Concerns with the abuse of the litigation process are being voiced ever more loudly. There are grounds for these concerns, but at least with respect to the federal courts of this circuit the concerns are exaggerated. Most of the district judges and other front-line federal judicial officers in this circuit exercise firm control over the conduct of litigation in a generally successful effort to prevent litigation from getting out of hand in point of delay or expense, or from being degraded by “junk science,” appeals to prejudice, runaway jury verdicts, and other justly reprobated abuses of the legal process. In this case a disappointed personal-injury plaintiff argues that the district judge exercised too firm a control over the proceedings. Let us see.
In the 1950s the Lorillard tobacco company sold Kent cigarettes with a filter that contained crocidolite asbestos, the most toxic form of asbestos. (Chrysotile asbestos, the most common form of asbestos, is much less toxic.) This was the famous “micronite” filter, one of those forgotten 1950s icons like 3-D mоvie glasses and chicken á la king. The filter had been manufactured by Hollings-worth & Vose. Norman Braun smoked these cigarettes and many years later developed mesothelioma, a form of cancer that is most commonly caused by exposure to crocidolite asbestos. He died of the disease at the age of 63 during the course of this suit, a diversity suit that seeks to affix tort liability on Lorillard and Hollingsworth & Vose by means of the common law doctrines of strict products liability, negligence, and recklessness. The applicable substantive law is that of Pennsylvania but nothing turns on this; the only issues raised by the appeal are procedural.
The case went to trial. The main defense was that the asbestos fibers in the micronite filter would not have been released from the filter in' the course of smoking and therefore could not have caused Mr. Braun’s mesotheli-oma. Not all cases of mesothelioma are due to exposure to crocidolite asbestos, though most are. And even if Braun’s ease was due to such exposure, he may have been exposed to crocidolite asbestos from sources other than the Kent micronite filter.
The trial lasted three weeks and featured an impressive parade of expert witnesses. The jury deliberated, and returned a-verdict for the defendants. The plaintiffs appeal does not question the sufficiency of the evidence to support the verdict but does challenge a number of the district judge’s eviden-tiary rulings. It should be unnecessary to point out that the verdict was not a determination that cigarettes are harmless to human health or even that Kent’s .micronite filter was incapable of causing mesothelioma. It was merely a determination that the plaintiff had failed to prove that the filter had caused her decedent’s mesothelioma.
The most consequential of the evidentiary rulings challenged by the plaintiffs appeal is the exclusion of testimony by David Schwartz, an expert witness called by the plaintiff, that lung tissue obtained in the autopsy of Mr. Braun contained crocidolite asbestos fibеrs. Dr. Schwartz is a professor of biochemistry and the president of a consulting firm that does environmental testing with particular emphasis on testing for the presence of asbestos, including crocidolite asbestos. He directed his lab assistant to subject a section of Braun’s lung tissue to “high temperature ashing,” in which the substance being tested for the presence of asbestos fibers is, in effect, boiled away by the application of heat, leaving the asbestos (if any), since asbestos is highly heat resistant. The assistant did a spеetrographic analysis of the residue. According to his oral report to Schwartz, the analysis revealed the presence of crocidolite asbestos fibers.
This was the only evidence that such fibers were present in Braun’s lungs, although there was expert testimony that the absence of such fibers when he died was not inconsistent with their having been there earlier and caused Braun’s mesothelioma. The judge would not let Schwartz’s testimony concerning the presence of the fibers go to the jury. Although Schwartz is an acknоwledged expert on the testing of bufiding materials for asbestos, he had never before conducted a test on human or animal tissue. Nor, so far as appears, has high temperature ashing ever been used by anyone else to test for the presence of asbestos fibers in tissue. The
The plaintiff complains that the district judge excluded Dr. Schwartz’s evidence merеly because he did not use one of the generally accepted methods of testing for the presence of crocidolite asbestos in human tissues. The Supreme Court held in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The district judge did remark at one point that
Daubert
requires that the expert’s method be one “customarily relied upon by the relevant scientific community,” which is incorrect. But she did not rest her decision to exclude his testimony on that ground. Her ground was that Schwartz had testified “that he really didn’t have any knowledge of the methodology that should be employed, and he still doesn’t have any information regarding the methodology that should be employed with respect to lung tissue. It seems to me that this witness knows absolutely nothing about analyzing lung tissue and [for?] asbestos fibers.” The plaintiffs’ lawyers committed a serious violation of 7th Cir.R. 30(c) by falsely certifying that all materials required by Rule 30 to be included in the appellant’s appendix had been included, while leaving out the part of the trial transcript that сontains the principal ground for Judge Manning’s ruling that Dr. Schwartz could not give an opinion on the presence of asbestos fibers in Braun’s lung tissues. By including in their appendix only the passage in which the judge misdescribed the holding of
Daubert,
the lawyers gave the impression that this misdescription was thé entire basis for the judge’s ruling. A false Rule 30(c) certification is grounds for dismissing an appeal,
Mortell v. Mortell Co.,
Dr. Schwartz had never tested human or animal tissues for the presence of asbestos fibers (or, so far as appears, for anything else) before being hired by the plaintiffs lawyer. And he did not bother to familiarize himself with the standard methods for conducting such tests or to consult with scientists who are the experts in analyzing tissue. It was after he acknowledged this surprising lack of preparation, and the fact that the suggestion for using his method on human
Nowhere in
Daubert
did the Court suggest that failure to adhere to the customary methods for conducting a particular kind of scientific inquiry is
irrelevant
to the admissibility of a scientist’s testimony. On the contrary, the Court made clear that it is relevant.
Consider: A litigant’s lawyers approach a scientist and tell him that the accepted methods of testing for asbestos fibers in human tissues have come up negative. They ask him to use a different method and he without рause offers to use one that is designed for use on building materials and has never been used on human or animal tissues. Not even knowing what the accepted methods of testing for the presence of asbestos in tissue are, let alone ever having conducted such a test, the scientist agrees to perform the test by his method, using a lab assistant (which is fine) but relying on the lab assistant’s purely oral report, which is not fine given the novelty of the procedure. He speculates that his method is perfectly transferable from budding mаterials to human tissues. Since he has never done any testing of those tissues, his speculations lack the authority of science. These are the symptoms of forensic science, an oxymoron. The plaintiffs’ lawyers could have called one of the recognized experts in the testing of human tissues to validate Dr. Schwartz’s novel methodology—the ones they had hired, for example—but they did not.
Modern science is highly specialized. An expert in the detection of asbestos in budding materials cannot be assumed to be an expert in the detection of asbestos in human tissues even though, as the plaintiff reminds us, many budding materials, most obviously wood, are, like human and animal tissues, organic rather than inorganic substances. The fact that the plaintiffs’ lawyer turned to this nonexpert, having already consulted experts without obtaining any useful evidence, is suggestive of the abuse, or one of the abuses, at which Daubert and its seque-lae are aimed. That abuse is the hiring of reputable scientists, impressively credentialed, to testify for a fee to propоsitions that they have not arrived at through the methods that they use when they are doing their regular professional work rather than being paid to give an opinion helpful to one side in a lawsuit.
So we think the district judge was entitled to screen out Dr. Schwartz’s testimony concerning the presence of crocidolite asbestos in Braun’s lungs, and we move on to the next question, which concerns the defen
' When the defendants learned that the plaintiffs experts were going to test Braun’s lung tissues for the presence of crocidolite asbestos, they were concerned because the tests would destroy the tissues tested and they wanted to conduct their own tests. The plaintiffs lawyers assured them that the destruction of the tissues would not hurt the defense. Amy asbestos fibers would be uniformly distributed throughout the lung tissues, so that tests conducted by the defendants’ experts on the sections of tissues that they, had received from the autopsy would be tests of a reliable sample of the tissues as a whole. Later the plaintiffs’ lawyers changed their tune. No longer did they suggest that crocidolite fibers if present would be uniformly distributed, for they wanted to protect themselves from an inference that negative test results on the tissue samples tested by the defendant’s experts (who found no crocidolite fibers) would imply the absence of fibers throughout Braun’s lungs. The change of position hampered the defense, which could not conduct its own tests on tissues that had been destroyed in the course of the plaintiff’s tests. The only way the defense could find out whether there were crocidolite asbestos fibers in the tissues that the plaintiff’s experts had tested was to get the test results. The condition for the exception in Rule 26(b)(4)(B) thus was satisfied, and we move to the next issue.
The plaintiff wanted to call as a witness a Richard McHenry, who had worked many years earlier for a cоmpany that manufactured cigarette filters. The plaintiff expected McHenry to testify that Lorillard had approached his company because of concerns about the danger from the asbestos in the Kent filters manufactured by Hollingsworth & Vose. McHenry was not, however, disclosed in the final pretrial order; and therefore under a standing order of the district judge he could not be called as a witness “absent good cause shown” for the omission of his name from the pretrial order. Cf. Fed.R.Civ.P. 26(a)(3), 37(c). The plaintiff’s lаwyers knew about McHenry — knew that he had been associated with a company approached by Lorillard regarding the possibility of replacing the asbestos filter. His name and a brief sketch of his relation to the filter issue appeared in several documents that the lawyers had had for more than a year. They just faffed to look for him until nearly the eve of trial. There is no indication that he would have been tough to find any earlier, like the witness in
Griman v. Makousky,
The trial had already begun in
Griman
when the plaintiff sought to introduce the deposition of the missing witness; but, given the deposition, at least there was no surprise to the defendants. In the present case the plaintiffs’ lawyers announced their intention to call the witness ten days before the trial. This limited the surprise, but it still would have complicated the defendants’ preparations for trial, maybe seriously, to have to depose him and perhaps look around for a witness to counter his testimony. The judge did not abuse her discretion in deciding that because of the lack of diligence in locating McHenry in time to list him in the pretrial order, the plaintiff could not add him later.
Having failed to get him approved as a witness in the plaintiffs case in chief, the lawyers tried to call him as a rebuttal witness, and were again rebuffed. The standing order’s requirement of good cause, as they point out, does not apply to rebuttal witnesses — unless they are “presently identifiable.” McHenry was. What is more, McHenry was not a proper rebuttаl witness. The plaintiff who knows that the defendant means to contest an issue that is germane to the prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as part of his case in chief.
Bronk v. Ineichen,
The next issue concerns hearsay. In 1954 Lorillard had hired Althea Revere, who died in 1987, to examine Rents under an electron microscope. There is nо documentary record of the results of her study. The plaintiff sought to call as witnesses Revere’s son, and a journalist who had interviewed her in 1980, to testify that she had told them that she had reported to Lorillard that the Kent filters leaked asbestos into the cigarette smoke and that this made the smoke more dangerous than it would have been without a filter. (If the added protection from the filter offset the added danger from the asbestos in the filter, and a filter not containing asbestos would not have been as effective, the рlaintiff might not have a claim. But we needn’t get into that.) This testimony would have been hearsay, and would not have fallen within any of the specific exceptions to the hearsay rule. It would have been admissible if at all only under the catch-all exception, which requires that the judge be satisfied that the hearsay is as reliable as hearsay falling within the specific exceptions. Fed.R.Evid. 804(b)(5); see also Rule 803(24).
The district judge did not abuse her discretion in excluding these witnesses as purveyors of unreliable hearsay. The conversаtions with Althea Revere had occurred many years after she had done the work for Lorillard on the Kent filters. Her son had been only 14 in 1954, and he based his testimony about what his mother had told him on conversations that he had with her primarily in the 1960s and 1970s. The journalist interviewed her in 1980. These witnesses were not vague, but neither were they sufficiently precise and knowledgeable to enable a proper evaluation of the significance of the mother’s out-of-court statements (or so at least the district judge could find). Whom had she spоken to at Lorillard? How definite had she been? What kind of supporting evidence had she provided? What had been the response to her report? There is no indication that the witnesses knew the answers to these questions.
The dangers of this sort of hearsay are obvious. A witness testifies to what he or she was told many years ago about events that had taken place many years before that by someone who is now deceased and left no documentary record. There is no way, given the remoteness of the еvents testified to, for the opposing party to verify the accuracy of the testimony or of the out-of-court statement that the testimony reports. Yet because memories fade and play tricks, see, e.g.,
Krist v. Eli Lilly & Co.,
Another unexceptionable ruling was to allow the chief executive officer of Lorillard to testify as an expert witness on the question whether it was likely that the micronite filter actually released asbestos fibers into the smoker’s mouth and lungs, either directly or in the smoke. A litigant, or a litigant’s CEO, or sole stockholder, or mother, or daughter is not, by reason of. his or her or its relation to the litigant, disquali-
Alexander Spears III, the chief executive officer of Lorillard, has a Ph.D. in organic chemistry, has published a number of scientific articles, and was for many years Loril-lard’s director of research. In that capacity he studied the design and construction of cigarette filters and participated in the development of such filters. He has also been involved in the development of smoking inhalation mаchines and in animal studies of smoke inhalation. In preparation for testifying at the Braun trial he studied the literature concerning the micronite filter and the experiments conducted by the plaintiff’s experts. This study and his scientific background qualified him to offer an opinion on whether the micronite filter was likely to have released asbestos fibers in the course of smoking.
Of course Dr. Spears could hardly be thought a disinterested expert witness. No more could Dr. Tagatz. No more, for that matter, can an expert witness who, though unrelated to any of the litigants, is testifying in exchange for a handsome fee. Id. at 1042. The jury was not kept in the dark concerning Dr. Spears’ relation to Loril-lard. He admitted under cross-examination that part of his job as the chief executive officer of Lorillard was to represent the company as a witness in lawsuits. In light of this admission, and of his relation to the defendant with or without the admission, the jury is likely to have discounted his testimony heavily, making the judge’s ruling harmless error if it was error at all; we do not think it was error.
The last evidentiary ruling that is challenged, and the only one that we think can plausibly be described as an abuse of discretion, concerns testimony by one of the plaintiffs experts, Dr. David Cugell. Dr. Cugell testified that because asbestos fibers disappear from living tissue at a rate of 15 percent a year, the absence of fibers in the lung tissues obtained at Mr. Braun’s autopsy did not prove that his mesothelioma was not due to asbestos. On cross-examination Cugell was asked whether another acknowledged expert on asbestos diseases, Dr. Andrew Churg, thinks it necessary to find asbestos in a patient’s lungs before mesothelioma caused by asbestos can be diagnosed and holds other opinions that would further undermine the inference that the micronite filter caused Mr. Braun’s mesothelioma. The lawyer read passages from Dr. Churg’s scientific writings that seemed to support the line the lawyer took in the cross-examination, for example by indicating that asbestos fibers, including the carcinogenic variety such as crocidolite, are present in the lungs of most people, only а tiny fraction of whom develop mesothelioma. Andrew Churg, “Mineral Analysis of the Lung Parenchyma,” in 2 The Lung: Scientific Foundations 1869, 1875 (Ronald G. Crystal et al. eds.1991).
On redirect examination the plaintiffs lawyer tried to ask Dr. Cugell whether Churg had opined that smoking Kents with the micronite filter could cause mesothelio-ma. The judge sustained the defendant’s objection to the question when it turned out that Churg had expressed this opinion in testimony in another lawsuit. The judge thought it unscientific of Cugell to rely on testimony in forming his own opinion about the causality of mesothelioma. Maybe so. But the issue here is not
Daubert.
It is the proрer scope of redirect examination. The cross-examination of Cugell had conveyed the impression that Dr. Churg believed, contrary to Cugell, that the Kent filter could not cause mesothelioma. In fact he believed the opposite, and it was proper to demonstrate this in the redirect examination of the witness whose testimony had been called into question by the misleading cross-examination.
United States v. Gant,
But the error was harmless. Dr. Cugell was permitted on redirect examination to testify that he had based his opinion,
We find no basis for upsetting the jury’s verdict, and the judgment for the defendants is therefore
Affirmed.