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Daubert Practice 2013: How to Avoid Getting Sliced by Cutting-Edge Developments in Expert Witness Challenges


Speaker(s): David Garabrant, M.D., M.P.H., David M. Cohen, Joe S. Cecil, Ph.D., J.D., Mary A. Wells, Michael Williams, Nathan A. Schachtman
Recorded on: Sep. 23, 2013
PLI Program #: 43984

Joe S. Cecil is a Senior Research Associate and Project Director in the Division of Research at the Federal Judicial Center.  Currently he is directing the Center's Program on Scientific and Technical Evidence. As part of this program he served as principal editor of the first two editions of the Center's Reference Manual on Scientific Evidence, a third edition of which was recently published in collaboration with the National Academies. He has served as a member of several panels of the National Academy of Sciences, including the Committee on Identifying the Needs of the Forensic Science Community, and presently is serving as a member of the Committee on Science, Technology & Law. He is currently directing a research project that examines the difficulties that arise with expert testimony in federal courts, with an emphasis on clinical medical testimony and forensic science evidence.  Other areas of research interest include access to federal courts, federal civil and appellate procedure, jury competence in complex civil litigation, and assessment of rule of law in emerging democracies. Dr. Cecil received his J.D. and a Ph.D. in psychology from Northwestern University.

 


Mary Wells' national practice focuses on complex litigation, particularly product liability. She is a fellow in the American College of Trial Lawyers, and the immediate past Tenth Circuit representative to the ABA's Standing Committee on the Federal Judiciary. 

Ms. Wells was identified as one of the nation's top 25 product liability lawyers by the Guide to the World's Leading Product Liability Lawyers, named one of the top 50 women litigators by the National Law Journal and identified as a Colorado "Superlawyer." She and the firm have been recognized by "Best Lawyers."

Ms. Wells has been active in mass tort litigation for medical device, pharmaceutical, safety equipment, electronics and friction product companies. She has extensive trial experience in aviation products liability cases, primarily in the defense of airframe manufacturers. She has tried numerous cases across the country and participated in innovative procedures concerning expert testimony including preservation of trial testimony from court-appointed experts.

 Teaching trial advocacy has been an important part of Ms. Wells' professional activities. She was director of the International Association of Defense Counsel's trial academy, and has participated in numerous other programs designed to enhance the trial skills of young lawyers. She is a member of the Product Liability Advisory Council and the IADC.

 Mary is a founding member of Wells, Anderson & Race, LLC. She and her colleagues pride themselves in providing outstanding legal services to clients who seek innovative solutions to complex problems.

 She is admitted to the Bars of the United States Supreme Court, the Fifth, Ninth Tenth, and Eleventh Circuit Courts of Appeal, the District of Colorado, and the state of Colorado.


Nathan A. Schachtman has been in the practice of law for three decades, focused on products liability. He is an active member of the New York and New Jersey Bars, and an inactive member of the Pennsylvania Bar.

Mr. Schachtman teaches statistical and probabilistic evidence at the Columbia Law School, where he is a Lecturer in Law. Mr. Schachtman is an elected member of the American Law Institute, and a fellow of the American Bar Foundation. After graduating, magna cum laude, from Rutgers Law School, Mr. Schachtman served as a law clerk to the late Judge H. Emory Widener, on the U.S. Court of Appeals for the Fourth Circuit. He was an associate at Bondurant, Mixson & Elmore LLP in Atlanta, a partner at McCarter & English LLP, and at Phillips Lytle LLP. In January 2010, Mr. Schachtman established his own firm to represent clients in litigation, as well as to consult with law firms on statistical and scientific evidence issues.

Mr. Schachtman has counseled clients on scientific strategies to avoid, resolve, and win litigation. He has served as national coordinating, MDL, trial, and appellate counsel in product liability, pharmaceutical, occupational disease, and environmental cases. He has tried cases and argued appeals in New York, New Jersey, and Pennsylvania as well as in many other states, pro hac vice. Mr. Schachtman has been involved in many of the leading American cases involving epidemiologic and other scientific evidence in product liability cases. He has lectured and published widely on expert witness and scientific evidence issues. His interests include statistical evidence, access to underlying research data, medico-legal causation and screenings, the reliability and admissibility of scientific evidence, and historian expert testimony. An extensive list of Mr. Schachtman's publications, presentations, as well as his important trials and appeals, can be found at his website, schachtmanlaw.com, which also features an active blog on issues of interest.


Leading trial lawyers from major national law firms and from Canada regularly ask Mike Williams to work with them on cases involving hundreds of injured people. He has handled many large Daubert hearings in federal courts where large numbers of cases are at stake.

Mike graduated magna cum laude from Harvard Law School in 1978. He received his Masters in Philosophy from the University of California at Berkeley, and his Bachelor of Arts (cum laude, Phi Beta Kappa)  in Philosophy from Wabash College.

Mike was admitted to the Oregon State Bar and the U.S. District Court of Oregon in 1978, to the U.S. Ninth Circuit Court of Appeals in 1979, to the U.S. Court of Federal Claims in 1980, and to the U.S. Supreme Court in 1983. In 2002, Mike was admitted to the Washington State Bar.

Mike began his legal career working for Art Johnson's firm in Eugene, Oregon, a highly respected plaintiffs' law firm. The first client he represented was a woman injured by a Dalkon Shield IUD. Ultimately, Mike tried nine Dalkon Shield cases to verdict in federal court in 1984.

In 1986, Mike moved to Portland and established what is now Williams Love O'Leary & Powers. Mike has been actively involved in many medical device and pharmaceutical mass torts, often trying the "first in the country" cases. He tried a Neo Mull Soy infant formula case in 1986, then proceeded to settle all eight of his cases. Mike filed the first L-tryptophan case in the country, and in 1991, he tried the nation's first three L-tryptophan cases, receiving more than $2.2 million in verdicts, and then settling all the rest of his 80 cases.

In 1987, Mike Williams tried the country's third breast implant case in federal court in Tacoma, Washington, and won a plaintiffs' verdict. The firm eventually represented over 800 breast implant clients.

In April 1997, Mike filed the first Fen-Phen (diet pill) case in the country and prepared dozens of others for trial, even starting trial in Jefferson County Mississippi before settling hundreds of Fen-Phen cases that night. The firm represented over 200 clients injured by Fen-Phen in Oregon and in Washington, and worked with attorneys in other states to represent over 2,000 clients.

In 2003, he was lead counsel for the plaintiffs in the PPA Ischemic Stroke Daubert hearing in the MDL court in Seattle, where he won the right to go to a jury trial for as many as 1,000 ischemic stroke victims. Mike's firm has specialized even further in Daubert issues on mass pharmaceutical torts, playing a major role in the the Ephedra MDL in New York, where Mike's partner Leslie O'Leary was lead plaintiffs' counsel on the Daubert hearings in February and March 2005.  Mike and Leslie were asked by the PSC to provide special Daubert counsel in the Fosomax jaw necrosis litigation in 2009. Mike also participated in all of the many Daubert challenges to plaintiff experts in the Hormone Therapy MDL in Little Rock over the past seven years.

Beyond his experience as a leading litigator, Mike is also an accomplished author and editor. He co-authored the chapter on Parties in the Tort Litigation treatise published by AAJ, the Oregon Class Action chapter of the ABA Survey of Class Action Law (as an annual supplement to West Group's multi-volume treatise, Newberg on Class Actions (April 2003, and the "Products Liability," "Ultra-hazardous Activities," and "Spontaneous Declarations" chapters for Oregon State Bar Continuing Legal Education, among others. He was the founding editor-in-chief of the Oregon State Bar Litigation Journal, the newsletter of the Litigation Section of the Oregon State Bar, a job he kept for ten years (1980-90).

Mike is a past president of the Oregon Trial Lawyers Association. He is currently a member of the American Association for Justice (President's Club Member), Trial Lawyers for Public Justice, Oregon Trial Lawyers Association, Washington Trial Lawyers Association, Multnomah County Bar Association, and the Federal Bar Association.

Mike also served as chair, Oregon State Bar Federal Practice and Procedure Committee (1999-2002past chair OSB Federal Practice & Procedure Committee (2003); past-President OTLA ; past-chair OSB Procedure & Practice Committee; past-member OSB Civil Jury Instruction Committee;; and he is a supporting character in Dispensing With the Truth: the Battle Over Fen-Phen, authored by Alicia Mundy (St. Martin's Press, May 2001).  Mike has published one peer-reviewed paper in the scientific literature: R. Clapp and ML Williams , Regarding "phenylpropanolamine and hemorrhagic stroke in the hemorrhagic stroke project", 16, Vol. 1, Ann Epidemiol, 49-52 (Jan 2006).

 In addition, Mike is also a frequent speaker at the invitation of the American Association for Justice, Oregon Trial Lawyers Association, Oregon Law Institute, Oregon State Bar, and Mealey's.

Mike also has been active in his community, including having served as member and chair of the Eugene School Board. He has also contributed generously to charitable and political groups that help the poor and protect our civil justice system. 

 In March 2009, Mike received the Henry H. Hewitt Access to Justice Award from the Oregon Campaign for Equal Justice, which annually is awarded in recognition of strong leadership, consistent effort, commitment to the ideal of equal justice under the law, and substantial contribution to legal aid for low-income Oregonians.

  Mike's law firm has recently endowed Portland's Lewis & Clark Law School's Women in the Law Distinguished Speaker Series. Due to this endowment the program will continue in perpetuity. Mike has had a Martindale Hubbell AV Preeminent rating for more than ten years, and is recognized in Best Lawyers.  His firm was named one of the top 25 plaintiff mass tort firms in the country by US News and World Report beginning in 2010.


David Cohen has spent more than 15 years at the intersection of science, medicine, and the law. He has held lead science counsel positions in mass tort and individual lawsuits alleging personal injury, product liability, and theft of trade secrets. Most frequently, Mr. Cohen helps clients formulate medical defense strategies to rebut allegations of disease diagnosis and causation. He has led challenges to the admissibility of expert witness opinion testimony, culminating in courtroom roles at Daubert, Frye, and Havner proceedings.

Mr. Cohen is pragmatic, efficient, and versatile. In some cases, he handles the science of the case alone, while in others he collaborates with cocounsel in federal multidistrict litigations and state court actions. Regardless of the size or complexity of the matter, Mr. Cohen works closely with clients to develop and deploy effective, sciencebased resources. He maintains relationships with leading research institutions and medical schools from which he is able to retain expert witnesses for consulting and testifying.

During his career, Mr. Cohen has crossexamined more than 90 doctors, scientists, and other witnesses with technical knowledge. His experience spans many disciplines in medicine and science, including: epidemiology, neuroscience, pathology, toxicology, pharmacology, radiology, neurology, cardiology, pulmonology, and cancer.

Mr. Cohen also advises clients on policies and procedures to reduce litigation risk. He lectures at Continuing Legal Education seminars, where he demonstrates techniques of effective expert witness examination. Mr. Cohen has addressed industry groups in South Korea and in South Africa on mass tort litigation in the United States.

Mr. Cohen served as a law clerk for two years to Federal District Court Judge D. Brook Bartlett in the Western District of Missouri at Kansas City

Publications

  • “Battle Of The ‘Experts’: Daubert And Milward,” Product Liability Law360 and Appellate Law360, January 2012
  • “Tiptoeing Through Mass Tort Litigation,” Risk Management Magazine, April 2001 (coauthor)


Education and Honors

J.D., Fordham University School of Law, 1986
B.A. (magna cum laude), Union College, 1983
London School of Economics and Political Science, 1981
La Sorbonne, 1982

Recommended in The Legal 500 U.S., 2013
Recognized as a New York Super Lawyer, 2009 2012
Listed in The Best Lawyers in America, 2012 2013


Professor Garabrant is a physician who has conducted research in occupational and environmental epidemiology for the past 30 years. He is board certified in internal medicine, occupational medicine, and preventive medicine. Since joining the faculty at the University of Michigan in 1988, he has served as Director of the Occupational Medicine Program, Director of the Occupational Health Program, Director of the Center for Occupational Health and Safety Engineering, Director of the Cancer Prevention Training Program, and Founding Director of the Risk Science Center.

Education

M.S., Physiology, Harvard University, 1980
M.P.H., Harvard University, 1979
M.D., Tufts University, 1976
B.S., Chemical Engineering, Tufts University, 1972 
 
Professional Affiliations

American College of Occupational & Environmental Medicine
Michigan Occupational& Environmental Medical Association
Society for Epidemiologic Research
Michigan Public Health Association
Society for Risk Analysis
International Epidemiological Association