Saturday, September 17, 2005


We're about to begin a major trial of perhaps two three four months' duration, during which Blog 702 will be on hiatus, as will updates to our parent site. Keep your RSS readers tuned to this station for news of our return.

Eleventh Circuit Affirms Exclusion of Expert Testimony on Eyewitness Identification

In an unpublished opinion, the Eleventh Circuit has affirmed the trial court's exclusion of a criminal defendant's expert evidence on the fallibility of eyewitness identification. See United States v. Smith, No. 03-14278 (11th Cir. Sept. 14, 2005) (Edmondson, Fay, & Corrigan, JJ.). The panel's opinion relies on earlier decisions reaching the same result in United States v. Thevis, 665 F.2d 616, 641 (5th Cir. Unit B 1982), and United States v. Smith, 122 F.3d 1335, 1357-59 (11th Cir. 1997). Specifically, the opinion invokes the rationale given in Thevis that expert testimony on eyewitness identification: (1) would permit one witness to comment on the credibility of another; (2) would raise issues that can already be addressed through cross-examination; and (3) would involve questions that are already within jurors' commonsense understanding.

Second Circuit Affirms Exclusion of Medical Causation Testimony Linking Rezulin with Cirrhosis

The Second Circuit has published an opinion affirming the trial court's exclusion of medical causation evidence offered by a plaintiff to prove that Rezulin caused the decedent's cirrhosis. The plaintiff's expert relied on a differential diagnosis purporting to rule out all causes except Rezulin, but the trial and appellate courts agreed that the plaintiff had not offered a sufficient basis to "rule in" Rezulin as a potential cause of cirrhosis in the first place. The appellate panel left open the possibility that differential diagnosis might be probative of both general and specific causation in an appropriate case. See Ruggiero v. Warner-Lambert Co., No. 04-6674 (2d Cir. Sept. 16, 2005) (Jacobs, B.D. Parker, & Hurd, JJ.).

Massachusetts Supreme Court to Consider Reliability of Fingerprint Identification

An article from the 9/17/05 New Scientist reports on an interlocutory appeal before the Massachusetts Supreme Court involving the reliability of fingerprint identification.

Wednesday, September 14, 2005

8th Circuit Reverses Exclusion of Attorney's Testimony in Legal Malpractice Case

The Eighth Circuit has reversed the trial court's exclusion of an attorney's expert testimony in a legal malpractice case involving a merger and acquisition. See First Union Nat'l Bank v. Benham, No. 04-3656 (8th Cir. Sept. 13, 2005) (Murphy, Bye, & Smith, JJ.).

Thursday, September 08, 2005

Federal Circuit Clarifies Causation Standard in Vaccine Act Cases

An alert reader has drawn our attention to Althen v. Sec'y of Health & Human Servs., No. 04-5146 (Fed. Cir. July 29, 2005) (Mayer, Clevenger, & Schall, JJ.), which the reader describes as having "caused a bit of an earthquake" in Vaccine Act circles. It rejects a causation standard under which Vaccine Act claimants would be required to point to peer-reviewed medical literature linking the vaccine with the health outcome.

Sunday, September 04, 2005

NYT on Bush and the Scientific Community

Here's a lengthy article in the New York Times Sunday Magazine section about the uneasy relationship between the Bush Administration and the scientific community, focusing largely on the role of presidential science advisor John H. Marburger III.

Saturday, September 03, 2005

William H. Rehnquist, 1924-2005

The wire services are reporting that Chief Justice Rehnquist died at his home on Saturday evening. He will be remembered for many things. Among the best of them, in our view, is his prescient concurrence in Daubert.

Thursday, September 01, 2005

Neuroscience and the Law

The current American Journal of Psychiatry Online includes a review, by Carl P. Malmquist, M.D., of Neuroscience and the Law: Brain, Mind, and the Scales of Justice (Brent Garland, ed.) (Dana Press 2004). From the review:
Four questions are posed for the use of neuroscience in litigation: 1) Does the information meet legal admissibility standards (Frye and Daubert standards)? 2) If admissible, are there other reasons that should preclude courts from using the information? (Should a court allow testimony that a person has a superior memory? Those opposed argue this invades the province of the jury, and those in favor argue it is similar to testimony about a person’s vision.) 3) Should the willingness or refusal to take neuroscientific tests be introduced? 4) Should a witness, or any person involved in the litigation process, be compelled to be tested and, if so, under what circumstances?
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.