The difficulty of the frame of mind or intent of a celebration can play out numerous methods based mostly on the character of the case. Within the legal context, proof of the mens rea of the defendant is often 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 get together really interpreted disputed provisions will be central points to determine. In an employment case, it could be the problem of whether or not the acknowledged motive for taking an antagonistic employment motion was mere pretext for the true motive. Within the product legal responsibility context, the main focus will be on the plaintiff’s assumption of threat or the defendant’s alleged reckless indifference to the danger of the hurt that allegedly befell the plaintiff. As a result of plaintiffs in large-scale drug and gadget attempt circumstances to get punitive damages, the latter is a recurring difficulty in our circumstances.
Again within the day, properly 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 based mostly on using oath helpers, purportedly upstanding residents who would swear that one get together was good and trustworthy and, thus, ought to prevail. The oath serving to may contact on all manners of frame of mind, equivalent to “Ruprecht is telling the reality that he thought it was his pig” or “Rolfe was not performing in self protection when he slew sort Alfred.” In American jurisprudence, the distaste for this overtly classist apply—nobles tended to have higher oath helpers than commoners—morphed into one thing known as the “final difficulty rule.” As a result of juries determined disputed details, no witness was imagined to stray into direct testimony on a deciding difficulty, 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 difficulty rule in federal civil and legal trials when it was adopted in 1975.
The 2011 to current model of the Rule gives:
Rule 704. Opinion on an Final Subject
(a) In Basic — Not Robotically Objectionable. An opinion just isn’t objectionable simply because it embraces an final difficulty.
(b) Exception. In a legal case, an professional 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 professional witnesses, though the exception is only for consultants in legal circumstances.
The Notes additionally comprise a reasonably acquainted rationalization that references oath helpers:
The abolition of the last word difficulty rule doesn’t decrease the bars in order to confess all opinions. Underneath Guidelines 701 and 702, opinions should be useful to the trier of reality, and Rule 403 gives 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 end result to succeed in, considerably within the method of the oath-helpers of an earlier day. Additionally they stand able to exclude opinions phrased by way of inadequately explored authorized standards. Thus the query, “Did T have capability to make a will?” can be excluded, whereas the query, “Did T have ample 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 forestall a plaintiff professional, certified in some self-discipline related to a minimum of 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 regarded, the authority for excluding it was as skinny as the idea for admitting it, regardless that many courts had admitted it over faint objection. Though we supplied numerous arguments for why the plaintiff consultants shouldn’t be allowed to sprinkle in all their musings on intent in the midst of their testimony, the one which has been essentially the most impactful in serving to to create a line of federal MDL selections since 2000 is that consultants shouldn’t be permitted to usurp the jury’s perform with this form of thinly veiled advocacy. After our first two selections on this difficulty from the In re Food regimen Medication MDL, numerous particular person selections adopted swimsuit, however it was the revealed determination from the In re Rezulin MDL as a part of broader Daubert challenges that basically bought issues rolling in MDL after MDL.
We detailed the primary eleven years of this line of circumstances right here. With credit score to Kelly McNeill, we will current a mini-survey of federal selections since 2011, centered on MDL and MDL remand circumstances, which makes it clear that the exclusion of professional opinion on the frame of mind 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 professional’s challenged opinions; “Inferences in regards to the intent or motive of events or others lie exterior the bounds of professional 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 professional’s opinions on the “intent, motives or states of thoughts of firms, regulatory companies and others,” however permitted testimony on “what data 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 frame of mind presents not more than the drawing of an inference from the details of the case … and allowing professional testimony on this topic can be merely substituting the professional’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 professional’s opinions; citing numerous selections on the identical professional, 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’ frame of mind); In re Viagra Prods. Liab. Litig., 658 F. Supp. 2nd 950, 964-965 (D. Minn. 2009) (“There isn’t any indication within the file that the jury right here would require particular help to interpret the paperwork on which Dr. Blume bases her opinion that Pfizer was extra apprehensive about unhealthy publicity than security. As a result of the jury is equally able to evaluating this specific proof, Dr. Blume’s opinion on this matter should 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’ frame of mind, intent, or data); 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, data, or different frame of mind)).
FOURTH CIRCUIT
- Quite a lot of selections from 2013 ahead by the decide overseeing a number of pelvic mesh MDLs expressed related rulings that broadly excluded intent opinions. As an illustration, 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 courtroom acknowledged:
First, as I’ve maintained all through these MDLs, I can’t allow the events to make use of consultants to usurp the jury’s fact-finding perform by permitting an professional to testify as to a celebration’s frame of mind 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 professional might testify about his or her evaluation 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 data, frame of mind, or different issues associated to company conduct and ethics should not acceptable topics of professional 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 professional 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 usually barred professional opinions or testimony regarding an organization’s frame of mind, subjective motivation, or intent.”) (MDL No. 2433)
SEVENTH CIRCUIT
- In re Fluidmaster, Inc., Water Connector Elements Prod. Liab. Litig., No. 14-CV-5696, 2017 WL 1196990, at *24 (N.D. Unwell. Mar. 31, 2017) (MDL excluded plaintiff professional on “the motivations, intent, and frame of mind of an organization,” noting “[t]he jury won’t be aided by Plaintiffs’ professional speculating about why Defendant made design adjustments and outsourcing selections”).
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, data or frame of mind is one for the jury, not for an professional . . . . Recitation of defendant’s personal company paperwork doesn’t fall throughout the purview of professional testimony underneath 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 Courtroom agrees with the events that Dr. Vogel might not proffer an opinion regarding what people at Novartis considered data 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 companies and others don’t have 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 professional’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 professional on defendant’s “frame of mind, together with his opinion as to what 3M ‘hop[ed],’ had ‘no concept’ about, and what 3M knew or didn’t know.”).
* * *
Now the problem of the admissibility of professional testimony on a defendant’s frame of mind is pending earlier than the Supreme Courtroom in a drug case. Not product legal responsibility, thoughts you, however a legal 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 professional 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 as a result of defendant’s procedural failings beneath. The fourth associated to the admission of “the federal government professional’s modus operandi testimony on drug trafficking organizations’ use of unknowing couriers.” Slip op. at 5-6. Diaz had supplied a “blind mule” or “unknowing courier” protection and the federal government responded with testimony from an professional (who had testified many instances in related circumstances earlier than the identical decide), whose testimony was decided to be dependable. On attraction and we presume beneath, Diaz supplied a further argument underneath Rule 704(b):
Lastly, Diaz argues that testimony that drug trafficking organizations hardly ever use unknowing couriers is the “useful equal” of a prohibited opinion on psychological state. That is opposite to our precedent. Diaz is right 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 have now allowed such testimony as long as the professional doesn’t present an “specific opinion” on the defendant’s frame of mind, see, e.g., United States v. Gomez, 725 F.3d 1121, 1128 (ninth Cir. 2013) (quotation and inside citation marks omitted), and the professional didn’t accomplish that right here.
Slip op. at 6-7.
The Supreme Courtroom accepted Diaz’s petition for cert. It’s uncommon for the Supreme Courtroom to just accept cert on a difficulty 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 a minimum of ten years. Protection of the oral argument two weeks in the past indicated that a number of justices questioned the relevancy of the professional’s testimony if, to keep away from Rule 704(b)’s exception, the professional’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 realizing courier of the meth. Primarily based on the questioning at oral argument, the stress is between professional 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 professional opinion that isn’t related to the defendant in any respect. By way of graphic illustration, does the Venn diagram of 401 and 704(b) have an space of admissible overlapping professional opinion testimony?
This made us take into consideration the parallels to quasi-intent testimony offered within the form of circumstances in opposition to our purchasers. If the federal government’s professional in Diaz was, as marketed, testifying in regards to the modus operandi of Mexican drug cartels by way of their use of couriers of medication throughout the U.S.-Mexico border, then the testimony was supplied to point out {that a} blind mule is as frequent as a sighted unicorn and, thus, Diaz’s competition that she didn’t know she was carrying meth should be bogus. That is akin to what’s generally known as sample and apply proof underneath Fed. R. Evid. 404(b)(2). (As a result of we’re not legal attorneys, we will put aside a dialogue of the discover requirement underneath 404(b)(3) when the prosecution tries to make use of such proof in a legal case.) But, the sample and apply at difficulty 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 supplied to show “data . . . absence of mistake, or lack of accident.” For Diaz, the argument in opposition to admissibility is that the professional’s testimony indicated that an harmless provider is a rarity, not whether or not Diaz knew she was transporting meth throughout the border. In our circumstances, plaintiffs provide a couple of variations of professional opinion on the defendant’s intent based mostly on the acts of others and information regarding possibilities, though the plaintiffs should not ready for our purchasers to open the door to intent testimony.
For many years, plaintiff attorneys in drug and gadget product legal responsibility circumstances have crushed the “earnings over security” drum and have tried to have consultants echo the phrase from the witness stand. In fact, savvy judges see that direct professional testimony that the defendant did, in actual fact, put earnings over security in making some determination can be impermissible opinion on the defendant’s frame of mind. See In re Prempro Prods. Liab. Litig., 554 F. Supp. 2nd 871, 881 (E.D. Ark. 2008) (discussing exclusion of plaintiff professional’s “editorial about pharmaceutical firms placing gross sales and advertising earlier than science”), aff’d in pertinent half, rev’d partially on different grounds, 586 F.3d 547, 571 (eighth Cir. 2009). One option to attempt to get across the prohibition of intent opinions is to supply professional proof on the defendant’s conduct that, with out saying what was within the heads of defendant’s determination makers, makes clear that good firms don’t make the identical selections that defendant did as a result of they put security over earnings. This has been used, together with different antics, to get huge punitive damages awards, which require an intent discovering. There’s not a lot daylight between this testimony and the professional’s in Diaz by way of the connection to the defendant’s intent. Each are framed by way of the supposed intent of others to attract a distinction.
One other option to attempt to get across the prohibition on professional opinion on the defendant’s frame of mind entails statistical flim flam. We’ve seen variants utilized in civil RICO, third get together payor, and public nuisance litigation, amongst others, however it all follows a well-recognized sample whatever the idea of legal responsibility. Primarily based on evaluation of knowledge of orders, prescriptions, dispensation, reimbursement, and many others., the statistician/economist/mouthpiece can opine, in essence, that it’s overwhelmingly seemingly 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 motive. Once more, no matter how the professional comes up with the share (which is a matter for Rule 702), is there a basic distinction by way of relevance between an professional opining that 98% of drug carriers should not “blind mules” and an professional opining that 98% of off-label prescriptions end result from intentional off-label promotion? (Any opinion from an professional on why prescribing physicians, significantly physicians not within the case, prescribed particular medical merchandise is inherently suspect anyway.) We may go on.
We have no idea what the Courtroom will maintain in Diaz in reference to the interaction between Rule 401 and Rule 704(b) by way of professional opinion on the intent of people or entities aside from the defendant. We do strongly suspect, nonetheless, that the choice may present ammunition to oppose the form of veiled professional opinion on intent—itself a response to the twenty-plus yr historical past of selections prohibiting the unveiled variant.
