Kentucky Supreme Court Upholds Bullet-Matching Testimony

Our Kentucky correspondent, Barry Miller, reports on a Kentucky Supreme Court decision in a well-publicized case involving the murder of a University of Kentucky football player:

The case involved multiple allegations of prosecutorial misconduct, and the conviction was reversed because the prosecutor commented in closing on the defendant's failure to testify. One of the few things that went the prosecution's way was the Daubert challenge.

Kathleen Lundy, an FBI forensic investigator, testified that a bullet fragment taken from the body of the victim was "analytically indistinguishable" from bullets in a box found during a search at the home of one of the defendant's parents. Her analysis was based upon the fact that most bullets are made from recycled lead batteries. Smelters compact and melt the used batteries to extract as much pure lead as possible from them. The melted lead is then cast into smaller bricks of between 60-125 pounds, or larger blocks weighing 1,000 to 2,000 pounds. Each such brick or block will contain certain impurities. Ms. Lundy compared the impurity content of the bullet fragment to the impurity content of the bullets found during the search, using "inductively coupled plasma-atomic emission spectroscopy" (ICP). She then opined that they came from the same brick or block of lead. The methodology itself was apparently not in question; one opposing expert admitted that ICP was a scientifically reliable method for determining the percentage of trace elements in bullets.

Another opposing expert testified that, because of the method in which the bullet manufacturer purchased lead, millions of bullets would be "analytically indistinguishable" from the bullet fragment, and therefore from the same batch of molten lead. The Court stated that this made it a close question whether Dr. Lundy's testimony was helpful to the jury. But because this fact affected only the weight of the testimony, and not the scientific analysis, it held Lundy's testimony admissible.

A side issue arose from the Daubert hearing regarding Lundy's methods. During that hearing, she testified that the manufacturer purchased its lead in such a way that would result in considerably fewer bullets being "analytically indistinguishable." In an internal FBI memo Lundy stated "I cannot explain why I made the original error . . . nor why, knowing that the testimony was false, I failed to correct it at the time." (Louisville Courier-Journal, Sept. 6, 2002.) Defendant sought a new trial on the basis that the pro-prosecution Daubert ruling was obtained by perjured testimony. The Supreme Court accepted the trial court's statement that it would have ruled the same way, even if Lundy had testified correctly -- again, because that would have affected only the weight to give her testimony, and not the reliability of her methodology.

See Ragland v. Commonwealth, No. 2003-SC-0084-TG (Ky. Nov. 18, 2004).

7th Circuit Upholds Shoeprint Evidence

The Seventh Circuit has published an opinion upholding the admissibility of shoeprint evidence in a criminal case. See United States v. Allen, No. 02-3250 (7th Cir. Nov. 29, 2004) (Wood, Evans, & Williams, JJ.).

Life in Vaccine Court

Today's LA Times has one story on the obstacles currently facing claimants under the federal Vaccine Injury Compensation Program, and another on some of the reasons why they have an uphill battle finding experts who will testify on their behalf.

Update 12/1/04: Here's a piggyback press release from the National Autism Society.

Update 12/2/04: And here's Walter Olson's take.

Thanks for the Lawsuits

Over at overlawyered.com, Ted Frank has thoughtfully wished us all a lawsuit-free holiday.

We, like Ted, are grateful to live in a country whose Constitution reposes enough confidence in its citizenry to permit free and open discussion. One reason for that gratitude is our belief that messy and imperfect though it may be, free and sometimes adversarial discourse is the best known method for promoting informed decisions -- and for pursuing the truth.

We are therefore pleased to have available, for redress of civil wrongs, a judicial system that was built on that same premise. Litigation is unpleasant, and perhaps there is too much of it . . . or perhaps not enough of the right kind -- we're not sure. It is probably a good thing, either way, that the courts are closed today, to give everyone a respite from contention and strife.

But if you have suffered unjust injury, or if your civil rights have been abridged, or if your loved ones have been wronged by the wealthy or the powerful, then be grateful, today, that the courts will be open again on Monday.

Expert Deposition Transcripts Online

Want to check on an expert's history before you retain him? Many of you may aleady know about the extensive database of judicial decisions on expert testimony, available at reasonable prices, via the "Daubert Tracker" at mdexonline.com. Now we've learned of a new online service -- CrossExam.com -- that wants to be the place you go when you need to review an expert's deposition transcripts from prior litigation. Of course, there's always TrialSmith, but to use TrialSmith, you have to be a plaintiffs' lawyer, and there's a nontrivial subscription fee.

The key to any service like this, naturally, is the database, and the folks at CrossExam.com have developed an interesting strategy for building theirs. Right now, the site lists about 300 transcripts available for download. The list is searchable by case name or expert name, and also browsable by expert field. You can download a transcript by paying a fee of about $2.50 a page. Or you can become a registered user and earn credits toward downloads by uploading expert transcripts of your own. But that's not their most ingenious idea. The service is also encouraging court reporters to upload transcripts, even old ones, for $2.00 a page.

One way or another, the time is surely approaching when someone will do for expert testimony what Lexis and Westlaw have done for the corpus of decisional law. The savvy expert will recognize that fact now, and will assume that any testimony he offers may be preserved, syllable by syllable, for the ages -- in readily accessible form.

Update 12/8/04: Tom Mighell points to additional online resources for expert transcripts.

Law Journal Offers Second Installment on "Science for Judges"

We just noticed that Brooklyn Law School's Journal of Law and Policy has published the second installment in its "Science for Judges" series. Among the titles:

Science for Judges II: The Practice of Epidemiology and Administrative Agency Created Science
Introduction by Margaret A. Berger

Overview of Research Design in Epidemiology
John Concato, M.D., M.S., M.P.H.

Systematic Review of Medical Evidence
John P.A. Ioannidis, M.D. & Joseph Lau, M.D.

Should Compensation Schemes Be Based on the Probability of Causation or Expected Years of Life Lost?
James Robins

FDA Regulatory Requirements as Tort Standards
Richard Merrill

What Is the Value of an FDA Approval in a Judicial Matter?
Michael A. Friedman, M.D.

Science and EPA Decision-Making
Robert M. Sussman

Importing Daubert to Administrative Agencies Through the Information Quality Act
Wendy E. Wagner

Welfare State of Welfare Court: Asbestos Litigation in Comparative Perspective
Sheila Jasanoff & Dogan Perese

All the articles are available online. Go take a look.

Defendant's Expert Sanctioned in Medical Malpractice Case

According to today's Boston Globe, a Massachusetts trial court has sanctioned a defense witness for intentionally giving misleading testimony in a medical malpractice case. The plaintiff sustained permanent and disabling neurological damage after suffering a stroke. Her family blamed the ER physician's failure to administer the drug t-PA. A 1995 study showed that prompt administration of t-PA can minimize the damage from strokes by dissolving the blood clots that cause them. To rebut the study, the ER physician called a neurologist, who testified that the 1995 study excluded cancer patients, and that its results were therefore inapplicable to the plaintiff, who had emerged from treatment for breast cancer just before her stroke. The jury found for the defense.

The only problem, it transpires, was that the 1995 study did not in fact exclude cancer patients. Quite the contrary, 59 of the 600 study subjects had suffered from cancer. The trial judge was unconvinced by the neurologist's explanation at a post-trial hearing, and concluded that the expert intentionally misled the jury by implying a familiarity with the data that he did not in fact possess. The judge set a new trial and ordered the expert to pay $20,000 toward plaintiffs' legal fees, in addition to sanctions imposed on the defendant.

The expert's lawyer calls this "a chilling event to anyone who provides or is thinking about providing any expert testimony." That seems slightly hyperbolic, inasmuch as candid and/or accurate testimony would presumably enjoy safe harbor. Nevertheless, the expert and the defendant both promise to pursue appellate relief.

8th Circuit Bars Testimony on Sexual Transmissibility of Hepatitis

In United States v. Rushing, 313 F.3d 428 (8th Cir. 2002), a man was charged with importing a Chinese woman for sexual purposes. The woman testified that the pair had sex on a weekly basis for about a year. The man said that couldn't be true, because he was impotent, and also because she had hepatitis, whereas he didn't. To support his hepatitis argument, he offered testimony from a pharmacologist who opined that the woman would have transmitted the disease to the man if they had sex regularly over that time period. The district court excluded the pharmacologist's testimony as collateral under Fed. R. Evid. 403. The Eighth Circuit reversed, finding the testimony highly relevant, and remanding for a Daubert inquiry.

The Eighth Circuit has now upheld the trial court's decision, on remand, that the pharmacologist's testimony was unreliable. See United States v. Rushing, No. 01-3077 (8th Cir. Nov. 18, 2004) (McMillian & Melloy, JJ.). Among other difficulties, the pharmacologist had assumed that the pair had sex more frequently than the woman's testimony indicated.

Utah Appellate Court Upholds Fingerprint Identification

From John Bogart, our Utah correspondent:

In State v. Quintana, handed down last week, the Utah Court of Appeals turned away an attack on the admissibility of expert testimony on fingerprints. Rule 702 decisions are reviewed for abuse of discretion. Admissibility under 702 depends on whether the evidence “will assist the trier of fact” and whether the expert is qualified to offer an opinion on the subject. If the expert is testifying on “novel scientific principles and techniques” then the court determines threshold reliability under Rimmasch (which amounts to the current federal standard). If the testimony concerns scientific methods that have “attained general acceptance in . . . the relevant scientific community” then the additional test of Rimmasch does not apply (i.e., it meets Rule 702 pre-Daubert). The court found that fingerprint identification is not novel scientific evidence and so is admissible if it is likely to aid the trier of fact and is offered by one qualified to opine on the subject.

The concurring opinion, however, surveying applicable literature, notes that fingerprint evidence has “never truly been put to the test in either the courtroom or the scientific community.” The concurrence suggests that juries should be instructed about the weaknesses in fingerprint examiner training and identification protocols, and the lack of uniform standards or training.

This decision contradicts the suggestion in other recent cases that Rimmasch applies to all expert evidence. The decision therefore adds to the confusion in Utah case law about the standards for admission of expert evidence.

In Utah, then, as elsewhere in the nation, consensus remains elusive on the reliability of fingerprint identification.

Update: At least one reader has apparently gotten the impression that the sentence after the block quote in this post -- the sentence beginning "In Utah, then ... " -- was authored by John Bogart. We should clarify that it was not. The claim that consensus is elusive on the reliability of fingerprint identification is our own. We have no idea what Mr. Bogart's views on that subject, if any, may be. Double update: Well, now we do.

Latest Googlerific Trick: Finding Scholarly Literature Online

As part of its relentless quest for world domination, Google has launched Google Scholar in beta. Google has posted an FAQ page giving some of the details. But the basic idea is this: You enter the name of an author, or a search term, and Google provides links to published scholarly literature that satisfies the search criteria. In some cases, the text of the article is available for free. In others, only the abstract is published on the web. In still other cases, information is provided on how to download the text for a fee. The database appears to include PubMed entries. Litigators and experts alike will want to put a link on their desktops.

10th Circuit Affirms Exclusion of Accident Reconstructionist in Kidnapping / Murder Case

The Tenth Circuit has published a decision upholding the trial court's exclusion of testimony from an accident reconstructionist, offered by the defendant in a murder and kidnapping trial. From the opinion:

Of the nine opinions set forth in the defense expert's report to the court, only numbers three and four arguably relied on some mathematical reasoning or Dr. Watts's expertise in accident reconstruction. Conclusion number three relied on a series of force and impact calculations to conclude that "even an 'average size' person" could have delivered the blows to Dale's face and head, since none of her facial bones were broken. The point of this testimony, by Watts's own admission, was to show that the blows to Dale's face need not have been delivered by the 6'3", 400 lb. Gabaldon, but could have been inflicted just as well by his accomplice Begay, who was seated next to Dale in the back of the car.

Although the district court excluded this conclusion as unhelpful to the jury because it was "not scientific and fell into the category of speculation," the larger problem is that this conclusion is utterly obvious and is not something for which expert testimony is needed. As Watts conceded on the stand, the average juror would know that a woman of Dale's size could be hit by a man smaller than Gabaldon in such a way as not to break her facial bones. Watts's calculations might have been relevant if the conclusion reached was that Gabaldon could not have delivered the blows to Dale's face; his conclusion that Begay could not be ruled out is of no help to the jury, especially where Begay admitted at trial that he had in fact struck Dale. The district court did not abuse its discretion in excluding this piece of the expert's proffered testimony.

Watts's fourth conclusion stated that the internal geometry of Gabaldon's car would have made it difficult for him to reach Dale to deliver the blows that knocked her unconscious and ultimately contributed to her death. Watts claimed this statement relied on published data on the 1996 Buick LeSabre, to calculate the distance between the front seat and the far corner of the rear seat and to find that Gabaldon would have had to lean back between the two front seats to reach Dale with his blows. Watts then asserted that the act of leaning back and holding on to the front seat would have prevented Gabaldon from striking Dale with much force, but offered no scientific support for that statement.

The district court did not abuse its discretion in excluding this conclusion as lacking in "sufficient methodology and reasoning." Watts's opinion about Gabaldon's effective reach and ability to land forceful blows while holding on to the front seat back was entirely conclusory and unsupported by any scientific evidence or reasoning. Watts conceded that his theory could have been tested by placing Gabaldon in a 1996 LeSabre and taking measurements, but no such testing was done.

See United States v. Gabaldon, No. 03-2233 (10th Cir. Nov. 16, 2004) (Ebel, Tymovich, & Heaton, JJ.).

Aussies Consider Ban on Party-Retained Experts

According to the Sydney Morning Herald, a law reform commission in New South Wales has proposed unclogging court dockets by banning party-retained experts. "Having a lot of expert witnesses being called by each party can gum up the court," says one commission member. Some Australian courts have already implemented the alternative of having all expert testimony come from one court-approved witness.

Reform is all well and good, but halfway measures will get us nowhere. Lay witnesses often do far more than experts to bog down a trial and confuse the jury -- especially when the parties get to call whichever ones happen to be favorable to their position.

And all those documents offered as trial exhibits? Jurors probably don't understand 'em anyway, and the photocopying charges can be astronomical.

Someone should take a hard look at all this. Whose idea was it, anyway, to give each party in a lawsuit the chance to present evidence of its own choosing? Won't each side tend to offer a one-sided point of view? How on earth can the truth emerge from that?

Report Blasts FBI Lab for Fingerprint Misidentification

According to today's Chicago Tribune (free registration required), a panel of forensic experts has concluded that peer pressure and groupthink led the FBI fingerprint lab astray earlier this year, when it mistakenly blamed an Oregon lawyer for the March 11 bombings in Spain that killed 191 people. The panel has recommended tightened quality controls for high-profile cases. In a more hortatory vein, it has also called for a dollop of humility by fingerprint examiners.

Government Funds Study on Gulf War Syndrome

The Veterans Administration has agreed to devote $15 million to further study of Gulf War Syndrome, following a panel's recent finding of a probable link between the symptoms of Gulf War veterans and exposures to Iraqi neurotoxins, perhaps including sarin. Earlier investigators, who blamed stress, are skeptical. "Where's the epidemiology?" they say. Maybe now we'll have some. Today's New York Times has the story.

11th Circuit Upholds Exclusion of Expert Affidavit as Discovery Sanction

In a published opinion affirming the trial court's award of summary judgment in a Title VII action alleging racial discrimination, the Eleventh Circuit has upheld the district court's exclusion of an affidavit from a statistical expert for noncompliance with the disclosure requirements of Fed. R. Civ. P. 26. Plaintiffs had originally designated the statistician as a fact witness. They subsequently listed him as an expert in discovery responses but never provided a report. See Cooper v. Southern Co., No. 03-12230 (11th Cir. Nov. 10, 2004) (Anderson, Carnes, & Marcus, JJ.).

10th Circuit Upholds Psychologist's Testimony for ADA Defendant

The Tenth Circuit has published an opinion upholding the trial court's decision admitting a psychologist's testimony in a case arising under the Americans with Disabilities Act. The issue was whether a Wyoming sheriff's department violated the ADA when it refused to rehire an officer with a history of PTSD. See McKenzie v. Benton, No. 02-8024 (10th Cir. Nov. 9, 2004) (Henry, Holloway, & Murphy, JJ.).

Kentucky Supreme Court Case Explores Standard of Review

From Barry Miller, our Kentucky correspondent:

Miller v. Eldridge, No. 2001-SC-0628-DG (Ky. Oct. 21, 2004), arose from a claim of medical malpractice against Dr. Miller. Plaintiff alleged that Dr. Miller negligently conducted an angiography, causing the death of his 31-year-old wife. In the course of the angiography, Dr. Miller had to pass a guidewire through a possibly occluded artery. An expert for plaintiff, Dr. Skinner, stated his theory that during the operation Dr. Miller passed the guidewire through a clot, causing the clot to break up. Dr. Skinner also believed that a later injection of dye by Dr. Miller caused some of the pieces of the clot to travel against the normal flow of blood until they lodged in an artery near the brain, and formed an occlusion that caused death.

Dr. Miller retained Bruce Taylor, a biomedical engineer and a Ph.D. in physiology, to challenge plaintiff’s expert. Taylor stated that Dr. Skinner’s theory violated fundamental laws of movement, and developed computer models and “benchtop” models to illustrate the flaws he saw in that theory. Plaintiff sought a Daubert hearing. After that hearing, without entering findings of fact, the trial court found that Taylor could testify but that he could not use the benchtop models. After the jury returned a defense verdict, plaintiff appealed on the grounds that Taylor’s testimony should not have been permitted under Daubert.

The Court of Appeals reversed the trial court because of Taylor’s testimony. The Supreme Court reversed and upheld the trial court after a scholarly discussion of the proper standards for review in a Daubert action:

(1) The trial court’s decision about the reliability of the expert’s testimony is fact-based, and therefore must be reviewed under a clearly-erroneous standard.

(2) The decision whether the expert’s testimony is admissible because it will assist the jury must be reviewed under an abuse-of-discretion standard.

The Court also addressed the timing of each review: “Because the findings of fact that Daubert rulings are based on are preliminary in nature-the ultimate decision as to admissibility depends on these findings-an error that is alleged in the trial court's findings of fact must be reviewed for clear error before the appellate court can reach the discretionary aspects of the trial court's decision.”

The Supreme Court said that the Court of Appeals’ error proceeded from the fact that the trial court had not entered findings of fact on the Daubert hearing. Thus, though the Court of Appeals purported to conduct a review for clear error, it actually conducted a de novo review by “reviewing Taylor’s written report and his trial testimony, then applying Daubert’s relevancy and reliability factors to the testimony.” This approach failed to give proper deference to the trial court, which is in the best position to evaluate evidence: “Appellate courts must recognize the unfortunate but necessary corollaries of deference to the trial court: that it is possible for the trial court to rule contrary to what an appellate court would rule without abusing its discretion or being clearly erroneous, and that an appellate court is powerless to disturb such rulings.”

The Supreme Court also criticized the Court of Appeals for relying too heavily on the Daubert factors, noting that Daubert itself states that the factors do no comprise an exclusive list. Thus, that Taylor’s theory had not been peer-reviewed, or tested on human subjects did not compel the exclusion of his testimony. Taylor developed his models to challenge Dr. Skinner’s theory, and Dr. Skinner’s theory relied upon a rare situation — material traveling in human arteries against the flow of blood. This made it not surprising that Taylor’s work was not reviewed, extensively tested, or generally accepted in the scientific community. Finally, the Court noted that Taylor’s testimony was not based solely on his computer or benchtop models, but also on his understanding of basic laws of motion.

Thanks to Barry for his thoughtful analysis.

What's especially interesting about this opinion, to us, is its take on the standard of review for "factual" questions addressed by the trial court in the course of its admissibility determination. As we have noted elsewhere, it may sometimes obscure understanding to lump all evidentiary issues reviewed on appeal under a one-size-fits-all "abuse of discretion" standard. Whatever nomenclature may be used for the standard of review, it seems to us that appellate scrutiny of truly factual determinations (e.g., did the expert actually receive his degree as claimed?) is necessarily conducted under a different logic from appellate evaluation of a trial court's reliability analysis (incoherent analyses may receive little deference). To us, it seems a little strained to call this latter issue "factual." But at least the Kentucky court has started to broach the issues in a more refined way.

1st Circuit Upholds Exclusion of Expert on Eyewitness Identification

The First Circuit has published an opinion upholding the trial court's exclusion of testimony from a criminal defendant's expert on eyewitness identification. Under the First Circuit's case-by-case approach to the issue, the lower court did not err in concluding that the defendant failed to show how the testimony would aid the trier of fact. See United States v. Stokes, No. 00-2397 (1st Cir. Nov. 5, 2004) (Torruella, Dyk, & Howard, JJ.).

North Dakota Supreme Court Confirms Permissive Stance on Expert Testimony

From Leonard Bucklin, our North Dakota correspondent, we learn of a decision this past week from North Dakota's Supreme Court confirming that state's generally permissive posture on expert evidence -- i.e., expert evidence is admissible if: (1) specialized testimony will assist the trier of fact; and (2) the witness has "some degree of expertise in the field in which she is to testify." See Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207 (N.D. Nov. 4, 2004). For Bucklin's take on the decision, see the overview of North Dakota expert evidence law posted at his site.

New State Law Correspondents for Georgia, Mississippi, Tennessee

We're pleased to announce the addition of three new correspondents who will be monitoring state law developments on expert evidence:

Charles R. Beans, a partner from the Atlanta offices of Hawkins & Parnell, has graciously agreed to monitor decisions from the courts of Georgia.

The learned Alexander Ignatiev, of the law firm Allen, Allen, Breeland & Allen, will be tracking developments in the Mississippi courts.

And Steven M. Markowitz, of the Memphis firm Glassman, Edwards, Wade & Wyatt, will be watching decisions from Tennessee.

Welcome to all!

Federal Appellate Round-Up

We've been on the road. Let's catch you up on five federal appellate decisions from this past week:

United States v. Hicks, No. 03-40655 (5th Cir. Nov. 2, 2004) (King, Smith, & Garza, JJ.). A criminal defendant failed to preserve error via offer of proof at trial following the lower court's pretrial ruling barring testimony from the defendant's ballistics expert.

United States v. Padilla, No. 02-50636 (9th Cir. Nov. 2, 2004) (Wallace, Canby, & Thomas, JJ.). A law enforcement officer's expert testimony on gangs was upheld.

United States v. Janis, No. 03-3808 (8th Cir. Nov. 1, 2004) (Arnold, Fagg, & Riley, JJ.). Prosecution fingerprint testimony was upheld.

Brown v. Ryan's Family Steak Houses, Inc., No. 04-1351 (4th Cir. Oct. 29, 2004) (Luttig, Michael, & Kiser, JJ.) (unpublished). The trial court did not have to perform a gatekeeping analysis of a treating physician's opinion that plaintiff's guardian lacked the mental capacity to enter into a binding contract, because the physician was a fact witness and/or offering lay opinion under Fed. R. Evid. 701 -- not a witness relying on "scientific, technical, or specialized knowledge" or offering expert opinion under Fed. R. Evid. 702. In any event, the witness "was [the guardian's] treating physician for sixteen years. The fact that his practice is internal medicine rather than neurology does not negate the fact that he is a qualified physician with more first-hand knowledge concerning [the guardian's] physical and mental well-being than any other medical professional."

Poulis-Minott v. Smith, No. 03-2601 (1st Cir. Oct. 28, 2004) (Torruella, Dyk, & Howard, JJ.). The First Circuit upheld various rulings on expert qualifications and reliability in a Jones Act case.

The Good News

We're pleased to report that the presidential election was decided by ballots, and not by a judicial ruling on whether some voting expert's testimony was sufficiently reliable to pass muster under Daubert, Kumho Tire, or Fed. R. Evid. 702.