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The use of statistics in injury litigation can be particularly troublesome, for the well-known reasons explained in other contexts:

“There are three kinds of lies: lies, damned lies, and statistics.”– Benjamin Disraeli, Former Prime Minister of the UK

“Statistics: The only science that enables different experts using the same figures to draw different conclusions.”– Evan Esar, American Humorist

“Facts are stubborn, but statistics are more pliable.”– Mark Twain

Statistics Evidence In Injury Cases: Excluding It or Infusing It In Direct Exam?

by Richard N. Shapiro

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The first thing one must consider if either you or your opponent are offering any statistics, is wheth-er the statistics really make a subject negligent act under consideration in the case any more likely or not, because you (or your opponent) may move in limine to exclude the statistics in question. If you assume certain statistics are coming into evidence for one reason or another, I advocate carefully considering using the statistics in your own direct exam with the relevant witness, and in the second section below discuss current Virginia personal injury law on admissibility of statistical evidence.

Defuse cross-exam by infusing direct examI recently worked on a significant wrongful

death case ultimately involving 16 witnesses for the plaintiff, 10 for the defense. My client was diagnosed with lung cancer 17 years after he quit smoking cigarettes. He had had a 26-year smok-ing history before quitting, but the basis of our case was that his 40-year career with the railroad also involved exposure to radioactive contamina-tion, asbestos, and prolonged diesel exhaust fume exposures which are known causes of lung cancer as well as smoking. Our case would require us to prove that the workplace carcinogens caused, in whole or in part, his lung cancer under provi-sions of the Federal Employers Liability Act. The defense case’s central theory was that cigarette smoking was the sole cause of the lung cancer. It was clear that our most important medical wit-ness was our decedent’s treating oncologist, who had treated his lung cancer nearly five years and provided the opinion that workplace carcinogens contributed to cause my client’s lung cancer. During the oncologist’s cross-examination, the defense attorney raised significant problems with our evidence:

Defense Discovery Exam of OncologistQ. You wrote down here, third sentence down, “He had a long history of tobacco abuse which has been continued about 15 years ago, or around 1990,” since this is 2005. Is that correct?A. Discontinued –* * * *Q. Why did you include that in the history? Why did you say that?A. We often make a reference to smoking history when we are discussing lung cancer.* * * *Q. You’ve had experience in dealing with lung cancer, haven’t you?A. Extensive. Unfortunately, that’s a major part of our medical practice.Q. Is it true that over 90 percent of lung cancers are directly related to cigarette smoke abuse?

A. That’s what the data suggests, yes.* * * *Q. Squamous cell lung cancer, is it true that of all the lung cancers, that that is the type of – histo-logical type that’s the most related to cigarette smoke?A. I think that’s, you know, regarded as fact….* * * *Q. And smoking cigarettes is something that rep-resents a personal choice on the part of the person who is doing the smoking. …A. Yes.

The weekend before the trial began I sat down to draft the direct exam of the oncologist and was rightly stressed-out about the statistics relating to smoking and lung cancer and related deaths. It dawned on me that I could not leave these damag-ing statistics to the defense attorney to bring out on cross-exam. I had to find a way to infuse my direct exam and also defuse the entire statisti-cal argument of the defense. I resolved to closely study the current National Cancer Institute lung cancer statistics for 2009-2010, some of which had been brought out during the defense discovery deposition above.

First, I realized just how many lung cancer cases and lung cancer deaths there were in a typical month or day of every year – even the non-cigarette related deaths were significant. But more importantly I finally figured out how to take these seemingly damaging statistics, embed them in my direct examination of the oncologist in a way that emphasized the strength and legitimacy of our case. Once I drafted the examination I was so confident about it that I called the oncologist and explained to him that we would bring these “terrible” cancer statistics out during his direct exam and I explained how. I do believe that this direct exam was a dramatic evidentiary highlight of our trial and here is the actual exam excerpted as it came out during our proof during the 10-day jury trial:

Trial direct exam of oncologistQ. Are you an oncologist?A. Yes, medical oncologist.* * * * Q. Do you treat patients with cancer every day?A. Yes, sir.Q. How many patients would you say you treat in a given week?A. In a given week, well over 100.

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Q. During your training, did you learn about car-cinogens and cancers?A. Yes.* * * *Q. Do you have an opinion about whether the workplace carcinogens, as well as cigarette smoking, contributed to cause the plantiff’s lung cancer?A. Well, in my opinion, it was very reasonable to expect that it contributed to his development of lung cancer. * * * *Q. Dr…, did [the defense attorney] ask about statistics related to lung cancer deaths at your deposition last summer?A. I believe he did, yes.Q. And did you express the opinion that something like 90 percent of lung cancers are associated with cigarette smoking?A. I did.Q. Was that perfectly accurate or was that rounded?A. Well, that was rounding. I’ve done a little bit more research on that, and the National Cancer Institute puts that number at about 87, 88 percent, but it’s a real number.* * * * Q. Could you come down to the jury and show a couple of those statistics, please?A. Well, I want to say it’s over 200,000, 220,000 projected in 2010, and I think we say about 87 percent of those are smoking related.Q. And that leaves about how many cases that –A. You had me do some of this math. 193,000 would be smokers, and that leaves about 30,000 nonsmokers.* * * *Q. Okay.A. By the day, I think 374 people with smoking-related lung cancer deaths and about 56 non-smokers per day. It’s real numbers. It’s no ques-tion, it’s not – it’s a lot of numbers, unfortunately.* * * *Q. Well, based on your opinion that you just gave this jury, does the plantiff – because you associ-ated it as a contributing factor, which one does he fall under?A. Well, I think he would fall under a smoking-related death with a smoking history.Q. All right. In your practice, about how many pa-tients have you said you treated over your career?A. For lung cancer or just generally?Q. Let’s say for lung cancer.

A. For lung cancer, you know, it’s tough to give an exact number, but I think, conservatively, at least 500 or more.Q. About how many of your patients have you treated that reported having asbestos exposure and cigarette smoking?A. That’s obviously a much smaller number, prob-ably 25 or 30, maybe a few more.Q. How many patients have you treated that reported asbestos, smoking, radiation and diesel exhaust exposure….?A. I don’t recall any others, to be honest.Q. We know there’s at least one.A. Yeah.[Note: after the oncologist wrote these statisti-cal numbers on the easel paper and agreed to “at least one,” I took a separate black magic marker and I wrote a very large numeral “1” and circled it beside all the other statistics on the easel. Then I stated:]Q. Have all of your opinions been to a reasonable degree of medical certainty?A. Correct, yes.

I immediately sat down, and must say that the defense cross exam was deflated and I left nothing of substance for the defense attorney to score. After 10 days of trial, and a full day of jury delib-eration, the jury returned a substantial plaintiff’s verdict, finding that workplace carcinogens had contributed to cause my deceased client’s lung cancer. Find a way to infuse the dangerous cross exam that concerns you—into your own direct exam--and you are home free. “Leave nothing on the table” for the defense.

Motion in Limine to exclude statistical evidence as misleading or irrelevant

Statistical evidence in injury cases has been ad-dressed by the Virginia Supreme Court over many decades. Holley v. Pambianco, 270 Va. 180, 613 S.E.2d 425, 428 (2005) was a medical malpractice where the defense attorney cross-examined plain-tiff’s expert witness on colonoscopies, over objec-tion, to the effect that perforations cases occur at the rate of 1 per 10,000 in colonoscopies, and 13 per 10,000 in polypectomies, similar evidence was offered by other defense medical experts, despite the fact that plaintiff’s counsel elicited evidence that the statistics contained no breakdown between those cases involving perforations caused by neg-ligence and those that did not. The court reversed the admission of the statistical evidence because “raw statistical evidence is not probative of any issue in a medical malpractice case and should not be admitted.” Indeed, if you think about it 9,999

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procedures could be done properly and one could be done grossly negligently and the background statistics do not make any difference in whether the one grossly negligent procedure was in fact caused by gross negligence. In Holley, the court also cited to another 2005 decision which deter-mined that “evidence of a raw number of events, without describing their circumstances, can be misleading or confusing to the jury.”

The court also favorably cited back to its vener-able 1945 decision involving personal injuries due to a fall at a grocery store. Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 32 S.E.2d 685 (1945). Evidence introduced that 1000 customers per day visited the grocery store without injury was inadmissible as misleading and as throwing no light upon the facts of the case before the jury as to whether specific negligence on behalf of the business premises occurred.

Using these decisions, plaintiff’s counsel should file a motion in limine to exclude statisti-cal evidence that is not probative to prove that the negligence of the subject defendant was less or more likely to have occurred.

One might ask, why did I not file a motion in limine to exclude the cigarette smoking statistics in my case above referenced? My own witnesses did not challenge the legitimacy of the statistical evidence, but based on the teachings in Holley, in retrospect, that is not determinative. I prob-ably could have moved to exclude the statisti-cal evidence. On the other hand, jury research I conducted made it clear that I had to overwhelm-ingly convince the jury one way or the other that cigarette smoking (and its prevalance as a cause of lung cancer) was not the sole or only cause of my client’s lung cancer. It was the “elephant in the room” no matter what I did. I concluded that this evidence actually hammered home the legitimacy of my case and the statistics helped us, rather than hurt us.

Richard N. Shapiro is a VTLA member prac-ticing with Shapiro, Lewis & Appleton, PC in Virginia Beach, is Board Certified as a Civil Trial Advocate by the National Board of Legal Specialty Certification (MA), and practices injury law exclusively from offices in Virginia Beach, and Elizabeth City, NC . He is former chair of the Railroad Section of the AAJ, and co-author of “Railroad Health & Safety; A Litigator’s Guide” 72 Am Jur Tri-als 1 (1999).