The Corporate Seminar for Judges

In A Civil Action, the bestselling non-fiction book about a toxic tort case, Harvard Law School Professor Charles Nesson plays a pivotal role.
Jan Schlictmann, the plaintiffs' lawyer and star of the book, persuades Nesson to join the legal team advising the residents of Woburn, Massachusetts in their lawsuit against chemical companies for polluting the town's drinking water supplies.
The author of the book, Jonathan Harr, quotes Nesson as saying: "The only lesson that corporations understand is money. Sales, income, earnings, profit, the bottom line. That is their blood."
Because the book has been on the best-seller list for more than two years now, Nesson has gained a bit of a reputation as a crusading anti-corporate lawyer.
But don't be misled. Nesson's current work is being funded by America's giant corporations.
As part of the Berkman Center, Nesson has set up something called The Daubert Project. The Daubert Project holds seminars around the country for judges about the implications of the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Nesson, along with fellow Harvard Law Professor Charles Fried, submitted a friend of the court brief on behalf of the Merrell Dow's position in the case.
In Daubert, the plaintiffs sought to introduce evidence that birth defects had been caused by a mother's ingestion of the anti-nausea drug Bendectin.
Despite the fact that the Supreme Court sided with the plaintiffs in Daubert, by setting up a process for judges to determine the reliability and relevancy of scientific evidence, the decision gives trial judges important powers to exclude scientific evidence and thus undermine plaintiffs' chances in toxic tort cases.
"The Daubert formula strikes many trial judges as a whispered invitation to unconstitutionally invade the province of the jury in weighing the evidence of causation in toxic tort cases," says Rob Hager, a Washington, D.C. plaintiffs' attorney.
Nesson's Daubert Project now is holding seminars around the country in an effort to educate judges about their role as evidentiary gatekeepers.
Eight such seminars have been held so far, including one in Jacksonville, Florida titled "The Judge's Role As Gatekeeper: Responsibilities and Powers."
More than 300 state and federal judges from Florida attended the Jacksonville seminar. Each received materials prepared by Nesson and his colleagues at Harvard. On the front orange cover of the materials are the words "Produced by The Daubert Project, Berkman Center on Law & Technology, Harvard Law School."
What the participants were not told is that the Daubert Project is funded in part by a $300,000 grant from the Civil Justice Reform Group, a "tort reform" lobby group made up of general counsel of 60 of the nation's largest corporations.
The Civil Justice Reform Group's operating committee is headed by Mike Withrow, associate general counsel at Procter & Gamble. Withrow says that Procter & Gamble has donated an additional $100,000 to the Berkman Center.
Withrow says that his group's $300,000 donation should help cover the costs of 10 state conferences in 1997 and an additional seven to nine conferences that will be held in 1998.
"All we want to do is present a balanced program," Withrow says. "We want good science."
Don't tell that to Christian Searcy.
Searcy, a West Palm Beach trial attorney who was on the panel with Nesson discussing Daubert at the Jacksonville seminar, says that going into the event, his impression was that "the purpose of the presentation was to have a law professor put on an objective program about evidence."
"After participating in the program, it was my impression that Professor Nesson was an advocate for the proposition of judges excluding expert testimony in products liability or scientific cases," Searcy says. "The method he conducted the program seemed to me to be slanted toward persuading people to be more restrictive in keeping scientific evidence out."
"The end effect of having someone with an agenda put on a program that purports to be academic and objective is that you mislead the audience," Searcy says. "It reminds you of the wolf in sheep's clothing."
Robert Hanson works for the Florida court system and put together the program. Hanson also was surprised to hear about The Daubert Project's funding.
"My impression was the program was being funded by Harvard," Hanson says.
Nesson says that he does not tell the judges where the money for The Daubert Project comes from. "We have just said this is a Berkman Center project," Nesson says. "We haven't gone around advertising where the money is coming from."
As for any reputation of being supportive of plaintiffs in toxic tort cases, Nesson says, "I don't think I'm on any side."
"I want credible verdicts," he says. "If verdicts are not credible, the whole system suffers. And in fact that is what was happening."
Nesson says that he would be "delighted to have continuing support" from big corporations.
The better to see you with, my dear.

Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter.
Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor.

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