David Berger, 1912-2007

David Berger, a legal giant and co-founder of the firm where we ply our trade, died this past Thursday at the age of 94.

11th Circuit Affirms Exclusion of Mold Testimony

The Eleventh Circuit has issued an unpublished opinion upholding the trial court's exclusion, on summary judgment, of plaintiff's differential diagnosis testimony in a mold case. See Jazairi v. Royal Oaks Apt. Assocs., L.P., No. 06-15389 (11th Cir. Feb. 13, 2007) (Tjoflat, Hull, & Pryor, JJ.).

Third Circuit Upholds Limitation on Fingerprint Expert's Testimony

The Third Circuit has issued a nonprecedential opinion upholding the trial court's limitations on testimony by the defendant's fingerprint expert in a bank robbery trial. The district court permissibly found that the witness was qualified to offer a critique of the prosecution expert's methodology for comparing latent prints, but not to perform a comparison herself. See United States v. Faines, No. 05-4006 (3d Cir. Feb. 14, 2006) (Scirica, Fuentes, & Chagares, JJ.).

DC Circuit Upholds Modus Operandi Testimony in Drug Case

The D.C. Circuit has published an opinion upholding the trial court's admission of expert testimony on common methods employed in narcotics trafficking, rejecting arguments that the evidence was: (1) unhelpful because duplicative; (2) not disclosed in pretrial discovery; and (3) impermissible expert testimony on mens rea. See United States v. Martinez, No. 06-3031 (D.C. Cir. Feb. 16, 2007) (Ginsburg, Rogers, & Kavanaugh, JJ.).

Statistical DNA Testimony Upheld by D.C. Court of Appeals

The Court of Appeals for the District of Columbia (a Frye jurisdiction) has upheld testimony on the statistical odds of a DNA match. From the opinion:

The issues in this appeal ... arise from evidence of a DNA match which the FBI found after examining semen removed from panties K.W. had worn on the day of the assault and comparing it to the known DNA profile of appellant. Dr. Frank Samuel Baechtel, a DNA expert from the FBI forensic laboratory, testified that appellant's DNA profile and K.W.'s profile were both consistent with DNA found in the recovered semen. He further opined, using the FBI's highly conservative estimate for cases involving so-called mixed samples, that the statistical chance of finding a person at random who could have been a contributor to the DNA on the panties was no greater than 1 in 410,000 among four major population groups in the United States.

On appeal, appellant makes a variety of challenges to the admissibility of Dr. Baechtel's opinion, arguing particularly (a) that the expert could not properly offer a match-probability statistic without also providing the jury with an "error rate," that is, a "false positive probability to represent the chance of a false match caused by laboratory error"; and (b) that the FBI's method of interpreting mixed samples, which contain DNA of two or more persons, "relies on unwarranted assumptions about the number of contributors and their individual DNA profiles." We hold that, while appellant could properly explore these matters on cross-examination of Dr. Baechtel or through expert testimony of his own, in order to attack the weight of the DNA evidence, they did not render inadmissible Dr. Baechtel's opinion either that appellant could not be excluded as a contributor to the semen found on K.W.'s clothing or as to the probability of a random match.

See Roberts v. United States, No. 03-CF-853 (D.C. Feb. 15, 2007).

Daubert & Virginia

Via Steve Minor: Judge D. Arthur Kelsey of the Virginia Court of Appeals has authored an article, appearing in Judicature, entitled "Virginia’s answer to Daubert’s question behind the question." We won't spoil the fun by telling you what the question behind the question is. But the answer, apparently, is: The jury.

More on Daubert from Professor Bernstein

Via TortsProf Blog: Professor Bernstein has posted a new paper at SSRN, entitled "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution." Much writing on Daubert is plagued by a mixture of ideology and banality, but the abstract of Bernstein's article suggests he has some fresh and interesting things to say:

This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision. First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test? Second, once we have identified this rationale, has the “Daubert revolution” succeeded on its own terms?

I conclude that the implicit rationale for the reliability test is to preserve the perceived advantages of the adversarial system, while mitigating the harms to the courts' truth-seeking function by the inevitable strong biases that accompany adversarial expert testimony. These biases include the conscious biases of hired guns, the unconscious biases of other paid experts, and the selection biases that result from the fact that attorneys “shop” for their experts from a large pool of qualified individuals.

Rule 702 thus attempts to serve a worthy goal, but it far from fully succeeds in efficiently achieving this goal. First, in the context of forensic expertise in criminal cases, Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony.

Second, Rule 702, applied correctly, does succeed in barring “junk science” causation evidence in toxic torts cases. However, it does so at the expense of excluding speculative evidence supporting causation, even when most experts in the field would conclude that the relevant evidence is a sufficient basis from which to find causation by a preponderance of the evidence. While Rule 702 is easily preferable to the prior overly permissive regime, it likely goes too far in insisting on a reliability test that makes the courtroom stricter about causation evidence than is the scientific community itself. The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses.

Finally, Rule 702 puts severe restrictions on the testimony of experience-based testimony by connoisseurs. Such experts may only testify if their field of expertise is a legitimate one, and they have proven to the court that they truly have the expertise they claim. Rule 702 also properly prevents attorneys from shopping for outlier and hired gun connoisseurs, given that there is no objective way for a jury to determine whether an experience-based expert's views are correct or representative of other experts in the field. Therefore, in the context of connoisseur testimony, courts should either replace adversarial experts with a panel of nonpartisan experts, or only allow an adversarial expert to testify if his conclusions are consistent with those of a nonpartisan advisory panel.

We're looking forward to reading the article.

Rule 706 Did Not Require Appointment of Expert for Indigent Malpractice Plaintiff, Says DC Circuit

A pro se litigant proceeding in forma pauperis in a malpractice action against multiple oral surgeons was not entitled to a court-appointed expert under Fed. R. Evid. 706, the D.C. Circuit has ruled. The plaintiff "acknowledged that he had been in contact with many experts who had been unable or unwilling to help." In addition, "appointed trial counsel consulted an expert who
found no likely fault with [the plaintiff's] first two surgeries," and "medical tests by the Bureau of Prisons showed no continuing TMJ problems." Absent stronger indicia that the claims were meritorious, the district court did not abuse its discretion in refusing to appoint an expert. See Gaviria v. Reynolds, No. 05-7010 (D.C. Cir. Feb. 9, 2007) (Ginsburg, Rogers, & Kavanaugh, JJ.).

Daubert & Progeny

How do you find an inexpensive expert for a municipal court case?

It has long been a vexing problem. An Ohio attorney has now solved it.

Eighth Circuit Upholds Testimony from Damages Expert in Trade Secrets Misappropriation Case

The Eighth Circuit has upheld testimony from the plaintiff's damages expert in a trade secrets case, over defense objections that the testimony was based on factually faulty assumptions. See Synergetics, Inc. v. Hurst, No. 06-1146 (8th Cir. Feb. 5, 2007) (Melloy, Benton, & Shepherd, JJ.).

Expert Testimony and Non-Virtual Children

In a prosecution for possession of child pornography, must the government offer expert testimony that a particular pornographic image is of a real, non-virtual child, in order to meet its burden of proof by a preponderance of evidence at sentencing?

No, says the First Circuit, over a strong dissent from Judge Torruella. See United States v. Rodriguez-Pacheco, No. 05-1815 (1st Cir. Feb. 5, 2007).

On the Sisyphean Project of Gaining General Acceptance

Compare IPCC with AEI.

Daisy Mae Meets Daubert

The Seventh Circuit has issued a decision discussing the qualifications and reliability of a bloodhound named Daisy Mae. From the opinion:

[The appellant] points out that Daisy Mae had only been used for two investigations prior to November of 2002, and that, although [Daisy Mae's handler] testified that the dog had successfully completed an intermediate-level test provided by the training program (which involved tracking a 30-to-60-minute-old trail over a half-mile distance), Daisy Mae had never received a certificate authenticating her efforts. [The appellant] also invokes [the handler's] own trial testimony that a young search dog must be worked regularly and notes that Daisy Mae missed a week or more of training time at several points during the year prior to the bank robbery....

The government contends that Daisy Mae and [her handler] had more than enough experience and success to demonstrate their reliability. They argue that [the handler] developed substantial knowledge of search dog training and methodology when he devoted 163 hours to Daisy Mae's training, and they note that in her two prior investigations Daisy Mae's findings were corroborated by other facts or tracking dogs.

The upshot? Any error in admitting Daisy Mae's findings was harmless. See United States v. Renkin, No. 05-2838 (7th Cir. Jan. 31, 2007) (Posner, Evans, & Sykes, JJ.).