Friday, April 30, 2004

Third Circuit Upholds Fingerprint Testimony

The Third Circuit issued a major opinion yesterday upholding the admissibility of fingerprint evidence. See United States v. Mitchell, No. 02-2859 (3d Cir. Apr. 29, 2004) (Barry, Becker, & Greenberg, JJ.).

Wednesday, April 28, 2004

Court Upholds Testimony Linking Plutonium Exposure with Leukemia

A reader has passed along news of an April 23 decision by Judge Richard G. Stearns of the District of Massachusetts involving expert testimony on "whether a scientifically reliable hypothesis supports plaintiff’s claim that chronic low-level exposure to inhaled or ingested plutonium and americium alpha emitters can cause the onset of chronic myelogenous leukemia (CML) in human beings" (as the opinion puts it). The court's conclusion:

While I can see a benefit to a rule empowering judges to act as the ultimate arbiters of scientific disputes, at least insofar as they may impact on the conduct of litigation, it would be a difficult rule to reconcile with the constitutional delegation of the fact-finding duty to juries. I cannot dismiss plaintiff’s experts as poseurs or witnesses for hire. They are serious scientists with controversial views that are in many respects on the periphery of the mainstream, but views that are not so divorced from a scientific method of investigation that they can be dismissed as quackery or armchair conjecture. Hence, as I understand Daubert, my role is over, and the role of the jury begins.
See Smith v. General Electric Co., No. 91-12912-RGS (D. Mass. Apr. 23, 2004).

Tuesday, April 27, 2004

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Saturday, April 24, 2004

9th Circuit on Causation Testimony in Medmal Case: Kumho Tire More Apposite Than Daubert

The Ninth Circuit has published an opinion reversing the trial court's exclusion of plaintiff's causation testimony in a surgical malpractice case. In doing so, the panel held that although Daubert was "relevant," the standards of reliability for experience-based testimony announced by the Supreme Court in Kumho Tire were "more apposite."

The facts: Following a mastectomy, the plaintiff underwent breast reconstruction surgery. For reasons including complications with equipment in the operating room, the reconstruction lasted thirteen hours -- considerably longer than usual. The plaintiff voiced post-operative complaints that she felt a "hole" in her back, near the site where tissue had been harvested for the reconstruction. The surgeon initially advised the patient that she was experiencing a seroma ("an area of skin and tissue that sometimes goes dead during surgery," as the surgeon explained it). But when the bandages were removed a week later, there was a wound in the patient's back, with necrotic tissue subsequently attributed to an infection. The surgeon performed an additional procedure to debride the wound. The plaintiff suffered severe scarring and subsequently experienced muscle weakness in her lower back. She later had additional surgery to correct the disfigurement of her back.

A malpractice action followed. The plaintiff's expert, a professor of clinical surgery at the University of California at San Diego and director of its Breast Care Unit, opined that the unusual length of the reconstructive surgery increased the risk of complications at the donor site, including infection and necrosis. The district court excluded her testimony under Daubert and awarded summary judgment. The district court's ruling rested in part on its conclusion that the patient's infection occurred close to the site of a surgical drain near the plaintiff's armpit, and not near the wound at the harvest site. The district court also concluded that the harvest site showed mere bruising. Plaintiff's expert, the district court said, "has not set forth the steps used to reach the conclusion that literature addressing the effect of operative length on the incidence of surgical wound infections is analogous to the effect of operative length on the incidence of surgical drain infections, much less how that literature applies to bruising at the skin harvest site."

The Ninth Circuit reversed, resting its ruling on two independent grounds. First, it held that the district court's ruling rested on erroneous conclusions concerning legitimately disputed issues of fact (the location of the infection, the nature of the wound). That, according to the panel, was sufficient ground for reversal.

But the panel went further. "Even if the district court had not abused its discretion by misapprehending the evidence," the panel held, "it applied an inappropriately rigid Daubert standard to medical expert testimony." The Kumho Tire standards for experience-based testimony, it said, were more apposite:

The principle that the duration of the surgery bears on the likelihood of infection appears to be generally accepted. It is a particular application of broader principles going back to Pasteur and Lister on the role of bacteria and the likelihood of bacteria infecting open wounds. The application of both the broader and narrower principles to the case at hand is properly the domain of a surgeon experienced in the field. The textbooks cannot say what increase in the risk of infection is probable in the case; that estimate may be made by the expert putting the principles to work. Therefore, the district court abused its discretion and invaded the province of the expert by requiring the texts to state the precise type of harm explained by the specialized testimony of a medical expert.
The appellate court remanded the case for a new determination on the admissibility of the expert's testimony, directing the trial court "to proceed as a good surgeon would in determining what is reliable knowledge in the surgical profession."

The panel also ordered the reassignment of the case on remand. It specifically disclaimed any belief that the trial judge could be charged with bias, but because this was an FTCA action, the judge would also act as trier of fact. The panel believed that because the district judge had embraced the defendant's account of the facts, it would be difficult for him to try the matter with an open mind.

See Sullivan v. United States Dep't of the Navy, No. 02-57006 (9th Cir. Apr. 23, 2004) (Noonan, Thomas, & Bea, JJ.).

Friday, April 23, 2004

Site Adds Kentucky Decisions

Barry Miller has generously agreed to monitor Kentucky state law decisions for Daubert on the Web. A partner in the Lexington law firm Fowler, Measle & Bell, Miller concentrates his practice on insurance issues, including extracontractual claims, representing insurers and policy-holders. He reported for small-town newspapers in Kentucky for several years before attending law school, and has taught Mass Communications Law at Eastern Kentucky University. We're glad to welcome him aboard.

This expands the site's state law coverage to eight states (AL, CO, IL, KY, ND, TX, UT, and VA), comprising about 20 per cent of the American population. Write to us if you'd like to help by monitoring decisions for one of the remaining jurisdictions.

Thursday, April 22, 2004

New Decisions from Illinois and Virginia

We have new appellate decisions from Illinois (Frye hearing required for sexual dangerousness testimony based on actuarial instruments) and Virginia (upholding admissibility of testimony from sexual assault nurse examiner on causation of rape victim's injuries).

"60 Minutes" on Munchausen Syndrome by Proxy

Here's the transcript of yesterday's 60 Minutes story on Munchausen Syndrome by Proxy and Dr. Roy Meadow.

Tuesday, April 20, 2004

3d Circuit Rejects Challenge to Agent's Testimony re Drug Jargon

In a nonprecedential opinion, the Third Circuit has upheld the admissibility of yet another law enforcement officer's expert testimony about drug jargon. The defendant protested that the government violated its discovery obligations by failing to provide a pretrial expert report, but the Third Circuit panel was satisfied with the 469-page affidavit provided to defense counsel prior to trial in which the agent's testimony was explained. The defendant also challenged the agent's qualifications on appeal, but failed to do so at trial. See United States v. Katzin, No. 02-2407 (3d Cir. Apr. 19, 2004) (Alito, Aldisert, & Becker, JJ.).

Monday, April 19, 2004

Illinois State Law Decisions to Be Included at "Daubert on the Web"

We're pleased to announce that C.E. Petit, Esq., better known to some as the fellow who brings you Scrivener's Error, has agreed to monitor Illinois state court decisions for our parent site. Update 4/20/04: Mr. Petit is no slouch. The first Illinois decision has already rolled in.

Second Circuit Links Repaired

We discovered today that the links to Second Circuit opinions at our parent site were in hopeless disrepair. Things were in such a sorry state that we're surprised to have escaped public chastisement. Between obsolete links to Pace University archives and our belated discovery that the Second Circuit now posts unpublished opinions, everything was a mess. We've fixed all the links, and shepardized them for good measure. Our apologies to everyone residing or practicing in Connecticut, Vermont, or New York.

Sunday, April 18, 2004

Daubert and the Pittsburgh Pirates

Pittsburgh pitcher Kris Benson made baseball history today by laying down four sacrifice bunts in one game, tying the major league record.

The last NL player to do the same? You can find the answer here.

Saturday, April 17, 2004

Addition of Virginia Expands Site's State Law Coverage to Six Jurisdictions

With today's addition of a correspondent from Virginia, we have now recruited volunteers to monitor state law decisions on expert evidence from six separate states, representing 14 per cent of the American population. Here is the roster of our state law collaborators as it now stands:

Alabama: Edward Still, the sagacious attorney known to many of you as the author of the indispensable Votelaw weblog.

Colorado: James England of the Boulder law firm Hutchinson, Black & Cook. Among his many other accomplishments, Jim is co-author of the Colorado version of Edward J. Imwinkelried's highly regarded Evidentiary Foundations treatise.

North Dakota: Leonard Bucklin, a veteran litigator who also frequently serves as an expert witness himself on legal malpractice issues, and who has written extensively on expert evidence and other subjects.

Texas: Jim Dedman, of Germer Gertz. After graduating from Baylor Law School in 2002, Jim served as a briefing attorney in the Fourteenth Court of Appeals in Houston, Texas. His observations on law, life, and culture (including his forays into screenplay writing) are chronicled at the always diverting

Utah: John H. Bogart, of the Salt Lake City firm Bendinger, Crockett, Peterson, Greenwood & Casey. In addition to his accomplishments as a litigator, John boasts a Ph.D. in philosophy, and has taught that subject at the university level, besides having served as Adjunct Professor of Law at Loyola University School of Law.

Virginia: Finally, we are pleased to announce that Steven R. Minor, a principal of the Virginia law firm Elliott Lawson & Minor, has agreed to monitor Virginia state court decisions for the site. Many readers also know Steve from his excellent Southwest Virginia Law Blog. Update 4/19/04: Here is Steve Minor's take on Virginia's current posture on Daubert.
This leaves 44 states, comprising the remaining 86 per cent of the United States population, still up for grabs. All you need to do is keep up with your jurisdiction's appellate decisions on expert evidence and pass new developments along. Write to us if you're interested in helping out.

9th Circuit Upholds Handwriting Analysis

In a criminal prosecution for wire fraud and various counterfeiting offenses, the Ninth Circuit has published an opinion in which handwriting analysis is held to satisfy the reliability standards imposed by Daubert. See United States v. Prime, No. 02-30375 (9th Cir. Apr. 16, 2004) (Trott, Paez, & Berzon, JJ.). The panel walked the technique through all the Daubert "factors":

Testing. "The government and [its expert] provided the court with ample support for the proposition that an individual's handwriting is so rarely identical that expert handwriting analysis can reliably gauge the likelihood that the same individual wrote two samples. The most significant support came from Professor Sargur N. Srihari of the Center of Excellence for Document Analysis and Recognition at the State University of New York at Buffalo, who testified that the result of his published research was that 'handwriting is individualistic.'"

Peer review and publication. "The [district] court cited to numerous journals where articles in this area subject handwriting analysis to peer review by not only handwriting experts, but others in the forensic science community."

Rate of error. "[S]tudies demonstrated that expert handwriting analysts tend to be quite accurate at the specific task [the expert] was asked to perform -- determining whether the author of a known writing sample is also the author of a questioned writing sample. When the two samples were in fact written by the same person, professional handwriting analysts correctly arrived at that conclusion 87% of the time. On the other hand when the samples were written by different people, handwriting analysts erroneously associated them no more than 6.5% of the time."

Standards. "The [district] court recognized that although this area has not been completely standardized, it is moving in the right direction. The Secret Service laboratory where [the prosecution's expert] works has maintained its accreditation with the American Society of Crime Laboratory Directors since 1998, based on an external proficiency test. Furthermore, the standard nine-point scale used to express the degree to which the examiner believes the handwriting samples match was established under the auspices of the American Society for Testing and Materials ('ASTM'). The [district] court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court."

General acceptance. "The district court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service."
In concluding that the handwriting analysis testimony was properly admitted, the panel noted the consistency of that result with decisions upholding such testimony in all six circuits to have addressed the issue previously.

Friday, April 16, 2004

7th Circuit Upholds Fingerprint Testimony

The Seventh Circuit has again rejected Daubert challenges to fingerprint testimony, in an opinion conveying the distinct impression that the court now regards the question as settled. See United States v. George, No. 02-2996 (7th Cir. Apr. 14, 2004) (Bauer, Posner, & Kanne, JJ.).

Wednesday, April 14, 2004

More on Open Access Research Journals

A learned reader has written to draw our attention to BioMed Central -- home to over 100 open access journals in the fields of biology and medicine. If you didn't know about this, drop what you're doing and take a look.

Daubert and Landfills

Our new correspondent on matters of Colorado state law, Jim England of the Boulder law firm Hutchinson, Black & Cook, has passed along a Denver Post report about testimony from an expert in the obscure field of dumpology. It's about time that the real "junk scientists" got their turn.

Tuesday, April 13, 2004

Texas Follows in Weisgram's Footsteps

In correspondence from Jim Dedman, who monitors Texas decisions for our parent site, we learn of an article in the April 2004 Texas Bar Journal discussing Kerr McGee Corp. v. Helton, 47 Tex. Sup. Ct. J. 248 (Jan. 30, 2004) -- a decision in which the Texas Supreme Court held that exclusion of expert testimony after trial, on appeal, does not necessarily warrant remand for a new trial, where the proponent was on fair notice of the objection. This outcome essentially reprises Weisgram v. Marley Co., 528 U.S. 440 (2000).

2d Circuit Upholds Exclusion of Creditors' Business Valuation Experts in Keene Bankruptcy Proceedings

In an unpublished opinion, the Second Circuit has upheld the trial court's exclusion of business valuation testimony from experts offered by asbestos claimants in a fraudulent conveyance claim against the bankrupt Keene Corporation. The claimants argued strenuously that various perceived defects in the experts' testimony went to weight, not admissibility. But the panel appears to have been impressed with the district court's opinion, which cited no fewer than 18 reasons why the testimony failed to satisfy Rule 702. See Lippe v. Bairn Corp., No. 03-7360 (2d Cir. Apr. 9, 2004) (Meskill, Katmann, & Wesley, JJ.).

Open Internet Access to Scientific Research Articles

The current issue of American Medical News, a newsletter of the AMA, includes an article on experiments with open access to scientific research papers. The Journal of the American Medical Association already has a policy of open access for articles over six months old. Others are now going further. A consortium of research scientists calling itself the Public Library of Science plans to publish under a plan of open internet access, with costs of publication and peer-review funded in part by the scientists who author the articles. Will it take off? We doubt that JAMA or Cell will be driven from the market anytime soon. But if this new publication model does gain some traction, it will be interesting to see how the courts respond to author-subsidized peer-review. Thanks to TVC Alert for the pointer.

Saturday, April 10, 2004

Both Sides Reject Court-Appointed Expert in Nebraska Abortion Trial

U.S. District Judge Richard Kopf, who is presiding in the Nebraska trial over the constitutionality of the "partial-birth abortion" ban, offered to secure assistance from a court-appointed expert yesterday, in the wake of public statements by congressman Steve King (R.-Iowa) that the judge should not substitute his views for those of Congress, which had already determined, according to King, that the procedure was never necessary to preserve the life of the mother. The Miami Herald (registration) carries these excerpts of the judge's remarks from an Associated Press dispatch:

We are now nearing the end of this case, and with great respect, I note that we had a member of the House Judiciary Committee apparently sit in during part of this trial, and that member felt it necessary to complain about activist judges to the press after attending one of those sessions.

I want to do this matter as straight up as I can. I have no inclination one way or the other how this thing turns out. I don't care how it turns out, other than I do it as best I can as a judge.

I'm willing to submit this record to a court-appointed expert chosen through the good auspices of the American Association for the Advancement of Science if the parties are interested in doing that. I want to dispel any notion that this court is either disrespectful of Congress or has some agenda that is anything other than finding the facts truthfully and applying the law within the court's admittedly limited ability to do that, so at the conclusion of these proceedings today, I'm going to be asking you whether you would want me or be willing to have me utilize a court-appointed expert.

How I envision that happening, and this is general in nature, but would be to have the association nominate one or more persons to serve in that capacity essentially to answer two questions: Is the so-called partial-birth abortion procedure ever necessary prior to viability and if not, why not, and if so, why and when, and the same question post-viability.
Both sides declined the offer, according to an A.P. story running in the Arizona Daily Sun. The A.P. had issued an earlier, erroneous report that the judge had offered to recuse himself, which A.P. subsequently retracted.

Friday, April 09, 2004

9th Circuit Upholds Statistical Testimony in Voting Rights Case

The Ninth Circuit has upheld a district court ruling that the at-large voting system for county commissioners in Blaine County, Montana, violates section 2 of the Voting Rights Act by diluting the vote of American Indians. In the course of doing so, the appellate panel rejected the county's procedural and substantive quarrels with the trial court's gatekeeping performance. See United States v. Blaine County, No. 02-35691 (9th Cir. Apr. 7, 2004) (Wardlaw, Gould, & Paez, JJ.).

Procedurally, the county complained that the district court failed to rule on its objections to testimony from three of the United States' expert witnesses. In rejecting that argument, the panel observed that the trial court did appraise the reliability of testimony from one of the experts. Its failure to do the same for the other two was harmless error, the panel held, because the district court's findings of fact and conclusions of law did not cite or depend on their testimony in any essential way.

Substantively, the county challenged one expert's reliance on race-identified registration lists. But the county's own expert testified that race-identified registration lists are commonly used and acceptable tools for examining racial voting patterns, and the challenged expert's statistical analysis yielded results similar to those found by the county's own expert.

Thursday, April 08, 2004

Expert Attorney Witnesses Break Long Dry Spell

For the first time in this decade, a federal appellate court has upheld the admissibility of testimony from an attorney serving as an expert witness. But before lawyers start dancing in triumph, we should mention the upshot. Based on the expert's testimony, a Utah law firm's bill was cut by more than half. See Van Cott, Bagley, Cornwall & McCarthy v. Williams, No. 02-4245 (10th Cir. Apr. 6, 2004) (Seymour, Brorby, & Henry, JJ.) (unpublished).

9th Circuit Upholds Exclusion of Testimony re Child Interviews

An El Salvadoran woman living in the United States arranges for two men to smuggle her eight- and ten-year-old sons into the country. When the men show up to deliver the children, they announce a price change, from $500 to $800, and say they'll return with the boys when the parents come up with the cash. The parents call the authorities. Acting on police advice, the parents contact the two men to say they have the money. Police arrest the men when they show up for the exchange.

The FBI interview the eight-year-old boy five times over two years. In his sixth interview, the boy says, for the first time, that the men threatened him with abuse if his parents did not make payment. The boy testifies to the same effect at trial. The defendants want to rebut the boy's testimony with expert evidence about the suggestibility of children. The district court excludes the testimony as irrelevant, because "there is no relevant proffer to establish the necessity for expert testimony" on the subject.

The men are convicted and appeal. What result?

The Ninth Circuit affirms, because defendants' arguments about the late-breaking character of the boy's report are "speculative enough" that the panel cannot hold the district court's ruling to have fallen outside the range of its sound discretion. The panel does not reach the district court's alternative ground that the evidence would confuse the trier of fact under Fed. R. Evid. 403. See United States v. Carreno, No. 02-10464 (9th Cir. Apr. 6, 2004) (Wallace, Noonan, & McKeown, JJ.).

Wednesday, April 07, 2004

Who, Us?

We're pleased and honored that Bob Ambrogi lost his moral compass for long enough to include our parent site in his compendium of 60 Sites in 60 Minutes for the 2004 ABA TechShow.

Tuesday, April 06, 2004

Do You Want Fries with That?

Today's LA Times (subscription) reports that fast-food chains serving up supersized orders of hot, crispy french fries may face lawsuits over more than just obesity. Officials are investigating the health risks posed by the chemical acrylamide, which is produced naturally when starchy foods are cooked, but which also causes cancer when fed to lab rats in large doses. The EPA imposes stringent regulations on acrylamide in drinking water, and in California, since 1990, acrylamide has been one of those things that "is known by the State of California to cause cancer, birth defects, or other reproductive harm."

Now people have noticed it showing up in the food supply -- and not just in french fries. The FDA has tested over 700 foods and found acrylamide in a broad range of products, from potato chips to Kellogg's Raisin Bran to Taster's Choice instant coffee. The question now is whether the public should be warned. Under California's Proposition 65, product warnings are normally required whenever concentrations of a "known" carcinogen reach designated levels. For acrylamide, that level is set at 0.2 micrograms per day, and french fries can contain 100 times that amount. Needless to say, lawsuits are already in progress.

The predictable policy debates are already in progress too. Some fear the public would overreact to warnings, with possible deleterious effects on dietary habits. Others say that acrylamide warnings would contribute to the general debasement of the warning coinage. Still others say that warnings might prove beneficial, by sparking efforts to develop food-preparation methods that reduced the risk.

Might the balance to be struck depend on the food? We have argued previously that although there may be good reasons for serving Starbucks coffee at piping hot temperatures to maximize its tastiness, those arguments lose much of their force when applied to the McDonald's concoction. So too, the utility of acrylamide warnings might vary with the foodstuff in question. Most consumers probably already know that fast-food french fries, indulged as a dietary staple, will kill them, and consumers seem largely undeterred by this intelligence. To tell them about less significant risks posed by acrylamide may just worry them to no substantial deterrent purpose. By contrast, Americans sitting down to a breakfast of raisin bran and instant coffee may not be so acutely conscious of the potential dangers, and might welcome the information.

It's complicated, of course. If we scare people too deeply about the raisin bran, they may just head out for a Sausage McMuffin. In fact, this is already a longish post, and we're feeling hungry.

Monday, April 05, 2004

Brooklyn Law School's Journal of Law & Policy Launches Series on "Science for Judges"

The current issue of Brooklyn Law School's Journal of Law & Policy (vol. XII, no. 1) heralds the first installment in a series of issues on "Science for Judges." According to Prof. Margaret Berger's introductory piece:

These articles are a felicitous outgrowth of a grant from the Common Benefit Trust established in the Silicone Breast Implant Products Liability Litigation to hold a series of conferences at Brooklyn Law School for federal and state judges to discuss complex questions that arise at the intersection of science and the law. The programs, under the auspices of Brooklyn Law School’s Center for Health Law and Policy, are being presented in collaboration with the Federal Judicial Center, the National Center of State Courts, and the Panel on Science, Law and Technology of the National Academy of Sciences.
The inaugural salvo includes the following articles, available for download at the link given above:

David L. Eaton, "Scientific Judgment and Toxic Torts -- a Primer in Toxicology for Judges and Lawyers"

Douglas L. Weed, "Causation: An Epidemiologic Perspective (in Five Parts)"
Thanks to the Blueblanket Blawg Review for alerting us to the news.

Sunday, April 04, 2004

Daubert and Merger Analysis

A draft paper by Gregory J. Werden, Luke M. Froeb, and David T. Scheffman, entitled A Daubert Discipline for Merger Simulation, is posted at the FTC website. From the abstract:

For more than a decade, structural game-theory models have been used to predict the price effects of mergers, using what is termed “merger simulation.” We propose a discipline for merger simulation based on the Daubert reliability screen applied to all expert testimony. Specifically, we propose that every modeling choice in a merger simulation apt to matter significantly be accompanied either by some sort of justification or by a sensitivity analysis indicating its impact.
Worth a look.

Saturday, April 03, 2004

Bush Administration Denies Pushing Bad Science

On 2/18/04, we wrote about a report from the Union of Concerned Scientists accusing the Bush administration of suppressing and distorting scientific findings in service of its policy goals. Today's New York Times now reports on the Bush administration's response.

Judge Posner on "Rules of Law"

This may be off-topic, but we can't help ourselves.

In the course of legal research, we have stumbled across the following bit of wisdom by Judge Posner in AM Int'l, Inc. v. Graphic Management Associates, Inc., 44 F.3d 572, 575 (7th Cir. 1995):

Rules of law are rarely as clean and strict as statements of them make
them seem. So varied and unpredictable are the circumstances in which they are
applied that more often than not the summary statement of a rule -- the terse
formula that judges employ as a necessary shorthand to prevent judicial
opinions from turning into treatises -- is better regarded as a generalization
than as the premise of a syllogism.
Like many insights that seem obvious once stated, Judge Posner's remark may have the ring of a truism. But in the heat of advocacy, its truth is often disregarded. It even seems to us that disregarding it has become something of a trend -- and one for which computer-assisted legal research may be partly to blame.

Syllogistic reasoning is valid enough, within systems constructed in such a way that well-formed propositions legitimately employing the universal quantifier can serve as the major syllogistic premise. Mathematics is widely assumed to be one example of such a system, and that very assumption shapes the interpretation legitimately to be placed on mathematical utterances. When a geometer says that the area of a circle is given by multiplying the square of the radius times pi, he or she is not saying that this formula is a helpful rule of thumb, applicable on the heavy preponderance of everyday occasions. The geometer is claiming that the formula enjoys perfect generality, with no Euclidean counterexamples. In some disciplines, such as physics, it is even the goal to formulate universally quantified statements that can survive the crucible of empirical testing, and which can, to that extent, be regarded as "laws" to which the physical universe unstintingly conforms.

But as Judge Posner reminds us, legal discourse, for the most part, is not, and is not intended to be, such an idiom. To be sure, there may be pockets of legal discourse where syllogistic reasoning may be validly and harmlessly employed. Certain bedrock principles are true almost as a matter of legal definition. All contracts have more than one party. Other legal propositions are true because the law so ordains, with sufficient universality unto the day. No one can libel the dead. But in the main, legal propositions obey a logic of rule-and-exception, rule-with-qualification, rule-for-these-purposes, rule-as-generalization. Limits on the scope of legal propositions often go unstated, because the fact pattern under consideration may not require a precise determination of where those limits may fall. But although legal principles may often be stated in a grammar reminiscent of universal quantification, a claim of perfect generality is not usually intended, and usually could not be sustained.

That helps to explain why law must draw on hermeneutic tools beyond formal logic. It also explains what is frequently wrong with legal briefs that string together a series of judicial quotations, stating abstract legal "principles," in a syllogistic chain. Every litigator has probably had the experience of receiving just such a brief and wondering how his or her client might survive in the face of so many Immutable Principles, only to discover, upon cracking the books, that the first Immutable Principle in the chain comes from an admiralty precedent, the second from a decision about quartering troops in peacetime, and the third from a case involving an extradition treaty with Uruguay. To us, that experience seems to have grown more common.

Certainly it aids and abets the practitioners of such spuriously syllogistic legal reasoning that a vast corpus of judicial utterances can now be searched almost effortlessly for whatever quotation is required. Everyone knows the story about the six monkeys, sitting at their six typewriters, who will eventually inscribe every sentence of arbitrarily finite length that it is syntactically possible to utter. So enormous is the volume of searchable legal prose now publicly available, that the American legal community could easily be thought to be conducting precisely the same experiment. Even if the uneven quality of this tsunami of authority were left to one side, there would still be the matter of the temptations afforded by modes of legal research making it almost effortless to locate statements possessing the requisite verbal form, regardless of what their original context might imply about their intended conceptual content.

We're not saying it's time to cancel the Lexis subscription and turn off the computers. Not just yet. But as Judge Posner's remarks should help us to remember, excessive inferential circumspection is not the most prevalent legal vice. The next time we stumble across that irresistible quotation in the reporters (or on the computer screen) -- the one that announces some Hallowed Legal Principle dating back to the Magna Carta -- maybe we should take a moment to see whether its context suggests limits on its scope.

2d Circuit Overturns DEA Agent's Testimony on Meaning of "Watching Somebody's Back"

The Second Circuit has previously said that it can be undesirable for law enforcement officers to offer both fact and expert testimony in the same criminal trial, partly because of the risk of juror confusion about which testimony falls in what category. See United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2002).

If anyone was wondering, it now looks as though the Second Circuit meant what it said in Dukagjini. It has published a new opinion devoting extensive discussion to the "expert" testimony offered by a DEA agent, during what seems to have been a garden-variety drug trial, about the meaning of "watching somebody's back." In a nutshell: the prosecution did not show that this phrase was being used as drug jargon, the agent's "expert" testimony on the issue therefore strayed from his area of legitimate expertise, and these evidentiary missteps were rendered doubly troublesome by the agent's dual role as fact and expert witness, and also by the prosecution's failure to disclose the substance of his contemplated "expert" testimony in pretrial discovery. See United States v. Cruz, No. 02-1458 (2d Cir. Apr. 2, 2004) (Oakes, Meskill, & B.D. Parker, JJ.).

1st Circuit Refuses to Overturn Real Estate Appraiser's Report

The First Circuit has published an opinion holding that the trial court's refusal to exclude testimony from a real estate appraiser was, if erroneous, harmlessly so. The underlying dispute involved the sale of a Nantucket property. The buyers backed out, late in the proceedings, when they decided to move to the West coast for a job opening. As an alternative to forfeiture of the buyers' $205,000 deposit, the parties agreed that the owners would relist the property through the real estate brokerage they owned, at a price of their specification, for eight months, and apply toward the first buyers' deposit any proceeds from resale exceeding the original price. When the property failed to sell within the prescribed period (at an asking price about $500,000 higher than the original one), the property was taken off the market, and the owners refused to repay any portion of the deposit. The buyers sued, alleging that the owners had failed to make good-faith efforts to resell the property.

The jury rendered a verdict in the buyers' favor. Part of the evidence before the jury was a 45-page report from the buyers' appraisal expert. "Buried" in the final page of that report (that's the First Circuit's language) was the appraiser's opinion that a reasonable marketing period for the property would have been six to twelve months.

On appeal, the owners argued that the buyers' expert was unqualified to render an opinion on the appropriate marketing period, and also that he failed to employ reliable methods. The buyers countered that the owners had waived the issue, because at trial, the owners merely objected globally to the entire report, without specifying what specific portions were objectionable. The First Circuit panel held that even if the owners' trial objection failed to satisfy Fed. R. Evid. 103(a)(1) (requiring that evidentiary objections at trial include a statement of the "specific ground of objection"), the owners had otherwise preserved the point under Rule 103(a) by securing a definitive ruling on the report's admissibility via pretrial motion in limine. (What the First Circuit's opinion doesn't say is whether that prior motion in limine satisfied the particularity requirements of Fed. R. Civ. P. 7(b)(1), but perhaps that issue wasn't before it.)

"Freed from this procedural snag," the First Circuit turned to the substance of the owners' argument and concluded that any error was harmless. The buyers' counsel never referred during closing to the expert's opinion on an appropriate marketing period, and the jury heard ample evidence from other sources, the panel said, to support a conclusion that the owners kept the property listed at an inflated asking price to ward off potential buyers. See Zachar v. Lee, No. 03-2189 (1st Cir. Apr. 2, 2004) (Selya, Coffin, & Smith, JJ.).

Update 4/4/04: Our original description of the facts of this case didn't get things quite straight, and so we have revised it.

Further update 4/4/04: Tom Kirkendall got it right on the first try, so maybe you should go read his weblog.

Friday, April 02, 2004

"Votelaw" Blogger to Monitor Alabama Decisions for "Daubert on the Web"

We are very pleased to announce that Edward Still has volunteered to monitor Alabama appellate decisions for Daubert on the Web. As many of you know (and as all of you should), Still authors the Votelaw weblog -- an indispensable resource for election law issues.

That brings the total of state law volunteers, so far, to five, in just one short week.

Want to be number six? Drop us a line.

Thursday, April 01, 2004

Volunteers from Colorado, North Dakota Join Site's State Law Juggernaut

Volunteers from two more states have offered to help with tracking state law decisions on expert evidence at Daubert on the Web. In addition to the attorneys helping with Texas and Utah, we've now heard from volunteers for Colorado and North Dakota. We're grateful for the assistance, and we'll tell you more after we've ironed out a few details (like finding out whether these volunteers are really willing to have their names publicly associated with the likes of us).

Afraid that your state will be left behind? Write to us if you're interested in helping. It can be as simple as monitoring your jurisdiction for appellate developments (which many of you are probably already doing anyway) and then passing them along.

11th Circuit Upholds Biomechanical and Accident Reconstruction Testimony

In a products liability action involving an automotive child restraint system, the Eleventh Circuit has upheld the trial court's decision rejecting plaintiffs' objections to defendants' experts on biomechanics and accident reconstruction. Plaintiffs complained that the lower court's opinion did not outline its entire Daubert analysis. But there is no authority, the panel said, to support the contention that district court rulings on Daubert objections must present a comprehensive analysis. Moreover, in denying plaintiffs' motion in limine, the district court expressly adopted defendants' reasoning, which did reflect a comprehensive Daubert analysis, according to the panel. See Edic v. Century Prods. Co., No. 03-10486 (11th Cir. Mar. 31, 2004) (Edmondson, Birch, & Farris, JJ.).
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.