ALI-ABA Course of Study Asbestos Litigation in the 21st Century. November 30 - December 1, 2006 New Orleans, Louisiana

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1 709 ALI-ABA Course of Study Asbestos Litigation in the 21st Century November 30 - December 1, 2006 New Orleans, Louisiana Evaluating the in Product Identification Cases By Professor Charles A. Weaver, III Trent Terrell Amanda Holmes Baylor University Waco, Texas

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3 711 Evaluating the Reliability of Witness Memories in Product Identification Cases By Charles A. Weaver, III, Ph. D. Trent Terrell Amanda Holmes Baylor University Dept. of Psychology and Neuroscience Waco, Texas During a recent asbestos trial (see Hampel, 2005), the fifty-five-year-old daughter of a mesothelioma victim claimed that she remembered the brand of joint compound her father had been using during a distant project, and was able to describe its container in some detail. When a defense attorney asked her if she recalled the type of paint her father had been using while working on the same project, she replied with an incredulous No, and then added, It was thirty-five years ago. That the capability to recall a brand of paint used thirty-five years ago should not differ from the capability to recall a brand of joint compound used thirty-five years ago seems to have escaped this witness a notion that may often be unappreciated by jury members as well. On the other hand, there may be some situations where witnesses might be able to recall brand names of products accurately when the person had some compelling reason to encode the brand name to begin with, and the retention interval was short. During the past few decades, hundreds of thousands of wrongful death and personal injury cases have been filed alleging exposure to toxic substances, particularly asbestos. Since significant changes in working conditions have been made in recent years, most of these exposure cases involve events that happened years ago. In some of these cases, work records exist which clearly document that certain products were in use at the place and time in question. In many others, however, no such records exist. In these cases, those in the legal system are often forced to rely solely on the memory of the witness. Furthermore, reports of leading and suggestive techniques, such as refreshing the memory of witnesses with photographs or list of products, are common (see Biederman, Korosec, Lyons, & Williams, 1998). Despite the widely acknowledged problems with eyewitness memory in criminal cases, the reliability of workers memories in civil cases is rarely challenged. As scientists who conduct research in the accuracy (and malleability) of memory, this unquestioning acceptance of eyewitness recollection of remote events strikes us as curious. At the outset, we should make several important distinctions. In the vast majority of cases we have reviewed, it is impossible to determine the absolute accuracy of a witness s recollection; definitive evidence (e.g., shipping records, work orders, bills of sale) is generally unavailable. Nor are we in a position to comment on the credibility of a witness that is the role of the jury. Our role, as we see it, is to offer expert opinions about the reliability of the offered testimony. In a nutshell, we address the following question: are factors present in a particular case that would compromise the reliability of the recalled testimony? These expert opinions, in turn, should be useful to the members of the jury during their deliberations. p. 1

4 712 The scientific investigation of memory began a little more than a century ago with the work of Hermann Ebbinghaus (Ebbinghaus, 1913/1885), the first to apply the scientific method to the study of memory. Serving as his own subject, Ebbinghaus learned lists of novel items with which he had no prior association. After learning one list, he would set this list aside, and proceed to learn a new list. After some predetermined delay, ranging from a few minutes to many weeks, he would return to the previously learned list and test his memory for these items. The results he obtained are shown in Figure 1. Essentially, Ebbinghaus found that his memory for previously learned information showed a dramatic and rapid pattern of forgetting. After less than an hour, memory accuracy dropped below 50%. At longer intervals the decline was less steep, but continued throughout the duration of his testing. Figure 1. The Ebbinghaus forgetting function (from Ebbinghaus, 1913/1885). Accuracy of memory declines predictably as a function of the amount of time elapsed since study. Subsequent research has confirmed Ebbinghaus s findings. The pattern displayed in Figure 1, for example, has been replicated with many different kinds of memorized material. Harry Bahrick, in particular, has investigated memory for material learned in school over extremely long intervals--in some cases, as long as 50 years. Bahrick has found Ebbinghausian forgetting functions in second language vocabulary acquisition (Bahrick, Hall, Goggin, & Bahrick, 1994), retention of high school mathematics (Bahrick & Hall, 1991), and names and faces of classmates (Bahrick, Bahrick, & Wittlinger, 1975). (He tests many of his subjects at high school reunions). Figure 2 shows the forgetting function measured by Bahrick in his studies of retention of foreign language learned during high school--in some cases, retention was tested over a 50-year interval. The pattern is virtually identical to that found by Ebbinghaus, and reflects perhaps the most profound generalizations one can make about memory memories decline predictably and dramatically with the passage of time. p. 2

5 % 90% 80% 70% % Retention 60% 50% 40% 30% 20% 10% 0% Years since Learning Figure 2. Long-term retention of Spanish vocabulary. (Bahrick, 1984) II. Does Expert Testimony in Eyewitness Memory meet Daubert criteria? Although different states use different criteria for admissibility, most involve some examination of the following questions: Is the theory or technique falsifiable, refutable, and testable? Has the theory been subjected to peer review and publication? Does the research have a known or potential error rate? Is the theory and technique is generally accepted by a relevant scientific community? Research on memory and cognition meets each of these standards p. 3