Monday, May 31, 2004

Site to Add Michigan Decisions

We are very pleased to report that M. Sean Fosmire, a shareholder in the Michigan law firm Garan Lucow Miller, has volunteered to monitor Michigan state law decisions for Daubert on the Web. In addition to his busy practice, Fosmire is president of yclipse technologies and still finds time to publish multiple weblogs (Michigan Medical Malpractice, the yclipse tech journal, and Logos). We are delighted to welcome him aboard.

This brings the ranks of our state law correspondents to nine: AL, CO, IL, KY, MI, ND, TX, UT, and VA. We're still working on assimilating this material to the site. (Volunteers have come forth at a pace that was something of a surprise, albeit a pleasant one, and the site's foray into state law comes at a time when our income-generating professional duties are also fairly demanding.) But we'll get there.

If you practice in one of the remaining 41 states -- large or small, East or West, red or blue -- and would like to volunteer to monitor your state's appellate decisions, we'd love to hear from you. Write to us at

Friday, May 28, 2004

7th Circuit Upholds Exclusion of Testimony on Eyewitness Identification

The Seventh Circuit has published an opinion upholding the trial court's decision excluding expert testimony on behalf of a bank robbery defendant on the reliability of eyewitness identification. The parties agreed that the expert, a psychologist, was qualified and relied on scientifically valid methodology. The only issue was whether his testimony would assist the jury. The panel concluded that average jurors would not require an expert's assistance to understand the risk that misidentification could occur because two persons wore similar clothing, or to grasp the principle that human memory fades over time. The court emphasized that it was not establishing a per se rule against expert testimony on eyewitness identification, but merely upholding a discretionary ruling in this particular case, in which the eyewitness had known the defendant for a substantial period of time. See United States v. Welch, No. 03-3638 (7th Cir. May 27, 2004) (Flaum, Manion, & Rovner, JJ.).

Thursday, May 27, 2004

Sufficiency Challenge Not Waived by Failure to Contest Admissibility, Says Texas Supreme Court

Suppose an expert testifies for plaintiff, in conclusory terms, that defendant's conduct showed conscious indifference to the rights, safety, or welfare of others. Suppose further that defendant does not challenge the admissibility of the expert's testimony at trial. On appeal, however, defendant contends there was insufficient evidence to sustain the jury's finding of gross negligence, because the expert's conclusory and unsubstantiated opinion was not competent evidence of conscious indifference. Did the defendant waive the sufficiency issue on appeal by failing to seek the exclusion of the expert's testimony at trial?

Not according to the Texas Supreme Court, as we learn from a decision to which Jim Dedman alerts us. See Coastal Transp. Co., Inc. v. Crown Central Petroleum Corp., No. 01-0301 (Tex. Sup. Ct. May 14, 2004).

Fingerprint Debate Continues

Just last month, three separate federal appellate courts issued opinions embracing fingerprint analysis as a reliable forensic method.

Just three weeks ago, on the strength of an FBI fingerprint analysis boasting "100 percent positive identification," federal agents arrested Oregon lawyer Brandon Mayfield on suspicion of involvement in the recent Spanish train bombings. Newsweek quoted an unnamed "top U.S. counterterrorism official" who called Mr. Mayfield's fingerprint "an absolutely incontrovertible match."

One week ago, Mayfield was released after the FBI admitted it wasn't his fingerprint after all.

So as it turns out, the debate is likely to continue. Jim England, our correspondent on Colorado law, has written to draw this discussion in Slate to our attention.

NAS Panel Issues Report on Mold

The New York Times headline:

Panel Finds Mold in Buildings Is No Threat to Most People
The lead from the New York Times story:

Stepping into an issue that has alarmed homeowners and led to hundreds of lawsuits and billions of dollars in insurance payments, a government panel of experts reported yesterday that toxic mold in homes did not appear to pose a serious health threat to most people.
The headline from the actual National Academies press release:

Indoor Mold, Building Dampness Linked to Respiratory Problems and Require
Better Prevention; Evidence Does Not Support Links to Wider Array of Illnesses
From the body of the NAS press release:

Through its careful review of the available scientific studies, the committee found sufficient evidence to conclude that mold and damp conditions are associated with asthma symptoms in asthmatics who are sensitive to mold, and to coughing, wheezing, and upper respiratory tract symptoms in otherwise healthy people. However, the evidence did not meet the strict scientific standards needed to establish a clear, causal relationship. An uncommon ailment known as hypersensitivity pneumonitis also is associated with indoor mold exposure in genetically susceptible people. Damp conditions and all they entail may be associated with the onset of asthma, as well as shortness of breath and lower respiratory illness in otherwise healthy children, although the evidence is less certain in these circumstances. Likewise, the presence of visible mold indoors may be linked to lower respiratory tract illness in children, but the evidence is not as strong in this case.

The committee found very few studies that have examined whether mold or other factors associated with indoor dampness are linked to fatigue, neuropsychiatric disorders, or other health problems that some people have attributed to fungal infestations of buildings. The little evidence that is available does not support an association, but because of the dearth of well-conducted studies and reliable data, the committee could not rule out the possibility.
Decide for yourself. Read the full report from the NAS Institute of Medicine, or listen to the briefing.

Hegemony of Daubert Extends to Philippines

In its march toward worldwide conquest, the Daubert decision has now managed to get itself cited by the Supreme Court of the Philippines, in a decision upholding the use of DNA evidence in a rape-murder conviction.

Saturday, May 22, 2004

7th Circuit Affirms Exclusion of Testimony from Vocational Rehabilitation Counselor

The Seventh Circuit has published an opinion affirming the district court's exclusion of testimony from a vocational rehabilitation counselor in an ADA case. The counselor's initial view was that the employee's workplace knee injury rendered him incapable of performing most of his job functions. But after she was retained as an expert in the employee's ADA case, the expert concluded that he could perform the majority of them. She did not re-interview the employee before reversing field, nor was she familiar with the machinery that it was the employee's job to repair. See Ammons v. Aramark Uniform Servs., Inc., No. 03-1036 (7th Cir. May 21, 2004) (Flaum, Manion, & Williams, JJ.).

Prosecution Expert Accused of Perjury in Martha Stewart Trial

As business sections around the nation are reporting, Secret Service lab director Larry "no-relation" Stewart has been charged with perjuring himself during his testimony in the Martha Stewart trial. In particular, he is accused of testifying falsely that he participated in an ink-test for the famous "@60" notation, when in fact he allegedly did not participate in the test.

Larry Stewart has not been convicted. And we're not criminal lawyers, but even if he is convicted, Martha Stewart's prosecutors may have something resembling a "harmless error" argument, since the jury acquitted her broker of the document falsification charges. (We say "something resembling" because we're not sure that the district court judge could have committed literal "error" at all by admitting testimony not then known to be perjurious, though presumably appellate review can be had, if necessary, of her ruling on Martha Stewart's planned motion for a new trial.)

It is disturbing, nevertheless, that a government expert should stand accused of perjuriously falsifying the basis and reasons for testimony offered in federal criminal proceedings. It is fair to wonder whether such incidents are rare, or whether they are symptomatic of more systematic institutional pressures on federal agents offering expert testimony in criminal proceedings.

Wednesday, May 19, 2004

Daubert on the Road

Courtesy of George (Tex) Quesada and Caroline McCracken, of the Dallas law firm Sommerman & Quesada, we give you Daubert on the Road -- their helpful survey of federal and Texas decisions on the admissibility of expert testimony on vehicular crashes (accident reconstructionists, law enforcement officers, and more).

Tuesday, May 18, 2004

Suppression of Publication as a Litigation Tactic

Faithful readers will remember the saga of the Santa Clara trial in which workers alleged that their cancers were caused by exposure to chemicals in IBM "clean rooms." (See our posts of 10/7/03, 10/13/03, and 2/27/04.) To summarize, a jury rendered a verdict for IBM after the trial judge excluded testimony from Boston University epidemiologist Dr. Richard Clapp, who found excess cancer rates among IBM employees based on data from IBM's "corporate mortality files."

The San Jose Mercury News (registration required) now reports that IBM's lawyers have interceded to help ward off publication of Dr. Clapp's findings in a medical journal. IBM's counsel are invoking a confidentiality order pursuant to which plaintiffs in the Santa Clara trial obtained the data.

At a minimum, the IBM lawyers' intervention should cause judges deciding on the admissibility of expert causation testimony in future IBM "clean room" trials to regard with skepticism any argument by IBM based on the alleged want of peer review and publication. More broadly, the invocation of protective orders to thwart publication of unwelcome scientific research seems contrary to the norms of scientific inquiry that the defense bar is quick to extol in other contexts. If IBM's lawyers were really confident that Dr. Clapp's work could be blithely dismissed (they call it "junk science"), wouldn't IBM profit by permitting the work to undergo the crucible of peer review, publication, and scholarly appraisal?

Update: Here's a link to the same Mercury News article at, where registration is not required.

Friday, May 14, 2004

10th Circuit Upholds Detective's Testimony on Dealer vs. User Quantities

In an unpublished decision, the Tenth Circuit has upheld a detective's trial testimony that the likelihood that someone caught in possession of narcotics is holding them with intent to distribute, rather than for personal use, may be gauged based on the packaging of the narcotics, the form of the drugs, their quantity, and the presence of paraphernalia, cash, pay/owe sheets, and tools to cut and weigh the drugs. See United States v. Mundy, No. 03-3216 (10th Cir. May 12, 2004) (Kelly, Henry, & Tymkovich, JJ.).

6th Circuit Upholds Mitochondrial DNA Testing

The Sixth Circuit has published an important decision upholding the reliability of mitochondrial DNA testing in a criminal case, as well as statistical testimony concerning the probabilities of a match between a given sample and a random member of the general population. See United States v. Beverly, No. 00-3617 (6th Cir. May 12, 2004) (Boggs, Norris, & Bell, JJ.).

7th Circuit Upholds Exclusion of Testimony re Disabled Employee's Capabilities

In upholding a jury verdict rejecting claims of discrimination under the Americans with Disabilities Act, the Seventh Circuit has affirmed the exclusion of expert testimony regarding the ability of a one-handed employee to operate a high-speed document scanner at the required level of proficiency. In a pretrial ruling, the district court permitted the expert to testify on the capacity of one-handed personnel in general to operate the machine, but not to opine on the ability of the specific employee to do so, because the expert had not personally observed the employee operating the scanner. Following that ruling, the employee received training on the machine and was videotaped operating the scanner for eight hours. On the first day of trial, the employee moved for reconsideration of the earlier evidentiary ruling, on the ground that the expert could now rely on review of the videotape. The trial court refused to reconsider, and the jury found for the defendant. On appeal, the Seventh Circuit upheld the trial court's determination that the expert's employee-specific opinion would not assist the trier of fact, because jury could evaluate the videotape for itself. The panel also upheld the trial court's alternative holding that the opinion was inadmissible insofar as it relied on a videotape not disclosed in pretrial discovery as forming part of the basis for the expert's opinion. See Hoffman v. Caterpillar, Inc., No. 03-1604 (7th Cir. May 11, 2004) (Posner, Easterbrook, & Kanne, JJ.).

Our Hiatus Explained

We have been unable to publish for the past week due to a death in the family. We'll catch things up before you know it.

Saturday, May 08, 2004

11th Circuit Upholds Forensic Expert on Methamphetamine Yields

The Eleventh Circuit has upheld the trial court's decision admitting testimony of a government expert who opined on the theoretical drug yield from the defendant's meth lab. The defendant complained that the witness had limited work experience in forensics, but the panel observed that experience is not the only basis on which an expert's qualifications may rest, and noted the expert's substantial education and training. See United States v. Bennett, No. 03-11060 (11th Cir. May 7, 2004) (Marcus, Wilson, & Duplantier, JJ.).

9th Circuit Affirms Exclusion of Testimony Based on Abel Assessment of Sexual Interest

In an unpublished opinion, the Ninth Circuit has affirmed the district court's ruling, in a child molestation case, excluding testimony from a defense expert who relied on the Abel Assessment of Sexual Interest ("AASI"), an instrument sometimes used to gauge whether the subject shows an unusual level of sexual attraction to children. The panel accepted five reasons offered by the district court for excluding the testimony as unreliable:

(1) the AASI test is a psychological instrument to be used for treatment, not for diagnostic purposes, and it is not designed to assess the tendency of a person to abuse children sexually; (2) Dr. Abel did not use a control group and it is unclear how or whether the test ferrets out "fakers"; (3) the test has not been subject to adequate peer review because Dr. Abel has proprietary rights over the test and has not shared his formula with other scientists (and those who have tried to assess the test's validity have come up with dubious and inconsistent results); (4) the potential error rate "varies from poor ... to appalling," which makes it an unreliable instrument; and (5) the relevant scientific community does not generally accept the AASI test as a diagnostic test for pedophilia.
See United States v. Birdsbill, No. 03-30204 (9th Cir. May 4, 2004) (Canby, Wardlaw, & Gould, JJ.).

Abu Ghraib

I am an attorney. Attorneys, as a professional group, have their well-chronicled failings, but the practice of law, if honestly and thoughtfully undertaken as an avocation or calling, rests on an honorable set of core beliefs. One of those core beliefs is that societies can and should be governed by fidelity to principle, rather than by the capricious exercise of naked power. Another is that disputes about how and when to deploy the fearsome apparatus of the modern state, with its monopoly on the legitimate use of physical force, are best resolved through a reasoned discursive process whose outcomes people of decency will feel able to respect, because those outcomes are the legally prescribed product of essentially fair and rational procedures. Still another is that all of law’s subjects, of whatever color or creed, are always to be treated with some measure of dignity and respect.

Last year, this nation sent men and women to fight under its flag for the loudly proclaimed purpose of toppling a cruel, despotic, and lawless regime, with the hope of making way for a more democratic and civilized form of governance in its place. Those who led us on that mission were supremely confident of their ability to accomplish that task, and asked us to repose that same supreme confidence in them. America was portrayed, to citizens of our own nation and to citizens of the world, as the last best hope for securing the blessings of ordered liberty on behalf of the oppressed. Our nation’s hand, it was said, would wield the sword of justice, bringing democracy and freedom to the downtrodden Iraqi people, who had lived in slavery and terror for so long.

No one doubts the sincerity or the dedication of the men and women who were sent on that mission. Whether or not they believed in this war, they have answered their nation’s call, and answered it bravely, the way soldiers are supposed to do. We know that most have shown honor and courage, working tirelessly and nobly to help a faraway people enjoy some prospect of a better life. Nothing can ever detract from their honorable deeds.

But it now transpires that there were also cowards in their midst, and very probably, in their command. Whatever further grisly news the morrow may bring, this much is clear: our would-be liberators brought new oppressors with them – new petty despots, new torturers, new evildoers. It may be, as some apologists for these crimes are already suggesting, that by way of inflicting pure physical agony, these novices did not remotely rival the sadism displayed by Saddam Hussein and his henchmen. But the sheer ingenuity that some Americans have now shown, in gleefully stripping away every shred of their victims’ humanity and dignity, connotes an enthusiasm for the project that can only be regarded as intolerable and depraved.

Let us be clear on what the primary problem here would be. It is a grave concern, to be sure, that the welfare of American servicemen and women, in Iraq and around the world, has now been placed in terrifying and undeserved peril, should they be imprisoned by captors who model their custodial practices on American behavior. It is a grave concern, as well, that in the eyes of much of the Islamic world, Americans are now no better than the terrorists and petty warlords whose methods Americans are wont so loudly to deplore. And it is legitimately the source of deep anger, that anyone should have been so monumentally stupid as to offer this signal inspiration for further acts of terror against America and its allies.

But the primary issue here is a moral one. The primary issue is that a sickening wrong has been done to our fellow human beings, and a nauseating affront to human rights committed. The concepts of fair treatment, of due process, of the law’s protection, of deliberative justice – these have been casually treated, by persons purporting to act under our country’s banner, as hard-earned luxuries to which Westerners are uniquely entitled, whereas Iraqi human rights, like the Iraqi prisoners themselves, have been treated with derision and contempt.

These acts fall beyond excuse. We know that the individual soldiers who inflicted these cruelties are likely to be tried and punished. What is far less certain, at this hour, is how much further the workings of justice will extend. Let it be said now, therefore, that no one who planned these crimes, or incited them, or knew of them and looked the other way, or suspected them but failed to act when he could have acted – no one, high or low, who knew or should have known of these events, and who nevertheless suffered them to occur, or who strove to conceal them once they had already occurred, can be permitted to participate, for one second longer, in the governance or defense of our country. This is not a matter of politics. It is a matter of good and evil, right and wrong. It is a matter of what we stand for.

I am an attorney, and I say that whoever had a hand in this, or condoned it, or let pass an opportunity to halt it, must go. Either that, or we must withdraw any claim to stand for the rule of law.

Thursday, May 06, 2004

Quick Question

Tuesday, May 04, 2004

11th Circuit Requires Foundation for Lay Handwriting Identification Testimony

The Eleventh Circuit has affirmed a district court decision striking an affidavit offering lay opinion on the genuineness of a signature on a document cancelling a life insurance policy. The appellate panel held that to offer lay opinion on handwriting under Fed. R. Evid. 701 and 901(b)(2), witnesses must offer a detailed foundation for their opinions, specifying with particularity the documents on which they rely to establish their familiarity with the subject's handwriting. See Hall v. United Ins. Co. of Am., No. 03-14527 (11th Cir. Apr. 30, 2004) (Birch, Marcus, & Brunetti, JJ.).

Sixth Circuit Upholds Identification Testimony in Demjanjuk Case

The Sixth Circuit has affirmed the district court's judgment denaturalizing John Demjanjuk. In doing so, it upheld the district court's decision admitting expert testimony, in a bench trial, offered by the government to confirm Demjanjuk's identity. See United States v. Demjanjuk, No. 02-3529 (6th Cir. Apr. 30, 2004) (Cole, Clay, & Collier, JJ.).

Second Circuit Upholds Exclusion of Testimony on Penile Implant Failure

The Second Circuit has issued a summary order affirming a district court decision excluding expert testimony on the cause of a penile implant failure. Highlight: "Dr. Feinberg presents little explanation for excluding undue stress on the prosthesis, perhaps caused by John Doe, as a potential cause of its failure." See Doe v. American Medical Systems, Inc., No. 02-7674 (2d Cir. Apr. 30, 2004) (Sack, Sotomayor, & Kaplan, JJ.).

Saturday, May 01, 2004

Tenth Circuit Caps Banner Month for Fingerprint Experts

After April, fingerprint analysts won't be having to look for new career paths anytime soon. On the same day this week that the Third Circuit issued its comprehensive opinion upholding fingerprint identification testimony in United States v. Mitchell, No. 02-2859 (3d Cir. Apr. 29, 2004), on which we have already posted, the Tenth Circuit chimed in with a fingerprint decision of its own. See United States v. Ward, No. 03-6005 (10th Cir. Apr. 29, 2004) (Ebel, Holloway, & Briscoe, JJ.). True, the Tenth Circuit's opinion is unpublished, and true, it technically didn't reach the testimony's admissibility, merely holding that any error in admitting it would have been harmless. But the Tenth Circuit panel did afford a strong clue to its general sentiments on the subject:

Circuits that have addressed the admissibility of fingerprint evidence have determined it is scientifically reliable. See United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (concluding fingerprint identification satisfied Daubert); United States v. Hernandez, 299 F.3d 984 (8th Cir. 2002) (same); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001) (same). In Crisp, the court stated that "while the principles underlying fingerprint identification have not attained the status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well." 324 F.3d at 268.
The Third Circuit's opinion in Mitchell sent an even blunter message: "[T]his case does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit," it said, but "we trust that the foregoing discussion provides strong guidance."

Meanwhile, just two weeks ago, the Seventh Circuit reached the same result in United States v. George, No. 02-2996 (7th Cir. Apr. 14, 2004), declining to revisit its earlier conclusion in the Havvard decision that fingerprinting passes general reliability muster. "[W]e feel comfortable," said the panel in George, "that Havvard correctly decided the issue of fingerprint analysis admissibility."

It sounds as though further challenges to the general reliability of fingerprint identification could be met, in these circuits, with diminishing appellate patience.
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.