Monday, September 21, 2009

Odd Evidentiary Ruling in Philadelphia Paxil Trial

There's a Paxil birth defect trial going on in Philadelphia right now. Neither of our firms are involved in it - but that doesn't mean we're not interested. According to a Bloomberg report from last Friday, a plaintiff witness who once worked for the defendant was permitted to testify that some unknown person had made a "note in the company's files" that a different birth defect incident (not part of this suit) was "likely linked" to the drug. This phantom declarant testimony was allowed even though the witness giving it admitted that what happened might have been a "mistake" and that the phantom could have "checked the box wrong."

That evidentiary ruling, assuming Bloomberg accurately reported it, leaves us scratching our heads. It's blatant hearsay, and since the regularity of the statement by the phantom declarant (and the requisite authority) was obviously unproven, it can't plausibly be considered a business record.

That would leave "admission of a party opponent" as the only other ground for letting that in.

But in Pennsylvania, the law is pretty clear that phantom declarant admissions aren't admissible. In Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270 (Pa. Super. 2005), a unanimous panel held that the purported "admission" of a phantom employee that he hadn't "put up right" a carton that later fell off a shelf and hit the plaintiff was inadmissible. To establish an admission, the proponent of the evidence must show "that the declarant was an employee of the principal at the time the statement was made, and the statement concerned a matter within the scope of employment." Id. at 1277. "[I]ncomplete and confusing" testimony that fails to establish the scope of an unknown person's employment doesn't allow admission. Id. Otherwise, opponents could, frankly, make people (or the scope of their employment) up:
In the instant case, the trial court did not accept Appellant's argument in favor of the admissibility of the statement, in part because of doubts as to the credibility of the testimony. . . . This decision was a proper exercise of the gatekeeping function of the judge. Without this safeguard, parties could present to the jury any statements that they assert are admissions by their opponents, effectively gutting the hearsay rule.

Id. at 1278.

That seems like the same problem in the Paxil case. Some box got checked by somebody. Nobody knows who. Nobody can say that the phantom declarant had any right to enter data either in either that document or more generally in the computer system. Admittedly, the information could be wrong. The mystery person might even have been a hacker (although we hope not), for all we know - which is nothing.

Admitting hearsay "admissions" by unknown, unidentified persons has no guarantee of genuineness and implicates all the jurisprudential policies that brought about the creation of the hearsay rule in the first place. This phantom also goes by another name - "reversible error."


Max Kennerly said...

There's a big difference between a plaintiff asserting some unidentifiable employee admitted guilt and a former employee asserting they have a vivid recall of precise information they personally witnessed in the company's database.

Under your version of the rules of evidence, it would be impossible to try any case involving a corporation without calling to the stand every current and former employee, officer and director, since, as you contend, the hearsay rule would prevent them from testifying about any information they did not personally generate. E.g., a janitor couldn't testify about water he saw on the floor, only the person who spilled it could.

It seems you mistook where the trial is taking place: Reading Termination is about two blocks to the east of the courthouse. They sell plenty of baloney there.

Beck/Herrmann said...

That's Reading Terminal, Max, and obviously, you've bought plenty.

Vivid recall? The Bloomberg report, all we're to go on, says the witness who testified had no idea who did it or whether the information is correct. That compares unfavorably with the testimony quoted in the Toys-R-Us case that was held insufficiently precise.

We have all this expensive discovery in order to find out who did what, and to obtain the right people's testimony. As the captain in Cool Hand Luke might have said, "What we have here is a failure to authenticate."

Anonymous said...

Bottom line: Why would any pregnant person take a psych drug? I'm more concerned about the judgment of a pregnant adult ingesting drugs- prescription or otherwise. There are no valid studies on the use of Paxil on pregnant women because you couldn't possibly gather a group of pregnant women willing to submit to the study AND ethically it's wrong. So these "tenuous" links to birth defects are heresay, junk science, guesses, etc.

Anonymous said...

Why would a pharmaceutical company spend over 10 million dollars marketing to women that are trying to get pregnant? If you think a pregnant woman is the one to blame for taking the drug, then you don't understand what the real power of marketing is. Not to mention the Doctors insisting and prescribing these drugs to women who are pregnant and specifically telling them it is safe for their baby. You are right, there are no clinical trials as to the effects on fetuses, but guess what - PAXIL is the only SSRI drug that has a pregnancy category D. So that's pretty telling in itself if you ask me.