National coordination and related toxic tort and product liability matters handled by Crowell & Moring frequently involve significant science and health issues. These cases require considerable sophistication to handle the Daubert and Frye discovery and expert work, to deconstruct plaintiffs' expert approaches, and to establish the credibility of the defense position.
In the context of these cases, we have retained and developed teams of world-leading experts; integrated their testimony into hearings and trials; conducted aggressive discovery of plaintiffs' experts; and created tools such as testimony videos and CD compendia of expert materials for cross-case use by different firms. In addition, our firm has substantial experience representing scientists themselves through our extensive portfolio of scientific integrity defense litigation. We often draw upon this history and knowledge in developing our expert cases in national coordination representations.
Some of the keys to our approach include the following:
- Expert development. Because these cases frequently turn on the quality of the science presented, we identify and recruit the best national and international experts available to support the defense. To do this, we frequently utilize our counsel at Crowell & Moring who defend scientists and universities, from which they have developed a wealth of contacts among the scientific community. We routinely draw from top universities such as Stanford, Harvard, the University of Michigan, and the University of London for our expert pools, and often retain high-level former government regulators to address regulatory health perspectives.
- Scientific knowledge. In the course of these cases and through our expert work, we have developed our own base of knowledge in a wide array of health-related disciplines such as genetics, teratology, oncology, hematology, immunology, epidemiology, pharmacokinetics, occupational medicine, exposure calculations, toxicology, and the like. Although the issues in each case are always somewhat unique, many of the concepts are readily transferable and vastly enhance our ability to handle novel science cases.
- Deconstructing plaintiffs' science. In our experience, the plaintiffs' expert opinions and methodology in these cases are marginal and unscientific, but to the untrained layperson may nevertheless appear persuasive. We have developed discovery techniques, based on extensive work with Daubert case law and the health fields mentioned above, to expose the methodological errors, the absence of true peer review, and similar problems that underlie the plaintiffs' expert work and that will provide the basis for a successful Daubert/Frye defense.
A unique aspect of our expert work includes the key role the firm has played in important Daubert decisions. On behalf of associational clients, we prepared a leading amicus brief in the Daubert case that proposed the "gatekeeper" concept and the use of the scientific method in this manner. We likewise filed amicus briefs in the Supreme Court Kumho case and in other appellate matters. Our lawyers have also written extensively on science and Daubert issues, including as co-authors of a leading text, Expert Evidence: A Practioner's Guide to Law, Science, and the FJC Manual. Two of our lawyers recently published an article in the University of Michigan Journal of Law Reform on the appropriate Daubert analysis of scientific studies generated and paid for by litigants to support novel science. ("Daubert's Backwash: Litigation-Generated Science," 34:4 Mich. J. L. Ref.)