Sunday, October 31, 2004
Lewontin on Government's Use and Abuse of Science
Saturday, October 30, 2004
6th Circuit Reverses Exclusion of Medmal Testimony
Daubert 's role of "ensuring that the courtroom door remains closed to junk science,"Amorgianos v. AMTRAK, 303 F.3d 256, 267 (2d Cir. 2002), is not served by excluding testimony such as Dr. Johnson's that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability. See generally Daniel W. Shuman, Expertise in Law, Medicine, and Health Care, 26 J. Health Pol. Pol'y & L. 267 (2001) (characterizing the effect of the Daubert and Kumho Tire cases on claims of medical expertise as "much ado about little," while noting that these cases have had a significant effect on toxic tort and products liability litigation).See Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., No. 03-5355 (6th Cir. Oct. 25, 2004) (Keith, Moore, & Gilman, JJ.).
Friday, October 29, 2004
More Press on the Reliability of Fingerprint Identification
Forced Military Anthrax Vaccinations Permanently Enjoined
Tuesday, October 26, 2004
Daubert for Sale
Sunday, October 24, 2004
"The First Book-Length History of Expert Evidence in Common-Law Courts"
Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Tal Golan. x + 325 pp. Harvard University Press, 2004. $49.95.From her review:
Lawyers, judges and experts continue to express a set of related anxieties: that credulous juries may naively succumb to "junk science" proffered by opportunistic experts; that both judges and juries, lacking specialized scientific training, may be unable adequately to evaluate complex scientific and technical information; that adversarial processes and scientific knowledge are fundamentally mismatched. As Tal Golan shows in his engaging history of expert evidence in the Anglo-American courtroom, none of these frustrations is of recent vintage, and in fact, complaints about expert testimony are nearly as old as expert testimony itself.We've put it on our shopping list.
Update 10/30/04: Harvard University Press has been kind enough to honor our request for a review copy. Stay tuned for our take on the book.
Saturday, October 23, 2004
How to Become a State Law Correspondent for Daubert on the Web
It needn't be much work. We need you to be an attorney who can track appellate decisions in your state -- as many of you probably already do -- and send us the news when an opinion is issued dealing with the admissibility of expert testimony. We can take it from there. We already have monitors for Alabama, Colorado, Illinois, Kentucky, Michigan, North Dakota, Tennessee, Texas, Virginia, and West Virginia. The remaining jurisdictions are up for grabs. (We've launched a few additional state pages on our own, starting at the beginning of the alphabet, but we'd be delighted if someone could share in the effort for Alaska, Arizona, or Arkansas, or for any other jurisdiction not listed above.)
Red States versus Blue States
If a note of competition will help spark recruitment, we'll mention that as of today, the Red States are ahead of the Blue States (as those terms were defined by Messrs. Bush and Gore, with help from the United States Supreme Court) by a raw score of 8-2, or an electoral vote advantage (based on 2004 apportionment) of 92-38.
Mars versus Venus
We must also make note of an alarming gender gap -- one not attributable, let it be emphasized, to any discriminatory animus. All ten existing state law correspondents are men. Surely there are potential women volunteers out there who could blaze a trail that their daughters might follow.
How to Sign Up
Interested in lending a hand? We can't talk it over unless you write to us.
Breaking News: Theory of Relativity Upheld
It is sometimes helpful, therefore, to have examples of widely accepted scientific theories that are still the subject of experimental investigation. Yesterday's Washington Post (registration required) supplies just such an example. Apparently, there may be something to this whole relativity idea. Further experiments are planned.
9th Circuit Holds Polygraph Testimony More Prejudicial Than Probative
I used to do a lot of criminal defense work, and I was always scared to death of polygraph evidence because usually it was the Government that was trying to use it or the State.In the Ninth Circuit, the exclusion of polygraph testimony may be upheld on any theory supported by the record. Because the trial court did not conduct a Daubert inquiry, the appellate panel concluded that the exclusion of the testimony could not be upheld on reliability grounds. It went on to find, however, that the record supported exclusion of the testimony as more prejudicial than probative under Fed. R. Evid. 403. See United States v. Ramirez-Robles, No. 03-30122 (9th Cir. Oct. 21, 2004) (Hug, McKeown, & Fisher, JJ.).
I am not going to allow it. I don't want to be the first judge to allow polygraph evidence. I don't feel like setting any markers there, and it is an interesting question to submit to the appeals court. So I am going to deny the motion to admit the polygraph evidence.
Wednesday, October 20, 2004
3d Circuit Upholds Asset Valuation Testimony
Monday, October 18, 2004
Chicago Tribune Runs Major Series on Forensic Reliability
For decades, arson investigators relied on a collection of beliefs and folk wisdom that was accepted as truth. In the last 30 years, however, many of these one-time certainties have been exposed by research and laboratory tests as unclear or just plain wrong. . . . While engineers, chemists and other experts increasingly are employed to determine the cause of fires, some arson investigators have not accepted new scientific knowledge. As a result, prosecutors around the country still seek to convict people based on theories that have been systematically debunked.Tomorrow's piece will focus on bite marks, with pieces on Wednesday and Thursday about disarray in Illinois laboratories and nationwide.
Sunday, October 17, 2004
Daubert on the Cheap
This would represent an undoubted economy, but it brings to the fore a lurking question that deserves more exploration in the post-Daubert era. Like witnesses in general, experts are traditionally immune from suit over legal claims arising from their testimony. No doubt there are legitimate policy reasons for testimonial immunity. We want witnesses to testify truthfully and candidly, rather than having them color their testimony based on fears of legal exposure.
On the other hand, slipshod expert testimony can be just as ruinous for a client, these days, as incompetent legal representation. Should the clients be left without recourse, or should a right of action be recognized for expert malpractice? Should a client have a claim, for example, if his witness's opinion is ruled "unreliable" under Daubert? Before plaintiffs' lawyers answer yea, or defense lawyers answer nay, they should consider the possible effects of potential malpractice liability on the cost and quality of expert testimony. For example, if experts responded by protecting themselves through liability insurance, the cost of expert opinion would surely rise, and the insurers might well exert some pressure on experts to base their opinions on thorough and rigorous analyses. That might improve the general quality of expert evidence. Or it might just make experts likelier to practice "defensive testimony," or to retreat from the fray altogether.
Whatever one may think about those issues, what should happen, if an expert markets his services by promising a "Daubert quality" report and then fails to deliver? Some experts might feel that $250 was not enough to compensate them for the risks.
Update: Of course, one perennial liability-avoiding maneuver is to issue a disclaimer, as the good people at lostcompensation.com (the web site to which we adverted above) have now done (see the comments). Perhaps it says something about the prevailing state of evidentiary law, that a service touting its adherence to generally accepted economic and/or accounting principles cannot realistically promise that such adherence will result in the admissibility of the evidence.
Further Update: Over at Point of Law, Ted Frank has responded on the subject of expert malpractice, quoting one author who reports that several states (including our native Commonwealth of Pennsylvania) now permit at least some claims against expert witnesses. Ted Frank also remarks on "how quickly attorneys recognize the costs of the tort system when it can negatively affect their own profession," but we're sure he didn't have us in mind. We haven't advocated caps on damage awards in legal malpractice actions, or the pre-filing screening of legal malpractice claims by members of the bar. Quite the contrary, we're forced to confess that on those occasions when our conscience might not be enough, by itself, to keep us on the straight and narrow, the threat of malpractice liability is a healthy incentive.
The Steady March of Blogs
But now, just a few hours later, the weblog is back to 5 again, with no compensatory bounce to 6 for the main site.
Is this a sign of increasing
9th Circuit Upholds Exclusion of Chainsaw Testimony
11th Circuit Issues En Banc Decision in U.S. v. Frazier
On one level, the Eleventh Circuit's en banc decision can be read simply as a strong statement about the deference to be paid to lower court Daubert rulings on appellate review. Certainly the opinion begins by announcing its intent to "reaffirm the basic principle that an appellate court must afford the district court's gatekeeping determinations 'the deference that is the hallmark of abuse-of-discretion review'" (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)).
On another level, however, two aspects of the decision's reasoning, if consistently applied, could spell trouble for law enforcement witnesses who offer experience-based testimony on such subjects as the modus operandi of drug traffickers. First, the opinion emphatically cautions that experience, by itself, cannot obviate the need for a reliability inquiry:
Of course, the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express. As we observed in [Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003)], "while an expert's overwhelming qualifications may bear on the reliability of his proffered testimony, they are by no means a guarantor of reliability. . . . [O]ur caselaw plainly establishes that one may be considered an expert but still offer unreliable testimony." 326 F.3d at 1341-42. Quite simply, under Rule 702, the reliability criterion remains a discrete, independent, and important requirement for admissibility.Second, the en banc opinion's affirmance of the trial court's ruling rests heavily on the proposition that expert testimony about what would be "expected" carries an inherently probabilistic connotation that should depend on empirical backing:
Indeed, the Committee Note to the 2000 Amendments of Rule 702 expressly says that, "[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.'" Fed. R. Evid. 702 advisory committee's note (2000 amends.) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d 1311, 1316 (9th Cir. 1995) (observing that the gatekeeping role requires a district court to make a reliability inquiry, and that "the expert's bald assurance of validity is not enough"). If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.
While the expert's statement that the recovery of hair or seminal fluid "would be expected" expresses an intrinsically probabilistic or quantitative idea, the probability it expresses is unclear, imprecise and ill-defined. And the basis for that probabilistic opinion is left unstated. Without knowing how frequently hair or seminal fluid is transferred during sexual conduct in similar cases -- whether derived from reliable studies or based on some quantification derived from his own experience -- it would be very difficult indeed for the district court (or for that matter the jury) to make even an informed assessment, let alone to verify that the recovery of hair or fluid evidence in this case "would be expected." Nor could the district court tell from [the expert's] testimony whether his opinions had been subjected to peer review or, even, the percentage of cases in which his opinion had been erroneous.Similar criticisms would seem applicable to testimony from law enforcement officers, so commonplace in criminal trials, about whether a given quantity of narcotics is associated with distribution as opposed to personal use, or about the modus operandi of drug dealers more generally. Imagine, for example, that a narcotics agent testifies that drug traffickers commonly carry guns. This is tantamount to testimony that the recovery of a weapon from the defendant makes it likelier that the defendant is a narcotics trafficker. Should it be insisted that such testimony be supported by studies showing that drug dealers carry weapons with a given frequency X, such that X is greater than the frequency Y with which non-drug-dealing citizens carry weapons? Of course, the passage quoted above also leaves the expert free to support his opinion with "quantification derived from his own experience." But do law enforcement officers really have the requisite experiential grounding to quantify how frequently persons other than criminal suspects possess weapons?
Our guess is that the Eleventh Circuit's en banc decision in Frazier is not in fact intended to signal new demands of rigor for law enforcement officers testifying as prosecution experts. But certainly the opinion gives defense counsel some raw material with which to work.
Saturday, October 16, 2004
Site Adds Arkansas State Decisions
Friday, October 15, 2004
Site Adds Unpublished 9th Circuit Memorandum Dispositions
But we can -- at least for the moment, and at least for decisions involving the admissibility of expert evidence. We're hopeful that some institution with more resources will soon undertake this task for all unpublished Ninth Circuit decisions, but in the interim, we give you our inaugural entry: Cooper v. Travelers Indem. Co. of Ill., No. 03-15551 (9th Cir. Oct. 13, 2004) (Meskill, Trott, & McKeown, JJ.) (upholding trial court's exclusion of testimony from economist who relied on unverified client data).
Readers are cautioned that citation of memorandum dispositions to courts within the Ninth Circuit remains verboten.
Two New Decisions on Expert Evidence in Drug Cases
Saturday, October 09, 2004
Medical Malpractice "Reform" and the Bush/Kerry Debate
The "Patients First Act"
S. 11 was introduced on June 26, 2003, by Sen. John E. Ensign (R-NV), with thirteen Republican co-sponsors and no Democratic ones. A cloture motion failed on July 9, 2003, on a party-line vote. The bill would have created a federalized law of tort for malpractice claims, imposing the following restrictions on the states:
- for claims by adults, a 1-year statute of limitations, and a 3-year statute of repose except in cases of fraud;
- for claims by children, a 3-year statute of limitations, with no tolling pending majority, except that injured children under age 5 would have until their 8th birthday to sue;
- a $250k cap on lifetime compensatory damages for pain and suffering;
- crippling limits on contingent fees (not to exceed 25% after the first $100k in damages or 15% of any award exceeding $600k, with additional judicial discretion to reduce contingent fees "based upon the interests of justice and principles of equity");
- effective abolition of the collateral source rule;
- a bar against subrogation claims;
- abolition of joint and several liability; and
- highly restrictive competency rules for experts testifying on the standard of care. (See our post of 3/14/04.)
In short, S. 11 involved far more than curbing punitive damage awards. The bill was designed to create major economic and procedural impediments to access to the courts by deserving malpractice claimants, to slash the compensatory damage awards of claimants who did manage to surmount those impediments, and to federalize an entire area of substantive tort law that has long been the province of the states. If the bill failed to win any semblance of bipartisan support, we think it's because pro-insurer legislators got greedy and decided to go for broke.
The "Healthy Mothers and Healthy Babies Access to Care Act"
S. 2061 was introduced on February 10, 2004, by Sen. Judd Gregg (R-NH), again with thirteen Republican co-sponsors and no Democratic ones. A cloture vote failed, along party lines, on February 24, 2004. It largely parroted S. 11's provisions in the narrower context of malpractice suits against OB/GYN providers. In addition, it would have created broad new federal limits on damage claims arising from the defective design, manufacture, packaging, or labeling of FDA-approved drugs and medical devices -- protections that would have extended not only to health care providers, but also to drug manufacturers.
Thursday, October 07, 2004
1st Circuit Upholds Fund-Tracking Testimony
Larry "No Relation" Stewart Acquitted
Tuesday, October 05, 2004
Daubert on the Tube
EXPERT WITNESS/JUDGE JOHN DEED (ABC/NBC, New!) - Former "Law & Order" showrunner Michael Chernuchin has set up two new drama projects as part of his overall deal with NBC Universal Television. The first is an adaptation of the BBC series "Judge John Deed" for the Peacock while the other is the forensic-themed drama "Expert Witness" for ABC. "Deed" focuses on the dichotomy of a federal court justice in Washington, D.C. who's extremely moral in the courtroom but not so much outside of it while "Witness" centers on a thirtysomething coroner-turned-professional freelance forensic witness who works for both prosecution and defense cases (not to mention is haunted by his mother's murder by his father). Interestingly enough, Chernuchin has already sealed a separate deal with book packager Alloy to write a series of novels based on Roger Cleary, the lead character of "Witness," regardless if the project moves forward.Will it be set, we wonder, in a Daubert state or a Frye state? And now that we've plugged the show, will it plug Blog 702?
Monday, October 04, 2004
New Mexico Supreme Court Approves Polygraph Evidence
We now learn that the New Mexico Supreme Court recently reversed that decision. From the unanimous opinion:
See Lee v. Martinez, No. 27,915 (N.M. Aug. 25, 2004) (corrected Sept. 15, 2004).
Petitioners are defendants in several pending criminal cases who are seeking to have their polygraph examination results admitted into evidence under Rule 11-707(C) NMRA 2004, which states that "the opinion of a polygraph examiner may in the discretion of the trial judge be admitted as evidence as to the truthfulness of any person called as a witness," provided certain conditions are met. In each case the State has opposed the admission of such polygraph evidence on the ground that it fails to satisfy the standard for the admissibility of expert testimony set forth in Rule 11-702 NMRA 2004. On February 10, 2004, Petitioners filed a Petition for Writ of Superintending Control asking this Court to order the district courts to comply with Rule 11-707, rather than conducting a separate Rule 11-702 hearing in each case.
. . . .
We now must consider whether to repeal our Rule 11-707 and hold that polygraph results are per se excluded. For the reasons that follow in this opinion, we do not repeal Rule 11-707. Instead, we hold that polygraph examination results are sufficiently reliable to be admitted under Rule 11-702, provided the expert is qualified and the examination was conducted in accordance with Rule 11-707. Therefore, we exercise our power of superintending control to order the district courts in the pending cases to comply with Rule 11-707 in determining whether to admit polygraph examination results. The proponents of such polygraph evidence are not required to independently establish the reliability of the examiner's testimony in a Daubert/Alberico hearing.