Privilege Does Not Defeat Disclosure Rules, Says Texas Supreme Court

Texas has a "snap-back" rule permitting a party to recover privileged material it inadvertently produces in discovery. It also has a rule providing that all documents provided to a testifying expert are discoverable. What happens, then, when a party inadvertently provides privileged material to its expert? The "snap-back" rule may not be invoked in this situation, the Texas Supreme Court has ruled, unless the party also withdraws the expert. See In re Christus Spohn Hosp. Kleberg, No. 04-0914 (Tex. Apr. 27, 2007).

Mississippi Supreme Court Upholds Exclusion of Neurosurgeon's Testimony on Standard of Care for Internal Medicine

A trial court did not abuse its discretion in holding that a neurosurgeon was not qualified to opine on the standard of care for a practitioner of internal medicine, Mississippi's highest court has held. The ruling does not rest on the mere difference in specialties, but rather on the neurosurgeon's more general lack of experience and knowledge in the relevant practice area. See Hubbard v. Wansley, No. 2005-CA-01055-SCT (Miss. Apr. 26, 2007).

Expert's Failure to Sign Report Held Harmless

A district court may permissibly conclude that an expert's failure to sign his report is harmless, and that preclusive sanctions under Fed. R. Civ. P. 37(c)(1) are therefore unwarranted, where the expert later manifests adoption of the report in an affidavit, the Seventh Circuit has held. Also, an expert reconstruction of a shooting was not inadmissibly unreliable merely because it included no "dimensionality analysis." See Jenkins v. Bartlett, No. 06-2495 (7th Cir. Apr. 23, 2007) (Easterbrook, Posner, & Ripple, JJ.).

Minnesota Supreme Court Faults Medical Examiner's Testimony

In a decision issued this past Thursday, the Supreme Court of Minnesota voiced skepticism that a medical examiner can tell you, based solely on an inspection of a murder victim's wounds, that multiple people participated in the victim's stabbing.

On voir dire, the expert attributed his opinion to "common sense." Using a mannequin and a ruler as a knife, he demonstrated that a single individual could not inflict the wounds without exerting himself. "[A]s you see," he said, "I'm sweating quite vigorously, this is quite an exercise, this is a workout. Most people are going to do this in the easiest fashion that they can, and in my opinion that represents to me more than one stabber." Asked if other forensic pathologists would analyze the issue in similar terms, the medical examiner said: "[W]e use it all the time in our own office in terms of discussing a scenario. Whether or not other members of my -- my collegial affiliation are willing to go ahead and get on the stand and say that, I can't answer that."

On appeal from his conviction, the defendant said the medical examiner's testimony lacked foundational reliability. "This appears," said Minnesota's high court, "to be a legitimate complaint." It held, however, that any error was harmless, because: (1) the medical examiner was effectively cross-examined; (2) the defendant called an expert of his own; (3) the defendant was charged with accomplice liability; and (4) "there was no reasonable possibility that the expert's testimony substantially influenced the guilty verdict." See State v. Crow, No. A06-229 (Minn. Apr. 19, 2007).

4th Circuit Publishes Significant Opinion on "Drug Code" Testimony

In narcotics trials, law enforcement officers routinely offer expert testimony about "drug code" -- the specialized language used by drug dealers to obscure the true meaning of their conversations and negotiations, in case the authorities should chance to be listening in. Challenges to the reliability of drug-code testimony are almost universally rejected, usually with little discussion beyond a general reference to the witness's experience in law enforcement and narcotics investigations.

Yesterday, the Fourth Circuit published a substantial opinion on the subject, addressing the issue at far greater length than is the appellate norm. If we read it correctly, it actually imposes a halfway meaningful standard for drug-code testimony: namely, that the witness should be able to explain, for each "translated" expression, how the witness's experience enables the witness to translate it. It seems a modest and fair demand, and we hope it catches on. See United States v. Wilson, No. 05-4435 (4th Cir. Apr. 19, 2007) (Niemeyer, Williams, & Gregory, JJ.).

Texas High Court Upholds Exclusion of Physician's Testimony that Cocaine and Alcohol Dependency Caused Defendants' Violent Conduct

A trial court did not abuse its discretion when it permitted a physician to testify that cocaine and alcohol dependency are associated with violent activity, but not that the defendant's dependency caused his particular violent conduct, the Texas Court of Criminal Appeals has ruled. From the opinion:

Dr. McQueen did have training as a researcher with regard to the treatment of addictions, and that training appears to have included knowledge of the interaction between cocaine and alcohol in the body and studies showing a correlation between cocaine and alcohol usage and violence. Under this record, however, the trial court could reasonably conclude that the pharmacological knowledge and studies were not a sufficient basis from which to draw a scientific conclusion about how any particular individual would behave. Of course, one might draw a layman's conclusion from evidence of a correlation between drug dependence and violence that a particular drug user's violence resulted from dependence, but that sort of conclusion is one that a jury is well-suited to make on its own, without the assistance of an expert.

See Roberts v. State, No. AP-75,051 (Tex. Crim. App. Apr. 18, 2007).

Return of Ramirez

The Colorado Supreme Court has issued an amended opinion in the Ramirez case (see our posts of 3/27/07, 3/28/07, 4/1/07, & 4/4/07). In footnote 10, the court now cites its earlier decision in Wilkerson, distinguishing it on the basis that the Wilkerson expert offered a quantitative conclusion, whereas the Ramirez expert did not.

In a related vein, Jim Beck and Mark Herrmann comment at Drug and Device Law on the proposal, floated in comment e to section 28 of Tentative Draft #5 of the Restatement (Third) of Torts, Liability for Physical and Emotional Harm, to abolish the "reasonable medical certainty" requirement. They take umbrage at the proposal, whereas we do not. We'll have more to say in a day or so.

Metallurgist's Medical Device Testimony Admissible but Insufficient, 9th Circuit Holds

The Ninth Circuit has issued an opinion reversing the exclusion of plaintiff's metallurgical testimony on the defectiveness of an intramedullary nail but affirming summary judgment for the manufacturer on causation. See Stilwell v. Smith & Nephew, Inc., No. 05-15000 (9th Cir. Apr. 11, 2007) (Bright, Nelson, & Berzon, JJ.).

Blinka on Wisconsin's "Relevancy" Standard for Expert Testimony

The Winter 2006 issue of the Marquette Law Review includes an article by Professor Daniel D. Blinka entitled "Expert Testimony and the Relevancy Rule in the Age of Daubert." The article explores (and extols) Wisconsin's "unique approach to the admissibility of expert testimony," which revolves around helpfulness to the trier of fact.

Even More on Ramirez

To our post of 4/1/07, James England has written in response:

Although I agree with much of your analysis, I remain troubled by the following aspects of Ramirez.

You have come up with an elegant way to attempt reconciliation of Ramirez and Wilkerson, but I find it significant that the Colorado Supreme Court never itself hints at such a reconciliation. Having decided Wilkerson less than two years ago, I would have thought it necessary for that Court to have at least mentioned that decision in Wilkerson, and to provide some scraps of rationale (especially to this state’s trial judges) as to how the two cases do not conflict. Without any such attempt, I fear future readers will reach the same conclusion you do as to a de facto way to harmonize the decisions: prosecutors win, and criminal defendants don’t. (One of the more interesting aspects of both holdings is that I would be surprised to see eiither one reached in a civil case.) As to your suggestion that Wilkerson would or should be restricted to advocates who expressly present their expert opinions couched in “quantitative, statistical meaning,” the opinion rejected by the Wilkerson court was merely a conclusion characterized by the expert as “more probable than not,” a formulation which rolls off the tongues of Colorado litigators as many trial judges will in fact require every expert opinion to carry such a characterization. This is what leads to my concern that if the Wilkerson court really meant what it seemed to say, then almost every expert opinion offered in this state could be attacked for lacking empirical or methodological support for that claimed probability.

As to your discussion of the differences between Rule 705’s provisions concerning data underlying expert opinions which need not (always) be laid before the jury and the Rule 104 necessity for establishing a sufficient evidentiary foundation for the judge, I am again very troubled by the fact that such a distinction is not hinted at in Ramirez. This is especially troubling because there was no pretrial (or other out-of-the-jury’s-presence) Daubert hearing in Ramirez: the presentation of the expert’s testimony to the jury was the only evidentiary foundation presented to or considered by the trial court. Given that the issue before the Supreme Court was the reliability of that evidence for admission, it seems to me the Court here relies on Rule 705, not to justify not disclosing underlying data to the jury, but to excuse the lack of a decent evidentiary foundation before the trial judge. That appears to me to abandon Rule 104 and Daubert gatekeeping requirements, or at least to carry a high risk that later trial courts will see this reliance on Rule 705 to excuse meaningful Daubert foundations (at least, as you suggest, by prosecutors).

Finally, as to the somewhat run-of-the-mill nature of the nurse’s testimony here, I would be less bothered if this had been a run-of-the-mill decision by our intermediate state appellate court. Here, however, that intermediate court had issued a fairly innocuous, unpublished decision which seems to me to soberly and analytically apply familiar Daubert principles to the very shaky evidentiary foundation laid before the trial court. What makes this case more significant is that the Colorado Supreme Court then exercised its discretionary certiorari review (my impression is that it grants less than 5 percent of the certiorari petitions it receives) to reach out and reverse that innocuous opinion. And it can’t be (can it?) that it did so in order to clarify the “medical certainty” issue, as that was not the decisional basis for either the trial court nor the Court of Appeals. Given that, it is distressing that the Court seized upon this case in one of its relatively infrequent revisitations of Daubert, only to blur the standards for opinion admissibility generally, confusingly resort to Rule 705, and put its stamp of approval on non-objective, “suspiciously” reliable and poorly supported “expert” opinion.

Best of the Fray

On 1/11/07, we posted about an article in Neurology where some medical professors, having had an unpleasant brush with third-party discovery into their research, argued in favor of a "research scholar privilege." We've learned (via TortsProf Blog) that an exchange of correspondence on the article is now available at the Neurology site -- a letter response from one of the attorneys who took the offending discovery, and the authors' reply.

It's a little funny to see the attorney's letter in a forum like Neurology. It reads just like a cleverly argumentative legal brief.

The thing of it is, so does the doctors' response.

Fine lawyering, all around. We agree, by the way, with Professor Childs: The discovery doesn't sound all that oppressive to us.

Annals of Pro Se Expert Retention (Singapore Edition)

Was this Singapore defendant drinking:

(a) when he committed the shooting?

(b) when he decided to represent himself?

(c) when he retained his psychiatric expert?

Select all that apply.

Plus Ca Change

Looks like West Virginia may be in for a round of medical malpractice "reform" agitation, probably targeting experts who testify outside their specialty -- perhaps via some "code of ethics." Leading the charge, apparently, will be a group of ordinary citizens, outraged over how the legal system has caused the ruination of American health care, spontaneously coming together in a grassroots campaign the usual suspects.

Fifth Circuit Rebuffs Attempt to Impose Reliability Requirements on Future Dangerousness Testimony at Capital Sentencing

On Thursday, a Fifth Circuit panel held that expert evidence on future dangerousness, offered during the sentencing phase of federal capital proceedings, need not satisfy Daubert's reliability requirements. The contrary position had been urged not only by the death-sentenced appellant, but also by the American Psychological Association as amicus curiae. See United States v. Fields, No. 04-50393 (5th Cir. Mar. 29, 2007) (King, Smith, & Benavides, JJ.).

The Federal Death Penalty Act ("FDPA") provides that evidence at sentencing may be considered "regardless of its admissibility under the rules governing admission of evidence at criminal trials." 18 U.S.C. § 3593(c). Because Daubert is a creature of the Federal Rules of Evidence, its reliability requirement is "not directly applicable" in sentencing proceedings, the panel said. True, the FDPA also provides that "information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. But this language, said the panel, cannot be read as requirement that "the probative value of expert testimony for sentencing purposes" be evaluated in "a form of Daubert hearing." Any such argument would be "better couched as a constitutional claim based in the Eighth and Fifth Amendments," the court said -- before going on to hold that any constitutional argument in this vein was simply impossible under Barefoot v. Estelle, 463 U.S. 880 (1983).

Apparently perceiving some need to defend the pre-Daubert ruling in Barefoot v. Estelle against arguments that its appraisal might be dated, the panel said the following in footnote 28 of its opinion:

A recent opinion by Justice Stevens confirmed the breadth and continuing viability of Barefoot. See United States v. Scheffer, 523 U.S. 303, 334 (1998) (Stevens, J., dissenting) ("There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's 'future dangerousness' to determine his eligibility for the death penalty, even if wrong 'most of the time,' is routinely admitted.") (emphasis added). No member of the Scheffer Court disagreed.

Justice Stevens's "recent" dissent in Scheffer can be found here. Scheffer, it may be recalled, was a 1998 decision in which the Supreme Court upheld a military tribunal's ban on polygraph testimony against constitutional challenge. How far Justice Stevens's dissent "confirm[s] the breadth and continuing viability of Barefoot" is a judgment we leave to the reader.

Still More on Ramirez

Stimulated by James England's thoughtful analysis in this space, we've devoted more thought to the Colorado Supreme Court's decision last week in People v. Ramirez, and we have the following questions and observations, all of them untainted by any deep acquaintance with Colorado evidence law:

(1) What is the real scope of any tension between Ramirez and the same court's 2005 decision in People v. Wilkerson?

Wilkerson, it will be recalled, involved an ergonomics expert who proposed to testify, on behalf of a criminal defendant, that a shooting was unintentional. At a pretrial hearing, the expert opined that the shooting was "more likely than not" accidental. He explained, on cross-examination, that by that opinion, he meant there was more than a 50% probability that the shooting was unintended. In arguing for the testimony's admissibility, defense counsel likewise characterized it as an opinion that under conditions described by the witness, an accidental shooting could happen 51% of the time. Understanding the expert to be offering a statistical characterization, and concluding that the statistical characterization did not enjoy reliable support, the trial court barred the witness from offering testimony that the shooting was more probably than not accidental. The trial court did not rule on the defendant's alternative proffer -- qualitative testimony to the general effect, as defense counsel put it, that "the best minds that study this sort of thing and study stress, and study systems and human factors and study handguns, and have written articles about this sort of thing say that, yes, accidental shootings can happen."

On interlocutory review, the Colorado Supreme Court upheld the trial court's ruling, concluding that the trial court could permissibly have excluded the "more likely than not" opinion under Colo. R. Evid. 403, and also that the expert had offered insufficient support, under Colo. R. Evid. 702, for a quantitative assessment. The high court said:

Given the preciseness of the district court’s order, rejecting an expert conclusion expressed in terms of quantifiable, scientific test results, the court’s emphasis on the expert’s failure to test a specific weapon and the absence of peer reviewed literature concerning standards for measurement and error rates did not evidence a misunderstanding of the flexible test we described in [People v. Shreck, 22 P.3d 68, 78-79 (Colo. 2001) (rejecting Frye in favor of a more Daubertian approach)]. Rather than excluding expert opinion merely because it was incapable of quantification, the district court was faced with an opinion expressed in numeric terms, and it appears to have considered precisely those factors most applicable to the admissibility of such a numeric test result.

Given the trial court's failure to rule on the defendant's alternative proffer, the Wilkerson court expressed "no opinion concerning the reliability or relevance of any other proffered testimony of the defense expert."

We¹ voiced some dismay when the Wilkerson opinion was first issued. The basis for that dismay was our perception that the trial and appellate courts in Wilkerson may have fallen prey to a fairly common intellectual parlor trick, in which the "probability" concept goes into the hat in the form of a general qualitative standard for expert confidence or the burden of persuasion (the handkerchief), only to emerge later as a term of technical statistical art (the rabbit). This maneuver is sometimes employed in toxic tort litigation to insinuate a defense-friendly requirement that individual causation be proved by odds ratios reaching some specific numerical threshold. It might be called the Probability Pivot, and it generally proceeds in several well-defined steps:

(a) The expert states some opinion.

(b) The expert is asked on cross (at deposition or during a pretrial hearing on admissibility, or perhaps even at trial) to confirm that the expert holds the opinion to the requisite degree of confidence under the law of the relevant state (e.g., "a reasonable medical probability") or that the expert's conclusion satisfies² the preponderance test for sufficiency of the evidence (e.g., "more likely than not").

(c) The expert complies, often without the questioning having placed the expert on clear notice that the expert's response will later be taken as importing some numerical or statistical standard.

(d) The objecting party then complains that the expert's opinion is not supported by evidence that would establish the opinion as "probable" or "likely" in any numerical or statistical sense.

(e) Alternatively, the expert declines the cross-examiner's invitation to characterize his or her opinion in terms of likelihood or probability, in which event the objecting party complains that the opinion does not satisfy the operative legal requirements for confidence or sufficiency (a step in which those requirements are sometimes conflated with Daubert's reliability standard).

We call this a parlor trick because neither expert confidence requirements nor tests for sufficiency have traditionally been understood in statistical terms, if occasional metaphorical glosses are left to one side. There may be tenable policy arguments for adopting quantitative tests as the substantive standard for certain elements of proof in particular areas of the law. But if so, those policy arguments should be presented to the appropriate governmental branch (the legislature, we're inclined to think) in candid and transparent form -- not smuggled into the decisional law via category mistakes abetted through free-wheeling use of the thesaurus (whether by the judiciary or by attorneys conducting cross). So too, there may be some forms of expert testimony that should not be counted as reliable if specific standards of quantitative analysis go unmet. These may include testimony from experts whose discipline normally requires the use of quantitative methods. Most would also agree that testimony presenting the expert's conclusions in quantitative terms (like the ergonomist's opinion in Wilkerson, as the trial and appellate courts understood it) falls in this category. Our dismay over Wilkerson arose from a worry that the expert was lured unwittingly into quantitative testimonial territory through sneaky cross-examination -- a possibility to which the trial and appellate courts in Wilkerson seemed to us to give unduly short shrift.

But unlike us, the courts in Wilkerson did enjoy access to the record, and they concluded that the opinion was being offered in terms intended to carry quantitative, statistical meaning -- indeed, that proponent's counsel had defended the opinion in those very terms. This being so, the holding in Wilkerson would seem rather narrow. Where a party offers testimony held out as supporting a statistical or quantitative conclusion or inference, the testimony should enjoy a reliable basis in methods or techniques supporting the relevant statistical or quantitative conclusion or inference. Neither the trial court nor the Colorado Supreme Court in Wilkerson, remember, ruled on how the reliability of the alternative, qualitative proffer should be assessed. Neither court in Wilkerson purported to hold, in other words, that common law standards for expert confidence, whether or not they survived adoption of Rule 702, carried any inherent implications for the modern reliability calculus.³

We remain unconvinced, in short, that Ramirez particularly implicates Wilkerson, except in the thin sense that all decisions under an evidentiary regime informed by Daubertian principles are grist for debate over how stringently reliability should be tested, and via what methods. In both cases, we note, a trial court's reliability decision was ultimately affirmed, in keeping with the principle (familiar from federal evidentiary jurisprudence and apparently followed in Colorado as well) that trial courts' reliability determinations are discretionary and entitled to substantial deference. Both decisions also happen to comport with the general de facto principle that in criminal cases, the prosecution's expert testimony almost invariably comes in, whereas the defendant's quite possibly doesn't.

(2) Is the Ramirez court's invocation of Rule 705 really suspect?

Lacking access to the record or briefing in Ramirez, we cannot be sure what argument the defendant/appellant may have raised on appeal about the foundation of the nurse practitioner's testimony. The word "foundation" can be used to denote two slightly different things: (a) the support shown for an expert's opinion in the context of an admissibility inquiry (e.g., during voir dire); or (b) "foundation" testimony offered at trial for consumption by the trier of fact. It is unclear to us, from the Ramirez opinion, how much of the nurse practitioner's testimony defending the reliability of her opinion occurred in each of these respective contexts. But the two contexts are not generally coextensive. If the defendant's argument on appeal was that the testimony offered to the jury did not sufficiently establish the "foundational" predicates for reliability under Rule 702, then Rule 705 would seem a correct (if incomplete) rejoinder. Admissibility determinations are for the court, not the jury. They need not be based on record evidence, and record evidence, for its part, need not recapitulate the predicates for admissibility. Where "reliability" issues have been determined to pose questions of weight rather than admissibility, Rule 705 sensibly permits the trial court to leave their detailed exploration to cross-examination. For the federal courts, at least, requiring that Rule 702 "reliability" be established on direct examination at trial would represent a substantial innovation -- one that would seemingly require amendment of several evidentiary rules, including Rule 104(a).

3. How thin, actually, was the support for the reliability of the nurse practitioner's opinion?

We don't pretend to expertise in this area, and to repeat, we haven't studied the briefing or the record in Ramirez. So it's best we tread cautiously. That said, we find little occasion to doubt the reliability of a nurse practitioner's conclusion that the results of a physical examination were "suspicious," where he or she: (a) examined a ten-year-old child 41 days after an alleged sexual assault and found a healing laceration; (b) had conducted about 90 similar previous examinations; and (c) had reviewed at least some literature on the subject. To us, this seems like the exactly the sort of report, reflecting the educated clinical judgment of a medical professional, that doctors and patients routinely credit, to one degree or another, in nonlitigious contexts, even where the report enjoys no stronger bases than the nurse practitioner's opinion here. It also seems to us that the failure of an earlier examination to find signs of sexual assault is the sort of point that juries are quite competent to assess.

We do admit to some unease, especially in the criminal context, over the presentation of expert opinion that some fact -- although not sufficient, by itself or in combination with other facts, to support an actual finding by the expert on the point -- is "suspicious." Our unease would be still greater if the "suspicious" datum were that the accused had been seen outside the bank a few days before the robbery, twirling his mustache. Our disquiet on this front, however, springs mostly from anxiety over the idea of sending people to jail for being suspects. That, perhaps, is more a sufficiency concern, to be evaluated in individual cases by reference to the entire record, than a reliability one.
___________________________________________

¹ The editorial "we" refers here to the voice of Blog 702. We mean to ascribe no views, one way or the other, to James England.

² Sufficiency, of course, is actually a distinct issue from reliability, and one properly evaluated by reference to the entire record, not the testimony of one single witness.

³ The conclusion that the rules of evidence displaced common law standards for expert confidence seems eminently defensible to us, but the issue does not appear to have been presented or addressed in Wilkerson.