Saturday, November 25, 2006

Daubert and Efficiency

Over at Science Evidence (excellent blog, go take a look), Cliff Hutchinson takes umbrage at some remarks by U.S. Magistrate Judge Dennis L. Howell on the inefficiencies created by pretrial Daubert proceedings. The remarks in question were contained in a pretrial order in Benefield v. Clarkson, No. 2:06cv2 (W.D.N.C. Nov. 13, 2006), which denied, without prejudice, a medical malpractice plaintiff's motion to exclude testimony from a defense standard-of-care expert. The relevant passage from the order reads as follows:
Consideration of the qualifications of an expert at trial is also efficient. An attorney designating a person under Rule 26 as an expert is no guarantee that such person will be called by the defendant at trial. Further, if a judge undertakes to determine the expertise of a witness well in advance of trial there is no guarantee that such judge will also be the trial judge. If federal courts were to engage in the pretrial qualification of experts it would be a huge inefficiency, resulting in mini trials. At any given time, there are hundreds of cases pending in the Asheville/Bryson City divisions, and it would be impossible to provide the parties with the relief they seek without congesting the trial docket. Indeed, this action -- like 90 percent of all civil actions filed -- may not even make it to trial. The proper method for challenging an expert under Daubert is to file a Motion In Limine in close temporal proximity to the Final Pretrial Conference.
To clear up one tangential detail before we comment further, it's not completely clear that the motion at issue actually involved Daubert at all.1 But it did at least involve the admissibility of expert testimony, and so that quibble need not detain us.

We imagine that Magistrate Judge Howell's pretrial order was crafted primarily for the parties' consumption. We doubt it was intended to become a leading federal authority on procedures for motion practice involving expert evidence. Judicial officers do sometimes try to dispose of the matters before them without writing treatises. That said, Hutchinson is surely correct that the order's ultimate procedural prescription (to file Daubert motions only on the eve of trial) would be overbroad, and is not reflective of prevailing customs in federal practice.

What seems less clear is whether Magistrate Judge Howell doesn't have something of a point about efficiency. Hutchinson may be right that Daubert motions, when potentially dispositive, can save some parties considerable time and effort, if granted at a relatively early stage.2 Those are party efficiencies, of course, as much as they're judicial ones. We'll return to that point in a moment. We want to observe first that even from the parties' point of view, Daubert motions can secure efficiencies only to the extent that the motions are meritorious. Very often, they are not, and the net effect of a Daubert motion that gets denied is a decrement in efficiency for everyone involved.

Defense counsel, mind you, do not file losing motions because they are venal or unintelligent people. They file them because they are acting rationally in the best interests of their clients, given the current regime. Under that regime, there is almost no downside to raising even relatively weak Daubert objections. Defense counsel will be paid for their work, the motion may stick, and even if it doesn't, the motion may "educate the court" and/or intimidate the opposition. At the very least, a motion will usually force plaintiffs' counsel, who are typically paid on contingency, to devote substantial time and resources to responding. Defense counsel's main disincentive to file Daubert motions (apart from the client's possible unwillingness to pay for them) may be that a sufficiently weak one might damage counsel's credibility with the court. In practice, that does not seem to represent a compelling deterrent.

That brings us to the issue of judicial economy. Parties to litigation are often keen to see uncertainties resolved -- especially if there is any chance that their resolution will effect a dispositive result in the party's favor, and no chance that it will lead to a dispositive result against the party. The admissibility of expert evidence is nowadays high on the list of uncertainties that defendants, in particular, would often like to resolve. Daubert issues cannot be decided, however, without judicial intervention. This, together with the relative costlessness of filing Daubert motions, sets the stage for a classic tragedy-of-the-commons problem -- one that the defense bar may be slow to recognize in this context,3 but one whose prospect apparently seems all too real to Magistrate Judge Howell.

Although Magistrate Judge Howell's remedy might be too Draconian if adopted as guidance for all cases, the points he makes in support of it seem valid. Those of us who spend a lot of time thinking about Daubert tend to think largely about the big, complex cases where the Daubert issues are at their most numerous and difficult, and where they play their most high-profile role. In such complex cases, to be sure, orderly pretrial procedures for addressing evidentiary issues can be well-nigh indispensable. To leave them for the eve of trial would often be a nightmarishly foolhardy plan. But not every case falls in that category. Not everyone would see Benefield, for example, as such a case.

What is clear is that at any given moment, there are about 1500 cases pending in the Western District of North Carolina -- about a thousand civil actions, and 500 criminal cases. Divided among the district's five judgeships, that represents about 300 cases per judge. Each of those cases no doubt presents evidentiary issues that the parties consider important. Yes, pretrial proceedings are an important part of the engine that drives the ultimate disposition, through dismissal or settlement, of the vast majority of cases that never reach trial. But to decide all contested evidentiary issues at the drop of any party's motion in limine, regardless of the stage of proceedings, would not seem the highest and best use of the judicial resources available. It may usually be reasonable to wait and see which evidentiary issues survive to trial.

For good or ill, the Federal Rules of Civil Procedure already afford multiple vehicles for pretrial adjudication -- procedures that the parties may invoke, subject to the courts' scheduling authority, as a matter of right. Motions for summary judgment fall in that category. So too do motions under Fed. R. Civ. P. 12. The widespread notion has arisen, however, that parties are also entitled on demand to lavish pretrial Daubert proceedings, as part of their core Due Process endowment. That notion is incorrect. No rule requires that Daubert challenges be adjudicated on a party's pretrial motion, nor does any rule bar the district courts from reserving decision on Daubert objections until trial. There may often be sound practical arguments for waiting. When the courts do wait, everything may often go just fine. See United States v. Nichols, 169 F.3d 1255, 1262-64 (10th Cir. 1999).

Update 11/26/06: See the comments for Cliff Hutchinson's thoughtful response.

1 The plaintiff's motion did not mention Daubert or Fed. R. Evid. 702. Neither did the defendant's response. Neither party, in fact, appears to have a cited a single federal authority. The stated basis for the plaintiff's motion was that the defendant's expert lacked familiarity with the prevailing standards of practice in "the same or similar communities" -- the governing duty of care under N.C. Gen. Stat. ยง 90-21.12. Although this issue might be seen through the prism of relevance (which does fall within Daubert's ambit) or as one implicating the expert's qualifications (which Rule 702 does cover), it can also be regarded as one of competency. See Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp.,624 S.E.2d 380, 383-86 (N.C. Ct. App. 2006) (repeatedly using competency language in connection with admissibility of expert testimony under section 90-21.12). Under Fed. R. Evid. 601, competency would indeed be governed by state rules of decision, in a diversity case like Benefield.

2 The actual motion in Benefield, mind you, does not seem to have been a potential case-killer. It sought exclusion of a defense expert in a medical malpractice suit. Although such relief could affect the settlement posture of the litigation, it would not, by itself, eliminate the case from the docket, or the need for a trial. But Magistrate Judge Howell's remarks did sweep well beyond the circumstances of the particular case, and it's fair for Hutchinson to comment on that broader level.

3 The idea that "frivolous lawsuits" are responsible for clogging the dockets does not seem to encounter the same cognitive resistance -- except, of course, from plaintiffs' counsel.

Friday, November 24, 2006

Judge to Brockovitch: Get Out of 90210

Via The Legal Reader: Los Angeles County Superior Court Judge Wendell Mortimer, Jr., has dismissed claims brought by Masry & Vititoe (the law firm that Erin Brockovich-Ellis calls home) alleging that students exposed to fumes from an oil rig at Beverly Hills High School later developed cancer as a result of the exposures. An explanatory opinion will reportedly follow. The plaintiffs vow to appeal.

The LA Times has more. We wrote about the litigation on 7/18/03 and 9/16/03.

Judicature Publishes Issue on Independent Judicial Research into Scientific Issues

From the current issue of Judicature:

Should judges do independent research on scientific issues, by Edward K. Cheng, an associate professor at Brooklyn Law School.

Appellate courts must conduct independent research of Daubert issues to discover "junk science", by Michael E. Keasler, a judge on the Texas Court of Criminal Appeals, and Cathy Kramer, a staff attorney at the Texas Court of Criminal Appeals.

Appellate courts should resist the temptation to conduct their own independent research on scientific issues, by Sharon Keller, Presiding Judge, Texas Court of Criminal Appeals, and Donald Cimics, a research attorney at the Texas Court of Criminal Appeals.

Independent research on scientific issues by judges must be carefully weighed and considered, by George Marlow, an associate justice of the New York Supreme Court, Appellate Division, and co-chair of the New York State Advisory Committee on Judicial Ethics.

Virginia's answer to Daubert's question behind the question, by D. Arthur Kelsey, a judge on the Court of Appeals of Virginia, and formerly a judge of the Fifth Judicial Circuit of Virginia.

How we can improve the reliability of fingerprint identification, by Michael Cherry, president of Cherry Biometrics and Vice Chair, Digital Technology Committee, National Association of Criminal Defense Lawyers (NACDL), and Edward Imwinkelried, the Edward L. Barrett, Jr. Professor at the University of California, Davis, School of Law.

5th Circuit Upholds Testimony from Prosecution's Psychologist in Rape Case

The Fifth Circuit has published an opinion upholding the trial court's admission of testimony from a prosecution expert on rape-victim behavior, in a case arising from a police officer's aggravated sexual assault of a woman arrested for marijuana possession in a traffic stop. The opinion offers this summary of the defendant's evidentiary objection:
[The defendant] claims the testimony should not have been admitted under Daubert because it relied on scientifically suspect methodology. Noting that [the prosecution psychologist's] indicia of rape-victim behavior (e.g., non-reporting to police and
feelings of shame, humiliation, and self-blame) were developed for therapeutic, rather than forensic, purposes, [the defendant] contends the testimony fails to satisfy the first and third Daubert factors: empirical validity and ascertainability of error rate. In other words, according to [the defendant], research on rape necessarily is biased in favor of believing purported victims; to develop indicia of rape-victim behavior, researchers must assume, as a starting premise, the veracity of their subjects, even though there is no way to verify the percentage of subjects actually raped. Therefore, [the defendant] asserts: due to this inherent limitation, no empirically valid or reliable forensic diagnostic techniques can be developed, only therapeutic tools.
The Fifth Circuit's opinion uses italics liberally in making short work of this objection. The gist: the defendant's objection demanded "ideal experimental conditions and controls" that circumstances do not permit and Daubert does not require. See United States v. Simmons, No. 05-60419 (5th Cir. Nov. 21, 2006) (Barksdale, Benavides, & Owen, JJ.).

8th Circuit Upholds Exclusion of Fire Expert's Testimony

The Eighth Circuit has published an opinion upholding the trial court's exclusion of testimony from plaintiff's fire expert in an exploding heater case. The opinion says the expert supported his causation opinion only with "vague theorizing based on general principles," not with testing or engineering analysis. See Pro Service Automotive, L.L.C. v. Lenan Corp., No. 06-1324 (8th Cir. Nov. 22, 2006) (Wollman, Riley, & Gruender, JJ.).

Tuesday, November 21, 2006

When Reliable Evidence Isn't Enough

A USA Today story chronicles the frequent absence of law-enforcement follow-up when a DNA match turns up on the FBI's "CODIS" database.

Sunday, November 19, 2006

Error to Permit Child Abuse Expert to Vouch for Victim's Veracity, Says Arkansas Supreme Court

Arkansas's highest court has ruled that a child abuse expert in a rape case should not have been permitted to opine that the complainant was telling the truth -- a fairly standard result, reached here on the fairly standard ground that expert testimony on witness credibility is unhelpful to the trier of fact. The error was held to be harmless. See Buford v. State, No. CR05-1233 (Ark. Nov. 16, 2006).

Status Symbol

We choose to take it as a compliment, that someone thinks this blog's parent site is important enough to hack. Over the past few hours, the home page has repeatedly been replaced with an image of President Bush, biting into the neck of the Statute of Liberty. Accompanying the image is some Spanish text in which the hackers take credit for this act of genius. Or so we assume. We don't speak Spanish.

A word to the hackers: You have demonstrated your fearsome power. We are helpless in the face of your tremendous prowess, which fills us with awe and dread. If there is a Nobel Prize for hacking, you're sure to win it. Now please move on.

Thursday, November 09, 2006

Tenth Circuit on Erie and the Federal Rules of Evidence

On Tuesday, while the rest of the country was busy voting, the Tenth Circuit released a lengthy opinion on the interplay between Erie and the Federal Rules of Evidence.

See Sims v. Great Am. Life Ins. Co., No. 04-5135 (10th Cir. Nov. 7, 2006).

Eyewitness Identification

Monday, November 06, 2006

Do the Right Thing

Friday, November 03, 2006

Eleventh Circuit Upholds Exclusion of Plaintiff's Expert Testimony in Copyright Suit Against Disney

The Eleventh Circuit published an opinion yesterday upholding the trial court's exclusion, on summary judgment, of testimony from plaintiff's experts in a copyright suit alleging that Disney stole the idea for the Epcot Center. The plaintiff was heir to someone who had painted a rendering of an international theme park in miniature, and who allegedly presented the concept (and the painting) to a Disney representative at a 1962 meeting whose occurrence Disney denies. The court upheld the trial court's exclusion of the expert reports as unhelpful, because they "focus[ed] on the concepts and ideas behind the Painting and EPCOT rather than on the expression of those concepts and ideas." See Corwin v. Walt Disney Co., No. 04-16554 (11th Cir. Nov. 2, 2006) (Edmondson, Birch, & Alarcon, JJ.).

Florida Supreme Court Upholds DNA, Hair-Comparison Evidence

Yesterday, the Florida Supreme Court issued an opinion upholding the prosecution's forensic evidence in a capital murder case (albeit indirectly, in post-conviction habeas proceedings alleging ineffective assistance). The court rejected an argument that there was insufficient scientific acceptance of forensic population genetics to support admissibility of the prosecution's DNA evidence under Frye at the time of the defendant's 1995 trial. Meanwhile, no Frye analysis was required at all, the court said, for the prosecution expert's visual and microscopic hair-comparison testimony, which rested on no novel techniques. See McDonald v. State, No. SC03-648 (Fla. Nov. 2, 2006).

Pluto: Still Up in the Air

A generally accepted definition of planethood remains elusive, as Plutophiles demand a recount.

Thursday, November 02, 2006

Judge Bars Testimony from Scooter Libby's Memory Expert

Not helpful to the trier of fact. See United States v. Libby, Crim. No. 05-394 (D.D.C. Nov. 2, 2006) (Walton, J.). Jurist has more.

DRI Announces Seminar on Toxic Torts and Environmental Law

The DRI ("Voice of the Defense Bar") has announced a two-day seminar on toxic torts and environmental law, to be held March 8-9, 2007, in New Orleans. Among the speakers will be Prof. William Childs, of TortsProf Blog fame, who will address the topic: "Can Law Corrupt Science? Can Science Corrupt Law? What Occurs When Scientists and Lawyers Interact?" Or, as the seminar materials have it:

This session will address the testing and research that appears to have been created to qualify certain theories and opinions for admission under Daubert or similar state standards. The responses of the scientific, academic and legal communities to these efforts and what these activities mean for litigation and for science will be discussed.

That's reason enough to spring for the plane ticket and the registration fee (waived for student DRI members). But there will be other speakers too. For more details, go to the DRI's home page and click on the link under "Upcoming Seminars."

Experts May Not Testify on Direct to Reliance on Consultations with Colleagues, Florida Supreme Court Rules

The Florida Supreme Court held today that experts may not testify on direct examination that they relied on consultations with colleagues or other experts in forming their opinions. "We hold," said the court, "that such testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination." See Linn v. Fossum, No. SC05-134 (Fla. Nov. 2, 2006).

This holding seems (um) rather sweeping. Here's the AP story.

Delaware Supreme Court Upholds Exclusion of Psychiatric Testimony

The Supreme Court of Delaware (a Daubert state) has upheld the trial court's exclusion of evidence from two psychiatric experts. See Anker v. State, No. 552, 2005 (Del. Oct. 31, 2006).

The defendant in Anker was a real estate lawyer charged with conspiring to misappropriate client funds at mortgage closings. His daughter, who worked for him as an employee, was his alleged co-conspirator. The defense proceeded on theory that the daughter was the real culprit, acting from resentment over her parents' divorce, with the lawyer too blinded by love and guilt to see what his daughter was doing. The high court agreed that the jurors didn't need psychiatrists to help them comprehend that theory.

Harmless Error to Admit Whole-Body Impairment Testimony for Psychological Injury, Tennessee High Court Holds

It was error, but harmless error, to admit a physician's testimony associating a psychological injury with a percentage of whole-body impairment, the Supreme Court of Tennessee (a Daubert state) has held in a workers' compensation appeal. From the opinion:
The AMA Guidelines do not authorize evaluation in the form of percentages of impairment for psychological injuries. Those guidelines specifically state "that percentages are not provided to estimate mental impairment in this edition of the guidelines. . . ." The reasoning for this limitation is the fact that percentages of impairment imply certainty that does not exist in the treatment of mental impairments.
See Craven v. Corr. Corp. of Am., No. W2005-01537-SC-WCM-CV (Tenn. Oct. 26, 2006).

England's CMO Proposes NHS-Selected Experts for Family Law Cases

Sir Liam Donaldson, England's chief medical officer, is proposing that the National Health Service provide experts in family law cases, in place of experts selected by the parties' solicitors. The measure would help ensure competence and address the problem of bias, Donaldson says. Here's the BBC story.
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.