Returning from the ALI meeting, Bexis had sitting in his inbox the final hard copies of update 14 for his Drug/Device products liability book. For those of you that use Bexis' book, that means there's more to use, but for Bexis that means that it’s time to start on update 15. A legal author’s work is never done. This time he’s planning to update the chapter on evidence.

It's also time for our Thursday long post - time to kill two birds with one stone.

Right now the book has a short subsection on corporate intent evidence in drug and device cases. That section states simply that corporate motive and intent evidence (usually offered by some purported “expert”) has generally been found inadmissible by courts trying drug and medical device product liability cases. There’s one footnote, citing four cases from three jurisdictions: Smith v. Wyeth-Ayerst Laboratories Co., 278 F. Supp.2d 684, 700 (W.D.N.C. 2003); Figueroa v. Boston Scientific Corp., 2003 WL 21488012, at *4 (S.D.N.Y. June 27, 2003); In re Diet Drugs Products Liability Litigation, 2001 WL 454586, at *2 (E.D. Pa. Feb. 1, 2001); In re Diet Drugs Products Liability Litigation, 2000 WL 876900, at *9 (E.D. Pa. June 20, 2000).

We think Bexis can do better than that with this update – and we think we can make a blog post out of it as well. So let’s take a look. What have courts held about corporate motive and intent evidence lately?

Probably the best treatment of the subject, of the cases coming down since this part of the book was updated, is in In re Rezulin Products Liability Litigation, 309 F. Supp.2d 531 (S.D.N.Y. 2004). There, three purported corporate ethics “experts” were excluded for a variety of reasons. First, their ethics opinions were “speculative” in the sense that they were based upon “subjective belief.” Id. at 543-44. Second, ethical matters were not relevant to product liability litigation, as it was unrelated to the alleged defects being claimed. “While the defendants may be liable in the court of public opinion, or before a divine authority . . ., expert opinion as to the ethical character of their actions simply is not relevant to these lawsuits.” Id. at 544. Third, ethics evidence was argumentative and prejudicial. Id. at 545. Fourth, expert witnesses aren’t really qualified at divining corporate intent, which is something that lay jurors are equally competent to judge, should it be relevant to anything. Id. at 546-47.

Other cases have also considered and rejected ethics/intent-related testimony for one or more of the reasons articulated by the Rezulin court. In re Trasylol Products Liability Litigation, 2010 WL 1489793, at *7-9 (S.D. Fla. Feb. 24, 2010), largely followed Rezulin in excluding disguised business ethics evidence...