Hon. Arlin M. Adams- A brief tribute

Upon graduating from law school, I had the great privilege of serving as a law clerk to the Hon. Arlin M. Adams, who sat on the Third Circuit for nearly two decades.  Judge Adams passed away last week at the age of 94.

The last opportunity I had to see the Judge was at a special exhibit earlier this year at the University of Pennsylvania Library, which reunited two of the few remaining copies of the Emancipation Proclamation that were autographed by Abraham Lincoln.  History buffs may recall that in 1864, a few specially printed copies of the Emancipation Proclamation, autographed by Lincoln, were put on sale at the Great Central Fair in Philadelphia’s Logan Square (visible from your humble blogger's office). And the occasion, merging history, Penn, Philadelphia, and an extraordinary legal document, was a perfect setting for an appearance by Judge Adams.

To the bench, Judge Adams brought an all too rare combination of brilliance, wisdom, civility, and insight. To his clerks, he was an invaluable mentor and teacher.  There was arguably no better way to be introduced to the legal world than mine, as I walked each morning through the courtyard of Independence Hall where the Constitution was crafted, to work in the chambers of Judge Adams in the federal court house a block away.  He was truly a scholar of substantive law and legal procedure.

His private practice and public service roles alone would mark him as a giant in the legal community. But it was his ability to be conservative and compassionate, a firm believer in the democratic process and a staunch defender of civil rights, in particular the freedom of religion, that marked his stature.

Susquehanna University has created the Arlin M. Adams Center for Law and Society at Susquehanna, and our alma mater Penn Law School established the Arlin M. Adams Chair on Constitutional Law in his honor in 2005. But his legacy may be found in more modest events. For example, appellate advocates can recount numerous examples of oral arguments in which young, new, or struggling advocates would find Judge Adams gently questioning them so their essential argument made it into the record -- not because he agreed with them necessarily, but because their clients deserved to at least be heard.

Simple, modest, honest, Judge Adams was a child of the Depression, served in the Navy in WWII, and went on to become a great judge.  While many of the articles on his passing will undoubtedly talk about the three times he was on the short list for the Supreme Court and not selected, to emphasize that would be to ignore the enormous influence he had on a generation of lawyers and the tremendous role model he should continue to be for future generations of lawyers and judges.

 

Florida Adopts Daubert Test

Last month, Florida Gov. Rick Scott (R) signed into law legislation (H.B. 7015) concerning the qualifications of expert witnesses and replacing the the state admissibility standard under Frye to the Daubert standard. The law kicks in this month.


Currently, Florida courts employ the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and progeny, to determine whether to admit expert testimony. Under the Frye standard, the methodology or principle on which expert opinion testimony is based must be generally accepted in the field in which it belongs.  The bill replaces the Frye standard with the Daubert standard. Under the Daubert test, when there is a proffer of expert testimony, the trial judge as a gatekeeper must make a preliminary assessment of whether the reasoning or methodology properly can be applied to the underlying facts at issue. The bill adopts the Daubert standard by amending Florida law to prohibit an expert witness from testifying in the form of an opinion or otherwise, including pure opinion testimony, unless:

The testimony is based on sufficient facts or data;
The testimony is the product of reliable principles and methods; and
The witness has applied the principles and methods reliably to the facts of the case.


Additionally, the preamble further states that the Legislature intended to adopt the standards provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and to prohibit pure opinion testimony as provided in Marsh v. Valyou, 997 So. 2d 543 (Fla. 2007).


The vote in the Senate was 30-9; in the state House 70-41.  Florida business groups supported the change as one making the state's legal climate more friendly to businesses by helping to keep junk science out of the court room.

Challenge to Federal-State Court Coordination Overture Prompts Response

One of the challenges of our system of federalism, and dual jurisdiction between state and federal courts, is the coordination of related cases pending in the two systems.  Perhaps nowhere does this happen more regularly than in the realm of mass torts.  Federal cases may be coordinated in an MDL, and several states, such as New Jersey, have a procedure to centralize mass tort filings in their state court system. See Hermann, et al. Statewide Coordinated Proceedings (2d ed. West 2004). But coordination between the state and federal level has been more difficult, more informal, more experimental. That is, state and federal judges, faced with the lack of a comprehensive statutory scheme, have undertaken innovative efforts to coordinate parallel or related litigation so as to try to reduce the costs, delays, and duplication of effort that can stem from such dispersed litigation. State judges, for example, can bring additional resources that might enable an MDL transferee court to implement a nationwide discovery plan or a coordinated national calendar

Recently, plaintiffs in state court cases in the Actos litigation sent the Actos federal MDL court a letter complaining that the judge improperly "intervened" by discussing the litigation "ex parte" with the state court judge.  The plaintiffs asserted that the federal court persuaded the state court judge to rule in a certain fashion on scheduling issues, including the time for discovery and trial dates. Plaintiffs complained that such "intervention" would prevent them from properly litigating their cases; violated the important policy of comity (citing the Anti-Injunction Act); and raised "objectivity" concerns.  Plaintiffs requested the federal court refrain from such communications in the future with any state court judges handling Actos cases, citing the Canons of Judicial Ethics.  Finally, the letter asked that plaintiffs further be heard on this issue at an upcoming MDL hearing.

At first blush, this seemed like an over-reaction by plaintiffs, and perhaps an attempt to intimidate the court into not doing what seems like a perfectly acceptable thing, informally coordinating litigation which raises similar issues, involves many of the same counsel, and likely will implicate many of the same discovery requests, fact and expert witnesses. We leave it to the loyal readers of MassTortDefense to decide for themselves about the tone of this letter.

So how did the federal court react? Judge Doherty is overseeing the federal multidistrict litigation, In re: Actos (Pioglitazone) Products Liability Litigation (MDL-2299). Her reaction came in the form of a "Memorandum Response." The court read the original letter as possibly alleging improper and unethical conduct by both the federal and state court judges, and doing so by making "completely specious" arguments. On the merits, the court began by noting that the Manual for Complex Litigation recommends cooperation and coordination among federal and state court judges in these mass tort contexts.  So does the state court-focused manual, Managing Mass Tort Cases: A Resource for State Court Judges, published by the Conference of Chief Justices. The important notion of comity was respected because the communication from the MDL court was merely an invitation asking whether state courts might see any benefit in talking about the litigation posture. An invitation to chat is not an "intervention." And any communications were in that same spirit.

The court's memorandum turned to the MDL schedule, its internal logic and consistency, and the ample opportunity all parties had to comment on and object to any of its provisions. The court then points out, logically, that an improper ex parte conversation involves a communication between the court and one , but not all parties -- not a conversation between two independent judges.

The court than labeled a "cautionary tale" those cases that warn attorneys against unsubstantiated allegations that bring the judiciary into disrepute. Finally, the court noted that the letter inaccurately cites the Code of Judicial Conduct. The canons clearly do not prohibit a judge from consulting with other judges to aid the judge in carrying out his or her responsibilities.

The court gave the authors the benefit of the doubt, deciding ultimately to view the letter as over-zealous, ill-advised, poorly thought out, regrettable hyperbole, and empty rhetoric, as opposed to something more troubling.   An interesting read for all our readers, especially those with MDL practices.