Epistemic and evaluative expressions in the product liability cases

on the example of Daubert v. Merrell Dow Pharmaceuticals, Inc.

1. INTRODUCTION

The present article investigates the epistemic and evaluative linguistic patterns occurring in
the United States court opinion issued in a widely known case, Daubert v. Merrell Dow
Pharmaceuticals, Inc., concerning liability for the toxic pharmaceutical product. The
pharmaceutical involved in the case was known under the market name Bendectin.
The author decided to review this particular case since it offers a perfect ground for the
analysis of the subjective language employed by the American judges due to numerous
controversies and publicity involved throughout the entire proceedings. Being granted a
summary trial1 by the District Court, the case was heard at the Court of Appeals for the Ninth
Circuit, which agreed with the decision of the lower instance, concluding that ‘the expert
opinion based on a scientific technique is inadmissible unless the technique is “generally
accepted” as reliable in the relevant scientific community’2. In analyzing the case’s grounds
and circumstances, various jurists have attempted to describe the relationships between the
science and the law as two conflicting and irreconcilable domains (Cranor 2006). The conflict
resides first and foremost in the very nature of law versus science. Whilst scientists seek to
understand the world as they find it, with all its uncertainty and complexity, law must be
based on simplicity and draw clear demarcating lines between specific categories and
boundaries. In the words of Schuck:
Because much law must be predicted, understood, and applied by many
ordinary people with limited resources, simplicity is often a compelling
legal virtue. Law cannot afford to be as nuanced as the realities it seeks to
shape; it necessarily draws lines and creates categories that force many legal
decisions into a binary mold; one is either in or out of the category, and it
matters a great deal which. 3

As dispensers of justice, courts need to be aware of the

tension between these two institutions. This purported conflict has also led to the
establishment of certain criteria of what should be accepted as scientific knowledge in the
course of civil procedure. In general, the criteria included theories based on evidence and
expert testimony from scientists. If e.g. the claim initiated by the plaintiff had not passed peer
review nor was accepted by the scientific community, it could not be considered as valid.
Thus, Daubert v. Merrell Dow Pharmaceuticals, Inc. is often said to constitute a precedent for
the subsequent cases where the admissibility of scientific evidence is involved.
For the purposes of the present article however, the above case shall serve as a departure point
for the investigations concerning stance-taking techniques and epistemic expressions used by
1
Summary jury trial is an alternative dispute resolution technique, increasingly being used in civil disputes in the United
States. In essence, a mock trial is held: a jury is selected and, in some cases, presented with the evidence that would be used
at a real trial. The parties are required to attend the proceeding and hear the verdict that the jury brings in. After the verdict,
the parties are required to once again attempt a settlement before going to a real trial.
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3
the American judiciary. One might gain insight into how the decision-makers approach non-
supported scientific claims in determining principles governing evidence admissibility.
Daubert v. Mercell Dow Pharmaceuticals are considered a landmark case that led to a
breakthrough in the understanding of what scientific evidence is and how to interpret it. The
main consequence was the exclusion of the so called "junk science" or "pseudoscience", as
well as new or experimental techniques and research that were previously deemed admissible.
Henceforth, a judge would be bound by some restrictive measures when deliberating upon a
case involving scientific proofs. To these factors we may include:
(1) whether the theory or technique in question can be and has been tested;
(2) whether it has been subjected to peer review and publication;
(3) its known or potential error rate;
(4) the existence and maintenance of standards controlling its operation; and
(5) whether it has attracted widespread acceptance within a relevant scientific community.4
2. PRODUCT LIABILITY – COMPARATIVE BACKGROUND
Daubert v. Merrell Dow Pharmaceuticals, Inc. is an example of the law of torts, specifically
the so called toxic torts, or product liability. Product liability should be considered under
delicts or “torts”, the latter being an Anglo-Saxon term which concerns the responsibility of
the wrongdoer, or tortfeasor, who has failed to exercise due care insofar as he/she exposed the
injured party to a loss, most often physical injury or intangible harm, pain or suffering. It
therefore constitutes a type of involuntary obligation arising not out of the parties’ free will
(as opposed to voluntary arising out of contracts or unilateral promises) but due to some
unintentional or intentional occurrence leading to loss or damage. The vinculum iuris, or legal
tie, which then emerges as a result of the damage, makes the tortfeasor liable for the injury
caused. In the case of product liability, it is the producers, manufacturers and vendors who are
held responsible for the danger arisen due to the distribution of products like consumer goods,
medical devices, food, prescription drugs, vehicles, aircraft etc.
Product liability, as an area of the law of torts, has grown in importance during the recent
decades and several more substantive works have already been dedicated to this issue (cf.
Baldwin et al. 1998, Cheesman 2006, Shawn 2006, Cranor 2016).
It was not until the 19th century that personal injury cases began to be heard by the common
law courts. This was due to the Second Industrial Revolution which resulted in greater
mobility of people and products). Before the development of the doctrine of caveat
emptor (buyer beware), the general principle applied in this type of lawsuits was either to
exempt the defendant from liability or to apply the strict liability regime. Thus, there was no
such thing as determining or assessing the amount of damages based on the circumstances
(Gifford 2018).
During the 19th century, it became evident that manufacturers should anticipate the risks to
life and health and consequently, national laws started to impose responsibility in cases where
increased regime could deter the marketing of such products (idem).
In the common law countries the type of liability related to hazardous products is referred to
as strict liability and as such, under Polish law, it corresponds to the risk-based type of

4
Source: https://www.law.cornell.edu/wex/daubert_standard.
liability, meaning that it encompasses a greater number of cases than those where guilt is
evident. With these concessions guaranteed by the legislator, the Claimant/Plaintiff is no
longer burdened with having to prove that the damage was intentional. In common law
countries product liability is imposed by means of separate acts like Consumer Protection Act
1987 in the United Kingdom or the Restatements of the Law produced by the American Law
Institute. However, the United States still relies on a bulk of case-law developed from state
courts’ decisions issued in this respect. In the case of Poland, it was mostly thanks to the
European Union legislation that the product liability emerged as a set of separate regulations
rather than a set of norms falling within scope of general provisions on civil liability.
In fact, both the United States as well as EU legislations are considered as the leading models
on how to enforce liability for hazardous products.
It was in 1963 in California that the so called Greenman decision was issued contributing to
the imposition of strict liability where the manufacturer was found guilty on grounds of
negligence and breach of warranty. Indeed, the number and diversity of product liability cases
heard in the United States is by far the greatest when compared with the rest of the world. As
claimed by Mathias Reimann (2015), "In the United States, product liability continues to play
a big role: litigation is much more frequent there than anywhere else in the world, awards are
higher, and publicity is significant.”
In order for an act to be a tort, three conditions or premises must be satisfied:
i. wrongful behaviour, i.e. by intentional wrongdoing or negligent conduct (except for
torts falling under strict liability regimes;
ii. infringement of another human being’s interest which the law regards as being
worthy of protection.
iii. entitlement to obtain compensation from the defendant in the form of damages by
taking action in a civil court.
In common law countries tort law is mostly concerned with negligence covering a variety of
different situations. If a claimant wishes to establish negligence against a defendant he must
demonstrate:
 that the defendant owed him/her a duty of care;
 that the defendant broke the duty of care; and
 that the breach of duty caused loss to the claimant.
In order to establish a duty of care, it must first be proved that the defendant has broken it and
the burden is upon the claimant. The standard of proof employed here is the balance of
probabilities. However, since tort law is governed by stricter norms, the claimant is to
‘enforce’ his/her version of truth by the so called preponderance of evidence, or ‘greater
weight of the evidence’ (Cranor 2006: 37 after James and Hazard 2001, 5th ed.). As the author
further explains, ‘carrying this burden to the required standard refers “not to the
number of witnesses or quantity of evidence but to the convincing force of the
evidence’ (idem: 37).
The defendant’s behaviour is analyzed since it must be determined whether he/she acted
reasonably in the particular circumstances related to the commission of tort.
Following Rowland v Christian (1968), the following factors have to be taken into
consideration:
A. the foreseeability of harm to the plaintiff,
B. the degree of certainty that the plaintiff suffered an injury
C. the closeness of connection between the defendant's conduct and the injury suffered,
D. the moral blame attached to the defendant’s conduct
E. the policy of preventing future harm, and
F. the extent of the burden to the defendant and the consequences to the community for
imposing a duty to exercise care with resulting liability for breach.
G. The availability, cost and prevalence of the insurance for the risk involved
As it turns out, the term ‘foreseeability’ itself is not such a straightforward concept. In an
attempt to link it to negligence and causation, the judges deciding in Laabs v. Southern
California Edison Company (2009) have drawn the attention to the fact that the evaluation
process requires ‘a more focused, fact-specific’ inquiry that takes into account a particular
plaintiff’s injuries and the particular defendant’s conduct.”
Practically the majority of torts are concerned with the liability for the actions of others. This
type of liability is called vicarious liability. Most often it is the liability of an employer for the
torts committed by his employee. Under common law one may also distinguish between
special types of duties that include amongst other things:
 product liability,
 road accidents,
 occupiers liability,
 employer’s liability,
 medical care.
Product liability cases can be divided depending on the type of ‘defect’ which gives rise to the
claim or the very nature of claim (i.e. whether it is based on the manufacturer’s negligence,
whether it is covered by the strict liability regime etc.).
As far as the type of defect is concerned, the most commonly encountered types of product
liability claims are manufacturing defects, design defects and failure to warn defects. The first
type of defects is related to the manufacturing stage, i.e. the product in question is different
from the others on the assembly line and hence does not comply with the intended design.
The second type of defects occurs when the product’s design poses a danger to its users
regardless of how carefully manufactured it was. The plaintiff needs to prove that the design
itself is defective.
The third type would involve products which are well manufactured and designed for their
intended purpose but which are nevertheless inherently dangerous. The manufacturer can
mitigate the presence of these dangers by providing sufficient instructions or warnings. If he
fails to do so the potential harm may warrant a claim whose grounds would be failure to warn.

As far as the grounds for the claims are concerned, one can distinguish between negligence
claims, strict liability claims, breach of warranty claims, and consumer protection claims. The
above classification is based on the Restatements of the Law, a set of treatises on legal
subjects that seek to inform judges and lawyers about general principles of common law in
the United States.5
Negligence claims focus on the behaviour of the manufacturer who owed a duty of care to the
plaintiff (potential user of the product) and his breach of the duty of care resulted in the
plaintiff’s injury. What is frequently emphasized in those types of claims, is the proximity
between the breach and the injury as well as the quantifiable nature of the injury which may
be translated into actual amount of money.
Over time, the concept of negligence has evolved into either negligence per se or res ipsa
loquitur. According to the doctrine of negligence per se an act is considered negligent because
it violates a statute. In a way, it might be considered as a form of strict liability since no proof
of breach and causation is required. Res ipsa loquitur (from Latin, the thing speaks for itself),
in turn, is based on the assumption that the event leading to injury does not normally occur
unless someone has acted negligently. Thus, in the absence of direct evidence it is possible to
ascribe negligence due to the very nature of the act itself.

An example of res ipsa loquitur would be medical malpractice cases, i.e. leaving a medical
device in a patient. Here, the expert testimony is not required as a proof since
In the case of strict liability claims it is the product itself which warrants the imposition of
liability. Thus, regardless of whether the manufacturer was negligent or not, he/she will bear
responsibility for the defectiveness of the product. The burden of proof is usually limited to
demonstrating that the defendant manufactured the defective product and that the defect led to
the plaintiff’s injury. Apart from product liability, examples of strict liability may
include intrusion onto another's land by livestock, abnormally dangerous activities
(e.g., blasting), and ownership of wild animals (Kenneth 2009).
A warranty is a legally binding commitment forming part of the sales contract which assures
the buyer that the product or service is free from defects. 6 Breach of warranty-based product
liability claims usually focus on one of three types (Siedel 2016):
 Breach of an express warranty,
 Breach of an implied warranty of merchantability, and
 Breach of an implied warranty of fitness for a particular purpose.
The fourth class of product liability claims is consumer protection which can be considered as
an additional safeguard against certain specific products. It was created in order to provide
adequate remedies in cases where the product becomes less useful or unusable due to some
inherent flaw. As a result, the plaintiff sustains economic loss, which is not accounted for by
the other three types of claims where only personal injury or damage to the property can
constitute grounds for a lawsuit.
The most commonly quoted example are the so called lemon laws under which the purchasers
are protected against defects found in the new vehicles or, to a lesser extent, in used vehicles
(Speidel 2006).
The main remedy available to an injured party is damages, whose function is to compensate
the claimant the value of an asset he/she was entitled to and, as a result of damage or injury,
was deprived of. The court’s task is usually to compare the claimant’s status before and after
the tort was committed and determine the difference between the two. However, there are also
other remedies available such as the injunction being a court order instructing the defendant to
behave in a particular way or abstain from doing something. They can be therefore divided
into prohibitory and mandatory.
5
Source: Restatement (Third) of Torts: Products Liability, § 19.
6
Source: https://www.stimmel-law.com/en/articles/basics-warranties
3. THE ROMAN LAW PERSPECTIVE AND POLISH LAW OF OBLIGATIONS
Product liability, as an area of the law of torts, has grown in importance during the recent
decades and several more substantive works have already been dedicated to this issue (cf. ). In
the civil law tradition, product liability is part of the broadly conceived law of obligations,
rooted in the Roman law, which distinguished between obligations arising from contracts (ex
contractu), those arising from delicts (ex maleficio), those arising from quasi-contracts (quasi
ex contractu) and those arising from quasi-delicts (quasi ex maleficio). It is also to be found in
Iustinian’s Institutions, one of the most impressive legal compilation of the early Middle Ages
(6th century).
As a result, the liability that arises between two parties came to be understood as either
contractual or due to a forbidden act (‘the delict’) having been committed by one party. In the
Anglo-Saxon system it is more common to refer to these acts as ‘torts’. Under Polish law of
obligations it is typical to use the term ‘delikt’, stemming directly from the Roman law
term ‘delictum’ (past participle of dēlinquere ‘to be at fault, offend’). Apart from the civil law
continental systems (Polish ‘delikt’, German ‘Delikt’, French ‘delit’, Spanish ‘delito civil’,
Italian ‘illecito civile extracontrattuale’), the Latin word is also used in mixed legal systems
such as Scotland, South Africa, Louisiana and the Philippines. Common law lawyers also use
the term ‘breach of duty of care’ which may be either intentional or negligent. Another
difference between the Anglo-Saxon ‘tort’ and the civil law ‘ delict’ is the tangible and
concrete character of the former and the abstract nature of the latter. Common law defines
many specific types of torts whereas the statutory definitions of the term ‘delict’ in civil law
legislations often leave a lot of interpretational freedom to those responsible for the
administration of justice. The common law understanding of an obligation also differs from
the civil law one insofar as it encompasses only the obligor’s duty to render prestation. In the
civil law traditional understanding, the obligation is understood as a legal tie (vinculum iuris)
which binds both parties, either to perform a specific task or to refrain from a specific
conduct.
According to Preston and Keeton (1984), tort law is that body of law which is directed toward
the compensation of individuals, rather
than the public, for losses which they have suffered within the scope of their
legally recognized interests generally, rather than one interest only [such as
contracts], where the law considers that compensation is required.
The tort law is privately enforced by those who believe they have been
injured by others (contrasted with the criminal law that is publicly enforced by an agency of
the state). Plaintiffs who have been exposed to substances that
they believe harmed them may file suits seeking compensation for the injuries
suffered in order to restore them to the status quo ante.
Polish law of obligations very often highlights the difference between the delicts as being a
primary source of obligation and the contracts as being their secondary source. Latin
differentiation between obligations ‘ex contractu’ and ‘ex delicto’ is also extensively cited.
The obligation to redress damage arises at the moment a person suffers damage as a result of a
forbidden act committed by another person (the tortfeasor). If the above conditions are met,
the person liable for the tort or a delict becomes immediately a ‘debtor’ in the understanding
of the law of contracts. The delictual ‘debtor is thus obliged to redress the damage to the
‘creditor’ (the injured party).
Under the regime of the law of contracts, the obligation arises due to non-performance or
undue performance of an assignment or commitment most often stipulated in writing. The
obligation thus transforms into payment of damages or compensation.

4. DISCUSSION: JUDGMENT: TWO CONFLICTING VIEWS

Before discussing the stance expressions employed in the court opinions related to the case
under study, a few remarks will be necessary to present two conflicting views concerning the
judge’s role in the decision-making process. Since court judgments are concerned with
evaluating the conduct of human-beings vis-à-vis the society, they cannot be entirely
objective. On the other hand, judgment as a genre has a fixed structure and thus, should
follow a given, logical pattern and resemble mathematical equation. Other important
components frequently quoted when referring to judicial reasoning is common sense, socio-
economic factors or the ethical perspective. As a result, judges are bound by a certain set of
values and customs. Thus, theoretically, there is not much room left for the expression of
one’s own stance and attitude. Given that, subjectivity would be considered as something
undesirable and to be avoided in court judgments. What one obtains in due course is a certain
conflict of interests: while as some would like to limit the judge’s word to the domain of
‘finding what already exists’ in the body of previous decisions in analogical cases, others
argue that each decision bears ‘individual’ marks and is barely predictable.
In fact, judges’ function consists in various tasks. One of them, which takes place even before
any interpretation is possible, is the reconstruction of facts or the fact-finding process.
Determining the status quo, in particular in cases concerning product liability, is very often
hedged with technical expressions, scientific explanations or even instructions of use. This is
due to the fact that product liability proceedings almost always require the participation of
experts who add elements of medical or technical register to the ‘underlying’ legalese of a
court judgment. E.g. it may contain an accurate report on the injuries (measured in
percentages) suffered in the course of the accident for the purpose of calculating the damages
due to the victim or testimony as to how to properly operate a specific tool or device. Below
an example of such an explanation:
The general design and function of the throttle control system in the 2001 Ford
Ranger is typical of any modern passenger vehicle. The driver controls engine
speed by depressing the accelerator pedal, which is linked to the throttle, which, in
turn, regulates the amount of air flowing into the engine. When the accelerator
pedal is depressed, the throttle opens and engine speed increases; when the
accelerator pedal is released, the throttle closes, airflow is restricted and engine
speed decreases.

What follows the part referred to as fact-finding is the interpretation proper and it is there
where we are most likely to find expressions denoting stance.
Let us now focus on the summary of the case in question. Bendectin, a trade name of a drug
containing the active substance Doxylamine-pyridoxine, was introduced into the market in
1956 and removed therefrom in 1983 due to many controversies that surrounded its use.
The drug was commonly prescribed for the treatment of nausea and vomiting during
pregnancy. Following many lawsuits that resulted from the drug’s long-term presence on the
market, a study was conducted to determine whether the pyridoxine and doxylamine caused
birth defects in children exposed in utero. Bendectin was supposed to cause all kinds of fetal
malformations and problems including limb and other musculoskeletal deformities, facial and
brain damage, defects of the respiratory, gastrointestinal, cardiovascular and genital-urinary
systems, blood disorders and cancer.7 However, an FDA panel concluded that no association
between Bendectin and congenital defects had been observed and in 1999, it published a
statement determining that:
the drug product Bendectin, a tablet composed of pyroxidine hydrochloride, 10
milligram (mg), and doxylamine succinate, 10 mg, for the prevention of nausea
during pregnancy was not withdrawn from sale for reasons of safety or
effectiveness. This determination will permit FDA to approve abbreviated new
drug applications (ANDA’s) for the combination product pyroxidine
hydrochloride, 10 mg, and doxylamine succinate, 10 mg, tablets. 8

Developing medications for pregnant women suffering from nausea and vomiting became a
problem following the Bendectin experience. Aside from legal consequences, the case also
contributed to increased fear among patients and healthcare professional s alike that all
medications are teratogenic. As observed by Wing et al. (2010), FDA granted approval for
just a few drugs which resulted in the use of other, less studied medications.
We shall now analyze the court opinion issued by the United States Supreme Court. The
source of the corpus is Justia Opinion Summary and Annotations taken from United States
Bound Volumes, October Term, 1992, the case full name being ‘Daubert Et Ux., Individually
and as Guardians Ad Litem For Daubert, Et Al. V. Merrell Dow Pharmaceuticals, Inc.
Certiorari To The United States Court of Appeals for the Ninth Circuit, No. 92-102. Argued
March 30, 1993-Decided June 28,1993’.
What is first investigated are the facts or the background of the case followed by prior
proceedings if the case under scrutiny is heard by the court of appeals or the supreme court.
What comes next is the jurisdiction and standard of review, also typically invoked in cases
under review and decisions appealed against. The following part constitutes the discussion
where we expect to find the greatest number of epistemicity markers.

4. DISCUSSION: EPISTEMICITY
4.1. Definition
Before proceeding to the discussion of the corpus itself, let us take a closer look at the
linguistic phenomenon of epistemicity. Epistemic expressions are related to subjectivism
since they betray one’s stance and point of view. The theories on epistemicity vary in their
broadness from the most narrow definitions, based on the grammatical category of mood
(Palmer 1986, Huddleston 1988: 80, Bybee and Fleischmann 1995) to the philosophical ones,
attempting to view the topic globally and in line with generations of philosophers concerned
with ‘the necessary’ and ‘the possible’. To quote Halliday and his most representative
definition: “[Epistemic modality]....is the speaker’s assessment of probability and
predictability. It is external to the content, being part of the attitude taken up by the speaker:
his attitude in this case, towards his own speech role as ‘declarer’” (Halliday, 1970: 349).
Palmer, in turn, draws our attention to the status of the proposition. As he views it, epistemic
modality is “the status of the proposition in terms of the speaker’s commitment to it.” (Palmer
7
Cf. article published in New York Times as a result of the decision to withdraw Bendectin from the market:
https://www.nytimes.com/1983/06/19/weekinreview/shadow-of-doubt-wipes-out-bendectin.html
8
Source: https://www.govinfo.gov/content/pkg/FR-1999-08-09/pdf/99-20362.pdf
1986: 54-55). Bybee and Fleischman define epistemic modality as the “clausal scope
indicators of a speaker’s commitment to the truth of a proposition” (Bybee and Fleischman,
1995: 6). Keisanen’s definition does not differ much when he describes epistemicity as “those
interactional and linguistic means by which discourse participants display their certainty or
doubt toward some state of affairs or a piece of information” (Keisanen 2007: 257). As
observed by von Fintel (2007), “expressions of epistemic modality mark the
necessity/possibility of an underlying proposition, traditionally called the prejacent, relative to
some body of evidence/knowledge.” Even the general definition, therefore, contains reference
to some external source of information, which only proves that there exists a clear relation
between epistemicity and evidentiality. A somewhat more general definition is provided by
Nuyts who considers certainty or epistemic modality as a linguistic expression of an
estimation of the likelihood that a certain state of affairs is, has been, or will be true (Nuyts,
2001). This likelihood might be conceived of as an axis where 0% represents something being
totally unlikely to happen and where 100% equals something being bound to happen. As far
as categories of epistemic modality are concerned, there is generally no agreed upon
nomenclature. When faced with the task of drawing a scale in terms of certainty/uncertainty,
some authors (cf. Holmes 1982, Hoye 1997) suggest the following gradation: certainty,
probability, possibility. However, as observed by Szczyrbak (2014), there is no consensus
regarding the semantic organisation of all the epistemic markers, especially verbs, in a way
that would unambiguously differentiate them on the scale from absolute to low certainty.
Marcinkowski is also of the same opinion when he points out that “the strength of epistemic
verbs and the commitment conveyed largely varies with their syntactic environment”
(Marcinkowski 2010: 51). Therefore, what has to be taken into consideration when evaluating
the degree of (un)certainty would be the context in which a given (un)certainty marker occurs.
4.2. Analysis
The epistemic markers analyzed in our corpus display considerable variety. Some instances
do not pose any difficulty as to their category. It has been concluded that the majority of
examples are of lexical (semantic) character. The other broad category, that of discursive
epistemicity, is the most elusive one since it requires analysis of the whole context.
The category that prevails in our corpus is subjective adjectives to which most of the
discussion will be dedicated. Numerous studies have been to date concerned with the study of
adjectives that play an important role in argumentation and perform an interpersonal function.
According to Tutin (2010) these adjectives

are especially relevant in the observation of persuasive strategies used towards the
reader and the kind of arguments (novelty, salience, quality, inadequacy, for
example) put forward to qualify scientific objects in various disciplines.

Apart from the evaluative function, some evaluative items are also considered as performing
cohesive function, especially in sentence-initial position (Thompson and Zhou, 2001).
That is why, whilst some of the categories presented in the study are of lexico-grammatical
character, the other transcend the level of sentence and can be considered as discursive.
Evaluation, as outlined by Hunston and Thompson (2000), is a slippery notion, which has
been given several labels: for example, Martin (2000) and Martin and White (2005) prefer
appraisal, Conrad and Biber (2000) use the term stance while Hyland’s attitude markers
(Hyland 2005) and some of the linguistic items he describes as hedges can be considered as
evaluative markers.
Evaluation as such includes comparison, subjectivity in a broad sense, value-laden terms and
to a certain extent modality. In academic writing, evaluation has been the topic of several
studies, both written and oral (Swales and Burkes 2003; Anderson and Bamford 2004; Lopez
Ferrero and Oliver del Olmo 2008, amongst others).
An important class of evaluative expressions with which the present analysis will be
concerned is predicates expressing various kinds of normative and epistemic evaluation, such
as predicates of personal taste, aesthetic adjectives, moral adjectives, and subjective
adjectives, among others. As observed by Silk (2019):

Subjective adjectives are distinguished, empirically, in exhibiting phenomena such

as discourse‐oriented use, felicitous embedding under the attitude verb ‘find’, and
sorites‐susceptibility in the comparative form. A unified degree ‐based semantics is
developed: What distinguishes evaluational adjectives, semantically, is that they
denote context‐dependent measure functions (evaluational perspectives)—context ‐
dependent mappings to degrees of taste, beauty, probability, etc., depending on the
adjective.

According to Kerbrat-Orecchioni (1980), subjective adjectives can be divided into the

following sub-classes:
 Subjective adjectives
- Affective adjectives: reflect an emotional state: sad, unpleasant
- Evaluative adjectives: reflect an evaluation in relation to a norm or to an
ideology.
- Non-axiological evaluative adjectives: evaluation in relation to a norm: big,
recent, new;
- Axiological evaluative adjectives: evaluation in relation to a system of
values: interesting, famous, good.
 Modal adjectives
- Reflect the attitude towards the propositional content: possible, incredible,
certain;
- Express attitude toward the statement: likely, possible, certain.
As far as adverbs are concerned, some of them display an evaluative nature such as
significantly, markedly, surely, correctly or reasonably, while other ones also show linking
and conjunctive functions, referring to what has been previously stated, e.g. primarily,
similarly, indeed.
One may also encounter whole sentences marked with epistemic meaning that should be
considered in their entirety. Such sentences often contain an evaluative noun which affects its
surrounding and renders the semantic unit more evaluative in character. For instance the noun
‘flaws’ in the sentence ‘it increases the likelihood that substantive flaws in methodology will
be detected’ renders the sentence evaluative in character.
Contrary to adjectives, adverbs and verb phrases, nouns constitute a class marked by its
abstract nature which necessitates the careful analysis of the context in which it occurs.
However, no integrated treatment of this particular class of nouns has been proposed so far
and various authors refer to them using various terms. Halliday and Hasan (1976) speak of
general nouns, Francis (1986) makes reference to anaphoric nouns, Tadros (1985) coins the
notion of advance labels, Ivanic (1991) highlights carrier nouns, Winter (1992) speaks of
metalanguage nouns while Schmid (2000) describes them as shell nouns.
Another term applied with reference to nouns and proposed by Flowerdew (2003) is that of a
signalling noun which the author defines as ‘any abstract noun, the meaning of which can
only be made specific by reference to its context.’ Flowerdew enumerates a few examples of
signalling nouns such as attitude, assistance, difficulty, endurance, process, reason, result.
The analysis of a corpus below leads us to the conclusion that indeed, the majority of nouns
require a contextual approach, somewhat confirming what the aforementioned authors
maintain. It is frequently the case that no particular lexeme in a sample sentence carries an
interpersonal or persuasive load but a sentence taken in its entirety turns out to convey a
certain amount of epistemicity. Due to this ‘controversial’ status of nouns as carriers of
evaluative features, they have been incorporated under the ‘umbrella term’ of verb phrases.
Apart from adjectives, adverbs and verb phrases, other types of domains highlighted below
lexical verbs and modal verbs. The table below presents the results of the analysis.

CITATIONS TYPE OF DOMAIN:

REMARKS
respondent's assertion that they somehow assimilated Frye is Evaluative adjective
unconvincing.
Nothing in the Rules as a whole or in the text and drafting history of verb phrase
Rule 702, which specifically governs expert testimony, gives any
indication that...
Moreover, such a rigid standard would be at odds with ... Modal verb

Rule 702-place appropriate limits on ...

Evaluative adjective
the adjective "scientific" implies a grounding in science's methods
and procedures, while the word "knowledge" connotes a body of Lexical verb
known facts or of ideas inferred from such facts or accepted as true
on good grounds.

goes primarily to relevance by ... (demanding a valid scientific

connection to the pertinent inquiry as a precondition Evaluative adverb
to admissibility) - 1

Faced with a proffer of expert scientific testimony under Rule 702,

the trial judge, pursuant to Rule 104(a), must make a preliminary Modal verb
assessment of whether the testimony's underlying reasoning or
methodology is scientifically valid and properly can be applied to
the facts at issue.

The inquiry is a flexible one, and its focus must be solely on

principles and methodology, not on the conclusions that they Evaluative adjective
generate. Modal verb
Throughout, the judge should also be mindful of other applicable
Rules. Modal verb/evaluative
adjective
Cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof, rather than wholesale exclusion
under an uncompromising "general acceptance" standard, is the Evaluative adjective
appropriate means by which evidence based on valid principles may Evaluative adjective
be challenged.

That even limited screening by the trial judge, on occasion, will

prevent the jury from hearing of authentic scientific breakthroughs
is simply a consequence of the fact that the Rules are not designed
to seek cosmic understanding but, rather, to resolve legal disputes. verb phrase

they [the petitioners] responded to respondent's motion with the

testimony of eight experts of their own, each of whom also Evaluative adjective
possessed impressive credentials.

The credentials of the others are similarly impressive.

Evaluative adjective
expert opinion which is not based on epidemiological evidence is
not admissible to establish causation. Evaluative adjective

Thus, the animal-cell studies, live-animal studies, and chemical-

structure analyses on which petitioners had relied could not raise by Evaluative adverb
themselves a reasonably disputable jury issue regarding causation. Evaluative adjective

Petitioners' epidemiological analyses, based as they were on

recalculations of data in previously published studies that had found Lexical verb/ Evaluative
no causal link between the drug and birth defects, were ruled to be adjective
inadmissible because they had not been published or subjected to
peer review.

Contending that reanalysis is generally accepted by the scientific

community only when it is subjected to verification and scrutiny by Lexical verb
others in the field, the Court of Appeals rejected petitioners'
reanalyses as "unpublished, not subjected to the normal peer review
process and generated solely for use in litigation.

The court declared that expert opinion based on a methodology that

diverges "significantly from the procedures accepted by recognized Evaluative adverb
authorities in the field ... cannot be shown to be 'generally accepted
as a reliable technique". – 4

The court concluded that petitioners' evidence provided an

insufficient foundation to allow admission of expert testimony that Lexical verb
Bendectin caused their injuries and, accordingly, that petitioners
could not satisfy their burden of proving causation at trial.
Modal verb
We granted certiorari, 506 U. S. 914 (1992), in light of sharp
divisions among the courts regarding the proper standard for the Evaluative adjective
admission of expert testimony.
Indeed, the debates over Frye are such a well-established part of the
academic landscape that a distinct term-"Frye-ologist"-has been Evaluative adjective
advanced to describe those who take part. - 9

Petitioners' primary attack, however, is not on the content but on the

continuing authority of the rule. They contend that the Frye test was Lexical verb
superseded by the adoption of the Federal Rules of Evidence.5 We
agree.

The Rules' basic standard of relevance thus is a liberal one.-10

Evaluative adjective
we considered the pertinence of background common law in
interpreting the Rules of Evidence Lexical verb
Evaluative noun
We found the common-law precept at issue in the Abel case
entirely consistent with Rule 402's general requirement of Evaluative adjective
admissibility, and considered it unlikely that the drafters had Evaluative adverb
intended to change the rule. Id., at 50-51.

In Bourjaily v. United States, 483 U. S. 171 (1987), on the other

hand, the Court was unable to find a particular common-law Lexical verb
doctrine in the Rules, and so held it superseded.

Nothing in the text of this Rule establishes "general acceptance" as

an absolute prerequisite to admissibility. verb phrase
evaluative adjective/evaluative
That the Frye test was displaced by the Rules of Evidence does not noun
mean, however, that the Rules themselves place no limits on the verb phrase/Evaluative adverb
admissibility of purportedly scientific evidence.

Nor is the trial judge disabled from screening such evidence. To the
contrary, under the Rules the trial judge must ensure that any and modal verb
all scientific testimony or evidence admitted is not only relevant,
but reliable.

The primary locus of this obligation is Rule 702, which clearly

contemplates some degree of regulation of the subjects and theories Evaluative adverb
about which an expert may testify. "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the Modal verb
evidence or to determine a fact in issue" an expert "may testify modal verb
thereto." (Emphasis added.)

Because we hold that Frye has been superseded and base the
discussion that follows on the content of the congressionally modal verb
enacted Federal Rules of Evidence, we do not address petitioners'
argument that application of the Frye rule in this diversity case, as lexical verb
the application of a judge-made rule affecting substantive rights, modal verb
would violate the doctrine of Erie R. Co. v. Tompkins, 304 U. S. 64
(1938).

We believe the better course is to note the nature and source of the Lexical verb
duty.

The subject of an expert's testimony must be "scientific Modal verb

knowledge"
Lexical verb
The adjective "scientific" implies a grounding in the methods and Evaluative adverb
procedures of science. Similarly, the word "knowledge" connotes Evaluative adjective
more than subjective belief or unsupported speculation. The term Evaluative adverb
"applies to any body of known facts or to any body of ideas inferred Evaluative adjective
from such facts or accepted as truths on good grounds." Webster's
Third New International Dictionary 1252 (1986). Of course, it
would be unreasonable to conclude that the subject of scientific Verb phrase
testimony must be "known" to a certainty; arguably, there are no
certainties in science.

"Indeed, scientists do not assert that they know what is immutably

'true' -they are committed to searching for new, temporary, theories
to explain, as best they can, phenomena".
Modal verb
But, in order to qualify as "scientific knowledge," an inference or Modal verb
assertion must be derived by the scientific method. Proposed Evaluative adjective
testimony must be supported by appropriate validation-i. e., "good
grounds," based on what is known. In short, the requirement that an
expert's testimony pertain to "scientific knowledge" establishes a
standard of evidentiary reliability.
Evaluative adverb
The consideration has been aptly described by Judge Becker as one Evaluative adjective
of "fit."
Modal verb
The study of the phases of the moon, for example, may provide Evaluative adjective
valid scientific "knowledge" about whether a certain night was
dark, and if darkness is a fact in issue, the knowledge will assist the
trier of fact. However (absent creditable grounds supporting such a Evaluative adverb
link), evidence that the moon was full on a certain night will not Evaluative adverb
assist the trier of fact in determining whether an individual was Evaluative adverb
unusually likely to have behaved irrationally on that night.
Evaluative adjective
That these requirements are embodied in Rule 702 is not surprising. Evaluative adverb
Unlike an ordinary witness, see Rule 701, an expert is permitted
wide latitude to offer opinions, including those that are not based on
firsthand knowledge or observation.

Presumably, this relaxation of the usual requirement of firsthand Evaluative adverb

knowledge-a rule which represents "a 'most pervasive
manifestation' of the common law insistence upon 'the most reliable
sources of information,'"

These matters should be established by a preponderance of proof. Modal verb

Although the Frye decision itself focused exclusively on "novel"

scientific techniques, we do not read the requirements of Rule 702
to apply specially or exclusively to unconventional evidence. Of Evaluative adverb
course, well- established propositions are less likely to be Evaluative adjective
challenged than those that are novel, and they are more handily Evaluative adjective
defended. Indeed, theories that are so firmly established as to have Evaluative adverb
attained the status of scientific law, such as the laws of Evaluative adverb
thermodynamics, properly are subject to judicial notice under
Federal Rule of Evidence 201.

We are confident that federal judges possess the capacity to Evaluative adjective
undertake this review. Many factors will bear on the inquiry, and
we do not presume to set out a definitive checklist or test. But some Evaluative adjective
general observations are appropriate. Evaluative adjective

Some propositions, moreover, are too particular, too new, or of too

limited interest to be published. But submission to the scrutiny of
the scientific community is a component of "good science," in part Evaluative noun
because it increases the likelihood that substantive flaws in Verb phrase
methodology will be detected.

The fact of publication (or lack thereof) in a peer reviewed journal Evaluative adjective
thus will be a relevant, though not dispositive, consideration in Evaluative adjective
assessing the scientific validity of a particular technique or
methodology on which an opinion is premised.

Additionally, in the case of a particular scientific technique, the Evaluative adverb

court ordinarily should consider the known or potential rate of Modal verb
error, (...) and the existence and maintenance of standards
controlling the technique's operation.

Finally, "general acceptance" can yet have a bearing on the inquiry. Modal verb
A "reliability assessment does not require, although it does permit, Evaluative noun
explicit identification of a relevant scientific community and an Evaluative adjective
express determination of a particular degree of acceptance within Evaluative adjective
that community.

Widespread acceptance can be an important factor in ruling Evaluative adjective

particular evidence admissible, and "a known technique which has Lexical verb
been able to attract only minimal support within the community," Modal verb/ Evaluative adverb
(...) may properly be viewed with skepticism.
The focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.
Modal verb/ Evaluative
Throughout, a judge assessing a proffer of expert scientific adjective
testimony under Rule 702 should also be mindful of other
applicable rules.

Respondent expresses apprehension that abandonment of "general

acceptance" as the exclusive requirement for admission will result 5x evaluative adjective
in a "free-for-all" in which befuddled juries are confounded by
absurd and irrational pseudoscientific assertions. In this regard Evaluative adverb/lexical verb
respondent seems to us to be overly pessimistic about the Evaluative adjective
capabilities of the jury and of the adversary system generally. Evaluative adjective
Vigorous cross-examination, presentation of contrary evidence, and Evaluative adjective
careful instruction on the burden of proof are the traditional and Evaluative adjective
appropriate means of attacking shaky but admissible evidence.
Evaluative adjective
These conventional devices, rather than wholesale exclusion under Evaluative adjective
an uncompromising "general acceptance" test, are the appropriate
safeguards where the basis of scientific testimony meets the
standards of Rule 702.
It is true that open debate is an essential part of both legal and Verb phrase
scientific analyses. Yet there are important differences between the Evaluative adjective
quest for truth in the courtroom and the quest for truth in the
laboratory. Scientific conclusions are subject to perpetual revision. Evaluative adjective
Law, on the other hand, must resolve disputes finally and quickly. Evaluative adjective
The scientific project is advanced by broad and wide-ranging
consideration of a multitude of hypotheses, for those that are
incorrect will eventually be shown to be so, and that in itself is an Evaluative adjective
advance. Conjectures that are probably wrong are of little use, Evaluative adjective
however, in the project of reaching a quick, final, and binding legal Evaluative adverb
judgment-often of great consequence-about a particular set of Evaluative adverb
events in the past. We recognize that, in practice, a gatekeeping role Lexical verb
for the judge, no matter how flexible, inevitably on occasion will Evaluative adjective
prevent the jury from learning of authentic insights and innovations. Evaluative adjective
That, nevertheless, is the balance that is struck by Rules of Evaluative adjective
Evidence designed not for the exhaustive search for cosmic Evaluative adjective
understanding but for the particularized resolution of legal disputes.

The inquiries of the District Court and the Court of Appeals focused Evaluative adverb
almost exclusively on "general acceptance," as gauged by
publication and the decisions of other courts.
Verb phrase
This is not to say that judicial interpretation, as opposed to Evaluative adjective
adjudicative factfinding, does not share basic characteristics of the Evaluative adjective
scientific endeavor: "The work of a judge is in one sense enduring Evaluative adjective
and in another ephemeral. ... In the endless process of testing and Evaluative adjective
retesting, there is a constant rejection of the dross and a constant Evaluative adjective
retention of whatever is pure and sound and fine. Evaluative adjective

DISSENTING OPINION:

The Court concludes, correctly in my view, that the Frye rule did Evaluative adverb
not survive the enactment of the Federal Rules of Evidence,
Lexical verb
I therefore join Parts I and II-A of its opinion.

Evaluative adverb
"General observations" by this Court customarily carry great weight Verb phrase
with lower federal courts, but the ones offered here suffer from the Verb phrase
flaw common to most such observations-they are not applied to Evaluative noun
deciding whether particular testimony was or was not admissible, Modal verb
and therefore they tend to be not only general, but vague and Evaluative adjective
abstract. This is particularly unfortunate in a case such as this, Evaluative adjective
where the ultimate legal question depends on an appreciation of one Evaluative adjective
or more bodies of knowledge not judicially noticeable, and subject
to different interpretations in the briefs of the parties and their
amici. Evaluative adverb
Evaluative adverb
The various briefs filed in this case are markedly different from
typical briefs, in that large parts of them do not deal with decided
cases or statutory language-the sort of material we customarily
interpret. Instead, they deal with definitions of scientific Evaluative adjective
knowledge, scientific method, scientific validity, and peer review-in Evaluative adjective
short, matters far afield from the expertise of judges. This is not to Evaluative adjective
say that such materials are not useful or even necessary in deciding
 how Rule 702 should be applied; but it is to say that the unusual
subject matter should cause us to proceed with great caution in
deciding more than we have to, because our reach can so easily
exceed our grasp. Modal verb

But even if it were desirable to make "general observations" not

necessary to decide the questions presented, I cannot subscribe to
some of the observations made by the Court.
Modal verb
The Court constructs its argument by ... Evaluative adverb

Questions arise simply from reading this part of the Court's opinion,
and countless more questions will surely arise when hundreds of
district judges try to apply its teaching to particular offers of expert Lexical verb
testimony. Verb phrase
Lexical verb
I defer to no one in my confidence in federal judges; but I am at a
loss to know what is meant when it is said that the scientific status
of a theory depends on its "falsifiability," and I suspect some of
them will be, too. Lexical verb

I do not doubt that Rule 702 confides to the judge some gatekeeping Lexical verb
responsibility in deciding questions of the admissibility of proffered
expert testimony. But I do not think it imposes on them either the Lexical verb
obligation or the authority to become amateur scientists in order to Verb phrase
perform that role. I think the Court would be far better advised in
this case to decide only the questions presented, and to leave the
further development of this important area of the law to future
cases.

The exact percentage can be presented as follows:

CATEGORY Total number percentage domain
Evaluative adjective 61 43 Semantics
Evaluative 28 20 Semantics /discourse
adverb/adjunct
Lexical verb 19 13 Semantics
Modal verb 22 16 Semantics
Verb phrase 12 8 discourse
(containing an
evaluative noun and
thus carrying
epistemic weight)

As already mentioned, what seems to constitute the most elusive category is that of discursive
markers of epistemicity. The classification of the above categories is based on the assumption
that evaluative adjectives, lexical verbs and modal verbs remain within the domain of
semantics while as adverbs/adjuncts and verb phrases should be considered as transcending
the level of sentence.
Evaluative adverb has been classified as both: belonging to the domain of semantics and
discourse. As mentioned before, where a noun occurs in the sentence, it sometimes carries the
epistemic ‘weight’, rendering the whole sentence epistemic.
What we can state with certainty is that evaluative adjectives are the most representative
category in the corpus.
Furthermore, six occurrences of verb phrases have been identified as negative verb forms. Let
us have a closer look at several of them:
 Nothing (…) gives any indication…
 is simply a consequence of the fact that the Rules are not designed to seek cosmic
understanding but, rather, to resolve legal disputes.
 Nothing in the text of this Rule establishes "general acceptance" as an absolute
prerequisite to admissibility.
 the Rules themselves place no limits on the admissibility of purportedly scientific
evidence.
 there are no certainties in science.
 This is not to say that…

The analysis of these instances leads us to the conclusion that negations add to the subjectivity
of a statement. Other ones are marked with an evaluative expression which is not otherwise
classified, e.g. ‘yet there are important differences’ or ‘but I am at a loss to know what is
meant when…’.
Four instances have been classified as verb phrases due to the fact that the so called signalling
noun renders the context ‘epistemic’:

 in part because it increases the likelihood that substantive flaws in methodology will
be detected.
 (…) carry great weight
 the ones offered here suffer from the flaw common to most such observations
 but I am at a loss to know what is meant when (…)

Two remaining instances constitute separate sub-category of verb phrases. Although they do
contain a modal verb
 the Court would be far better advised in this case to
 It is true that open debate is an essential part of both legal and scientific analyses. Yet
there are important differences between…
Another interesting observation would be that adverbs/adjuncts, as discourse markers
contribute to the fact that boundaries between the semantical units of epistemicity are
sometimes difficult to draw since they link one argument to the other, as in: ‘Similarly, the
word "knowledge" connotes with…’ or ‘Of course, it would be unreasonable to conclude
that…’.
5. CONCLUSIONS
The United States are among the countries with the highest numbers of product liability cases.
The reasons for this can be attributed to relatively low fees for filing lawsuits and the
availability of class actions (Sautter 2011). Additionally, American plaintiffs also receive the
highest awards of monetary damages in the world (Mathias 2003).
The epistemic expressions to be encountered in American court judgments concerning
product liability display considerable variety. Judges resort to various means to communicate
their stance. Although the genre of judgment itself can be characterized by considerable
consistency when it comes to structure, it turns out rather difficult to point to some repetitive
patterns that judges use in communicating their stance. Thus, one might say, albeit tentatively,
that epistemicity cannot be contained in any sort of neat equation that would allow us to
determine to what extent exactly the judgment is a product of judge’s own opinion, to what
extent it represents the ‘common sense’ of the community and to what extent it subsumes the
laws applicable and quoted in a given case. What we can say with certainty is that the
expressions reflecting stance are inevitable in the court judgments. Similarly, what the
witnesses state in depositions and testimonies will not be marked by categorical expressions
but rather will involve a large amount of “ifs” and question marks. Let us refer to what
Walker (2003) has observed as regards formulating definitions in the language of the judges:
The meanings of most words are left to be determined by the fact-finder on the
basis of the fact-finder's knowledge and background. With respect to certain
critical terms, however, courts may adopt rules of definition. Using the example of
negligence in tort law, judges routinely tell juries that the law defines "negligence"
as "lack of ordinary care" and the failure to use that degree of care that a
reasonably prudent person would have used under the same circumstances.
However, such terms as ordinary, prudent or degree of care will not be defined any
further.

Below, an example of such an attempt at defining what negligence is, taken from the case
Estella Martinez v. Walgreen Company, decided by the United States Court of Appeals for
the Fifth Circuit 9:
Texas law instructs that “[a] negligence cause of action has three elements:
1) a legal duty;
2) breach of that duty; and
3) damages proximately resulting from the breach.”
The district court stopped its analysis at the first step, concluding that Walgreens owed no
legal duty to the plaintiffs.
To sum up, although the legislature seeks to determine beyond reasonable doubt, as it were,
the boundaries between what constitutes a prohibited act and what remains within the realm
of ‘lawfulness’, it cannot avoid falling victim of various ‘traps’ of language which abounds in
vague and ambiguous expressions understandable only if discussed in a particular context. As
already remarked, the dichotomous character of legal discourse as opposed to the ‘continual’
character of common every day speech gives rise to a ‘conflict of interests’. As observed by
Kielar (1977):
The quality of vagueness is considered to be a consequence of the relativity of all
classification inherent to names of general character. Classification ensues
9
Source: https://casetext.com/case/martinez-v-walgreen-co-1
 simplification of much richer objective reality, in which transition zones exist 
between classes of objects or phenomena to which language signs apply. Fringe
elements are the basis of vagueness of words.

The case described in this article resulted in the ‘explosion’ of mass tort product liability cases
during the 1980s throughout the United States. During the period from 1975 to 1989 the
number of actions increased from about 2 400 to about 13 400 whilst the percentage of
product liability cases in relation to all civil cases rose from 2% to 5,7% during the very same
period.10 It is thus interesting to observe the argumentation patterns that occur in the court
judgments in reaction to the ‘trend’ described. Faced with the ever changing standards and
cases that often evade a straightforward application of the rule of precedent, judges resort to
various means. However, the rhetorical structures they apply rarely display categorical
character as also evidenced by this analysis.

REFERENCES:
1. Bamford J. Anderson L. (2004) Evaluation in oral and written academic discourse.
Officina Edizioni.
2. Bybee, J.L., Fleischmann, S. (1995), Modality in grammar and discourse: An
introductory essay. In: Bybee J., Fleischman S. (eds.), Modality in grammar and
discourse, Amsterdam, John Benjamins.
3. Conrad, S., & Biber, D. (2000). Adverbial Marking of Stance in Speech and Writing.
In S. Hunston, & G. Thompson (Eds.), Evaluation in Text: Authorial Stance and the
Construction of Discourse (pp. 56-73). Oxford: Oxford University Press.
4. Cranor, C. F. (2016) Toxic Torts Science, Law, and the Possibility of Justice,
University of California, Riverside.
5. Flowerdew, J. (2003) Signalling nouns in discourse in: English for Specific Purposes,
vol. 22, pp 329-346.
6. Francis, G. (1986) Anaphoric nouns. University of Birmingham.
7. Gifford, D. G. (2018). Technological Triggers to Tort Revolutions: Steam
Locomotives, Autonomous Vehicles, and Accident Compensation. In: Journal of Tort
Law. Walter de Gruyter GmbH. 11 (1): 71–143.
8. Halliday, M. A. K., Hasan, R. (1976). Cohesion in English. London, England:
Longman. 
9. Halliday, M.A.K. (1970). “Functional Diversity in Language as Seen from a
Consideration of Modality and Mood in English”. In: Foundations of Language 6:
322-361
10. Holmes J. (1988), Doubt and certainty in ESL. In: Textbooks. Applied Linguistics, vol.
9.(1), pp. 21-44.
11. Hoye, L. (1997) Adverbs and modality in English. Longman English Language Series.
London: Longman, 1997. 
12. Huddleston, R. D. (1988), English grammar: An outline. Cambridge, Cambridge
University Press.
13. Hyland, K. (2005). Stance and engagement: A model of interaction in academic
discourse. Discourse Studies. Vol. 7, 173-192.
10
Moore, Michael J.; Viscusi, W. Kip (2001). Product Liability Entering the Twenty-First Century: The U.S. Perspective.
Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies. p. 10. 
14. Ivanič, Roz. (1991). Nouns in search of a context: A study of nouns with
bothopen- and closed-system characteristics. In: International Review of Applied
Linguistics in Language Teaching 29(2): 93–114
15. James and Hazard (2001) Civil Procedure 5th Edition. Foundation Pr.
16. Keisanen T. (2007), Stancetaking as an interactional activity: Challenging the prior
speaker. – Englebretson R. (ed.) Stancetaking in discourse: Subjectivity, evaluation,
interaction. Amsterdam, Philadelphia, pp. 253-281.
17. Kerbrat-Orecchioni, K. (1980) L'énonciation de la subjectivité dans le langage, Paris,
Armand Colin.
18. Kielar, B.Z. (1977), Language of Law in the Aspect of Translation, Warszawa,
Wydawnictwo Uniwersytetu Warszawskiego.
19. Marcinkowski M. (2010), Modality in academic discourse: Meaning and use of
epistemic verbs in research articles. – Jančaříková R. (ed.) Interpretation of meaning
across discourses. Brno, pp. 47- 59.
20. Martin, James R. (2000). Beyond exchange: Appraisal systems in English. In
Evaluation in text: Authorial stance and the construction of discourse, Hunston and
Thompson (eds.) , 142-175. Oxford: Oxford University Press.
21. Martin, James R. and Peter R. R. White. (2005). The language of evaluation:
Appraisal in English. London and New York : Palgrave Macmillan.
22. Moore, M. J.; Viscusi, W. (2001). Product Liability Entering the Twenty-First
Century: The U.S. Perspective. Washington, D.C.: AEI-Brookings Joint Center for
Regulatory Studies. p. 10.
23. Nuyts, J. (2001) Epistemic modality, language, and conceptualization: A cognitive-
pragmatic perspective. Amsterdam, John Benjamins.
24. Palmer, F. R. (1986), Mood and modality. Cambridge, Cambridge University Press.
25. Prosser, W. L., Keeton, W. P. et al. (1984). Prosser and Keeton on the Law of Torts,
5th ed. St. Paul, Minn.: West Publishing Company.
26. Reimann, M. (2003). "Liability for Defective Products at the Beginning of the
Twenty-First Century: Emergence of a Worldwide Standard". The American Journal
of Comparative Law. 51 (4): 751–838.
27. Restatement (Third) of Torts: Products Liability, § 19.
28. Sautter, E. (2011). "Chapter 2: Conflicts of laws in multiple jurisdictions". In:
Coleman, L. et al. (eds.). Managing Records in Global Financial Markets: Ensuring
Compliance and Mitigating Risk. London: Facet Publishing. pp. 17–32.
29. Schuck, P. (1992) Legal Complexity: Some Causes, Consequences, and Cures, In:
Duke Law Journal, vol. 42, pp. 1-52.
30. Siedel, George (2016). The Three Pillar Model for Business Decisions: Strategy, Law
and Ethics. Van Rye Publishing, LLC. pp. 59–60.
31. Silk A. (2019), Evaluational adjectives. Legal Theory 25 (2):132-152.
32. Simmons, K. W. (2009). The Restatement Third of Torts and traditional strict liability:
Robust rationales, slender doctrines. Boston University School of Law Working
Paper. 09–15: 24.
33. Speidel, Richard E. (2006). Carrington, Paul D.; Jones, Trina (eds.). Consumers and
the American Contract System: A Polemic. In: Law and Class in America: Trends
Since the Cold War. New York: New York University Press: 260–278.
 34. Swales, J. M. and A. Burke. (2003). "It's really fascinating work": Differences in
evaluative adjectives across academic registers. In Corpus analysis: Language
structure and language use, eds. P. Leistyna and C. F. Meyer, 1– 18. Amsterdam:
Rodopi.
35. Szczyrbak M. (2014): Stance-taking strategies in judicial discourse: evidence from US
Supreme Court opinions,  Studia Linguistica Universitatis Iagellonicae Cracoviensis,
Volume 131, Issue 1.
36. Tadros, A. (1994). Predictive categories in expository text. In M. Coulthard (Ed.),
Advances in written text analysis, pp. 69-82. New York: Routledge. Winter, E.
(1977). Towards a Contextual Grammar of English. London.
37. Thompson, G., Hunston, S. (2000), Evaluation: An introduction. In: Thompson, G.,
Hunston, S. (eds.), Evaluation in text; Authorial stance and the construction of
discourse, Oxford, Oxford University Press, pp. 1-27.
38. Thompson, G., Zhou, J. (2001). Evaluation and Organization in Text: The Structuring
Role of Evaluative Disjuncts. In S. Hunston & G. Thompson (eds.), Evaluation in
Text: Authorial Stance and the Construction of Discourse. Oxford: Oxford University
Press: 121-141.
39. Van Fintel, K. (2006), Modality and language. In: Borchert, D.M. (ed.), Encyclopedia
of Philosophy Vol. 10. 2nd ed. Detroit, MacMillan.
40. Walker, Vern R. (2003) Epistemic and Non-epistemic Aspects of the Factfinding
Process in Law”, in APA Newsletter on Philosophy and Law.
41. Wing D. A., Powers, B., Hickok, D. (2010). U.S. Food and Drug Administration drug
approval: slow advances in obstetric care in the United States. In: Obstetrics and
Gynecology.
42. Winter, E. (1992). The notion of unspecific vs. specific as one way of analysing the
information of a fund-raising letter. In Mann, W. C. and Thompson S. A. (eds.).
Discourse descriptions. Diverse linguistic analyses of a fund-raising text, 131–
170. Amsterdam/Philadelphia: Benjamins.

A list of cases cited (from the most recent):

1. Estella Martinez v. Walgreen Company (2019).
2. Laabs v. Southern California Edison Company (2009).
3. Lewis v. Carpenter Co 492 (1996)
4. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993).
5. Bourjaily v. United States, 483 U. S. 171 (1987).
6. Rowland v Christian (1968).
7. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).
8. Frye v. United States, 293 F. 1013 (1923).

Other websites:
1. https://casetext.com/case/martinez-v-walgreen-co-1
2. https://www.govinfo.gov/content/pkg/FR-1999-08-09/pdf/99-20362.pdf
3. https://www.nytimes.com/1983/06/19/weekinreview/shadow-of-doubt-wipes-out-
bendectin.html
4. https://www.stimmel-law.com/en/articles/basics-warranties