The difficulty of the mind-set or intent of a celebration can play out quite a few methods primarily based on the character of the case. Within the felony 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 occasion really interpreted disputed provisions could be central points to determine. In an employment case, it might be the problem of whether or not the acknowledged motive for taking an antagonistic employment motion was mere pretext for the actual motive. Within the product legal responsibility context, the main focus could be on the plaintiff’s assumption of danger 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 system strive circumstances to get punitive damages, the latter is a recurring challenge in our circumstances.
Again within the day, properly earlier than The Case of Thorns gave rise to tort legislation and tort legislation finally 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 occasion was good and trustworthy and, thus, ought to prevail. The oath serving to might contact on all manners of mind-set, similar to “Ruprecht is telling the reality that he thought it was his pig” or “Rolfe was not appearing in self protection when he slew form Alfred.” In American jurisprudence, the distaste for this overtly classist follow—nobles tended to have higher oath helpers than commoners—morphed into one thing referred to as the “final challenge rule.” As a result of juries determined disputed info, no witness was presupposed to stray into direct testimony on a deciding challenge, which was seen as “usurping the province of the jury” with “empty rhetoric” from the stand. This historical past is about out within the Advisory Committee Notes to Federal Rule of Proof 704, which abolished the unwieldy final challenge rule in federal civil and felony trials when it was adopted in 1975.
The 2011 to current model of the Rule offers:
Rule 704. Opinion on an Final Situation
(a) In Common — Not Robotically Objectionable. An opinion is just not objectionable simply because it embraces an final challenge.
(b) Exception. In a felony 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 felony circumstances.
The Notes additionally include a reasonably acquainted clarification that references oath helpers:
The abolition of the last word challenge rule doesn’t decrease the bars in order to confess all opinions. Below Guidelines 701 and 702, opinions should be useful to the trier of reality, and Rule 403 offers 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. In addition 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?” could be excluded, whereas the query, “Did T have enough 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?” could be allowed. McCormick §12.
We first ran throughout this language again in 2000 when posed with the problem tips on how to stop a plaintiff knowledgeable, certified in some self-discipline related to no 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, once we first appeared, the authority for excluding it was as skinny as the premise for admitting it, regardless that many courts had admitted it over faint objection. Though we supplied quite a few 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 selections 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 selections on this challenge from the In re Weight loss plan Medication MDL, quite a few particular person selections adopted swimsuit, however it was the printed choice from the In re Rezulin MDL as a part of broader Daubert challenges that actually acquired 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 are able to current a mini-survey of federal selections since 2011, targeted on MDL and MDL remand circumstances, which makes it clear that the exclusion of knowledgeable opinion on the mind-set 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 concerning the intent or motive of events or others lie outdoors 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. second 531, 547, 551 (S.D.N.Y. 2004); In re Trasylol Prods. Liab. Litig., 709 F. Supp. second 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 companies, regulatory companies 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) (“Knowledgeable testimony as to intent, motive, or mind-set affords not more than the drawing of an inference from the info of the case … and allowing knowledgeable testimony on this topic could 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 quite a few selections on the identical knowledgeable, together with Heineman v. American House 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’ mind-set); In re Viagra Prods. Liab. Litig., 658 F. Supp. second 950, 964-965 (D. Minn. 2009) (“There is no such thing as a indication within the report that the jury right here would require particular help to interpret the paperwork on which Dr. Blume bases her opinion that Pfizer was extra fearful 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’ mind-set, 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 mind-set)).
FOURTH CIRCUIT
- Plenty of selections from 2013 ahead by the choose overseeing a number of pelvic mesh MDLs expressed comparable 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 operate by permitting an knowledgeable to testify as to a celebration’s mind-set or on whether or not a celebration acted moderately. 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.second 589, 611, 629 (S.D.W. Va.2013). Though an knowledgeable might testify about his or her evaluation of inside company paperwork solely for the aim of explaining the premise for his or her opinions—assuming the opinions are in any other case admissible—a celebration’s data, mind-set, or different issues associated to company conduct and ethics usually are not 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 testing,” whereas allowing opinions on defendant’s “goal actions or inactions with respect to 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 a company’s mind-set, 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. Ailing. Mar. 31, 2017) (MDL excluded plaintiff knowledgeable on “the motivations, intent, and mind-set of a company,” noting “[t]he jury won’t be aided by Plaintiffs’ knowledgeable 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 mind-set is one for the jury, not for an knowledgeable . . . . Recitation of defendant’s personal company paperwork doesn’t fall inside 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 concerning these paperwork.”) (remand from MDL No. 1760).
NINTH CIRCUIT
- Stanley v. Novartis Pharms. Corp., No. CV1103191JGBOPX, 2014 WL 12573393, at *6 (C.D. Cal. Could 6, 2014) (“[T]he opinions of [expert] witnesses on the intent, motives, or states of thoughts of companies, regulatory companies and others haven’t any foundation in any related physique of information 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 “mind-set, 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 mind-set is pending earlier than the Supreme Court docket in a drug case. Not product legal responsibility, thoughts you, however a felony 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 supplied a “blind mule” or “unknowing courier” protection and the federal government responded with testimony from an knowledgeable (who had testified many instances in comparable circumstances earlier than the identical choose), whose testimony was decided to be dependable. On attraction and we presume beneath, Diaz supplied an extra argument below Rule 704(b):
Lastly, Diaz argues that testimony that drug trafficking organizations hardly ever use unknowing couriers is the “purposeful 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 knowledgeable doesn’t present an “specific opinion” on the defendant’s mind-set, 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 achieve this 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 difficulty addressed in a single paragraph of an unpublished opinion, however the quote above from that opinion signifies {that a} circuit break up has existed for no 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 deal with 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 strain 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. By way of 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 circumstances in opposition to our shoppers. If the federal government’s knowledgeable in Diaz was, as marketed, testifying concerning 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 supplied to indicate {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 should be bogus. That is akin to what’s generally known as sample and follow proof below Fed. R. Evid. 404(b)(2). (As a result of we’re not felony attorneys, we are able to put aside a dialogue of the discover requirement below 404(b)(3) when the prosecution tries to make use of such proof in a felony case.) But, the sample and follow at challenge 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 knowledgeable’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 knowledgeable opinion on the defendant’s intent primarily based on the acts of others and information regarding chances, though the plaintiffs usually are not ready for our shoppers to open the door to intent testimony.
For many years, plaintiff attorneys in drug and system product legal responsibility circumstances have overwhelmed 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 knowledgeable testimony that the defendant did, in actual fact, put earnings over security in making some choice could be impermissible opinion on the defendant’s mind-set. See In re Prempro Prods. Liab. Litig., 554 F. Supp. second 871, 881 (E.D. Ark. 2008) (discussing exclusion of plaintiff knowledgeable’s “editorial about pharmaceutical firms placing gross sales and advertising and marketing earlier than science”), aff’d in pertinent half, rev’d partly on different grounds, 586 F.3d 547, 571 (eighth Cir. 2009). One solution 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 choice 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 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 solution to attempt to get across the prohibition on knowledgeable opinion on the defendant’s mind-set includes statistical flim flam. We now have seen variants utilized in civil RICO, third occasion payor, and public nuisance litigation, amongst others, however it all follows a well-recognized sample whatever the concept of legal responsibility. Based mostly on evaluation of information 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 motive. 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 usually are not “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, significantly physicians not within the case, prescribed particular medical merchandise is inherently suspect anyway.) We might 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 apart from the defendant. We do strongly suspect, nevertheless, that the choice might present ammunition to oppose the kind of veiled knowledgeable opinion on intent—itself a response to the twenty-plus yr historical past of choices prohibiting the unveiled variant.
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