Sunday, July 31, 2005
Monday, July 25, 2005
Rhode Island Supreme Court Affirms Physician's Testimony on Cause of Infant's Multiple Fractures
Saturday, July 23, 2005
Overblown Rhetoric Watch -- "Tort Reform" Edition
Not that we hesitate to state our views, if they relate in some discernible way to the general topic of this weblog (expert evidence). But we aren't primarily here to be rabble-rousers or controversialists, and so we generally leave unstated whatever opinions we may hold on subjects not related to this weblog's fairly narrow topical focus. Our readers do not know what we may think about gun control, affirmative action, abortion, Valerie Plame, the Patriot Act, North Korea's nuclear program, or the marginal tax rate. Readers might guess at our opinions about such things. But they might guess wrong.
Our reticence has not saved us, however, from being counted as part of a "ton of left-leaning blogs." That is how we now find ourselves characterized by Jacob Montgomery (as one of three cited examples) after our one-sentence post of 7/7/05 relating news of a study by the Center for Justice and Democracy on the relationship between medical malpractice premiums and payouts. (On the following day, our post ballooned to two sentences, when we updated it with a link to James R. Copland's extensive critique and rebuttal of the study at Point of Law -- a Manhattan Institute site.)
What this "ton of left-leaning blogs" did, according to Montgomery, is "feature" the study as "proof" that "malpractice insurance companies – not lawsuits – are the cause of skyrocketing medical malpractice insurance rates."
For the record, we do not recognize ourselves in this description. For one thing, we did not cite the study as "proof" of anything. We're pretty slow to make claims like that. For another, our post made no claims at all about anything's having caused a solitary thing.
But our original post can speak for itself. Here it is, in its entirety:
The New York Times reports on a new study by the Center for Justice and Democracy showing malpractice premiums rising 120% over the past five years while payouts were flat.Our header for that post:
Another Study Casts Doubt on the Malpractice Liability "Crisis"That header was worded carefully. As loyal readers know, empirical investigations have repeatedly called into question whether any substantial basis exists for claims that the recent explosion in malpractice premiums is primarily attributable to any corresponding jump in malpractice payouts. See, e.g., our posts of 2/22/05, 3/16/05, 3/23/05, and 6/4/05.
That doesn't end the inquiry, of course. One prominent justification for "reform" often touted by advocates of damage caps and similar measures is the suggestion that current spikes in malpractice insurance rates result entirely from some recent explosion in frivolous malpractice lawsuits that are extorting large payouts from physicians and their insurers. But that is not the only rationale that "tort reformers" have advanced. Meanwhile, as we have repeatedly attempted to notice (and as we have duly applauded "tort reform" advocates for noticing, when they do), multiple causes for fluctuations in malpractice rates are undoubtedly in play, and in the longer term, those causal factors undoubtedly include payouts as well as other factors. No single study, meanwhile, should be accepted as decisive, nor should any be read with an uncritical eye. There will be imperfections, or outright defects, in everybody's favorite studies. Some of those studies might also be vulnerable to the charge that they were undertaken by investigators with some stake or agenda.
That said, empirical investigations into the relationship between payouts and premiums do seem worthy of consideration in assessing whether the current premium crisis stems from any recent outburst of frivolous litigiousness from the plaintiffs' malpractice bar, as more than a few "tort reform" advocates have alleged. We personally believe that before any such claim becomes the basis for wholesale legal revolution (federalization of malpractice law, stringent caps on compensatory damages for even claimants having suffered crippling harm, special evidentiary rules, et cetera), the empirical foundations of the claim should be reasonably well-established. And we don't think that qualifies us as left-leaning. At most, we think it qualifies us as aspirational members of the reality-based community.
In sum, if somebody wants our actual opinion, we don't think any one study "proves" anything, or that the behavior of malpractice premiums can be explained by exclusive resort to any single cause. We do think that the changes proposed by advocates of "tort reform" are sufficiently radical that they should have the burden of empirical persuasion. And so when another study comes along that calls the empirical validity of one rationale for "reform" into question, we think it's worth reviewing.
As for being called "left-leaning," let us make clear why we're peeved. There would be no shame in being a left-leaning person. Nor is there any shame in authoring a left-leaning weblog. Some of our best friends are left-leaning. And ordinarily we might feel honored, to be mentioned in the same breath with anyone, of whatever political stripe, so well-known as the other "left-leaning" bloggers with whom Mr. Montgomery has passingly lumped us.
But we are not happy with falling victim to drive-by ideological pigeonholing, in which views we never stated are attributed to us, and then to our supposed political leanings, for no better apparent reason than the expository convenience of a commentator who wants to set up strawmen to knock down. If somebody wants to measure our actually stated views with his personal political yardstick, that's fine. It's a free country. But it is irritating to have it suggested that our views on this study are colored by some hypothesized political bias, when we haven't stated any very definite views on the study to begin with -- and certainly not the ones described.
Are we blowing Mr. Montgomery's reference out of all proportion? Maybe. But to us the reference seemed a little propagandistic, and sometimes the only way to fight propaganda is with a surfeit of dreary precision.
Friday, July 22, 2005
Translators Must Speak Language, Second Circuit Insists
Wednesday, July 20, 2005
How to Tell When You've Been Sitting at Your Computer Too Long
You move the cursor toward the fly, hoping to scare it away.
Just happened. Signing off for the night now.
American Journal of Public Health Publishes Special Issue on Science, Public Policy, and Daubert
Contributors include a number of scientists and scholars whose names will already be familiar to many of our readers. Among others: Margaret Berger, Richard Clapp, Sander Greenland, Susan Haack, Sheila Jasanoff, George Lakoff, David Ozonoff, Kenneth Rothman, and David Michaels (who also served as guest editor for the special issue). Topics range from juror competence in gauging scientific evidence, to the courts' troublingly permissive posture on forensic evidence in criminal cases, to tensions within the set of epistemological assumptions embedded in the Daubert decision and its progeny. The papers grew out of a March 2003 symposium in Coronado, California, sponsored by the Project on Scientific Knowledge and Public Policy, and they can be downloaded from SKAPP's website. They have been deposited at PubMed too.
There's a lot to absorb here, and we plan to be delving into some of the individual articles, as time permits, over the next little spell. For now, we'll venture some thoughts on just one overarching theme. Expert scientific evidence is a controversial subject, and some of the articles in this collection will inevitably become fodder for lively debate, if not outright polemic. Some of the authors' conclusions will be dismissed in some quarters as driven by ideological predisposition, and some of the analyses will be criticized, fairly or no, for a perceived want of neutrality. We make that prediction with a mixture of apprehension and satisfaction. Apprehension, because it would be a shame if the genuinely fresh insights reflected in some of this work were drowned out by the stale rhetorical posturing so familiar in the expert evidence wars. Satisfaction, because we don't believe it's profitable any longer, if ever it was, to pretend that these issues are without substantial political content. That may as well be acknowledged explicitly.
The notion that there exists some single true measure of bona fide science, or some single set of neutral and objectively valid rules about how the tools of science should be discussed, evaluated, or deployed -- such a notion, in our view, is itself an ideological artifact, and only very dubiously defensible. To say this is not to embrace some version of postmodern intellectual nihilism, in which inconvenient empirical results are simply discarded in some junkheap of relativistic oblivion. Nor is it to say that we should become casual about allowing jury verdicts and policy decisions to be based on charlatanry. It is to say that we should be resoundingly skeptical, and bring all our critical faculties to bear, when somebody's blinkered and doctrinaire vision of what does and does not constitute "sound science" aligns uncannily with a specific set of political or economic interests.
The truth is that values are at stake here, and these debates have an irreducible political component. It does not suffice, therefore, to charge opponents in the debate with holding a certain political outlook, or to accuse them of being associated in one way or another with certain interests. There is no neutral and value-free intellectual location from which such stones could be cast without sin -- and anybody who claims there is, is probably selling something. The real question should be whether people show a willingness to depart from preconceived viewpoints, when rational analysis and honest empirical inquiry suggest that the picture may be different from what somebody originally wanted to believe.
What is refreshing about this collection is the way in which many of the contributors (not all) appear have come to their views through a process of reasoned investigation, employing recognized canons of independent inquiry that did not predetermine some desired conclusion. They may not have come to their work free from all bias. Like the rest of us, they are mortals. But there is, in much of this writing, a willingness to go beneath the surface, and to drill down to serious business, that is evocative of the best in the scientific temperament. There will be those who want to praise this work, and those who want to criticize it. The best praise, and also the best criticism, would be to take up the same project, in the same spirit, and do better.
Tuesday, July 19, 2005
Journal of Law and Public Policy Publishes "Science for Judges III"
Daubert & John G. Roberts
Saturday, July 16, 2005
Wyoming Supreme Court Applies Daubert Calculus to Septic System (and Mentions Copernicus in the Process)
We like this opinion, because it mentions Ptolemy, Copernicus, and Karl Popper in the course of resolving a dispute over a septic system malfunction. Apparently our undergraduate liberal arts degree did help to prepare us for the legal profession. See Hoy v. DRM, Inc., No. 04-46 (Wyo. Sup. Ct. July 13, 2005).
First Circuit Upholds Testimony from Life-Care Planner
Seventh Circuit Links Updated
Well, when you think of legal websites, what sites do you think of? You think of Findlaw first, maybe. But our parent site is obviously a close second. So we became worried, naturally, that our own lassitude in link maintenance would soon become the focus of public scandal. In the effort to beat Bob Ambrogi to the punch, we woke up early this morning, brewed ourselves a pot of strong coffee, and repaired all the links on our Seventh Circuit page. (Note to Seventh Circuit webmaster: Kindly review our cri de couer of 8/7/04.)
Technically, we might have qualified for Bob Ambrogi's "mom-and-pop" exception. But resort to that excuse would not have been altogether free from ignominy. And the purpose of a site that provides links to judicial opinions, we suppose, is to supply working links.
We're still working on updating duplicate Seventh Circuit links on other pages at the site. And the Federal Circuit (where the links can't ever seem to stay put) is next. We promise.
Update 7/17/05: The duplicate Seventh Circuit links are now fixed too.
Thursday, July 14, 2005
Dressing the Emperor
The plaid shirt, manufactured by "Van Huessen," seized from the residence was sent to an FBI crime lab and was analyzed by forensic analyst Richard Vorder Bruegge. Mr. Vorder Bruegge analyzed the shirt, along with various videotapes and photographs, to determine if that shirt and other articles he was given matched the articles worn by the robber in the surveillance images. Vorder Bruegge testified that "all of the characteristics of this shirt matched the class characteristics of the shirt worn by the bank robber in those cases that we could see the shirt" . . . .Oh, sure. The forensic expert "analyzed" the shirt and used "scientific techniques" to establish the shirt's "commonality."
The district court did not abuse its discretion by admitting the testimony of government forensic expert Richard Vorder Bruegge. The court conducted a [Daubert] hearing, where McKreith had the opportunity to voir dire and, during his testimony, cross-examine Vorder Bruegge as to his scientific techniques and conclusions, including the commonality of the shirt seized in McKreith's residence with the shirts depicted in the banks' surveillance images.
The first thing he did, we imagine, was to cut a fabric sample from those video surveillance tapes . . .
Wednesday, July 13, 2005
The Balance of Anglo-American Trade
The BBC has seized the occasion to run a feature on what the future holds for expert testimony in the English courts. To read the views of the commentators quoted in the BBC piece is an almost quaint exercise -- as though one were listening to an entire nation's first halting attempts to come to intellectual grips with a set of problems that its citizens had been too congenitally naive, until Sir Meadow came along, even to imagine (and whose full dimensions the English may still be too gentlemanly to comprehend).
The BBC piece advises us, for example, that in England, experts can earn a substantial income. This reportedly contributes to the problem of the hired gun -- experts who are ostensibly there to serve the court, but who are ultimately subsidized by solicitors who may pressure them to take particular positions.
Only in England, we suspect, could such revelations count as news. There is also this little nugget, reflecting an outlook that many observers of the American debate on expert testimony would probably find peculiar:
"In court, the expert is the only witness called to give opinion, rather than facts. And that opinion is on science, which changes, whereas the law seeks certainty."Various proposed reforms are discussed, including accreditation, a corroboration requirement, and instructing jurors that expert testimony should not be accepted uncritically. One reform proposal, however, goes wholly unmentioned: any suggestion that the English judicial system adopt Daubert.
Federal Circuit Issues En Banc Decision Addressing Use of Extrinsic Evidence in Patent Claims
We have . . . held that extrinsic evidence in the form of expert testimony can be useful to a court for a variety of purposes, such as to provide background on the technology at issue, to explain how an invention works, to ensure that the court's understanding of the technical aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the prior art has a particular meaning in the pertinent field. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308-09 (Fed. Cir. 1999); Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998). However, conclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court. Similarly, a court should discount any expert testimony "that is clearly at odds with the claim construction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent." Key Pharms., 161 F.3d at 716.
We have viewed extrinsic evidence in general as less reliable than the patent and its prosecution history in determining how to read claim terms, for several reasons. First, extrinsic evidence by definition is not part of the patent and does not have the specification's virtue of being created at the time of patent prosecution for the purpose of explaining the patent's scope and meaning. Second, while claims are construed as they would be understood by a hypothetical person of skill in the art, extrinsic publications may not be written by or for skilled artisans and therefore may not reflect the understanding of a skilled artisan in the field of the patent. Third, extrinsic evidence consisting of expert reports and testimony is generated at the time of and for the purpose of litigation and thus can suffer from bias that is not present in intrinsic evidence. The effect of that bias can be exacerbated if the expert is not one of skill in the relevant art or if the expert's opinion is offered in a form that is not subject to cross-examination. See Senmed, Inc. v. Richard-Allan Med. Indus., Inc., 888 F.2d 815, 819 n.8 (Fed. Cir. 1989). Fourth, there is a virtually unbounded universe of potential extrinsic evidence of some marginal relevance that could be brought to bear on any claim construction question. In the course of litigation, each party will naturally choose the pieces of extrinsic evidence most favorable to its cause, leaving the court with the considerable task of filtering the useful extrinsic evidence from the fluff. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) ("Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it."). Finally, undue reliance on extrinsic evidence poses the risk that it will be used to change the meaning of claims in derogation of the "indisputable public records consisting of the claims, the specification and the prosecution history," thereby undermining the public notice function of patents. Southwall Techs., 54 F.3d at 1578.
In sum, extrinsic evidence may be useful to the court, but it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence. Nonetheless, because extrinsic evidence can help educate the court regarding the field of the invention and can help the court determine what a person of ordinary skill in the art would understand claim terms to mean, it is permissible for the district court in its sound discretion to admit and use such evidence. In exercising that discretion, and in weighing all the evidence bearing on claim construction, the court should keep in mind the flaws inherent in each type of evidence and assess that evidence accordingly.
Saturday, July 09, 2005
11th Circuit Defends Deferential Review for Daubert Rulings
Friday, July 08, 2005
Expert Opinion and Constitutional Adjudication Revisited
Anthrax Vaccinations Revisited
Duct Tape Revisited
Now there are at least two, and we are sorry to say that the Alabama decision of which Mr. Still apprised us last year is the less exotic of the pair, involving as it did only the mundane issue of duct-tape matching. The new one, according to the Chicago Tribune, involves matching lip prints on duct tape.
Thursday, July 07, 2005
Another Study Casts Doubt on the Malpractice Liability "Crisis"
Silica Products Liability Order on Expert Testimony and Sanctions
So here it is.
Saturday, July 02, 2005
Admissibility of OSHA Reports
OSHA reports obviously fall under the umbrella of Texas Rule of Evidence 803(8). However, in order to get the opinions of the investigator admitted, is it a necessity to have the investigator qualified under Daubert/Robinson, or is that up to the discretion of the Court? Authority seems to point in different directions. Any response is welcome.Have some insight? Go here to provide it.
Mississippi Supreme Court Upholds Bloodstain Pattern Analysis
Colorado Supreme Court Waxes Mathematical
In a potentially far-reaching opinion, the Colorado Supreme Court on June 27, 2005, affirmed a trial court's exclusion of ergonomics testimony offered by a criminal defendant, finding that the expert's characterization of his opinion as being "more likely than not" was insufficiently supported by "empirical or methodological justification." See People v. Wilkerson, No. 04SA362 (Colo. June 27, 2005).That block quotation is Mr. England's take. Here's ours, which should not be imputed to him.
The defendant was charged with attempted first degree murder when a handgun discharged, accidentally, according to her. Her attorney endorsed a professor of ergonomics to testify about his general analysis of accidental shootings. Because the expert had not tested the actual handgun, it appears that his analysis was based on the defendant's account of the shooting and his opinion was essentially limited to stating that general factors of her account were consistent with an accidental shooting. The prosecution conceded, and the trial court agreed, that the expert was "eminently qualified" to testify in this field.
On cross-examination at a pre-trial Daubert hearing, the expert characterized his opinion as being that it was "more likely than not" that the shooting was accidental, and agreed that his reference to "likely" was the same as "more than 50 percent." The trial court then ruled that the defense could not present such expert testimony at trial, apparently criticizing the lack of any "body of literature or knowledge concerning standards of measuring" accidental shootings and "error rates" associated with such analysis.
In an interlocutory review of this order, a five-Justice majority of the Colorado Supreme Court affirmed the exclusion of the expert testimony. Although expressing some criticism of the underlying factual foundation for the expert's opinion, the majority instead based its decision on the lack of "empirical or methodological justification in the record" for the expert's supposed "numeric calculation of the possibility that the shooting in this case was accidental." The two dissenting judges attacked this analysis, pointing out that the expert had not expressed any actual mathematical probabilities supporting his conclusion, but had merely agreed on cross-examination that he believed his opinion was more probable than not.
In Colorado, judges typically require any expert opinion to be couched in terms of "reasonable probability." That is, a medical expert, must testify that his or her diagnosis is based on a "reasonable degree of medical probability." This decision may require a foundational showing of some "empirical or methodological justification" that would establish the actual existence of such probability.
The notion sometimes arises that whenever experts characterize their opinions by reference to probability, they are advancing quantitative probabilistic claims that must be gauged against formal statistical standards. That notion seems plainly fallacious, because "probability" has more than one meaning. It's simply wrong to impose a formal statistical one on expert testimony that neither claims nor depends on a primarily statistical basis. Similar confusion over testimony offered to a "reasonable medical [or scientific] certainty" seems to arise much more rarely, perhaps because nearly everybody understands that testimony need not really be indisputable to be admissible. Yesterday, for example, we reported on a case involving a handwriting expert who said she held her opinion to a "reasonable degree of scientific certainty." The Third Circuit was justly dismissive of the idea that such language imported a requirement of utter indubitability.
Someday, we may post a more extended discussion of the spurious mathematicization of legal standards that can arise when Daubert collides with verbiage associated with the burden of persuasion, or with "magic language" that state law may prescribe for experts describing the confidence with which their opinions are held. In the interim, we hope that Wilkerson does not foreshadow a general Colorado trend.
Friday, July 01, 2005
Handwriting Expert's Testimony Need Not Be Given to "Reasonable Degree of Scientific Certainty," Third Circuit Holds
As the Government has pointed out, . . . "there is nothing magical about the phrase, 'to a reasonable degree of scientific certainty.'" It is not derived from the language of Rule 702 itself, and this Court has been unable to find any authority to support the position that questions regarding the expert's "degree of scientific certainty" categorically renders expert testimony inadmissible.See United States v. Mornan, No. 04-1319 (3d Cir. June 30, 2005) (Ambro, Van Antwerpen, & Tashima, JJ.).
Handwriting experts often give their opinions in terms of probabilities rather than certainties. See, e.g., United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997) (considering a handwriting expert's testimony that the defendant "probably" authored a forged check in affirming a forgery conviction); United States v. McGlory, 968 F.2d 309, 346 (3d Cir. 1992) (handwriting testimony is admissible "even if the handwriting expert is not absolutely certain that the handwriting is that of the defendant."); United States v. Galvin, 394 F.2d 228, 229 n.1 (3d Cir. 1968) (handwriting testimony is not rendered inadmissible merely "because it expresses a probability"). Indeed, Jackson testified that rendering "less-than-certain" opinions is an accepted practice in her field. We therefore find no error (let alone a plain error) in the District Court's decision to allow Jackson's testimony and to allow the jury to determine what weight to give her "less-than-certain" conclusions. See McGlory, 968 F.2d at 346 ("Any issue regarding the certainty of [the handwriting expert's] testimony goes to the weight given that testimony and could be tested by cross-examination."); Galvin, 394 F.2d at 229 n.1 ("reservations in the expressed opinion . . . go to the weight of the evidence and are a determination for the jury or fact-finder to make. . . .").