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86 Nw. U. L. Rev. 643 (1991-1992)
Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation

handle is hein.journals/illlr86 and id is 663 raw text is: Copyright 1992 by Michael D. Green                      Northwestern University Law Review
Vol. 86, No. 3
EXPERT WITNESSES AND SUFFICIENCY OF
EVIDENCE IN TOXIC SUBSTANCES
LITIGATION: THE LEGACY OF
AGENT ORANGE AND
BENDECTIN LITIGATION
Michael D. Green*
I. INTRODUCTION
In In re 'Agent Orange Product Liability Litigation,' Judge Jack
Weinstein entered summary judgment against several plaintiffs because
the affidavits submitted by their experts were inadequate to establish a
genuine issue on causation. Judge Weinstein's decision, driven by con-
cerns2 beyond the reliability of plaintiffs' experts, nevertheless was the
genesis of an important trend in the treatment of expert witnesses.3 At
approximately the same time, litigation over Bendectin, a drug pre-
scribed to pregnant women and alleged to be a teratogen (cause of birth
defects), also was peaking. Shortly after Judge Weinstein's Agent Orange
opinion, several courts emulated his critical scrutiny of expert testimony
in litigation regarding Bendectin.4
In the toxic substances context, the expert witness debate centers on
causation. Much has been written about the uncertainties and concomi-
tant difficulties in determining whether agent A causes disease B where
the biological and physiological mechanisms are at best poorly under-
stood.5 Needless to say, that uncertainty is the breeding ground of con-
* Professor of Law, University of Iowa. Thanks to Michele Busse and Stacy Lee Johnson for
their excellent research assistance. In addition, Eric Syverud, a member of my seminar in Mass
Toxic Disasters 1989-90, initially pursued the idea and the entire class shared their thoughts on the
topic with me. David Kaye, Trudy Bums, and Ed Imwinkelried provided assistance and helpful
comments on an earlier draft. Special thanks to Joe Sanders for his careful and thoughtful critique
and even for his challenging questions, both of which improved this Article significantly. This Arti-
cle is adapted from two chapters in a forthcoming book about Bendectin litigation.
1 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd on other grounds, 818 F.2d 187 (2d Cir. 1987), cerL
denied, 487 U.S. 1234 (1988).
2 See infra text accompanying notes 145-49.
3 As Peter Schuck observed: [Judge] Weinstein's refusal to submit the opt-outs' causation
claims to a jury was probably his single most far-reaching ruling in the Agent Orange case and will
exercise a profound influence over future mass toxic tort litigation. PETER H. ScHUCK, AGENT
ORANGE ON TRIAL: MASS Toxic DISASTERS IN THE CoURTS 234 (1987).
4 See infra text accompanying notes 81-117.
5 See, e.g., Troyen A. Brennan, Causal Chains and Statistical Links: The Role of Scientific

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