Symposium Shines Spotlight on Expert Witnesses
The symposium touched on the admissibility of communications between attorneys and experts, distinctions between hearsay and inadmissible evidence underlying an expert opinion, the role of forensic science in criminal cases and qualities that make a strong expert witness.
“The use of expert witnesses is ubiquitous in the law,” said Professor David DeMatteo, who organized the symposium with Professor Gwen Roseman Stern. “Statistics suggest that most attorneys at some point in their careers will have a need to hire or confront a witness.”
Sessions focused on the impact of the landmark Pennsylvania Supreme Court ruling in Barrick v. Holy Spirit Hospital and the controversy surrounding Rule 703 of the Federal Rules of Evidence featured an innovative format, in which Kline & Specter partner Andrew J. Stern squared off against O’Brien & Ryan partner Elizabeth Duffy in hearings involving a simulated medical malpractice case over which Judge Mark I. Bernstein of the First Judicial District of Pennsylvania presided. (Complete program and speaker biographies.)
Stern argued that correspondence between an attorney and an expert witness was discoverable, citing unusual circumstances including the disappearance of a nurse who could not be cross examined and who left no written record of observations that allegedly led the defendant physician to discharge a patient from the hospital in the simulated case.
Duffy countered that “the Barrick court concluded there’s a bright line rule” protecting communications between counsel and experts, and that only a case asserting bad faith might warrant an exception.
Stern and Duffy also grappled with the basis of expert opinions allowed under Rule 703. While Duffy said experts commonly base opinions on inadmissible evidence such as a nurse’s undocumented remarks to a doctor, Stern argued that the expert in this case was asserting hearsay as a fact that would likely prejudice a jury against a brain-dead plaintiff who could not speak for himself.
While a jury can determine the credibility of a hearsay statement, Bernstein agreed that Rule 703 is problematic, since it implies that information can be introduced as the basis for an expert opinion without implicitly asserting its truth.
Gregory Cowhey, a McGladrey principal who has testified in myriad fraud and business cases said the hallmarks of a good expert witness are an engaging personality, credibility and humility. However, it is easier for a good advocate to damage the credibility of expert witnesses on the stand than it is to get them disqualified from testifying, Cowhey said, citing studies that document the low rate of successful challenges in most jurisdictions.
A panel featuring Cowhey, DeMatteo, psychologist Gerald Cooke and Judge Elizabeth T. Hey, a U.S. Magistrate in the Eastern District of Pennsylvania, focused on the roles and responsibilities of witnesses. Although few rules governed the conduct of expert witnesses 30 years ago, there are vast volumes of ethical codes and guidelines today, Cowhey said. Serving as an expert witness introduces distinct ethical concerns, Cooke and DeMatteo said, noting the responsibilities of psychologists in legal proceedings are different than for clinicians treating patients. Hey discussed shifts that have occurred in information that the courts require experts and attorneys to disclose.
The symposium closed with a panel focused on the role of the confrontation clause with regard to forensic science, featuring criminal defense experts Michael Avery and David Rudovsky and Assistant U.S. Attorney David Troyer of the Eastern District of Pennsylvania.
In the Supreme Court’s Melendez-Diaz and Bullcoming cases, Avery said, the majority held that relying on testimony by laboratory analysts who did not directly handle evidence violates the defendant’s right to be confronted with opposing witnesses.
Avery said, however, that the Supreme Court has yet to definitively decide what to do when an analyst who conducts a forensic study is unavailable to testify and the state wants to call a substitute witness who offers an independent view of the evidence. In Massachusetts, he added, the court has permitted substitutes to testify if they voice an independent position.
That may leave them vulnerable to defense challenges, Rudovsky, said, since a substitute analyst won’t know if the primary analyst handled materials and equipment correctly. A criminal defense attorney needs to know more about forensic science than the expert witness does.
“You have to know exactly what the science is whether you’re questioning the original or the substitute analyst,” Rudovsky said. “You won’t know where the flaws are unless you understand the science.”
When confronted with an unavailable forensic analyst, the U.S. Attorney’s Office has materials retested, Troyer said. If no samples are available to retest, the case is dismissed, he said.
Troyer said U.S. Supreme Court Justice Sotomayor’s concurring opinion in Bullcoming outlined topics that were not at issue in the case, which suggests that a different outcome is possible in the future.
“That’s a message to all you trial lawyers,” Troyer said, “’Next time, raise this issue, and we might decide it differently.’”
Drexel Law Review Symposium Examines Landmark ERISA Law through Historic Prism
Strategists in the quest to secure workers’ pension funds recounted efforts to woo industry and union leaders and quell Congressional turf wars that surrounded the passage of the Employee Retirement Security Act at a symposium hosted by the Drexel Law Review on Oct. 25.
Nearly a decade in the making, ERISA was “a legislative miracle” and “a magnificent piece of social welfare legislation” that has affected the lives of “literally millions of people,” said Professor Norman Stein.
A leading authority on pension law, Stein organized the conference with James Wooten, a professor at SUNY-Buffalo Law School and the author of “The Employee Retirement Security Act of 1974: A Political History.”
The symposium, in which panels of scholars and practitioners elicited remarks from leaders of the battle to pass ERISA, compiled an oral history of the legislation in time for the 40th anniversary of its passage.
Prior to ERISA, employees would work a very long time reasonably expecting to get a pension and then ended up getting nothing, said Frank Cummings, the former chief of staff to Senator Jacob Javits, who wrote an initial draft of the law. The trick was figuring why this was happening, Cummings said, adding that varying retirement ages and rules, a lack of recourse for under-funded pensions and scant fiduciary standards were principal culprits.
Daniel Halperin, Stanley Surrey Professor of Law at Harvard University, who served at the U.S. Dept. of Treasury prior to ERISA, said there were really few protections for employees and that minimum funding rules were inconsequential and did not address past-service liabilities.
Beyond the technical obstacles, ERISA also lacked political support, Cummings and Halperin stressed. ERISA “didn’t have the support of anybody but the people,” Cummings said, adding that the press did not pay much attention to it either until Cummings and Javits held hearings that revealed horror stories of individuals losing their pensions.
Calling Javits “the mastermind,” former Department of Labor Solicitor William Kilberg recounted that the lack of support for reforms within the powerful Department of Commerce should have doomed ERISA.
“This is a bill that never should have come to being,” Kilberg said.
Once passed, Congressional tax and labor committees competed for jurisdiction over ERISA’s administration, said Robert Nagle, who was general counsel to the Senate Committee on Labor and Public Welfare during the early 1970s and later the executive director of the Pension Benefit Guaranty Corporation, the organization created to provide insurance for defined benefit plans.
Even when broad support emerged for ERISA’s reforms, no one could agree on who would administer the law, Wooten said.
Eventually, the law gave responsibilities to both the Treasury and Labor departments and the newly formed PBGC, but opened the door to bureaucratic confusion and necessitated enactment of Reorganization Plan Number 4, a blueprint for allocating primary regulatory authority for different aspects of the state to Treasury and Labor, according to Alan Lebowitz, who is now deputy assistant secretary of the Department of Labor.
“The concepts were very new and somewhat vague,” Lebowitz said during a panel facilitated by Assistant Secretary of Labor Phyllis Borzi and Deputy Assistant Secretary of Treasury Mark Iwry.
“It’s hard enough within a single agency to sort through all the ideas people have,” said Lebowitz, who worked for the Internal Revenue Service (part of the Treasury Department) at the time.
The skeleton of the reorganization plan was mapped out on a napkin over a Chinese food lunch between Dianne Bennett, who served as an attorney for Treasury, and Ian Lanoff, who then served as administrator for Pension and Welfare Programs at the Department of Labor.
The reorganization plan had a lasting effect, Borzi said, noting that it created a model for inter-agency cooperation that continued with the implementation of other reforms, such as the COBRA insurance program and the Affordable Care Act.
“We coordinate. We talk to each other,” Borzi said. “Is it a time consuming process? Yes.”
Educating the public about the complex issue of pensions is a challenge, New York Times reporter Mary Williams Walsh, former Wall Street Journal reporter Ellen Schultz and former New York Times reporter David Cay Johnston said during a lunch time discussion.
Journalists face increased pressure to be the first to report issues, Schultz said, and reporters must trim their stories ever shorter, Walsh added, identifying trends that discourage in-depth and accurate reporting on policies that affect millions upon millions of workers and retirees.
The tendency to refer to pensions in terms of “benefits” or “gratuities” obscures the fact that pensioners have earned the money, Johnston said.
“These are not welfare programs,” he said. “We need to get away from language that describes these as ‘contribution’ or ‘benefit. It’s compensation.”
Former PBGC General Counsel Henry Rose and former PBGC Executive Director Robert Nagle joined Cummings in a discussion of the origins of ERISA’s definition of fiduciary, which was facilitated by University of Michigan Professor Dana Muir, O’Melveny & Myers Partner Bob Eccles and Stris & Maher Partner Peter Stris.
The important role of fiduciaries received scant attention from lawmakers in the House and Senate, who jockeyed with competing bills that focused on funding and termination of pension plans, Cummings said. He noted that fiduciary responsibility applied not just to investment and asset management, but the array of responsibilities that would be typical of a trustee.Congress focused less on the penalties fiduciaries would face for improperly administering a plan and more on how to actually administer it, Cummings said. However, if the Senate’s version of the final bill had prevailed, myriad lawsuits alleging under-funding and fiduciary misrepresentation could have been avoided, Nagle argued.
The discussion featured a spirited debate between Mueller and Damon Silvers, the director of policy and special counsel for the AFL-CIO, about approaches to funding. The law also could have done a better job with funding rules, Jeremy Gold, a consulting actuary suggested as he helped moderate a panel exploring the tax and minimum funding standards of ERISA. Russell Mueller, a past staff member actuary on the U.S. Houses Committee on Education and Labor who was involved in the early drafting of ERISA, agreed. However, Mueller argued, ERISA was remedial legislation, designed to address major pre-ERISA problems.
Although ERISA offered a real effort to offer remedies to pension participants, its enforcement provisions too had issues, Howard Shapiro, a seasoned ERISA litigator and partner at Proskauer Rose said while moderating a panel on benefit disputes and enforcement. Cummings, however, suggested that preemption was a greater issue for businesses and labor than remedies. Nagle noted broad preemption was introduced late in the stage and perhaps should have caused the drafters to refocus on federal remedies given that state remedies would now be foreclosed.
Despite its shortcomings, ERISA achieved a radical change in pension administration, Professor Norman Stein said. Understanding ERISA requires a perspective on how issues arose and how lawyers and the law dealt with them, Steven Sass, director of the Financial Security Project, Retirement Research Center at Boston College said. Cummings stressed that ERISA was designed to address the problems that we were facing at the time, not to anticipate problems that would arise in the future.
Calling the symposium “an amazing gathering,” Iwry said it was effective at “capturing incredible war stories and real history” of those who grapple with congressional turf, power struggles and their aftermath in the ongoing work of government.
Symposium Highlights Trends in Teaching International, Transnational Law
Scholars explored emerging themes in education focused on international law at a daylong symposium, “Building Global Professionalism,” sponsored by the Drexel Law Review and the International Law and Human Rights Society on Oct. 12.
The symposium started with an overview of emerging trends by Larry Catá Backer of Penn State, Jorge Luis Esquirol of Florida International University, Vasuki Nesiah of New York University and Fernanda Nicola of American University.
Summer-abroad programs, transnational legal clinics, LLM programs for foreign practitioners and specialty courses and programs focused on international issues each pose potential challenges, Esquirol said. He noted, for instance, that summer-abroad programs can give students “a bubble-like experience” that bolsters preconceptions about foreign law and that transnational clinics can allow U.S. laws to eclipse those of localities.
To some degree, Nesiah said, the growth of international programs reflects a desire by law schools to position themselves competitively and generate revenues. Private universities have enormous advantages in this regard, she added.
Law schools face pressures to prepare students for professional practice at the expense of more scholarly activities, Nicola said, adding that protecting the rule of law should remain a core mission. While critics cite a waning influence of the U.S. legal system abroad, she said the widespread translation of American casebooks and citations of U.S. opinions by the European Court of Human Rights suggest the enduring power of American legal thinkers.
Backer distinguished between nationalist and internationalist models, noting that the former aims to promote U.S. models and market-driven competition to shape other legal systems while the latter seek to build a shared consensus between nations. Since those who favor production of wealth and efficiency will back nationalist models, he said, they carry more influence.
Sarah Paoletti of the University of Pennsylvania, Elisabeth Wickeri of Fordham University and Richard Wilson of American University explored efforts to globalize experiential learning. Paoletti discussed strategies for developing clinical programs that enable students to hone cross-cultural skills and avoid adverse impacts for clients. Given the human rights abuses in countries like China, Wickeri said, it is important to choose cases carefully and to partner with non-governmental organizations that know the lay of the land. Citing a case in which students helped gain the release of 22 men from a Mexican prison, Wilson noted that international clinics have the potential to advance human rights and that some programs grew from indigenous efforts.
Martin Flaherty, professor and co-director for the Leitner Center for International Law and Justice at Fordham University was the event’s keynote speaker. Flaherty’s presentation addressed the responsibilities of law schools operating in authoritarian regimes.
Major legal institutions are creating and promoting law programs in areas governed by authoritarian regimes while ignoring the human rights violations taking place under those regimes, Flaherty said. Flaherty claimed that it is incumbent upon institutions to establish and defend their core academic values while abroad. While Flaherty recognized that, in some instances non-action may be appropriate where challenging a regime could do more harm than good, he stressed that institutions must at least educate themselves about potential human rights violations and recognize their existence so that they are prepared to properly address any problems from within should the opportunity arise.
Following Flaherty’s keynote presentation, a panel of speakers discussed law school programs that use comparative approaches to legal education in “Learning and Working Across Legal Systems.”
Panelist Kerstin Carlson from the American University of Paris, spoke about the cultural importance of law, arguing that effective practitioners abroad must be aware of cultural nuances as well as technical ones to succeed.
Raquel Aldana from the Pacific McGeorge School of Law claimed that one of the most important benefits of educating American law students abroad is that a first-hand encounter with the legal struggles of those abroad fosters the students’ “critical self-reflection” and ensures that they are adequately prepared to engage new legal environments. Alana Klein, assistant professor of law at McGill University in Canada, added that teaching the competing systems of Canadian law had a similar effect on McGill’s students.
Holning S. Lau found similar benefits when teaching his Law and Sexuality class at the University of North Carolina School of Law. Lau’s class investigates sexual orientation law through the lens of foreign legal systems and cultures that have addressed similar issues.
Villanova University School of Law Professor Diane Penneys Edelman echoed Lau’s sentiments explaining that writing assignments which involve international legal issues foster unique perspectives on U.S. legal principles. Similarly, Leighanne Yuh, from Fordham University School of Law, noted that Fordham’s Korea program invites students to approach U.S. law from a different perspective.
Australian National University College of Law Professor Katherine Hall joined the panel via Skype. Hall emphasized that legal practice is becoming more and more global and, thus, in some ways, global lawyers, who are not tied to any specific government, must recognize that their responsibilities go beyond the international legal issues they investigate and influence the behavior of their multi-national corporate employers.
Professors Anil Kalhan and Pammela Quinn Saunders from the Earle Mack School of Law closed the day’s events with a discussion that provided an overview of the various panels throughout the day. Before panelists and guests proceeded to a post-event reception, Saunders thanked Kalhan and the school’s students for organizing such an intellectually enriching event.
Legal Scholars Headline Conference on Business Improvement Districts
Scholars from some of the nation’s top law schools and more than 150 lawyers, community leaders and public officials came to the Earle Mack School of Law on January 22, 2010 for a conference exploring the emerging role of Business Improvement Districts.
The symposium, entitled Business Improvement Districts and the Evolution of Urban Governance, provided an unprecedented opportunity for leading scholars and economic development professionals, elected officials, and students to examine the
ways that BIDs—private organizations authorized to levy assessments and spend these revenues—shape urban economic development initiatives.
“This event brought together four of the preeminent government scholars in the United States to shine a light on this critical issue,” said Daniel M. Filler, senior associate dean for academic and faculty affairs at the law school. The conference featured Richard Briffault of Columbia Law School, Gerald E. Frug of Harvard Law School, Nicole Stelle Garnett of the University of Notre Dame Law School and Richard C. Schragger of the University of Virginia Law School, who discussed the potential opportunities and drawbacks associated with BIDs. Scholars from Drexel and nine other universities and colleges presented case studies of the unique and shared experiences of the city’s 16 BIDs.
Paul Levy, president and CEO of the Center City District, gave a morning address outlining the important role of BIDs locally, nationally, and even internationally. He applauded the goals of the conference, thanking Drexel University for sponsoring the conference and noting that “this is the first meeting of this sort in Philadelphia. There’s been no really good organized effort between the universities, the city, and BIDs.”
Drexel president John Fry, then-president of Franklin & Marshall College and former executive vice president and chief operating officer of the University of Pennsylvania, gave a keynote address outlining the role of BIDs in spurring revitalization of both West Philadelphia and Lancaster, Pennsylvania. Fry discussed the economic development initiative that he helped launch in 1996 that fueled an economic renaissance in the neighborhoods surrounding the Penn and Drexel campuses. Early support for the initiative came from the late Drexel University President Taki Papadakis, who Fry said “showed incredible leadership” by committing funds to the redevelopment effort.
Professor Richardson Dilworth, director of Drexel’s Center for Public Policy and an organizer of the event, said BIDs play an important role in cities. “Philadelphia is a city of neighborhoods, with hundreds of commercial corridors that have their own specific identities,” he said. “BIDs are an opportunity to express that identity.”
National Conference Covers Patient Care, Pandemics and Health Policy Reform Paradigms
Nearly 200 scholars discussed medical research gone awry, prospects for reforming the health-care system and emerging issues in bioethics, among other topics at the 31st Annual Health Law Professors Conference at the Earle Mack School of Law.
The conference, held June 5-7 and sponsored by the American Society of Law, Medicine and Ethics, brought together professors who teach in schools of law, medicine, public health, health-care administration, pharmacy, nursing and dentistry.
The annual event allows professors to keep abreast of current trends and translate complex scientific and policy issues into lively topics of discussion, said Barry Furrow, professor of law and director of the Health Law Concentration at the Earle Mack School of Law.
"How do you teach this stuff and bring it to life for students," Furrow said. "How do you give it context and personality?"
A plenary session on health policy addressed the mix of political and economic factors that impinge on efforts to promote universal health insurance and improved patient care.
"The political history has been all about coverage, all about insurance restructuring," said Bill Sage, a law professor at the University of Texas-Austin, a physician and a policy advisor to former President Bill Clinton. "What we really need to embark on is changing the way that people get their preventive care, they way that people engage in health as community projects, as school projects and the way that, if they do get ill, the health care system responds."
Sidney Watson, of the Saint Louis University School of Law, said reforms will only come about if advocates "bust myths" and educate policymakers and voters about the legitimate need for public funding.
Contending the current system improperly limits services that some patients can receive, Ani Satz, associate professor at Emory University School of Law and Rollins School of Public Health outlined a new paradigm for change. Satz proposed a system that would cover all services without restriction while placing an annual or lifetime cap on health care expenditures incurred by any one patient.
Another session addressed issues in biomedical research, including dilemmas faced by researchers who unexpectedly discover medical conditions in human subjects that fall outside the scope of their studies. "The incidental findings problem sounds incidental," said Susan M. Wolf of the University of Minnesota Law School. "It is anything but. It goes right to the core of our thinking about researchers and clinicians. It challenges the line between them."
Researchers have very little guidance for addressing this critical ethical issue, Wolf said, adding that vast volumes of data that accumulate through genomic research will only increase the need to create protocols.
The conference culminated with a reception and dinner at the College of Physicians of Philadelphia. Wendy Mariner, professor at Boston University's schools of law, medicine and public health, received the Jay Healey Distinguished Health Law Teaching Award. Clark Havighurst, professor emeritus at Duke Law School, was honored with a lifetime achievement award in teaching.