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Reference Manual on Scientific Evidence, 3d ed.

THE FIRST EDITION of the REFERENCE MANUAL ON SCIENTIFIC EVIDENCE was published in 1994 shortly after the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. (1) The REFERENCE MANUAL ON SCIENTIFIC EWDENCE (Second Edition) ("RMSE Second") was published in 2000. The REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Third Edition) ("RMSE Third") was published in September 2011.

This article does three things. First, it discusses four new chapters--forensic science, exposure science, neuroscience, and mental health--that were added to RMSE Third. Second, it identifies the cases that cited RMSE Third as of May 20, 2013. Third, it discusses some of the changes to RMSE Third that favor a weakening of the Daubert standard for the admissibility of expert testimony.

I. New Chapters in RMSE Third

RMSE Third adds four new chapters from its predecessor edition: forensic science, exposure science, neuroscience, and mental health.

A. Forensic Science

The chapter on forensic identification expertise analyzes fingerprint, handwriting, firearms identification, bite mark, DNA (2) and microscopic hair evidence, as well as recurrent issues that arise with these types of evidence. It discusses the admissibility of each of these types of evidence and the ways in which expert testimony can be presented in court. The chapter also discusses limitations on testimony, restrictions in final argument, and procedural issues regarding these areas.

B. Exposure Science

Exposure science, a subject often at issue in toxic tort and product liability cases, is explored in the Third Edition. The Manual addresses four major situations in which exposure science can be applied: consumer products, contaminants in the environment, chemicals in the workplace, and disease causation. The chapter reviews the goals of exposure assessment and includes determining who has been, or could become, exposed to a specific chemical from one or more specific source, by what routes people are exposed, and the magnitude and duration of exposure to a chemical without danger. The chapter discusses potential areas of testimony from experts in cases where exposure science may be helpful, such as the source of the exposure, the time it occurred, and the duration and dose of the exposure.

C. Neuroscience

The new edition also introduces the Reference Guide to neuroscience. The chapter gives a brief overview of the structure and function of the brain, describes tools used by neuroscientists to understand it, and discusses issues to consider when interpreting these findings. The Guide explains ways that neuroimaging can be presented as evidence. In addition, the chapter discusses how EEG and MEG measure electrical activity in the brain and can show response to certain stimuli. The chapter reviews issues regarding interpretation of study results, including an inability to replicate results, problems in the experimental design, the lack of number and diversity of subjects, problems applying group averages to individuals, and technical accuracy of imaging results. The chapter discusses how Federal Rules 401 and 402 (relevance), Rule 403 (prejudice v. probative value), Rule 702 (expert testimony), and rules about character evidence may impact the admissibility of neuroscience evidence, along with Constitutional issues under the Fourth and Fifth Amendments.

D. Mental Health Evidence

The final addition to the Third Edition is the chapter on mental health evidence. This chapter discusses the legal situations in which mental health issues can arise (both criminal and civil), reviews the different types of mental health experts and their potential roles as expert witnesses, and explores major mental disorders from the Diagnostic and Statistical Manual (DSM) that may impact legal cases. The chapter discusses predictive assessments, such as those of violence risk or future functional impairment, and the treatment of mental disorders, including the short and long term effects of medication, psychological treatment, brain stimulation, and psychosurgery. The final portion of the chapter discusses mental health evidence and ways to properly evaluate mental health experts and their testimony, including some limitations on admissibility of this type of evidence.

II. Cases Citing RMSE Third

As of May 20, 2013, thirty courts have cited to RMSE Third. Most recently, the United States Supreme Court in Comcast Corp. v. Behrend (3) cited RMSE Third on the topic of the proper process of conducting damages studies. The Supreme Court relied upon the definition provided in the RMSE Third and concluded that neither the trial court nor the appellate court appropriately accounted for this process. Other notable cases include the following:

In American Petroleum Institute v. Environmental Protection Agency, the court evaluated the claim that the EPA failed to appropriately consider a study which found no increase in health effects on the basis of an increase in ambient N[O.sub.2]. (4) Based on the RMSE Third, the court concluded that the EPA acted appropriately because the study failed to establish a "no dose-response relationship." The court noted that "the authors could not tell whether there is no such relationship or their test merely lacked sufficient power to detect the relationship." (5)

In A TA Airlines v. Federal Express, (6) the court reversed the U.S. District Court for the Southern District of Indiana's judgment upon jury verdict of approximately $66 million in a breach of contract action. The court cited to the Reference Manual's nontechnical guide on multiple regression analysis, and stated that had the District Court judge read the guide he would have realized that the regression analysis of the Plaintiff's expert was "fatally flawed." (7) The court went on to state "We have gone on at such length about the deficiencies of the regression analysis in order to remind district judges that, painful as it may be, it is their responsibility to screen expert testimony, however technical; we have suggested aids to the discharge of that responsibility." (8) The Reference Manual is one of the aids that the Court suggested.

In Berg v. Johnson & Johnson, the court cited the RMSE Third liberally in its determination whether plaintiff's expert used an appropriate methodology. (9) Despite the fact that plaintiff's expert's specific findings were not peer-reviewed or tested, the court accepted the expert's methodology because it apparently met the standards set forth in RMSE Third. For example, plaintiff's expert met the RMSE Third's standard for biological plausibility models, despite the fact that the experts models had not previously been proven. (10)

In Betz v. Pneumo Abex, LLC, (11) the Supreme Court of Pennsylvania also cited the Third edition in its analysis of the admissibility of plaintiff's expert's theory that every fiber of inhaled asbestos was a substantial contributing factor to asbestos-related disease. The Supreme Court upheld the decision of the Superior Court to exclude plaintiff's expert's theory on Frye grounds, concluding in part based on the Reference Manual, that plaintiff's expert's report was not generally accepted. In reviewing this decision, the Supreme Court referenced the RMSE Third on matters ranging from the appropriate use of anecdotal reports to the appropriate investigation of relevant exposure history. (12)

The Eastern District of New York cited the RMSE Third for the proposition that whether expert testimony is sufficiently reliable and probative under either Daubert or Frye involves an element of discretion. (13) It also has been cited for: the proper definition and use of random samples; (14) the statement that outcome figures in a study without control group can be misleading; (15) requiring that a plaintiff show both general and specific causation to prove negligence; (16) the definition of a differential diagnosis in the legal context v. the medical context; (17) and the definition of common terms like scientific or technical method, threshold level, and standard deviation. (18)

A survey of federal courts citing to the Second Edition of the Manual for issues pertaining whether to exclude expert testimony reveals that experts are excluded in approximately 60% of the reported cases.

III. RMSE Third's Weakening of Daubert

A. The Supreme Court's Daubert Trilogy

The author of the first chapter in RMSE Third and RMSE Second is Margaret A. Berger, a former professor at Brooklyn Law School. Professor Berger passed away in 2010 as RMSE Third was being revised. Professor Berger made a more objective assessment of the Daubert trilogy in RMSE Second than she did in RMSE Third. In the first chapter of RMSE Third, Professor Berger made comments that suggest a weakening of the Daubert standard for the admissibility of expert testimony. The good news for defendants is that other chapters of RMSE Third, for example the chapters on epidemiology and medical testimony, are at odds with Professor Berger's attack on Daubert. Although RMSE Third does not materially change the discussion in RMSE Second of the Daubert "trilogy," a summary of the RMSE Third's characterization of the trilogy follows.

I. Daubert v. Merrell Dow Pharmaceuticals, Inc.

In Daubert, the Supreme Court granted certiorari to decide whether the Frye (or "general acceptance") test, (19) which some federal courts used in determining the admissibility of scientific evidence, had been superseded by the enactment of the Federal Rules of Evidence in 1973. (20) The Court held that the Frye test had not survived. Daubert "recognized the trial judge as the 'gatekeeper' who must screen proffered expert testimony," and that "the objective of the screening is to ensure that expert testimony, in order to be admissible, must be 'not only relevant, but reliable."' (21)

In order to be reliable, the reasoning or methodology underlying the testimony must be scientifically valid. (22) And "in order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation--i.e., 'good grounds,' based on what is known." (23)

In order to be relevant, the reasoning or methodology must be able to be properly applied to the facts in issue. (24) Expert testimony which does not relate to any issue in the case is not helpful to the trier of fact. (25) The "helpfulness" standard "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." (26)

The Court identified four nonexclusive factors that apply to whether an expert's opinion is relevant and reliable. First, whether the opinion can be tested. Second, whether the theory or technique has been subject to peer review and publication. Third, the known or potential rate of error of a particular scientific technique. Fourth, although "general acceptance" of the methodology in the scientific community is not dispositive, it is a factor to be considered. (27)

2. General Electric v. Joiner

In Joiner, the Court granted certiorari to determine the standard an appellate court should apply in reviewing a trial court's Daubert decision to admit or exclude scientific expert testimony. (28) The Court held that abuse of discretion is the proper standard for an appellate court to apply in reviewing a district court's decision to admit or exclude scientific evidence. (29) The Court rejected the contention that a more stringent standard of review should be applied when the Daubert decision is "outcome determinative" in that it results in summary judgment for the defendant. (30)

The Court then did something it had not done in Daubert- i.e., it examined the record and found that the plaintiffs experts had been properly excluded. (31) The plaintiff, Robert Joiner, was an electrician. His job required him to work on electrical transformers that contained polychlorinated biphenyls ("PCBs"). Joiner alleged that his exposure to PCBs "promoted" his development of small-cell lung cancer. (32) In support of their opinions that PCBs caused or "contributed to" his lung cancer, Joiner's experts relied on several animal studies and four epidemiological studies. (33)

The Court found that the animal studies did not support the contention that exposure to PCBs "contributed to" Joiner's cancer. None of the animal studies had demonstrated that PCBs lead to cancer in any other species, and the studies were too dissimilar to the facts at issue to allow for extrapolation to humans. (34) Moreover, the four epidemiological studies that Joiner's experts relied on did not provide a sufficient basis for their opinions. (35)

Justice Stevens dissented in part. Justice Stevens found that "Joiner's experts used a 'weight of the evidence' methodology to assess whether Joiner's exposure to [PCBs] promoted his lung cancer. They did not suggest that any one study provided adequate support for their conclusions, but instead relied on all the studies taken together. The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCBs and lung cancer." (36) The majority disagreed with Justice Stevens. "[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. Both nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit (37) of the expert." (38)

3. Kumho Tire Co. v. Carmichael

In Kumho, the Court granted certiorari to decide whether Daubert's requirement that expert testimony be both relevant and reliable to be admissible applies only to scientific evidence or if it also applies to "technical" or "other specialized knowledge." (39) The Court held that Daubert applies to all expert testimony, including testimony based on "technical" or "other specialized knowledge." (40)

B. Milward and "Atomization"

The defense bar has criticized RMSE Third for approvingly citing Milward v. Acuity Specialty Products Group, Inc. (41) and for its discussion of "atomization." These topics are discussed below.

Plaintiff Brian Milward alleged that his Acute Promyelocytic Leukemia ("APL") was caused by his exposure to benzene. (42) Milward's APL is subtype M3, an extremely rare disease. (43) General causation is whether a chemical can cause a disease. Specific causation is whether a chemical did in fact cause the disease. (44) The issue in Milward was whether the testimony of plaintiff's toxicologist, Dr. Martyn Smith, was admissible regarding the issue of general causation.. (45) The district court excluded Dr. Smith's testimony, but the First Circuit reversed. (46)

According to the First Circuit, the district court "placed undue weight on the lack of general acceptance of Dr. Smith's conclusions and crossed the boundary between gatekeeper and trier of fact." (47) In particular, the First Circuit found that the district court erred in treating the separate evidentiary components of Dr. Smith's analysis "atomistically," in "reasoning that because no line of evidence supported a reliable inference of causation, an inference of causation based on the totality of evidence was unreliable." (48)

The First Circuit also criticized the district court for reading too much into the paucity of statistically significant epidemiological studies. (49) The First Circuit excused the lack of statistically significant epidemiological studies by noting that because APL is so rare, it would be "very difficult to perform an epidemiological study of the causes of APL that would yield statistically significant results." (50) The First Circuit concluded that Dr. Smith's "weight of the evidence" approach was acceptable because Dr. Smith reasoned "to the best explanation. for all of the available evidence." (51) Milward is incorrect for at least four reasons.

First, Milward's application of the "weight of the evidence" methodology permits an expert's opinion to be admitted solely on the basis of the ipse dixit of the expert--i.e., a statement that rests solely on the authority of the expert who made the statement. This is expressly contrary to Joiner, which cautioned that the ipse dixit of the expert does not transform the expert's opinion into a reliable methodology. (52) An inference to the best explanation is contrary to the scientific methodology and the Daubert trilogy because it "cannot be tested, it cannot be falsified, and it cannot be validated against known or potential rates of error." (53)

Second, reasoning to "the best explanation for all of the available evidence" is not itself sufficient because an expert's opinion should be excluded "when the underlying scientific data do not permit a conclusion beyond hypothesis or speculation." (54) The Second, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits "have affirmed the exclusion of expert testimony when the underlying scientific data do not permit a conclusion beyond hypothesis or speculation." (55)

Third, the First Circuit's criticism of the district court for "atomistically," or separately, reviewing each evidentiary component of Dr. Smith's analysis is misplaced. "Rule 702 itself provides that expert testimony is inadmissible unless it is 'based upon sufficient facts or data' and 'the product of reliable principles and methods' that have been 'applied ... reliably' --thus requiring a gatekeeping court to inquire into the data and reasoning underlying an expert's testimony." (56)

RMSE Third frames the issue of "atomization" by asking, "When there is a Daubert challenge to an expert, should the court look at all the studies on which the expert relies for their collective effect or should the court examine the reliability of each study independently?" (57) RMSE Third incorrectly suggests that the former approach is better. (58)

Fourth, although Milward states that "no serious argument" can be made that the "weight of the evidence" approach is inherently unreliable, the First Circuit misunderstood the "weight of the evidence," as that term is used in science. The scientific method is based on generating hypotheses and testing them to see if they can be falsified. (59)

In 1965, Sir Austin Bradford Hill wrote a seminal paper that set forth a number of criteria for evaluating whether an epidemiologically established association between a chemical and a disease is sufficient to establish a causal relationship between the chemical and the disease--i.e., general causation. (60) The First Circuit addressed only one of the Hill criteria biological plausibility--and ignored the rest. That single factor cannot establish general causation because there is no methodology for assessing the strength or reliability of biological-mechanism evidence. (61) The Supreme Court denied certiorari in Milward. (62)

C. Other Comments by Professor Berger Also Suggest a Weakening of the Daubert Trilogy

I. The "Credibility" of Defense Experts

RMSE Third asks "[t]o what extent should a court permit the plaintiff to inquire into the defense expert's relationship with the defendant," but fails to ask a similar question regarding experts retained by plaintiffs. (63) RMSE Third shows a disdain for "industry," as shown in its Preface: "In some instances, judges have been frustrated identifying expert witnesses who are free of conflict of interest because entire fields of science seem to be co-opted by payments from industry." (64)

2. RMSE Third Suggests That Daubert Has Been Wrongly Interpreted by the Courts

Professor Berger's Conclusion to the first chapter of RMSE Third states: "there are serious concerns about whether the guidelines enunciated by the [Supreme] Court have been interpreted ... to limit, rather than respect, the discretion of trial judges to manage their complex cases, whether the guidelines conflict with the preference for admissibility contained in both the Federal Rules of Evidence and Daubert itself, and whether the guidelines have resulted in trial judges encroaching on the province of the jury to decide highly contested factual issues and to judge the overall credibility of expert witnesses and their scientific theories." (65)

3. RMSE Third Takes Issue with Case Law Regarding Animal Studies and Toxicology

Professor Berger took issue with legitimate criticisms of the extrapolation of animal studies to humans, and suggested that "prior case law" regarding toxicology is flawed because it does not consider unidentified new developments: "opinions based on animal studies have been rejected because of reservations about extrapolating from animals to humans or because the plaintiff's extrapolated dose was lower than the animals ... The field of toxicology, which, unlike epidemiology, is an experimental science, is rapidly evolving, and prior case law regarding such studies may not take into account important new developments." (66)

4. Weisgrom v. Morley

Although it is not part of the Daubert trilogy, RMSE Third adds a discussion of Weisgram v. Marley. (67) In Weisgram, the court did not permit plaintiff a new trial after a federal appellate court reversed a jury verdict in favor of plaintiff on the ground that plaintiff's experts should not have been permitted to testify. RMSE Third takes the position that "Weisgram causes tactical problems for plaintiffs about how much to spend for expert testimony ....Weisgram may indeed push plaintiffs to bring the very best expertise into litigation--a stated goal of the trilogy, but it may also make it difficult to litigate legitimate claims because of the cost of expert testimony." (68) Because plaintiffs have the burden of proving medical causation, this criticism that plaintiffs may have to "bring the very best expertise into litigation" is misplaced.


The first chapter of RMSE Third which was written by Professor Margaret Berger makes comments that, if adopted by the courts, would weaken the Daubert standard for the admissibility of expert testimony. Defense counsel must guard against efforts to use Professor Berger's comments to weaken Daubert. Defense counsel can, among other things, show that other chapters of RMSE Third--e.g., the chapters on epidemiology and medical testimony--do not support Professor Berger's attack on Daubert.

(1) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

(2) United States v. Thunder, 11-30113, 2012 U.S. Dist. LEXIS 165753 (D. S.D. Oct. 12, 2012), relies extensively on RMSE Third on the methodology of DNA testing. See also United States v. Thomas, 815 F. Supp.2d 384 (D. Maine 2011); Nebraska v. Kofoed, 283 Neb. 767 (Neb. 2011); People v. Garcia 39 Misc.3d 482 (N.Y. Sup. 2013).

(3) 133 S.Ct. 1426, 1435 (2013). See also Wallace v. Powell, No. 3:09-cv-286, 2013 U.S. Dist. LEXIS 69001 (M.D. Pa. May 14, 2013).

(4) 684 F.3d 1342 (D.C. Cir. 2012).

(5) Id. at 1350.

(6) 665 F.3d 882 (7th Cir. 2011). See also In re Titanium Dioxide Antitrust Litig., No. 10-0318, 2013 U.S. Dist. LEXIS 62394 (D. Md. May 1, 2013); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 862 F. Supp.2d 1322 (S.D. Fla. 2012).

(7) 665 F.3d at 890.

(8) Id. at 896.

(9) No. 09-4179, 2013 U.S. Dist. LEXIS 52933 (D. S.D. April 12, 2013).

(10) Id. at "21-'22. Similarly in Native Am. Arts Inc. v. Bud K Worldwide, 88 Fed. R. Evid. Serv. 579 (M.D. Ga. 2012), the court cited the RMSE Third extensively for the determination whether plaintiff's expert's survey was sufficiently reliable. See also Medisim, Ltd. v. BestMed LLC, 861 F. Supp.2d 158 (S.D.N.Y. 2012); Gucci Am. Inc. v. Guess?, Inc., 831 F. Supp.2d 723 (S.D.N.Y. 2011).

(11) 44 A.3d 27 (Pa. 2012).

(12) Id. at 47 n. 17, 51.

(13) Bell v. Ercole, 2011 WL 5040436 at *16 (E.D.N.Y. Oct. 21,2011).

(14) United States v. Pena, No. 11-40761, 2013 U.S. App. LEXIS 7170 (5th Cir. April 9, 2013) (proper size for random samples). See also In re Neurontin Marketing and Sales Practices Litigation, 712 F.3d 21 (1st Cir. 2013) (citing importance of randomized samples).

(15) Paluck v. Secretary of Health and Human Services, 2011 WL 6949326 at *12 (Court of Federal Claims, Dec. 14, 2011).

(16) Tressler v. BNSF Railway Co., 2012 WL 315402 at *3 (E.D. Wash. Feb. 1, 2012); In re Fosamax Prod. Liab. Litig., No. 11-5304, 2013 U.S. Dist. LEXIS 51552, at *8 (D. N.J. April 10, 2013); Frischhertz v. SmithKline Beecham Corp., 90 Fed. R. Evid. Sere. 328 (E.D. La. 2012).

(17) Id. at *5.

(18) Tabor v. Hilti, Inc., 703 F.3d 1206, 1223 n.9 (10th Cir. 2013) (standard deviation); Dean v. Thermwood Corp., 2012 WL 90442 at * 5 (N.D. Okla. Jan. 11, 2012) (scientific method); Arias v. DynCorp., No. 01-1908, 2013 U.S. Dist. NEXIS 31729 (D. D.C. Feb. 15, 2013) (threshold); Cheek v. Wyeth, 890 F. Supp.2d 552, 559 (E.D. Pa. 2012) (odds ratio).

(19) Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

(20) RMSE TRIRD, at 12.

(21) Id.

(22) Daubert, 509 U.S. at 592-593.

(23) Id. at 590.

(24) Id. at 593.

(25) Id. at 591.

(26) Id. at 591-592.

(27) Id. at 593-594.

(28) RMSE THIRD, at 14.

(29) General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).

(30) Id. at 142-143.

(31) See also RMSE THIRD, at 15.

(32) Joiner, 522 U.S. at 139-140.

(33) Id. at 144-145.

(34) Id.

(35) Id. at 145-146.

(36) Id. at 152-153.

(37) "Ipse dixit" means "a bare assertion resting on the authority of an individual." BLACK'S Law DICTIONARY (5th ed.).

(38) Joiner, 522 U.S. at 146.

(39) See also RMSE THIRD at 16.

(40) Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

(41) 639 F.3d 11 (1st Cir. 2011). RMSE THIRD cites Milward at 20, n. 51; 23-24, n. 61; 564-565, n. 48; and 578, n. 85.

(42) Milward, 639 F.3d at 13.

(43) Id. at 16.

(44) Id. at 13.

(45) Id.

(46) Id. at 14.

(47) Id. at 22.

(48) Id. at 23.

(49) Id.

(50) Id. at 24.

(51) Id. at 23.

(52) Milward, Petition for Writ of Certiorari, 2011 WL 4073080 at *16 (U.S.); Eric Lasker, Manning the Daubert Gate. A Defense Primer in Response to Milward v. Acuity Specialty Products, 79 DEF. COUNS. J. 131 (2012).

(53) Lasker, supra note 52, at 131.

(54) Milward, Petition for Writ of Certiorari, 2011 WL 4073080 at *21.

(55) Id. at *16, 21-25. See, e.g., Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 267-269 (2nd Cir. 2002); Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194, 196-198 (5th Cir. 1996); Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 668 (6th Cir. 2010); Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1216 n. 21 (10th Cir. 2002); McClain v. Metabolife Int'l, Inc. 401 F.3d 1233, 1240 (11th Cir. 2005). See also Lasker, supra note 52 at 132 n. 29.

(56) Milward, Petition for Writ of Certiorari, 2011 WL 4073080 at *19.

(57) RMSE THIRD at 19.

(58) Id. at 20.

(59) Daubert, 509 U.S. at 593 (citation omitted).

(60) Austin Bradford Hill, The Environment and Disease: Association or Causation, PROCEEDINGS OF THE ROYAL SOCIETY OF MEDICINE, 58 (1965), 295-300. The Hill criteria are: (1) the strength and frequency of the association, (2) the consistency of the association, (3) the specificity of the association, (4) the temporal relationship between the disease and the posited cause, (5) the dose-response curve between them, (6) the biological plausibility of the causal explanation, (7) the coherence of the explanation, (8) the experimental data that relates to it, and (9) the existence of analogous causal relationships. Id. at 295-299.

(61) Milward, Amicus Br. of DRI, 2011 WL 4912893 at *9-10 (U.S.) (citations omitted).

(62) Milward, 132 S. Ct. 1002 (U.S. 2013).

(63) RMSE THIRD at 21.

(64) Id. at Preface, xv.

(65) Id. at 36.

(66) Id. at 23.

(67) 528 U.S. 440 (2000). Cited by RMSE THIRD at 18-19.

(68) RMSE THIRD at 19.

James F. Rogers is a partner with Nelson Mullins Riley & Scarborouch LLP in Columbia, South Carolina. Mr. Rogers has defended pharmaceutical and medical device manufacturers on the national, regional and local levels. He serves as the co-chair of Nelson Mullins' drug and medical device industry practice group. Mr. Rogers is the vice chair of DRI's Drug and Medical Device Committee. Jim Shelson is a partner in the Jackson, Mississippi office of Phelps Dunbar, LLP. He is the practice group coordinator of the litigation group in the Jackson office. His practice focuses on toxic torts, business torts, and products liability. Jim is the Vice Chair of Newsletters for the IADC's Toxic and Hazardous Substances Committee. Jessalyn H. Zeigler is a Member/Shareholder of Bass, Berry & Sims PLC in Nashville, Tennessee. Jessie is the Co-Chair of her firm's Food & Beverage Industry Group and Vice Chair for her firm's Products and Mass Torts practice group. Her products liability practice includes pharmaceutical, medical device, food, supplements, automotive, and consumer products defense. She is the Vice Chair for Website and Social Media for the IADC's Products Liability Committee.
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Author:Rogers, James F.; Shelson, James; Zeigler, Jessalyn H.
Publication:Defense Counsel Journal
Article Type:Book review
Date:Jul 1, 2013
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