Wednesday, July 30, 2003

7th Circuit Says Regression Variables Go to Weight, Not Admissibility

In a published opinion issued yesterday, the Seventh Circuit upheld the admissibility of a regression analysis of university salaries, offered by plaintiff in a discrimination case. The panel (Bauer, Ripple, and Evans, JJ.) cited Justice Brennan's concurrence in Bazemore v. Friday, 478 U.S. 385 (1986), for the proposition that the handling of variables in regression analyses normally goes to weight, not admissibility. But the plaintiff's evidentiary victory was pyrrhic, because the same panel held the regression insufficient to establish a prima facie case.

A summary of the court's opinion in Cullen v. Indiana Univ. Board of Trustees, No. 02-3043 (7th Cir. July 29, 2003), and a link to the opinion, can be found here.

Monday, July 28, 2003

Why Experts Need Cojones

It can be staggering, the lore from my own profession of which I am ignorant.

It is alleged, at, that it's called "testimony" because the ancient Romans would swear an oath by placing their hands on their testicles. At first, this sounds too good a story to be true, but cursory etymological investigation lends it some semblance of plausibility.

Another incidental factoid from the same source: "The fingerprints of koala bears are virtually indistinguishable from those of humans, so much so that they could be confused at a crime scene."

The source for both propositions, and apparently for all putative facts recited at the site, is listed as: "Verified." Sounds bulletproof to me.

Sunday, July 27, 2003

It's All Coming Back to Me Now

The NYT Magazine has a longish feature on Susan Clancy, a Harvard-educated psychologist who devised a test to gauge the accuracy of "recovered" memories.

Subjects were shown a list of words that contained a set of semantically related terms, like "candy," "sour," and "sugar." They were later shown a different list that contained new words from the same thematic category -- e.g., "sweet." The subjects were asked whether the new words appeared on the first list. As a group, persons who claimed recovered memories of child abuse were likelier than others (including abuse victims whose memories never flagged) to "remember" the new words from the original list, suggesting a proclivity to construct inaccurate memories.

When Clancy's study was published, some found what they perceived to be methodological flaws. For instance, what if childhood trauma itself produced lasting impairments in the functioning of human memory? Clancy's study could not eliminate the possibility that recovered memories might be accurate even though malformed.

Clancy responded by testing a group of persons with recovered memories of abduction by aliens. The new study yielded similar results. Thinking herself to have rebutted the methodological quibbles, Clancy submitted her new work to the Journal of Abnormal Psychology, where it survived a rigorous peer-review process and was published.

But Clancy promptly found herself facing a new round of objections: What if the study subjects were really abducted?

This all reminds me of a time in my own practice when the adversary's objections to my expert's methods proved impossible to silence by mere resort to brute fact. Indeed, I remember it as though it were only yesterday . . . .

Friday, July 25, 2003

Science and Politics (part 2)

The New York Times reports that the Bush administration has grown avid to coordinate federal research on global climate change. According to administration officials, this will promote "sound science" -- a phrase that will be eerily familiar to veterans of the expert witness wars.

Thursday, July 24, 2003

Fingerprint Riddle of the Day

Q: When is police fingerprint evidence inadmissible?

A: When a criminal defendant offers it.

A summary of the ruling in United States v. Sutton, No. 02-1679 (7th Cir. July 23, 2003), and a link to the opinion, can be found here.

Wednesday, July 23, 2003

The Kiss of Death

According to CNN, some litigators involved in a toxic tort suit have decided it would be a good idea to call Jack Kevorkian as an expert on "the effects of mercury on humans."

The story doesn't say whose side Kevorkian would take. But assuming he would testify for plaintiffs, the Rule 403 issues are fascinating. For instance, what if the very identity of your expert is calculated to persuade the jury that defendants are merchants of death?

Tuesday, July 22, 2003

Science and Art

Europe is another world.

The continent has been gripped by a roiling controversy over how to clean Michelangelo's David. Old-school restorationists favor the cautious application of badger-hair brushes and cotton swabs. The modernists propose methods reliant on chemicals and high-tech ingenuity.

You instantly sense that the parties to this argument are talking past each other. Maybe it's partly a case of each group of restorationists having hammers that make everything look, to them, like a nail. If you possess a badger-hair brush, you are naturally on the alert for things to brush with badger hair. Likewise, if you own an infra-red laser, you may be on the prowl for things to zap with it.

It may also be that the two sides weigh risks and benefits differently. If cleanliness were the only issue, then maybe the modernists would have the decisive arguments. But there may also be the feeling that Michelangelo's masterpiece has suffered enough physical depredations, and some might fear that novel methods could cause irreparable harm, in unforeseen ways, to something priceless.

In the end, it is hard to dispel the impression that fundamentally different worldviews are clashing. Romantics will naturally gravitate to the caress of the badger-hair brush. Tough-minded technophiles may tend to see such an attitude as irrationally sentimental. Both sides to this controversy can claim some expertise. But the modalities of expertise at issue seem incommensurable. How should such a dispute be resolved?

Monday, July 21, 2003

The Fingerprint Argument Continues

The CBS News site has this Sixty Minutes retread on whether fingerprint evidence is really reliable. The story makes no explicit mention of Daubert, but it does explore such questions as whether fingerprint identification techniques can pass experimental muster.

It probably strikes most people as contrarian to suggest that the reliability of fingerprint evidence could be open to serious question. But some very smart folks have been wondering lately.

Sunday, July 20, 2003

Science and Politics

Nicholas Thompson has a thought-provoking piece in the Washington Monthly about the Bush administration's uneasy relations with the scientific community. Entitled "Science Friction," the article offers several examples of areas -- stem cell research, global warming, ergonomics -- in which the administration and Republican allies in Congress have given short shrift to scientific information that didn't validate their policy goals.

Thompson acknowledges that "Any administration will be tempted to trumpet the conclusions of science when they justify actions that are advantageous politically, and to ignore them when they don't." But Thompson makes the case that a growing Republican antipathy to the scientific community has deeper political roots. He quotes from a recent New Yorker interview in which Karl Rove defines the term "Democrat" as "somebody with a doctorate." Thompson goes on to suggest that Rove's definition actually captures something. As a demographic group, Thompson says, scientists do lean Democratic -- a tendency Thompson dates to the Nixon administration's conflicts with academia over Vietnam. Given those leanings, there is little political cost to Republicans in taking positions that may alienate the scientific community. Meanwhile, on some topics, scientific inquiry may currently tend to generate conclusions at loggerheads with the policy objectives favored by captains of industry and the religious right -- i.e., by the Republican Party's political base.

Does a similar dynamic help to explain conservative enthusiasm for Daubert? It is always important to remember that ascribing partisan motivations to participants in a debate does not resolve the merits of the debate itself. On the other hand, it would be naive to think that controversy over Daubert takes place in a sociopolitical vacuum. Is it possible, in that light, to see the rise of Daubert as a rearguard action against the extension of scientific inquiry into areas where it might expose features of reality that conservatives find uncongenial -- e.g., features of modern capitalist enterprise that are broadly injurious?

Certainly it would be an irony, if the banner of Science were waved so stridently by parties actually keen to cabin the threats they perceived free and rational empirical inquiry to pose. But it wouldn't be the first time.

Friday, July 18, 2003

Leon Jaroff versus Erin Brockovich

As has been widely reported in the press, numerous alumni of Beverly Hills High School recently filed litigation alleging that their cancers and other health conditions were caused by exposures to fumes from oil wells located beneath the campus grounds. The claimants are represented by the law firm Masry & Vititoe, where Erin Brockovich plies her trade.

Now comes Leon Jaroff, in a Time Magazine column, to inveigh against the "junk science" on which he says the claims are based. It is a fine piece of red-blooded polemic for true believers. One is left with the feeling, however, that Jaroff has been less than neutral in selecting scientific evidence to highlight, and even less neutral in characterizing it. For example, Jaroff cites the University of Southern California Medical School's Cancer Surveillance Program for the (syntactically byzantine) proposition that "Known causes of [Hodgkin's and non-Hodgkin's lymphoma] are not petroleum or petroleum products." But the actual findings of USC's study seem less dispositive than Jaroff suggests. Meanwhile, it appears that Jaroff's special edition of Google may filter out sites affililated with other nearby institutions of higher learning, such as Berkeley, whose Molecular Epidemiology and Toxicology Laboratory reports on studies linking benzene, one petroleum byproduct at issue in the litigation, with hematopoietic malignancies.

It used to be that stories in Time frequently ended with the well-worn "time-will-tell" tagline -- e.g., "Only time will tell who has the better of the scientific arguments." It now appears that in matters of scientific evidence, at least, there is no felt editorial need, at Time, to acknowledge that the debates may take a while to play out. Maybe the readership has grown less patient.

Monday, July 14, 2003

Why Medical Malpractice Suits Still Get Brought

The Legal Times has an interesting piece on medical malpractice reform. Headlined "Why Juries Turn Against Doctors," the article ventures that damage caps will just be a stopgap, until physicians recognize that plaintiffs' lawyers have managed to turn Daubert to advantage. (Registration required.)

Saturday, July 12, 2003

Lay Opinion Vindicated

The Fifth Circuit has issued an opinion subscribing to the view that officers and directors of commercial enterprises may opine on pricing and industry practices without being qualified as experts. See Texas A&M Research Found. v. Magna Transp., No. 02-40264 (5th Cir. July 9, 2003). Unfortunately, the link to the pdf file on the Fifth Circuit's web site isn't working, but if it were, the opinion could be found at:

Pending repairs at the Fifth Circuit web site, a WordPerfect version is available at:

The Fifth Circuit's pronouncement is arguably dictum, because, as the opinion itself notes, the testimony at issue didn't really state an opinion at all, but merely reported an actual out-of-pocket expense. But dictum or no, the Fifth Circuit is not unique in holding the view that Fed. R. Evid. 701 permits corporate employees to give lay opinion on issues like lost profits and costs. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003).

Friday, July 11, 2003

Food for Thought

What if we developed a rating scheme, where the judge assigned a grade to scientific evidence for the jury's benefit? There could be a jury instruction:

A grade of A means there is significant scientific agreement on the evidence.
A grade of B means that although there is scientific evidence supporting the claim, the evidence is not conclusive.
A grade of C means the court has determined that the scientific evidence supporting the testimony is limited and not conclusive.
A grade of D means the court has concluded that only very limited and preliminary scientific research supports the evidence.

It's a good enough system, apparently, for health claims about food, under new FDA regulations. Here's the Washington Post story.

Thursday, July 10, 2003

Bad Week for Lawyer Witnesses

Testimony from attorney witnesses has not fared especially well in the Daubert era. Indeed, so far as my research discloses, no federal appellate decision has upheld the admissibility of expert attorney testimony against challenge in this millennium. Two recent rulings from the Sixth and Eighth Circuits continue this humiliating trend.

The Sixth Circuit decision, United States v. Collier, No. 02-3081 (6th Cir. July 2, 2003), is unpublished. A businessman included false information on an SBA loan application. He later filed bankruptcy proceedings, and the loan indebtedness was discharged. The government manifested its annoyance by filing criminal charges for bank fraud. At his criminal trial, the businessman called his bankruptcy lawyer, who testified as an expert concerning his mortgage amortizations, and who also opined as a lay witness that the businessman lacked the requisite financial sophistication to form the necessary criminal intent. The district court struck the mens rea testimony under Fed. R. Evid. 704(b), which bars expert evidence on criminal intent, and the businessman was found guilty. On appeal, the Sixth Circuit correctly held Rule 704(b) inapplicable, because the bankruptcy attorney offered only lay opinion on mens rea. But the appellate panel went on to affirm the exclusion, on the grounds that the witness's status as an expert and a lawyer could lead the jury to impart undue weight to her testimony, warranting its exclusion under Rule 403 on the ground that its potential to confuse the trier of fact outweighed its probative value.

At least the bankruptcy attorney avoided the ignominy of having her testimony held "unreliable" under Daubert. She could be forgiven, nevertheless, for feeling miffed at seeing her testimony stricken because of her training and expertise -- perhaps not an unprecedented result, but surely a rare one.

The Eighth Circuit's decision involved arbitration proceedings between Dow Corning and its insurer, which disputed coverage for Dow's silicone breast implant liabilities. After Dow lost in arbitration, it moved to vacate the arbitrators' award in the Eastern District of Missouri, on the grounds, inter alia, that one of the arbitrators initiated ex parte contacts on scheduling and other matters. In support, Dow trotted out a retired judge and arbitration expert, who opined that the ex parte communications were both improper and prejudicial. The district judge considered this to be testimony on issues of law, which it fell within the province of the court to decide, and so it struck the testimony before declining to vacate the award. On appeal, the Eighth Circuit saw no basis for reversing the evidentiary decision, but did conclude that the arbitration was nonbinding, and directed the district court to modify its judgment accordingly. See Dow Corning Corp. v. Safety Nat'l Cas. Corp., No. 02-2048 (8th Cir. July 9, 2003).

Is it possible that judges sometimes disfavor attorney experts because the judges feel their own legal expertise to be affronted? On the face of things, it seems gratuitous to have stricken the arbitration expert's testimony in the Dow Corning case, since there was no jury, and since the ex parte contacts in question appear to have represented a technical infelicity at worst, and not to have worked any outrageous prejudice. A judicial finding to that effect arguably would have done the job. But perhaps there are more benign explanations -- e.g., that when a litigant files an evidentiary motion, judges feel obliged to rule on its merits. At all events, one is hard pressed to find much fault with the ruling here.

Wednesday, July 09, 2003

Frank on SKAPP (part 2)

Ted Frank's discussion of "false negatives" and "false positives" in the application of Daubert (see my post of 7/07/03) is intriguing on a number of levels.

At the simplest level, Frank's point can be read as one about balance. Like many participants in the debates on scientific evidence, the authors of SKAPP do seem more concerned with one kind of evidentiary mistake (Frank's "false negatives") than with others. An analytical framework that also gave significant weight to the social problems occasioned by questionable scientific evidence, and to the injustices it can cause, might be more useful, credible, and practical. On this level, Frank has registered what seems to me a valid criticism of SKAPP's inaugural report. Let us grant, that is, for purposes of argument, that Daubert sometimes results in the exclusion of expert testimony that many reputable scientists would recognize as legitimate. The problem is that a similar criticism could be lodged against almost any possible evidentiary rule of general applicability. Any general evidentiary guidelines, that is, will likely lead to bad results in particular cases. It is possible to eliminate particular types of bad result by adopting rules at one end of the permissiveness spectrum. E.g., the risks of excluding good evidence could be reduced to zero by a rule mandating the acceptance of all evidence. The problem is that such a rule would give free rein to the bad evidence, multiplying unjust outcomes. So long as we remain in the business of sorting evidentiary wheat from chaff, we need some credible mechanism for doing the sorting.

It's important to recognize that this criticism does not (or need not) reduce to a charge of bias against SKAPP. It is a substantive critique of SKAPP's report, that it does not propose evidentiary principles that would correct the deficiencies it addresses without (perhaps) introducing other problems that might be equally bad. In fairness to SKAPP, it should also be noted that a similar critique could be lodged against no small number of participants in the debate on scientific evidence, and not every contribution to public discourse needs to embody a finished architectonic of reform. SKAPP, that is, has not advertised its report as a comprehensive prescriptive solution to America's evidentiary problems, and perhaps its ambition, so far, has merely been to draw attention to serious deficiencies in Daubert that have not (SKAPP feels) received sufficient notice. As scientists are wont to say, there is a need for further research.

To that end, it may be helpful to focus more deeply on Frank's "false positive"/"false negative" model, to see where it takes us. Frank's model naturally suggests analogies from the field of public health. But there are at least two ways to frame a public health analogy here. The first would be to conceive of legal injury as a disease, with evidentiary rules constituting a kind of diagnostic tool. This first version of the analogy would measure the efficacy of evidentiary rules by the outcomes they tended to promote. A "false positive" would represent the admission of testimony that promoted a false affirmative diagnosis -- viz., an unwarranted verdict for the proponent. A "false negative" would be the exclusion of evidence that would have facilitated a correct diagnosis -- a deserved verdict in the proponent's favor.

There are problems with this way of framing the analogy, and I doubt it is the analogy that Frank intends. The most obvious difficulty would be the absence of any neutral, reliable, objective criteria to identify what litigation outcomes are desirable. After all, if we all agreed on outcomes, we could skip the trials altogether.

A second way to frame the analogy (and one closer, I suspect, to Frank's intent) would be to think of valid scientific insight as a kind of benign virus, and of evidentiary rules as diagnostic tests for detecting the virus's presence in the testimonial organism. Here a "false negative" would again be the exclusion of scientifically legitimate testimony; a "false positive," the admission of scientifically dubious evidence. But the standards against which the diagnoses were measured would be different. Here the criterion would be whether the relevant testimony could legitimately claim scientific status.

What some partisans in the "junk science" wars may insufficiently appreciate (and I do not include Frank in this) is that this version of the analogy, too, relies on evaluative criteria that aren't always neutrally, reliably, and objectively defined. Within the community of practicing scientists, there are often heated debates about the methodological legitimacy of different practitioners' approaches and findings, and neither the scientists nor the epistemologists have located the Philosopher's Stone through which such debates might be definitively resolved. A naive view of science, that is, looks to science for findings and results. A more sophisticated view recognizes that although science does involve methodical empirical inquiry, there is no single and univocal "scientific method" that can be applied to any and all sets of observational fact to determine a unique theoretical conclusion. All the same, Frank might say, some theories are better than others, and some are demonstrably false. And Frank would be right. An evidentiary standard that that attempts to assess testimony along epistemological lines may be fallible, but it probably can claim more neutrality and objectivity than standards governed by preferences for particular litigation outcomes.

There is, however, another problem with the evidentiary model suggested by the second version of the public health analogy: its circularity. Daubert's point of departure is that scientific testimony should be admissible if and only if it is -- well, scientific. That criterion seems uninformative. We cannot say that a litmus test is a valid measure of alkalinity because the litmus paper turns blue in all and only the cases in which it turns blue. We would need some independent standard against which to measure the litmus paper's performance. Daubert did take some steps in this direction, by commending judicial attention to methods characteristic of good-faith scientific endeavor. The problem some nevertheless perceive is that after ten years, this approach seems to be leading, in practice, to evidentiary outcomes that are difficult to predict, and sometimes harder still to justify by reference to the stated desideratum of promoting testimony founded on good science.

This relates, I believe, to one reason why litigants who believed the science to be on their side might find adverse Daubert rulings harder to swallow than other evidentiary setbacks. If my claim founders because the key evidence is excluded by the hearsay rule, I may find the result unjust, but at least I can understand, perhaps, that there might be good general reasons for excluding certain varieties of testimony even though such testimony may be probative and accurate on particular occasions. That is harder to understand when testimony is excluded because that very testimony's claims to reliability are deemed inherently weak, if the proponent believes those claims to be strong under the very criteria that the exclusionary decision invokes.

To put the point another way, litigants may be likelier to perceive injustice when their claims or defenses are stymied by "false negatives" produced by rules propounded in the name of scientific accuracy and truth. It may also be that rules defended in those terms are especially likely to promote judicial decisions in which policy choices are masked -- but maybe that's another topic for another day.

Tuesday, July 08, 2003


What if we had demanded peer-reviewed, well-tested, generally accepted intelligence, with a known rate of error and standards governing its application, before invading Iraq?

Oh, wait. That was just a war -- not nearly so dangerous as a lawsuit.

Monday, July 07, 2003

Frank on SKAPP (part 1)

Pending eventual publication of Professor Bernstein's book, Ted Frank has taken up my challenge to say something about the substance of SKAPP's report. He has some interesting points. One of them:

"The question should not be whether there are occasionally false negatives in the application of Daubert (there are), but whether the social cost of the false negatives (and, mind you, the false positives that still occur) when Daubert is used as a screening mechanism outweigh the social costs of a different set of mistaken decisions and different set of compliance and litigation costs under a different regime. The SKAPP report makes no effort to answer that question, and seems to simply assume that any false negatives are too many without any acknowledgement that there is a real burden to society from false positives."

More anon.

Back on the Farm

Per the New York Times: "People for the Ethical Treatment of Animals said today that it would sue the KFC Corporation in Los Angeles on Monday as part of the group's six-month boycott to seek an improvement in the way 700 million chickens are raised and slaughtered every year for the fast-food giant."

Some will see in this story another symptom of America's disheartening tendency to resolve problems through litigation.

Litigators, however, will instantly see another angle. Assuming the lawsuit goes anywhere, there is going to a battle of the chicken-slaughtering experts. Someone, that is, will have to testify knowledgeably about how to kill a chicken in humane fashion.

This thought is enough to make a trial lawyer peer nervously at his rollodex. Where can you find a chicken-slaughtering guy? A cursory web search does reveal niches in the division of labor where people seem to have the chicken-killing process down to a veritable science. But as any litigator can tell you, finding someone from that world who can testify persuasively and who knows the evidentiary game -- someone experienced with the perils of Rule 26(a)(2)(B) and Kumho Tire -- may still be an arduous labor.

Are you listening, PETA? We'll save you some trouble. There's nothing at under "poultry."

Sunday, July 06, 2003

The Search for Truth at ALF (part 1)

Last night I began my quest for statements from the web site of the Atlantic Legal Foundation with which I might agree.

It is going to be an uphill battle. The first sentence appearing on ALF's home page reads:

"ATLANTIC LEGAL FOUNDATION is a nonprofit, nonpartisan public interest law firm whose mission is to advance the rule of law by advocating limited, effective government, free enterprise, individual liberty and sound science."

Nonprofit? ALF does appear to be organized as a 501(c)(3) corporation, and says it operates on funds donated by "private foundations, corporations and individuals."

Nonpartisan? One detects no formal affiliation with the Republican, Democratic, or Green parties. But a certain ideological tilt is apparent from the positions taken in ALF's various published briefs. In fairness, ALF says "nonpartisan," not "moderate." And it doesn't hide its buzzwords -- e.g., "limited government," "free enterprise."

Public interest? Well, maybe the public interest is in the eye of the beholder. But just to be clear, this is not a food stamp clinic.

Law firm? Not, perhaps, in the sense you would ordinarily assign to the phrase. Here is how ALF describes its leadership. There is a board of directors, along with some corporate officers and an advisory council. These include some fair number of attorneys, but most of those attorneys seem to have very gainful employment elsewhere. Does ALF employ lawyers below the officer-and-director level? If so, their presence is unadvertised at the site. And they don't seem to participate extensively in the American Lawyer's summer associate surveys.

Advocating sound science? I gave a hurried look to the collection of briefs that ALF has posted, and I didn't see any brief advocating the admissibility of testimony from a practitioner of sound science. In fact, I didn't see any briefs advocating the admissibility of testimony from any scientist at all. But maybe I missed something. I'll be taking a closer look.

Bernstein on SKAPP (part 3)

In our running discussion of SKAPP, Professor Bernstein has updated his post of 7/03/03. Of my challenge to Bernstein to offer his views on the actual substance of SKAPP's conclusions, Bernstein says he "could do that." But he doesn't. Instead he refers interested parties to the forthcoming New Wigmore: Expert and Scientific Evidence, of which he is co-author, and in which he promises to discuss (not SKAPP's findings, necessarily, but) "Daubert and other expert evidence-related issues" in great detail.

Professor Bernstein's work is sure to be illuminating. At the moment, of course, it remains to be published, but a promise is consideration for a promise, and so I shall keep my end of the bargain and survey the Atlantic Legal Foundation's site for propositions with which to concur.

Saturday, July 05, 2003

Putting It on the Record

There is no ducking the question that recurring readers of this blog must already be asking: Does Nordberg read any newspapers, other than the New York Times?

Well, yes, I do. But material from the NYT has been seeming especially bloggable.

Today, for instance, the Times has a longish piece on medical societies that discipline member physicians for giving expert testimony that the societies consider improper. Predictably enough, plaintiffs' attorneys are seeing this as intimidation, whereas the medical societies are seeing it as peer review.

This makes me wonder whether juries might have the same ambivalence.

So far, the primary battle has been over whether the medical societies should be allowed to do this sort of thing at all. That battle has been waged partly via litigation, with the medical societies generally prevailing. See, e.g., Austin v. American Ass'n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), cert. denied, 534 U.S. 1078 (2002).

But perhaps the battle could also be joined in the underlying trials. If we live in a country where doctors are subject to professional discipline for testifying in a disfavored manner, and if it is doctors who testify for malpractice plaintiffs who are by far the most frequent targets in disciplinary proceedings, then perhaps the trier of fact should know this. Of course, the jury will never find out, if no physician can be found who will risk testifying for a malpractice plaintiff in the first place. But in a malpractice trial where both sides have indeed managed to find experts, the institutional backdrop against which their testimony is offered seems germane to its credibility and reliability.

Q: So, Doctor Smith, what information did you consider in forming your opinion?

A: Among other things, I considered the propensity of the American College of Neurosurgeons to impose professional sanctions on physicians who testify for malpractice plaintiffs, but only very rarely on physicians who testify for malpractice defendants.

Thursday, July 03, 2003

Bernstein on SKAPP (part 2)

The estimable Professor Bernstein says my post of 7/2/03 misapprehends his point about SKAPP. The real outrage, if I understand him correctly, is that "junk science" led to the "extortion" of "billions of dollars" from breast implant manufacturers in the first place. It just adds "insult to injury," Bernstein says, that some of those funds ended up subsidizing a study concluding that Daubert's guidelines are too strict. Bernstein grants that the content of the SKAPP study must stand or fall on its own merits.

Unfortunately, Bernstein still does not engage those merits directly, but instead launches a different ad hominem attack. The SKAPP study's sponsors, he now says, have an obvious "left-wing, environmentalist, redistributivist bias." Moreover, "the panel that conducted the study had no representative of 'hard science' on it: no one from a physics, biology, or chemistry department. Instead, there are professors from the squishy field of Environmental Health, an Urban and Environmental Policy and Planning Professor, and an MD." Prof. Bernstein goes on to note that "one or more of these professors is [apparently] a philosopher by training." It is not certain whether Prof. Bernstein regards this last circumstance as boon or bain.

Courts performing Daubert analyses commonly distinguish between an expert's qualifications, on the one hand, and the validity or reliability of the expert's reasoning, on the other. If we think of ourselves as subjecting the SKAPP study to a similar analysis, Bernstein's remarks go almost entirely to the former issue. Concerning the actual content of the SKAPP study, Prof. Bernstein says only that the report "reads like a legal brief." (I am therefore safe, so far, from having to deliver on my end of the bargain offered on 7/2/02 -- viz., that I would find some proposition advanced by the Atlantic Legal Foundation with which I could bring myself to concur, if only Bernstein would offer his own substantive views on the SKAPP study's stated conclusions.)

Let's focus, then, as Bernstein does, on qualifications. If the subject under investigation is the admissibility of expert scientific evidence in litigation, why would we look primarily to physicists, chemists, or other "hard" scientists for insight? Physics may be a relatively rigorous discipline, but physicists' expertise is in the study of matter and energy. Presumably Bernstein doesn't consider physicists to have privileged insight into matters of litigation policy. Nor do most disputes about the admissibility of expert testimony involve experts from the "hard" sciences. Expert testimony about physics, for example, is just plain rare. Much more commonly, Daubert challenges involve experts from the very fields that Bernstein disparages as "squishy," like medicine and psychology -- and inquiry in those fields follows very different models. The reliability and utility of expert testimony from those fields may therefore implicate very different considerations, which practitioners from those fields may be better equipped to evaluate than are (say) chemists.

Or is Bernstein really giving voice to an underlying view that all expert testimony purporting to draw on science should match chemistry and physics in style and rigor, on pain of exclusion? Such a standard would put much of forensic science in evidentiary peril. But perhaps I misapprehend again.

Living with Scientific Uncertainty

Who should bear the risk of scientific uncertainty? If society does not want such uncertainties to become grist for litigation, it should be on the alert for other methods to address them. One obvious method is to make information freely available, so that people can make informed choices about what risks to accept when the science is unresolved. That method ought to appeal, especially, to free-market conservatives.

Take the case of genetically modified foodstuffs. Given the relative novelty of such agronomic tinkering, it seems fair to wager that science has yet to reach a consensus verdict on the nature and magnitude of any risks posed by genetically altered foods. This being so, any plaintiff claiming to have suffered injury caused by consumption of Frankenfood would surely face an uphill Daubert battle in court. That's as it should be, conservatives might say. Plaintiffs in civil lawsuits bear the burden of proof, and should not prevail unless well-established science supports their claims.

Should the risks of scientific uncertainty therefore fall entirely on the consumer? If so, it would seem reasonable to impose a labeling requirement, so that consumers could make informed decisions about whether to make the gamble. Today's New York Times reports that the European Parliament has done exactly that. Under the legislation, the requirement would apply to "all food containing more than 0.9 percent of a genetically modified organism. So, for example, a cookie made with genetically modified corn oil would carry a label that states: 'This product contains a genetically modified organism.'"

The official reaction of the Bush administration? It has criticized the legislation, saying it will pose undue burdens for food producers and could prejudice consumers against genetically modified food.

And people wonder why America is plagued with so many lawsuits.

Wednesday, July 02, 2003

Bernstein on SKAPP (part 1)

The Project on Scientific Knowledge and Public Policy ("SKAPP") issued a report last week arguing that Daubert has kept too much legitimate science out of the courtroom.

SKAPP receives financial support from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Impact Products Liability Litigation. David Bernstein is calling this this an "outrage." Why? Because plaintiffs' lawyers, according to Bernstein, "relied on junk science to win billions of dollars in the silicone breast implant litigation," and then turned around and used part of the proceeds "to fund a study advocating, you guessed it, that more junk science be admitted at trials."

In fairness to SKAPP, it would not be a novelty if research funding in this whole area sometimes originated with interested parties. SKAPP, at least, is relatively forthcoming in identifying its major donors. Certainly it seems to compare favorably, in that department, with (say) the Atlantic Legal Foundation ("ALF") -- an organization with whose views Bernstein may be more sympathetic.

However that may be, there is an ad hominem quality to complaints focusing on the economic motivations of participants in the marketplace of ideas -- a focus that may sometimes distract from the underlying debate on the merits (as dysphemisms like "junk science" may also tend to do). And the merits do require evaluation.

Let us suppose, that is, for argument's sake, that the terms of debate on scientific evidentiary standards are indeed being framed by two vast and economically motivated conspiracies -- left wing plaintiffs' lawyers who favor licentious admissibility, on the one hand, and corporate interests who want to raise the evidentiary bar to impossible levels, on the other. What would this tell us about whether the assertions of either side are actually true?

Nothing, of course. We'd have to weigh those assertions against the facts, one by one.

To that end, does Bernstein actually disagree, I wonder, with SKAPP's stated conclusions? Does he differ, for example, with the assessment that Daubert is resulting in the inappropriate exclusion of some legitimate science?

I'll make a bargain. If Bernstein will comment on that issue, I'll try to find some statement from ALF to express agreement with.
Fed. R. Evid. 702: 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.