Cal Biz Lit

Pro-Defense Lockheed Gatekeeper Decision -- Gone for Good

I blogged a couple of times (here and here) and in a white paper about the Court of Appeals' decision in Lockheed Litigation Cases, where, despite the fact that Daubert has never been adopted in this state, the Court suggested that the courts might have a meaningful gate-keeper role when it came to the admissibility of expert testimony.   The Cal Supremes granted review (which takes the decision off the books, making it unciteable) then dismissed the review because there were too many justices disqualifying themselves from the case.

The defendants, Exxonmobile and Union Oil (now part of Chevron), asked the Supreme Court to at least reinstate the published opinion.  "Nope" said the Court yesterday.  So for the defendants, it's still a win.  For all other defendants facing junk scientists, the case has no precedential value.  More at Legal Pad here.

Off-Topic Post

It seems like almost all my off-topic posts are about music, and sometimes I think I should change the "About" section of the blog to indicate the subjects are California litigation, jazz and blues. 

Anyway, Ike Turner passed this week.  By most accounts -- particularly his ex-wife Tina's -- a genuinely bad guy for much of his life, he still played an awfully important role in the birth of Rock 'n Roll.  I saw the Ike & Tina Review once, in 1970, and there was nothing like it for raw energy, sex and soul music.  Ike may have been the Svengali, but as a reminder of who the talent was, here's a TNT clip from the mid-1960's:

Why Corporate Defendants Like the Federal Courts

I blogged not long ago (and there's also a discussion in my product liability white paper) on Lockheed Litigation Cases, a Court of Appeal decision upholding a California trial judge for performing something that looked a lot like Daubert gate-keeping when it came to renowned junk scientist Daniel Teitlebaum.  The case went to the Cal Supreme Court, then disappeared from the books when the majority of the Supremes disqualified themselves.

In a part of the case I didn't discuss, the trial court had held that epidemiology (as relevant here, the study of occurrence or non-occurrence of disease or its absence in persons who are or are not exposed to alleged toxins) was only admissible to prove causation if the "relative risk" exceeded 2.0 -- i.e., when the occurrence of the disease in the exposed persons was at least twice that in the unexposed.  The Court of Appeal held that was going too far, and that the 2.0 standard was not required.

Monday, Judge Charles Breyer of California's Federal Northern District (and brother of U.S. Supreme Court Justice Breyer) issued a Daubert ruling in the Pfizer Celebrex litigation.  The decision followed three days of hearings including examination and cross-examination of proposed expert witnesses.   

In dictum (but dictum he's pretty clearly going to follow in the future) Judge Breyer stated that epidemiological evidence cannot be used to prove "specific causation" -- whether the exposure caused the disease in a specific individual -- when the relative risk is less than 2.0.  There is an excellent discussion of statistical significance and confidence intervals, with the Judge excluding evidence which epidemiologists and statisticians would hold to be not statistically significant.

There's more on the ruling at the Wall Street Journal Law Blog, Legal Pad, and Drug and Device Law.

This is the sort of process I really wish we had in California -- it gives both sides a fair trial while substantially increasing the likelihood that case outcomes will be based on real science.

Cal Supremes Dismiss Potential Major Case Re: Science and the Law

In early 2005, the California's Court of Appeal for the Second District issued a fascinating (and highly favorable for defendants) decision in the toxic tort, solvent-exposure case Lockheed Litigation Cases, B166347.  In a case involving the admissibility of the opinions of the notorious and well-traveled  Dr. Daniel Teitelbaum , the Court of Appeal held that California Evidence Code section 801(b) allowed the trial court to act as a gate-keeper -- much as in Federal Court under Daubert --and excluded Teitelbaum's opinions because they were based on epidemiological studies of multiple solvent exposures, with no indication that there was a risk posed by the specific solvents involved in this case.  The Court also found no error in excluding expert opinion based on case reports, animal studies and toxic registries.  In short, the decision answered all kinds of frequently encountered toxic tort evidentiary questions, moved California a bit closer to Daubert, and contained much anti-junk science ammunition for defendants in these cases.

The California Supremes granted review a couple of months later, and under California law, this made the decision unciteable, and not authority for anything.  But it did look as though we would see some really useful evidentiary authority from the Supreme Court once the case was briefed and argued at that level.

No such luck.  Last week, the Supremes dismissed the review under very unusual circumstances:  that a majority of the members of the seven-justice court had been required to recuse themselves.  This despite the fact that rules of court (and common practice) provide for appointment of "pro tem' justices when members are disqualified, and on at least two past instances -- none recently -- all seven justices have been recused and replaced by pro tems.

So the current situation is that the Lockheed decision has no effect on anyone but the immediate parties, and the law on admissibility of expert testimony remains as wide-open as ever. 

(N.B.:  For more on expert testimony in a world without Daubert, see the Adams Nye white paper on product liability law starting at page 9, or my post here.)

(More N.B.:  The link to Dr. Teitelbaum above is to news about another California case where he testified, a case where the plaintiffs -- his clients -- lost.)

No Damage Suit Against Auto Makers For Causing Global Warming

Back when I was in law school in the 1970's, there was a fella named Jerry Brown, got himself elected governor of California.  He was disparagingly referred to as “Governor Moonbeam.”  He eschewed the perks of office, living in a small, barely furnished apartment in downtown Sacramento. Instead of riding in a limo or town car, he rode in a used Pontiac Satellite   (it turned out he had identical used cars in different parts of the state).  A lot of business interests felt he wrecked the state’s courts during that era, and although I’m not prepared to agree, there were certainly a good many off-the wall appellate decisions during that era (my favorite:  Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 (Findlaw subscr. req'd), finding a legal duty on the part of the telephone company not to place a pay phone booth where a drunk driver might jump the curb and run into it).

Anyway, Jerry had a notoriously short attention span.  He ran for president three times times, chaired the California Democratic party, ran for the senate, ran kind of a zen-like think tank, operated a public radio show, then ran for and served two terms as Mayor of Oakland.  Most recently, he ran for and was elected Attorney General, an office he’s held since the first of this year.

As Attorney General, Jerry inherited a case (brought by his predecessor, Bill Lockyer) against the big six auto makers, contending that they were guilty of nuisance and owed the State of California bazillions in damages for causing global warming.  And if that weren’t enough of a reach, instead of filing it in San Francisco, Alameda or Los Angeles state courts, where there are some judges who might go for this sort of thing, Lockyer filed the case, and Jerry prosecuted it, in the Federal Northern District.  To try to create jurisdiction, they cooked up the theory that there was a federal tort cause of action for common law nuisance.  I haven’t yet checked to see who’s the lucky deputy AG who got saddled with that wonderful argument.

More after the jump.

Science and Asbestos Litigation

Guest-blogging today is my partner, Barbara Adams.  She and Jim Sinunu head our firm’s toxic tort practice, and she’s expanding on a couple of recent posts relating to the effect of the litigation process on the course of scientific discourse.  The following is her post:


In two linked posts, Blog 702  and Drug and Device Law  the bloggers write about, and agree with, the thesis of a recent article in Neurology (Subscription) that  “Modern litigation does exert a biasing effect on some published, peer-reviewed research”.  Blog 702 notes, however, that

"the Neurology article fails to make a convincing case that the state or progress of neurological or other medical research have suffered, or will suffer, at the hands of the litigation system.”

While I can't attest to the effects of litigation on neurological research, I have some familiarity with asbestos litigation.  In one aspect in particular, the existence of and profits derived from asbestos litigation appear to have had a significant impact on medical research.

There's more after the jump.