2008 CSUCI BIOL503 Torts Part 3: Evidence (53 slides)

Slide 1: Torts: Part 3, Evidence CSUCI 2008 BIOL503 K. Pessin Spring 2008 CSUCI2008 KPBiol503 1

Slide 2: Torts: Evidence  Evidence – Keeping out “junk science”  Different kinds of evidence  Exclusions  Examples  Pharmacovigilance Spring 2008 CSUCI2008 KPBiol503 2

Slide 3: Torts: Evidence  DNA evidence: Do the blood samples match?  Medical evidence: Does smoking cause lung cancer?  Epidemiological evidence: Does Bendectin cause birth defects in human embryos?  Economic evidence: Does spending rise with income?  Finance evidence: Did the release of fraudulent information cause the firm’s stock to rise? Spring 2008 CSUCI2008 KPBiol503 3

Slide 4: Torts: Evidence http://www.fjc.gov/library/fjc_catalog.nsf Spring 2008 CSUCI2008 KPBiol503 4

Slide 5: Torts: Evidence  Junk Science or not?  Admissibility of scientific evidence (oversimplified)  Generally accepted (Frye standard, California)  Peer-review = general acceptance  Reliable scientific evidence (Daubert standard, lots of other states)  What if not peer reviewed? Can scientific facts still be reliable and admissible? Spring 2008 CSUCI2008 KPBiol503 5

Slide 6: Torts: Evidence  What if you want an expert to put on evidence of science that has never been published?  Frye: No good, not generally accepted  Daubert: Maybe, judge takes a look before jury A gatekeeper Spring 2008 CSUCI2008 KPBiol503 6

Slide 7: Torts: Evidence Daubert v. Merrell Dow Pharmaceuticals, Inc., (U.S. Supreme Court 1993) and later cases  Trial judges as gatekeepers to exclude “junk science”  Applies to all kinds of specialized or technical testimony, not just science (can’t weasel through by call it “practical” or “engineering”)  Generally means judge has “Daubert” hearing to decide admissibility before expert testifies in front of jury A gatekeeper Spring 2008 CSUCI2008 KPBiol503 7

Slide 8: Torts: Evidence  The subject of the proffered testimony should be  (1) based upon a testable hypothesis that  (2) has been tested at some specified error rate;  The subject should have then been  (3) peer-reviewed via publication resulting in  (4) general acceptance, after publication, by the relevant scientific community. Spring 2008 CSUCI2008 KPBiol503 8

Slide 9: Torts: Evidence  Prior rule (“Frye”) required “generally accepted” science only  Now (“Daubert”) new science even if not “generally accepted”  Rehnquist dissent: Judges will have to be “amateur scientists” Late Chief Justice Rehnquist Spring 2008 CSUCI2008 KPBiol503 9

Slide 10: Torts: Evidence Spring 2008 CSUCI2008 KPBiol503 10

Slide 14: Torts: Evidence http://www.ftc.gov/os/adjpro/d9318/051123respmoxcludeccwitness.pdf Spring 2008 CSUCI2008 KPBiol503 14

Slide 20: Torts: Evidence Baxter wins lawsuit exempting Prop 65 warning for tubes and bags with cancer-causing chemical Spring 2008 CSUCI2008 KPBiol503 20

Slide 21: Torts: Evidence Defendant convicted for manufacturing 100 or more marijuana plants and sentenced to 188 months: “You don’t have the roots! So you can’t tell it’s 100 plants! The Horticultural Expert wasn’t Dauberted!” Court: Horticultural expert testimony properly admitted, “The marijuana plants in the evidence room looked like they had root systems, and were not just cuttings.” Spring 2008 CSUCI2008 KPBiol503 21

Slide 22: Torts: Evidence mtDNA testing for evidence of identity is generally accepted by the scientific community California v. Peterson Mitochondrial DNA evidence is admissible to demonstrate that victim cannot be excluded as a contributor to the hair on pliers found in defendant’s boat. Spring 2008 CSUCI2008 KPBiol503 22

Slide 23: Torts: Evidence Jury consideration of “junk science” is irrelevant if it didn’t matter for verdict. Spring 2008 CSUCI2008 KPBiol503 23

Slide 24: Torts: Evidence Example: Eyewitness testimony. Impeachable by “Sustained inattentional blindness” theory? http://www.wjh.harvard.edu/%7ecfc/Simons1999.pdf Spring 2008 CSUCI2008 KPBiol503 24

Slide 25: Torts: Evidence  Carjacking: mistaken identity defense  Expert on human perception and memory, “Dauberted” – admissible  US v. Brownlee, No. 04-4134 (3d Cir. July 18, 2006) http://www.ca3.uscourts.gov/opinarch/044134p.pdf Spring 2008 CSUCI2008 KPBiol503 25

Slide 26: Torts: Evidence “Hybrid images change interpretation as a function of viewing distance. In the example above, you might think that these people are sad. But ask someone to tell you what the expressions are while she sees the picture from a few meters away.” http://cvcl.mit.edu/hybridimage.htm http://cvcl.mit.edu/hybrid/OlivaTorralb_Hybrid_Siggraph06.pdf Spring 2008 CSUCI2008 KPBiol503 26

Slide 27: Torts: Evidence  Some facts are inadmissible  Unreliable (hearsay, non-accepted science)  Too prejudicial  Irrelevant  Privileged relationship Spring 2008 CSUCI2008 KPBiol503 27

Slide 28: Torts: Evidence  Learned Treatise exception to hearsay rule Admissible Not admissible Admissible? Spring 2008 CSUCI2008 KPBiol503 28

Slide 29: Torts: Evidence  Prejudicial  Case: Trade secret, officer leaves and starts new company; jury trial  Motion in limine to keep out statement by CEO’ brother, the CFO: “I want blood, not money.”  Hearsay and more prejudicial than probative in front of jury  Ruling: Admissible. Spring 2008 CSUCI2008 KPBiol503 29

Slide 30: Torts: Evidence  Excludable: Privileged information Attorney, Spousal, Doctor, Clergy, Psychotherapist  Limited accountant, other professional Protected relationships, want to encourage full disclosure Privilege protects communication, not underlying facts  Attorney - client  Clients need advice  Attorney needs to know all facts, good and bad Spring 2008 CSUCI2008 KPBiol503 30

Slide 31: Torts: Evidence  Attorney client privilege  Who is attorney?  Generally, someone who holds license to practice law  Staff – patent agents, paralegal staff, consultants  Attorney to client  Company lawyers; plus, outside counsel  Whole law firm vicariously represents client  Who is client?  One who is or seeks to become client  Company lawyer: Generally, client is one seeking legal advice to conduct corporate business  Company lawyer is not (generally) your personal lawyer  Issue: simultaneous representation of board of directors, executive suite and shareholders Spring 2008 CSUCI2008 KPBiol503 31

Slide 32: Torts: Evidence  Hush-hush: Church ordains individuals ad hoc, depending on church doctrine  “. . .The trial court ordered the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints (LDS Church) to disclose the report of church disciplinary action (RCDA) for John Roe, a church member, who abused his stepdaughters, Jane and Rebecca Doe. . . . We conclude based on LDS Church doctrine that the participants in Roe's disciplinary proceeding were ordained clergy and reverse the trial court's order requiring disclosure of the RCDA… .”  JANE DOE, ET AL., Respondents, v. THE CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-Day SAINTS, ET AL., Petitioners (Washington State 2004) Spring 2008 CSUCI2008 KPBiol503 32

Slide 33: Torts: Evidence Duty to protect intended victim of patient’s expressed desire to harm. I’d like to give her this! No, this instead. Spring 2008 CSUCI2008 KPBiol503 33

Slide 34: Torts: Evidence Problem: Researchers who prove toxic effects get bullied by industry, and dragged into litigation. Solution proposed: Medical researcher privilege. Gee, I’d like to do that research, but all my data would be subpoenaed. I wish my research was privileged…. http://mednews.wustl.edu/news/page/print/8446.html Spring 2008 CSUCI2008 KPBiol503 34

Slide 35: Torts: Evidence  Witnesses  Fact witness: testifies as to facts  “I signed my laboratory notebook with a black pen on this day in 1988.”  Expert witness: testifies as to opinions based on facts  “The laboratory notebook signatures were not done at the same time as the entries because there is an overwrite based on lifting analysis, the ink is different based on ink analysis, and ink used to sign the laboratory notebooks was not the same ink as used to make the entries, based on infrared analysis.” Spring 2008 CSUCI2008 KPBiol503 35

Slide 37: Torts: Evidence Judge Alsup Dr. Amr Mohsen Spring 2008 CSUCI2008 KPBiol503 37

Slide 38: Torts: Evidence What a laboratory notebook page normally looks like when produced for a litigation (not the Mentor notebook). Spring 2008 CSUCI2008 KPBiol503 38

Slide 43: Torts: Evidence Dr. Amr Mohsen Spring 2008 CSUCI2008 KPBiol503 43

Slide 45: Torts: Evidence http://www.daubertontheweb.com/Deposition_Checklist.htm Spring 2008 CSUCI2008 KPBiol503 45

Slide 48: Torts: The Pharmacovigilance Process Traditional Data Detect Signals Methods Mining Generate Hypotheses Insight from Outliers Public Health Refute/Verify Impact, Benefit/Risk Type A (Mechanism-based) Estimate Act Incidence Inform Type B (Idiosyncratic) Restrict use/ Change Label withdraw http://www.fda.gov/ohrms/dockets/ac/05/slides/2005-4143-Slide-Index-05-18.htm Spring 2008 CSUCI2008 KPBiol503 A. Lawrence Gould, Ph.D. 48 Merck Research Laboratories

Slide 49: Torts: Pharmacovigilence, data mining  Identify subtle associations that might exist in large databases  Early identification of potential toxicities  Identify complex relationships not apparent by simple summarization  Screening tool to identify potential associations to undergo clinical/epidemiological followup http://www.fda.gov/ohrms/dockets/ac/05/slides/2005-4143-Slide-Index-05-18.htm A. Lawrence Gould, Ph.D. Merck Research Laboratories Spring 2008 CSUCI2008 KPBiol503 49

Slide 50: Torts: Pharmacovigilence, data mining Spring 2008 CSUCI2008 KPBiol503 50

Slide 51: Torts: Pharmacovigilence, data mining http://dailymed.nlm.nih.gov/dailymed/about.cfm Spring 2008 CSUCI2008 KPBiol503 51

Slide 52: Torts: Evidence  Scientific evidence is reviewed for admissibility before it can be considered in a lawsuit  Taken very seriously – company witnesses, documents  Novel theories can be admissible  For drugs, “pharmacovigilance” and data mining may point to evidence of drug activity Spring 2008 CSUCI2008 KPBiol503 52

Slide 53: Torts: Part 3, Evidence CSUCI 2008 BIOL503 END Spring 2008 CSUCI2008 KPBiol503 53

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