The difficulty of the way of thinking or intent of a celebration can play out plenty of methods primarily based on the character of the case. Within the prison context, proof of the mens rea of the defendant is usually a component within the statutory definition of the crime. In a civil contract case, whether or not the events had a gathering of the minds and the way one celebration truly interpreted disputed provisions could be central points to determine. In an employment case, it could be the problem of whether or not the said purpose for taking an adversarial employment motion was mere pretext for the actual purpose. Within the product legal responsibility context, the main target could be on the plaintiff’s assumption of threat or the defendant’s alleged reckless indifference to the chance of the hurt that allegedly befell the plaintiff. As a result of plaintiffs in large-scale drug and machine attempt instances to get punitive damages, the latter is a recurring problem in our instances.
Again within the day, effectively earlier than The Case of Thorns gave rise to tort legislation and tort legislation ultimately gave rise to product legal responsibility claims, some trials have been determined primarily based on using oath helpers, purportedly upstanding residents who would swear that one celebration was good and trustworthy and, thus, ought to prevail. The oath serving to may contact on all manners of way of thinking, resembling “Ruprecht is telling the reality that he thought it was his pig” or “Rolfe was not appearing in self protection when he slew type Alfred.” In American jurisprudence, the distaste for this overtly classist apply—nobles tended to have higher oath helpers than commoners—morphed into one thing referred to as the “final problem rule.” As a result of juries determined disputed details, no witness was alleged to stray into direct testimony on a deciding problem, which was seen as “usurping the province of the jury” with “empty rhetoric” from the stand. This historical past is ready out within the Advisory Committee Notes to Federal Rule of Proof 704, which abolished the unwieldy final problem rule in federal civil and prison trials when it was adopted in 1975.
The 2011 to current model of the Rule supplies:
Rule 704. Opinion on an Final Difficulty
(a) In Normal — Not Robotically Objectionable. An opinion shouldn’t be objectionable simply because it embraces an final problem.
(b) Exception. In a prison case, an knowledgeable witness should not state an opinion about whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection. These issues are for the trier of reality alone.
On its face, the abolition applies to opinion testimony from each lay and knowledgeable witnesses, though the exception is only for consultants in prison instances.
The Notes additionally include a reasonably acquainted clarification that references oath helpers:
The abolition of the final word problem rule doesn’t decrease the bars in order to confess all opinions. Beneath Guidelines 701 and 702, opinions have to be useful to the trier of reality, and Rule 403 supplies for exclusion of proof which wastes time. These provisions afford ample assurances in opposition to the admission of opinions which might merely inform the jury what outcome to achieve, considerably within the method of the oath-helpers of an earlier day. Additionally they stand able to exclude opinions phrased when it comes to inadequately explored authorized standards. Thus the query, “Did T have capability to make a will?” can be excluded, whereas the query, “Did T have adequate psychological capability to know the character and extent of his property and the pure objects of his bounty and to formulate a rational scheme of distribution?” can be allowed. McCormick §12.
We first ran throughout this language again in 2000 when posed with the problem the right way to forestall a plaintiff knowledgeable, certified in some self-discipline related to not less than some points within the case, from providing what amounted to a second opening from the witness stand, replete with all method of “opinions” on what the defendant drug producer knew, why it did what it did, and the way not doing what it didn’t do was proof of unhealthy intent. We used to name this “intentology” testimony and, after we first appeared, the authority for excluding it was as skinny as the idea for admitting it, though many courts had admitted it over faint objection. Though we provided plenty of arguments for why the plaintiff consultants shouldn’t be allowed to sprinkle in all their musings on intent in the middle of their testimony, the one which has been essentially the most impactful in serving to to create a line of federal MDL choices since 2000 is that consultants shouldn’t be permitted to usurp the jury’s operate with this kind of thinly veiled advocacy. After our first two choices on this problem from the In re Weight loss plan Medicine MDL, plenty of particular person choices adopted go well with, however it was the revealed resolution from the In re Rezulin MDL as a part of broader Daubert challenges that actually bought issues rolling in MDL after MDL.
We detailed the primary eleven years of this line of instances right here. With credit score to Kelly McNeill, we will current a mini-survey of federal choices since 2011, targeted on MDL and MDL remand instances, which makes it clear that the exclusion of knowledgeable opinion on the way of thinking of a company defendant is the decidedly majority place.
FIRST CIRCUIT
- In re Zofran (Ondansetron) Prod. Liab. Litig., No. 1:15-MD-2657-FDS, 2019 WL 5685269, at *9 (D. Mass. Nov. 1, 2019) (MDL excluded plaintiff knowledgeable’s challenged opinions; “Inferences in regards to the intent or motive of events or others lie exterior the bounds of knowledgeable testimony.”) (citing In re Solodyn (Minocycline Hydrochloride) Antitrust Litig., 2018 WL 734655, at *2 (D. Mass. Feb. 6, 2018); In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2nd 531, 547, 551 (S.D.N.Y. 2004); In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2nd 1323, 1337-38 (S.D. Fla. 2010)).
SECOND CIRCUIT
- In re Mirena IUD Prod. Liab. Litig., 169 F. Supp. 3d 396, 479–80 (S.D.N.Y. 2016) (MDL excluded frequent flyer plaintiff knowledgeable’s opinions on the “intent, motives or states of thoughts of firms, regulatory businesses and others,” however permitted testimony on “what info was in [defendant’s] possession” and the intent of defendant or FDA when “clearly indicated in public paperwork”).
THIRD CIRCUIT
- Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 497 (D. Del. 2019) (“Professional testimony as to intent, motive, or way of thinking provides not more than the drawing of an inference from the details of the case … and allowing knowledgeable testimony on this topic can be merely substituting the knowledgeable’s judgment for the jury’s and wouldn’t be useful to the jury.”).
- In re: Tylenol (Acetaminophen) Mktg., Gross sales Pracs., & Prod. Liab. Litig., No. 2:12-CV-07263, 2016 WL 4039271, at *8 (E.D. Pa. July 28, 2016) (MDL excluded frequent flyer plaintiff knowledgeable’s opinions; citing plenty of choices on the identical knowledgeable, together with Heineman v. American Residence Merchandise Corp., No. 13–cv–02070–MSK–CBS, 2015 WL 1186777, at *12 (D. Colo. Mar. 12, 2015) (excluding Dr. Blume’s opinions about defendants’ way of thinking); In re Viagra Prods. Liab. Litig., 658 F. Supp. 2nd 950, 964-965 (D. Minn. 2009) (“There isn’t a indication within the document that the jury right here would require particular help to interpret the paperwork on which Dr. Blume bases her opinion that Pfizer was extra nervous about unhealthy publicity than security. As a result of the jury is equally able to evaluating this explicit proof, Dr. Blume’s opinion on this matter have to be excluded.”); Chandler v. Greenstone Ltd., No. C04–1300RSL, 2012 WL 882756, at *1 (W.D. Wash. Mar. 14, 2012) (excluding Dr. Blume’s opinions on defendants’ way of thinking, intent, or information); Johnson v. Wyeth LLC, No. CV 10–02690–PHX–FJM, 2012 WL 1204081, at *3 (D. Ariz. Apr. 11, 2012) (excluding Dr. Blume’s opinions on defendants’ motive, intent, information, or different way of thinking)).
FOURTH CIRCUIT
- Numerous choices from 2013 ahead by the choose overseeing a number of pelvic mesh MDLs expressed comparable rulings that broadly excluded intent opinions. For example, in Eghnayem v. Bos. Sci. Corp., 57 F. Supp. 3d 658, 670 (S.D.W. Va. 2014), aff’d 872 F.3d 1304 (eleventh Cir. 2017), the court docket said:
First, as I’ve maintained all through these MDLs, I cannot allow the events to make use of consultants to usurp the jury’s fact-finding operate by permitting an knowledgeable to testify as to a celebration’s way of thinking or on whether or not a celebration acted fairly. See, e.g., Huskey v. Ethicon, Inc., 29 F.Supp.3d 691, 702, 2:12–cv–05201, 2014 WL 3362264, at *3 (S.D.W. Va. July 8, 2014); Lewis, et al. v. Ethicon, Inc., 2:12–cv–4301, 2014 WL 186872, at *6, *21 (S.D.W. Va. Jan. 15, 2014); In re C.R. Bard, Inc., 948 F.Supp.2nd 589, 611, 629 (S.D.W. Va.2013). Though an knowledgeable might testify about his or her overview of inside company paperwork solely for the aim of explaining the idea for his or her opinions—assuming the opinions are in any other case admissible—a celebration’s information, way of thinking, or different issues associated to company conduct and ethics will not be applicable topics of knowledgeable testimony as a result of opinions on these issues won’t help the jury.
FIFTH CIRCUIT
- Greger v. C.R. Bard, Inc., No. 4:19-CV-675-SDJ, 2021 WL 3855474, at *9 (E.D. Tex. Aug. 30, 2021) (remand case precluded plaintiff knowledgeable from opining on the defendant’s “subjective intent, motives, or inside decision-making concerned in [product] testing,” whereas allowing opinions on defendant’s “goal actions or inactions with respect to [product] testing, and the sufficiency thereof”).
SIXTH CIRCUIT
- In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 345 F. Supp. 3d 897, 902–03 (S.D. Ohio 2015) (“Courts have sometimes barred knowledgeable opinions or testimony regarding an organization’s way of thinking, subjective motivation, or intent.”) (MDL No. 2433)
SEVENTH CIRCUIT
- In re Fluidmaster, Inc., Water Connector Parts Prod. Liab. Litig., No. 14-CV-5696, 2017 WL 1196990, at *24 (N.D. Sick. Mar. 31, 2017) (MDL excluded plaintiff knowledgeable on “the motivations, intent, and way of thinking of an organization,” noting “[t]he jury won’t be aided by Plaintiffs’ knowledgeable speculating about why Defendant made design modifications and outsourcing choices”).
EIGHTH CIRCUIT
- Clinton v. Mentor Worldwide LLC, No. 4:16-CV-00319 (CEJ), 2016 WL 7491861, at *11 (E.D. Mo. Dec. 30, 2016) (“The query of company motive, intent, information or way of thinking is one for the jury, not for an knowledgeable . . . . Recitation of defendant’s personal company paperwork doesn’t fall throughout the purview of knowledgeable testimony below Federal Rule of Proof 702.”) ( remand from MDL No. 2004); Kruszka v. Novartis Pharms. Corp., 28 F. Supp. 3d 920, 937 (D. Minn. 2014) (“The Court docket agrees with the events that Dr. Vogel might not proffer an opinion regarding what people at Novartis considered info present in sure inside paperwork or about their motivations relating to these paperwork.”) (remand from MDL No. 1760).
NINTH CIRCUIT
- Stanley v. Novartis Pharms. Corp., No. CV1103191JGBOPX, 2014 WL 12573393, at *6 (C.D. Cal. Might 6, 2014) (“[T]he opinions of [expert] witnesses on the intent, motives, or states of thoughts of firms, regulatory businesses and others haven’t any foundation in any related physique of data or experience.”) (remand from MDL No. 1760).
TENTH CIRCUIT
- Fischer v. BMW of N. Am., L.L.C., No. 18-CV-00120-PAB-MEH, 2020 WL 9259705, at *6 (D. Colo. Mar. 10, 2020) (non-MDL exclusion of plaintiff knowledgeable’s opinion on defendant’s intent) (citing In re Rezulin and Wells v. Allergan, 2013 WL 7208221, at *2 (W.D. Okla. Feb. 4, 2013)), aff’d sub nom. Fischer v. BMW of N. Am., LLC, No. 20-1399, 2021 WL 5458444 (tenth Cir. Nov. 23, 2021).
ELEVENTH CIRCUIT
- In re 3M Fight Arms Earplug Prod. Liab. Litig., No. 3:19MD2885, 2021 WL 765019, at *42 (N.D. Fla. Feb. 28, 2021) (MDL excluded plaintiff knowledgeable on defendant’s “way of thinking, together with his opinion as to what 3M ‘hop[ed],’ had ‘no thought’ about, and what 3M knew or didn’t know.”).
* * *
Now the problem of the admissibility of knowledgeable testimony on a defendant’s way of thinking is pending earlier than the Supreme Court docket in a drug case. Not product legal responsibility, thoughts you, however a prison prosecution for importing meth, Diaz v. United States. (The Ninth Circuit’s unpublished opinion is right here.) As we famous up entrance, Fed. R. Evid. 704(b) precludes knowledgeable opinion on “whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection.” After conviction, Diaz appealed to the Ninth Circuit on 4 grounds, three of which have been just about walkovers because of the defendant’s procedural failings beneath. The fourth associated to the admission of “the federal government knowledgeable’s modus operandi testimony on drug trafficking organizations’ use of unknowing couriers.” Slip op. at 5-6. Diaz had provided a “blind mule” or “unknowing courier” protection and the federal government responded with testimony from an knowledgeable (who had testified many occasions in comparable instances earlier than the identical choose), whose testimony was decided to be dependable. On enchantment and we presume beneath, Diaz provided a further argument below Rule 704(b):
Lastly, Diaz argues that testimony that drug trafficking organizations hardly ever use unknowing couriers is the “practical equal” of a prohibited opinion on psychological state. That is opposite to our precedent. Diaz is appropriate that the Fifth Circuit has adopted this view, see, e.g., United States v. Gutierrez-Farias, 294 F.3d 657, 663 (fifth Cir. 2002), however we’ve allowed such testimony as long as the knowledgeable doesn’t present an “specific opinion” on the defendant’s way of thinking, see, e.g., United States v. Gomez, 725 F.3d 1121, 1128 (ninth Cir. 2013) (quotation and inside citation marks omitted), and the knowledgeable didn’t accomplish that right here.
Slip op. at 6-7.
The Supreme Court docket accepted Diaz’s petition for cert. It’s uncommon for the Supreme Court docket to just accept cert on a problem addressed in a single paragraph of an unpublished opinion, however the quote above from that opinion signifies {that a} circuit cut up has existed for not less than ten years. Protection of the oral argument two weeks in the past indicated that a number of justices questioned the relevancy of the knowledgeable’s testimony if, to keep away from Rule 704(b)’s exception, the knowledgeable’s opinion didn’t tackle whether or not Diaz’s “did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection,” on this case whether or not she was an harmless dupe or a understanding courier of the meth. Based mostly on the questioning at oral argument, the stress is between knowledgeable opinion that does “not state an opinion about whether or not the defendant did or didn’t have a psychological state or situation that constitutes a component of the crime charged or of a protection” and knowledgeable opinion that’s not related to the defendant in any respect. When it comes to graphic illustration, does the Venn diagram of 401 and 704(b) have an space of admissible overlapping knowledgeable opinion testimony?
This made us take into consideration the parallels to quasi-intent testimony offered within the kind of instances in opposition to our purchasers. If the federal government’s knowledgeable in Diaz was, as marketed, testifying in regards to the modus operandi of Mexican drug cartels when it comes to their use of couriers of medicine throughout the U.S.-Mexico border, then the testimony was provided to point out {that a} blind mule is as frequent as a sighted unicorn and, thus, Diaz’s rivalry that she didn’t know she was carrying meth have to be bogus. That is akin to what’s typically known as sample and apply proof below Fed. R. Evid. 404(b)(2). (As a result of we aren’t prison attorneys, we will put aside a dialogue of the discover requirement below 404(b)(3) when the prosecution tries to make use of such proof in a prison case.) But, the sample and apply at problem on this testimony was not that of Diaz, however of cartels and drug carriers. Utilizing the language of Rule 404, proof of different acts (by others) was provided to show “information . . . absence of mistake, or lack of accident.” For Diaz, the argument in opposition to admissibility is that the knowledgeable’s testimony indicated that an harmless service is a rarity, not whether or not Diaz knew she was transporting meth throughout the border. In our instances, plaintiffs provide just a few variations of knowledgeable opinion on the defendant’s intent primarily based on the acts of others and knowledge regarding chances, though the plaintiffs will not be ready for our purchasers to open the door to intent testimony.
For many years, plaintiff attorneys in drug and machine product legal responsibility instances have overwhelmed the “earnings over security” drum and have tried to have consultants echo the phrase from the witness stand. After all, savvy judges see that direct knowledgeable testimony that the defendant did, actually, put earnings over security in making some resolution can be impermissible opinion on the defendant’s way of thinking. See In re Prempro Prods. Liab. Litig., 554 F. Supp. 2nd 871, 881 (E.D. Ark. 2008) (discussing exclusion of plaintiff knowledgeable’s “editorial about pharmaceutical corporations placing gross sales and advertising and marketing earlier than science”), aff’d in pertinent half, rev’d partially on different grounds, 586 F.3d 547, 571 (eighth Cir. 2009). One strategy to attempt to get across the prohibition of intent opinions is to supply knowledgeable proof on the defendant’s conduct that, with out saying what was within the heads of defendant’s resolution makers, makes clear that good corporations don’t make the identical choices that defendant did as a result of they put security over earnings. This has been used, together with different antics, to get large punitive damages awards, which require an intent discovering. There may be not a lot daylight between this testimony and the knowledgeable’s in Diaz when it comes to the connection to the defendant’s intent. Each are framed when it comes to the supposed intent of others to attract a distinction.
One other strategy to attempt to get across the prohibition on knowledgeable opinion on the defendant’s way of thinking entails statistical flim flam. We’ve got seen variants utilized in civil RICO, third celebration payor, and public nuisance litigation, amongst others, however it all follows a well-known sample whatever the idea of legal responsibility. Based mostly on evaluation of knowledge of orders, prescriptions, dispensation, reimbursement, and many others., the statistician/economist/mouthpiece can opine, in essence, that it’s overwhelmingly possible that the defendant’s actions have been taken with the requisite intent or that it’s overwhelmingly unlikely that they have been taken for an harmless, non-culpable purpose. Once more, no matter how the knowledgeable comes up with the proportion (which is a matter for Rule 702), is there a basic distinction when it comes to relevance between an knowledgeable opining that 98% of drug carriers will not be “blind mules” and an knowledgeable opining that 98% of off-label prescriptions outcome from intentional off-label promotion? (Any opinion from an knowledgeable on why prescribing physicians, notably physicians not within the case, prescribed particular medical merchandise is inherently suspect anyway.) We may go on.
We have no idea what the Court docket will maintain in Diaz in reference to the interaction between Rule 401 and Rule 704(b) when it comes to knowledgeable opinion on the intent of people or entities aside from the defendant. We do strongly suspect, nevertheless, that the choice may present ammunition to oppose the kind of veiled knowledgeable opinion on intent—itself a response to the twenty-plus 12 months historical past of selections prohibiting the unveiled variant.
