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August 1, 2019 by Mindee J. ReubenDownload PDF

Hot Tubbing in American CourtsMindee J. Reuben

It’s not what you are thinking. It’s not even a pitch for a salacious television show. Rather, it refers to a way of eliciting expert testimony that is popular in Australia and seems to be creeping into American courtrooms.

Hot tubbing refers to a scenario where all the experts in a case are brought together at trial to dialogue with each other and the judge in a non-jury case. Generally speaking, the experts exchange reports and present a joint submission that identifies the areas of agreement and disagreement. The judge guides the discussion, and the experts are free to question each other. Attorneys generally do not play a central role in hot tubbing.

The premise behind hot tubbing is that it removes the bias inherent in having an expert present evidence that favors the party presenting it. It also purports to reduce the often less-than-pleasant experience of cross-examination, discouraging highly qualified from experts from assisting the court in resolving litigation. Criticisms of the technique include that it places too much reliance on the judge’s ability to understand the expert issues (which are often economic or highly technical) and ferret out inaccuracies, and that an advocate loses the ability to advance certain arguments and control the narrative of the case.

Although hot tubbing may seem anathema to the United States’ adversarial system, it does not appear to be prohibited by the Federal Rules of Evidence or the Federal Rules of Civil Procedure. Federal Rule of Evidence 102 provides that “[the] rules [of evidence] should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Other evidentiary rules permit judges to control the order of proof, as well as to call and examine witnesses. Fed. R. Evid. 611, 614. Rule 16 of the Federal Rules of Civil Procedure also gives the courts broad discretion in expediting resolution, managing the litigation, and other matters. Fed. R. Civ. P. 16.

In fact, hot tubbing has been used in some American courts, both in the pretrial and trial stages of litigation. There is, of course, variety in how courts approach hot tubbing in the United States. For example, sometimes hot tubbing occurs without any notice to the parties or experts. Attorneys may be permitted to make opening statements about their positions (even though the attorneys are not permitted to cross-examine the experts). And hot tubbing may even be used where the parties have already introduced expert evidence.

Hot tubbing has even been used in connection with class certification proceedings. For example, in In re Polyurethane Foam Antitrust Litig., MDL 2196 (N.D. Ohio), Judge Zouhary elected to use hot tubbing instead of holding a more traditional class certification hearing with cross-examination of witnesses. There, the court identified a series of questions that it wanted to address in advance of the hearing. The court permitted each party to make an opening statement regarding as to whether class certification was appropriate, swore in the expert witnesses, and then proceeded to engage in a conversation with the experts and counsel centered around the court’s list of questions. Judge Zouhary, in an article written about the experience, noted that he “found the experience rewarding and will not hesitate to utilize it again in the right case.”

Just last week, another court indicated its interest in using hot tubbing in another antitrust matter, In re Capacitors Antitrust Litig., MDL 2801 (N.D. Cal.). Judge Donato of the Northern District of California suggested to counsel that hot tubbing might be appropriate to resolve certain matters in advance of trial (perhaps for Daubert challenges). Given that the direct purchaser case may proceed to trial in February 2020, we may yet see some more hot tubbing in U.S. courts in the near future.