Sunday, May 22, 2005

Daubert and the "Bush Seven"

Those seven candidates renominated for appellate judgeships by Pres. Bush after their confirmation was blocked by Senate Democrats the first time around? A reader inquires whether they have any track record on Daubert. Not the foremost question on people's minds about these nominees, perhaps. But an interesting issue, in its way, and one that may warrant some level of consideration in the judicial confirmation process.

So we've taken a quick look. All in all, we conclude that only one -- Justice Priscilla Owen of the Texas Supreme Court -- is on record taking explicit positions on the admissibility of expert evidence that could fairly be counted as controversial. Of course, two of the nominees have never been judges, and so they have no track record at all. If we've missed something of note, we invite readers to let us know.

The Hon. Janice Rogers Brown, a nominee for the Ninth Circuit Court of Appeals, has been a Justice of the California Supreme Court since 1996. She has authored only a few opinions touching on the admissibility of expert evidence under California's "Kelly/Frye" test, mostly in criminal cases. Her opinions do not suggest any unusual or exotic perspective on the subject. In People v. Brown, 16 Cal. Rptr. 3d 447, 94 P.3d 574 (2004), she dissented from the majority's ruling that expert evidence on "battered women's syndrome" -- in particular, on the tendency of domestic violence victims to issue false recantations -- is admissible under California law even where only one incident of abuse has occurred.

The Hon. Richard Allen Griffin, a nominee for the Sixth Circuit, has been a judge on the Michigan Court of Appeals since 1988. In Anton v. State Farm Mut. Auto. Ins. Co., 238 Mich. App. 673, 607 N.W.2d 123 (1999), Judge Griffin wrote the majority opinion upholding an endocrinologist's testimony that stressful events can precipitate Graves' disease (an autoimmune thyroid disorder), rejecting arguments that the causal link did not enjoy sufficiently general acceptance under Michigan's "Davis/Frye" test. In People v. Hubbard, 209 Mich. App. 234, 530 N.W.2d 130 (1995), appeal denied, 450 Mich. 965, 548 N.W.2d 634 (1996), he authored the court's decision holding that "drug profile" evidence should be inadmissible as proof of guilt. His opinion called the reliability of such evidence "suspect" and noted that "profile evidence often changes to meet the facts of any given case."

The Hon. David W. McKeague, another Sixth Circuit nominee, was appointed in 1992 as a U.S. District Judge for the Western District of Michigan. In Shanks v. Home Depot, Inc., No. 1:00-CV-383 (W.D. Mich. Dec. 7, 2001), he excluded an engineer's opinion that a design defect caused a stepladder to fail -- a garden-variety outcome, where, as in Shanks, the engineer performs no case-specific calculations or tests, and relies in vague and conclusory fashion on his experience and expertise. In Javetz v. Board of Control, Grand Valley State Univ., 903 F. Supp. 1181 (W.D. Mich. 1995), an employment discrimination suit by a university professor, Judge McKeague refused plaintiff's request to reconsider summary judgment in light of plaintiff's late-tendered expert evidence. The reasons were primarily procedural, but the judge did also comment that the expert's mere conclusory opinion on the ultimate question of discrimination would be of little assistance to the trier of fact.

William G. Myers, III, a Ninth Circuit nominee, is former Solicitor for the Department of the Interior. He has never been a judge, and reportedly he has never participated in a jury trial, so any indication of his stance on Daubert would be indirect at best. He has been criticized for taking a strongly anti-environmental, pro-industry line at Interior, but we could locate no specific evidence of his positions on scientific inquiry or evidence.

The Hon. Priscilla Owen, nominated for the Fifth Circuit, has served on the Texas Supreme Court since 1995. She authored the opinion in Merrell Dow Pharms. v. Havner, 953 S.W.2d 706 (Tex. 1997), which held that plaintiffs' evidence was insufficient to show that Bendectin caused their baby's birth defect. That is not an unusual outcome for a Bendectin case; most courts have reached similar conclusions. The Havner opinion, however, goes on to set standards for scientific evidence in toxic tort litigation that many would consider unusually stringent. Among other things, the opinion endorses a test to measure causation by whether epidemiological data show the plaintiff's toxic exposure to have doubled his or her statistical risk of disease -- a standard long popular with the defense bar, but one broadly rejected by courts in most other jurisdictions.

William H. Pryor, Jr., a nominee to the Eleventh Circuit, has served as Alabama's Attorney General since 1997. We have found nothing from Pryor explicitly addressing the admissibility of expert scientific evidence. He is on record, however, opposing litigation against the tobacco, gun, lead paint, and managed care industries, on the ground that such cases "leave only the personal injury lawyers better off." Some might think that a clue to his sentiments.

The Hon. Henry W. Saad, another Sixth Circuit nominee, has served on Michigan's Court of Appeals since 1994. In Forest City Enters. v. Leemon Oil Co., 228 Mich. App. 57, 577 N.W.2d 150 (1998), appeal denied, 459 Mich. 948, 616 N.W.2d 170 (1999), Judge Saad authored the court's opinion upholding the admissibility of testimony from defendant's hydrogeologist in a groundwater contamination case.


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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.