Sunday, November 30, 2003

Hello World!

Welcome, Tyler!

Friday, November 28, 2003

Researchers Announce Treatment for Sick Building Syndrome

The Washington Post is reporting on research to be published in Saturday's edition of The Lancet in which the use of ultra-violet light in building ventilation systems significantly ameliorated respiratory complaints and other health problems commonly associated with "sick building syndrome." The use of UV light to cleanse the air of bacteria, microbes, and endotoxins resulted in a 40% drop in respiratory symptoms. Reportedly, a typical office building capable of housing 1000 occupants could be outfitted with a UV system for approximately $52,000, plus about $14,000 in annual operating costs.

If this research holds up, the arguments would seem powerful that a commercial landlord could remedy a broad range of "sick building" problems, in the exercise of reasonable care, through cost-effective means.

Thursday, November 27, 2003

Harvard Takes Cognizance of Our Existence

"For a website devoted exclusively to reporting Daubert cases and summarizing doctrinal developments, see"

-- Note, Reliable Evaluation of Expert Testimony, 116 Harv. L. Rev. 2142, 2142 n.2 (2003).

Seton Hall Law Review Publishes Symposium on Daubert

Via the Blawg Review, we learn that the Seton Law Hall Review has published an issue devoted to a symposium on Daubert and expert evidence. The roster of contributors includes Joseph Sanders, Neil B. Cohen, Joe S. Cecil, Christopher B. Mueller, Michel F. Baumeister, Dorothea M. Capone, Richard D. Friedman, Paul C. Giannelli, Roger C. Park, Margaret A. Berger, Jennifer L. Groscup, Steven D. Penrod, Michael J. Saks, and R. Erik Lillquist. The symposium's focus is divided roughly evenly between civil and criminal proceedings.

5th Circuit Upholds Testimony from Grief Expert

A Fifth Circuit panel has upheld the admissibility of testimony from a "grief expert." See Vogler v. Blackmore, No. 02-41527 (5th Cir. Nov. 25, 2003) (Reavley, Jones, & Clement, JJ.).

The claims in Vogler arose from a vehicular accident in which a woman and her three-year-old child were fatally injured. In the family's wrongful death action against the driver, the district court admitted expert testimony on plaintiffs' behalf from thanatologist Dr. Phyllis Silverman. Because the expert had not interviewed or evaluated the plaintiffs themselves, the trial court limited her testimony to general theories of grief and recovery.

Holding that no proper challenge had been raised to the witness's qualifications or to the reliability of her testimony, the Fifth Circuit panel focused on the question whether the testimony was helpful to the trier of fact. Defendants argued that the average juror would not require expert testimony to understand the grief experienced by a family member on the death of a loved one, and raised the danger that expert evidence on that subject would serve as a surrogate for testimony from the family members themselves. While acknowledging these points, the Fifth Circuit concluded that the trial court did not abuse its discretion in admitting the testimony after weighing its probative value against its potential prejudicial effect.

The panel went on to hold that even if the testimony should have been excluded, any error was harmless, because other evidence amply supported the jury's damage award. "It is highly unlikely," wrote the panel, "that Dr. Silverman's testimony aided in the jury's resolution of the case or in its awards to [plaintiffs]." Whatever one may think of the appellate outcome, this is an odd sentence to find in a decision upholding the admissibility of expert testimony.

Wednesday, November 26, 2003

Adversary's Preliminary Expert Reports Held Not to Be Competent SJ Evidence

It has just now come to our notice that the Fifth Circuit ruled, in early October, that on summary judgment, a plaintiff may not rely on defendants' unsigned preliminary expert reports, because such reports are not competent expert evidence. The unpublished opinion, which was rendered in connection with causation issues in toxic tort litigation, does not discuss any possible argument that the reports were party admissions. See Winstead v. Georgia Gulf Corp., No. 02-31212 (5th Cir. Oct. 9, 2003) (Higginbotham, Davis, & Prado, JJ.).

Daubert and Nude Dancing

To sustain an ordinance regulating nude dancing against First Amendment challenge, a municipality need not produce "Daubert-quality evidence" that it tends to promote crime, prostitution, or other deleterious secondary effects, the Seventh Circuit ruled yesterday. Such a requirement "would impose an unreasonable burden on the legislative process," the panel held. See G.M. Enterprises, Inc. v. Town of St. Joseph, No. 03-1428 (7th Cir. Nov. 25, 2003) (Flaum, Wood, & Williams, JJ.).

Tuesday, November 25, 2003

K-9 on a Chip

The Associated Press is reporting on a new drug-sniffing computer chip. The device "works the same way as the dogs," according to the lead researcher on the Georgia Tech team developing the chip. In other words, it's programmed to detect cocaine vapors in microscopic quantities. No word yet on add-on software to read suspects their Miranda rights.

Saturday, November 22, 2003

Two Opinions on the Uses and Abuses of Rule 701

To prove lost profits, corporate litigants sometimes offer lay opinion testimony from their officers and employees. The courts commonly permit such testimony, because the witness's experience with the company's affairs is thought to afford the requisite foundation in personal knowledge under Fed. R. Evid. 701. The Fifth Circuit has issued a published opinion declining to extend such latitude in a case where the witness was not a present or former officer, director, or employee. The witness in the Fifth Circuit case was merely the company's principal contact at a commercial lender, which had been planning to offer the litigant a construction loan in connection with a failed hotel deal. The trial court permitted the testimony, but the witness was held on appeal to lack sufficiently intimate acquaintance with the company's financial affairs to ground a lay opinion. In vacating the plaintiff's damage award and remanding for a new trial on damages, the panel distinguished precedents in which witnesses with affiliations analogous to those of employees or corporate officers (e.g., principal shareholders) have been permitted to opine on lost profits under Rule 701. One factor that may have influenced the outcome: after the the lay witness's opinion was successfully admitted ($8 million in lost profits), the plaintiff decided not to offer trial testimony from its previously designated damages expert ($4.3 million). See Dijo, Inc. v. Hilton Hotels Corp., No. 03-60010 (5th Cir. Nov. 20, 2003) (Jolly, Wiener, & Walter, JJ.).

In criminal cases, the distinction between lay and expert opinion assumes special significance, because under Fed. R. Crim. P. 16, the prosecution is required to afford pretrial summaries of expert testimony, but is under no such obligation for lay witnesses. But prosecutorial gamesmanship is not inevitably repaid with appellate reversal. The First Circuit has affirmed convictions from a massive six-month drug conspiracy trial in which the prosecution successfully offered opinion testimony from eight forensics examiners, two pathologists, and a ballistics witness, without having formally designated any of the witnesses as experts. The panel held that the forensic witnesses testified primarily as fact witnesses about their observations of the crime scene, and that the prosecution had made sufficient substantive pretrial disclosures concerning the other witnesses to negate any claim of prejudice. See United States v. Soto-Beniquez, No. 01-1619 (1st Cir. Nov. 20, 2003) (Selya, Coffin, & Lynch, JJ.). (The link is to the second of two files into which Findlaw has split the opinion. The First Circuit's site appears to be down at the moment.)

Friday, November 21, 2003

National Academy of Sciences to Criticize FBI Bullet-Matching Techniques

Bullets are made in batches. Different batches may have different chemical characteristics and lead content. And bullets from the same batch may be similar in composition. For many years, FBI forensic experts have relied on these seemingly reasonable premises when they want to match a bullet from the crime scene with a box of bullets found in the suspect's basement. Indeed, matching bullets by lead content can fairly be called a well-established forensic technique.

But since retiring from his career as a highly respected FBI metallurgist, William Tobin has been questioning the soundness of lead-matching evidence. Research published by Tobin and others has suggested that bullets from the same batch can vary significantly in their content, and that bullets from different lead sources can appear chemically similar. Partly in response to Tobin's critiques, the FBI commissioned the National Academy of Sciences to look into the matter.

The Associated Press is now reporting that a draft NAS report will include recommendations that the FBI take steps to correct dubious methods and procedures in its lead-matching techniques. Here's the story as posted by MSNBC. Update: TalkLeft has an informative post too.

Thursday, November 20, 2003

4th Circuit Upholds Exclusion of Medical Causation Testimony

In a case where plaintiffs alleged that their cancers resulted from exposure to fertilizer contaminated with picloram, the Fourth Circuit has upheld the district court's exclusion of causation testimony from plaintiffs' expert physician witness. The opinion is unpublished. See Marsh v. W.R. Grace & Co., No. 98-1943 (4th Cir. Nov. 19, 2003) (Widener, Luttig, & Michael, JJ.).

Wednesday, November 19, 2003

3d Circuit Limits Testimony from Three Experts in Products Case

The Third Circuit has upheld the trial court's limitations on testimony from three plaintiffs' experts in a products case. See Calhoun v. Yamaha Motor Corp., U.S.A., No. 02-4098 (3d Cir. Nov. 18, 2003) (Scirica, Rendell, & Ambro, JJ.).

Tuesday, November 18, 2003

Mitochondrial DNA Evidence Admissible in Peterson Trial

Before binding Scott Peterson over for trial, the judge in the Laci Peterson murder trial finally ruled today that the prosecution's mitochondrial DNA evidence was admissible. The testimony matched a strand of hair found on the Petersons' boat to Laci Peterson's DNA, but also to the DNA of 1 out of every 112 Caucasians. Here's the LA Times story.

4th Circuit Upholds Exclusion of Psych Testimony re Child Molestation

In an unpublished opinion, the Fourth Circuit has upheld the exclusion of testimony from an FBI forensic psychologist, to the effect that child molesters commonly begin with innocuous behavior designed to gain the child's trust and later escalate to borderline behavior designed to test the child's receptivity. The decision was rendered in an interlocutory criminal appeal, in a case where a Junior ROTC instructor allegedly made sexual advances toward teenage girls in the JROTC program. See United States v. Fitzgerald, No. 02-4978 (4th Cir. Nov. 17, 2003) (Michael, Traxler, & King, JJ.).

The testimony in the Fitzgerald case bears more than a passing resemblance to law enforcement testimony concerning the modus operandi of drug dealers, which is routinely admitted, commonly after only the most cursory review. It is therefore worth evaluating whether the Fourth Circuit adduces convincing reasons for treating testimony about the modus operandi of child molesters any differently.

Like the trial court, the Fourth Circuit panel rested exclusion on two grounds: unreliability, and unhelpfulness to the trier of fact.

In its discussion of helpfulness to the trier of fact, the panel explicitly distinguished expert testimony about the general conduct of narcotics trafficking, on the ground that the customs and usages of drug dealing are not within the common knowledge of the average juror, whereas strategies for child molestation apparently are.

Not wishing, perhaps, to rest solely on that potentially controversial claim, the Fourth Circuit also undertook a reliability analysis, in which the psychologist's testimony was marched, rather mechanically, through the so-called "Daubert factors." Here are the reasons why the psychologist's testimony failed to clear the hurdles: (1) the expert did not specify how the propositions to which he testified had been tested or how such testing supported them; (2) no record evidence established that the expert's published work had been peer-reviewed; (3) the expert documented no error rate; (4)although the expert claimed that the studies he cited relied on "standards and controls appropriate for and approved for scientifically valid psychological studies," he did not say what those standards are or whether he abided by them; and (5) the expert's claim that his theories are generally accepted was insufficiently documented.

It seems unlikely that the usual testimony from law enforcement personnel about the modus operandi of narcotics dealers would fare any better, if comparable standards were applied. But of course the panel's decision is unpublished, and so it won't supply binding precedent for such cases.

Sunday, November 16, 2003

ScienceDirect Offers Web Research Guide

Via the November 16 edition of Tom Mighell's Internet Legal Research Weekly, we learn that ScienceDirect (a free site offering online access to 5,268,775 scientific articles from over 1800 journals) has published a Web Research Guide. The guide is designed "to help students, faculty members, authors and research scientists find the information they need on the Web." No mention is made of lawyers, but they did let me register anyway. Update: And did you know about scirus? I didn't.

Expert Testimony on Corporate Alter Ego Issues

A reader has written to inquire about decisions on the admissibility of testimony relating to corporate governance and piercing the corporate veil. Any takers?

More Brockovich Bashing

A July 18 post in this space criticized, for want of balance and objectivity, a Time Magazine polemic by Leon Jaroff, in which he fervidly decried a lawsuit brought by Beverly Hills High School alumni. Aided by Erin Brockovich and her mentor Ed Masry, the alumni claim that emissions of benzene and other petroleum by-products from oil wells at the high school caused their cancers and other health conditions.

Eric Umansky has now written a New Republic piece mounting a similar attack on the litigation and its scientific underpinnings. In the end, Umansky's article isn't much more balanced than Jaroff's, but Umansky's attack is more careful, and therefore more credible. No big surprise there. Umansky's article is to Jaroff's as The New Republic is to Time.

Vererans of toxic tort litigation will recognize some of the rhetorical moves in Umansky's article, because they are borrowed straight from the standard defense playbook. It is complained, for example, that the litigation has attracted some plaintiffs with relatively minor health complaints, or who suffer from conditions for which a causal link with benzene or petroleum is not well established. But this phenomenon, which might be dubbed the Fellow Traveler Effect, is a common and well-nigh inevitable feature of mass tort litigation, and does not disprove the thesis that many claims are serious and enjoy legitimate medico-scientific support.

Similarly, Umansky reports that environmental monitoring by state and local officials has not detected abnormal levels of benzene or other petroleum by-products at the high school. But given the latency period of cancer and other diseases, current concentrations of benzene and other toxins are largely beside the point. What would matter more is past concentrations. Moreover, the general track record of modern environmental monitoring is spotty at best. The gizmos may be shiny and high-tech, but often they are maintained improperly, or operated incorrectly. "Anomalous" results may be discarded as "outliers." And the incentives faced by the officials who design the monitoring plans may be weighted against aggressive efforts at detection. The main effect of many environmental monitoring efforts is to create a falsely reassuring impression that concentrations are known with certainty and mathematical precision, when the real situation is actually beset with uncertainties.

Umansky also invokes epidemiological surveys that detected no increased prevalence of the relevant diseases in the general neighborhood, but which did not specifically focus on the school population, because of claimed methodological obstacles. Such methodological disclaimers are really just another way of saying that epidemiology is usually too blunt an instrument to measure highly localized problems with specificity and precision. By definition, epidemiology is the study of health effects in populations, and its powers of reliable detection vary largely with the size of the population studied. You may be able to improve the study's overall statistical reliability by expanding the population investigated, but the price of that improvement is that the study's results may pertain only to that larger population, and not the smaller subset originally of interest. Meanwhile, I've been told that at least one longstanding student of public health issues has defined an ecological catastrophe as anything capable of detection by epidemiological techniques.

Is it possible, as Umansky suggests, that Brockovich and her law firm are exploiting her star power to extract a settlement from innocent defendants, and incidentally to provide fodder for another screenplay? Sure it is. It's even possible that the plaintiffs' evidence will eventually prove gossamer-thin, when subjected to searching judicial scrutiny. But the TNR graphics cartoonishly depicting Brockovich's cleavage aren't very helpful in shedding light on that problem. Indeed, they invite speculation that TNR is simply pandering to celebrity fetishism and anti-lawyer sentiment -- in short, that it is engaged in the very kind of sensationalism for which it faults Brockovich and those in league with her. Missing from all this press coverage is any apparent interest in really getting to the bottom of the public health question. If it turns out that a courtroom is the only place where that can be attempted in an intellectually honest way -- well, it wouldn't be the first time.

Saturday, November 15, 2003

Third Circuit Affirms Exclusion of Engineering Testimony in Products Case

In a nonprecedential opinion, the Third Circuit has affirmed the trial court's exclusion of testimony from an expert who opined that a circular saw was defective in design because it possessed no power brake. The expert's testimony was based on tests, performed years ago, in which he cranked up power saws to full speed and then timed, with his stopwatch, how long they took to stop. He had maintained no records of the tests. According to the Third Circuit, he also failed to conduct a risk/utility analysis, and did not address, except by unscientific and anecdotal methods, the potential negative safety consequences of power brakes. See Cuffari v. S-B Power Tool Co., No. 02-3763 (3d Cir. Nov. 7, 2003) (McKee, Smith, & Fuller, JJ.).

The Ethical Implications of Evidentiary Rules

From a post by Tyler Cohen over at VC, we learn of a controversy over the practice, by some pesticide manufacturers, of testing the safety of their products by paying human subjects to ingest the pesticides. The EPA doesn't currently regulate the practice, but is thinking of doing so.

Reflection is warranted over whether prevailing expert evidentiary rules operate to incentivize such behavior -- and, if so, whether we should change the rules, if the EPA doesn't fix things first. As matters stand, a research study purporting to show an absence of ill effects in human subjects has potentially tremendous economic value to enterprises like pesticide companies. That potential value seems likely to exceed, by far, the cost of compensating study subjects who may be harmed along the way. And the world, of course, is full of people who will cheerfully down a glass of DDT for $200. Given the economic incentives, researchers and participants alike seem unlikely to be deterred over concerns about epidemiological ethics -- e.g., the questionable legitimacy of exposing human populations to suspected toxins in an effort to measure the effects.

It is hard to shake the feeling that such "research," if undertaken by Saddam Hussein in Iraq, would probably be deemed a war crime. Should its fruits be admissible in American courts?

Expert Bias and Fair Trials

Imagine a woman professor who brings a Title VII suit against a university, alleging that it systematically pays women faculty, including her, less than it pays men. Imagine further that the university offers an expert who opines, based on statistical analysis, that the woman professor's salary falls in the same general range as the salary levels paid to male faculty with comparable experience and publication records. Imagine, finally, that the professor seeks to exclude this testimony as unreliable, on two grounds. First, the expert's colleagues say that although a capable statistician, he has a history of careless work. But second and more important, they say he also has a history of making wildly derogatory remarks about women in academia, frequently using vulgar and offensive terms to refer to them. Is this proper grist for a Daubert motion? If not, is it proper material for cross-examination?

Not idle questions. As it happens, we must correct two errors in an earlier post about the government's DNA expert in the DC Sniper trial of John Muhammad.

First, we identified the prosecution witness, Edward C. Bender, as an FBI forensic expert. He actually transferred to ATF in 1990, after eleven years at the FBI.

Our second and bigger error was in calling his testimony uneventful. That assessment turns out to have been premature at best. CNN is now reporting on allegations that back in his FBI days, Bender sometimes did sloppy work and engaged in frequent racist harangues, referring to African Americans as "niggers" and "jungle bunnies." A 1997 report of the FBI Laboratory's Inspector General's Office concluded that investigation into these allegations should have been pursued further.

John Muhammad is African-American. The allegations about Bender were not included in the prosecution's Brady disclosures. The Virginia prosecutors handling Muhammad's trial say they weren't aware of them.

The thinking here, and in most of the reported appellate decisions, is that allegations of bias should not generally constitute grounds for exclusion of expert testimony under Daubert and Kumho Tire. The admissibility of expert opinion, these days, is supposed to depend on whether the testimony can be defended as methodologically sound -- an issue to which the expert's testimonial motivations are not directly pertinent.

But the thinking here is also that government forensic labs should fire personnel with a known and intractable penchant for racist speechifying. If the O.J. Simpson trial taught no other lesson, it taught that such a history severely impairs the utility of prosecution witnesses, because once disclosed, such a history is indeed fair game for cross. That impairment, by itself, should suffice to meet First Amendment concerns about discharging such personnel, liberating their governmental employers to do the right thing, after affording such Process as may be Due.

Update: It would probably wrong, however, to administer this test.

Monday, November 10, 2003

The Science Times at 25

The NYT Science Times celebrates its 25th anniversary this week, with a collection of 25 articles on what it calls "the most provocative questions facing science." Not to be missed is the fascinating essay by William J. Broad and James Glanz on the current prospects of the scientific enterprise, entitled "Does Science Matter?" Overall, the collection is a tour de force of thoughtful scientific journalism.

It is hard to think of any periodical that has done more, over the past 25 years, to bring the modern practice of science to the daily consciousness of the educated public. The writers and editors who labor at this task may feel justly proud.

Fate of Breast Implant Reapproval Still in Doubt

The media gave it scant play, but this article from last Thursday's Washington Post reports that the decision on FDA reapproval of silicone breast implants may not be so final as it first seemed. Last month, an FDA advisory panel voted 9-6 to recommend reapproval. But it now transpires that the panel's chairman (who, pursuant to FDA rules, did not vote) has written a letter to FDA Commissioner Mark McClellan, urging that the advisory panel's vote was misguided and should be rejected. Among the points raised by opponents of reapproval: every plastic surgeon on the panel voted in favor of permitting the implants.

Thursday, November 06, 2003

Caudill and LaRue on Daubert

Via the Legal Theory Blog, we learn of:

David S. Caudill & Lewis H. LaRue, Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science, 45 B.C. L. Rev. 1 (2003).

The SSRN abstract can be found here; the article itself, in PDF format, here.

Thought-provoking reading.

Crunching the DNA Numbers

DNA evidence seems a more humdrum affair in courts outside California. The New York Times is running this story on Wednesday's seemingly uneventful testimony from an FBI forensic expert in the DC sniper trial. The expert opined that genetic material found on a Bushmaster rifle allegedly used in the shootings almost certainly belonged to defendant John Muhammed. The chances that the DNA belonged to someone else, the expert said, were less than one in 46 billion.

It is common to hear such probabilistic claims in DNA testimony. But where do the experts get these numbers? How are the probabilities computed? A fairly lucid primer on DNA identification, with some discussion of the number crunching, can be found at

Monday, November 03, 2003

Defense in Laci Peterson Case Calls DNA Expert

Here's the CNN story on the defense expert called at the preliminary hearing in the Laci Peterson murder case, to testify that mitochondrial DNA testing is unreliable.

Sunday, November 02, 2003

Evidence and Death

The Sunday NYT reports that Massachusetts Governor Mitt Romney is proposing a more exacting standard for forensic evidence -- but only in capital cases, where it may help to preserve the political palatability of the death penalty. Under the Governor's proposal, a death sentence could be imposed only if physical evidence of guilt met "the highest evidentiary standard." That standard remains undefined, so far, but presumably it would be more stringent than the middling evidentiary standards appropriate for forensic evidence in cases involving mere life sentences.
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.