For our second profile of an interesting Minnesota trial lawyer (our first, Elliot Olsen, can be found here), we had the chance to sit down recently with Jim Behrenbrinker to talk about his diverse practice and the big excessive force/wrongful death claim he brought against the City of Minneapolis. Behrenbrinker was formerly at Robins Kaplan Miller & Ciresi L.L.P., but has been on his own practicing plaintiff’s personal injury, criminal defense, and small business employment defense for the past 10 years. He was also honored by Minnesota Lawyer as an Attorney of the Year in 2010.
Check out our conversation below. He talked about being a federal judicial clerk, his first real courtroom experience representing the indigent, his $2.1 million wrongful death verdict against the City of Minneapolis, his unexpected big referral source, and his advice for young lawyers. Continue reading
Today the U.S. Supreme Court, in a 5-4 decision (but not the standard break-down between “conservatives” and “liberals”), held that the accused in criminal cases is entitled to confront witnesses under the Sixth Amendment of the U.S. Constitution such that a certificate of state laboratory analysts as to drug weight or composition was not sufficient evidence on which to base a conviction — the defendant is entitled to cross-examine the person certifying (that is, the author of the certificate).
The ruling dove-tails with the recent controversy in Minnesota courts with regard to a different area of science and the criminal law: the rights of an accused to intoxilyzer source code.
This blog focuses on civil litigation, not criminal law but both cases highlight courts’ concerns that our judicial process risks being overshadowed if not overwhelmed by a widespread sense of “scientific truth” — something unquestionable, undebatable, beyond and superior to the truth as elicited from our judicial system. This tension plays out, of course, throughout civil litigation, as well as in the criminal law context.
(The U.S. Supreme Court decision, as the dissent pointed out, could put cities and states under great strain by increasing the costs of criminal prosecutions, and the decision might result in an increased demand for scientific/technical witnesses — witnesses with the background and expertise to give evidence as to chemical composition, accuracy of measuring devices, and so on.)
In one of three bellwether cases in the Eastern District of Arkansas (three of 10,000 cases pending before Judge Wilson) for the prempro hormone replacement therapy cases, the major issue on appeal, argued on May 12, is plaintiff’s proof of cancer causation — a theory contested by defendants and a theory rejected by the Court. The jury verdict was nearly a year ago and included a punitive damages component of over $26 million against defendants Wyeth and Upjohn. Scroggin v. Wyeth (4:04-cv-01169-WRW, E.D. Arkansas)(Wilson, J.)
The appeal is before Judges Wollman, Gibson, and Murphy. The issues are extremely complex and beyond the scope of this blog but the crux is whether “differential diagnosis” (i.e., process of elimination) can be the basis for evidence of causation. That is, if we can rule out Cause A, Cause B, Cause D, Cause E, and Cause F, should courts allow juries to conclude that Cause C (defendant’s product) was the cause of plaintiffs’ cancer? (What about unknown causes?) Defendants say this case is the same as Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.), cert. denied, 516 U.S. 869 (1995) “Daubert II” and plaintiff’s counsel, of course, said that this case could hardly be more different.
There was also a statute of limitations issue on appeal – the issue was when plaintiff received Wyeth’s warning (and, presumably, it would have had to have been sufficient).
Some lawyers and clients over-focus on the liability aspect of cases and they short-change the damages side. Almost all civil litigation is about money — it’s ultimately about the damages — but liability — “who’s at fault?” — is more graspable and sometimes it is the better handled part of litigation.
In U.S. Salt, Inc. v. Broken Arrow, Inc., the plaintiff was awarded summary judgment on liability for breach of contract with damages to be tried before a jury (before Judge Kyle, D. Minn.). Plaintiff’s damages expert was a prominent local damages expert who first estimated the damages at $1.8 million. In deposition, he admitted that he had started his analysis only two to three days before his report was filed; that the primary factual bases for his first report were the assumptions and estimates he was provided by a witness (a non-expert); and that he did not do any independent analysis of the local market to determine profit margins and the like. A few days later, U.S. Salt’s expert filed a supplemental expert report adjusting his opinion to be that US Salt had suffered damages in the range of $677,000 to $1,060,000.
The Trial Court judge excluded testimony from Plaintiff’s damages expert. The Court found the expert had conducted no analysis of the relevant salt market and had relied “almost exclusively”–and without verification–on a witness’ unsupported assumptions and estimates. Plaintiff U.S. Salt was given another chance to provide evidence of damages. The Trial Court found that it failed to come forward with any persuasive evidence of damages. The court dismissed US Salt’s breach of contract claim for failure to submit admissible evidence to prove damages and the Eighth Circuit affirmed.
U.S. Salt, Inc. v. Broken Arrow, Inc., Civ. Nos. 08-2423/2465 (8th Cir., April 20, 2009).