimony here is admissible, then other

similarly meritless cases could flock to the District's courts.

Small business owners are particularly dependent on a proper standard of expert

admissibility in the District of Columbia courts.' Lawsuits involving large corporations are

relatively more likely to raise issues of federal law or involve parties in different States, and, in

such cases, defendants can rely on a federal court to screen out frivolous lawsuits based upon

speculative science. See, e.~., Arias, 928 F. Supp. 2d at 24-25. But small businesses with

primarily local operations must look to the District of Columbia courts for such protection.

25 See Raynor v. Merrell Pharm. Inc., 104 F.3d 1371, 1376 (D.C. Cir. 1997).

26 While less likely to face mass tort claims, small businesses may be confronted with expert

witness testimony in all manner of personal injury, property damage and business disputes. See,

e.g., Samaan v. St. Joseph Hosp., 670 F.3d 21 (1st Cir. 2012] (excluding expert testimony in

medical malpractice claim against hospital); Jazairi v. Royal Oaks Apt. Assoc., 217 Fed. Appx.

895 (11th Cir. 2007) (excluding expert testimony that mold in apartment caused injury); Brady v.

Elevator Specialists, Inc., 653 S.E.2d 59 (Ga. App. 2007) (excluding expert testimony that

company failed to adequately maintain elevator); Bailey Lumber &Supply Co. v. Robinson, 98

So.3d 986 (Miss. 2012) (excluding expert testimony in slip-and-fall case, reversing $1 million

judgment).

10

Moreover, for a sma11 business, the costs of defending a questionable lawsuit through

trial can be ruinous. The costs of tort litigation on small businesses are staggering. The tort

liability price tag for small businesses in 2008 alone was $105.4 billion.' Small business

owners also do not have in-house counsel to handle litigation and, in many cases, lack both the

resources needed to hire an attorney and the time and energy required to fight a lawsuit. Thus,

even if a small business defendant is convinced that a plaintiff's expert claims are frivolous, it

may have no choice but to settle.

It is for these reasons that business groups —and, in particular, small business groups —

across the country have pressed for uniform adoption of the Daubert standard.'`g This case

provides the Court an opportunity to confront this issue and adopt a standard for expert

admissibility in District of Columbia courts that provides D.C. businesses with fair and accurate

determinations of legal liability based upon sound scientific testimony. The application for

review should be Granted.

27 Tort Liability Costs for Small Businesses, U.S. Chamber Institute for Legal Reform, at 11

(2010). http://www.instituteforlegalreform.com/resource/tort-liability-costs-for-small-business

28 See, e.g., Coalition in Support of the Daubers Standard (37 national and local associations

supported adoption of Daubert in Arizona) https://www.phoenixchamber.com/sites/defaultlfiles/

documents/legdocs/Daubert%20Fact°1o20Sheet%20(2-5-10).pdf

11

III. CONCLUSION

For the foregoing reasons, amid curiae respectfully urge that the Court grant the

Combined Application for Permission to Appea] Order on Expert Witness Admissibility and

Petition for Hearing En Banc.

Steven P. Lehotsky (D.C. Bar No. 992725)

Sheldon GilbertU.S. CHAMBERLITIGATION CENTER, INC.1615 H Street, NWWashington, DC 20062(202) 463-5337

Counsel for Chamber of Commerce ofthe United States of America

Respectfully submitted,

Joe G. Hollingsworth (DC Bar No. 203273)Eric G. Lasker (DC Bar No. 430180)HOLLINGSWORTH LLP1350 I Street, N.W.Washington, DC 20005(202) 898-5800

Counsel for all Amici

12

APPENDIX A

The following organizations join as amici curiae in this brief:

The Chamber of Commerce of the United States of America is the world's largest

business federation. It represents 300,000 direct members and indirectly represents the interests

of more than 3 million companies and professional organizations of every size, in every industry

sector, and from every region of the country.

The International Association of Defense Counsel is an organization of corporate and

insurance attorneys whose practice is concentrated on the defense of civil lawsuits. Since 1920,

the IADC has been dedicated to the just and efficient administration of civil justice and continual

improvement of the civil justice system.

The National Association of Manufacturers is the nation's largest industrial trade

association, representing small and large manufacturers in every industrial sector and in

Washington, D.C. and a1150 states.

The National Federation of Independent Business is the nation's leading small business

association, representing members in Washington, D.C. and all 50 state capitals.

CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2014, this brief was served by both electronic mail

and first class mail, postage prepaid, to counsel of record:

Jeffrey B. MorganrothJill A. GurfinkelMorganroth & Morganroth, PLLC344 North Old Woodward AvenueSuite 200Birmingham, MI 48009JMorganroth @ morganrothlaw.comJGurfinkel @ mor~anrothlaw.comLead Counsel for Plaintiffs, Murray, Cochran, Agro, Keller, Schwamb, Schofield, Bocook and

Co-Counsel for Marks

Hunter LundyRudy R. Soileau, Jr.Kristie HightowerLundy, Lundy, Soileau &South501 Broad StreetLake Charles, LA 70601hlundy@ lundvlawllp.comrsoileau C~lundXlawllp.comkhi ~htower @ lundylawllp.comLead Counsel for Plaintiffs, Prischmann, Kidd, Solomon and Brown and Co-Counsel for

Marks

James F. GreenMichelle A. PittAshcraft & Gerel4900 Seminary RoadSuite 650Alexandria, VA 22311j green @ ashcraftlaw.commparf @ aol.comCo-Counsel for Plaintiffs, Prischmann, Kidd, Solomon and Noroski

Jeffrey S. GrandBERNSTEIN LIEBHARD, LLPEast 40th Street, 22nd FloorNew York, New York [email protected] the Plaintiffs

Steven R. Hickman

FRASIER, FRASIER & HICKMAN, LLP

1700 Southwest BoulevardTulsa, OK [email protected] for Plaintiff, Shawn Kidd

Laura Sierra, D.C. Bar No. 984944

Jane F. Thorpe, admitted Pro Hac ViceScott A. Elder, admitted Pro Hac ViceDavid Venderbush, admitted Pro Hac ViceALSTON BIRD LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309(404) 881-7000Laura. sierra @ alston.comjane.thorpe @ [email protected]. venderbu sh @ alston.comCounsel for Celko Partnership d/bla Verizon Wireless; Bell Atlantic Mobile, Inc.; Verizon

Wireless Inc.; Verizon Wireless Personal Communications LP f/k/a Primeco PersonalCommunications LP; Verizon Communications Inc., and Western Wireless LLC f/k/a

Western Wireless Corporation

Jennifer G. Levy, D.C. Bar No. 416921KIRKLAND & ELLIS LLP655 15th Street, NWWashington, DC 20005(202) 719-7000Jennifer.levv @kirkland.com

Terrence J. Dee, admitted Pro Hac ViceMichael B. Slade, admitted Pro Hac ViceKIRKLAND & ELLIS LLP300 North LaSalleChicago, II. 60654(312) 862-2000terrence.dee @ kirkland.commichael. slade @ kirkland.comCounsel for Motorola, Inc.

Thomas Watson, DC Bar No. 180943Curtis S. Renner, DC Bar No. 446187Lauren Boucher, DC Bar No. 992068WATSON & RENNER1400 16th Street, NWSuite 350

Washington, DC 20036(202) 737-6300tw @ w-r.comcrenner@ [email protected] forAT&T Inc., AT&T Wireless Services Inc., Cingular Wireless LLC, and

related entities

Paul ScrudatoThomas M. CrispiSCHIFF HARDIN LLP666 Fifth AvenueSuite 1700New York, NY 10103(212) 753-5000pscrudato C~ schiffllardin.comtcrisQi @ schiffhardin.comCounsel for Apple Inc.

Seamus C. DuffyAlex BrodskyDRINKER BIDDLE & REATH LLPOne Logan Square Square18th &Cherry StreetsPhiladelphia, PA 19103-6996(215) 988-2700seamus.duffv @ dbr.comAlexander.brodsky @ dbr.comCounsel forAT&T Inc., AT&T Wireless Services Inc., Cingular Wireless LLC, and

related entities

Paul Taskier, DC Bar No. 367713DICKSTEIN SHAPIRO LLP1825 Eye Street NWWashington, DC 20006-5403(202) 420-2200taskierp @ dicksteinshapiro.comCounsel for Audiovox Communications Corporation

Howard D. ScherPatrick T. CaseyBUCHANAN INGERSOLL & ROONEY PCTwo Liberty Place50 S. 16th Street, Suite 3200Philadelphia, PA 19102(215)665-8700

Howard.scher @bipc.com

Patrick.casev C~bipc.com

John Korns, DC Bar No. 142745BUCHANAN INGERSOLL & ROONEY PC

1700 K Street, NWSuite 300Washington, DC 20006(202) 452-7900j ohn.korns C~ bipc.comCounsel for Cellular One Group

Michael D. McNeely, Esq., DC Bar No. 943597LAW OFFICES OF MICHAEL D. McNEELY3706 Huntington St., N.W.Washington, DC [email protected] for Cellular Telecommunications &Internet Association

Vicki L. Dexter, admitted Pro Hac ViceIRWIN GREEN &DEXTER LLP301 W. Pennsylvania AvenueTowson, MD 21204(410) [email protected] for Cellular Telecommunications &Internet Association

Paul FarquharsonScott Phillips, D.C. Bar No. 453192SEMMES, BOWEN & SEMMES25 S. Charles StreetSuite 1400Baltimore, MD 21201(410) 539-5040pfarquharson @ semmes.coms~hillips @ semmes.comCounsel for Cricket

Ralph A. Taylor, Jr., DC Bar No. 225219ARENT FOX LLP1717 K. St., N.W.Washington, DC 20036(202) 775-5713Ra1ph.Taylor @ arentfox.com

Rosemarie Ring, admitted Pro Hac Vice

MUNGER TOLLES & OLSON LLP

560 Mission St.27th FloorSan Francisco, CA 94105(415) [email protected] for HTC America, Inc., a defendant in related case No. 2012-CA-8533

Sean Reilly, DC Bar No. 476370Hughes, Hubbard &Reed LLP1775 I Street, N.W.Washington, DC 20006-2401(202) 721-4634reilly @ hugheshubbard.comCounsel for LG Electronics MobileComm U.S.A., Inc.

Steven M. Zager, DC Bar No. 429349AKIN GUMP STRAUSS HAVER & FELD LLP

One Bryant ParkNew York, NY 10036(212) 872-1000sza~er@ akin~ump.comAmanda R. Johnson, DC Bar No. 493376AKIN GUMP STRAUSS HAVER & FELD LLP1333 New Hampshire Avenue, NWWashington, DC 20036(202) 887-4000arlohnson@akin u~mp.comCounsel for Nokia Inc.

Richard W. StimsonAttorney at Law4726 Mainsail DriveBradenton, Florida 34208(214) 914-6128Ext-rick. stimson @ nokia.comCounsel for Nokia Inc.

Francis A. CiteraMatthew A.C. ZapfGREENBERG TRAURIG LLP77 West Wacker Drive Suite 2500Chicago, II.60601(312) 456-8400citeraf@ gtlaw.comsapfm @gtlaw.com

Precious Murchison, DC Bar No. 983912

Greenberg Traurig, LLP2101 L Street, NWSuite 1000Washington, DC 20037(202) 331-3100murchisonp @ gtlaw.comCounsel for Qualcomm Inc.Sony Electronics Inc.

John B. Isbister, DC Bar No. 277418

Jaime W. Luse, DC Bar No. 501944

TYDINGS & ROSENBERG LLP100 East Pratt Street, 26th FloorBaltimore, MD 21202(410) 752-9700jisbister@tydin~slaw.comjluse @tydingslaw.comCounsel for Samsung Telecommunications America, LLC

J. Stan SextonPatrick N. FanningSHOOK HARDY &BACON LLP2555 Grand Blvd.Kansas City, MO 64108(816)-474-6550jesxton @ shb.compfanning @ shb.com

John A. Turner, III, DC Bar #975649SHOOK HARDY &BACON LLP

1155 F Street, N.W., Suite 200Washington, DC 20004(202) 783-8400jturner@ shb.comCounsel for Sprint Nextel Corporation f/k/a Nextel Communications

Sprint Spectrum, L.P. d/b/a Sprint PCS

Paul H. VishnyPaul E. FreehlingSEYFARTH SHAW LLP131 S. Dearborn Street Suite 2400Chicago, IL 60603(312) 460-5000pvishny @ seyfarth.com

~'

a

pfreehling C~ seyfarth.com

Rhett E. Petcher, D.C. Bar 491924

SEYFARTH SHAW LLP975 F Street, N.W.Washington, D.C. 20004r~etcher@ seyfarth.comCounsel for Telecommunications Industry Association

Steve KohMichael ScovilleDaniel RidlonPERKINS COIF, LLP1201 Third AvenueSuite 4900Seattle, WA 98101(206) 359-8000skoh @ perkinscoie.commscoville @ perkinscoie.comdridlon @perkinscoie.com

Mary Rose Hughes, DC Bar No. 388656

PERKINS COIF, LLP700 Thirteenth Street, N.W.Washington, D.C. 20005-3960(202) 654-6200MHu [email protected] for T-Mobile USA, Inc.

Eugene A.SchoonTamar B. KelberSIDLEY AUSTIN LLP1 S Dearborn StChicago, IL 60603(312) 853-7000eschoon @ sidlev.comtkelber@sidle,Counsel for United States Cellular anon

Eric G. askerHOLLINGSWORTH LLP1350 I Street, NWWashington, DC 20005-3305(202) 898-5800

IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA Civil Division

__________________________________________ ) MICHAEL PATRICK MURRAY, et al., ) ) Plaintiffs, ) v. ) Case No. 2001 CA 008479 B ) Judge Frederick H. Weisberg MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________) ) BALDASSARE S. AGRO, et al., ) ) Plaintiffs, ) v. ) Case No. 2002 CA 001368 A ) MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________) PAMELA A. COCHRAN, et al., ) ) Plaintiffs, ) v. ) Case No. 2002 CA 001369 A ) AUDIOVOX COMMUNICATIONS ) CORP., et al., ) ) Defendants. ) __________________________________________) ) DAVID C. KELLER, et al., ) ) Plaintiffs, ) v. ) Case No. 2002 CA 001372 A ) NOKIA, INC., et al., ) ) Defendants. ) __________________________________________)

2

__________________________________________ ) SHAWN KIDD, et al., ) ) Plaintiffs, ) ) Case No. 2010 CA 007995 B

v. ) ) MOTOROLA, INC., et al., ) ) Defendants. ) ) ) ALAN MARKS, et al., ) ) Plaintiffs, ) v. ) Case No. 2010 CA 003206 B ) MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________) ) RICHARD SCHWAMB et. al., ) ) Plaintiffs, ) v. ) Case No. 2002 CA 001370 A ) QUALCOMM, INC., et al., ) ) Defendants. ) __________________________________________) ) DINO E. SCHOFIELD, ) ) Plaintiff, ) v. ) Case No. 2002 CA 001371 A ) MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________)

3

__________________________________________ ) CRISTIN PRISCHMAN, as Personal ) Representative of the Estate of ) PAUL G. PRISCHMAN ) ) Plaintiff, ) v. ) Case No. 2011 CA 002113 B ) MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________) ) MINDY S. KEMP BROWN, individually and ) as Special Administrator of the Estate of ) DANIEL TODD BROWN ) ) Plaintiffs, ) )

v. ) Case No. 2011 CA 006710 B ) NOKIA, INC., et. al. ) ) Defendants. ) __________________________________________) ) ROBERT P. NOROSKI, individually, and as ) Personal Representative of the Estate of ) HEATHER LYNN NOROSKI ) ) Plaintiff, ) )

v. ) Case No. 2011 CA 008854 B ) SAMSUNG TELECOMM AMERICA, LLC, et al., ) ) Defendants. ) )

4

) MONIQUE SOLOMON, individually and as ) the Special Administrator of the Estate of ) ANDREW J. SOLOMON, ) ) Plaintiffs, ) v. ) Case No. 2002 CA 001371 A ) MOTOROLA, INC., et al., ) ) Defendants. ) __________________________________________) ) BRET KENYON BOCOOK and ) LAURA LYNN BOCOOK ) ) Plaintiffs, ) ) Case No. 2011 CA 002453 B v. ) ) MOTOROLA, INC., et al., ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER ON EXPERT WITNESS ADMISSIBILITY

Can cell phones cause brain cancer? If that were the question confronting the court at

this phase of the case, the answer would be relatively clear. Although there are a few isolated

strands of data pointing in the direction of causation, the court could not conclude, based on the

present record, that there is enough evidence for any scientist to answer the question “yes” with

the requisite degree of scientific certainty. There is entirely too much controversy in the

scientific community to entrust that question to a jury of laypersons on a case-by-case basis, to

have one jury answer the question yes, only to have the next jury, presented with the very same

evidence, come to the opposite conclusion.

5

The question presented, however, is not whether cell phones can cause cancer, but

whether plaintiffs’ expert witnesses, who have expressed the opinion “to a reasonable degree of

scientific certainty” that cell phones more likely than not cause or promote certain brain tumors,

should be permitted to testify to those opinions before the jury. In this jurisdiction, the court

must answer that question under the test of Dyas v. United States, 376 A.2d 827 (D.C. 1977),

cert. denied 434 U.S. 973 (1977), and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), rather

than Daubert v. Merrill Dow Pharms. Inc., 509 U.S. 579 (1993). Under the Dyas/Frye test, the

expert testimony is presumptively admissible if the subject is beyond the ken of an average

layperson, the expert is qualified to offer an opinion on the subject, the expert uses a

methodology that is generally accepted in the relevant scientific community to arrive at his

opinion, and the probative value of the expert’s testimony is not substantially outweighed by the

risk of undue prejudice. Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C. 1979).

I. Procedural History

Plaintiffs are litigants in thirteen separate cases consolidated for purposes of the

Dyas/Frye hearing.1 Each plaintiff suffers from a brain tumor, or is suing on behalf of the estate

of someone who died of brain cancer, allegedly caused by long-term exposure to cell phone

radiation. The oldest and lead case, Murray v. Motorola, 2001 CA 8479, was filed in 2001, and

many of the other cases have been pending for more than ten years. No American court has yet

found that cell phones can cause brain tumors. Because of the novel scientific issues and the

need for judicial economy, the court (Burgess, J.) bifurcated the litigation into two phases:

general causation and specific causation. If plaintiffs‘ evidence is sufficient to get past the

1 Sixteen additional cases have been stayed pending the resolution of the Dyas/Frye issue on general causation. The parties in those other cases, which are not formally consolidated with these thirteen, have agreed by stipulation to be bound by the Dyas/Frye ruling in these cases.

6

general causation phase of the litigation, the parties will proceed to phase two, with plaintiffs

presenting their evidence of specific causation on a case by case basis.

To survive summary judgment on general causation, plaintiffs must present sufficient

admissible expert testimony to place in dispute a genuine issue of material fact as to whether

radiation from cell phones can cause two kinds of brain tumors, glioma and acoustic neuroma.2

Again, because of the complexity of the issue, the general causation inquiry was itself bifurcated.

The issue before the court at present is the admissibility of plaintiffs’ experts under the standard

applicable in this jurisdiction, which is derived from Dyas and Frye. If the court rules that the

testimony of plaintiffs’ experts – or some of them – is admissible, the parties will conduct

broader discovery on the general causation issue (which has been stayed) before proceeding to

specific causation.

In December 2013 and January 2014, the court conducted an evidentiary hearing to

determine the admissibility of plaintiffs’ experts. The court heard four weeks of testimony from

plaintiffs’ eight experts and defendants’ four rebuttal experts, received approximately 280

exhibits containing thousands of pages of documents, and reviewed hundreds of pages of legal

briefing both before and after the hearing.

II. Factual Background

A. How Cell Phones and Radiation Work

Some understanding of the basic science of radiation, cell phone technology, and human

cancer is necessary to put the legal issues now before the court in their proper context.3

2 Gliomas are a type of malignant brain tumor that are nearly always fatal, whereas acoustic neuromas are non-malignant tumors which may be surgically removed or are otherwise treatable. 3 Unless otherwise indicated, this background information comes primarily from the court’s review of the record as a whole, including hearing testimony, exhibits, expert reports, and the parties’ briefs. The court has done its best to learn enough of the science to be in a position to decide the legal issues and properly exercise its discretion.

7

Radiation is energy emitted by an object in the form of electromagnetic waves or particles.

Many common objects, and certainly all electronics, give off some form of radiation. Energy

radiates at different wavelengths depending on the nature of its source. The longer the

wavelength, the lower the frequency; and the shorter the wavelength, the higher the frequency.

The electromagnetic spectrum ranges from Extremely Low Frequency (“ELF”) waves at the low

end of the spectrum, all the way up to cosmic rays at the high end of the spectrum. Visible light

is near the middle of the spectrum. At the high end of the spectrum are forms of ionizing

radiation such as x-rays, gamma rays, and cosmic rays. At the low end of the spectrum, where

cell phones operate, are forms of non-ionizing radiation such as microwaves, radiofrequency

(“RF”) waves, and ELF waves. Radiation can have thermal and non-thermal effects. The heat

from a lit candle is a thermal effect; the light is a non-thermal effect of the flame’s radiation.

For cancer to develop, there must first be a break in DNA molecules in the body. In

natural processes, DNA strands are constantly breaking, but humans have numerous defenses to

prevent those breaks from developing into cancer. It is generally accepted that ionizing

radiation, such as x-rays and energy released by nuclear reactions, can cause cancer by breaking

the chemical bonds of DNA molecules in the body. When DNA bonds are broken and not

repaired, the frequency of genetic mutations increases. As mutations increase, the odds that

cancer will develop increase as well. The accepted wisdom is that non-ionizing radiation is not

powerful enough to break the chemical bonds that hold together DNA molecules. Plaintiffs’

experts believe, however, that the non-ionizing radiation emitted by cell phones has a non-

thermal adverse biological effect on the body’s mechanisms for repairing naturally-occurring

DNA breaks, which leads to an increased risk of cancer.

8

A cell phone functions by wirelessly transmitting data to and receiving data from nearby

cellular towers. Those towers are networked with other components of telecommunications

infrastructure, enabling one device connected to the network to communicate with another. A

cell phone communicates wirelessly with the towers using a combination of RF and ELF waves,

in a manner similar to other radio transmission devices. When a person uses a cell phone to

make a call, connect to the internet, send a text message, or share photos, the phone transmits

data packets to the network in the form of RF and ELF radiation. Depending on the type of

communication and volume of data being transmitted, the phone will emit more or less radiation.

Voice calls and video chats require the transmission of more data (and more RF and ELF

radiation) than text messages and emails. As long as a cell phone is powered on, it must remain

in constant communication with nearby cell towers so that the network can route data traffic to

and from the phone, but when it is in its idle state, the phone emits less radiation than when it is

in active communication. Communication with cell towers ceases only when the phone is turned

off or in “airplane mode,” meaning that its radio transmitters and receivers are deactivated.

When a cell phone emits RF and ELF waves in order to communicate with the network, it

radiates in all directions. Consequently, when a phone is held up to a person’s ear during a

phone call, some of the radiation is directed toward the person’s head. Some of that radiation

will be absorbed by the head, and some will be reflected. The intensity of radiation dissipates

over distance, so the closer a person is to a radiation-emitting device, the more radiation the

person’s body will absorb. Therefore, a person’s head will generally absorb more radiation from

a cell phone held up to one’s ear than from a cell phone on a desk or from other devices in the

room, like a Wi-Fi router or laptop computer, which also emit RF radiation.

9

At this phase of the litigation, the general causation question presented is whether the

non-ionizing radiation from cell phones has a non-thermal effect that causes, promotes, or

accelerates the growth of brain tumors, specifically gliomas and acoustic neuromas. The

plaintiffs have proffered eight expert witnesses who, individually and collectively, purport to

answer this question in the affirmative.

B. State of the Science on Health Risks from Cell Phones

At present, virtually all world-wide governmental health agencies that have studied the

question have concluded that there is some, but not nearly enough, scientific evidence to

conclude that cell phone radiation can cause or promote brain cancer. The World Health

Organization’s International Agency for Research on Cancer (“IARC”) is widely recognized as

the lead authority on the carcinogenicity of environmental agents, such as RF radiation. In 2011,

its Working Group on the Evaluation of Carcinogenic Risks to Humans met in Lyon, France to

evaluate the risks of cell phone radiation. Following its review of substantially all published

research from a variety of fields, including epidemiology, cell biology, biophysics, engineering,

and toxicology, IARC published a Monograph in 2013, summarizing the state of the science and

concluding that “Radiofrequency electromagnetic fields are possibly carcinogenic to humans

(Group 2B).” Ex. PX0062, IARC Working Group on the Evaluation of Carcinogenic Risks to

Humans, Non-Ionizing Radiation Part 2: Radiofrequency Electromagnetic Fields, Int’l Agency

for Research on Cancer, Vol. 102, 419 (2013) (emphasis in original) (hereinafter “IARC

Monograph”).4 This “Group 2B” classification, for “possible carcinogens,” is in the middle of

4 The pagination of plaintiffs’ version of the IARC Monograph, Ex. PX0062, differs slightly from defendants’ version, Ex. DX0049. The discrepancy is attributable to a section of the Monograph that has nothing to do with cell phone radiation or issues related to this case. See PX0062 at 173 and DX0049 at 168 (discussing Oberfeld 2008). As a result, the page numbers of the two different versions are off by about two pages in the second half of the Monograph. It is unclear to the court which version is the “correct” one, as both appear genuine, but there are no differences in the portions of the Monograph that are relevant to this case. In this order, the court’s page citations are to the plaintiffs’ version, PX0062.

10

IARC’s classification hierarchy. Group 1 is comprised of known human carcinogens. Group 2A

consists of agents that are “probably carcinogenic to humans.” Most agents fall into Group 3,

“not classifiable” as either carcinogenic or not carcinogenic to humans. Finally, a very small

number of agents are classified in Group 4, “probably not carcinogenic to humans.” IARC

Monograph at 30. IARC classified RF radiation in Group 2B because “[t]here is limited

evidence in humans for the carcinogenicity of radiofrequency radiation” and “[t]here is limited

evidence in experimental animals for the carcinogenicity of radiofrequency radiation.” IARC

Monograph at 419 (emphasis in original).5 The IARC Monograph is generally accepted by all

parties and the court to be highly reliable and authoritative.6

The driving force behind IARC’s “possibly carcinogenic” classification is the

epidemiological evidence. Although “[p]ositive associations have been observed between

exposure to radiofrequency radiation from wireless phones and glioma, and acoustic neuroma,”

the epidemiological evidence is “mixed.” IARC Monograph at 419. The Working Group

dismissed several early case-control7 and cohort8 studies as being “largely uninformative” due to

5 IARC defines “limited evidence” as “a positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered by the Working Group to be credible, but chance, bias or confounding could not be ruled out with reasonable confidence.” IARC Monograph at 27. A minority of the IARC Working Group would have classified the epidemiological evidence as “inadequate” which, under IARC’s criteria would have caused the overall classification of RF radiation to drop to Group 3 (carcinogenicity cannot be classified). IARC Monograph at 30, 419. 6 The Monograph was published after the experts submitted their reports in this case. By the time of the hearing, all of the experts were able to testify about its contents and IARC’s methodology. 7 In a case-control study, epidemiologists identify people with a disease (the cases) and people without the disease (the controls) and question them on their exposure to the agent under consideration and other factors. The scientists attempt to control for all potential confounding variables to isolate particular associations between the disease and exposure to the environmental agent (or other factor). For example, to study whether cell phone radiation causes glioma, epidemiologists identify a representative population suffering from glioma (the cases) and another representative population that does not have glioma. The scientists quiz the two groups on a variety of factors, including past cell phone use. If the cases have a significantly higher past use of cell phones than the controls, all else being equal, then the epidemiologists may conclude that there is an “association” between cell phone use and glioma. In order to determine whether this association is causal, the epidemiologists need to control for bias, confounding variables, and chance. 8 In a cohort study, epidemiologists track a representative population over a period of time (usually years or decades). The scientists survey the population to determine who is exposed to what environmental agents (such as cell phone radiation) and in what amounts. They also track who develops specific diseases, such as glioma. After

11

methodological shortcomings.9 IARC Monograph at 419. The primary sources of

epidemiological evidence were two sets of case-control studies, one from the INTERPHONE

research group, and another from the Hardell research group. IARC described these two sets of

studies as “the most robust evidence on the risk of tumours of the brain associated with wireless-

phone use.” IARC Monograph at 409. Nonetheless, IARC found that both the INTERPHONE

and Hardell studies suffer from flawed study designs that do not fully control for bias,

confounding, and chance, a view that is widely shared by most other organizations that have

studied the subject.

INTERPHONE was an effort to study cell phone radiation exposures across thousands of

cases and controls in multiple countries. In general, the INTERPHONE studies found that

exposure to cell phone radiation for all but the heaviest users actually appeared to reduce the risk

of glioma.10 Like all case-control studies, participants were interviewed with questionnaires

about their cell phone use, sometimes years in the past. This methodology can give rise to recall

bias if the subject’s recollection is not accurate, which can then distort the overall data. 11 IARC

Monograph at 203, 216. For example, IARC found evidence that cases and controls estimated

their past phone usage differently. IARC Monograph at 215. INTERPHONE defined a “regular”

mobile-phone user as someone who had used a mobile phone for at least one call per week

during the previous six months or more. IARC Monograph at 203. Because this definition of the period of time has expired and the results are compiled, the scientists may be able to identify if there is any association between an environmental exposure and disease incidence. Again, to determine if an association is causal, the epidemiologists must control for bias, confounding variables, and chance. 9 For example, several of these early studies defined “exposure” as “having a cell phone subscription” with no measurement of how much a person actually used the phone. Some studies used unreliable self-reported histories of phone use. IARC Monograph at 408. 10 As various experts pointed out at the hearing, if true this would mean that cell phone radiation actually protects against glioma. This is biologically implausible and indicates a flaw in the study design, which biased the results toward the “null.” 11 Recall bias occurs when the structure of the experiment influences, or results are influenced by, a participant’s recollection of past events. For example, a patient with glioma on the left side of the head might misremember their past phone usage habits and report that they always used their phone on the left side of the head, if they are predisposed to think the two are related.

12

“exposure” is overly broad, the INTERPHONE results have been criticized as possibly being

skewed “toward the null” by selection bias.12 IARC Monograph at 203-16. If participants with

relatively low phone use are defined as “exposed,” they would dilute any possible association

between phone use and cancer, resulting in underestimated odds ratios.13 INTERPHONE may

also suffer from participation bias14 because its participation rates at some study centers varied

widely, and there might not have been a fair representation of people who had never used cell

phones. IARC Monograph at 215-16. When INTERPHONE did another analysis of its own

data, recalibrating its definitions of “exposed” versus “unexposed” to try to account for bias, the

resulting odds ratios were higher, indicating a positive association. IARC Monograph at 216.

INTERPHONE’s results and methodologies were largely similar for acoustic neuroma. IARC

Monograph at 233.

The Hardell studies come from a research group led by Dr. Lennart Hardell in Sweden,

also analyzing thousands of participants.15 There are a number of Hardell studies and

recombinations of Hardell data, but in general they point to a positive association between

12 Selection bias can occur if a researcher does not properly define the experimental and control groups when choosing individuals to participate in a study. For example, in a study designed to measure whether calcium intake is associated with bone growth, if a participant is classified as “exposed” if he consumed at least 1 mg of calcium a day and no association is found, the study might erroneously conclude that consumption of calcium had no effect on bone growth, even though an association might have been observable in the population that consumed more than 1000 mg of calcium per day. Theoretically, one could correct for this sort of selection bias by looking at the subset of participants who reported 1,000 mg or more per day; but doing this kind of retrospective analysis would require data from all participants on their actual daily consumption of calcium, and the sample of 1,000+ mg exposures would need to be large enough for statistical significance. 13 An odds ratio is the method of defining the association between exposure to an element and disease incidence, relative to the control population. If an exposure results in an odds ratio of 1.00, that means that the exposed and unexposed groups develop the disease in equal proportions and there is no association. If the odds ratio is greater than 1.00 by a statistically significant margin, exposure to the agent is associated with higher rates of disease incidence relative to the control population. If the odds ratio is lower than 1.00 by a statistically significant margin, exposure to the agent is associated with lower rates of disease incidence relative to the control population. 14 Participation bias occurs when the participants in the study are insufficiently representative of the population at large. Participation bias may occur in particular when the cases in a study participate at a greater rate than the controls. 15 Dr. Hardell was a member of the IARC Working Group that produced the Monograph. IARC observed that Sweden was an appropriate location to study the risks of cell phone radiation, because that country had widespread use of cell phones much earlier than many other countries. Id. at 219.

13

exposure to cell phone radiation and the incidence of glioma and acoustic neuroma. IARC

Monograph at 218-21, 233-34. This holds true even for users with relatively short periods of

exposure (1-5 years). IARC Monograph at 204-14. Moreover, there seems to be some

significant fluctuation between the odds ratios at varying levels of exposure in different Hardell

studies, giving rise to criticisms that at least some of the studies suffer from methodological

flaws. Like INTERPHONE, the Hardell studies also relied on questionnaires and interviews

with cases and controls, which can result in recall bias. In particular, IARC noted that Hardell’s

questions about laterality (the side of the head on which one used the phone most frequently)

could give rise to recall bias. IARC Monograph at 219. IARC commented that one strength of

the Hardell studies was high participation rates, reducing the risk of participation bias. IARC

Monograph at 220. However, others have criticized the Hardell studies for omitting certain

categories of participants and distorting the participation rates. See Ex. DX0043, Indep.

Advisory Grp. On Non-ionising Radiation, Health Effects from Radiofrequency Electromagnetic

Fields, British Health Protection Agency 282-86 (Apr. 2012) (hereinafter “HPA 2012”). The

HPA also criticized the later Hardell studies for under-representing cell phone users among both

cases and controls relative to cell phone use in the overall population. Id. at 287.

IARC also examined the “ecological” evidence – the trends in disease incidence rates. In

general, the incidence data do not show any significant increase in overall brain tumor rates,

despite the widespread and ever-increasing use of cell phones. IARC Monograph at 192-99.

There is some relatively new evidence of statistically significant increases for some tumors

localized to particular regions of the brain. See Ex. PX0548, G. Zada et al., Incidence Trends in

the Anatomic Location of Primary Malignant Brain Tumors in the United States: 1992-2006,

World Neurosurgery 77(3-4): 518-24 (2012) (finding increased rates of a glioma subtype in the

14

frontal lobe, temporal lobe, and cerebellum) (hereinafter “Zada 2012”). But the overall

incidence rates are mostly flat, or even trending downward. IARC Monograph at 192-99. This

could be explained by long latency periods between the date of exposure and the incidence of

cancer. Cell phones have been in widespread use for roughly twenty years. If cell phone

radiation is carcinogenic, but it takes 30-40 years on average for cancers to develop, then cancers

from cell phone radiation would not yet show up in large numbers in the incidence data. IARC

Monograph at 199. On the other hand, some of the Hardell data are definitely inconsistent with

the incidence trend data. In particular, Hardell found higher odds ratios after only a few years of

cell phone use. If these findings were truly indicative of causation, then one would surely see a

significant increase in certain brain tumors in the available incidence data; stated conversely, if

long latency is the correct interpretation of the incidence data, some of Hardell’s findings are

most likely incorrect. Because the incidence data have not manifested the large spike in rates

that the Hardell studies would predict, there is reason to doubt the reliability of those case-

control studies, and one would look instead to bias, confounding, or chance to explain Hardell’s

results. See DX0264, M. P. Little, et al., Mobile phone use and glioma risk: comparison of

epidemiological study results with incidence trends in the United States, BMJ 344:1-16, 3

(March 8, 2012) (hereinafter “Little 2012”).16 Likewise, the incidence data are inconsistent with

the “protective effects” suggested by the INTERPHONE studies, reinforcing concerns of bias in

those studies. Id.

In addition to human epidemiological studies, IARC also reviewed the experimental

animal literature, including both in vivo and in vitro studies. IARC Monograph at 413-17. IARC

concluded, “There is limited evidence in experimental animals for the carcinogenicity of

16 The regional increases observed in the Zada 2012 study cannot sufficiently account for the predicted increase in rates derived from the Hardell data.

15

radiofrequency radiation.” IARC Monograph at 419 (emphasis in original). When evaluating

the mechanistic evidence, IARC generally found that there was only weak or insufficient

evidence that RF radiation could have various cellular or molecular effects. IARC Monograph at

414-17.

Many other governmental agencies and other independent organizations have examined

whether cell phone radiation is a potential carcinogen. All have concluded that the evidence at

this time is insufficient to establish causation with any degree of confidence approaching a

scientific certainty, and most recommend that further research is needed. HPA 2012 at 4

(“limitations to the published research [preclude] a definitive judgment,” but so far there is not

enough evidence of a risk); Ex. DX0050, Mobile phones and cancer, Part I: Epidemiology and

tumours in the head, Health Council of the Netherlands, at 8 (June 3, 2013) (further study needed

because “no clear and consistent evidence”); Ex. DX0051, Anders Ahlbom, et al.,

Radiofrequency Electromagnetic Fields and Risk of Disease and Ill Health, Swedish Council for

Working Life and Research, 7-8 (June 2012); Paolo Vecchia, et al., Exposure to high frequency

electromagnetic fields, biological effects and health consequences (100kHz-300GHz), Int’l

Comm’n on Non-Ionizing Radiation Prot., 353-54 (2009) (available evidence flawed and

insufficient) (hereinafter “ICNIRP 2009”); Ex. DX0045, Cell Phones and Cancer Risk, Nat’l

Cancer Inst. (June 25, 2013) (“more research is needed”);17 Ex. DX0044, Cellular Phones, Am.

Cancer Soc’y (Feb. 23, 2012) (noting insufficient evidence at present and that “it is important

that the possible risk of cell phone exposure continue to be researched using strong study

methods, especially with regard to use by children and longer term use”);18 Ex. DX3115,

17 http://www.cancer.gov/cancertopics/factsheet/Risk/cellphones 18 http://www.cancer.org/cancer/cancercauses/othercarcinogens/athome/cellular-phones

16

Wireless Devices and Health Concerns, FCC Consumer Facts (2012); Ex. DX0204, No Evidence

Linking Cell Phone use to Risk of Brain Tumors, FDA Consumer Health Info. (May 2010).

Although not cited by any party, the Centers for Disease Control (“CDC”) also takes a

neutral, cautious position on the carcinogenicity of cell phone radiation. “There is no scientific

evidence that provides a definite answer to that question. Along with many organizations

worldwide, we recommend caution in cell phone use. More research is needed before we know

for sure if using cell phones causes cancer.” Frequently Asked Questions about Cell Phones and

Your Health, CDC, June 9, 2014.19 The consensus throughout the scientific community is that

the present state of the science does not permit any definitive answer to the question of whether

cell phone RF radiation causes cancer or any other adverse health effects. This is largely

because many of the studies that have been conducted so far (including INTERPHONE and

Hardell) have significant methodological shortcomings undermining their reliability, and most of

the ecological evidence does not show a rise in brain tumors coinciding with the rise in cell

phone use. Most organizations agree that there is a need for new, better, more controlled

research to determine whether cell phone radiation poses a threat to human health.20 In the

meantime, the definitive evidence of causation is just not there.21

19 http://www.cdc.gov/nceh/radiation/cell_phones._FAQ.html. CDC also states “We don’t know for sure if RF radiation from cell phones can cause health problems years later” and “It’s too soon to know for sure [if cell phones cause health problems in children].” 20 Plaintiffs argue that part of the reason the scientific research and literature is inconclusive is due to funding and sponsorship decisions by the telecommunications industry. Pl. Post-Hr’g Br. at 18-21. They argue that scientists funded by industry have a suspicious tendency to refute earlier positive findings, especially in the animal and in vitro studies. See PX0816, A. Huss, et al., Source of funding and results of studies of health effects of mobile phones use: Systematic review of experimental studies, 115 Envtl. Health Perspectives 1-4 (2007). This is a serious allegation, which the court is not in a position to assess. 21 On May 9, 2014, French researchers published results from a new case-control epidemiological study. Their study found support for “a possible association between heavy mobile phone use and brain tumours,” including glioma. Gaëlle Coureau, et al., Mobile phone use and brain tumours in the CERENAT case-control study, Occupational & Envtl. Med., May 9, 2014 (available at http://oem.bmj.com/content/early/2014/05/09/oemed-2013-101754.abstract). Plaintiffs brought the study to the court’s attention in a recent filing unrelated to the present motion. Because the study was published after the Dyas/Frye hearing and was not the subject of expert testimony at the hearing, the court is not able to assess its findings or its effect on the current state of scientific knowledge.

17

III. Legal Standard

In the District of Columbia, the court applies a three-part test when determining whether

to admit expert testimony:

(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.”

Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977) (quoting McCormick on Evidence, § 13 at

29-31 (E. Cleary, 2d ed. 1972)), cert. denied 434 U.S. 973 (1977) (emphasis in original). Even if

the proposed expert testimony satisfies the three-part test, the court will exclude the testimony if

its probative value is substantially outweighed by its potential for unfair prejudice, including the

risk of confusing or misleading the jury. Ibn-Tamas, 407 A.2d at 632; accord Girardot v.

United States, __ A.3d __, slip op. at 4-5 n. 3 (D.C. June 12, 2014); In re L.C., __ A.3d __, slip

op. at 11 (D.C. June 5, 2014).

Expert witnesses are necessary to convey relevant scientific, technical, and other

specialized knowledge to the court and the jury. Before an expert can testify, the court must

determine that the expert has the proper qualifications and would aid the jury. “Because of the

authoritative quality which surrounds expert opinion, courts must reject testimony which might

be given undue deference by jurors and which could thereby usurp the truth-seeking function of

the jury.” Smith v. United States, 389 A.2d 1356, 1359 (D.C. 1978). The proper role of the trial

judge, however, is to verify credentials and methodology, not to weigh the persuasiveness of the

testimony. Ibn-Tamas v. United States, 407 A.2d at 638; accord Benn v. United States, 978 A.2d

1257, 1274 (D.C. 2009). The trial court has broad discretion to admit or exclude expert

18

witnesses, so long as it “take[s] no shortcuts.” Ibn-Tamas, 407 A.2d at 635; (James) Johnson v.

United States, 398 A.2d 354, 363-67 (D.C. 1979).22

A. “Beyond the Ken”

Under the first prong of Dyas, the court examines the subject matter of the proposed

expert testimony to determine whether it is outside the knowledge or understanding of the

average layperson. Perkins v. Hansen, 79 A.3d 342, 344 n. 7 (D.C. 2013) (expert testimony

appropriate when subject matter is “‘beyond the ken’ of the average lay juror”). Even if the

subject matter is appropriate for expert testimony, the court must confine the expert to opinions

that do not invade the province of the jury to decide the ultimate issues of fact in the case. Ibn-

Tamas, 407 A.2d at 632.

B. Qualifications and Aid to the Factfinder

Under the second prong of Dyas, the proponent of the testimony must establish the

expert’s qualifications and show that the opinion the expert offers is likely to aid the jury in its

22 The court has reviewed pre-hearing briefs, four weeks of expert testimony, thousands of pages of exhibits, post-hearing briefs, various treatises on expert testimony and admissibility, and dozens of trial court and appellate decisions, including, inter alia: Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Old Chief v. United States, 519 U.S. 172 (1997); Daubert v. Merrill Dow Pharms. Inc., 509 U.S. 579 (1993); (William) Johnson v. United States, 683 A.2d 1087 (D.C. 1996) (en banc); In re Melton, 597 A.2d 892 (D.C. 1991) (en banc); Girardot v. United States, __ A.3d __ (D.C. June 12, 2014); In re L.C., __ A.3d __ (D.C. June 5, 2014); Perkins v. Hansen, 79 A.3d 342 (D.C. 2013); Pres. & Dirs. of Georgetown College v. Wheeler, 75 A.3d 280 (D.C. 2013); Wilson Sporting Goods v. Hickox, 59 A.3d 1267 (D.C. 2013); Minor v. United States, 57 A.3d 406 (D.C. 2012); Robinson v. United States, 50 A.3d 508 (D.C. 2012); Pettus v. United States, 37 A.3d 213 (D.C. 2012); (Ricardo) Jones, 27 A.3d 1130 (D.C. 2011); (John) Jones, 990 A.2d 970 (D.C. 2010); Benn v. United States, 978 A.2d 1257 (D.C. 2009); Comford v. United States, 947 A.2d 1181 (D.C. 2008); Roberts v. United States, 916 A.2d 922 (D.C. 2007); United States v. Jenkins, 887 A.2d 1013 (D.C. 2005); Haidak v. Corso, 841 A.2d 316 (D.C. 2004); Bahura v. S.E.W. Investors, 754 A.2d 928 (D.C. 2000); Nixon v. U.S., 728 A.2d 582 (D.C. 1999); United States v. Porter, 618 A.2d 629 (D.C. 1992); Allen v. United States, 603 A.2d 1219 (D.C. 1992); Street v. Hedgepath, 607 A.2d 1238 (D.C. 1992); Coates v. United States, 558 A.2d 1148 (D.C. 1989); (Nathaniel) Jones v. United States, 548 A.2d 35 (D.C. 1988); Sponaugle v. Pre-Term, Inc., 411 A.2d 366 (1980); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979); Middleton v. United States, 401 A.2d 109 (D.C. 1979); (James) Johnson v. United States, 398 A.2d 354 (D.C. 1979); Smith v. United States, 389 A.2d 1356 (D.C. 1978); Dyas v. United States, 376 A.2d 827 (D.C. 1977), cert. denied 434 U.S. 973 (1977); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); United States v. Frazier, 387 F.3d 1244, (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1063 (2005); United States v. McBride, 786 F.2d 45 (2nd Cir. 1986); Western Indus., Inc. v. Newcor Can., Ltd., 739 F.2d 1198 (7th Cir. 1984); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir. 1977); In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2nd Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

19

search for the truth. The expert must possess specialized knowledge derived from education and

research, practical experience, or a combination of the two. McCormick on Evidence, § 13 at 70

(6th ed. 2006). While certain subjects may require a member of a particular profession,

specialization within the profession is generally not required. Id. For example, a medical doctor

can ordinarily testify as an expert on any medical matter, even if it is not within her specialty. In

re Melton, 597 A.2d 892, 897 (D.C. 1991) (en banc) (citing Baerman v. Reisinger, 363 F.2d 309,

310 (D.C. Cir. 1966)). The adequacy of the training and specialization of the witness generally

goes to the weight the jury should give to the expert’s testimony, not to admissibility. Id. at 897-

98. In addition, the expert must show that his or her opinion “will probably aid the trier in his

search for truth.” Dyas, 376 A.2d at 832 (emphasis in original). “Implicit in that requirement is

that the expert have a ‘reliable basis for [his] theory’ steeped in ‘fact or adequate data,’ as

opposed to offering ‘a mere guess or conjecture.’” Perkins, 79 A.3d at 345 (quoting Haidak v.

Corso, 841 A.2d 316, 327 (D.C. 2004)); accord Robinson v. United States, 50 A.3d 508, 523

(D.C. 2012) (court may exclude “outright speculation”).

C. The Frye Test

The third part of the Dyas test asks the question – first articulated in Frye v. United

States, 293 F. 1013, 1014 (D.C. Cir. 1923) – whether the expert used a generally accepted

methodology in reaching his or her opinion. The Frye test “does not ask – or even permit – the

court to ascertain scientific validity for itself.” The New Wigmore: A Treatise on Evidence, § 5.3

at 161 (2004). Instead, “satisfaction of the third Dyas criterion begins – and ends – with a

determination of whether there is a general acceptance of a particular scientific methodology, not

an acceptance, beyond that, of particular study results based on that methodology.” Ibn-Tamas,

407 A.2d at 638; accord Pres. & Dirs. of Georgetown College v. Wheeler, 75 A.3d 280, 291

20

(D.C. 2013) (the witness’ methodology, not conclusion, is the focus of the inquiry); Wilson

Sporting Goods Co. v. Hickox, 59 A.3d 1267, 1272 (D.C. 2013); Minor v. United States, 57 A.3d

406, 420-21 (D.C. 2012); (John) Jones v. United States, 990 A.2d 970, 977 (D.C. 2010); Benn,

978 A.2d at 1274-75 (admissibility standard relies on adversarial system to guard against weak

evidence).23

The Frye test focuses on whether the expert’s methodology has been “generally

accepted” within the pertinent field. The expert must be able to identify the methodology in

question and must explain what he or she did to enable the court to determine that the expert

actually used the methodology. See Wilson Sporting Goods, 59 A.3d at 1273 (expert adequately

“explained his reasoning, step by step” even if he “did not fully explain every aspect”). A

scientific method requires more than just “accumulation of observations and intuitively plausible

deductions” – there must be a hypothesis, systematic data collection, careful documentation, and

structured analysis. (John) Jones, 990 A.2d at 980; see also Wilson Sporting Goods, 59 A.3d at

1273 (“courts should exclude expert testimony that consists of mere assertions”). It is not

sufficient for an expert to say, “I used the XYZ Method” without explaining the actual steps he

took and showing that he used the XYZ Method. However, at the admissibility stage, the expert

does not need to show flawless execution or generally accepted conclusions. Those are

questions for the factfinder. United States v. Porter, 618 A.2d 629, 636 (D.C. 1992) (“Any

failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of

inquiry, but does not raise an issue which implicates Frye.”); see also Perkins, 79 A.3d at 345-46

23 The defendants have attempted to broaden the scope of the Frye inquiry. In their pre- and post-hearing briefs, as well as during the Frye hearing itself, defendants repeatedly challenged plaintiffs’ experts on the ground that their conclusions and opinions are not generally accepted, equated holding a minority viewpoint with a failure to satisfy the Frye test, and argued that a flawed execution of an accepted methodology constituted a failure to use a generally accepted methodology. The Frye standard calls for a more limited inquiry; Frye is satisfied if the expert used a generally accepted methodology, even if the expert’s execution of the methodology was flawed or the conclusion he reached is not generally accepted.

21

(expert’s failure to consider relevant data in his analysis does not bar admission). Two qualified

experts using the same generally accepted methodology can draw different inferences from the

data, and both would ordinarily be permitted to testify under Frye. The court’s proper and

limited role is to ensure that the expert has collected, analyzed, and presented the data in

accordance with a methodology, and then to determine if that methodology is generally accepted.

Determining whether a particular methodology is generally accepted by other experts in

the relevant field is a categorical inquiry applying to all potential experts using that

methodology. General acceptance means that the answer “does not vary according to the

circumstances of each case.” (Nathaniel) Jones v. United States, 548 A.2d 35, 40 (D.C. 1988)

(quoting Reed v. State, 391 A.2d 364, 367 (Md. 1978)). The Frye test applies only to novel

techniques and methodologies. Minor, 57 A.3d at 419; Pettus v. United States, 37 A.3d 213, 217

(D.C. 2012); (Ricardo) Jones v. United States, 27 A.3d 1130, 1137 (D.C. 2011). Once a

methodology has been generally accepted, it is “presumptively reliable,” and otherwise qualified

experts using it should ordinarily be admitted. Street v. Hedgepath, 607 A.2d 1238, 1244 (D.C.

1992); accord Minor, 57 A.3d at 419 n. 8; (Ricardo) Jones, 27 A.3d at 1136; (Nathaniel) Jones,

548 A.2d at 39-40.

Moreover, general acceptance does not require unanimity; the issue is consensus versus

controversy. (Ricardo) Jones, 27 A.3d at 1136; (Nathaniel) Jones, 548 A.2d at 42. This means

there must be majority, though not necessarily universal, approval. See Giannelli &

Imwinkelried, Scientific Evidence, § 1.06(c) (5th ed. 2012). However, “[i]t is not the court’s role

to resolve disputes within the scientific community. The very existence of a dispute precludes

admission.” United States v. Jenkins, 887 A.2d 1013, 1022 (D.C. 2005). A novel methodology

will fail the Frye test if there are scientists in either number or experience who publicly oppose

22

it. Minor, 57 A.3d at 420; Porter, 618 A.2d at 634. The party offering the novel technique must

prove general acceptance by a preponderance of the evidence. Pettus, 37 A.3d at 217; Porter,

618 A.2d at 633; Scientific Evidence, § 1.06 at 27. In determining general acceptance, the court

may survey scientific publications and prior judicial decisions and may receive testimony from

scientists as to the degree of acceptance of the methodology in the relevant scientific community.

Benn, 978 A.2d at 1278; (Nathaniel) Jones, 548 A.2d at 41-42; McCormick on Evidence, § 203

at 828-29; Scientific Evidence, § 1.06 at 27.

Once the court determines that the expert’s methodology has been suitably identified and

is generally accepted, the Frye inquiry ends. E.g., (Ricardo) Jones, 27 A.3d at 1136; Ibn-Tamas,

407 A.2d at 638. Because the Frye test is not applied on a case-by-case basis, and because

generally accepted methodologies are presumptively reliable, the question of whether an expert

used a particular generally accepted methodology correctly is not at issue when determining the

expert’s admissibility. Instead, the opposing party may challenge the application of the

methodology by cross-examination designed to convince the jury to disregard or give little

weight to the expert’s opinion. Minor, 57 A.3d at 419 n. 8; Pettus, 37 A.3d at 218; (Ricardo)

Jones, 27 A.3d at 1136; Coates v. United States, 558 A.2d 1148, 1152 (D.C. 1989); Ibn-Tamas,

407 A.2d at 638 n. 23. In general, “relevant, unprivileged evidence should be admitted and its

weight left to the factfinder. . . . [Testimony] may be countered not only as erroneous in a

particular case but also as generally so unreliable that it should be ignored.” In re Melton, 597

A.2d at 899; see also McCormick on Evidence, § 13 at 833 (“Any relevant conclusions supported

by a qualified expert witness should be received unless there are distinct reasons for exclusion.”).

23

D. Rule 403

The District of Columbia has adopted Federal Rule 40324 as the applicable rule of

evidence in this jurisdiction. (William) Johnson v. United States, 683 A.2d 1087, 1099 (D.C.

1996) (en banc). Even if proposed expert testimony satisfies the Dyas/Frye criteria, the trial

court has discretion to exclude the testimony if its probative value is substantially outweighed by

the danger of unfair prejudice, including the risk of confusing or misleading the jury. See, e.g.,

Ibn-Tamas, 407 A.2d at 632; Middleton v. United States, 401 A.2d 109, 131 (D.C. 1979) (trial

court has discretion to exclude an expert if the testimony would cause undue prejudice).

Evidence will be unfairly prejudicial if it creates an “undue tendency to suggest decision on an

improper basis.” Comford v. United States, 947 A.2d 1181, 1187 (D.C. 2008) (citing Old Chief

v. United States, 519 U.S. 172, 180 (1997)); see also Dollar v. Long Mfg., N.C., Inc., 561 F.2d

613, 618 (5th Cir. 1977) (prejudice not “unfair” simply because evidence is adverse to opposing

party). The Rule 403 standard is a lenient one “admitting as much relevant evidence as it is

reasonable and fair to include.” (William) Johnson, 683 A.2d at 1100. “Probative evidence

should not be excluded because of crabbed notions of relevance or excessive mistrust of juries.”

Allen v. United States, 603 A.2d 1219, 1224 (D.C. 1992) (citation omitted); accord Comford,

947 A.2d at 1187. But where the probative value of the testimony is weak and the potential for

unfair prejudice is strong, the court’s discretion under Rule 403 is properly invoked to protect the

fairness of the proceedings.

Expert testimony, because of its powerful potential to mislead or confuse juries, can be

excluded under Rule 403 even if it would otherwise meet the standard for admissibility. United

States v. Frazier, 387 F.3d 1244, 1263 (11th Cir. 2004) (en banc) (trial court has more discretion

24 Federal Rule of Evidence 403 states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

24

to exclude experts than lay witnesses because “expert testimony may be assigned talismanic

significance in the eyes of lay jurors”), cert. denied, 544 U.S. 1063 (2005); see also Middleton,

401 A.2d at 131; Smith, 389 A.2d at 1359. The more “imprecise and unspecific” an expert’s

proffered opinion is, the greater the risk that it will confuse or mislead the jury. Frazier, 387

F.3d at 1266. However, “[t]he mere fact that there may be conflicting testimony by experts is

not a sufficient basis” to find a risk of jury confusion and exclude the experts under Rule 403.

United States v. McBride, 786 F.2d 45, 51 (2nd Cir. 1986); see also In re L.C., __ A.3d __, slip

op. at 15 (trial judge may not “exclude relevant and otherwise admissible expert testimony

merely because it is against the expected weight of the evidence.”) (citing Western Indus., Inc. v.

Newcor Can., Ltd., 739 F.2d 1198, 1202 (7th Cir. 1984)).

In assessing the application of Rule 403 to expert testimony, the court is guided in part by

Judge Weinstein’s thorough analysis in In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp.

1223, 1245 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2nd Cir. 1987), cert. denied, 487 U.S. 1234

(1988).25 In that case, Vietnam War veterans alleged that exposure to the herbicide Agent

Orange caused various health problems. Judge Weinstein ruled that expert testimony should be

excluded under Rule 403 if it is based on an inadequate scientific foundation because of an

unacceptable risk that it would confuse the jury. 611 F. Supp. at 1243 (satisfaction of Rule 702

does not equate to satisfaction of Rule 403).26 As Judge Weinstein aptly stated: “If the

underlying data is so lacking in probative force and reliability that no reasonable expert could

base an opinion on it, an opinion which rests entirely upon it must be excluded. The jury will not

be permitted to be misled by the glitter of an expert’s accomplishments outside the courtroom.”

25 It is worth noting that Judge Weinstein literally wrote the book on the rules of evidence. See Jack B. Weinstein & Margaret A. Berger, WEINSTEIN’S FEDERAL EVIDENCE (Joseph M. McLaughlin ed., 2d. ed. 2010). 26 Agent Orange was not in the same procedural posture as this case. Judge Weinstein was considering a motion for summary judgment, and the causation issues before him concerned both general and specific causation. In the present case, only admissibility of expert testimony on general causation is ripe for consideration.

25

611 F.Supp. at 1245; see also In re Melton, 597 A.2d at 903 (quoting this passage from Agent

Orange).27 This is especially true for disease causation issues. Agent Orange, 611 F.Supp. at

1249-50 (discussing experts’ failure to properly assess epidemiological studies). After a

thorough analysis of Rule 403 case law, Judge Weinstein excluded two experts whose testimony

created a strong probability for jury confusion because of its “false aura of scientific infallibility,

coupled with low probative value.” 611 F.Supp. at 1255-56. The experts had low probative

value in part because the epidemiological studies they relied upon were “virtually useless in

establishing causation.” 611 F.Supp. at 1238 28

E. Frye versus Daubert

The District of Columbia does not follow Daubert, which governs the admissibility of

expert testimony in the federal courts and most states.29 See Pettus, 37 A.3d at 217 n.4 (Frye

prevails until Court of Appeals en banc decides to adopt Daubert); (John) Jones, 990 A.2d at

982 n. 38; Benn, 978 A.2d at 1269 n.44. However, the scientific dispute in this case illustrates

that the choice of one approach over the other can be outcome determinative. The opinions

offered in this case that may be admissible under the District’s “methodology only” application

of Frye would almost certainly be excluded under Daubert because the carcinogenicity of cell

27 In this section of the opinion, Judge Weinstein is discussing Rule 703, but the point applies equally to Rule 403. 28 Although Judge Weinstein ultimately excluded the two experts, he found that they had satisfied the methodology requirements of pre-Daubert Federal Rule of Evidence 702. The experts’ “general scientific technique consist[s] of making an inference from epidemiologic data and animal studies. . . [that] an affliction [is] causally connected to Agent Orange exposure. This technique has been accepted by a sufficient number of courts to allow judicial notice to be taken of its general acceptance.” 611 F.Supp. at 1243 (citations omitted). Federal Rule of Evidence 702 was subsequently amended to conform to the Daubert rule. 29 The so-called Daubert rule is actually from a trilogy of decisions, beginning with Daubert v. Merrill Dow Pharms. Inc., 509 U.S. 579 (1993), and continuing through Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Approximately forty states have adopted the federal rules of evidence, which incorporate Daubert in Rule 702, or have explicitly decided to follow the Daubert rule. Some of those jurisdictions have hybrid regimes and others have adopted Daubert, but not necessarily its successors, Joiner and Kumho Tire. Scientific Evidence, §1.11. It appears that a small minority of jurisdictions, including the District, continue to follow Frye, at least with respect to novel scientific discoveries or novel methodologies. The District’s rule, focusing on methodology only, is perhaps the most orthodox approach. Id. at §§1.06(c), 1.11. Some Frye jurisdictions scrutinize the general acceptance of the underlying science as well as methodology. Id. at §1.06(c).

26

phones, vel non, is such an unsettled science. In a toxic tort case like this one, Daubert tends to

insulate manufacturers from products liability by excluding expert testimony on causation until

the scientific community has reached a clear consensus.30 Daubert jurisdictions typically

“scrutinize reliability more carefully and appl[y] stricter standards.” Lloyd Dixon & Brian Gill,

Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the

Daubert Decision, RAND Inst. for Civ. Just., xiv-xx (2001);31 Scientific Evidence, §1.08(h). The

Frye test tends to make it easier for causation experts to get before the jury, even when they are

in the minority and the underlying science on causation is still quite controversial. See, e.g.

Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 Am. J. Pub. Health S59-S65

(Jul. 27, 2004) (discussing the disproportionate impact of Daubert on toxic tort plaintiffs versus

defendants);32 Margaret A. Berger & Aaron D. Twerski, Uncertainty and Informed Choice:

Unmasking Daubert, 104 Mich. L. Rev. 257, 265-67 (2005) (discussing difficulty of admitting

epidemiological evidence after Joiner). Put another way – and at the risk of over-simplification –

if a reliable, but not yet generally accepted, methodology produces “good science,” Daubert will

let it in, and if an accepted methodology produces “bad science,” Daubert will keep it out;

conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces

“good science,” it will usually be excluded, but if an accepted methodology produces “bad

science,” it is likely to be admitted. 33

For the above reasons, if cell phones do not cause brain cancer (a question the court is not

called upon to answer), exclusion of causation experts under a Daubert standard would protect 30 For better or for worse, Daubert also obliges judges to become “amateur scientists” in order to exercise their gatekeeping function, Daubert, 509 U.S. at 600-601 (Reinquist, C.J. concurring and dissenting); under Frye a judge does not need to understand the underlying science to determine admissibility. (John) Jones, 990 A.2d at 981. 31 Available at http://www.rand.org/content/dam/rand/pubs/monograph_reports/2005/MR1439.pdf. 32 Available at http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2004.044701. 33 However, the differences between Frye and Daubert vary greatly by jurisdiction. “‘The choice is not between easy Frye and difficult Daubert; it is between strict and lax scrutiny.’” Scientific Evidence, §1.11 (quoting M. Redmayne, Expert Evidence and Criminal Justice 113 (2001).

27

defendants from erroneous decisions on liability and enormous, unnecessary, litigation costs. On

the other hand, if cell phones do cause brain cancer, Frye increases the likelihood that cancer

victims and their families can receive just compensation, without having to wait until the

scientific community reaches consensus. Indeed, if cell phone radiation is carcinogenic, one

would hope that courts would find a way to recognize that fact before a “phenomenal increase in

the number of deaths attributed to cancer . . . provides one of the most striking changes in the

pattern of mortality,” and not forty years later. Richard Doll and A. Bradford Hill, Smoking and

Carcinoma of the Lung: Preliminary Report, Brit. Med. J. 2(4682), 739 (Sept. 30, 1950).34

There is another limitation of the Frye standard in a case such as this. Proving causation

depends – first and foremost – on epidemiology, which is largely an inductive, not deductive,

science. Epidemiology depends on drawing inferences from observed conditions, both in nature

and in the laboratory. There is nothing novel about the methodologies that are generally

accepted in the field of epidemiology. Although they go by different names, most accepted

methodologies rely heavily on, and share much in common with, Sir Austin Bradford Hill’s

famous nine causation factors. Ex. PX0107, A. Bradford Hill, The Environment and Disease:

Association or Causation?, Sec. of Occupational Med., Proc. of the Royal Soc’y of Med., 7-12

(1965).35 Whether an epidemiologist uses a literature review, or a weight of the evidence

analysis, or directly applies the Bradford Hill criteria, all are attempting to answer the same

question: does an exposure to a certain agent cause a particular biological effect in humans?

Absent a known biological mechanism, this is often an attempt to know what cannot be proven

definitively, and it is not unusual for competent epidemiologists to view the evidence, using the

34 Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2038856/pdf/brmedj03566-0003.pdf. 35 The Bradford Hill factors are: Strength, Consistency, Specificity, Temporality, Biological Gradient, Plausibility, Coherence, Experiment, and Analogy.

28

same accepted methodology, and come to opposite conclusions on causation, particularly in

close cases.

Frye’s targeted focus on the general acceptance of methodology works well enough for

the deductive sciences: forensics, mathematics, applied physics, chemistry, and the like. But the

test is not a good gatekeeper for inductive sciences such as epidemiology or psychology.

Deductive reasoning employs fixed, quantifiable processes which, if applied correctly, should

produce the same results regardless of the expert. Inductive reasoning, on the other hand,

necessarily requires the subjective judgment of the expert to infer from premises to conclusions.

In a litigation setting, it is difficult to separate the legitimate exercise of subjective judgment

from the illegitimate advocacy of a biased, pre-determined opinion.

The problem with Frye in the present context – at least as applied here, where an

accepted methodology is the be all and end all of admissibility – is that it does not distinguish

between close cases and extreme cases. Under Dyas/Frye, if the methodology is accepted, the

evidence generally comes in, and we trust the jury to decide based on competing experts on

either side of the causation divide. Even if 99 out of 100 scientists come out on one side of the

causation inference, and only one comes out on the other, as long as the one used a “generally

accepted methodology,” Frye allows the lone expert to testify for one party and one of the other

ninety-nine to testify for the opposing party. If the jury finds the lone expert more persuasive,

that party prevails, even though “in the real world” the evidence is overwhelming that the case

should come out the other way. At least where the science is as fraught with doubt as inferences

of causation in epidemiology can be, Frye does not seem like the best way to ensure a just

result.36

36 When first articulated in Dyas, the third factor appeared to address “bad” science with the statement “expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion

29

One last preliminary observation may be in order. If there is even a reasonable

possibility that cell phone radiation is carcinogenic, the time for action in the public health and

regulatory sectors is upon us. 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 question of admissibility before the court is a narrow one, and

the court is bound by the precedents applying Frye unless and until an en banc decision of the

Court of Appeals says otherwise.

IV. Plaintiff’s Proposed Expert Witnesses

A. Dr. Shira Kramer

i. Field and Opinion “Beyond the Ken”

Dr. Shira Kramer is an epidemiologist. She studies the occurrence, patterns, and

causation of disease in human populations. To determine disease causation, epidemiologists

review multiple sources of scientific data coming from human case-control studies, human

cohort studies, incidence data (“ecological analyses”), and in vitro and in vivo laboratory

to be asserted even by an expert.” 376 A.2d at 832 (internal quotations omitted) (emphasis added). Under that formulation, where the science is inconclusive, outlying minority views claiming science is capable of providing an answer could be excluded. However, subsequent case law quickly moved away from this broad language and restricted the trial court’s inquiry to the narrow review of methodology under the Frye test. See Ibn-Tamas, 407 A.2d at 638 (“In summary, satisfaction of the third Dyas criterion begins – and ends – with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.”); accord Nixon v. U.S., 728 A.2d 582, 588 n. 14 (D.C. 1999).

30

experiments. Dr. Kramer offers her opinion, “to a reasonable degree of scientific certainty, that

exposure to radiation from cellular phones is causally associated with increased risks of glioma

and acoustic neuroma.” Kramer Exp. Rpt. at 11. Dr. Kramer’s field of expertise and her opinion

are beyond the ken of a layperson, and she therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Kramer received a masters degree in human genetics in 1975 and a PhD in

epidemiology in 1979 from Johns Hopkins School of Public Health. From 1978 to 1984, she

was an assistant professor of epidemiology at the University of Pennsylvania School of

Medicine, where she taught courses and co-authored a textbook on epidemiology. During this

same time period Dr. Kramer was also an epidemiologist at the Children’s Cancer Research

Center at the Children’s Hospital of Philadelphia. She conducted research on childhood cancers

using incidence data and case-control studies of potential risk factors. Since 1984, Dr. Kramer

has worked for what is now known as Epidemiology International, Inc., a research and

consulting firm she founded. Epidemiology International conducts epidemiological studies on a

wide variety of diseases, including cancer, for clients in industry, academic institutions, federal

and state agencies, and professional trade organizations. Dr. Kramer’s past research has been

funded by the National Institutes of Health, the EPA, the CDC, the FDA, the Department of

Defense, and the State of Maryland, among others. She has been qualified to testify as an expert

in epidemiology in both Frye and Daubert jurisdictions.

Defendants do not challenge Dr. Kramer’s qualifications, and the court does not doubt

her general competency. See Haidak v. Corso, 841 A.2d 316, 327 (D.C. 2004). While Dr.

Kramer has not done any research specifically focused on glioma, acoustic neuroma, or cell

phone radiation, an otherwise competent epidemiologist is qualified to testify on any matter

31

related to the field of epidemiology. See In re Melton, 597 A.2d at 897-98 (adequacy of

specialization goes to weight, not admissibility). Dr. Kramer’s proffered testimony satisfies the

second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Kramer testified that she reviewed the relevant scientific literature and sifted it

through a weight of the evidence (“WOE”) analysis. There is such a thing as the WOE

methodology, and in certain scientific circles it is generally accepted. Indeed, IARC uses a form

of the WOE methodology in producing its Monographs. However, as Dr. Kramer plainly

demonstrated at the Frye hearing, she did not faithfully or rigorously apply a true WOE

methodology or, for that matter, any other generally accepted methodology. The preponderance

of the evidence does not support Dr. Kramer’s satisfaction of the third requirement of Dyas.

Before the court may determine whether a methodology is generally accepted, an expert

must identify her methodology and establish that she actually did what she said she did. The

expert must follow a scientific method, starting from a neutral position, by developing a

hypothesis, systematically collecting relevant data, and subjecting all of the data – both that

which supports the hypothesis and that which opposes it – to a carefully documented structured

analysis. See (John) Jones, 990 A.2d at 980. The expert must “explai[n] his reasoning, step by

step” but need not “fully explain every aspect.” Wilson Sporting Goods, 59 A.3d at 1273. The

preponderance of the evidence in the record makes clear that Dr. Kramer did not proceed in this

manner. Dr. Kramer does not fail the Dyas/Frye test because her conclusions lack general

acceptance or because she applied WOE, but did so poorly. Rather, the evidence and testimony

at the Frye hearing show that what Dr. Kramer actually did to reach her conclusions was so far

removed from what is generally accepted as a true WOE analysis that her methodology amounts

32

to little more than a subjective selection of sources and data to support her pre-determined

causation opinion, to the exclusion of all contrary evidence, which is not WOE or any other

generally accepted scientific methodology.

In scientific parlance, WOE sometimes refers to a methodology for answering scientific

questions such as causation, but at other times it is a loose term that can mean different things in

different contexts. It requires a concrete definition when used as a scientific methodology. Ex.

DX3496, Douglas L. Weed, Weight of Evidence: A Review of Concept and Methods, 25 Risk

Analysis 1545 (2005). Dr. Sheldon Krimsky, who has been cited favorably by both plaintiffs

and defendants as an authority on scientific methods, describes WOE as “a process or method in

which all scientific evidence that is relevant to the status of a causal hypothesis is taken into

account.” Ex. DX0091, Sheldon Krimsky, The Weight of Scientific Evidence in Policy and Law,

95 Am. J. Pub. Health, S129-S136, S129 (2005) (emphasis added). Many governmental bodies,

such as the EPA, NCI, IARC, and the U.S. National Toxicology Program use some variant of the

WOE method in their epidemiological evaluations. Kramer Exp. Rpt. at 25; Hr’g Tr. 1904:19-

1905:2 Dec. 18, 2013. When used in the manner of these agencies, WOE is a generally accepted

methodology. But because of the frequent lack of specificity and transparency as to what is

included in a WOE analysis, proof of its rigor in any given case requires more than a bald

assertion by the expert that “I used the WOE method.” See Krimsky at S130. “Without an

explication of how evidence is ‘weighed’ or ‘weighted,’ the claim WOE seems to be coming out

of a ‘black box’ of scientific judgment.” Id. at S131. Thus, unlike someone claiming to have

employed the Bradford Hill criteria, conducted a literature review, or used another methodology

that is not particularly amorphous, an expert asserting that she used the WOE method needs to

supply more detail as to what her methodology entails.

33

In her report, Dr. Kramer writes that “[a] WOE analysis is the formal review and

synthesis of a body of literature and data about a subject” that “evaluates trends in the literature

based on consistency, biological plausibility, and convergence towards a particular conclusion.”

Kramer Exp. Rpt. at 10. “A WOE analysis utilizes evidence provided from a multitude of

disciplines in order to assess causation, and causal conclusions are formed on the basis of the

collective weight of the evidence.” Id. at 23. Dr. Kramer reiterates again and again in her report

that an investigator must use her best judgment when considering the weight of all of the

evidence, the totality of the evidence, the convergence of the evidence, etc. “Inferences on

disease causation are made on the basis of a logical deductive process that makes use of a mosaic

of evidence, yet is not dictated by any single piece of evidence.” Id. According to Dr. Kramer, a

WOE analysis should examine all of the evidence from medicine, toxicology, epidemiology, and

other sciences, which come in the form of animal studies, clinical case reports, randomized

controlled trials, and observational epidemiological studies, among others. Id. However, WOE

does not require a “specific weighting or ranking scheme” but instead ultimately comes down to

a “subjective interpretation[n] of ‘reality’ implied by various lines of scientific evidence.” Id. at

24.

In her report, Dr. Kramer states that she conducted a “systematic search of the

epidemiological literature” as well as “relevant review articles and key primary research studies

on the range of adverse effects of EMF radiation, particularly from cellular phones, in humans,

animal models, and in genotoxicity and in vitro assays.” Id. at 27. She reviewed

epidemiological studies with positive, negative, and null association findings. Id. at 28. These

included case-control studies done by INTERPHONE and Hardell, cohort studies, pooled and

meta-analyses, and “ecological studies” of incidence data. Id. at 28-32. So far, so good.

34

But despite claiming to have “reviewed” all of the literature in all the relevant fields, Dr.

Kramer supports her opinion almost exclusively with the INTERPHONE and Hardell

epidemiological studies. Hr’g Tr. 2253:1-2254:3 Dec. 19, 2013. She testified that the

heightened odds ratios from Hardell and portions of the INTERPHONE data show that cell

phone radiation causes or contributes to the development of glioma and acoustic neuroma.37 Dr.

Kramer drew a sharp distinction between the publications she “reviewed” and the publications

upon which she “relied” for her opinions.

Dr. Kramer disregarded or “did not rely on” animal or in vitro studies to support her

opinion, Hr’g Tr. 2081:23-2082:19 Dec. 18, 2013, despite testifying and writing in her report

that they are an important part of a WOE analysis in that they help determine biological

plausibility. E.g. Kramer Exp. Rpt. at 36; Hr’g Tr. 2068:8-2069:1 Dec. 18, 2013. She testified

that biological plausibility is unnecessary if the epidemiological evidence is sufficient, so she did

not need to examine the largely negative data from the animal studies in depth. Hr’g Tr.

2082:20-2084:6 Dec. 18, 2013.

Dr. Kramer disregarded or “did not rely” on the reviews and reports of major bodies such

as ICNIRP, HPA, or IEEE, Hr’g Tr. 2155:23-25, 2191:24-2192:22, 2258:16-2263:1 Dec. 19,

2013, despite testifying and writing in her report that such reviews are valuable to a WOE

analysis. E.g. Kramer Exp. Rpt. at 28; Hr’g Tr. 2154:13-2156:11 Dec. 19, 2013. Dr. Kramer

said that in general she thought it was more important to rely on primary data than review

articles.

Dr. Kramer disregarded or “did not rely” on trends in the incidence data, Hr’g Tr. 2118:9-

2122:12, despite writing in her expert report that such ecological studies are helpful

epidemiological data. Kramer Exp. Rpt. at 27-32. One of the many difficulties with any opinion 37 Dr. Kramer testified that she thought that parts of INTERPHONE’s data were unreliable and other parts reliable.

35

that cell phone radiation can cause or promote brain cancer is that the worldwide incidence data

for brain cancer are essentially flat during the same period when cell phone use across the globe

has skyrocketed (IARC estimated 4.6 billion subscribers in 2009). Some causation experts have

speculated that the incidence data remain flat because the latency period for glioma and acoustic

neuroma may be so long (perhaps as long as thirty to forty years from exposure), there has not

been enough time for the increased cancers from cell phones to show up in the data. Dr. Kramer,

however, went so far as to testify that even if incidence data still showed no increase in brain

cancer rates by 2040, she would reject the incidence data before she would question the

correctness of her opinion that cell phones cause brain cancer. Hr’g Tr. 1934:2-1935:11 Dec. 18,

2013. 38 This does not accord with the WOE methodology, which seeks to “assemble a picture

that is consistent with the majority of the clear and definite . . . and most relevant . . . evidence.”

Kramer Exp. Rpt. at 23-24. Likewise, Dr. Kramer disregarded or “did not rely on” meta-

analyses and a host of other epidemiological studies and reviews. Hr’g Tr. 2210:3-2213:3 Dec.

19, 2013.

Dr. Kramer did not conduct a weight of the evidence analysis of the cancer risk from cell

phones. Instead she looked at the broad range of data, picked out the pieces she preferred, and

found convenient reasons to ignore the rest. Had Dr. Kramer actually conducted a WOE analysis

similar to those undertaken by EPA or IARC, she would have followed a generally accepted

methodology. But what she actually did is far removed from what those organizations do.

Because plaintiffs failed to demonstrate that Dr. Kramer used any describable methodology at

38 Dr. Kramer testified that she thought the incidence data were uninformative and speculated that some other factor might be “masking” the rise in brain cancer rates. But she could not identify any such masking agent. “[A] mere guess or conjecture” unsupported by adequate data will not be helpful to the jury. Perkins, 79 A.3d at 345 (quoting Haidak, 841 A.2d at 327).

36

all, much less a generally accepted methodology, her proffered testimony fails to satisfy the Frye

test and the third requirement of Dyas.

iv. Probative vs. Prejudicial

In addition to concluding that Dr. Kramer’s testimony does not satisfy the Dyas/Frye test,

the court would also exclude her testimony under Rule 403, because the probative value of her

testimony is substantially outweighed by the risk of misleading and confusing the jury. Fed. R.

Evid. 403; (William) Johnson, 683 A.2d at 1099; Ibn-Tamas, 407 A.2d at 832; Frazier, 387 F.3d

at 1263. In Agent Orange, Judge Weinstein ruled that a causation expert should be excluded

under Rule 403 when the studies the expert relies upon are “virtually useless in establishing

causation” because they lack any significant probative force. Agent Orange, 611 F.Supp. at

1238.39

Dr. Kramer relies almost entirely on the results of the INTERPHONE and Hardell

studies, while brushing aside the mountains of other empirical data and analyses (most of which

cast doubt on her fundamental conclusions). See Hr’g Tr. 2253:1-2254:3 Dec. 19, 2013. But

scientists and agencies have roundly criticized the methodologies of both the Hardell and

INTERPHONE case control studies. Plaintiffs tend to cite criticisms of INTERPHONE (which

generally showed no association between cell phone radiation and brain cancer), while

defendants tend to cite criticisms of Hardell (which showed some positive associations between

cell phone radiation and brain cancer). Both camps admit that both sets of studies suffered from

recall bias, selection bias, and participation bias. Hardell is criticized for producing results that

have not been validated by other researchers and that are out of step with most other

epidemiological evidence. INTERPHONE is criticized for methodological flaws producing a

39 In Agent Orange, the experts relied primarily on animal studies and epidemiological studies of industrial accidents to extrapolate to causation in humans, while ignoring an extensive epidemiological literature with negative or inconclusive results. Agent Orange, 611 F.Supp. at 1230-34, 1237-38.

37

“bias toward the null,” with critics pointing out that some of the INTERPHONE data could be

interpreted to suggest that cell phone radiation has a protective effect against cancer, which is

biologically implausible. Although IARC described Hardell and INTERPHONE as “the most

robust evidence on risk of tumours of the brain associated with wireless-phone use,” IARC

Monograph at 409, its ultimate conclusion was that cell phone radiation could only be classified

as a “possible carcinogen,” based on the “limited evidence” to support causation. Every other

major health agency or organization that has examined the issue has likewise concluded that the

epidemiological evidence is inconclusive at best. Simply put, Hardell and INTERPHONE are of

such limited probative force and reliability that a reasonable expert could not infer causation

based solely on those sources. See Agent Orange, 611 F.Supp. at 1245. Dr. Kramer’s testimony,

relying almost entirely on these two sources, lacks substantial probative value.

Moreover, the risk that Dr. Kramer’s testimony would mislead or confuse the jury is

high. Because of the “talismanic significance” and “authoritative quality” that surrounds expert

opinions, the court must be vigilant to prevent jury confusion caused by misleading testimony.

Smith, 389 A.2d at 1359; Frazier, 387 F.3d at 1263; accord Ibn-Tamas, 407 A.2d at 632;

Middleton, 401 A.2d at 131. Dr. Kramer perused the available scientific source material, chose

those studies that she felt would best support the opinion she wished to convey, and then found

“reasons” to disregard contradictory evidence. In some cases, data she relied upon (Hardell and

the high exposure category of INTERPHONE) suffered from some of the same failings as

studies she criticized (the rest of INTERPHONE). Other times, she disregarded entire lines of

evidence that she herself had said were relevant to a disease causation determination. For

example, after stating that biological plausibility is an important factor in determining causation,

she disregarded all of the animal and in vitro studies that could be informative on this point.

38

Likewise, Dr. Kramer disregarded incidence data trends showing no significant overall increase

in brain cancer, despite the fact that Hardell’s studies, if correct, would predict that brain cancer

rates should have already spiked upward. See Little 2012.

At a few points, Dr. Kramer even presented evidence in a manner that could hoodwink a

jury. In her report Dr. Kramer quotes statements from some government agencies, including the

FDA and FCC, and describes them as “precautions and advisories regarding the safety of cellular

phones.” Kramer Exp. Rpt. at p. 20-21. These quotes contain advice on how an individual can

reduce exposure to cell phone radiation. In the context of her report, Dr. Kramer makes it sound

like these agencies have concluded that such exposure could be dangerous. However, Dr.

Kramer took these quotes unfairly out of context. The FCC40 and FDA41 documents from which

Dr. Kramer lifted these quotes explicitly state that there is insufficient scientific evidence to

establish a causal link between cell phones and cancer, but then go on to offer advice to

consumers who are nonetheless apprehensive. Hr’g Tr. 2194:11-2203:22. In short, Dr. Kramer

clipped statements that supported her position and used them, out of context, to distort the

positions of these authoritative government agencies.

Although defendants are ably represented and have prestigious experts of their own, the

court cannot be confident that effective advocacy can eliminate the risk that a jury would be

misled by Dr. Kramer’s testimony and reach a result on an improper basis. Because of the

40 Def. Ex. 203, Wireless Devices and Health Concerns – FCC Consumer Facts, FCC (2012) (“Even though no scientific evidence currently establishes a definite link between wireless device use and cancer or other illnesses. . . some consumers are skeptical of the science and/or the analysis that underlies the FCC’s RF exposure guidelines. Accordingly, some parties recommend taking measures to further reduce exposure to RF energy. The FCC does not endorse the need for these practices, but provides information on some simple steps that you can take to reduce your exposure to RF energy from cell phones.”) (emphasis in original). Dr. Kramer omitted this section of the document and just listed the exposure reduction steps that followed. 41 Def. Ex. 204, No Evidence Linking Cell Phone Use to Risk of Brain Tumors, FDA (May 2010) (“Although evidence shows little or no risk of brain tumors for most long term users of cell phones, FDA says people who want to reduce their RF exposure can: reduce the amount of time spent on the cell phone; use speaker mode or a headset to place more distance between the head and the cell phone.”). When quoting this passage, Dr. Kramer omitted the entire first clause and began with “…people who want to reduce.”

39

significant risk that the jury would be confused or misled by her testimony, the limited probative

value of Dr. Kramer’s expert opinion is substantially outweighed by the risk of unfair prejudice,

and her testimony is not admissible under Rule 403.

B. Dr. Michael Kundi

i. Field and Opinion “Beyond the Ken”

Dr. Michael Kundi is a professor of epidemiology and occupational health at the Medical

University of Vienna. Dr. Kundi offers his opinion, to a reasonable degree of scientific certainty,

that cell phone radiation more likely than not causes an increased risk of brain tumors, including

glioma and acoustic neuroma. Kundi Exp. Rpt. at 3, 15. Dr. Kundi’s field and opinion are

beyond the ken of a layperson, and he therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Kundi received his PhD in psychology and mathematics from the University of

Vienna in 1979. He received his medical habilitation degree in epidemiology and occupational

health from the Medical University of Vienna in 1989.42 He has been a professor of

epidemiology and occupational health at the Medical University of Vienna since 1990. He was

appointed head of the Department for Occupational and Social Hygiene in 1996, and head of the

Institute of Environmental Health in 2004. He is the coordinator of the PhD program at the

University. Dr. Kundi has taught courses in hygiene, microbiology, preventative medicine,

occupational health and epidemiology, environmental and occupational medicine, public health,

biostatistics, epidemiological research methods, and qualitative research methods. He researches

the health effects of occupational and environmental factors and conducts epidemiological

research of infectious diseases.

42 A medical habilitation degree, a step above a PhD, is the highest academic degree one can obtain in many parts of Europe. In some countries, it is a prerequisite to supervise doctoral candidates.

40

Dr. Kundi is the deputy head of the Austrian Standards Committee for Electromagnetic

Fields, head of the toxicology working group at the Austrian Ministry for the Environment, and a

member of the EMF working group of the Highest Health Council at the Austrian Ministry of

Health. He has been invited by the WHO to be a member of an advisory board to develop a

research agenda for EMF. Dr. Kundi has authored or co-authored more than 300 peer-reviewed

articles, including original epidemiological studies, meta-analyses, review articles, and other

biomedical research. He has authored more than 30 articles relevant to the health effects of cell

phone radiation.

Defendants do not challenge Dr. Kundi’s qualifications, and the court has no reason to

doubt his competency. See Haidak, 841 A.2d at 327. He is certainly qualified to render an

opinion on the general causation issues in this case, and his proffered testimony satisfies the

second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Kundi used what he calls the “Pragmatic Dialogue Method” (“PDM”) to reach his

opinions. Dr. Kundi explained PDM in a 2006 article, Causality and the Interpretation of

Epidemiologic Evidence. 114 Envtl. Health Perspectives 969-74 (July 2006). In the article, Dr.

Kundi discusses the Bradford Hill criteria and the ways in which scientists conduct causation

determinations generally (not just in epidemiology), and he proposes a framework for systematic

disease risk assessments. He highlights the logical fallacy of equating “insufficient evidence of

causation” with “evidence of no causation,” believes scientists sometimes apply the Bradford

Hill criteria incorrectly, and describes a “dialogue approach” for applying Bradford Hill in a

proper manner. Under this approach, scientists must start with epidemiologic evidence and

examine what he calls 1) temporal relation, 2) association, 3) environmental equivalence, and 4)

41

population equivalence. If the evidence for a factor weighs in favor of causation and there are no

valid counterarguments, then the examiner should consider that factor to be supporting causation.

If epidemiologic evidence is insufficient to make a determination on its own, other types of

evidence (such as in vitro and in vivo studies) should be weighed as well. Finally, if there is

evidence of causation, Dr. Kundi believes that public health officials should not postpone action

“until better evidence is available if our present knowledge appears to demand immediate

measures for health protection.” Id. at 969. He calls this the “precautionary principle.”

Defendants characterize PDM as a novel and not generally accepted methodology. They

argue that other scientists have not explicitly used PDM to make a cancer causation

determination. Defendants portray Dr. Kundi as someone seeking to “replace” Bradford Hill

with PDM as the preferred methodology for inferring causation, even though no other scientist

agrees with him. In particular, defendants argue that the “precautionary principle” pervades

PDM and leads to a finding of causation, where the totality of evidence does not support

causation under generally accepted epidemiological methodologies. According to defendants,

unlike Bradford Hill, PDM starts with an assumption of causation and then seeks to disprove it.43

Defendants’ characterization of Dr. Kundi’s PDM methodology makes more of its

differences with Bradford Hill than the facts will bear. Dr. Kundi’s 2006 article and the writings

of other scientists who cite to it demonstrate that PDM is not a novel alternative to Bradford Hill

as much as it is an explanation of the way the Bradford Hill criteria should be considered. PDM

looks at the same lines of evidence as Bradford Hill and interprets them in the same way, albeit

with a slightly different vocabulary. The article itself purports to be a commentary on causation

43 Defendants also argue that Dr. Kundi relied entirely on epidemiological evidence and that his failure to consider in vivo and in vitro studies was not “generally accepted.” However, if PDM is a generally accepted methodology, the specific application of a generally accepted methodology is not an issue for the court under Frye. Moreover, virtually all accepted methodologies agree that if the epidemiological evidence in humans is strong enough, a causal inference can be drawn without reference to in vitro or in vivo studies.

42

and Bradford Hill generally; it is an attempt to standardize the causation discussion (i.e.

“pragmatic dialogue”). Dr. Kundi testified that his goal was to “embrace the Bradford Hill

criteria and giv[e] it structure, so that it cannot be arbitrarily used.” Hr’g Tr. 99:10-12 Dec. 2,

2013. The article is not some groundbreaking new methodology, and it certainly does not appear

to have provoked much controversy in the literature. Dr. Kundi’s article is often cited together

with other articles discussing the Bradford Hill approach and causation, largely without critical

or other substantive commentary.44 The handful of citations and lack of commentary do not

signify, as defendants assert, that PDM lacks general acceptance. Rather, they show that the

scientific community seems to regard PDM as something similar to, and not incompatible with,

Bradford Hill, and for that reason PDM has not generated any significant controversy, outside of

this litigation.

The “precautionary principle” is not a fundamental component of a disease causation

assessment using PDM. Defendants’ arguments to the contrary hold up no better than their

attempt to debunk the methodology itself. As Dr. Kundi wrote in his article and explained in his

testimony, the precautionary principle is a consideration for policy makers; it is not a component

44 Articles citing Dr. Kundi’s 2006 publication include: Ex. PX0109, Adami, et al., Toxicology and Epidemiology: Improving the Science with a Framework for Combining Toxicological and Epidemiological Evidence to Establish Causal Inference, 122 Toxicological Sci. 223-243 (2011) (uses method similar to Dr. Kundi’s); Ex. PX0633, Gallagher, et al., Blood and Urine Cadmium, Blood Pressure, and Hypertension: A systematic Review and Meta-Analysis, 118 Envtl. Health Perspectives 1676-84, 1681 (2010) (discusses Dr. Kundi and Bradford Hill); Ex. PX0634, Ward, The role of causal criteria in causal inferences: Bradford Hill's “aspects of association,” 6:2 Epidemiologic Perspectives And Innovations (June 17, 2009) (references Dr. Kundi and Bradford Hill); Ex. PX0635, Barbui, et al., Perspectives on thrombosis in essential thrombocythemia and polycythemia vera: Is leukocytosis a causative factor?, 114(4) Blood 759-763 (2009) (cites Dr. Kundi as an interpretation of Bradford Hill); Ex. PX0636, Schroeder, et al., Food Allergy is Associated with an Increased Risk of Asthma, 39(2) Clin. Exp. Allergy 261-270 (2009) (cites Dr. Kundi to define causality); Ex. PX0637, Uzoigwe, et al., Epidemiological evidence for Mycobacterium avium subspecies paratuberculosis as a cause of Crohn’s disease, 135 Epidemiol. Infect. 1057-1068 (2007) (cites Dr. Kundi when defining causation). An article by Russo & Williamson quotes Dr. Kundi three times: to explain the Bradford Hill criteria, in a discussion of the history of disease causation determinations, and to critique philosophical definitions of causation that depend too much on probabilistic evidence while discounting the role of mechanistic evidence. Ex. DX3376, Federica Russo & Jon Williamson, Interpreting Causality in the Health Sciences, 21 Int’l Studies in the Philosophy of Sci. 157-70 (July 2007).

43

of a scientific inquiry by an epidemiologist. Hr’g Tr. 157:17-164:24 Dec. 2, 2013.45 Basically,

if a public health official is considering whether to regulate an exposure, and there is some

evidence that the exposure might pose a health risk, the precautionary principle states that the

official should “assume the worst” until more conclusive evidence is available. But an

epidemiologic causation determination is a scientific endeavor that starts from the null position

and then weighs the evidence, as Sir Bradford Hill prescribed.46 This is what Dr. Kundi claims

to have done in developing his opinions in this case.

Dr. Kundi might prefer to call his methodology the “Pragmatic Dialogue Method,” but he

is essentially doing a Bradford Hill analysis. A name change does not render an accepted

methodology unacceptable. Because it cannot be disputed that use of the Bradford Hill criteria

to determine causation is a generally accepted methodology, Dr. Kundi’s methodology is

generally accepted. Whether or not Dr. Kundi properly applied that methodology is a question

for the factfinder and is beyond the scope of a Frye inquiry. See, e.g., Minor, 57 A.3d at 419 n.8;

Pettus, 37 A.3d at 218; Ibn-Tamas, 407 A.2d at 638 n.23. Therefore, Dr. Kundi satisfies the

third requirement of Dyas.

iv. Probative vs. Prejudicial

Admissibility of Dr. Kundi’s testimony under Rule 403 is a close call. The causation

opinions rendered by Dr. Kundi are probative as to the ultimate issue in this case. He has an 45 Whether or not Dr. Kundi allowed the precautionary principle to bias his own assessment of the evidence is an issue to be raised on at trial, which may affect the weight a jury gives to Dr. Kundi’s testimony. But the specific application of an accepted methodology in a particular case is not part of a Frye inquiry. See, e.g., Porter, 618 A.2d at 636 (“Any failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of inquiry, but does not raise an issue which implicates Frye.”). 46 Dr. Kundi’s “principle of pessimism,” is different from his precautionary principle, and it played no role in his formulation of his opinions about RF radiation causing glioma and acoustic neuroma. As described by Dr. Kundi, the principle of pessimism states that if one has evidence that exposure A causes disease X, and disease Y is very similar to X but so rare as to be difficult to study, one should assume that A can also cause Y. In his report, Dr. Kundi explained that because there is sufficient evidence that cell phone radiation causes glioma, the principle of pessimism allows him to extrapolate that it likely also causes other similar, yet very rare, brain tumors. Because it played no role in the formation of his pertinent causation opinions, the principle of pessimism is irrelevant on the question of Dr. Kundi’s admissibility.

44

impressive resume, a lengthy list of publications in the field, and significant experience

researching EMFs. He is well-qualified to render an opinion on epidemiological issues generally

and cell phone radiation specifically. Dr. Kundi believes that IARC misclassified the

carcinogenicity of cell phone radiation; he would have classified it as 2A had he been on the

IARC panel. But he also thinks the gap between 2A and 2B is quite narrow and that both meet

the “more probable than not” evidentiary legal standard. Hr’g Tr. 143:24-144:15 Dec. 2, 2013.

Dr. Kundi’s impressive credentials are precisely what make his causation testimony

problematic. Any jury is likely to treat his opinions as authoritative and weighty even though the

scientific basis for those opinions may be thin. Dr. Kundi believes the epidemiology alone is

strong enough to support an inference of causation, even with only limited evidence from the

animal studies and without a known biological mechanism. Hr’g. Tr. 326:22-327:10 Dec. 3,

2013. He testified as to why he supports the Hardell studies and thinks the INTERPHONE

studies are partially biased toward the null. See Hr’g. Tr. 82:21-87:1 Dec. 2, 2013; Kundi Exp.

Rpt. at 6-10. He discounts the absence of evidence in the incidence data because of the long

latency periods of the tumors at issue in this case. See Hr’g. Tr. 254-10-255:21.47

Moreover, Dr. Kundi appears to apply his scientific knowledge as an advocate. It is

apparent that he believes cell phone radiation poses a serious public health risk. While he asserts

that the precautionary principle is not a component of his scientific methodology, it is not

obvious that he is able to separate the two. He believes cell phone radiation is carcinogenic even

though every authoritative government body has said the evidence is inconclusive at this point.

Obviously he is entitled to hold his point of view and to express it in the realm of public policy.

But in court, in the context of private civil litigation, he must be able to separate health hazards

47 Unlike Dr. Kramer, however, Dr. Kundi at least accounted for the inconclusive incidence data, and he was willing to acknowledge that if the incidence data remained flat to the year 2040, he would need to rethink his causation opinion. Hr’g. Tr. 257:6-258:14 Dec. 3, 2013.

45

that are known with the requisite degree of scientific certainty from those that are not known, but

may pose enough of a risk that policy makers should be willing to act on the available evidence.

Because of the high magnitude of harm that would result if cell phones are carcinogenic, the

precautionary principle instructs Dr. Kundi that action needs to be taken sooner rather than later.

As was thoroughly discussed at the hearing, the probabilities and magnitudes of harm might

support a policy proposal, but they are not a proper basis for a judicial determination on the

science. Dr. Kundi’s testimony poses a risk of prejudice, confusion, and misleading the jury.

Given the probative value of Dr. Kundi’s proffered testimony and its potential for

prejudice, the difficult question under Rule 403 is whether the probative value “is substantially

outweighed by a danger of unfair prejudice.” See In re L.C., slip op. at 14 n. 24 (emphasis in

original). Guiding the court’s exercise of discretion is the principle that Rule 403 is designed to

be a permissive standard that leans toward admitting relevant evidence and cautions not to

exclude probative evidence because of “excessive mistrust of juries.” Comford, 947 A.2d at 1187

(quoting, (William) Johnson, 683 A.2d at 1100, and Allen, 603 A.2d at 1224). The court cannot

“exclude relevant and otherwise admissible expert testimony merely because it is against the

expected weight of the evidence.” In re L.C., slip op. at 15 (citing Western Indus. Inc. v. Newcor

Can., Ltd., 739 F.2d 1198, 1202 (7th Cir. 1984) (“a judge in our system does not have the right to

prevent evidence from getting to the jury merely because he does not think it deserves to be

given much weight”). Courts must carefully scrutinize expert testimony because of its “aura of

special reliability and trustworthiness.” Ibn-Tamas, 407 A.2d at 632. Nonetheless, the Court of

Appeals has clearly stated that exclusion should be a last resort to be used only when there is a

substantial risk of jury confusion:

The [Supreme] Court advised that judges should rely on the adversarial system, rather than on the exclusion of evidence, to guard against potential juror

46

confusion from the presentation of scientific evidence, noting that “[vigorous] cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Any remaining concern a trial judge may have that admission of expert testimony could confuse or overwhelm the jury is more appropriately dealt with, not by exclusion, but by placing reasonable limitations on the expert’s testimony and instructing the jurors that they – and only they – are the ultimate fact finders.

Benn, 978 A.2d at 1275 (citing and quoting Daubert, 509 U.S. at 596).

In this case, while risk of prejudice from Dr. Kundi’s testimony is not insignificant, that

risk does not “substantially” outweigh the probative value of his opinions. At trial, defendants

will have every opportunity to cross-examine and impeach Dr. Kundi, challenge his overreliance

on the “limited”epidemiological data, point to the “limited” results of the animal studies, criticize

his interpretation of the in vitro data, present the contradictory incidence data, undercut the

Hardell studies, and attempt to portray Dr. Kundi as a “Chicken Little.” Defendants will also

have the opportunity to present testimony from their own highly qualified, authoritative expert

witnesses. These safeguards, along with proper jury instructions, should be sufficient to protect

against the risk of unfair prejudice posed by Dr. Kundi’s testimony. See Benn, 978 A.2d at 1275.

C. Dr. “Vini” Guatam Khurana

i. Field and Opinion “Beyond the Ken”

Dr. Khurana is a neurosurgeon and associate professor of neurosurgery at the Australian

National University in Canberra. He offers, to a reasonable degree of medical certainty, the

following epidemiological opinions:

1. Radiation emitted from cell phones causes adverse effects in humans, including, but not limited to, increased risk of brain tumors.

2. A significant increase in brain cancer incidence has been observed and that a significant increase will be observed internationally within this decade, a substantial contributing cause of which is more probably than not related to cell phone usage.

47

Khurana Exp. Rpt. at 8. In his report, Dr. Khurana reviews epidemiological evidence, discusses

the potential ways by which non-ionizing radiation can affect DNA and lead to cancer

promotion, and asserts that incidence trend data in Australia show increased brain cancer rates,

which will be observed in other international databases in the coming years.

Dr. Khurana’s field of expertise and opinions are beyond the ken of a layperson, and his

proffered testimony therefore he satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Khurana received his medical degree from the University of Sydney Medical School

in 1994. He worked at the Mayo Clinic in Rochester, Minn., from 1996 to 2005, where he was a

neurosurgery resident. In 2001, he earned a PhD from the Mayo Clinic and received accolades

for his doctoral research. From 2005 to 2006, he was a fellow at the Barrow Neurological

Institute and a neurosurgeon at St. Joseph’s Hospital in Phoenix, Ariz., where he conducted

research on brain aneurysms and tumors. Since 2006, Dr. Khurana has practiced as a

neurosurgeon at The Canberra Hospital in the Australian Capital Territory, with a stint as a

visiting neurosurgeon at the Royal Melbourne Hospital from 2010 to 2012. Since 2007, he has

instructed and supervised medical students as an associate professor of neurology at the

Australian National University. In his clinical practice, Dr. Khurana regularly treats and operates

on patients with brain tumors and brain cancer. He also conducts clinical research and

supervises graduate student research. He holds two U.S. patents related to gene delivery and

genetic testing in relation to brain aneurysms. He has received a number of awards for his past

work and research, and he has published dozens of journal articles.

Defendants challenge Dr. Khurana’s qualifications to offer an expert opinion on

epidemiology. They argue that he does not have sufficient “expertise to critically analyze

48

epidemiologic meta-analyses or to assess the impact of fundamental, basic epidemiological

concepts” at issue in this case. Def. Post-Hr’g Br. at 81. Dr. Khurana is a practicing

neurosurgeon and PhD, who routinely treats the very brain tumors and cancers at issue in this

case. Although epidemiology is at the center of the causation issue, he demonstrated enough

basic knowledge of epidemiology to render his opinion on the carcinogenicity, vel non, of

exposure to RF from cell phones. Any gaps in the expert’s understanding of the epidemiological

issues in the case ordinarily go to the weight of his testimony, not its admissibility. In re Melton,

597 A.2d at 897-98 (citing Baerman, 363 F.2d at 310).

The court does not doubt Dr. Khurana’s competency. See Haidak, 841 A.2d at 327.

Because his opinions about cancer causation and incidence data are central to the general

causation questions in this case and could aid the jury, Dr. Khurana satisfies the second

requirement of Dyas.

iii. General Acceptance of Methodology

To the extent he articulated one, Dr. Khurana’s methodology consisted of conducting a

literature review of scientific and medical publications related to cell phone radiation and brain

cancer. One of the main sources Dr. Khurana relies upon is a meta-analysis he co-authored with

Dr. Hardell, Dr. Kundi, and Dr. Michael Carlberg, which reviewed epidemiological data from

the Hardell and INTERPHONE studies. To reach his opinion on trends in incidence data, Dr.

Khurana also reviewed data from Australia and from the Central Brain Tumor Registry of the

United States (“CBTRUS”), which combines data from NIH and CDC to create a near-

comprehensive list of reported U.S. cancers. Hr’g Tr. 917:1-13 Dec. 11, 2013. Dr. Khurana

relied on published literature analyzing the incidence data, as well as his own analysis, to reach

his opinions about trends in cancer incidence.

49

Defendants argue that a “literature review” is not a generally accepted methodology, and

that Dr. Khurana’s literature review was significantly flawed based on his choice of sources and

his selective reading. In particular, Defendants argue that Dr. Khurana relied principally on his

own writings (some of which were not published in peer-reviewed journals),48 that his analysis

of the incidence data was flawed, and that he cherry-picked the in vivo and in vitro studies.

Many of defendants’ criticisms would be the proper subject of cross-examination at trial; but in

the context of the Frye test under the third prong of Dyas, defendants’ arguments are misguided.

Drawing inferences from a review of published scientific literature has long been

recognized as a generally accepted methodology. See, e.g., Georgetown, 75 A.3d at 292

(“reliance on relevant medical literature. . . as well as case studies appearing in that literature, [is]

a ‘generally accepted’ method for forming an opinion regarding medical causation.”); Wilson

Sporting Goods, 59 A.3d at 1272 (experts may rely on published data of other experts); Agent

Orange, 611 F.Supp. at 1243 (expert’s methodology of making inferences from scientific

literature was “generally accepted” despite relying on unreliable studies). Because a literature

review is a generally accepted methodology, and Dr. Khurana adequately demonstrated that he

did in fact do a literature review, his methodology is “presumptively reliable” and the Frye

inquiry goes no further. Hedgepath, 607 A.2d at 1244; accord Minor, 57 A.3d at 419 n. 8;

(Nathaniel) Jones, 548 A.2d at 40 (the Frye test “does not vary according to the circumstances of

each case”); Ibn-Tamas, 407 A.2d at 638. If an expert uses a generally accepted methodology,

the reliability and credibility of the expert is properly addressed by cross-examination and the

testimony of opposing experts. E.g. In re Melton, 597 A.2d at 899; Benn, 978 A.2d at 1274-75.

48 While most of the sources cited in his report are his own articles, Dr. Khurana testified that in forming his opinions he relied not just on his own writings, but also on the sources he cited in his own writings. Hr’g Tr. 974:4-22 Dec. 11, 2013. He claims the bibliography of his expert report does not give the full picture by itself.

50

Because Dr. Khurana used a generally accepted methodology, his testimony satisfies the third

requirement of Dyas.

iv. Probative vs. Prejudicial

Although defendants are unable to knock out Dr. Khurana’s methodology under the

three-part Dyas test, their criticisms of his methodology are on firmer footing in the court’s Rule

403 analysis. As discussed previously, and as elucidated by IARC, the Hardell and

INTERPHONE studies provide only limited evidence of carcinogenicity. Dr. Khurana relies on

those studies, but he supplements them with a number of his own publications, several of which

are not formal academic writings published in peer-reviewed journals.49 The abbreviated list of

citations in Dr. Khurana’s report supports defendants’ allegation that he cherry-picked the

studies on which he chose to rely.50 Moreover, the methodologies of some of the articles cited

by Dr. Khurana have been criticized by independent authorities.51 Meanwhile, Dr. Khurana

ignored the bulk of evidence and reviews from major health agencies like the HPA and many

others, which have concluded that there is insufficient evidence of a causal link between cell

phone radiation and cancer. It seems to the court that Dr. Khurana had his mind made up before

he began his report, then went out and found a handful of publications (some of which are

significant outliers, defendants argue) to support his predetermined position.

49 Dr. Khurana’s first reference, Mobile phones and brain tumours – A public health concern, was published on www.brain-surgery.us, Dr. Khurana’s website, which is not a scientific journal and is not peer-reviewed. While the paper is lengthy and written as a scholarly examination of cell phone radiation, the court is in no position to evaluate its scientific accuracy. Reliance on such unverified source material poses a substantial risk of misleading or confusing the jury. Three of the other references in Dr. Khurana’s expert report are letters to the editors of scientific journals, one is a published debate with another scientist, and one is about cellular base stations, not phones. While these sources may have scientific merit, the first four are not peer-reviewed publications and the final one may or may not be relevant to cell phone radiation. When there is no shortage of substantive scientific literature on cell phone radiation, for Dr. Khurana to rely on these peripheral sources raises red flags about both the probative value of his testimony and the risk of confusing or misleading the jury. 50 Defendants argue that Dr. Khurana ignored the bulk of animal studies, which found no significant effects from cell phone radiation, and instead cited a handful of outlier studies that defendants claim have failed replication. 51 For example, Dr. Khurana cites the Weisbrot 2003 fruit fly study, which IARC criticized for using unreliable dosimetry. IARC Monograph at 341.

51

While Dr. Khurana’s lack of expertise in epidemiology is not a disqualifier under

Dyas/Frye, it is nonetheless a factor under a Rule 403 analysis. As Dr. Khurana freely

acknowledged in his testimony at the hearing, he is not an epidemiologist and he is not

particularly familiar with many of the tools of that trade, such as the calculation of odds ratios.

Without a strong understanding of the nuances of odds ratios and the statistical side of the search

for causation in epidemiology, his testimony on causation lacks strong probative value and

carries with it a high risk that study results will be presented in a confusing, misleading, or

inaccurate manner. For example, when combining the odds ratios from multiple studies, it is

important to control for heterogeneity, failing which the amalgamated odds ratios may mask

important inconsistencies in the underlying data. Moreover, Dr. Khurana brushed aside the

inconsistencies in the epidemiological data from different studies, even though epidemiology,

under any approach, including Bradford Hill, emphasizes the importance of consistency between

studies to support a causation inference. Because a jury is likely to give Dr. Khurana’s opinions

on the epidemiological data an “aura of special reliability and trustworthiness,” whether they are

accurate and reliable or not, his proffered testimony carries with it a heightened risk of confusing

or misleading the jury to reach a result on an improper basis. Ibn-Tamas, 407 A.2d at 832.

Finally, where the methodology leading to an opinion, not shared by most other

scientists, that a particular agent is carcinogenic to humans is as amorphous as a “literature

review,” the risk of misleading the jury is significant. Dr. Khurana may be a first-rate surgeon,

but he is not an epidemiologist, the field of science to which such opinions belong. A literature

review cannot make him an epidemiologist, but a jury is likely to give his opinions on causation

authoritative weight simply because they are pronounced by an expert of his obvious stature.

Where the broad consensus from the expansive epidemiological literature is that there is not

52

enough evidence to conclude that cell phone radiation is carcinogenic to humans, the jury should

not be misled into finding that it is carcinogenic simply because Dr. Khurana, a non-

epidemiologist, tells them so based on his shallow and highly selective reading of that literature.

For the foregoing reasons, the court will exercise its discretion to exclude Dr. Khurana’s

testimony under Rule 403.

D. Dr. Igor Belyaev

i. Field and Opinion “Beyond the Ken”

Dr. Igor Belyaev was a member of the IARC Working Group and is “a cancer research

scientist with a focus on the biophysical effects and molecular mechanisms of non-ionizing and

ionizing radiation.” Belyaev Exp. Rpt. at 1. He offers seven opinions, to a reasonable degree of

scientific certainty: 1) that RF cell phone radiation has non-thermal biological effects, including

single and double strand DNA breaks and inhibition of DNA repair; 2) that these non-thermal

biological effects are caused by known physical mechanisms; 3) that the effects and risks of cell

phone radiation are proportional to the specific absorption rate (“SAR”) and duration of

exposure; 4) that the effects vary according to genetic and physiological variables and therefore

some populations, like “young people,” are more susceptible to cell phone radiation than others;

5) that RF cell phone radiation induces cellular mechanisms that produce carcinogenesis in

human brain cells; 6) that ELF cell phone radiation produces effects and carcinogenesis similar

to RF cell phone radiation; and 7) that ELF and RF cell phone radiation “cause and/or

significantly increas[e] the risk of certain [unspecified] malignant and non-malignant head and

brain tumors in humans.” Id. at 5-6.

Unlike IARC, which placed RF from cell phones in its Group 2B – possibly carcinogenic

to humans – Dr. Belyaev testified that he would place it in Group 2A – probably carcinogenic to

53

humans. Hr’g. Tr. 637:6-21 Dec. 4, 2013. When asked to explain why he did not hold out for a

2A classification when he was part of the IARC Working Group, Dr. Belyaev basically admitted

that he did not have the votes. He claimed that IARC reaches its decisions by consensus and, for

political reasons, he decided to accede to the 2B classification. Id.

Dr. Belyaev’s field of expertise and opinions are beyond the ken of the average

layperson, and he therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Belyaev is the Head Research Scientist at the Cancer Research Institute at the Slovak

Academy of Science in Bratislava, Slovakia. He received a masters degree in radiation physics

and dosimetry from the Moscow Engineering Physics Institute at Moscow Technical University

in 1981, a PhD in radiobiology from the Institute of Biophysics at the U.S.S.R. Academy of

Science in 1986, and a D.Sc.52 in genetics from St. Petersburg State University in 1994. From

1981 to 1994, Dr. Belyaev was an associate professor and held various academic research

positions at the Moscow Engineering Physics Institute, culminating in the position of Head

Research Scientist. From 1994 to 2006, he taught, conducted research, and directed research

teams at Stockholm University in the areas of radiobiology, genetic and cellular toxicology, and

microbiology. Since 2006, he has been at the Cancer Research Institute at the Slovak Academy

of Science. Dr. Belyaev supervises a biophysics and radiobiology laboratory, which primarily

studies the biological effects of RF and ELF radiation.

Dr. Belyaev was one of the thirty members of the IARC Working Group charged with

classifying the carcinogenicity of cell phone radiation, which produced the 2013 IARC

Monograph heavily cited in this case. He is on the editorial board of several scientific journals,

52 A Doctor of Sciences degree is the highest post-graduate degree in Russia (and formerly in the Soviet Union), obtained after one has already obtained a PhD.

54

including Electromagnetic Biology and Medicine and International Journal of Radiation

Biology. The journal Bioelectromagnetics awarded Dr. Belyaev and his research team Most

Influential Paper from 2005 to 2009 for a study on the biological effects of RF on rat brains.

Defendants do not challenge Dr. Belyaev’s qualifications, and the court has no reason to

doubt his competency. See Haidak, 841 A.2d at 327. Dr. Belyaev’s expertise and opinions are

likely to aid the factfinder, and he therefore satisfies the second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Belyaev testified that he used the same methodology in reaching his expert opinions

that IARC used in compiling its Monograph. Hr’g Tr. 369:12-370:1, 372:12-374:25 Dec. 3,

2013. He reviewed and evaluated the body of scientific literature that the IARC Working Group

reviewed and evaluated when he was a member. While the IARC Monograph had not yet been

published at the time Dr. Belyaev submitted his expert report, he had access to IARC’s materials

and drafts.53 He said that he relied on the research that IARC had done on the topic. Dr.

Belyaev reviewed epidemiological studies, animal studies, and in vitro studies. In essence, Dr.

Belyaev conducted a literature review based primarily on research already compiled by IARC

and supplemented with some additional sources.

Defendants criticize Dr. Belyaev’s literature review as lacking the rigor of IARC, relying

on allegedly flawed studies, and failing to analyze objectively the positive and negative studies.

They argue that if Dr. Belyaev had properly applied IARC’s methodology, he would have been

unable to reach a conclusion different from IARC’s 2B classification of possibly carcinogenic.54

53 IARC describes its methodology in great detail in the preamble to the Monograph. IARC Monograph at 9-31. The Working Group examines all relevant information and studies on a potential carcinogen, including epidemiological studies, whole animal experimental studies, mechanistic (in vivo and in vitro) studies, incidence data, and any other evidence. The Group then weighs the evidence and decides how to classify the agent. In contrast to Dr. Kramer, IARC is a true example of attempting to determine causation using a WOE methodology. 54 Defendants lob variations of this argument at almost every one of plaintiffs’ experts: that if the expert had properly applied Methodology X, the only possible conclusion would be “no causation;” and since the expert has a

55

While these critiques may be effective at trial, they go beyond the scope of a Frye inquiry.

Whether one chooses to call it “IARC’s Methodology,” WOE, or a literature review, Dr.

Belyaev’s stated methodology is generally accepted. Georgetown, 75 A.3d at 292; Wilson

Sporting Goods, 59 A.3d at 1272; Agent Orange, 611 F.Supp. at 1243. Therefore, it is

“presumptively reliable” and the Frye inquiry goes no further. Hedgepath, 607 A.2d at 1244;

accord Minor, 57 A.3d at 419 n. 8; (Nathaniel) Jones, 548 A.2d at 40 (the Frye test “does not

vary according to the circumstances of each case”); Ibn-Tamas, 407 A.2d at 638.

In addition to his literature review, Dr. Belyaev also relies on some of his own laboratory

research. Based on that research, Dr. Belyaev believes that cell phone radiation inhibits

mechanisms in human cells that repair double strand DNA breaks, which could lead to increased

development of tumors. Pl. Post-Hr’g. Br. at 92-94; Hr’g. Tr. 377:20-379:16 Dec. 3, 2013.

Some of these experiments used a technique called Anomalous Viscosity Time Dependence

(“AVTD”). According to Dr. Belyaev, AVTD is similar to the comet assay, which is a widely

used and generally accepted technique for measuring DNA damage in in vitro experiments. Hr’g

Tr. 360: 12-20 Dec. 3, 2013. Dr. Belyaev invented and patented the AVTD method in the late

1980s in the Soviet Union. He testified that AVTD has been validated and accepted by the

scientific community. Hr’g Tr. 357:23-358:1 Dec. 3, 2013; Hr’g Tr. 611:12-19 Dec. 4, 2013.

IARC cited some of Dr. Belyaev’s studies that used AVTD without comment, disapproval, or

criticism of the methodology. Hr’g Tr. 611:3-612:6 Dec. 4, 2013; IARC Monograph at 297, 299,

307-09, 338, 340, 343, 346, 384-85. However, while AVTD may be a reliable method, there is

different opinion, he must not have used a generally accepted methodology. This argument is without merit for two reasons. First, if an expert improperly uses a generally accepted methodology, any such errors go to the weight to be given to his testimony, not its admissibility, at least where the expert honestly followed the methodology as he understood it. Second, different scientists can look at the same sets of data, apply the same methodology, make no errors, and still reach different conclusions on the close questions. Disease causation inferences draw from myriad sources and are fundamentally subjective determinations requiring the application of the expert’s judgment.

56

no evidence in the record that anyone outside of Dr. Belyaev’s laboratory uses it, even though

the technique is now more than twenty-five years old.55 Hr’g Tr. 609:23-610:25 Dec. 4, 2013.56

Moreover, at least some publications have characterized AVTD as being an unorthodox

technique. See Ex. DX1038, SSI Report, Recent Research on EMF and Health Risks, Swedish

Radiation Prot. Auth., April 2007, at 20 (“not a standard method generally used by other

investigators”); Ex. DX1033, Andrei G. Pakhomov et al., Current State and Implications of

Research on Biological Effects of Millimeter Waves, 19 Bioelectromagnetics 393, 397 (1998)

(“not a conventional technique in cell biology”).

On this record, plaintiffs have failed to show by a preponderance of the evidence that

AVTD is a generally accepted methodology. E.g. Jenkins, 887 A.2d at 1021-22; Porter, 618

A.2d at 633. Consequently, to the extent that Dr. Belyaev bases his opinions on his own work

using the AVTD methodology, those opinions are not admissible. However, to the extent that

Dr. Belyaev formed his opinions using the generally accepted IARC methodology, his opinions

satisfy the third requirement of Dyas/Frye and are admissible for that reason. See, e.g., Benn,

978 A.2d at 1275 (limiting testimony with proper jury instructions is preferable to exclusion).

iv. Probative vs. Prejudicial

Dr. Belyaev’s opinions on the carcinogenicity of cell phone radiation will have

significant probative value because of his expertise and his experience as a member of the IARC

Working Group. As discussed above, defendants have a number of criticisms of Dr. Belyaev’s

opinions and methodology, including that he failed to examine the evidence with as much rigor

as IARC, relied on unreplicated or methodologically flawed studies, and failed to assess the

55 It is unclear whether Dr. Belyaev’s patent on AVTD has expired or if his patent extended outside the Soviet Union. Hr’g Tr. 611:1-10 Dec. 4, 2013. There is no evidence in the record that other scientists would have used AVTD but for the patent protection. 56 Dr. Belyaev testified that he had recently become aware of AVTD being used by a research team in Canada, but he was unable to provide any specific details regarding that research.

57

positive and negative results in an objective manner. They argue in particular that he disregarded

the mechanistic studies and incidence data. Obviously defendants take issue with his general

causation opinions, which are at odds with the majority of the scientific community.

With respect to IARC’s 2B classification, Dr. Belyaev testified that he disagreed with

IARC and would have held out for a 2A classification. He claimed, however, that IARC

operates by consensus, and he could not convince the other Working Group members, who

concluded that the “limited” epidemiological evidence precluded a 2A classification. Hr’g. Tr.

637:6-21 Dec. 4, 2013. Of course, Dr. Belyaev is free to disagree with IARC, but his claim that

he was forced to go along with the majority to achieve consensus has a hollow ring to it. The

Monograph itself notes conspicuously that while the majority of the Working Group favored the

2B classification, a minority thought cell phone radiation should be in Group 3 (evidence

inadequate to classify carcinogenicity to humans). IARC Monograph at 419; Hr’g. Tr. 637:22-

640:6 Dec. 4, 2013. This suggests not only that IARC’s decision was not strictly dictated by

consensus, but also that there was at least some debate about lowering the classification from 2B

to Group 3. Even if the minority in favor of Group 3 consisted of only one member of the

Working Group, IARC thought enough of that view to include it in the Monograph. Dr.

Belyaev’s claim that he would have asked IARC to include his minority position in favor of 2A

had he known that option was available to him, sounds more like revisionism than history.

Under Rule 403, the court may not exclude expert testimony based on the court’s view of

its persuasive force or because it is against the expected weight of the evidence. In re L.C., slip

op. at 15 (citing Western Indus. Inc. v. Newcor Can., Ltd., 739 F.2d 1198, 1202 (7th Cir. 1984)

(“a judge in our system does not have the right to prevent evidence from getting to the jury

merely because he does not think it deserves to be given much weight”). As long as the

58

testimony satisfies the Dyas/Frye test, as Dr. Belyaev’s testimony does to the extent it is based

on IARC’s methodology, the testimony must be admitted unless its probative value is

substantially outweighed by a risk of unfair prejudice. Defendants will have ample opportunity

to cross-examine Dr. Belyaev about his disagreement with IARC and any other weaknesses in

his testimony, and they will undoubtedly put on opposing expert testimony of their own. With

these safeguards and proper jury instructions, the court cannot say that the probative value of Dr.

Belyaev’s testimony is substantially outweighed by the risk of unfair prejudice, confusion, or

misleading the jury to reach a decision on an improper ground.

E. Dr. Wilhelm Mosgoeller

i. Field and Opinion “Beyond the Ken”

Dr. Mosgoeller is a cell biologist and histologist. He researches effects on cellular

biology under various conditions and conducts in vitro studies. He offers his opinions “to a

reasonable degree of medical and scientific certainty” and summarizes them as follows:

1. Non-thermal radiation as emitted from cellular phones causes biological effects in some human systems and cells.

2. In principle these biological effects can be either beneficial, neutral, or adverse.

3. “A-thermal” radiation from cellular telephones causes an increase in DNA breakage in certain types of human cells resulting in an increased risk of cancer.

4. Some cells (e.g., metabolically active cells) respond more strongly to non-thermal EMFs, a finding which is particularly concerning for children and youth, who have a greater percentage of metabolically-active, “growing” tissues.

5. Because of what we know about a-thermal effects, it is not possible to define new safety regulations based on the currently available data. Therefore, the recommendations for risk minimizing strategies focus on the “principle of prudent avoidance”, i.e., avoid and lower exposure whenever reasonably achievable.

Mosgoeller Rpt. 3. Dr. Mosgoeller testified that long-term exposure to radiation emitted

from cell phones can cause adverse biological effects in human cells by increasing the

59

accumulation of unrepaired DNA breaks. It does this, he believes, by inhibiting a cell’s

DNA repair mechanism or by activating the reactive oxygen species of the cell thereby

making the DNA more brittle. Hr’g. Tr. 680:3-682:6, 706:7-710:17, 726:8-13 Dec. 9,

2013.57 It is generally understood that unrepaired DNA breaks can lead to an increased

risk of cancer, although for cancer to develop from DNA breaks, other biological

processes must occur. Dr. Mosgoeller is not able to say that exposure to cell phone

radiation causes an increased risk of glioma or acoustic neuroma specifically. Hr’g

Tr.731:22-732:9 Dec. 9, 2013. His opinion is therefore limited to biological plausibility,

and constitutes only a building block for plaintiffs’ overall causation theory.

Dr. Mosgoeller’s field of expertise and opinions are beyond the ken of a

layperson, and he therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Mosgoeller is a tenured professor and medical doctor at the University of Vienna

Medical School’s Institute for Cancer Research. He received his medical degree from the

University of Vienna in 1987. He is the head of the Cell and Tissue Culture Laboratory at the

University of Vienna’s Institute of Histology and Embryology and a senior histologist and cell

biologist at SCIgenia Science Support GmbH, Ltd., a biomedical consultancy in Vienna, Austria.

Dr. Mosgoeller is or has been a member of several scientific societies relating to cellular biology

and regulatory affairs, especially as related to radiation and EMF, including the Austrian

Standards Institute for Electromagnetic Safety Standards and an EMF committee within the

Austrian Health Ministry. As a member of the Austrian Standards Institute, Dr. Mosgoeller

helps craft regulations for permissible EMF exposure limits for workers and the general public.

57 The parties and their experts seem to agree that non-ionizing radiation, such as that emitted by cell phones, cannot directly break DNA strands. They dispute whether non-ionizing radiation can lead to increased DNA breakage rates through other means such as inhibiting the repair of naturally occurring DNA breaks.

60

From 2002 to 2008, Dr. Mosgoeller was appointed by the Austrian Government’s Workers’

Compensation Board to investigate the non-thermal biological effects of weak EMFs and

radiation. This research program, known as “ATHEM-1,” produced numerous peer-reviewed

scientific publications. Since 2011, Dr. Mosgoeller has been overseeing the “ATHEM-2”

research program, which investigates genotoxic effects of exposure to RF radiation.

Defendants do not challenge Dr. Mosgoeller’s qualifications,58 and the court does not

doubt his general competency. See Haidak, 841 A.2d at 327. Dr. Mosgoeller is qualified to

testify as an expert in cell biology and histology. Because cellular biology, histology, and in

vitro studies on cell phone radiation are relevant to the general causation issues presented in this

case, Dr. Mosgoeller’s expertise and opinions will probably aid the factfinder. Therefore, Dr.

Mosgoeller satisfies the second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Mosgoeller relied on two methodologies to reach his opinions. First, he conducted a

literature review of studies and publications. Hr’g Tr. 662:19-664:10 Dec. 9, 2013. Dr.

Mosgoeller described his literature search as an extensive process in which he searched the

library of the National Institutes of Health and screened “all possible papers, publications, peer-

reviewed journals” to find the sources that were most relevant to answer the question at hand.

Hr’g Tr. 662:19-663:8 Dec. 9, 2013. He also consulted his personal libraries. Hr’g Tr. 664:1-10

Dec. 9, 2013. Dr. Mosgoeller identified and reviewed 2,765 publications about EMF, see Ex.

PX0890, and ultimately cited 39 publications in his expert report. Mosgoeller Rpt. 16-18.59

58 Defendants note that Dr. Mosgoeller is not an epidemiologist or geneticist, but Plaintiffs have not offered Dr. Mosgoeller as an expert in either of those fields. As noted earlier, as a medical doctor, Dr. Mosgoeller can testify as an expert on any medical matter, even if it is outside his specialty. In re Melton, 597 A.2d at 897. 59 Dr. Mosgoeller’s list of sources in PX0890 covers the literature on EMF generally, going well beyond cell biology and histology to include research in other disciplines, such as animal, human, and toxicology studies.

61

Defendants criticize Dr. Mosgoeller for “cherry picking” in his literature review. They

argue that he largely ignored studies, reviews, or meta-analyses that showed no DNA damage or

other negative effects and that he relied on studies that failed replication. Defendants assert that

most studies have not found the types of biological effects Dr. Mosgoeller reports.60

Additionally, defendants dispute Dr. Mosgoeller’s position that finding DNA breaks in in vitro

studies can be extrapolated to cancer promotion in humans. However, these criticisms are

largely aimed at the conclusions Dr. Mosgoeller drew from his literature review, or the sources

he chose to rely upon, not the categorical general acceptance of the methodology itself. A

literature review is a generally accepted methodology. Georgetown, 75 A.3d at 292; Wilson

Sporting Goods, 59 A.3d at 1272; Agent Orange, 611 F.Supp. at 1243. Because Dr. Mosgoeller

used a generally accepted methodology, his testimony is admissible under Frye; arguments about

the sources he chose to rely on and those he chose to reject raise questions for the factfinder, but

they do not render his testimony inadmissible. See Minor, 57 A.3d at 419 n.8; Pettus, 37 A.3d at

218; (Ricardo) Jones, 27 A.3d at 1136; Coates, 558 A.2d at 1152; Ibn-Tamas, 407 A.2d at 638

n.23.

Dr. Mosgoeller’s second methodology was to rely on the results of his ATHEM-1

laboratory research program, which conducted in vitro experiments. In his expert report, Dr.

Mosgoeller describes in considerable detail the process by which his laboratory experiments

were conducted. Mosgoeller Rpt. 3-9. The report describes the exposure apparatus, double-

blind experimental design, exposure conditions, cell preparation, methods by which effects on

proteins were analyzed, and statistical analysis of control samples. Plaintiffs argue that Dr.

60 Plaintiffs counter that some of these studies are funded by the telecommunications industry and that such studies have been shown to be more likely to find no effects, citing Anke Huss, et al, Source of Funding and Results of Studies of Health Effects of Mobile Phone Use: Systematic Review of Experimental Studies, 115 Envtl. Health Perspectives 1 (Jan. 2007). See note 20, supra.

62

Mosgoeller used generally accepted laboratory methodologies when conducting his experiments

with ATHEM-1, citing to his testimony that his lab used the same processes as many other cell

biology labs around the world. Hr’g Tr. 695:3-698:7 Dec. 9, 2013.

Defendants do not challenge any aspect of Dr. Mosgoeller’s laboratory methodology as

being not generally accepted on a categorical basis. Rather, defendants criticize particular

studies and argue that the ATHEM-1 research does not support Dr. Mosgoeller’s conclusion that

RF can promote DNA breaks at the cellular level and that it increases the risk of cancer in

humans.

In particular, defendants criticize three studies produced by ATHEM-1 and relied upon

by Dr. Mosgoeller – the Gerner study (co-authored by Dr. Mosgoeller), the Diem study, and the

Schwarz study. IARC itself cautioned that the Gerner study did not adequately confirm its

results. IARC Monograph at 355, 357-58. With regard to the other two studies, a researcher

outside the ATHEM-1 project, Dr. Alexander Lerchl, accused the Diem and Schwarz studies of

scientific fraud. Those studies were published in peer-reviewed scientific journals.

Investigations into the studies by the Austrian Commission for Scientific Integrity did not find

any evidence of fraud, but also cautioned that the studies did not follow the rules of good

scientific practice in that they did not provide the attention to detail necessary for the scientific

community to understand their published data. Hr’g Tr. 1110:18-1112:5 Dec. 12, 2013. The

studies were not retracted by the journals in which they were published. Dr. Mosgoeller testified

that he believes Dr. Lerchl is funded by the cell phone industry and had ulterior motives for

attempting to discredit ATHEM-1’s work. Hr’g Tr.1186:16-1188:22 Dec. 12, 2013. It is

noteworthy, however, that IARC commented that the mode of acquisition of data in the Diem

63

and Schwarz studies had been the subject of controversy and criticism in scientific journals and

that the studies failed at least one attempt at replication. IARC Monograph at 313, 322.

Defendants’ criticisms of Dr. Mosgoeller’s reliance on ATHEM-1 do not go to the

general acceptance of the methodology used by Dr. Mosgoeller or the ATHEM-1 laboratory.

Rather, defendants criticize how those methodologies were employed and the conclusions Dr.

Mosgoeller drew from ATHEM-1’s research. The preponderance of the evidence shows that Dr.

Mosgoeller and ATHEM-1 used generally accepted methodology in conducting their

experiments. See Pettus, 37 A.3d at 217; Porter, 618 A.2d at 633. Whether Dr. Mosgoeller and

his colleagues properly applied that methodology is not for the court to decide. Ibn-Tamas, 407

A.2d at 638 n.24. If Dr. Mosgoeller’s lab did poor work or drew untenable conclusions,

defendants can argue to the jury that his opinions are erroneous and “generally so unreliable that

[they] should be ignored.” In re Melton, 597 A.2d at 889; (Nathaniel) Jones, 548 A.2d at 40

(general acceptance “does not vary according to the circumstances of the case.”).

Dr. Mosgoeller used generally accepted methodology both in his literature review and in

his laboratory experiments. He therefore satisfies the third requirement of Dyas.

iv. Probative vs. Prejudicial

Dr. Mosgoeller’s expert opinions are not “imprecise and unspecific.” Frazier, 387 F.3d

at 1266. He clearly states his views on the health risks associated with radiation emitted from

cell phones. His opinions do not obviously lack scientific foundation. See Agent Orange, 611

F.Supp. at 1243, 1245. There is a dispute between the parties as to whether Dr. Mosgoeller’s

science is correct. It is not unusual to find scientists disagreeing about difficult questions of

causation. Defendants’ chief critique of Dr. Mosgoeller is that his opinions are out of the

mainstream in the scientific community and inconsistent with the results of many studies. They

64

argue that he cherry picks the data he uses and ignores the fact that some of the research studies

he relies on have not been replicated or have failed replication. These are legitimate issues for

defendants to demonstrate by cross-examination at trial and by presentation of opposing experts.

However, the probative value of Dr. Mosgoeller’s testimony is not substantially outweighed by

the risk of confusing or misleading the jury, and to exclude his testimony under Rule 403 on the

grounds asserted by defendants would not be a proper exercise of the court’s discretion.

F. Dr. Dimitris Panagopoulos

i. Field and Opinion “Beyond the Ken”

Dr. Dimitris Panagopoulos is a biophysicist whose research focuses on non-ionizing

radiation. His conducts in vivo experimental research with Drosophila melanogaster, the

common fruit fly, in which he exposes fruit flies to cell phone radiation and measures any

consequent health effects. Dr. Panagopoulos would testify “that it is more probable than not that

cell phone radiation causes adverse health effects in humans.” Panagopoulos Rpt. 7. The basis

for Dr. Panagopoulos’ opinion is that fruit flies are genetically similar to humans, they are

generally more resistant to radiation than humans, cell phone radiation can damage DNA in fruit

flies and injure their reproductive systems, and other studies have found similar effects in

mammals and birds. Dr. Panagopoulos is not offering an opinion that cell phone radiation causes

glioma or acoustic neuroma. Like Dr. Mosgoeller, his opinion is a building block in plaintiffs’

general causation theory.

Dr. Panagopoulos’ field of expertise and opinion are beyond the ken of a layperson, and

therefore he satisfies the first requirement of Dyas.

65

ii. Qualifications and Aid to the Factfinder

Dr. Panagopoulos has a degree in physics and a PhD in biology from the University of

Athens, focusing on biological effects of electromagnetic fields. He completed his PhD in 2001,

and he has done post-doctoral research on cell death induction by non-ionizing radiation. Since

2002 he has been a researcher and lecturer in the Biology Department of the University of

Athens, where he also founded the Radiation Biophysics Laboratory. Dr. Panagopoulos is a

regular peer reviewer for several international scientific journals. The journal Mutation

Research named him a “Top 10 cited Author in 2007 & 2008” for his article “Cell Death induced

by GSM 900 MHz and DCS 1800 MHz Mobile Telephony Radiation.” Dr. Panagopoulos has

conducted and authored 22 peer-reviewed studies related to cell phone radiation and has given

numerous presentations at conferences on the biological effects of EMFs. He is the founder and

director of the Radiation and Environmental Biophysics Research Centre, a private research

laboratory. He was invited to testify on the health effects of cell phone radiation before the

Greek Parliament in 2005, and the Canadian Parliament in 2010. After testifying before the

Canadian Parliament, the University of Athens took away his office and laboratory at the

University. Hr’g Tr. 1423:7-1425:25 Dec. 13, 2013.61 As of January 15, 2014, he began

working at the National Centre for Scientific Research of Greece “Demokritos” (Institute of

Radioisotopes, laboratory of Health Physics).

Defendants do not challenge Dr. Panagopoulos’ qualifications as a biophysicist,62 and the

court does not have any reason to doubt his competency. See Haidak, 841 A.2d at 327.

Because biophysics and in vivo studies of cell phone radiation are relevant to the general

61 Dr. Panagopoulos testified that two other scientists who testified before the Canadian Parliament regarding health risks from cell phones, one French and one Swedish, suffered the same fate. Id. 62 Defendants do argue that Dr. Panagopoulos is not qualified to be an expert on cancer causation because he is not a medical doctor, or a cancer specialist. But Dr. Panagopoulos is qualified in biophysics and related fields, and he is not offering an opinion on whether cell phone radiation causes glioma or acoustic neuroma.

66

causation determinations in this case, Dr. Panagopoulos’ expertise and opinions would probably

aid the factfinder. Therefore, Dr. Panagopoulos satisfies the second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Panagopoulos’ opinions are derived principally from his own laboratory experiments

exposing fruit flies to cell phone radiation. In these experiments, Dr. Panagopoulos (or another

member of his research team) placed adult fruit flies, separated by gender, into test tubes, which

contained standard fly food in the bottom and were sealed with cotton plugs to allow the flies to

breathe but not escape. The researchers then positioned a commercially available cell phone

against the test tube so that the antenna of the phone was touching and parallel to the tube. Dr.

Panagopoulos testified that the researchers used a typical consumer cell phone for the

experiments in order “to test the effects of the real thing.” Hr’g Tr. 1249:17-1250:17 Dec. 12,

2013. The vials of flies were then exposed or sham-exposed to cell phone radiation.63 Exposure

consisted of a researcher reading a script into the phone during a phone call. For the sham-

exposed group, the researcher read the same script, but the phone was turned off. Each exposure

constituted a “dose,” and the vials were dosed multiple times over the course of the experiment.

After 48 hours, the male and female flies were combined into one vial to allow them to mate

while exposures and sham-exposures continued for another 72 hours. The flies were then

removed from the vials and the vials, containing developing embryos, were kept in a culture

room for another six days without exposure to additional cell phone radiation. The researchers

then counted the number of pupae in the exposed and sham-exposed samples to compare the

reproductive capacity of each group. This count was blinded. The researchers also used the

63 “Sham-exposure” is what a researcher does to the control group. To control for other variables, the sham-exposed group receives the exact same treatment as the exposed group, except for the variable being tested (in this case, cell phone radiation).

67

TUNEL assay and two other assays to analyze the ovaries of the exposed and sham-exposed

female flies.

Based on these experiments, Dr. Panagopoulos found that exposure to radiation from cell

phones caused severe DNA damage, impairing the flies’ reproductive capacity.64 Based on his

knowledge of the literature and the genetic similarities between fruit flies and humans, Dr.

Panagopoulos concluded that cell phone radiation more likely than not causes adverse health

effects in humans. His opinion is that cell phone radiation can damage DNA in humans the same

way it does in fruit flies, because the relevant cellular and genetic structures of humans and flies

are similar.

Plaintiffs argue that Dr. Panagopoulos’ experimental methodology was flawless and

controlled for all possible confounding variables through his control of environmental factors,

stress, temperature, and his use of sham-exposure. They note that all three assays used by Dr.

Panagopoulos are common, generally accepted laboratory techniques for assessing various

conditions. Dr. Panagopoulos developed his methodology back in 1999 and has used it to

publish numerous peer-reviewed articles over 14 years. Hr’g Tr. 1260:6-12 Dec. 12, 2013. He

testified that his methodology has never been publicly criticized and has been used by two other

studies, Weisbrot 200365 and Margaritis 2013.66 Hr’g Tr. 1260:13-21 Dec. 12, 2013.

Defendants argue that Dr. Panagopoulos’ exposure methodology of holding a commercial

cell phone next to a test tube is not generally accepted, and for that reason his expert testimony

cannot satisfy the Dyas/Frye standard. Dr. Panagopoulos developed this methodology, and the

64 Dr. Panagopoulos has posited what he calls the “Ion Force Vibration Theory,” a theory for a mechanism by which non-ionizing radiation could directly break DNA bonds. It is apparent from the record that this novel theory does not have a widespread following and is not generally accepted in the scientific community. 65 Weisbrot D., et al, Effects of mobile phone radiation on reproduction and development in Drosophila melanogaster, J. Cell Biochem. 89(1): 48-55 (2003). 66 Margaritis L.H., et. al., Drosophila oogenesis as a biomarker responding to EMF sources, Electromagn. Biol. Med. Early Online, 1-25 (2013).

68

record shows that almost no one outside of the University of Athens uses it.67 The British Health

Protection Agency has criticized this exposure method based on its inconsistent levels of

exposure and insufficient experimental control. See HPA 2012 at 36. IARC likewise criticized

Dr. Panagopoulos’ experiments for having “several shortcomings related to the methods of

exposure assessment and temperature control, which could have influenced the results.” IARC

Monograph at 291. The Monograph also noted that at least one of these studies used “unreliable

dosimetry” by placing the vials adjacent to the phone antenna. Id. at 341.

Defendants point out that the Margaritis 2013 study should not count as independent

acceptance of Dr. Panagopoulos’ methodology, because Dr. Margaritis was a collaborator and

co-author on Dr. Panagopoulos’ studies. According to defendants, the only other evidence of

“general acceptance” is the Weisbrot 2003 study, which IARC criticized for the same kind of

methodological flaws that IARC found in Dr. Panagopoulos’ work. See IARC Monograph at 341

(“Unreliable dosimetry: exposure by placing vials next to mobile-phone antenna”); see also

ICNIRP 2009 at 176 (Weisbrot 2003 “difficult to interpret because of lack of RF dosimetry”).

Dr. Panagopoulos’ exposure methodology is a novel technique which, to the best of the

court’s knowledge, has not previously been scrutinized under Frye (or Daubert, for that matter).

Even if his methodology produces valid results,68 plaintiffs have failed to show by a

preponderance of the evidence that his exposure methodology is generally accepted. Pettus, 37

A.3d at 217; Porter, 618 A.2d at 633. “It is not the court’s role to resolve disputes within the

scientific community. The very existence of a dispute precludes admission.” United States v.

Jenkins, 887 A.2d 1013, 1022 (D.C. 2005); see also (Ricardo) Jones, 27 A.3d at 1136;

67 Weisbrot 2003 is the only study in the record using this method outside of the University of Athens. 68 Under Frye it is not the proper function of the court to determine whether Dr. Panagopoulos’ exposure methodology produces scientifically valid results. (John) Jones, 990 A.2d at 981 (court need not understand underlying science to determine admissibility).

69

(Nathaniel) Jones, 548 A.2d at 42. A novel methodology will fail the Frye test if there are

scientists in either number or experience who publicly oppose it. Minor, 57 A.3d at 420; Porter,

618 A.2d at 634. The record makes clear that the Panagopoulos exposure methodology of

placing a cell phone next to a vial of flies has not obtained general acceptance. Few, if any, other

scientists have adopted it, and it has been criticized or received negative comment from IARC,

the HPA, and ICNIRP.

Dr. Panagopoulos’ exposure methodology is central to his laboratory experiments and to

the causation opinions for which plaintiffs have proffered him as an expert. Because he did not

use a generally accepted methodology, Dr. Panagopoulos does not satisfy the third requirement

of Dyas, and his testimony must be excluded.69

G. Dr. Abraham Liboff

i. Field and Opinion “Beyond the Ken”

Dr. Abraham Liboff is a physicist and molecular biologist who has had a long and

accomplished career studying electromagnetic effects on biological systems. Dr. Liboff

concludes, to a reasonable degree of scientific certainty, that RF and ELF radiation from cell

phones can cause non-thermal biological changes. Dr. Liboff does not offer an opinion on

whether cell phones cause or promote glioma, acoustic neuroma, or any other type of tumor.

Rather, his opinion is limited to biological plausibility, based on his belief that the RF and ELF

radiation emitted by cell phones are “biologically interactive” and have produced various effects

in cells and animals. Liboff Exp. Rpt. 3.

69 Because Dr. Panagopoulos cannot satisfy the Dyas test, the court need not determine whether the probative value of his testimony would be substantially outweighed by the risk of prejudice under Rule 403. Nor is it necessary to consider defendants’ other grounds for exclusion: (1) Dr. Panagopoulos does not offer a cancer causation opinion: (2) if he does hold such an opinion, he is not qualified to offer it; and (3) in any event, it is not generally accepted to infer cancer causation in humans from DNA damage in fruit flies, even if RF radiation, under proper conditions, were capable of causing DNA damage in fruit flies, particularly where Dr. Panagopoulos fails to account for the uniformly negative whole animal studies.

70

Dr. Liboff’s field of expertise and the opinions he offers are beyond the ken of a

layperson, and he therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Liboff received his PhD in physics from New York University in 1964 and first

began experimenting with magnetic fields in the late 1960s. From 1965 to 1972, Dr. Liboff was

a researcher and professor in the NYU Department of Physics. For thirty years, from 1972 to

2002, he was a physics professor at Oakland University in Rochester, Michigan (he is now a

professor emeritus), where he served as the Chairman of the Physics Department and the

Director of the Doctoral Program in Medical Physics. From 2004 to 2010, he was a research

professor in the Center for Molecular Biology and Biotechnology at Florida Atlantic University.

At various times during his academic career, Dr. Liboff conducted research for General Electric

and the Sylvania Corporation, and he served as a consultant to numerous government agencies

and private corporations. He was a Management Fellow at the Department of Energy and a

National Research Council Fellow at the Naval Medical Research Institute. From 1998-2010,

Dr. Liboff was the Editor of Electromagnetic Biology and Medicine, a scientific journal. Dr.

Liboff is a peer reviewer for many major scientific journals including Science, Nature, Physical

Review Letters, Neuroscience Letters, Bioelectromagnetics, among others.

Dr. Liboff has been awarded 41 patents in the area of electromagnetic therapy, including

patents for devices used today to repair bones using Ion Cyclotron Resonance, a theory he

developed and introduced at a NATO conference in 1984. He has published more than 100 peer-

reviewed articles, book chapters, and other reviews, and has given dozens of presentations on

electromagnetic interactions with biological systems. In 1994, Dr. Liboff was a member of a

five-person group responsible for preparing the Bioelectromagnetic Applications to Medicine

71

Report for the National Institutes of Health. Dr. Liboff also participated in the drafting of

IARC’s 2001 statement declaring that non-ionizing electromagnetic radiation is a possible

carcinogen. Dr. Liboff testified70 that despite his retirement, he continues to keep current with

the developing science in his field.

Defendants do not challenge Dr. Liboff’s credentials. Dr. Liboff is well-qualified to

testify as an expert on matters relating to biophysics, electromagnetics, and the biological effects

of cell phone radiation. Because these subjects are relevant to the general causation

determinations in this case, Dr. Liboff’s expertise and opinions will probably aid the factfinder.71

Therefore, Dr. Liboff satisfies the second requirement of Dyas.

iii. General Acceptance of Methodology

Dr. Liboff’s opinions are based on his review of the scientific literature, including peer-

reviewed and published empirical studies (both his own and those of others), as well as his

knowledge acquired through discussions with other scientists conferences and his experience as a

peer-reviewer for many journals. Ex. PX0028 (Liboff 11/20/13 de bene esse Dep. Tr.) at 67:1-

72:1. Dr. Liboff testified that he gave more weight to the publications of researchers he felt were

more trustworthy and reliable, based on his years of experience in the field. Id. at 85:8-86:18.

While defendants argue that Dr. Liboff does not have any describable methodology, most of their

opposition to Dr. Liboff is directed at his conclusions, rather than at his methodology. Drawing

conclusions from a fair qualitative and quantitative review of the published scientific literature is

a generally accepted methodology. Georgetown, 75 A.3d at 292; Wilson Sporting Goods, 59

A.3d at 1272; Agent Orange, 611 F.Supp. at 1243. Surely such a methodology does not lose

70 Dr. Liboff, who is in his eighties, lives in Florida and does not travel. He testified de bene esse and his videotaped deposition was played in its entirety at the Frye hearing. 71 Defendants argue that Dr. Liboff’s opinion that radiation from cell phones causes “biological change” is irrelevant to the issues of this case. However, the standard for relevance is quite permissive and Dr. Liboff’s opinion on biological plausibility could be helpful to the jury. In re LC, slip op. at 11-15.

72

general acceptance when you add fifty years worth of scholarly experience on top of it. Dr.

Liboff used a generally accepted methodology, and his proffered testimony satisfies the third

requirement of Dyas.

iv. Probative vs. Prejudicial

Dr. Liboff’s testimony will be probative on the issue of biological plausibility. His expert

opinions are limited to the biological effects of cell phone radiation, and he cannot testify beyond

that to the more specific issues relating to cancer causation, glioma, and acoustic neuroma.

Defendants will have ample opportunity to cross-examine him and offer their own evidence in

opposition, including evidence that the biological effects cited by Dr. Liboff are many steps

removed from cancer causation in humans. There is little risk that Dr. Liboff’s testimony will

mislead or confuse the jury in a way that would result in undue prejudice. Therefore, the

probative value of Dr. Liboff’s testimony is not substantially outweighed by the risk of undue

prejudice.

H. Dr. Laura Plunkett

i. Field and Opinion “Beyond the Ken”

Dr. Laura Plunkett is a pharmacologist and toxicologist whose work focuses on human

health risk assessment. Dr. Plunkett does not offer any opinions directed to the ultimate issue in

this phase of the litigation, general causation of brain tumors, but instead she validates the

methodologies of other experts and the inferences that can fairly be drawn from different lines of

scientific evidence. She is essentially a support witness. Dr. Plunkett offers three opinions,

expressed to a reasonable degree of scientific certainty: 1) “Weight of Evidence” is a generally

accepted methodology for inferring disease causation; 2) it is generally accepted to extrapolate

results from fruit fly and other in vivo studies to predict health effects in humans; and 3) it is

73

generally accepted to extrapolate findings from in vitro studies in human and mammalian cells to

predict health effects in humans.

Dr. Plunkett’s field of expertise and the opinions she offers are beyond the ken of the

average layperson, and she therefore satisfies the first requirement of Dyas.

ii. Qualifications and Aid to the Factfinder

Dr. Plunkett received her PhD in pharmacology from the University of Georgia in 1984.

From 1984 to 1986, she was a research fellow at the National Institute of General Medical

Sciences, and she worked in a neurosciences laboratory in the National Institute of Mental

Health. From 1986 to 1989, she was a researcher and professor of pharmacology and toxicology

at the University of Arkansas medical school. From 1989 to 1997, Dr. Plunkett worked for the

ENVIRON Corporation, where she consulted on regulatory matters before the Food and Drug

Administration and Environmental Protection Agency. Since 2001, Dr. Plunkett has been a

consultant with Integrative Biostrategies, LLC, where she advises companies on regulatory

affairs and business decisions related to pharmacology, toxicology, and health risk assessment.

She has conducted original laboratory research and has served as a peer-reviewer for scientific

journals.

Defendants declined to cross-examine Dr. Plunkett at the Frye hearing and barely

mention her in their post-hearing brief.72 The court does not have any reason to doubt her

competency. See Haidak, 841 A.2d at 327. Dr. Plunkett is qualified to testify as an expert in

pharmacology, toxicology, and methods of assessing risks to human health, and her testimony

72 In their initial memorandum in support of their motion to exclude plaintiffs’ experts, defendants only briefly criticized Dr. Plunkett, and that criticism was largely aimed at her opinion on fruit fly research.

74

could aid the jury to the extent it is relevant and not merely cumulative. See In re L.C., slip op.

at 11-15.73

Dr. Plunkett’s first opinion that WOE is a valid methodology is irrelevant because the

court has concluded that Dr. Kramer’s testimony should be excluded. Dr. Plunkett’s second

opinion on the value of fruit fly studies in determining human health risks is also irrelevant,

because the court has concluded that Dr. Panagopoulos’ testimony is not admissible under

Dyas/Frye. However, because the court is denying defendants’ motion to exclude Dr.

Mosgoeller, whose opinions are based in part on the results of in vitro experiments, Dr.

Plunkett’s third opinion could aid the factfinder. Accordingly, Dr. Plunkett satisfies the second

requirement of Dyas, with respect to her third opinion. See Benn, 978 A.2d at 1275 (court can

limit the scope of expert testimony).

iii. General Acceptance of Methodology

Defendants do not challenge Dr. Plunkett’s methodology. To reach her opinions, Dr.

Plunkett conducted a systematic literature review and her conclusions about how toxicologists

assess risks to human health are based on her experience as a toxicologist and pharmacologist.

Dr. Plunkett used generally accepted methodology, and her testimony satisfies the third

requirement of Dyas.

iv. Probative vs. Prejudicial

Dr. Plunkett’s testimony to the jury will merely corroborate the opinions of other experts.

She has offered no causation opinions, and therefore she cannot testify on the ultimate issue of

whether radiation from cell phones can cause or promote glioma or acoustic neuroma. To the

extent that her testimony is not excluded as merely cumulative, defendants will have ample

73 For reasons unrelated to Dyas, it is not clear that Dr. Plunkett will be a trial witness. To the extent that she does no more than tell the jury that another expert used a valid scientific methodology, her testimony might be excluded.

75

opportunity to cross-examine her and offer their own evidence in opposition. The probative

value of Dr. Plunkett’s testimony is not substantially outweighed by the risk of undue prejudice.

ORDER

For the foregoing reasons, it is this 8th day of August, 2014,

ORDERED that Defendants’ Motion to Exclude Plaintiffs’ Proffered General Causation

Expert Testimony is granted in part and denied in part; and it is further

ORDERED that the proffered expert testimony of Dr. Shira Kramer on general causation

is excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Michael Kundi on general

causation is not excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Guatam Khurana on general

causation is excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Igor Belyaev on general causation

is not excluded, except that any opinions based solely on his laboratory research using the AVTD

method are excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Wilhelm Mosgoeller on general

sausation is not excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Dimitris Panagopoulos on general

causation is excluded; and it is further

ORDERED that the proffered expert testimony of Dr. Abraham Liboff on general

causation is not excluded; and it is further

76

ORDERED that the proffered expert testimony of Dr. Laura Plunkett on the general

acceptance of predicting health effects in humans from in vitro studies of human and mammalian

cells is not excluded; but her proffered expert testimony on the general acceptance of the “weight

of the evidence” methodology and on the general acceptance of predicting health effects in

humans from in vivo studies of fruit flies is excluded.

__________________________________ Judge Frederick H. Weisberg Copies eServed to: All Counsel listed in Case File Xpress

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

547 A.2d 163District of Columbia Court of Appeals.

Juan G. POSADA, Jr., M.D., andGeorgetown University Hospital, Appellants,

v.Vivian KILPATRICK, Individuallyand as Personal Representative for

Otis E. Kilpatrick, deceased, Appellee.

No. 85-1523. | Argued June 6,1988. | Decided Sept. 2, 1988.

Patient's wife brought medical malpractice action againsthospital, clinical fellow in oncology, attending physiciansupervisor, and radiologist resident to recover damagesfor leg amputation necessitated by lymphangiogram. TheSuperior Court, Paul R. Webber, III, J., directed verdictfor resident and jury returned verdict in favor of supervisorand against fellow and hospital. After motion for judgmentsnotwithstanding the verdict were denied, hospital and fellowappealed. The Court of Appeals, Ferren, J., held that: (1)the Superior Court did not abuse its discretion by refusingto strike general surgeon's expert testimony; (2) technicalnature of controversy required establishment of applicablestandard of care through expert evidence; (3) evidence didnot support finding that fellow was jointly responsible withsupervisor for initially ordering the lymphangiogram; and (4)expert testimony did not establish standard of care requiringfellow to interdict performance of lymphangiogram or torelay radiologist's concern about patient's circulatory disorderto supervisor.

Reversed and remanded.

West Headnotes (7)

[1] EvidenceDue Care and Proper Conduct in General

Trial court did not abuse its discretion byrefusing to strike, for lack of proper credentials,general surgeon's testimony regarding standardof care for oncology, therapeutic radiology, andvascular surgery, in action wherein patient'swife alleged that doctor negligently orderedlymphangiogram that necessitated amputation

of leg of patient, who suffered from peripheralvascular disease and lymphoma; licensedphysician may give expert testimony on standardof care in medical speciality even if it is not inparticular area of physician's expertise.

1 Cases that cite this headnote

[2] EvidenceMedical Testimony

General surgeon's reliance on article didnot preclude admission of surgeon's experttestimony, in medical malpractice action, eventhough surgeon refused to acknowledge, oncross-examination, that treatise written byarticle's author was authoritative; trial courtdetermined that surgeon's reliance on author wasminor in comparison with all other bases forsurgeon's opinion.

Cases that cite this headnote

[3] HealthElements of Malpractice or Negligence in

General

In order to prevail in medical malpractice action,plaintiff must prove three elements: applicablestandard of care, deviation from that standard ofcare, and causal relationship between deviationand alleged injury.

1 Cases that cite this headnote

[4] HealthGross or Obvious Negligence and Matters

of Common Knowledge

Standard of care applicable in medicalmalpractice action must be established byexpert testimony unless lay person, relying oncommon knowledge and experience, can findthat harm would not have occurred in absence ofnegligence.

Cases that cite this headnote

[5] HealthParticular Procedures

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Applicable standard of care had to beestablished by expert evidence in medicalmalpractice action concerning risks and benefitsof lymphangiogram in evaluating spread ofHodgkin's disease on patient with peripheralvascular disease; lymphangiogram necessitatedleg amputation.

2 Cases that cite this headnote

[6] HealthDiagnosis and Treatment of Cancer

Evidence did not support finding that clinicalfellow in oncology was jointly responsiblewith attending physician supervisor for initiallyordering lymphangiogram to evaluate spread ofHodgkin's disease on patient with peripheralvascular disease, in medical malpractice actionto recover damages for leg amputationnecessitated by the lymphangiogram.

Cases that cite this headnote

[7] EvidenceDue Care and Proper Conduct

Expert testimony did not establish standardof care requiring clinical fellow in oncologyto interdict performance of lymphangiogram,which had been ordered to evaluate spread ofHodgkin's disease on patient with peripheralvascular disease, or to relay radiologists' concernregarding patient's circulatory disorder toattending physician supervisor; therefore, fellowcould not be held liable for “negligent ordering”of the lymphangiogram that necessitatedamputation of patient's leg.

Cases that cite this headnote

Attorneys and Law Firms

*164 J. Alan Galbraith, with whom Dianne Jean Smith,Washington, D.C., was on the brief, for appellants.

*165 Benjamin W. Glass, III, with whom Brian C. Shevlinand Joan E. Jennings, Arlington, Va., were on the brief, forappellee.

Before FERREN, ROGERS, and SCHWELB, AssociateJudges.

Opinion

FERREN, Associate Judge:

Dr. Juan G. Posada, Jr., and Georgetown University Hospitalappeal from a jury verdict finding them negligent in ordering alymphangiogram that eventually necessitated amputating theleft leg of Otis E. Kilpatrick, appellee's late husband. Theyargue that the trial court erred in denying their motions forjudgment notwithstanding the verdict, for they say, amongother reasons, that expert testimony did not support thefinding of negligence. Appellants also argue that the trialcourt erred in granting appellee her costs, and they askfor their own costs. We reverse and remand for entry ofjudgments notwithstanding the verdict and further remand forreconsideration of awarding the costs of suit.

I.

On April 29, 1980, Mr. Kilpatrick saw Dr. Charles A.Hufnagel at Georgetown University Hospital for treatment ofa peripheral vascular disease, a circulatory disorder resultingin a diminished blood supply to the legs. During the visit, Dr.Hufnagel noticed a lump on the left side of Mr. Kilpatrick'sneck. After a biopsy, the doctor diagnosed Mr. Kilpatrick assuffering from lymphoma, a tumor in the lymph nodes. Dr.Hufnagel referred Mr. Kilpatrick to Dr. Frederick P. Smith,a specialist in oncology. Dr. Smith became Mr. Kilpatrick'sattending physician and was responsible for his medicalcare in connection with the lymphoma. At the time, Dr.Posada was training in oncology as a fellow assigned toDr. Smith. When Mr. Kilpatrick arrived, Dr. Smith had Dr.Posada examine him and take his medical history. After Dr.Posada reported his findings, Dr. Smith personally examinedMr. Kilpatrick to confirm the symptoms associated with thelymphoma, as well as the medical history relating to theperipheral vascular disease. Dr. Smith also examined Mr.Kilpatrick's feet, finding them warm and with good color.

Although it was clear by the end of April that Mr. Kilpatrickhad a malignant lymphoma, the doctors had yet to determinewhat kind of lymphoma it was and how far the disease hadspread. The selection of a course of treatment depended onthe extent of the disease. If it had spread to the the abdomen,the preferred treatment would involve chemotherapy. If it had

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

not spread that far, chemotherapy could be avoided in favorof radiation therapy, which would expose Mr. Kilpatrickto fewer side effects-an especially important considerationgiven his peripheral vascular disease. After a chest X-rayand a CT scan on May 1 failed to disclose the spread ofMr. Kilpatrick's malignancy below the neck, Dr. Smith andDr. Posada discussed ordering a lymphangiogram to diagnosemore conclusively whether the lymph nodes in the abdomenhad been affected by the malignancy, which by then wasknown to be Hodgkin's disease. The hope, still, was to avoidchemotherapy, in favor of radiation therapy, if safe to do so.

A lymphangiogram involves injecting a small amount of dyebetween two toes of each foot and following the movementof that dye to find the lymphatic channels at the top ofeach foot, where the radiologist then makes an incision toinject a radiographic contrast medium. The incisions are thenclosed and bandaged. The contrast medium travels up thelympthatic channels through the legs into the abdomen. Whenthe radiologist X-rays the abodomenal lymph system, thecontrast medium highlights the lymphatic chain, showingthe size and location of the lymph nodes, and allows theirinternal structure to be represented on film. These films assistin diagnosing malignancy in the lymph nodes and providea basis for designing radiation treatment if the patient is toundergo that kind of therapy.

Because of Mr. Kilpatrick's peripheral vascular disease, thelymphangiogram entailed the likelihood of delayed healing,and perhaps also of infection, at the incision sites in thefeet. In deciding whether to *166 order a lymphangiogram,therefore, Dr. Smith consulted Dr. Dritschilo, a therapeuticradiologist and the Director of Radiation Therapy, who wouldbe treating Mr. Kilpatrick if such therapy was the chosencourse of treatment. Dr. Dritchilo advised Dr. Smith that heneeded the lymphaniogram to treat Mr. Kilpatrick. Indeed,he would not irradiate the patient without a lymphangiogramindicating absence of the disease below the diaphragm. Ifthe lymphangiogram could not be performed, therefore, thetreatment would have to be chemotherapy. Sometime afterMay 1, having considered Dr. Dritschilo's views, Dr. Smithdecided to order the lymphangiogram. There is no indicationin the record that Dr. Posada attended the consultationbetween Drs. Smith and Dritschilo.

On May 8, 1980, Dr. Michael Mertens performed alymphangiogram on Mr. Kilpatrick. Before the procedure, Dr.Mohammed A. Suleman, a resident in radiology under thesupervision of Dr. Mertens, had examined Mr. Kilpatrick and

prepared him for surgery. Noticing that the patient sufferedfrom peripheral vascular disease, Dr. Suleman had passed onhis finding to Dr. Mertens, who had instructed him to contactDr. Posada to determine whether this infliction had been takeninto account when Dr. Smith ordered the lymphangiogram.Dr. Suleman spoke over the phone with Dr. Posada, who thenwent to the room where Mr. Kilpatrick was being prepared forthe procedure. Dr. Posada observed Mr. Kilpatrick throughthe window. He returned to his other duties without speakingto Mr. Kilpatrick. The record does not show what, if anything,Dr. Posada said to Dr. Suleman about Mr. Kilpatrick'speripheral vascular disease and the lymphangiogram, but,in any event, Dr. Mertens went ahead with the procedureapparently satisfied that it was not inadvisable.

The lymphangiogram showed no malignancy in Mr.Kilpatrick's abdominal lymph nodes. Dr. Dritschiloproceeded with radiation treatment of Mr. Kilpatrick's tumor.The treatment was successfully completed by mid-June

1980. 1 The top of Mr. Kilpatrick's left foot, however, didnot heal from the incision made during the lymphangiogram.As a consequence, on November 28, 1980, his left leg wasamputated below the knee.

1 In August, 1982, Mr. Kilpatrick died of a malignancy

unrelated to his Hodgkin's disease.

Two years later, Vivian Kilpatrick, Mr. Kilpatrick'swidow, filed a complaint, on behalf of herself and aspersonal representative of her late husband's estate, againstGeorgetown University Hospital (Georgetown) and threephysicians who had treated her husband: Drs. Smith, Posada,and Suleman. She alleged that Dr. Smith had been negligent in“requesting” the lymphangiogram, that Dr. Posada had been“negligent in allowing the [lymphangiogram] to proceed withthe knowledge he possessed regarding the peripheral vasculardisease of the decedent,” and that Dr. Suleman was negligentin performing the procedure. She also complained that allthree doctors had failed to obtain Mr. Kilpatrick's informedconsent for the lymphangiogram and had been negligent intreating him after the procedure. She further alleged thatGeorgetown was vicariously liable for the negligence of thedoctors. On behalf of Mr. Kilpatrick, she sought to recoverfor the injuries resulting from the lymphangiogram; and, onbehalf of herself, Mrs. Kilpatrick sought compensation forloss of consortium. In addition, she requested the court toaward her costs.

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

In January 1985, Judge Webber granted defendants' motionfor summary judgment on the claims of alleged negligentperformance of the lymphangiogram and negligent post-lymphangiogram treatment. The court, however, found that“the issues of negligent ordering of the lymphangiogram,failure to obtain informed consent and loss of consortium ”remained to be litigated. (Emphasis in original.) The recordindicates no objection by counsel for Mrs. Kilpatrick tothis statement of issues for trial. Nor does it show anyattempt by Mrs. Kilpatrick to define “ordering,” as she hadin her complaint against Dr. Posada, not merely as theinitial “ordering” itself but as an ongoing decisional processcovering *167 the period from the date of the decisionto request the lymphangiogram to the time of its actualperformance. With regard to the informed consent issue,the court concluded there was “no dispute of fact that Mr.Kilpatrick was aware of the risks and potential complicationswhich could have resulted from the procedure.” What wasleft for determination at trial regarding informed consent,therefore, was “whether or not any alternative treatmentprocedures were offered to the plaintiff patient.” (Emphasisin original.)

At the close of plaintiff's case, the trial court directed a verdictfor Dr. Suleman on the issue of negligent performance ofthe lymphangiogram (the court earlier had granted summaryjudgment for all defendants on that issue). At the end oftrial, the jury, using a special verdict form, returned a verdictin favor of all defendants on the issue of informed consent.The jury also found that Dr. Smith had not been negligent inordering the lymphangiogram. The jury, however, found, Dr.Posada and, vicariously, Georgetown negligent for orderingthat procedure. (Plaintiff had not alleged Dr. Sulemanhad participated in the ordering.) The jury awarded Mrs.Kilpatrick individually $10,000 for loss of consortum and, asrepresentative of her late husband, $50,000.

Before discharge of the jury, the defendants moved toresubmit the case to the jury to resolve what they saw asan inconsistency in the verdict for Dr. Smith and againstDr. Posada and Georgetown on the same issue-negligentordering of the lympathangiogram-especially because, theysaid, the evidence showed that Dr. Smith alone had orderedthe procedure and that the only complaint against Dr. Posadawas his allegedly negligent failure to stop it from taking place.The trial court denied this motion.

Dr. Posada and Georgetown then filed a written motion forjudgments notwithstanding the verdict. They argued, once

again, that Dr. Posada had not ordered the lymphangiogramand, therefore, that he and Georgetown could not possiblyhave been negligent in ordering the procedure. They furthercontended that, because the jury verdict on the issue ofinformed consent could only be interpreted to mean there hadbeen no alternative to the lymphangiogram, the implicationhad to be that, even if Dr. Posada had participated in orderingthe procedure, as a matter of law he could not have doneso negligently since the court previously had found that Mr.Kilpatrick had been informed of the risk. At the hearing on themotion, the parties agreed that the jury had found Dr. Posadanegligent in “ordering” the lymphangiogram only because hehad failed to stop performance of the procedure on May 8.The defendants argued that there was no expert testimony tosupport such a verdict. On October 15, 1985, Judge Webberdenied the motion for judgments n.o.v. and awarded costs toMrs. Kilpatrick.

[1] [2] Dr. Posada and Georgetown have appealed,alleging that the trial court erred in denying their motion forjudgments n.o.v. They contend that there was insufficientevidence to show Dr. Posada had participated in orderingthe lymphangiogram and that, even if there was sufficientevidence, Mrs. Kilpatrick had failed to present the experttestimony necessary to show that Dr. Posada's actions had

violated the applicable standard of care. 2 Dr. Posada *168and Georgetown also contend the trial court erred in awardingMrs. Kilpatrick her costs, and they seek an award of their owncosts.

2 Appellants also allege that Mrs. Kilpatrick's expert

witness at trial, Dr. William Brownlee, a general

surgeon, was not qualified to testify on the standard of

care for oncology, therapeutic radiology, and vascular

surgery. They further argue that the trial court abused

its discretion in refusing to strike Dr. Brownlee's

testimony because he refused to acknowledge, on cross-

examination, that a treatise by Dr. Henry S. Kaplan was

authoritative while he later revealed that he had relied

on an article co-authored by Dr. Kaplan. Appellants

concede that, in this jurisdiction, a licensed physician is

permitted to give expert testimony on the standard of care

in a medical specialty even if it is not in the particular

area of his or her expertise. Baerman v. Reisinger, 124

U.S.App.D.C. 180, 363 F.2d 309 (1966). The trial court,

therefore, did not abuse its discretion in refusing to strike

Dr. Brownlee's testimony for lack of proper credentials.

Nor did the court abuse its discretion in refusing to strike

Dr. Brownlee's testimony because of his reliance on Dr.

Kaplan's article. Indeed, we perceive no basis for the trial

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

court to have stricken the testimony. The court found that

the reliance on Dr. Kaplan was minor in comparison with

all the other bases for Dr. Brownlee's opinion.

In making these arguments, appellants seek only to

buttress their case for insufficient evidence; they do

not seek a new trial. Nor do they seek a new trial based

on the allegedly inconsistent verdicts exonerating Dr.

Smith but finding Dr. Posada liable for negligently

ordering the lymphangiogram. Appellants candidly

admit that the costs of a new trial would, in effect,

erase the benefits of such relief.

II.

[3] [4] [5] In reviewing the denial of a judgment n.o.v.,“ ‘this court must view the evidence and all reasonableinferences in the light most favorable to the party whoobtained the jury verdict’ and must reverse ‘only if nojuror could reasonably reach a verdict for the opponentof the motion.’ ” District of Columbia v. Cassidy, 465A.2d 395, 397-98 (D.C.1983) (per curiam) (quoting MarcelHair Goods Corp. v. National Savings & Trust Co., 410A.2d 1, 5 (D.C.1979)). In order to prevail in a medicalmalpractice action, the plaintiff must prove three elements:the applicable standard of care, a deviation from that standardof care, and a causal relationship between that deviationand the alleged injury. Meek v. Shepard, 484 A.2d 579, 581(D.C.1984). The standard of care must be established byexpert testimony unless “a lay person, relying on commonknowledge and experience, can find that the harm wouldnot have occurred in the absence of negligence....” Id. at581 n. 4; accord, Sponaugle v. Pre-Term, Inc., 411 A.2d366, 368 (D.C.1980); Haven v. Randolph, 161 U.S.App.D.C.150, 151, 494 F.2d 1069, 1070 (1974) (per curiam) (whenalleged blunder is so egregious that lay person is capable ofcomprehending its enormity, expert testimony on standardof care may not be required; but where negligence turns onmerits and performance of scientific treatment, issue may notbe resolved without aid of expert testimony). In the presentcase, the negligence issue turns upon the risks and benefitsof the lymphangiogram in evaluating the spread of Hodgkin'sdisease on a patient with peripheral vascular disease. Thetechnical nature of this controversy requires establishment ofthe applicable standard of care through expert evidence.

Several questions concerning Dr. Posada are presented in thisappeal: (1) Did Dr. Posada have any responsibility for thedecision to order the lymphangiogram in the first place? (2)Even if not, could the failure to call off the lymphangiogrambetween the date it was initially ordered, sometime after May

1, and the time it was performed, May 8, be consideredpart of the decision to “order” the procedure? (3) If so, didany event occur during that period, or was there any otherreason, tending to support a jury finding (if based on experttestimony) that Dr. Posada was negligent in failing to take anystep to question or stop the decision to conduct the procedure?(4) If so, did plaintiff present expert testimony that couldproperly serve as a basis for the jury to find such negligence?

A.

[6] According to Dr. Smith's and Dr. Posada's trialtestimony, Dr. Posada examined Mr. Kilpatrick and took hismedical history on April 29, 1980. Dr. Posada did not recalldiscussing diagnostic or “staging” procedures with Dr. Smiththat day, but he did recall that soon they did so and discusseddoing a lymphangiogram only if the CT scan turned out to benegative. Dr. Posada also recalled discussing with Dr. Smiththat a lymphangiogram was a safer diagnostic procedure

than a laparotomy 3 and was likely to yield almost as muchrelevant information. Consequently, he said, a laparotomy“was never considered.” Referring to the staging procedures,Dr. *169 Smith, in a deposition read into evidence, testifiedthat “as the studies were done at the time, I would delineateand supervise plans and we'd have a one-step, two-step, three-step type of situation with my fellow, Dr. Posada. I wasthe director of the clinical fellowship program.” That is allthe direct evidence of Dr. Posada's participation at the timeof Dr. Smith's decision sometime after May 1 to order alymphangiogram.

3 A laparotomy is surgery to open the abdomen. Plaintiff's

expert witness, Dr. Brownlee, testified that instead of

ordering a lymphangiogram, the responsible physicians

could have chosen a laparotomy as a diagnostic

procedure to see the lymph nodes in the abdomen.

They also could have used a laparoscopy or a one-sided

lymphangiogram, he said.

Dr. Dritschilo, the doctor in charge of radiation therapy,testified that Dr. Posada's role as a fellow in oncology,training under Dr. Smith, was to do “a history and physical tocomplete the legal requirements for the particular situation.The decisions were made by the attending doctor, Dr. Smith,and myself.” Taking into account Mr. Kilpatrick's peripheralvascular disease, Dr. Dritschilo advised Dr. Smith that it wasup to Smith's clinical judgment what diagnostic proceduresto undertake and whether to do the lymphangiogram or toproceed, instead, with chemotherapy. There is no evidence

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

that Dr. Posada participated in Dr. Smith's consultation withDr. Dritschilo.

The foregoing evidence indicates that, as the attendingphysician supervising a clinical fellow in oncology, Dr. Smithdiscussed the staging and treatment of Mr. Kilpatrick withDr. Posada. Dr. Smith himself did not testify about thesediscussions with Dr. Posada, aside from references to theinitial medical examination and the patient's medical history.Dr. Posada did testify at length about these discussions and,in doing so, did not differentiate between his and Dr. Smith'sroles, typically using the word “we.” Dr. Smith, however,testified without contradiction that “Dr. Posada was undermy supervision.” Dr. Posada described attending physicians,such as Dr. Smith, as “mentors,” and Dr. Dritschilo testifiedthat such “mentors” “review[ed] everything” and that theyalone made the decisions. Taken altogether, the evidenceshows Dr. Posada was consistently characterized as a fellow“in training” or as working “under” Dr. Smith.

Accordingly, although there is evidence that Dr. Posadadiscussed the alternative staging procedures with Dr. Smith,none of this evidence would support a reasonable finding thatthe eventual decision to order the lymphangiogram was Dr.Posada's to make or that he had any responsibility for Dr.Smith's decision, other than being a consultative resource. Itis true the record shows that on May 8, immediately beforethe lymphangiogram, Dr. Suleman, at Dr. Mertens' request,asked Dr. Posada whether account had been taken of Mr.Kilpatrick's peripheral vascular disease. The record does notindicate how Dr. Posada replied, if at all. It does show thatDr. Posada then looked in on Mr. Kilpatrick but did not speakwith him. The evidence also shows that Dr. Posada eventuallywrote a letter to Dr. Hufnagel to inform him of the stagingprocedures that Mr. Kilpatrick had undergone. This evidence,however, cannot be used to infer a greater role for Dr. Posadain the initial decision-making than the other evidence allows.In sum, nothing in the record permits a reasonable finding thatDr. Posada was jointly responsible with Dr. Smith for initiallyordering the lymphangiogram.

B.

[7] The next question, then, is whether the failure to calloff a lymphangiogram during the week after it was orderedcould be considered part of an allegedly negligent “ordering”of the procedure. Mrs. Kilpatrick's complaint alleged Dr.Posada's negligence “in allowing the [lymphangiogram] to

proceed with the knowledge he possessed regarding theperipheral vascular disease of the decedent.” Mrs. Kilpatrickdid not attempt to clarify along this line, however, the court'sorder characterizing the issue as to all defendants simplyas “negligent ordering ” of the lymphangiogram. (Emphasisin original.) That is of no moment, however, for, in anyevent, it is reasonable to infer from the record (for example,from Dr. Mertens' request that Dr. Suleman consult with Dr.Posada about the patient's peripheral vascular disease) thatDr. Posada had ongoing monitoring responsibility for Mr.Kilpatrick. Furthermore, *170 it is reasonable to infer thatany physician with that responsibility would be obliged totake action to call off a scheduled procedure if a changeof circumstances so indicated; obviously, in ordering anyprocedure, the assumption has to be that the conditionswill continue to warrant it up to the time it takes place.In this sense, a procedure is not finally ordered until itis implemented, and we do not believe it is unreasonableto say that Dr. Posada could be held liable for “negligentordering” if he came upon new information that, in theexercise of reasonable care, he should have used as a basis forquestioning, if not stopping, the operation.

There is, moreover, another possible theory of liability basedon old information: if the “ordering” process is not completeuntil the procedure is actually carried out, then arguably anyphysician on a case in a position to interdict an inherentlynegligent decision to operate may have a responsibility to doso, even if that physician was not responsible for the decisionto operate. We shall proceed on that assumption.

C.

The question then becomes: whether any event occurred,or any other reason emerged, that reasonably could havetriggered a finding of negligence during the week after thelymphangiogram had first been ordered. The record reflectsonly one overt incident: Dr. Suleman's inquiry of Dr. Posada,at Dr. Mertens' request, as to whether the peripheral vasculardisease, which “concerned” the radiologists, had been takeninto account in ordering the lymphangiogram.

There is no record evidence that Mr. Kilpatrick's conditionhad worsened between the date Dr. Smith ordered thelymphangiogram (sometime after May 1) and the date it tookplace (May 8). Nor did Dr. Suleman or any other witnessindicate any factor that Dr. Smith had not considered orsuggest any material change of circumstances. Finally, it is

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

not self-evident that a question about the patient's disease bya radiologist (Dr. Suleman) in itself amounted to a specialwarning to an oncologist. In short, unless there was experttestimony that could support a separate finding of negligenceduring the period after Dr. Smith initially had ordered thelymphangiogram (on or about May 1), it is not evident thatDr. Posada would have been negligent in declining to pursueDr. Suleman's inquiry. That inquiry, so far as one can tell,was merely a question that added nothing to undermine whatDr. Posada already knew: Dr. Smith was fully aware of thepatient's disease and had taken that into account in orderingthe lymphangiogram.

This does not complete the picture, however, given Dr.Smith's alleged negligence in ordering the lymphangiogramin the first place. That suggests the question whether Dr.Posada, as a subordinate in the case, had an ongoing duty toact against his superior during the week before the operation,even though there may have been no change of circumstances.That question, too, suggests a need for expert testimony.

D.

Mrs. Kilpatrick's expert witness, Dr. William Brownlee,testified at trial that Dr. Smith, as the attending oncologist,violated the applicable standard of care in selecting alymphangiogram for Mr. Kilpatrick in light of his peripheralvascular disease. He stated that the risk of Mr. Kilpatrick'slosing his leg was too great to justify the information that thelymphangiogram would have yielded; a laparotomy (whichDr. Smith had rejected) would have been preferable. Supranote 3.

As indicated earlier, no evidence of record implicated Dr.Posada in the initial decision to order the lymphangiogram;thus, Dr. Brownlee's testimony that this decision, assignableto Dr. Smith, violated the applicable standard of care had nobearing on Dr. Posada unless that testimony somehow couldbe applied to Dr. Posada's behavior later, during the weekbefore May 8, such as his failure to act on Dr. Suleman'sinquiry or his failure, in any event, to act in some way againstDr. Smith's decision.

*171 Inherent in any breach of duty by a clinical fellowwho participates in a case but perceives (or reasonablyshould perceive) that the supervising physician has madea negligent decision would have to be the followingprofessional obligation: either to resign the case or to press the

supervisor to change the decision until the allegedly negligentoperation is called off or performed despite the fellow's bestefforts to stop it. Conceivably, there is such a responsibility,including a duty to report concerns to other officials withinthe hospital hierarchy, but Dr. Brownlee did not so testify.He did not testify that a medical subordinate, absent changedcircumstances, must continue to try to overturn the superior'sdecisions, if negligent, or be held professionally accountable(and thus jointly responsible for breach of the standard ofcare). Indeed, none of Dr. Brownlee's testimony pertainedto the question whether Dr. Posada, confronted with Dr.Suleman's later inquiry or otherwise aware of the riskto Mr. Kilpatrick, should have done something about thelymphangiogram after the initial decision had been made.

At one level, one can argue that any resident physician whoassists a supervising physician in carrying out what anyphysician reasonably should know is an inherently negligentoperation should be jointly liable for that negligence. On theother hand, a medical judgment often is just that-a judgment-on which reasonable, competent physicians can differ. As thiscase illustrates, it is far from clear from the jury's verdict thatthe lymphangiogram was ill-advised. Thus, without experttestimony as a guide, it is not clear that a physician inDr. Posada's position should have attempted to prevent thelymphangiogram, even if he should have had doubts aboutthe procedure Dr. Smith ordered. A mutiny of subordinatesmay be called for on occasion, but the jury needed moreguidance as to the criteria for judging such nullifying behaviorin a medical context, especially given the court's very generalinstruction: “a physician is required to have and use thatdegree of skill, care and learning ordinarily possessed andused by members of his profession in the same line ofpractice, acting in the same or similar circumstances.”

Dr. Brownlee did testify about Dr. Posada on the informedconsent issue: Dr. Posada had a duty to inform the patientof the risks and alternatives to the lymphangiogram. Dr.Brownlee added, however, that because Dr. Posada workedunder Dr. Smith's supervision, Dr. Smith bore primaryresponsibility for obtaining informed consent from Mr.Kilpatrick. After further discussion about informed consent,and without addressing specifically how Dr. Posada may havebreached that standard of care, Dr. Brownlee testified aboutproximate cause in response to questions from plaintiff'scounsel as follows:

Q Lastly, Doctor, do you have an opinion, also based upona reasonable degree of medical certainty, whether or notthey deviated from appropriate medical standards as you

Posada v. Kilpatrick, 547 A.2d 163 (1988)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

have just outlined, and as they apply to Doctors Smith,Posada, and Suleman, whether they proximately caused thegangrene and amputation suffered by Mr. Kilpatrick?

A I do.

Q What are they?

A That the amputation, the gangrene, the infection were alldirectly related and caused by lymphangiogram.

Q Were they proximately caused by the deviation by thephysician attending it?

A Indeed.

The discussion of informed consent and this exchangeabout proximate cause constituted all of Dr. Brownlee'stestimony about Dr. Posada. Even seen in the light most

favorable to Mrs. Kilpatrick, Cassidy, 465 A.2d at 397-98,Dr. Brownlee's testimony did not establish a standard ofcare requiring Dr. Posada, after learning of the radiologists'concern about the circulatory disorder, or for any otherreason, to interdict performance of the lymphangiogram orat least to relay the concern to his superior, Dr. Smith.Without such expert testimony, the jury lacked a proper basisfor finding Dr. Posada, Dr. Smith's subordinate, liable for“negligent ordering” of the lymphangiogram.

*172 We therefore reverse and remand the case to thetrial court for entry of judgments notwithstanding the verdicton the issue of negligent ordering of the lymphangiogram.In view of our disposition, the trial court on remand shallreconsider awarding the costs of suit.

So ordered.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.