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«Chapter 2 The Epidemiologist as an Expert in Litigation Brandy L. Johnson, Ryan C. Turnage, and Jennifer L. Woulfe Introduction A tort is a private ...»

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Chapter 2

The Epidemiologist as an Expert in Litigation

Brandy L. Johnson, Ryan C. Turnage, and Jennifer L. Woulfe

Introduction

A tort is a private or civil wrong or injury for which the court may provide a remedy

in the form of an action for damages (Torts, Black’s Law Dictionary, 1990, p. 1489).

Toxic tort litigation involves civil actions asserting demands for damages due to

exposure to a chemical substance, emissions, or product that caused physical or

psychological harm (Cetrulo, 2011; O’Reilly, 2012). Examples of toxic tort claims include litigation arising out of the malfunctioning of a medical device, the harmful effects of a drug, catastrophic events like the chemical plant explosion in Bhopal, India, and exposure to commercial products like asbestos, products like cigarettes, or toxic substances like pesticides (Cetrulo, 2011).

In litigation involving toxic torts and environmental law, a causal connection between the damages and the alleged exposure must be established or disproved.

Typically, expert evidence is necessary to prevail (Bois, 2011f). An expert is often defined as a person who has acquired expertise through knowledge, skill, experience, training, or education.

Epidemiologists are uniquely suited to serve as experts in these types of cases, as they study ways to ascertain and control the causes of disease, trauma, or other health conditions (Buncher, 2012a). Epidemiological testimony can play a role in several legal contexts, but the utilization of epidemiology to prove, or disprove, a casual connection between an exposure and a disease or injury can result in litigation that is both complex and controversial (Black, Jacobson, Madeira, & See, 1997). Epidemiological evidence would be probative, for example, in cases where B.L. Johnson (*) Feirich/Mager/Green/Ryan, Carbondale, IL, USA e-mail: bjohnson@fmgr.com R.C. Turnage • J.L. Woulfe Rynearson, Suess, Schnurbusch, & Champion, LLC, St. Louis, MO, USA S. Loue (ed.), Forensic Epidemiology in the Global Context, 19 DOI 10.1007/978-1-4614-6738-0_2, © Springer Science+Business Media New York 2013 20 B.L. Johnson et al.

there is an alleged causal connection between a chemical exposure and lung cancer or a birth defect and a prescription medication such as Zoloft or Accutane.

This chapter provides an overview of different aspects of the litigation process, the roles of experts in the litigation, and the obligations and duties of such experts.

It is beyond the scope of this chapter to address these issues in great depth, and the reader is referred to additional sources for a more detailed discussion. Additionally, as it is not possible address the laws of every country, this chapter focuses on the laws of the United States.

Types of Experts Categorizations of Experts In litigation, experts are hired for two basic functions: (1) a scientific function and (2) a forensic function (Sapir, 2007). When fulfilling the scientific function, the expert is needed to collect information/evidence, conduct testing, evaluate evidence, form opinions, offer advice, and help the attorney to understand the scientific elements of the case (Sapir, 2007). On the other hand, when the expert is fulfilling the forensic role, he or she is responsible for communicating his or her opinions, and the basis for them, to the finder of fact (the jury or judge, depending on the specific case) in a manner that is understandable (Sapir, 2007).

Whether a consulting expert or a testifying expert, the professional can be further categorized by whether he or she is a generalist or specialist. A generalist is someone who uses his or her knowledge to form opinions and testify in a wide range of cases (Harrell, 1993). An engineer, for example, who is a “forensic engineer” will appear as an expert in virtually any type of product case (Harrell, 1993). A specialist, conversely, is a professional that is much more qualified in his or her particular area of expertise and, often, serves as an expert in only specific types of cases (Harrell, 1993).

A generalist may be seen as a professional witness and face the danger of being viewed as a hired gun and, as a result, given less credibility (Jones, 2012). However, generalists can be less expensive, familiar with legal terminology, and savvy witnesses (Harrell, 1993). Specialists may have more credibility, in-depth knowledge on the subject at issue, and prove a compelling witness (Jones, 2012). As specialists do not regularly serve as experts, they may require more time in preparation, have a lack of understanding of the legal context of his or her opinions, and be more likely to offer conflicting inconsistent testimony (Harrell, 1993).

Finally, testifying experts will be recognized as either retained or non-retained witnesses. Most experts will be deemed retained and will have been hired by one of the parties for the purpose of litigation. At times, though, an expert may be non-retained. Such experts will often be an employee of one of the parties. If a pharmaceutical company were being sued, one of its scientists may serve as a 2 The Epidemiologist as an Expert in Litigation 21 non-retained expert. The rules of civil procedure (rules that govern how trials and the processes leading up to them are to be conducted) in many jurisdictions will set forth different discovery requirements for retained and non-retained experts.





When Are Experts Retained and What Can They Do for an Attorney?

When an expert is retained may depend on various factors, including the type of expert and the purpose the expert will serve in the litigation. However, when possible, parties to litigation will often want to hire their primary experts as early in the cases as possible. This will allow the attorneys to benefit from the professionals’ expertise to the fullest extent possible.

For the plaintiff’s attorney, retaining an expert before the suit is even filed permits the attorney to discuss causation with the expert, formulate theories of liability, and/or the specific claims that could be exerted (Bois, 2011a, 2011c; Halebian & Scott, 2011). An epidemiologist can assist the plaintiff’s attorney in ascertaining whether there is a relationship between a medical condition and the exposure at issue (Buncher, 2012b). The defendant’s attorney, in turn, may utilize an expert early in the litigation to help understand and assess the plaintiff’s allegations and theories of liability (Bois, 2011b, 2011c; Halebian & Scott, 2012). An expert can also assist the defendant’s attorney in determining viable defenses and/or affirmative defenses that can be asserted (Bois, 2011b, 2011c).

Experts for both the plaintiff and the defendant often continue to assist the attorneys throughout the litigation. While the expert may be asked to review evidence/ data, conduct tests, and offer opinions on specific issues in the case, they can also of be of great assistance to the attorney throughout the discovery process. Experts with specialized knowledge in a particular field are in a unique position to help attorneys determine the types of information, documents, data, and items that should be requested from the opposing counsel (Halebian & Scott, 2012).

Additionally, experts can be used to help the attorney determine when the development of the case would benefit from obtaining the services of other experts and/ or information, data, or documents from third parties (Halebian & Scott, 2012). The experts can be relied upon to offer recommendations with regard to what specific types of additional expertise, studies, data, or third party services/information would be beneficial. As an example, an epidemiologist who is assisting an attorney to better understand the results of clinical trials conducted by a pharmaceutical company to investigate the efficacy of a new drug might suggest to the attorney that he or she also consult with a pharmacologist to better understand the specific mechanism underlying the use of that drug.

It should be noted the role the expert will play in the litigation may be dependent upon whether they are a consulting or testifying expert. The consulting expert will play more of a role in helping the attorneys understand the evidence, develop factual and legal theories, and develop strategy (Halebian & Scott, 2011). In environmental 22 B.L. Johnson et al.

or toxic tort litigation, consulting experts are often asked to evaluate sensitive data, perform experiments, participate in strategy sessions, assist in developing the scope of the work for testifying experts, and even manage other experts involved in the litigation (Bois, 2011d). The consulting expert’s identity and participation does not usually have to be disclosed to opposing counsel and, therefore, he or she can be utilized behind the scenes in an advisory capacity (Halebian & Scott, 2012).

The testifying expert, on the other hand, may perform some of the services for the attorney discussed above, but his or her primary purpose is to offer expert testimony at trial (Halebian & Scott, 2011). As a result, it is important that the testifying expert ensure they have a firm understanding of the evidence, speak plainly to a jury, and appear authoritative and, at the same time, likeable. Further, testifying experts need to invest time into ensuring they present with an even temperament and good demeanor (Jones, 2012).

The Litigation of a Case

Litigation begins before a suit is actually filed. Investigation must be done and experts may be involved in this process. However, once a case has been filed, the parties generally begin the discovery phase. During this phase, each side to the litigation attempts to “discover” facts, documents, and other pieces of evidence held by the other side that may be relevant or helpful to the preparation of its own case.

Attorneys will also have the opportunity to file motions, in which they seek a court’s ruling on specifically identified issues prior to proceeding to trial. One such motion, known as a Daubert motion in limine (discussed in greater detail later in this chapter), permits a party to the litigation to question the legal reliability of scientific evidence that is to be presented. While some motions that are filed may be dispositive of the case, a case that survives them will ultimately be tried. In complex litigation, such as toxic torts, products liability, and environmental cases, the assistance of experts will be necessary in both the discovery and trial phases of the case.

Discovery

Interrogatories and Requests for Production. Interrogatories are a set or series of written questions that, as part of the discovery process, are exchanged between parties [the plaintiff(s) and the defendant(s)] to litigation or for a witness to the case (Interrogatories, Black’s Law Dictionary, 1990, p. 819). The answers to the interrogatories are usually given under oath, as the person answering the questions signs a sworn statement that the answers are true.

Interrogatories can address any matter that is discoverable. This would exclude matters that are protected by a privilege, such as the attorney–client privilege or the work product doctrine, and issues that are not relevant to the claims and defenses of 2 The Epidemiologist as an Expert in Litigation 23 any party. The attorney–client privilege refers to the confidential nature of communications between an attorney and his or her clients that were made for the purpose of furnishing or obtaining legal advice or assistance (Attorney–Client Privilege, Black’s Law Dictionary, 1990, p. 129). The work product doctrine refers to a legal rule, under which, any notes, working papers, memoranda, certain correspondence, and similar materials that are prepared in anticipation of litigation are protected from disclosure in discovery (Work Product Rule, Black’s Law Dictionary, 1990, p.

1606). Typically, the requests must be reasonably calculated to lead to the discovery of admissible evidence (Federal Rules of Civil Procedure, 2010a). The purpose of interrogatories is to both limit and refine the controversies and issues in the pending

litigation. Many jurisdictions limit the number of interrogatories that can be compounded upon the opposing party. The Federal Rules of Civil Procedure, for example, state the following:

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).

(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time (Federal Rules of Civil Procedure, 2010b).

The limitation on the number of questions helps prevent parties from overwhelming the opposing party with an overly burdensome number of requests for information.

Interrogatories will explore the opposing party’s claims and defenses and attempt to obtain information that will help determine the strengths and/or weaknesses of the other party’s case. Interrogatories can help identify possible lay witnesses (nonexpert), individuals with information, studies performed, and relevant documents like medical records. The answers to interrogatories can, at times, be utilized to strengthen the opposing counsel’s case.

Requests for Production of Documents are another discovery device that is utilized in conjunction with interrogatories. Where interrogatories request answers, a Request for Production of Documents seeks documents related to the case. As with interrogatories, the use of a Request for Production of Documents is governed by the rules of civil procedure. The Federal Rules of Civil Procedure indicate the

following:

(a) In General. A party may serve on any other party a request within the scope of

Rule 26(b):

(1) To produce and permit the requesting party or its representative to inspect,

copy, test, or sample the following items in the responding party’s possession, custody, or control:

24 B.L. Johnson et al.



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