Rule 403 of the Federal Rules of Evidence governs the admissibility of demonstrative evidence at trial, assuming that evidence is determined to be relevant under Rule 401. Pursuant to Rule 403, a demonstrative exhibit may be excluded from the courtroom if its probative value is substantially outweighed by its unfair prejudice, its cumulative nature or if it is confusing or misleading.

Does the exhibit (1) relate to a piece of admissible substantive proof; (2) fairly and accurately reflect that substantive proof; and (3) is it sufficiently explanatory or illustrative to assist the jury? These are the questions used to establish a proper foundation for use at trial.

In addition, the exhibit should convey what it is designed to convey. For example, a computer enhanced photograph should not make an accident scene look better or worse than it actually was. Similarly, the demonstrative evidence should convey representational accuracy. The scale, dimensions and contours of the underlying evidence should all be accurately depicted. Today more than ever, the creative use of software permits trial counsel to manipulate demonstrative exhibits in ways often difficult to spot.

In an excellent article titled, “5 Demonstrative Evidence Tricks and Cheats to Watch Out For,” Ken Lopez, fouinder of A2L Consulting, provides a useful guide for spotting misleading charts and explains why they are misleading. Lopez discusses five such tricks (which are somewhat difficult to convey without having all of the graphics Lopez uses in his article to illustrate his points):

1. The Slippery Scale. This trick involves setting the the vertical y-axis on a graph in a narrow range that does not include “0.” By not including “0,” it is easy to make a relatively small change look enormous.

2. Compared to what? If the trial lawyer seeks to demonstrate a small change on a percentage basis, all he needs to do is carry the horizontal x-axis so that time is literally “on his side”

3. The Percentage Increase Trick. How many times have you heard someone talk about a 200% or 300% increase and really wonder what they mean? 

4. Tricking the Eye with 3D Charts. Flat charts with no depth or 3D aspect are harder to trick the viewer with, so always scrutinize your opponent’s charts when a third dimension is introduced. On a pie chart, when a slice of the pie (e.g., the percentage of customers injured by a purportedly defective product) is closer to the viewer, it looks much bigger.

5. Misleading Emotional Imagery. Putting an image of a homeless person in the background of a chart about increasing homelessness is designed to evoke emotion. Similarly, showing an oil-covered bird in the background in an explanation of how much oil was spilled in an accident does not add to one’s understanding of the amount of oil spilled, but seeks to trigger an emotional response in the viewer.

Perhaps the single most important Rule 403 objection you can make in a jury trial is the exhibit’s capacity to generate an emotional response such as pity, revulsion or contempt. Under these circumstances, the capacity to evoke emotion far outweighs the value of the evidence on the issues before the court and exclusion is appropriate.

As originally posted on January 9, 2013 in Toxic Torts Litigation Blog
Bookmark and Share’s Legal Blog Watch recently noted a viral Facebook photo involving a “footlong” sandwich that appeared to be less than 12 inches long:  Citing a post from Today where restaurant customers were posting pictures of footlong sandwiches,, Legal Blog Watch asked whether a class action or two or three would soon follow.  One might reasonably question whether customers suffered any damages by the claimed shortfall.  One might further question how plaintiffs’ counsel could possibly prove any sort of claim on a class-wide basis.  Nonetheless, the fact that such questions come to mind shows the pervasiveness of class action litigation in today’s society.  The issues inherent in the current use of the class action device are of such importance that the U.S. Supreme Court’s current docket features five merits cases involving class action claims.  Those Supreme Court cases, along with a number of other cutting-edge class action topics, will be the subject of DRI’s 2013 Class Action Seminar, which will take place at the Washington Court Hotel in Washington, DC on July 25 and 26.  DRI members interested in this area of law will want to attend this Program.


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Litigation Funding

Posted on May 9, 2012 04:16 by Nathan A. Schachtman

An internet search on the phrase "litigation funding" returns thousands of hits.  There are an incredible number of companies and persons "out there" who will buy equity shares in a lawsuit.  Hedge funds are actively seeking opportunities to invest in lawsuits.

Putting aside the concerns about champerty and maintenance, I wonder whether defense counsel are doing enough to work on this issue in trials.  Assuming that these websites really are engaged in the practice they describe, shouldn't defense counsel include questions related to investments in lawsuits, in their voir dire of the jury panel?

Obviously if potential jurors owned stock in the defendant company, they would be disqualified.  Equity ownership in a chose in action surely is relevant to counsel's evaluation of a prospective juror's impartiality.  Even if the prospective juror is not invested in this particular lawsuit, the question is important.  If the investment is in the litigation generally, or in other plaintiffs' cases within the same litigation, then a jury verdict in favor of the plaintiff would likely benefit the juror by increasing the settlement value of the other cases.  Even investments in unrelated personal injury litigation, the investments have the potential to prejudice the juror against the defense.  For instance, if the juror has investments in another personal injury litigation, returning a large verdict in the present case could benefit the investment by making the company defending against the juror's chose in action believe that trying cases in the particular venue was too dangerous to risk, and those claims should be settled.

Certainly, the existence and extent of investment by others in a lawsuit should be a worthy line of discovery to conduct in mass tort litigation.

Are we doing enough to stop this insanity?

This article was first posted at the author's website on May 8th, 2012:

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When Consumer Product Safety Commissioner Thomas Moore retired in October 2011 after serving three terms, the Consumer Product Safety Commission (CPSC) was split evenly along party lines.   There were two republicans, Nancy Nord and Anne Northup, and two democrats, Robert Adler and Chairman Inez Tenenbaum.  Now it seems President Obama's nomination of democrat Marietta Robinson will again give democrats the edge. 

Marietta Robinson has been a trial lawyer in Michigan for thirty three years, representing both plaintiffs and defendants.   Additionally, for eight years Robinson served as the federally appointed trustee of the Dalkon Shield Trust, a trust that paid billions to women who used the Dalkon Shield contraceptive.  Robinson threw her hat in the ring for a seat on the Michigan Supreme Court in 2000 and 2002. 

The CPSC works to "protect the public against unreasonable risks of injury associated with consumer products."  CPSC Commissioners are nominated by the President and confirmed by the Senate.  Robinson told the Washington Post that she was honored to be nominated and hoped to get through Senate confirmation quickly.    

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(originally posted on on October 4, 2011)

Well, the Reference Manual on Scientific Evidence: Third Edition is out. And the fix is in.
Think we exaggerate? How about this little gem from the Preface: "Judges and juries, however, must consider financial conflicts of interest when assessing scientific testimony. The threshold for pursuing the possibility of bias must be low. In some instances, judges have been frustrated in identifying expert witnesses who are free of conflict of interest because entire fields of science seem to be co-opted by payments from industry"?

Or how about the first section of the first chapter of the Manual: "A. Atomization"? Citing our least favorite case, Milward v. Acuity, the Manual frowns on the effort of courts to examine the premises, and the evidence allegedly supporting those premises, of an expert when determining whether his causal inference is warranted. Noting, very slyly and without disclosing their demand for transparency and accountability, that certain well known and respected authorities have concluded that ultimately the determination of causation is a matter of scientific judgment "reflecting the weight of the evidence", the Manual chastises those who might cock an eyebrow when it turns out that none of the "evidence" proffered by an expert actually supports his opinion. What duties would be left to a gatekeeper obliged to accept the mere ipse dixit of a well credentialed academic? The Manual, unsurprisingly, doesn't say.

Worse yet, and indicative of who, and what cause, was behind the effort, the Manual goes on to cite the new-ish Milward three more times. Once for the proposition that the unproveability of a theory is proof of the theory; once to support the rubber stamping of an expert's personalized and unexamined - weighing in the scales of his scientific judgment - "methodology"; and, once to reject the idea that statistical significance testing - the "it might be so" hurdle for hypothesis generation from statistics - is any business of federal judges.

The first chapter tellingly concludes that "there are serious concerns about whether ... the guidelines have resulted in trial judges encroaching on the province of the jury to ... judge the overall credibility of  ... scientific theories." We thought the whole point of Daubert was to ensure a better approximation of the truth by at least limiting the theories to be considered by lay juries to those that have a decent chance of being true. Guess not.

David Oliver is managing partner of the Houston office of Vorys, Sater, Seymour and Pease. His practice focuses on civil litigation involving allegations of injuries due to exposure to chemicals or pharmaceuticals; he holds degrees in both chemistry and biology. David is registered for DRI’s Annual Meeting. He is speaking at the Toxic Tort Committee CLE session on October 28.  

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Risk, Duty and Foreseeability

Posted on April 7, 2011 04:25 by David A. Oliver

The Restatement (Third) of Torts shrivels duty into an if-then statement executable by even obsolete jurists: if an actor's conduct creates a risk of physical harm then he owes a duty to exercise reasonable care.

Duty supposedly needed a new and simple algorithm because opinions turning on the question of duty were seen as incoherent and generally the result of a court having invaded the province of the fact finder (jury, hereafter). Foreseeability, the reporters decided, isn't the sort of legal or policy question judges decide; it's fact- and case-specific, and thus something lay people relying upon common sense and communal norms of behavior ought to decide.

So that judges need not be completely replaced by computers, the Restatement's reporters added that in exceptional cases a court may find that, due to some other explicitly stated policy, a defendant may not owe a duty. Furthermore, a court may on rare occasions properly find that reasonable people could not conclude that an outcome was foreseeable and so hold that the duty auto-generated by the new formulation had not been breached. Very simple indeed. But how's it working out?

If Nebraska (an early adopter of the Restatement's new duty formulation) is any indication the answer is "same results; different justification". Does a landlord who allows a renter to keep a pit bull owe a duty to a third party bitten by the dog? Sure; but wasn't foreseeable so defendant wins. See Monica S. v. Nguyen. Does the owner of a road grader that can only be turned off while it's still in gear owe a duty to a mechanic called to fix it who twice accidentally bumps the ignition button causing it to start up and run over him? Sure; but wasn't foreseeable so defendant wins. See Riggs v. Nickel.

What's going on? Look at the gold disk in my graphic. It contains all the acts, however remote, that created the risk of an injury that came to pass (e.g. the risk the road grader owner's great grandmother created by having his grandfather). American courts have pretty much uniformly taken the position that whatever risk the jury is to focus on should not be too remote. Whether because they recognized that "security is mostly a superstition" or that "a man sits as many risks as he runs" courts have in the past made essentially policy decisions to the effect that only a subset of all risks, those that aren't insubstantial, may be subjected to a foreseeability analysis. It's only for that subset of substantial risks that an actor assumes a duty and only for those risks that a jury may find to have been foreseeable can he be made liable. Now, in Nebraska (and Iowa), courts are finding a duty for every risk but then holding that whatever risks they would have formerly found to have been insubstantial are instead simply unforeseeable.

Rather than deciding the limits of tort liability those courts that have adopted the Third Restatement's concept of duty are now engaged in the business of deciding the limits of human foresight. Hardly sensible and no improvement over the old rule: "you're under no duty to do the impossible i.e. guard against every 1-in-a-million risk you create". Oh, well, at least it's frustrating what I suspect was the real purpose of the new duty formulation: to backdoor the Precautionary Principle into the law of torts.

Originally posted at David Oliver’s blog site Mass Torts State of the Art, April 5, 2011. Republished with permission.


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Climate Change/Global Warming Litigation

Posted on February 11, 2011 02:56 by Sean P. Wajert

The U.S. Supreme Court is getting set to hear the challenge to a federal court of appeals decision allowing several states to pursue a public nuisance suit against various utilities for their alleged greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).  Last week the federal government weighed in and asked the Court to overturn the Second Circuit's decision in this public nuisance suit against American Electric Power Co. and other utilities for their greenhouse gas emissions, but on relatively narrow grounds. The brief filed by the Acting Solicitor General argues that the plaintiffs lacked “prudential standing” and that their suit should therefore be dismissed. One central issue in the case is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court. Should a single judge set emissions standards for regulated utilities across the country — or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue? Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities. A second issue is whether controlling power plant emissions' alleged effects on the climate is a political question beyond the reach of the courts. The government's current position is that if plaintiffs' overall theory is correct, that means that virtually every person, organization, company, or government across the globe emits greenhouse gases, and also virtually every one of them will sustain climate-change-related injuries. Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent specific statutory authorization, said the SG.

This topic will be featured at the breakout session for the Mass Torts & Class Actions SLG at this year's DRI Product Liability Conference in New Orleans. We'd be interested to hear you reaction to the briefs, including the papers from amici. DRI's amicus brief stresses to the Supreme Court that it should reverse the Second Circuit's decision in order to bring fairness, consistency and predictability to public nuisance litigation seeking to redress alleged climate change injuries. Although DRI acknowledges in its brief that the respondents' goal of reducing the threat of possible global climate change is laudable, pursuing a federal common law public nuisance action against a handful of arbitrarily selected energy-generating targets is an improper use of the courts in achieving that end.

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Categories: Environmental Law | Seminar | Torts | Toxic Tort

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Wisconsin Enacts Tort Reform Legislation

Posted on January 31, 2011 05:49 by Cort Sylvester

On January 27, 2011, Wisconsin Governor Scott Walker signed into law a significant tort reform statute.  The bill, introduced at Governor Walker’s request, passed both houses of the state legislature during special session. 

The legislation covers a wide range of issues.  Among the most far-reaching could be its alteration of Wisconsin’s standard for admission of expert testimony.  The state has had one of the most liberal standards in the nation, focusing almost exclusively on the qualification of the witness.  Wisconsin courts had rejected the Frye and Daubert tests.  The new law adopts an approximation of Daubert.  Expert testimony must now be based upon sufficient facts or data, be the product of reliable principles and methods, and result from the expert’s reliable application of the principles and methods to the facts of the case.  Experts also may not testify if they have any fees contingent on the outcome of the case. 

The bill also legislatively overturns the Wisconsin Supreme Court’s controversial Thomas v. Mallett decision that extended “risk contribution” theory to a product liability case alleging exposure to lead pigment.  The risk contribution doctrine relieved a plaintiff of the burden of proving that a product defendant actually manufactured or sold the specific product alleged to have caused injury.  Under the new statutory scheme, plaintiffs are generally required to prove product identification.  Limited exceptions to product identification are permitted, but only if the plaintiff has joined manufacturers who collectively produced at least 80% of chemically identical products sold in Wisconsin.  In addition to that requirement, the plaintiff must also show that no other lawful process exists to seek redress for the injury, that only the product at issue or a chemically identical product could have caused the injury, and that the defendant sold the product or a chemically identical one during the required time period.  Potential liability under these provisions applies only for products sold within 25 years before the plaintiff’s cause of action accrued. 

One of the other significant changes is the comparative fault scheme for strict liability products actions.  The jury must apportion fault between the plaintiff, the allegedly defective product and the contributory negligence of any other person.   If the plaintiff’s percentage of fault is greater than that of the product, the plaintiff cannot recover from any party responsible for placing the product into the stream of commerce.  If the plaintiff’s percentage is not greater than the product’s, the jury must apportion responsibility for the defect among all defendants alleged to have caused the defect.  The court then multiplies each defendant’s percentage of responsibility for the defect by the percentage of fault attributable to the product, and the result is the defendant’s percentage of liability for damages.  Joint and several liability applies only to defendants for which this final percentage is 51% or more. 

This legislation also adopts statutory criteria for determining whether a product is defective.  A design defect is defined to exist when “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design” and failure to adopt that alternative design makes the product not reasonably safe.  There is a separate requirement that the defect make the product unreasonably dangerous.   

Other highlights of the bill include: 

• A rebuttable presumption that drug or alcohol intoxication by the injured party was the cause of injury;
• Exclusion of subsequent remedial measures evidence from products cases;
• A 15-year statute of repose for products actions, except in cases of latent disease or when the manufacturer specifies a longer lifetime;
• Application of the medical malpractice statute of limitations and noneconomic damages cap to actions against long-term care providers;
• Adoption of a stricter standard for awarding punitive damages, which are now permitted only if the defendant acted with intent to injure particular persons or with knowledge that the injury was practically certain to result. 

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So as we start another year there is some worthwhile reading in the National Center for State Court’s report Examining the Work of State Courts (2008 Data). It is a report on case filings and caseloads in our states, for the last year where complete data was available. As you might imagine the statistical information available from state to state varies. However a number of states keep detailed reports on the types of cases being filed. Some interesting facts emerge.

Reading Table 4, a report on annual new tort filings in state courts from 1999 to 2008 you can see that tort filings were down in 2008 compared to the average tort filings over those 10 years in 25 states. The 2008 filings were more than 20% below the 10 year average in California, Idaho, Kansas, Michigan, Mississippi, Missouri, New Jersey, New York, North Dakota, Ohio, and Texas.

Over all tort filings fell 5 percent in the general jurisdiction courts in 13 states with the most detailed recordkeeping practices.

During 2008 the number of contract filings increased dramatically, a sign of our economic times. North Dakota lead the nation in 2008 in the ratio of incoming contract suits to tort suits. They had 320 tort cases and 19,590 contact cases, a 98% ratio. Kansas had 155,756 contract cases filed to 3,342 tort suits. The farming states weren’t the only ones with this ratio. In New Jersey there were over 9 times as many contact suits filed as tort suits and in Connecticut there were 8.2 times as many contact suits as tort suits. In fact, in 11 states there were better than 8 times as many contract suits filed as tort suits, in 2008.

In the tort arena, in 17 states, with better data compilation systems,  55% of the tort cases were automobile cases. North Carolina leads the list with 69% of their tort filings in 2008 being automobile cases, but with a very low ratio of tort suits, 94 cases per 100,000 of population. That compares to New Jersey where 627 cases per 100,000 populations were filed with 52% of them being auto cases. Connecticut’s new filings show 435 cases per 100,000 in population, with 68% being automobile torts.

Don’t worry about docket delays in New Jersey. They terminated 27% more tort cases in 2008 than were filed. 16 other states joined them in keeping ahead of the tide of tort cases with dispositions.

So if you do Medical Malpractice cases the news isn’t good. During the 10 years measured new filings were down 15% in the seven states which collected that data over the period, Arizona, Connecticut, Mississippi, New Jersey, New York, Rhode Island and Oregon. So where was the best place to have been in 2008? In Kansas, where 7.4% of the new tort cases were classed and medical malpractice followed by Puerto Rico with  6% of the new cases being medical malpractice. If you were in Wisconsin, Connecticut, Oregon or Minnesota doing medical malpractice work, life was tough in 2008 since less than 2% of the tort cases were medical malpractice In fact if you were in Oregon only 49 cases were filed and in Minnesota only 37 were filed.

So what does all this mean? It looks like that data confirms there are fewer tort cases being filed. Historically, when bad economic times hit, tort filings increase and verdicts tick up as well. Whether the data for the last two years, when available, will bear this out remains to be seen. For now its is clear we continue to live in interesting times and hopefully there will be plenty of new, challenging and interesting cases coming our way in the new year.

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Originally posted at Litigation from the Trenches.

As I was reading through the November 22, 2010 edition of Missouri Lawyer's Weekly, I came across a Commentary piece regarding the rising costs of litigation. It comes from the perspective of a plaintiff's attorney. I, as someone whose practice has primarily focused on representing insurance companies, have a different take on the issues raised in the commentary. I wanted to use this forum as an opportunity to provide my thoughts on some of the issues raised in the Commentary, hoping to generate a discussion amongst readers on both sides of the aisle.

One of the examples given of the system working in strange ways is a case where mediation had been offered prior to the suit being filed, but then after suit was filed that offer was withdrawn until certain discovery was completed. This may seem strange to a lay person, but in my experience working with insurance companies it is not strange at all. Oftentimes, before a suit is filed the matter is handled by one adjuster, and then once suit is filed, the claim is transferred to a litigation adjuster. Also, the company itself likely has guidelines to follow once suit is filed, which may include the completion of certain discovery and investigation prior to agreeing to mediation. Also, carriers often consider settling cases that have questionable merit prior to suit being filed because they can be closed quickly and cheaply. Once a "questionable" case gets past that point, the more prudent approach is frequently to defend the case vigorously, since that often does cost the carrier less than settling. We can debate for hours on end whether the guidelines themselves create waste in the system, but the fact is the insurance companies have put them in place to protect themselves in resolving claims that have made it all the way to litigation.

To suggest that defense firms "churn" files just to generate fees ignores the reality of the defense assignment generally. Our firm, for example, must defend cases assigned to us pursuant to relatively stringent defense counsel "guidelines" from most of the carriers for whom we work. Although those guidelines differ from carrier to carrier, in general they require us to communicate regularly with the insurance company regarding our strategies, plans and the rationale for any work we expect to do. We submit frequent reports to our clients, alerting them to witnesses whom we might wish to depose and explaining why, and outlining the work we expect to do before we do it. If the carrier thinks we are doing more than is necessary, they are not shy about refusing to authorize the work, because the cost of that work does increase their expense.

I agree with the Commentary’s assessment of trying to resolve claims prior to suit being filed. In the plaintiffs’ cases that I have handled in my career, that is exactly what I try to do. For many of the reasons mentioned in the Commentary and above, it is advantageous to all parties to do so. It keeps costs down, it results in a quicker resolution for your client. That being said, if there is not clear liability, or the damages do not warrant resolution, or there is a coverage dispute, the insurance carrier should not be blamed for having those matters litigated to the full extent. Requiring a Plaintiff to prove their entitlement to an award is central to our system of civil justice. We don’t require them to prove it "beyond a reasonable doubt" like we do for criminal liability, we require them to prove it "by a preponderance of the evidence" or simply that it is "more likely than not" that the Defendant is liable. It is my job as a Defense attorney, on behalf of my clients, to make sure the Plaintiffs meet their burden before being compensated. If that is viewed as "running up the bill" by the Plaintiff's bar, then so be it. I can tell you that it has not been my practice to waste my or anyone's time, whether it be the Plaintiff, my client, or the Court, by filing frivolous motions or propounding unnecessary discovery. That type of behavior can be detrimental not only to the case at hand, but it can also lead you to quickly lose credibility with the Judges and your fellow members of the Bar, which will adversely impact cases you handle in the future.

Finally, I want to point out an area in which I may be in agreement with the Commentary. I would be in favor of a state system of expert disclosure similar to that required by Federal Rule of Civil Procedure 26. I am in favor of expert reports being prepared and disclosed to the opposing party early on in the proceeding. I am in favor of those reports following a certain format, and that certain information be required in that report. I am also in favor of experts being required to disclose their rates for services and prior testimony when providing their reports. It is my opinion that these disclosures allow the parties to make intelligent decisions as to whether to depose the particular expert witness. As the system in Missouri stands now, the only way for an opposing party to learn the opinions of an expert is to take a deposition. The types of disclosures required by Federal Rule 26 do not do away with the ability to take a deposition, but make the decision as to whether a particular deposition is necessary a more intelligent one.   

Laying the blame for the spiraling costs of litigation at the feet of one party (Plaintiffs or Defendants) is not appropriate, as the truth always lies somewhere in the middle. So long as the issues are discussed with civility, which I think was done in the Commentary, and I hope I have done here, we will hopefully all end up with a system that continues to improve and serve the interests of justice.

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