Thursday, June 30, 2005

False Confessions

Another battle in the "false confession" wars is playing out in a New York court. Newsday has the story.

Second Circuit Reverses Admission of Forensic Pathologist's Testimony on Police Officer Credibility and Sensory "Misperceptions"

A Second Circuit panel has reversed a defense verdict in an excessive force case based on the trial court's erroneous admission of testimony from a forensic pathologist. The claim was brought by a man shot in a police chase. The medical evidence showed him to have been shot in the back, but the officers testified that the man was facing them and brandishing a weapon when shot. The lower court permitted the officers' expert to testify that he credited the sincerity of the officers' testimony, and also to opine that it probably derived from a sensory "misperception." In a published decision, the Second Circuit held that the expert's opinion on credibility invaded the province of the jury, that his expertise in perception was doubtful, and that it was methodologically illegitimate for him to have formed his "misperception" opinion as a way of reconciling the medical evidence with his own judgment that the officers' testimony was sincere. See Nimely v. City of New York, No. 04-3240 (2d Cir. June 27, 2005) (Jacobs, Calabresi, & Rakoff, JJ.).

3d Circuit Reverses Exclusion of Expert on Environmental Contamination

The Third Circuit has reversed a trial court's exclusion of an environmental engineer's testimony about contamination from underground storage tanks at a gas station site. The trial court erred, it said, in faulting the expert for relying on environmental documents submitted by defendants, rather than conducting his own independent field testing. "We do not require an expert to base his or her opinions on independent data collection or field research," the Third Circuit panel held in a published opinion. The question, said the panel, is rather whether the expert's data are of a type reasonably relied upon by experts in the field. The appellate court said the district court also misunderstood the nature of the challenged testimony, which was offered not to determine the state of contamination on a particular date based on extrapolation from data on other dates (as the district court supposed), but rather to show that concern over the property's condition would have been reasonable at the relevant time. See Jaasma v. Shell Oil Co., No. 04-2095 (3d Cir. June 28, 2005) (Roth, Fuentes, & Becker, JJ.).

Wednesday, June 29, 2005

BEIR VII Released

As the Washington Post and other press sources are reporting, the National Academy of Science's Committee on the Biological Effects of Ionizing Radiation ("BEIR") has released a long-awaited report on the health effects of exposure to low radiation doses. From the NAS press release:
The study committee defined low doses as those ranging from nearly zero to about 100 millisievert (mSv) -- units that measure radiation energy deposited in living tissue. The radiation dose from a chest X-ray is about 0.1 mSv. In the United States, people are exposed on average to about 3 mSv of natural "background" radiation annually.

The committee's report develops the most up-to-date and comprehensive risk estimates for cancer and other health effects from exposure to low-level ionizing radiation. In general, the report supports previously reported risk estimates for solid cancer and leukemia, but the availability of new and more extensive data have strengthened confidence in these estimates.

Specifically, the committee's thorough review of available biological and biophysical data supports a "linear, no-threshold" (LNT) risk model, which says that the smallest dose of low-level ionizing radiation has the potential to cause an increase in health risks to humans. In the past, some researchers have argued that the LNT model exaggerates adverse health effects, while others have said that it underestimates the harm. The preponderance of evidence supports the LNT model, this new report says.

"The scientific research base shows that there is no threshold of exposure below which low levels of ionizing radiation can be demonstrated to be harmless or beneficial," said committee chair Richard R. Monson, associate dean for professional education and professor of epidemiology, Harvard School of Public Health, Boston. "The health risks – particularly the development of solid cancers in organs – rise proportionally with exposure. At low doses of radiation, the risk of inducing solid cancers is very small. As the overall lifetime exposure increases, so does the risk." The report is the seventh in a series on the biological effects of ionizing radiation.
A summary report (PDF) is available here; the full report, here. You can also listen (via Real Player) to the committee's news conference.

Tuesday, June 28, 2005

Two Years of Blogging

Blog 702 celebrates its second anniversary today.

Bear with us. Maybe we'll get the hang of this whole weblog thing before too much more time goes by.

Sunday, June 26, 2005

Before Daubert

Over at the 'Lectric Law Library, we tripped over this interesting page, written by Gordon J. Beggs, on Daubert's prehistory.

Polygraphy and the Fifth and Sixth Amendments

We yield to no one in our distaste for polygraph evidence. It should all be excluded as unreliable and prejudicial, and also because it encroaches on the jury's function. But we're wondering about the constitutional legitimacy of another basis that courts have sometimes used to exclude it, most recently in United States v. Ross, No. 04-2124 (7th Cir. June 20, 2005). The notion in question is that polygraph tests taken by criminal defendants on their own initiative and without prior notice to the prosecution should be excluded from evidence because they represent a one-way street. If the defendant happens to pass the polygraph, the defendant unveils the results. But if the defendant flunks it, the results never see the light of day.

Of course, the same might be said of expert evidence developed by criminal defense counsel in general. If it's exculpatory, it's offered, and if it's inculpatory, it's buried. But polygraph evidence might be thought a special case, because of an asymmetry in the power of prosecutors and defense counsel to develop it. By virtue of the constitutional prohibition against compelled self-incrimination, the prosecution cannot normally administer a polygraph to a criminal defendant over the defendant's objection. It might be thought unfair, to admit evidence of a certain type, if the defendant enjoys a unilateral right of veto over all evidence of the same type.

But wait a minute. Not only does that "unfairness" argument ring of "sporting contest" theories of litigation that seem particularly out of place in criminal proceedings; it also proves too much, because in general, the Constitution vests in criminal defendants the unilateral right to withhold their testimony altogether, or to offer it if they choose. That is, it gives them precisely the same kind of unilateral veto that courts find unpalatable in the polygraph context.

It's not our field, but we assume that offering an exculpatory polygraph would waive the defendant's Fifth Amendment privilege, thereupon obviating any constitutional impediment to the prosecution's ability to take a polygraph of its own (at least any constitutional impediment resting on the ban against compelled self-incrimination). If that's right, then any remaining procedural difficulties with a prosecution polygraph would be of less than constitutional proportions (is that right, or are there other constitutional issues?), and could perhaps be solved (e.g., by an adjournment of trial, or through a pretrial notice requirement).

Would a court's refusal to help solve those less-than-constitutional procedural obstacles violate the right of the accused under the Sixth Amendment to present a defense? That argument would probably be an uphill battle in light of United States v. Scheffer, 523 U.S. 303 (1998). But the holding in Scheffer rested in part on the Court's deference to a flat ban on polygraph evidence under the Military Rules of Evidence. Reasonable jurisdictions could differ, said the Scheffer Court, on whether polygraph evidence is ever sufficiently reliable to be admissible. Let us take that idea seriously for a moment. The Federal Rules of Evidence, of course, impose no per se bar against polygraph testimony; not an explicit one, anyhow. A total ban remains in place under decisional law in some circuits. But in most, polygraph testimony is theoretically admissible under Daubert, if some trial court, in the exercise of its sound discretion, should chance to find it scientifically reliable in the particular case. And in a jurisdiction whose evidentiary rules at least permit a court to find a species of evidence scientifically reliable, the argument that its exclusion infringes the right to present a defense seems correspondingly stronger.

In our belief, the question is somewhat academic, because in our belief, polygraph testimony can and should be legitimately excluded on other grounds, without any reliance on the "one-way street" argument. But in the interests of intellectual coherence, as well as judicial candor and precedential clarity, maybe it would be better if the courts rested their exclusionary polygraph decisions on those other grounds, rather than on a "one-way street" argument that doesn't quite seem to work, and which may also be constitutionally suspect.

Saturday, June 25, 2005

More on Thimerosal and Autism

Today's New York Times has a major piece on the controversy.

Update 6/26/05: Ted Frank has posted a reaction to the thimerosal coverage, claiming that money from the plaintiffs' bar is behind the thimerosal scare, and quoting a commentator who says that parents' unfounded fears are leading them to refrain from vaccinating their children, contributing to disease "hot spots" across the country. "Remember that," Frank says, "next time you hear the plaintiffs' bar taking credit for safety innovations that have saved lives."

But hold the phone. Even Frank does not contend, in his post, that liability resulting from a spate of unmeritorious thimerosal lawsuits has driven a socially beneficial product from the market. At issue, rather, is a claim that baseless or exaggerated fears have taken root in the general population, presumably as the result of media coverage. Among the principal events thus covered would be a 1999 thimerosal advisory from the American Academy of Pediatrics and the Public Health Service -- organizations not generally regarded, even by "tort reformers," as fronts for the organized plaintiffs' bar.

The Times also reports concern in the public health community over the growing popularity of unproven and potentially dangerous "treatments" being sold to desperate parents as cures for "mercury poisoning." For example, "hundreds of doctors," according to the Times, "have listed their names on a Web site endorsing chelation to treat autism," even though no evidence supports chelation's efficacy in treating autism, and even though chelation is known to carry risks of its own, such as kidney and liver damage.

So let's be clear. Whatever the merits of the thimerosal debate, there have been health scares, and snake oil salesmen, since well before ATLA ever existed. It is understandable that parents of children with this condition, which has been diagnosed in recent years in dramatically increasing numbers, might be looking for answers. It is unfortunate, but still understandable, that some might latch on to causal theories supported (at least for now) less by rigorous scientific evidence than by strong conviction born of desperation and anger. This is a familiar pattern, no doubt exacerbated by the web and the modern 24-hour news cycle -- and also, in this case, by a round of congressional hearings, called by a Republican congressman whose grandson was diagnosed with autism following a round of vaccinations.

But singling out the "plaintiffs' bar" as the primary force responsible for alarmism over thimerosal in the larger polity is (shall we say) something of a stretch. To put that another way, it is a causal ascription that may be supported more by deeply felt conviction than by any rigorous evidence.

Thursday, June 23, 2005

Follow-Up on Harvard Medical Practice Study

From John Bogart, our Utah correspondent, we learn of an article by Prof. Tom Baker, of the University of Connecticut Law School, entitled "Reconsidering the Harvard Medical Practice Study: Conclusions About The Validity of Medical Malpractice Claims." From the abstract:
Over fifteen years after first reporting to the State of New York, the Harvard Medical Practice Study (HMPS) continues to have a significant impact in medical malpractice policy debates. In those debates the HMPS has come to stand for four main propositions. First, "medical injury ... accounts for more deaths than all other kinds of accidents combined" and "more than a quarter of those were caused by substandard care." Second, the vast majority of people who are injured as result of substandard care do not file a claim. Third, "a substantial majority of malpractice claims filed are not based on provider carelessness or even iatrogenic injury." Fourth, "whether negligence or a medical injury had occurred ... bore little relation to the outcome of the claims." In light of this continuing reliance on the HMPS and the follow up closed claim study, this article reviews the evidence regarding their findings about the validity of medical malpractice claims. The results of this review are as follows: First, the finding that most eligible people do not bring medical malpractice claims is well supported and confirmed by other studies using both similar and very different research methods. Second, the finding that most medical malpractice claims are not based on either iatrogenic injury or provider negligence stands on a small and precarious empirical base. Indeed, the HMPS data are as likely to support a very different finding, namely that most malpractice claims are reasonably related to medical management injuries and provider negligence. Finally, the finding from the follow-up closed claim study rests on an even weaker base and is contradicted by a large body of research on closed medical malpractice claims. In fact, the research reviewed in ... this article suggests that the legal system filters out most of the weaker claims.
To download the article, go here.

2d Circuit Tightens Reins on Lay Opinion Testimony

Litigants sometimes hope to avoid Daubert challenges by characterizing their witnesses' testimony as lay rather than expert opinion. To be sure, the federal lay opinion rule, Fed. R. Evid. 701, was amended in 2000 with the intent of "eliminat[ing] the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." But some courts have remained receptive to the "lay opinion" gambit in borderline cases, if reasonable persons might differ over whether the witness has necessarily relied on specialized knowledge in forming opinions based on facts within the witness's personal knowledge.

The Second Circuit has issued an opinion tightening the reins, in a case where a law enforcement agent testified, over defense objections, to his opinion that a defendant was a partner in a drug operation. See United States v. Garcia, No. 03-1407 (2d Cir. June 21, 2005) (Calabresi, B.D. Parker, & Raggi, JJ.). Rule 701 imposes three requirements, said the panel, which must all be satisfied before lay opinion is admissible. First, the opinion must be based on the witness's personal perceptions (as opposed, e.g., to hearsay). Second, it must be helpful to the trier of fact. Third, it must be the product of reasoning processes familiar to the average person in everyday life. If the witness's reasoning process rests "in any way" on scientific, technical, or other specialized knowledge, said the panel, then the admissibility of the witness's opinion must be determined under Rule 702's standards for expert testimony. The burden of showing these requirements to be satisfied rests on the proponent, and the agent's testimony in Garcia failed all three requirements, according to the Second Circuit.

Will this decision deter prosecutors from offering similar testimony in future cases? Not necessarily. The Garcia panel also held that the error was harmless.

Wednesday, June 22, 2005

More on the Manufacture of Scientific Doubt

Via Effect Measure, we learn of an article by Lila Guterman in the 6/24/05 edition of the Chronicle of Higher Education on the problem of corporate influence over research in occupational and environmental health.

Prosecution May Not Call Defendant's Uncalled Experts, Says PA Supreme Court

According to AP reports, the Pennsylvania Supreme Court ruled on Tuesday that if a criminal defendant retains an expert but does not call him or her at trial, the prosecution may not call the expert itself. To allow prosecutors to do so would put defense counsel "in the unenviable position of independently investigating evidence that may exonerate their clients, while, at the same time, risking the creation of evidence against their clients," Chief Justice Ralph J. Cappy reportedly wrote. The opinion is not yet available online.

Update: The opinion in Commonwealth v. Kennedy is posted now.

Tuesday, June 21, 2005

5th Circuit Upholds Exclusion of Testimony on "Battered Women's Syndrome"

The Fifth Circuit has upheld a trial court's exclusion of expert testimony on "battered women's syndrome," offered in support of a duress defense in a criminal case. The basis for exclusion involved "fit," not reliability. Whereas the challenged testimony involved the expert's opinion on the woman's subjective state, "the duress defense requires an objective inquiry into whether a defendant's conduct, although illegal, represented her only reasonable alternative to serious bodily injury or death," said the panel (emphasis ours). See United States v. Dixon, No. 04-10250 (5th Cir. June 20, 2005) (Reavley, Jolly, & Prado, JJ.).

More on Sir Roy Meadow

The Guardian has two stories (here, and here) on the pending inquiry into whether Sir Roy Meadow committed professional misconduct in his work as an expert witness in "crib death" cases.

Physician, Reform Thyself

We applaud Martin Grace, at Point of Law, for noticing that methods other than damage caps might contribute to a reduction in medical malpractice premiums. In particular, Grace notes the success enjoyed by anesthesiologists in reducing medical error, and hence malpractice premiums, through self-policing. "The states have been relatively successful in passing tort reforms and at the same time the med mal market is returning to profitability," he says, "so now is the time for physicians and insurers to work on systems to reduce medical errors."

We are not big fans of "malpractice reform." But its proponents enjoy greater credibility (with us, anyway) to the extent that they also focus on alternative methods for deterring or preventing medical errors (and for compensating their victims). In the long run, if the medical profession wants to hold on to political victories already won, it needs to show at least as much enthusiasm for that endeavor as it has shown for protecting physician assets and income.

Update: Here's Prof. Mayo's take at HealthLawProf Blog.

Double update: And here, also from Point of Law, is Ted Frank's. So much for our theory that the contributors to Point of Law form a monolithic ideological conspiracy.

Research as Tortious Misconduct?

The Los Angeles Times is running a lengthy story by Maura Dolan on what happened to Elizabeth Loftus after she investigated the underlying facts in another researcher's published case study on repressed memory.

The case study involved a woman, known to us only as "Jane Doe," with an alleged "recovered memory" of being sexually abused by her mother as a child. When Loftus published her critique challenging the findings in the earlier researcher's work, Jane Doe (whom Loftus did not identify by name) responded by filing suit, alleging that Loftus had defamed her and invaded her privacy. An appeal in the case is reportedly pending.

The University of Washington, where Loftus was then a faculty member, also launched a two-year ethical investigation, in which she was eventually cleared of misconduct.

Expert Perjury Watch -- DOJ Subornation Edition

One week before his scheduled expert testimony in the government's RICO suit against the tobacco companies, high-ranking officials in the Department of Justice pressured Harvard University business professor Max H. Bazerman to back off his recommendation that the court consider ousting top tobacco company management as a remedial measure, according to a Washington Post story.

He refused. The Post quotes his reasons:

"I would have felt I was lying under oath, and I couldn't do that," Bazerman said. "I thought then, and I believe now, that it was inappropriate influence to weaken the government's case against the tobacco industry."
Bazerman was ultimately allowed to testify.

Monday, June 20, 2005

Science Textbook Disclaimers for the New Millennium

Don't want your kids taken in by unproven or controversial scientific theories?

Dr. Colin Purrington, who teaches evolutionary biology at Swarthmore, has some handy textbook disclaimer stickers that you can send to your school board.

Saturday, June 18, 2005

9th Circuit Reverses Exclusion of Testimony Linking L-Tryptophan and Eosinophilia-Myalgia Syndrome

A Ninth Circuit panel has issued a memorandum decision reversing the trial court's exclusion of testimony from a physician that L-tryptophan caused a plaintiff's eosinophilia-myalgia syndrome. See Meyer v. General Nutrition Center, No. 03-56883 (9th Cir. June 15, 2005) (Trott, W. Fletcher, & Restani, JJ.) (unpublished).

Thursday, June 16, 2005

Thimerosal and Autism

As part of what is billed as a joint investigation with Rolling Stone, Salon is running a damning piece by Robert F. Kennedy, Jr., on the link between thimerosal, a mercury-based preservative used in vaccines, and autism and other disorders -- and on alleged efforts by government and industry to suppress the information.

Update 6/23/05: Of course, it's not just industry apologists with their heads in the sand who see the thimerosal controversy differently. Worth reading: this post from HealthLawProf Blog.

Tuesday, June 14, 2005

Expertise in Self-Promotion via Hindsight

Some state-of-the-art work in this field can be found in this press release.

Monday, June 13, 2005

Brief Interlude of Self-Congratulation

Over a million pages have now been downloaded from Blog 702 & its parent site, Daubert on the Web. The site also recently reached the 10 million hit mark.

Nothing amazing, by internet standards.

But not too bad, we think, for our little niche market.

Keep visiting.

Sunday, June 12, 2005

Experts Sued by Disappointed Clients May Seek Equitable Indemnity from Lawyers, Says California Appellate Court

Disappointed with the outcome of his tort claims, a client sues his expert witness for professional malpractice. May the expert seek equitable indemnity from the lawyers who retained him? An intermediate appellate court in California has answered in the affirmative. See Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, No. GIC781608 (Cal. Super. 4th Dist. June 9, 2005).

From the opinion:
[P]ublic policy [favors] protecting the professional interests of all expert witnesses generally to participate in litigation, and the interests of the judicial system in obtaining the assistance of such expertise. These interests are significant enough to warrant an expert's being accorded a right to recourse against those responsible, if any professional negligence should occur on the part of counsel who retained those expert witnesses, with respect to presenting their evidence and defining the proper scope of the experts' duties and obligations within the litigation setting, if any harm to the client should occur.

Saturday, June 11, 2005

District Court Permissibly Refused to Appoint Geoffrey Loftus as Expert on Eyewitness Testimony, 7th Circuit Rules

The Seventh Circuit has published an opinion upholding the trial court's refusal to appoint Dr. Geoffrey Loftus as a criminal defendant's expert on eyewitness identification. Dr. Loftus's qualifications were not in question, nor the soundness of his methodology. The trial court concluded, however, that general testimony on the fallibility of eyewitness identification would not aid the trier of fact, and the Seventh Circuit agreed. The appellate panel cited a long line of Seventh Circuit authority holding that exclusion of such testimony is permissible. The panel also noted that the trial court's jury instructions reflected the same key points on eyewitness identification that an expert's testimony would have covered. See United States v. Carter, No. 04-2008 (7th Cir. June 10, 2005) (Manion, Rovner, & Sykes, JJ.).

Thursday, June 09, 2005

No Problem Then

We just got around to looking at Thursday's Washington Post article on the government's efforts, in the pending tobacco litigation, to get its own witnesses on remedies to slash their recommendations on sanctions. You've already heard about this whole controversy by now. What we loved was the article's concluding paragraph:
Legal experts said attempts to change [Matt] Myers's testimony are more troubling, because he was called to establish facts on behalf of the government. Lawyers said that recommending changes to [Michael] Eriksen's testimony would not be improper because, as an expert, he was chosen by the government to provide his opinions.

And Moscow Girls Make Me Sing and Shout

Does "always" mean always in Georgia?

The answer, apparently, is sometimes, but not at all times. Sometimes "always" just means sometimes. Lawyers are always noticing this kind of distinction, except when they don't. And we hadn't, though now we do.

Maybe we had better explain. Along with Prof. Bernstein and others, we had drawn attention to recent Georgia legislation on medical malpractice that introduced an inconsistency into Georgia's law of expert evidence. The Georgia legislature adopted the Daubert standard for civil cases, but the same enactment provided that in criminal cases, "the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible." (Our emphasis.)

This is, to be sure, a double standard. But apparently the language just quoted may not signal that psychics and palm readers may now give expert testimony without further ado in Georgia criminal prosecutions, as might have been feared. (See our posts of 2/19/05 and 4/12/05.) According to Jonathan B. Wilson, the language at issue simply represents a re-enactment, as to criminal proceedings, of the previous language in Georgia's evidence code that formerly governed all expert testimony. In other words, it was intended to preserve Georgia's former evidentiary standard in the criminal context, limiting the adoption of Daubert to civil proceedings.

And Mr. Wilson ought to know. Unlike us, he is actually licensed to practice law in Georgia. Our thanks to him, and to Walter Olson, for drawing this point to our attention. We are always (er, sometimes) grateful to have our errors corrected -- as Mr. Wilson presumably will not hesitate to do, from his new perch at Point of Law.

Monday, June 06, 2005

Washington Judge Rejects Expert Evidence Offered by Republicans in Challenge to Outcome of Governor's Election

As the Seattle Times and numerous other press outlets are reporting, Chelan County Superior Court Judge John Bridges has ruled against a Republican challenge to the outcome of last fall's gubernatorial election in Washington State. Democrat Christine Gregoire had been certified as the winner after a manual recount gave her a victory margin of just 129 votes, and now she gets to keep the job. (See our posts of 5/27/05 and 6/4/05.)

The Republican challenge revolved around several hundred illegal ballots cast by felons and other unqualified voters (including 19 dead persons). The Republican experts had urged a retabulation of the outcome based on a method of "proportionate deduction," under which votes by felons would be subtracted from each candidate's total at the precinct level, in proportions determined by the respective candidates' overall tallies in the relevant precinct. That is, if a candidate won 60% of the vote in a precinct, 60% of the felons' votes in that precinct would be deducted from his or her total, and the remaining votes by felons in that precinct would be subtracted from the total for the other candidate.

Judge Bridges's ruling rested on multiple grounds, including the general absence of any evidence that the illegal voters even cast a vote in the gubernatorial contest. But the judge did not hesitate to confront the validity of the Republican petitioners' expert evidence head-on. He explicitly excluded their testimony under Frye, holding that it neither rested on a generally accepted scientific technique nor a proper application of any such technique. He ruled that the experts' methodology was flawed because their data sample was not random, but was disproportionately populated by felon voters in precincts carried by Gov. Gregoire. In addition, he held that that the experts' core assumption -- viz., that felons' voting patterns in a given precinct would mirror those for the electorate in that precinct as a whole -- was not scientifically valid, and indeed was an example of the ecological fallacy.

He also found that even if the "proportionate reduction" method were legitimate, its proper application would have resulted in a victory for Gov. Gregoire.

Judge Bridges read his opinion aloud. You can listen to an archived 52-minute webcast here. His discussion of expert testimony begins about thirty minutes into the webcast.

Saturday, June 04, 2005

Expert Evidence in Constitutional Adjudication

A Fourth Circuit panel has affirmed a lower court's decision that a Virginia statute banning "partial birth abortion" is unconstitutional, without reaching the district court's rulings excluding much of the expert evidence offered by the statute's defenders. See Richmond Med. Ctr. for Women v. Hicks, No. 03-1821 (4th Cir. June 3, 2005).

The panel's majority opinion (Judges Michael and Motz) holds that under the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), there is a per se requirement that statutes banning partial birth abortion must include an exception for the health of the mother. There was therefore no need, according to the majority, for the district court to consider evidence on the need for a maternal health exception. That need, says the panel majority, was already resolved in Carhart.

In dissent, Judge Niemeyer disagrees that Carhart established a per se rule, and therefore addresses (and takes issue with) the lower court's evidentiary rulings. Those can be found in Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004) (Williams, J.). The district court excluded evidence from one of the Commonwealth's physician witnesses because it found his experience with D&E procedures to be minimal, his opinions to be unsupported by published medical literature, and his testimony to be internally inconsistent. For good measure, the trial court's opinion included a string cite listing four published decisions from other abortion litigation in which fault was found with the expert's testimony. The district court also excluded testimony from a second expert for the Commonwealth because he admitted he was not an expert on the D&E procedures at issue, nor indeed on abortions.

There may or may not be some merit to Judge Niemeyer's arguments that the lower court held the Commonwealth's witnesses to higher standards than it did plaintiffs', or to his point that an OB-GYN physician need not be an expert on the specific subject of abortions to offer helpful and reliable testimony on such subjects as complications during pregnancy. We don't intend to wade into that dispute. We are more reluctant still to state any views on whether Carhart did or did not create the per se rule espoused by the Richmond Medical Center majority -- it's not our area. Nor, finally, do we take issue with the majority's view, apparently shared by Judge Niemeyer, that if a maternal health exception is a per se requirement, the district court's evidentiary rulings need not have been reached.

Perhaps we should add that we are unfamiliar with the proceedings at the district court level and therefore do not intend to second-guess Judge Williams.

With that underbrush cleared away, we do want to wonder more generally (as we have before) how far it is prudent or wise, when district courts adjudicate politically freighted constitutional issues, to follow procedural paths that make outcomes dependent on discretionary rulings about the admissibility of expert evidence. Such a course risks creating the impression that the district judge has stacked the evidentiary deck, and may cloud appellate review to a degree that is undesirable in the context of constitutional adjudication. It may also introduce undue variability of outcome as between cases where fact patterns are otherwise similar. In a bench trial, where no jury is involved and where the judge will enter detailed findings of fact in any event, in which the merits of the expert testimony may be assessed, it seems gratuitous to incur those risks.

Postscript: The views expressed in the last paragraph may suggest an answer to questions we posed on 5/30/05 about the admissibility of testimony on "intelligent design" in the pending dispute over the teaching of evolution in a Pennsylvania school district. They may suggest, that is, that the trial judge in that case should consider admitting the testimony and appraising it on its merits. On the other hand, a federal judge might be understandably reluctant to decide the merits of "intelligent design" theory. Nor, we suppose, should litigants in constitutional cases simply be required to acquiesce in the admissibility of expert testimony of high dubiety. So just for the record, we're still uncertain about that case.

Dartmouth Study Says Jury Awards Not Responsible for Bump in Malpractice Insurance Premiums

A new study by Dartmouth economists, published May 31 in Health Affairs and entitled "The Growth of Physician Medical Malpractice Payments: Evidence from the National Practitioner Data Bank," suggests that jury awards are not the primary factor driving the recent spike in medical malpractice premiums. From the abstract:
We used data from the National Practitioner Data Bank (NPDB) to study the growth of physician malpractice payments. Judgments at trial account for 4 percent of all malpractice payments; settlements account for the remaining 96 percent. The average payment grew 52 percent between 1991 and 2003 (4 percent per year) and now exceeds $12 per capita each year. These increases are consistent with increases in the cost of health care. A preoccupation with data on judgments, extreme awards, or specific specialties results in an incomplete understanding of the growth of physician malpractice payments.
The Boston Globe has more. It was Bob Ambrogi who clued us in.

Study Links Power Lines, Childhood Leukemia

News reports (Bloomberg, CNN, Forbes, Reuters) say a new case-control study in the British Medical Journal has found a statistical association between childhood leukemia and residence near high-power lines among a population residing in England and Wales. The authors caution that the relationship may not be causal. Effect Measure has more.

More on the Washington Gubernatorial Election

We've stumbled across an interesting column by Anne Martens on the role of expert evidence in the trial over who won Washington's gubernatorial election.

Friday, June 03, 2005

10th Circuit Tackles End Run on Polygraph Testimony

If actual polygraph testimony is not offered, may a litigant testify that she offered to take one?

Nice try, says the Tenth Circuit in an unpublished opinion. See Jones v. Geneva Pharms., Inc., No. 04-1079 (10th Cir. June 1, 2005) (Tacha, Anderson, & O'Brien, 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.