Preparing Plaintiff’s Experts
by Jeffrey N. Roy
The Role of the
Expert in Litigation
Selection and Retention of Experts
in Multiple Chemical Sensitivities Cases
Sources for experts
Internet resources on
Experts Qualifications to Testify
Initial Preparation of
Evidence by Experts
Outline of Examination of
Plaintiff’s Treating Physician
Suggested Further Reading
The Role of
the Expert in Litigation
Expert witnesses have become prominent players in the courtroom.
The fact finder in a case needs expert testimony to help it
reach decisions in cases and to guide it to the truth. Expert
testimony is useful in allowing the fact finder to figure out
what happened in a case, when what happened is beyond ordinary
experience. The Federal Rules of Evidence embody a "strong and
undeniable preference for admitting any evidence having some
potential for assisting the trier of fact." DeLuca v. Merrell
Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990).
"Rule 702, which governs the admissibility of expert testimony,
specifically embraces this policy," United States v.
Velasquez, 64 F.3d 844, 849 (3d Cir. 1995), and has a
liberal policy of admissibility. In re Paoli R.R. Yard
Litigation ("Paoli II"), 35 F.3d 717, 741 (3d Cir. 1994).
Together, Rules 702 and 104(a) instruct the district court in
determining the admissibility of expert testimony. Rule 702,
which is the same as Rule 702 of the Massachusetts Proposed
Rules of Evidence, provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Under Rule 104(a), the district court makes preliminary
determinations whether the proposed expert witness is qualified
and whether the testimony to be given is admissible under Rule
702. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
113 S. Ct. 2786, 2796 (1993). This preliminary task ensures that
the testimony meets a minimum threshold of reliability and
relevance. Id. at 2795; Velasquez, 64 F.3d at 829.
The same rules govern the admissibility of expert testimony in
Massachusetts State courts.
The trial judge has a significant function to carry out in
deciding on the admissibility of a scientific expert's opinion.
If the process or theory underlying a scientific expert's
opinion lacks reliability, that opinion should not reach the
trier of fact. Consequently, the judge must rule first on any
challenge to the validity of any process or theory underlying a
proffered opinion. ''This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue."
Id. at 2796. The judge thus has a gatekeeper role.
Commonwealth v. Lanigan, 419 Mass. 15 (1994) (quoting
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct.
Experts essentially have two functions in litigation, consulting
and testifying. The consultant expert can help counsel decide
whether to take a case, and if the case is accepted, what
theories of liability to allege in the complaint. Consultant
experts may also help in framing discovery, and may also be used
to prevent a trial expert from developing information harmful to
the case, which may be discoverable by opposing counsel.
Opposing counsel has a much broader right to discovery from a
trial expert than from a consultant expert.
Trial experts will be used to present opinion testimony to the
fact finder. In this case, when selecting, preparing and
presenting trial expert testimony, heavy consideration must be
given to these basic rules of usefulness and admissibility.
During the preparation of a trial expert, careful attention must
be given to the discovery rules for experts. For example, under
the Federal Rules of Civil Procedure Rule 26(a)(2)(B), be
prepared to provide the following information concerning your
1. A complete statement of opinions to be expressed and the
basis and reasons therefore;
2. The data or other information which s/he considered in
forming the opinions;
3. Any exhibits to be used as a summary of or support for
4. The expert’s qualifications;
5. A list of his/her publications within the preceding ten
6. Compensation to be paid for the study and testimony;
7. A listing of any other cases in which the expert has
testified at trial or by deposition within the preceding four
years. The testimony listing should include the following:
b. Trial or deposition testimony
e. Docket Number
If all rules are not complied with in disclosure of report, the
court can prevent the expert from being introduced to the case.
Selection and Retention of Experts
in Multiple Chemical Sensitivities Cases
Before retaining any experts, make an assessment of the case’s
value, budget proposed expert expenditures, and carefully
evaluate which experts will be necessary. In these cases, as in
any personal injury case, you will need medical experts such as
1. Treating physicians;
2. Occupational medicine specialists;
3. Clinical conditions of concern, such as:
In addition to medical experts, you will need to consult with
general toxic tort causation, liability, and damages
specialists, such as:
3. Geneticist or teratologist
4. Occupational medicine specialist
5. Exposure assessment experts such as:
a. Industrial hygienist
c. Laboratory chemist
d. Governmental personnel
e. Environmental engineer
h. Chemical engineer
6. Liability Experts (“Breach of Duty”)
a. Chemical applicator
b. Process engineer
c. Chemical engineer
d. Government inspector (for example, OSHA or state agency)
e. Human factors analyst
7. Damages Experts
b. Real estate appraiser
d. Life care planner
e. Rehabilitation psychologist
f. Vocational rehabilitation specialist
Sources for experts
Experts can be located through various sources, including the
1. Other attorneys
a. Association of Trial Lawyers of America (ATLA)
b. Jury verdict reporters
c. Philo, Lawyers Desk Reference (8th ed. 1996)
2. General sources
a. Experts revealed through academic literature review (for
example Medline and Toxline)
b. Local colleges and universities
d. Expert referral services
Internet resources on
The Internet offers lawyers a wealth of data -- law data,
business data, scientific data, demographic data. And very
little of it is surcharged beyond the costs of accessing the Net
and the time of finding and acquiring the information.
Information comes in many forms other than the packages we
objectify as books, documents, or even data. The Internet offers
powerful mechanisms for asking questions and receiving answers,
for entering into a more extended consultation with an expert,
and for finding the right person or people. Here are some of the
sources I have turned to when considering expert testimony and
preparing for a case, together with the relevant Internet
1. LERN is the On-Line service of the Legal Research Network.
The mission of LERN is to network attorneys and expert witnesses
in an on-line environment, using the online technology to help
the legal profession find experts more economically than with
2. The information and links at
http://knock-knock.com/forensic.htm are designed to provide
a free and centralized resource on the business, marketing, and
research uses of the Internet by both lawyers and expert
witnesses. It includes information from a seminar in Palm
Springs, California at the 13th Annual Conference of the
National Forensic Center. The site contains an active hyperlink
version of the handout from the seminar, which contains a list
of useful Net sites and resources.
3. Registered Nurse Experts, Inc. is an association of
approximately 80 specialists who represent all areas of
healthcare. It takes pride in providing experts in any field of
nursing, radiation, physical, occupational, respiratory and
parenteral therapy, nutrition, pharmacy and more. Its goal is to
assure satisfaction by providing responsive professional
services. If you would like to learn more about its services,
please visit the web site:
http://www.rnexperts.com or you can contact RNE at 1 800
4. Try http://www.asme.org:
The American Society of Mechanical Engineers (ASME) has a number
of committees that produce various codes and standards.
5. What's on the Web & the Internet for Experts: Try Zeno's
Forensic Page at
6. The Forensic Consultant's Association home page address is
7. To all of you who are interested in the construction area -
and specifically construction defects I would like to suggest
you check the following web sites:
You will find information and links to a wealth of data and
direct Q&A on-line.
8. If you ever need a toxicologist, check website:
9. The American Society for Testing and Materials (ASTM) has
recently put up its homepage at
http://www.astm.org. The page includes general information
about ASTM, as well as an on line application form.
10. Attorneys Seeking Expert Witnesses. Refer to Home Page:
11. Are your attorneys are in need of data about state sanctions
and disciplinary actions about any medical provider (physicians,
nurses, dentists, chiroprators, etc.) in the US to help them
develop a medical malpractice or personal injury case? The
Managed Care Advisory Group can supply this data on-line at a
very low cost. See it at
12. Do you want a single BOOKMARK that contains over 30,000
legal resource links? LawResearch's FREE TEST DRIVE, of Version
2.0 with 20,000 links is available at
13. The mission of the United States Environmental Protection
Agency is to protect public health and to safeguard and improve
the natural environment - air, water, and land - upon which
human life depends. Check out its Web site at:
14. As the world's largest trial bar, the Association of Trial
Lawyers of America (ATLA) promotes justice and fairness for
injured persons, safeguards victims' rights -- particularly the
right to trial by jury -- and strengthens the civil justice
system through education and disclosure of information critical
to public health and safety. With about 60,000 members
worldwide, and a network of U.S. and Canadian affiliates
involved in diverse areas of trial advocacy, ATLA provides
lawyers with the information and professional assistance needed
to serve clients successfully and protect the democratic values
inherent in the civil justice system.
15. New Junk Science Homepage at
for the latest in public health and environmental junk science!
a. What's hot!
b. What's current!
c. Special guest commentary
d. The junk science hall of shame (the truly infamous!)
e. The junk science pennant race (institutions and funders)
f. Running roster of junk scientists (They name names)
16. National Technical Information Service. The Official
Resource for U.S. Scientific, Technical, Engineering, and
17. ABA's Tort and Insurance Practice Section (TIPS) The Section
is the only national professional group to bring together
plaintiffs attorneys, defense attorneys and insurance company
counsel for the exchange of information and ideas. In this
unique non-adversarial setting, TIPS members have the
opportunity to interact on a personal basis with nationally
renown experts in tort and insurance matters.
18. FindLaw Index of Legal Resources:
19. Lawyers Weekly: Over 125,000 Lawyers Across the USA Read
Lawyers Weekly Newspapers:
20. Center for Disease Control and Prevention:
21. Expert Witness Mailing List: The Expert List is an Internet
mailing list conference for the various technical professionals
that engage in expert witness activities. If you perform expert
witness services now, want to start offering your services as an
expert witness, are in the legal profession and use expert
witnesses, then this conference is for you.
To join the list, simply send an e-mail message to:
and place the phrase
SUBSCRIBE EXPERT-L (your e-mail address)
in the message body. A file will be e-mailed back to you giving
more information about the list, and how it works.
Checking Experts Qualifications to Testify
When you have located and identified an expert you must then
analyze whether this person is qualified to do job you want. In
performing that analysis, attempt to do the following:
1. Review expert’s publications
2. Get clear understanding of billing practices
3. Check with other attorneys or experts
4. Check on expertise regarding chemical of concern
5. Judge the expert as a witness
a. Consider articulation, credibility, sincerity,
authoritativeness, and strength on cross-examination
b. Review prior transcripts of testimony
c. Unearth any skeletons in expert’s closet
d. Find out how often expert testifies for plaintiffs and
You should retain your experts early on in the litigation. If
there is a site to be viewed and examined, accompany the expert
on the initial visit and learn from the experience. Have the
expert give you a guided tour of the place and substances in
issue and describe the testing that will be performed at the
Also, at the outset, make sure that the expert is comfortable
with the qualifying words for the legal standards regarding
admissibility of evidence. An expert must testify to
probabilities, not possibilities or conjecture. Therefore it is
important that opinions be expressed in terms of "reasonable
certainty or probabilities." The actual phrasing of an opinion
need not follow any rigid formula. In Massachusetts, almost any
language is permissible as long as the court interprets it as
meaning that the occurrence is more probable than not. See e.g.
1 Mottla, Proof of Cases in Massachusetts, §349 (3rd ed. 1995);
Afienko v. Harvard Club of Boston, 365 Mass. 320, 333-334 n.6
(1974); Sevigny's Case, 337 Mass. 747 (1958); Kerr v. Palmier;
325 Mass. 554 (1950); Josi's Case, 324 Mass. 415 (1949);
Duggan's Case, 315 Mass. 355 (1944); DeFlippo's Case, 284 Mass.
In a product liability case specifically, there is no
requirement that plaintiff prove with precision the defect which
caused an injury. Carey v. General Motors Corp., 377 Mass. 736,
740 (1979). Further, the precise manner in which the harm occurs
does not have to be foreseen. Solimene v. B. Grauel and Co.,
K.G., 399 Mass. at 798. Instead, plaintiff can fully satisfy his
burden of proof by showing that there was a probability that the
harm which occurred was due to one or more defects for which
defendant was responsible. Id.
The holding and analysis in Carey v. General Motors Corp., 377
Mass. 736 (1979) is compelling in this regard. In Carey,
plaintiff's case rested largely on the testimony of a mechanical
engineer. He described three defects that could have caused the
plaintiff's injuries. In particular, the expert testified that
"since each defect would cause the same occurrence in a similar
way," he could not identity with certainty the defect which
caused the injuries Id. at 740. Each defect, in the expert's
opinion, was as probable as the other, and "surely it had to be
one of them" which caused plaintiff's injury. Id. Against this
backdrop the Carey court ruled that the evidence was sufficient
to satisfy plaintiff's burden. Id. at 740-741. In so doing, the
court reasoned that jury verdicts may not be based on conjecture
or surmise; however, because plaintiffs are "not required to
eliminate entirely all possibility that the defendant's conduct
was not a cause....," proof that the harm was probably due to
causes for which defendant was responsible is sufficient. Id.
See also Solimene, 399 Mass. at 797-798 (plaintiff advanced
alternative theories of design defect---burden of proof
You should maintain your own library on the expert’s subject
matter. For one, it will help you learn and become somewhat
fluent in the topic in question. Additionally, it is far less
expensive to supply an expert with material than it is for
multiple experts to hunt for materials on their own. In that
regard, ask your experts what texts or materials are
authoritative in the field. Authenticating these texts will
enable you to read from them and offer them into evidence during
the trial of the case. In addition, be aware of any scientific
studies or compilations that may be independently admissible if
properly authenticated by your expert.
You must review all medical records and exposure records, index
them, and supply them to the expert for review. During the
preparation phase, the expert will assist you in understanding
this chemical, engineering, damage, and medical information. The
expert will also help in case development, including initiating
and responding to discovery. At some point, the expert will also
be able to provide testimony by affidavit (at the summary
judgment stage), deposition, and eventually at trial.
Before having the expert testify, be certain that you understand
the bases for the expert opinion. Look for the following when
evaluating and considering the bases for your expert's
1. Toxicological studies performed on animal populations;
2. Epidemiological studies;
3. Published, peer-reviewed data;
4. Data developed from case discovery;
5. Governmental reports and records;
6. Independent testing and analysis
You should be absolutely certain of all of the expert’s opinions
before making disclosure. You should also be cautious about
having your expert formulate opinions early on in the case.
Often times, in a rush to judgment, we request opinions from
experts before giving them the opportunity to review all of the
case data. This makes great father fodder for cross-examination
of the expert by opposing counsel. In that regard, you should
avoid securing written reports from the expert early on in the
case (if at all), unless submission of reports is required. Any
preliminary reports should be communicated to you orally if
possible. This helps you avoid the danger of having an expert
committed to an opinion without first having had an opportunity
to review all of the case data.
You should meet with the expert prior to disclosure to go over
the theories of liability and expected expert testimony. Make
sure the expert is aware of and familiar with adverse studies
and materials in the case. Make sure that you expert is familiar
with the pre-exposure medical history of your client. Discuss
the issues that will arise during cross-examination, including
treatises which may contradict your expert, prior experiences,
prior engagements of your expert, income from expert witness
activity, and how to deal with a lack of hands-on experience, if
applicable. Finally, make sure that your expert's opinion(s) are
tightly confined and do not drift beyond areas of expertise.
As the trial approaches, your expert can assist you in the
preparation of demonstrative evidence. As expert testimony can
get rather dull, be certain to include graphic reproductions
that can communicate effectively to a lay audience. For example,
I have spent many hours with doctors and medical illustrators in
the same room discussing models, pictures, x-rays, and overlays
which clarify the anatomical issues in the case. Allowing the
doctor to communicate directly with the medical illustrator
produces the most effective graphics.
At trial, your case will be most persuasive if your expert is a
teacher. You stand a better chance of winning the case if the
jury fully understands the issues your expert is addressing.
Your interrogation of the witness should facilitate and enhance
this role by the choice and structure of the questions. At the
same time, you must strive to keep the testimony simple. In that
regard, try to keep the testimony of the expert focused and
organized around one or two unifying themes.
While the use of hypothetical questions is frowned upon by many
modern practice commentators, when carefully structured and
used, they can be an effective tool in a complex case. The
hypothetical question can be used to summarize the evidence
persuasively, and to give helpful repetition to the essential
points in the case. The hypothetical question is not necessary
under current practice rules, but may be helpful at times in
clarifying the issues for the jury. For example, in an ozone
contamination case, I found the following hypothetical helpful
in summarizing the evidence for the jury:
Mr. _____________, I am now going to ask you to consider certain
facts that are contained within the evidence of this case.
During December 1987, the client's home was equipped with two
___________ electronic air cleaners. One controlled the air on
the first floor of the home, one controlled the second floor. On
June 27, 1988, representatives from ____________ tested the
client's home for the presence of ozone gases. For the three
days prior to their arrival, the electronic air cleaners had
been constantly running and filtering the household air. After
testing on June 27, 1988, on the first floor of the home, the
defendant company found normal levels of ozone in the air.
Outside of the home, the defendant company found normal levels
of ozone in the air. On the second floor of the home, and in the
master bedroom specifically, the defendant company found high
levels of ozone in the air. Those in that area of the home
reported smelling ozone. When the air cleaner controlling the
upstairs are was turned off, the level of ozone decreased. When
the air cleaner was turned on again, the ozone level increased.
Upon further examination, it was found that the air cleaner had
a missing ionizer wire and two bent collector blades which were
arcing. The arcing was constant and resulted from the closeness
of the blades which produced 4,000 volts each. Following testing
on June 27, 1988, the electronic air cleaner and ventilation
system were deactivated for the evening, and the next morning
the level of ozone had fallen to normal levels. Now, please
consider those facts, along with the results of the testing done
in your lab on the electronic air cleaner. Tell us whether you
are able to reach an opinion, with a reasonable degree of
scientific certainty, on whether the electronic air cleaner was
defective and unreasonably dangerous.
Q. What is your opinion?
Q. What is the basis for your opinion?
The hypothetical was drafted prior to trial with the assistance
of the expert. The hypothetical was used in that case in order
to assist the expert and make him more comfortable in rendering
the necessary opinion testimony. While I would not advocate the
use of the hypothetical question in every case, be aware that it
can be used and can be helpful in the appropriate circumstance.
Finally, another note about causation issues is important here
since your experts will provide the critical testimony on this
issue. As noted above, the plaintiff in a tort case must prove
by a preponderance of the evidence that the injury is the result
of the defendant's negligent act or failure to act. This
standard is often more burdensome for toxic tort victims than
for other plaintiffs. Most toxicants do not produce unique
injuries. Since the background rates for the types of diseases
associated with toxic exposures are not insignificant,
establishing that the plaintiff's illness resulted from the
exposure is difficult. Many plaintiffs will be able to show only
that the exposure increased the risk of acquiring the disease.
Despite the near impossibility of establishing that the exposure
is the legal cause of harm, most courts continue to use the
preponderance of the evidence standard. Some courts, however,
have departed from this standard in latent disease cases. For
example, in Allen v. United States, 588 F. Supp. 247, 322 (D.
Utah 1984), the court proposed shifting the burden of proving
causation to the defendant if the plaintiff can show that the
defendant created a risk to an identifiable group and the
plaintiff is a member of that group and developed a disease
consistent with the risk created by the toxic exposure. While
such a rule has not been adopted in Massachusetts, it is one
Evidence by Experts
During the course of the litigation, your expert may be required
to examine and possess valuable evidence in the case. The
spoliation or destruction or material alteration of evidence in
a case can result in severe potential sanctions. In Nally v.
Volkswagon of America, Inc., 405 Mass. 191 (1989), the
Massachusetts Supreme Judicial Court confronted this issue
directly, and announced the following rule:
We conclude that, in a civil case, where an expert has removed
an item of physical evidence and the item has disappeared, or
the expert has caused a change in the substance or appearance of
such an item in such circumstances that the expert knows or
reasonably should know that that item in its original form may
be material to litigation, the judge, at the request of a
potentially prejudiced litigant, should preclude the expert from
testifying as to his or her observations of such items before he
or she altered them and as to any opinion based thereon. The
rule should be applied without regard for whether the expert's
conduct occurred before or after the expert was retained by a
party to the litigation. The reason for the rule is the unfair
prejudice that may result from allowing an expert deliberately
or negligently to put himself or herself in the position of
being the only expert with first-hand knowledge of the physical
evidence on which expert opinions as to defects and causation
may be grounded. Furthermore, as is possible in this case, the
physical items themselves, in the precise condition they were in
immediately after an accident, may be far more instructive and
persuasive to a jury than oral or photographic descriptions of
them. As a matter of sound policy, an expert should not be
permitted to intentionally or negligently destroy or dispose of
such evidence, and then to substitute his or her own description
Id. at 197-198.
Outline of Examination of
Plaintiff’s Treating Physician
Now that the trial is nearing, you need to meet with your expert
to prepare for his/her actual trial testimony. The following
outline gives you a general description of the topics with your
treating physician. Use it as a guide an your preparation
meeting with the expert and tailor it to the specific issues in
1. Date and state of medical license,
2. When s/he attended school and medical school, including the
dates of graduation;
3. where s/he did internship and residency;
4. what specialized training was received;
5. a description of the doctor's specialty (with explanation of
6. the witness' practice including military service;
7. hospital affiliations and the nature of each;
8. any membership in medical associations and academics;
9. any medical school affiliations;
10. the doctor's certifications including a description of the
Board and its certification requirements
11. any publications, professional journals or texts written;
12. any professional honors received.
B. MEDICAL HISTORY
1. Did the doctor conduct an examination of the plaintiff?
2. Did the doctor take a history at that time from the
3. Did the doctor have medical records available to review?
4. What is the purpose of taking a history?
5. Based upon his review of the records and interview of the
plaintiff what was the history that he obtained. (explain terms)
6. The history should include:
a. statistical data (name/age etc.)
b. any significant past medical history
c. the plaintiff's chief complaints
d. character of onset and the chronological development of
symptoms including cause, character, severity and location
1. Did the doctor conduct an examination?
2. What comprised the examination?
3. Significant findings upon examination
4. Were any diagnostic tests performed?
a. have the doctor explain the test and findings on exam.
b. have the doctor explain the significance of any positive
5. Medical illustration
i. Doctor, would it assist you in describing the examination you
made by using or referring to a chart or diagram or model?
ii. Show exhibit and ask if it is a fair and accurate
reproduction and representation of a ___________?
iii. Would it be of assistance to you in communicating to us and
in answering questions I have asked you about your examination?
1. Following your examination and history, did you render a
2. What was the diagnosis?
3. What was the basis of your diagnosis?
E. PRESENT CONDITION
1. Doctor, based upon your most recent examination of the
plaintiff do you have an opinion to a reasonable degree of
medical certainty as to the plaintiff's present functional
disability for medical condition)?
2. What is that opinion?
3. What is the basis of the opinion?
4. If the plaintiff has a measurable functional loss, ask the
doctor how the loss was measured? What is the significance of
such a loss of function to a person's ability to use the injured
body part or to function.
F. THE CAUSE OF THE INJURY
1. Based upon your examination of the plaintiff, history
obtained, treatment of the plaintiff and review of the
plaintiff's medical records, your education, experience and
training, do you have an opinion to a reasonable degree of
medical certainty as to the cause (proximate cause) of the
plaintiff's injuries/disabilities/loss of function?
2. What is the opinion?
3. What are the reasons for the opinion?
G. PROGNOSIS AND PERMANENCY OF INJURY
1. Do you have an opinion...as to the plaintiff's future ability
to work/function/use the injured limb?
2. Doctor what is the plaintiff's prognosis?
3. Can we expect the disability to improve/get worse?
4. Inquire into:
- future pain
- future complications
- any future deterioration which would be expected
- the need for future medical treatment (and estimated cost)
- plaintiff's future disability and/or functional loss
For more information on specific testimony to be elicited from
your other experts, I refer you to the Rossi text entitled
Expert Witnesses which his cited in the Suggested Further
Reading section of this paper. The book provides the practical
framework for the use of many different types of experts,
including specifically, experts in environmental, toxic tort, or
drug cases. The book is available from the American Bar
Suggested Further Reading
1. Rossi, Expert Witnesses (American Bar Association 1991).
2. Philo, Lawyers Desk Reference (8th ed. 1996).
3. Harr, A Civil Action (Random House 1995).
4. Kirk R. Presley, “Stalking the Silent Killer: Carbon
Monoxide,” TRIAL, August 1996, page 36.
5. Larry E. Coben, “The Daubert Decision: Gatekeeper or
Executioner?” TRIAL, August 1996, page 52.
6. Commonwealth v. Lanigan, 419 Mass. 15 (1994).
7. Rotman v. National R.r. Passenger Corp., 41 Mass. App. Ct.
8. Mark Gottlieb and Richard A. Daynard, “Blowing Smoke Out of
the Workplace,” ” TRIAL, August 1996, page 24.