Mass Tort Defense

"Science Day" In Mass Torts

Many mass torts involve complex medical and scientific issues.  Typically, general causation (can the product cause the injury alleged) and/or specific causation (did the product cause this injury) are debated.  Such questions often spawn Daubert or Frye challenges to expert opinion testimony,  motions in limine, and summary judgment motions that the trial court must wrestle with.

Accordingly, the notion of "educating the court" on the foundation of scientific issues often looms as an important task for defense counsel in mass torts.  One solution to this dilemma may be the "science day" on which the parties present an overview of the issues for the court.

The ABA CIVIL TRIAL PRACTICE STANDARDS note that in cases involving complex technology or other complex subject matter which may be especially difficult for non-specialists to comprehend, the court may permit or require the use of tutorials to educate the court. Tutorials are intended to provide the court with background information to assist the court in understanding the technology or other complex subject matter involved in the case. Tutorials may, but need not, seek to explain the contentions or arguments made by each party with respect to the technology or complex scientific subject matter.

In any case in which the court believes one or more tutorials might be useful in assisting it in understanding the complex technology or other scientific subject matter, the court should invite the parties to express their views on the desirability of one or more tutorials. Once the court decides to permit or require one or more tutorials, it should invite the parties to suggest the subject matter and format of each tutorial, notes the ABA.

If the parties cannot agree on the subject matter and format, the court should invite each party to submit a description of any tutorial it proposes and to explain how that tutorial will assist the court and why it is preferable to the tutorial proposed by another party. The court may approve one or more tutorials proposed by the parties, or the court may fashion its own tutorial after providing the parties with an opportunity to comment on the court's proposed subject matter and format.

A court may consider the following procedures for the presentation of tutorials:

  • An in-court or recorded presentation by an expert jointly selected by the parties;
  • an in-court or recorded presentation by one or more experts on behalf of each party;
  • an in-court or recorded presentation by counsel for each party;
  • a combined in-court or recorded presentation by counsel and one or more experts on behalf of each party;
  • an in-court or recorded presentation by an expert appointed by the court, which may include cross-examination by counsel for each party;
  • recorded presentations that have been prepared for generic use in particular kinds of cases by reliable sources such as the Federal Judicial Center.

In the context of patent cases, it is well recognized that the court may conduct a tutorial, the purpose of which is to receive expert testimony for background and education on the technology implicated by the presented claim construction issues in assisting the court in the task of construing the patent. See, e.g., L.L.C. v. Visa Int'l Serv. Assoc., 2005 WL 1552769, at *1 (N.D. Tex.).

The use of tutorials is not, however, limited to patent cases, or even to technology cases. See, e.g., In Re Pharmaceutical Industry Average Wholesale Price Litigation, 230 F.R.D. 61, 67 (D. Mass. 2005).

Some courts will use them as a pre-curser to Daubert hearings. Generally, they are with no cross-examination; no-transcripts and an agreement that no testimony can be used in subsequent Daubert hearings.

Courts may find them very helpful. See Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387 (at the outset of proceedings after remand from the MDL, counsel for all sides presented an all-day “tutorial” to the court on the complex science involved in these cases. The tutorial demonstrated the need for and prompted the court to appoint the technical advisors).


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Sean P. Wajert of Shook, Hardy & Bacon LLP