Thursday, March 31, 2005

Florida Appellate Court Upholds Admissibility of Data from Auto's "Black Box"

A Florida appellate court has upheld the admissibility of data from an automobile's "black box" (a.k.a. "event data recorder" or "EDR") to prove the speed of the car in a vehicular manslaughter prosecution. Two witnesses -- an accident reconstructionist, and a former GM engineer -- attested to the reliability of EDR speed data on the state's behalf at the Frye hearing. The state also offered literature gauging the device's margin of error at 1 m.p.h. for low speeds, 2.5 m.p.h. for high speeds (or about 4%). Florida's Fourth District Court of Appeal has concluded that the technique is not novel, and that even if it is, it passes the Frye test. See Matos v. State, No. 4D03-2043 (Fla. Dist. Ct. App. 4th Dist. Mar. 30, 2005).

As is typical with media coverage of judicial rulings, the story was reported on ABC's evening news broadcast (and is recapped at the ABC news web site) a shade more breathlessly than the decision may deserve -- i.e., as though the opinion altered the basic national legal landscape on the use of EDR data in court, whereas in fact the ruling seems a relatively routine application of basic evidentiary principles (within one state court system, in a jurisdiction that does not follow Daubert). We're not saying we agree or disagree with the admissibility decision. We don't know enough about EDR technology to be sure about that. But we do think the outcome is unsurprising -- given, e.g., that the National Highway Traffic Safety Administration has been relying on EDR data for a decade. And indeed, although ABC says the Florida decision "appears to be the first of its kind in the country," the Florida opinion itself (if only ABC's reporters had read it) cites an earlier Illinois case reaching the same result. See Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 776 N.E.2d 262 (4th Dist.), appeal denied, 202 Ill. 2d 598, 787 N.E.2d 154 (2002).

What's news to many, no doubt, is that the majority of American vehicles currently sold actually already have EDR devices, monitoring the habits of their drivers, though the drivers are commonly unaware that the devices exist. The ABC report appears to find this discomfiting. "Use of the information also raises privacy concerns," the ABC story says, rightly enough, before going on to stumble: the "concerns" ABC mentions are "about whether drivers should own the rights to their black box data."

Well, no. Evidence may be subpoenaed or seized for use in judicial proceedings regardless of who may hold any relevant rights to it. If we write a copyrighted novel about how we killed our wicked stepsister, "owning the rights" to the work will not save us from having the prosecution question us about the novel at our murder trial -- just as our ownership of the axe we used to kill her won't stop the murder weapon from showing up at trial as Exhibit A.

As for true "privacy concerns," it can meanwhile be wondered how much legitimate expectation of privacy drivers really have in the velocity at which they navigate one to two tons of metal along public thoroughfares. It is true that something feels slightly creepy about all of this, but we suspect it is the notion of being watched unawares -- for which the only remedy to which we are entitled beyond reasonable debate is the remedy of being told about the watching. It does probably benefit everyone to be reminded that most vehicles with airbags now also have EDR's, so that even when the passenger seat is empty, the typical motorist is now taking a silent witness along for the ride -- a witness now officially deemed reliable, within the fourth appellate district of Florida.

Wednesday, March 30, 2005

7th Circuit Publishes Opinion re Testimony on Modus Operandi of Drug Dealers

Is a signal being sent? The Seventh Circuit has issued an opinion upholding a trial court's decision admitting testimony from a law enforcement officer on the modus operandi of drug dealers. The defendant raised the entire litany of common objections (qualifications, reliability, not helpful to jury, more prejudicial than probative, dual role as fact witness and expert). The appellate opinion devotes substantial discussion to rebuffing them all. See United States v. Parra, No. 03-2056 (7th Cir. Mar. 29, 2005) (Cudahy, Rovner, & Wood, JJ.).

Monday, March 28, 2005

More on Tort Reform in Georgia

Buyer's remorse sure sets in fast.

Friday, March 25, 2005

More on Malpractice Rates and Defense Costs

At Point of Law, Ted Frank has now responded to Tiberius' reaction to our own post about the notion that defense costs for unpaid claims account for the malpractice "crisis."

Frank raises a point that initially looks hard to contest in the abstract: Malpractice insurers must defend even meritless suits, rather than reflexively settle them for nuisance value, because if all that is needed to elicit a settlement check from an insurer is to file a claim, then members of the plaintiffs' malpractice bar will file against that insurer's policyholders every time they lay their hands on even the weakest of claimants.

There are two ways to argue about these issues, we suppose. One is to study them empirically. The other is to argue from what Theory Predicts. It probably makes sense to pursue both angles. It would be nice, in the end, to reach a considered view that harmonized with both Theory and the empirical facts.

So let us give Theory its due. Why then doesn't Theory Predict that the malpractice plaintiffs' bar will eventually give up filing unremunerative claims? Why, indeed, doesn't Theory Predict that it should already have done so? Yes, there are transaction costs to defending even worthless claims. But there are transaction costs to filing and litigating them too. If insurers never pay the weak claims, shouldn't rational plaintiffs' counsel stop filing them and move on? Why should they respond by filing still more weak claims, incurring still greater expense, and losing still more money? Why, in particular, would we expect them to have done so with such gusto, lately, that malpractice premiums have spiked by 30% to 50% or more?

There may be empirical answers to these questions, or there may be conceptual ones. The best conceptual candidate, we suspect, would be a claim that lawyers cannot determine in advance which claims are strong or weak (in the settlement-value sense), because malpractice litigation is effectively a lottery, with results largely random with respect to the objective attributes of the claim. In such a situation, plaintiffs' lawyers might go on taking turns at the roulette wheel, because their pile of chips would be randomly replenished with sufficient frequency to warrant a continued sojourn in the casino.

We don't want to write the "tort reformers'" rhetorical playbook for them, but if that were indeed the line of argument, there would be at least two things to say about it: (1) It rests on an underlying factual assumption (the "lottery" assumption) that may be amenable to rigorous empirical investigation (e.g., compare samples of verdicts in like cases -- as has already been done, for all we know). (2) If the assumption is not in fact amenable to rigorous empirical investigation (maybe weak medical malpractice claims are like snowflakes, so that assembling them into categories of comparable claims is insuperably difficult), then seemingly it cannot be defended on the alternative ground that Theory Predicts it. Theory may predict some random variation in verdicts, but not (we suspect) any a priori level of variation.

Thursday, March 24, 2005

9th Circuit Upholds Fingerprint Testimony

The Ninth Circuit has issued an unpublished opinion upholding the government's fingerprint testimony in a criminal prosecution. The defendant invoked the recent FBI solicitation for research on fingerprint identification methodologies, arguing that if the FBI admitted the need for further research, the reliability of fingerprint identification must currently be in doubt. The panel rejected that argument, noting that the FBI solicitation did not call into question the validity of the existing research on which the prosecution's expert had relied. Moreover, the comparisons at issue were between two sets of rolled prints, which the court characterized as more reliable than comparisons with partial prints.

See United States v. Sanchez-Birruetta, No. 04-30150 (9th Cir. Mar. 18, 2005) (Hug, Berzon, & Bybee, JJ.).

8th Circuit Upholds Statistician's Testimony

The Eighth Circuit has upheld a trial court's decision admitting expert statistical testimony in a commercial dispute involving a breach of contract. The defendant complained that the expert's analysis did not conform to the standards in the Federal Judicial Center's Reference Manual on Scientific Evidence (2d). But the Eighth Circuit panel rejected that argument. "It goes without saying," the appellate court said, "that the Manual does not have the force of law, nor are judges required to follow it." Quoting from the Manual's introductory material, the court said the Manual's reference guides "are not intended to instruct judges concerning what evidence should be admissible or to establish minimum standards for acceptable scientific testimony."

See Marvin Lumber & Cedar Co. v. PPG Indus., Inc., No. 02-2833 (8th Cir. Mar. 23, 2005) (Bye, Bowman, & Beam, JJ.).

Wednesday, March 23, 2005

Another Empirical Study Casts Doubt on the Putative Medical Malpractice "Crisis"

On the heels of a recently released Texas study that found no substantiation for the causal link claimed by tort "reformers" between medical malpractice payouts and rapidly escalating malpractice insurance rates, researchers investigating the situation in Florida have reached similar conclusions, according to a story in Tuesday's Palm Beach Post. Malpractice premiums in Florida have soared by 30% to 50% since 2000, but researchers from Duke found no increase in per capita claims since 1990. Large payouts went up, but so did the number of severe cases. Of the 801 payouts of $1 million or more since 1990, only 60 came from jury awards. The rest were negotiated settlements.

Your data must be faulty, say insurance industry spokesmen in response. You're not counting the costs of defending unpaid claims.

So now we have a new rallying cry for "tort reform": "Stop us before we spend millions more defending claims with settlement values of zero."

We're not naive. We used to work at a defense firm. We know it can cost good money to defend a meritless claim. At big firms in particular, meritless claims sometimes have a way of sticking around until no further conceivable excuse can be found for the next billable hour, and then sticking around some more.

But if the new argument from the insurers and the defense bar is going to be that the "crisis" is caused by the costs of defense of unpaid claims -- and there are indeed meaningful signs that this theme is gaining currency -- then we begin to wonder whether what's needed isn't so much "tort reform," as a hard look by the insurers (and their shareholders) at the monthly statements submitted by their outside counsel. Maybe the malpractice insurers are the ones who have gone and gotten themselves overlawyered.

Update 3/24/05: Tiberius weighs in from his perch at Ciceronian Review.

Sunday, March 20, 2005

Law Enforcement Testimony on Drug Dealer Practices Is Expert Evidence, Not Lay Opinion, Says MD Appellate Court

It is fairly well settled, in federal court, that testimony from law enforcement officers about the modus operandi of drug dealers is evaluated as expert testimony, founded on their training and experience -- not as lay opinion. The distinction matters largely because the pretrial disclosure requirements are more stringent for expert testimony, in criminal cases, than for lay opinion evidence.

Maryland's high court has now adopted the same view. See Ragland v. State, No. 52 (Md. Ct. App. Mar. 18, 2005).

Friday, March 18, 2005

Daubert and Terrorism

In Alexandria, Virginia, Judge Leonie Brinkema is hearing argument today on the admissibility of testimony from the prosecution's terrorism expert in the trial of Ali al-Timimi, an Islamic scholar who stands accused of calling on followers to fight American soldiers in Afghanistan. The expert, Evan Kohlmann, is a 26-year-old law school graduate who has billed himself as the "Doogie Howser of terrorism." The Richmond Times-Dispatch has the story.

Meanwhile, the Sixth Circuit has issued a decision upholding the admissibility of testimony from a different government terrorism expert in another prosecution. See United States v. Damrah, No. 04-4216 (6th Cir. Mar. 15, 2005) (Norris, Gibbons, & Todd, JJ.). From the Sixth Circuit's opinion:
Damrah objected to expert testimony from the government's witness Matthew Levitt. Damrah sought an order excluding Levitt's testimony, or, in the alternative, a hearing to determine the admissibility of Levitt's proposed testimony under Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999). After conducting a hearing, the district court denied Damrah's motion. Damrah's primary objection to Levitt's testimony was that it relied heavily on inadmissible hearsay in violation of Federal Rule of Evidence 703 and that Levitt's testimony did not satisfy the requirements of Federal Rule of Evidence 702, which dictates that an expert may offer an opinion "if (1) the testimony is based upon sufficient facts of 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." A district court's evidentiary rulings will not be reversed absent a clear showing of abuse of discretion. United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990).

Damrah's arguments are without merit. Levitt did not present any inadmissible hearsay to the jury, and the materials he relied on met the requirements of Rule 702. The district court stated: "Given the secretive nature of terrorists, the Court can think of few other materials that experts in the field of terrorism would rely upon. Indeed, Damrah himself failed to suggest any." The district court also described Levitt's methodology as "the gold standard in the field of international terrorism." The district court did not abuse its discretion in allowing Levitt's testimony.
This is the first appellate decision we remember seeing on the admissibility of expert testimony about terrorism. To that extent, it plowed virgin legal ground. The government prosecutors in the al-Timimi case may not be able to cite it, though. It's unpublished.

Update 3/19/05: Apparently the al-Timini prosecutors had enough to cite already. The testimony is in.

Update 8/21/05: We see now that on June 14, 2005, the Sixth Circuit released its opinion in Damrah for publication.

Wednesday, March 16, 2005

Three Studies on Malpractice Insurance Rates

Yesterday's column by Dan Margolies, legal affairs reporter for the Kansas City Star, provides links, in one handy location, to three studies that are being widely cited in the current debate on medical malpractice insurance rates:

Thursday, March 10, 2005

Striking Experts

Thirty years ago, our alma mater's law review published the seminal legal analysis of the infield fly rule. It began with this straightforward pronouncement: "The Infield Fly Rule is neither a rule of law nor one of equity. It is a rule of baseball." See Aside, The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975).

It was intended as a parody.

Comes now Mark Herrmann. His commentary, entitled "Three strikes should apply to experts," was published March 9 in The Recorder, San Francisco's legal paper. It has also been picked up by the National Law Journal and is available online for subscribers to Its opening sentences say it all:

California did it to felons: After a third felony conviction, it's life in prison without parole. Three strikes, you're out. Florida did it to physicians: After three adverse medical malpractice judgments, physicians cannot practice in Florida. Three strikes, you're out.

A similar rule should apply to expert witnesses in litigation: After three courts exclude a witness's testimony as "junk science," the witness should no longer be permitted to testify as an expert. Three strikes, you're out. This rule would invigorate the effort to keep junk science out of the courtroom; it would bar the courthouse door to charlatans. Judges and juries would no longer be burdened with testimony from recidivist junk scientists.
We will wait to see if this silly idea gains traction before we say a lot more. For the moment, we'll just mention that it's questionable whether any of these "three strikes" programs represent wise policy. This is not the place to debate whether the Nation's laws derive their ultimate legitimacy from the Ten Commandments. But we could agree, perhaps, that our legal system should be slow to draw its central inspirations from Abner Doubleday.

Tuesday, March 08, 2005

Exclusion of Extrinsic Expert Evidence on Credibility Did Not Violate Criminal Defendant's Due Process Rights, Says Minnesota Supreme Court

The Minnesota Supreme Court has ruled that a criminal defendant's constitutional right to present a defense was not violated when the trial court excluded the defendant's expert evidence about the effects of a victim's glue-sniffing habit on the victim's ability to process information. The trial court had been prepared to allow expert testimony about the effects of glue-sniffing in general, but not the expert's opinion about its effects on the witness in particular. The latter kind of testimony is legitimately impermissible, because it would represent expert testimony about ultimate facts surrounding the witness's credibility, according to the opinion. See State v. Reese, No. A03-1887 (Minn. Mar. 3, 2005).

NJ Appellate Court Reverses Conviction Based on Bullet Lead Analysis

As numerous media outlets are reporting (ABC, CBS, Washington Post), a New Jersey appellate court has reversed a murder conviction that rested in part on bullet lead analysis, remanding for a new trial. "The integrity of the criminal justice system is ill-served by allowing a conviction based on evidence of this quality, whether described as false, unproven or unreliable, to stand," says the appellate opinion. According to the press stories, the decision is believed to be the first reversal of a conviction based on bullet-lead testimony since last year's NRC report calling the methodological bona fides of such evidence into question. The opinion is available online. See State v. Behn, No. A-2062-03T3 (N.J. Super. Ct. -- App. Div. Mar. 7, 2004).

Sunday, March 06, 2005

9th Circuit Reverses Exclusion of Title VII Plaintiff's Statistical Evidence

The Ninth Circuit has reversed the trial court's exclusion of plaintiff's statistical evidence in a Title VII suit alleging that a Navy shipyard has discriminated against persons of Asian-American ancestry. See Obrey v. Johnson, 03-16849 (9th Cir. Mar. 4, 2005) (Brunetti, Graber, & Bybee, JJ.).

Thursday, March 03, 2005

You Put the Slime in the Coconut and Shoot It All Up

Forensic science, we learn, must still conform to some standards of methodological rigor.

At least in Idaho.

Expert Perjury Watch (Minnesota Edition)

Another expert has been charged with perjury after allegedly inflating his credentials. This time, a witness testifying as an expert on sexual dangerousness is charged with claiming bogus degrees and practicing psychology without a license. The Duluth News Tribune has the story.

2d Circuit Upholds Evidence from Detective Testifying as Both Fact Witness and Expert

In the past, the Second Circuit has cautioned of the risks involved when a law enforcement officer wears two evidentiary hats, offering both fact and expert testimony. It now appears, however, that there is no per se rule in the Second Circuit barring the practice. Yesterday, the court upheld testimony from a detective who testified in both capacities. From the opinion:

Her expert testimony was brief and related only to a few general practices of street-level drug dealers, none of which was in dispute in this case. Her testimony as to facts pertinent to this particular case was also brief and, more to the point, sufficiently separate and distinct from her expert testimony to raise no concern that the line between the two would be "hard to discern."
See United States v. Barrow, No. 03-1074 (2d Cir. Mar. 2, 2005) (Sack, Raggi, & Hall, JJ.).

11th Circuit Excludes Causation Testimony in Metabolife Diet Supplement Case

The Eleventh Circuit has published an opinion reversing the district court's decision admitting the plaintiffs' causation testimony in a lawsuit that alleged a link between Metabolife 356 (an herbal appetite suppressant containing ephedrine and caffeine) and plaintiffs' injuries (stroke and heart attack). The district court had pronounced itself frankly unable to evaluate the methodologies employed by plaintiffs' experts, and admitted their testimony because defendants had offered no expert analysis to support its exclusion. The appellate panel held that this represented an impermissible abdication of the district court's gatekeeping function.

The panel didn't stop there, though. In a detailed review, it went on to hold as a matter of law that plaintiffs' experts did not offer reliable grounds to justify their opinions on general causation.

This defendant-friendly toxic tort opinion, which overturned a plaintiffs' verdict, is sure to find its way into the defense bar's string cites. See McClain v. Metabolife Int'l, Inc., No. 03-12776 (11th Cir. Mar. 2, 2005) (Anderson, Birch, & Royal, 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.