Blog 702

11th Circuit Upholds Statistical Testimony in Medicare-Fraud Prosecution

2008-01-20T16:06:00.001-05:00

On plain error review, the Eleventh Circuit has upheld the trial court's admission of testimony from a statistician in a Medicare-fraud case.

The defendant was a dermatologist charged with performing unnecessary skin-cancer surgeries on hundreds of elderly patients. The putative need for surgery was based on biopsies conducted in the dermatologist's laboratory. Lab employees testified that the lab was staffed by inadequately trained technicians who did a poor job at preparing the biopsy slides. Sometimes, apparently for sport, the technicians altered the slides. Once, they said they substituted chewing gum for tissue. Another time, they substituted styrofoam. On both occasions, they said, the dermatologist diagnosed cancer based on the slides.

The prosecution's expert statistician selected a random sample of the dermatologist's slides and passed them along to the government's health experts, who testified to various opinions based on them. The statistician also testified at trial, without objection, about how he generated the random sample. The dermatologist was convicted.

On appeal, the dermatologist's lawyers argued on various grounds that the trial court should have excluded the statistician's expert testimony sua sponte. In response, the government argued, among other things, that the statistician's testimony wasn't expert evidence in the first place, because he did not offer an "opinion." In an unpublished per curiam opinion, the 11th Circuit affirmed the admission of the testimony but made short work of the government's "opinion" argument:

In its brief, the Government inexplicably contends [the statistician] was not an expert because he did not render any expert opinion. Although an expert is permitted to render an opinion, Fed. R. Evid. 703, 704, he is not required to do so, and failure to offer an opinion does not negate an expert's status, see Fed. R. Evid. 702. During the Government's proffer and during his testimony, [the statistician] discussed his specialized training, as well as the methodology he employs in selecting random samples. His specialized knowledge lay outside the province of the jury and rendered him an expert.

See United States v. Rosin, No. 06-15538 (11th Cir. Jan. 16, 2008) (Black, Hull, & Fay, JJ.).

Witness Tampering Watch (British Edition)

2008-01-20T14:25:00.000-05:00

If the RSPCA's experts don't initially say what the RSPCA wants, they may be told to say something different.

The British are shocked. K9 Magazine has the story.

Expert Testimony on False Confessions Too Abstract, Says 5th Circuit

2008-01-20T00:28:00.000-05:00

In an unpublished per curiam opinion, the Fifth Circuit has upheld a trial court's decision excluding a criminal defendant's proffered expert evidence on false confessions. The expert's testimony, the panel said, consisted only of generic propositions; the expert failed to apply them adequately to the facts of the case. From the opinion:

Pursuant to Rule 702, testimony from a qualified expert witness is permitted if the opinion will assist the trier of fact, "the testimony is based upon sufficient facts or data, [] the testimony is the product of reliable principles and methods, and [] the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702 (emphasis added). Here, the district court determined that [the expert] added nothing more than abstract scientific nostrums. [The expert's] proffered testimony did not apply recognized or accepted principles to [the defendant's] particular circumstances. Instead, it offered only the general proposition that false confessions can occur. See United States v. Alexander, 816 F.2d 164, 169 (5th Cir. 1987) (stressing that trial court's are not required to admit generic expert testimony). Accordingly, even if the district court could have properly admitted the evidence, it was not "manifestly erroneous" to exclude it.

See United States v. Dixon, No. 06-31234 (5th Cir. Jan. 16, 2008) (King, Barksdale, & Dennis, JJ.).

More on Babies in the Microwave

2008-01-16T01:23:00.000-05:00

Defense expert: Babies are not pancake batter.

Judge Posner on the Static 99

2008-01-11T17:36:00.000-05:00

In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy."* In a Seventh Circuit opinion issued yesterday, Judge Posner devotes substantial discussion to the Static 99, its uses, and its limitations. See United States v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (Posner, Wood, & Williams, JJ.).
______________________________________

* See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a fact important to a sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

On Babies in the Microwave

2008-01-10T20:17:00.000-05:00

At the murder trial, do you need a microwave expert, or a baby expert?

Sadly, the question is not hypothetical.

California Supreme Court Hears Argument on Recoverability of Expert Fees Under Cal. Civ. Code 1021.5

2008-01-10T20:02:00.001-05:00

California's high court heard argument Wednesday on whether expert fees are recoverable by the prevailing party in actions brought under the state's private attorney general statute. Law.com has the story.

9th Circuit Upholds Fingerprint Evidence

2008-01-10T19:49:00.000-05:00

In an unpublished opinion, a Ninth Circuit panel has upheld the trial court's decision to admit fingerprint testimony without a Daubert hearing. The reliability of fingerprint evidence may properly be taken for granted, the opinion holds -- at least in the absence of evidence from the objecting party calling its reliability into question. See United States v. Calderon-Segura, No. 05-50820 (9th Cir. Jan. 9, 2008) (Kozinski, Reinhardt, & Brunetti, JJ.).

Anesthesiologist Competent to Testify on Ophthalmologic Effects, Says Idaho Supreme Court

2008-01-06T19:02:00.000-05:00

Reversing a trial court's evidentiary ruling, the Idaho Supreme Court has held that an anesthesiologist was competent to opine that a patient's anesthesia caused post-operative blindness in his right eye. The lower court had wanted to hear from an ophthalmologist. See Foster v. Traul, No. 33537 (Idaho Dec. 24, 2007).

8th Circuit Reverses Exclusion of Accident Reconstruction Experts

2008-01-05T12:39:00.000-05:00

The Eighth Circuit has reversed a trial court decision that excluded testimony from plaintiffs' accident reconstruction experts and awarded summary judgment to defendants. The district court relied in part on differences between conditions in the experts' testing and during the accident. Those differences were not so substantial, the appellate panel held, as to render the experts' opinions unreliable. See Sappington v. Skyjack, Inc., No. 06-3855 (8th Cir. Jan. 4, 2008) (Bye, Bowman, & Smith, JJ.).

Happy New Year

2008-01-01T16:05:00.001-05:00

Our resolution: to blog once again.

Hold Daubert Hearings, Says Mississippi High Court

2007-10-07T00:39:00.001-05:00

Last week, a sharply divided Mississippi Supreme Court signaled that trial courts risk reversal if they exclude expert testimony without holding a Daubert hearing. See Smith v. Clement, No. 2006-CA-00018-SCT (Miss. Oct. 4, 2007). The testimony in question was offered on summary judgment, in an affidavit from the plaintiffs' mechanical engineer, to prove that a school bus fire was caused by defects in the bus's propane fuel system. The trial court struck the testimony and awarded summary judgment to the defendant. Although the trial court did hear argument on the summary judgment motion, it held no hearing specifically devoted to the evidentiary issue. As a result, the plaintiffs were denied sufficient opportunity to defend and develop the expert's opinion, a five-justice majority held. From the opinion:

Prior to any Daubert determination or other decision regarding the proffer of expert evidence, the parties must be afforded the opportunity to be heard. We generally recommend that the trial court conduct an in limine hearing specifically on the subject, as this procedure will result in full briefing and argument by the parties regarding the proposed expert testimony. This will not only assist the trial court in its function as evidentiary gatekeeper; it will provide a fuller record for an appellate court should the parties contest the evidentiary ruling. While an in limine hearing may not be necessary in all cases, it does provide the most efficient manner of addressing the issue in many cases.

Four justices dissented, noting that the plaintiffs had an opportunity to address the evidentiary points at oral argument on the summary judgment motion.

In suggesting that it exalts form over substance to require a separate, dedicated Daubert hearing, the dissenters might seem to have a point. The justices' deeper disagreement may have been over the degree to which Daubert should come into play on summary judgment at all. The majority approvingly cited Cortes-Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184 (1st Cir. 1997), for the proposition that Daubert's gatekeeping regime should be employed only with "great care and circumspection" at the summary judgment stage.

Another Unsettling Field of Expertise

2007-10-02T11:52:00.000-05:00

Mattress stains.

Naysaying

2007-08-04T17:21:00.001-05:00

Long piece in Newsweek on the industrial manufacture of scientific doubt. Topic: global warming.

Quantum Indeterminacy in Extra Innings

2007-07-28T23:38:00.001-05:00

From the AP report on tonight's 12-6 win by the Red Sox over Tampa Bay:

"Kyle Snyder (2-2) scattered one hit over two innings for the win."

Mississippi Supreme Court Unimpressed with Social Worker's Reliance on "Instinct"

2007-07-21T16:45:00.000-05:00

The Supreme Court of Mississippi has faulted the trial court for giving even slight weight to testimony from a social worker in a custody dispute, when the testimony should have been excluded altogether. Asked to describe the basis of her custody recommendation, the social worker testified as follows:

A. What [the child] told me and how she behaved in therapy.

Q. Is there any recognized textbooks or science with regard to how you would reach your conclusion or recommendation?

A. There is no exact science in psychology. There's a lot of experimental science, but as far as reaching conclusions, a lot of it you go to training, instinct, and -- mostly training.

"There is no evidence," the high court said in its opinion, "that [the social worker's] opinion was either 'based upon sufficient facts or data' or 'the product of reliable principles and methods.'" See Giannaris v. Giannaris, No. 2005-CT-00498-SCT (Miss. July 19, 2007).

3d Circuit Upholds Exclusion of Appraiser's Opinion

2007-07-19T11:46:00.000-05:00

In a case involving groundwater contamination from leaking storage tanks at a New Jersey gas station, the Third Circuit has issued an opinion upholding the trial court's exclusion of an appraiser's testimony on the effects of the contamination on nearby property values. The trial court permissibly found that the appraiser's analysis suffered from multiple methodological deficiencies. The opinion is non-precedential. See Player v. Motiva Enters., LLC, No. 06-1663 (3d Cir. July 13, 2007) (Rendell, Jordan, & Hardiman, JJ.).

"Medical Justice" Watch -- Day 1

2007-07-13T14:27:00.000-05:00

After looking at the piece in yesterday's WSJ, we've sent an e-mail to the folks at "Medical Justice," asking for a copy of the organization's "patient-physician contract" -- under which patients are asked to agree, as a condition of treatment, that they will rely, in any future malpractice claim, only on experts who "belong to [certain medical societies] and who strictly follow their code of ethics."

No response so far. We'll keep you posted.

7th Circuit Upholds Experts' Estimates of Drywall Workers' Rates, Productivity

2007-07-06T04:30:00.000-05:00

In a suit involving pension benefits, a Seventh Circuit panel has upheld the experience-based testimony of experts who estimated the rates and productivity of drywall workers. See Trs. of the Chicago Painters & Decorators Pension v. Royal Int'l Drywall & Decorating, Inc., No. 06-2367 (7th Cir. July 3, 2007) (Bauer, Manion, & Rovner, JJ.).

ER Doc May Testify on Bullet Trajectory, Says RI Supreme Court

2007-06-24T10:25:00.001-05:00

This past Wednesday, the Rhode Island Supreme Court upheld the admission of testimony from an ER physician on a bullet's angle of entry. See State v. Stone, No. 2006-24-C.A. (R.I. June 20, 2007).

When lawyers and legal academics compile their little lists of states currently adhering to Daubert and Kumho Tire, Rhode Island is routinely included. That's eminently reasonable, for list-making purposes. The state's high court has made friendly noises, over the years, about both decisions.

Wednesday's decision in Stone, however, mentions neither. Rather, it summarizes Rhode Island law on expert testimony as follows:

The admission of expert testimony in Rhode Island is governed by Rule 702 of the Rhode Island Rules of Evidence which provides that "[i]f 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 fact or opinion." The decision to permit a witness to testify as an expert is within the trial justice's sound discretion and rests upon such factors as the "witness's education, training, employment, or prior experiences." State v. Villani, 491 A.2d 976, 978-79 (R.I. 1985).

We're not Rhode Island practitioners, and we have no idea what goes on in the trenches there. We wonder, though, whether this passage, with its focus on qualifications and its citation of only a pre-Daubert precedent from 1985, may signal some level of ambivalence about requiring elaborate reliability analyses for expert testimony as a general matter.

The Stone opinion certainly need not be read that way. The trial objection in Stone focused on the expert's "experience in the penetration of skin with projectiles." Maybe the justices interpreted that objection as relating solely to qualifications and therefore saw no need to discuss other issues. Or maybe they saw qualifications and reliability as coming to pretty much the same thing, in the case at hand, because the testimony was on the "experience-based" end of the spectrum. Such a view of things would be consistent with the opinion's adoption of an alternative holding -- viz., that any error in admitting the testimony was harmless.

But we've gone and reread the earlier decisions, where the Rhode Island Supreme Court first dipped its toes into Daubert's waters, and the exercise has reminded us that those earlier decisions likewise stopped noticeably short of greeting the federal evidentiary standards with an enthusiastic bear hug. The court seems more to have sidled up to Daubert incrementally, in a series of cautious rhetorical steps. See, e.g., In re Odell, 672 A.2d 457, 459 (R. I. 1996) (state's rule barring polygraph evidence is "consistent with" Daubert); State v. Morel, 676 A.2d 1347, 1354-55 & n.2 (R. I. 1996) (state's existing relevance/appropriateness/helpfulness test is "consistent with" Daubert, whose "reasoning and guidelines" are "helpful and illuminating"); State v. Quattrocchi, 681 A.2d 879, 884 n.2 (R. I. 1996) (court's citation of Daubert "does not indicate that this court has abandoned the test enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), as analyzed in State v. Wheeler, 496 A.2d 1382, 1387-89 (R.I. 1985)"); Gallucci v. Humbyrd, 709 A.2d 1059, 1064 (R. I. 1998) (citing Daubert and Rhode Island's version of Rule 702 in connection with helpfulness to the trier of fact); DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 683-90 (R. I. 1999) (embracing Daubert in broad outline, and especially the concept of pretrial gatekeeping in appropriate cases, but stopping short of a clear and Sherman-like adoption of the federal standards for expert evidence in all their particulars) (dictum); Raimbeault v. Takeuchi Mfg. (U.S.), 772 A.2d 1056, 1060-62 (R.I. 2001) (stating that prior decisions have "recognized the applicability of Daubert to situations in which scientific testimony is proposed in Rhode Island state courts," and adding a "see also" citation to Kumho Tire, but ultimately gravitating to the state's pre-Daubert relevance/appropriateness/helpfulness vocabulary, citing DiPetrillo).

We don't want to read to much into a short passage from one opinion. But Stone does reignite some lingering uncertainty, in our minds, about whether the marriage between Rhode Island and Daubert has yet been fully consummated -- or, if it has, with what degree of lust.

The Ten Worst Jobs in Science

2007-06-23T18:18:00.000-05:00

Popsci.com has the list. "Expert witness" isn't on it -- unless you count "forensic entomologist," which clocks in at number 9, just ahead of "whale-feces researcher."

Beck & Herrmann on "Reasonable Medical Certainty": Part I

2007-06-22T16:00:00.000-05:00

Quite some time ago now, we promised to respond to a Beck & Herrmann post decrying an ALI proposal to abolish any requirement that experts offer their opinions to a “reasonable degree” of medical, professional, or scientific “certainty.” (Call this the “RDC” rule for short.) The ALI proposal would abrogate any RDC requirement and demand only that the expert hold his or her opinion to be more likely true than not -- at least in the context of opinions offered to prove causation in tort cases involving physical harm.

Beck & Herrmann attempt to rebut three arguments offered by the ALI in favor of abandoning any RDC requirement: (1) that the medical and scientific communities have no such “reasonable certainty” standard; (2) that the requirement imposes a more demanding standard for admissibility than the law imposes for satisfaction of the burden of persuasion in civil cases; and (3) that the RDC standard affords no effective guarantee of the soundness of the expert’s analysis.

We’ll respond to Beck & Herrmann’s specific critiques of the three ALI arguments in a second installment. In this first post, we will: (a) discuss how the RDC rule appears to have originated; (b) attempt some description of the demands it may currently impose; and (c) consider some of the functions it might aspirationally perform.

A. Historical Antecedents

The rule is most routinely implicated, of course, in expert testimony from physicians – the paradigmatic evidentiary context on which Beck & Herrmann also focus. They say the rule has been in place for “generations.” To be more precise, its judicial adoption appears to date from the 1960s.

In a 1998 Maryland Law Review article, Jeff L. Lewin (a Pennsylvania attorney and an adjunct professor of law at Widener University) makes a convincing case that the practice of asking medical experts to state their opinions to a “reasonable degree of medical certainty” was first adopted by the Chicago trial bar, sometime before 1930, in specific response to distinct features of the local legal ecology. See generally Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 Md. L. Rev. 380 (1998).

In the beginning, according to Lewin, was the “reasonable certainty” rule, which involved the standard of proof for damages attributable to medical conditions from which the plaintiff might suffer in the future. By the end of the nineteenth century, it was a well-established principle under the Illinois precedents, as well as the law of other jurisdictions, that a plaintiff could not recover damages attributable to future medical symptoms or conditions unless the plaintiff could show they were reasonably certain to occur. This was originally treated as a substantive sufficiency requirement but was later adopted, in a series of Illinois decisions dating from early in the twentieth century, as a test for the admissibility of expert physician opinion on future damages.

During the same period, Lewin notes, the Illinois Supreme Court adopted a form of the “ultimate issue” rule that barred physicians from expressing definitive opinions on causation. Testimony that some factor did in fact cause the plaintiff’s injuries was seen as an encroachment on the jury’s ultimate fact-finding prerogative. Physician testimony about what “might have caused” the injury was permissible, but expert opinion that some factor actually did cause the injury was inadmissible. To modern legal ears, such a rule may sound paradoxical. But such was Illinois law, in the Olden Days.

These “reasonable certainty” and “ultimate opinion” rules were obviously in significant tension. Although some of the details remain shrouded behind history’s veil, Lewin offers substantial lexical evidence that the phrase “reasonable medical certainty” originated among personal injury and worker’s compensation counsel in Illinois, in the effort to frame questions compliant with both rules – e.g., “Doctor, have you formed an opinion, based on a reasonable medical certainty, as to what may or could have been the cause of plaintiff’s condition?” By the 1930s, Illinois counsel were using the “reasonable medical certainty” locution with some regularity. Lewin attributes its spread to other jurisdictions largely to a best-selling trial manual published in 1935 by Irving Goldstein, an Illinois lawyer and adjunct professor at Northwestern University Law School. By the 1950s, published decisions in other states started to reflect counsel’s growing use of the Goldsteinian formula, to a point where the phrase began to find a habitat in West’s Keynotes.

In the 1960s, the expression’s incidence in judicial opinions rose exponentially. Many decisions from this period attached no special legal significance to the phrase, which often appeared in quotations from trial testimony. In some jurisdictions, however, courts began to embrace “reasonable medical certainty” as a standard for admissibility. Lewin posits (plausibly in our view) that by then, the phrase had come to enjoy such widespread currency as a term of testimonial art that some lawyers and judges simply assumed it embodied a hallowed legal requirement, often with little explicit reflection on what, precisely, it meant.

However that may be, the standard was not universally accepted – and where accepted, it was not always assigned the same meaning. In Alaska, Nebraska, and Washington, for example, the courts adopted a “reasonable medical certainty” requirement but interpreted it to mean only “more probable than not.” In other jurisdictions, the courts articulated a “reasonable medical certainty or probability” requirement without indicating whether certainty and probability came to the same thing. In a handful of states – Lewin mentions Pennsylvania, South Carolina, and perhaps Tennessee – the standard was interpreted to bar testimony whose truth the expert characterized as probable but less than reasonably medically certain.

B. Current Doctrine

In the wake of the 1975 adoption of the Federal Rules of Evidence, the Supreme Court’s 1993 decision in Daubert, and the adoption of the federal standards for expert testimony in many states, courts do not nowadays lack for methods by which to screen expert testimony. In consequence, the RDC rule plays a less prominent evidentiary role than it may have done at common law. Colorado, for example, recently jettisoned the “reasonable medical certainty/probability” standard altogether. See People v. Ramirez, 155 P.3d 371 (Colo. 2007). What the standard demands, where still in force, remains the subject of substantial variation and considerable uncertainty. At different times and in different places, it has represented a sufficiency requirement, an admissibility criterion, or some vague blend of both. It has sometimes been extended to nonmedical expert testimony, but its applicability in that context generally rests on a less secure footing than with medical experts. A number of courts have held that the standard imposes no requirement for magic language or a specific form of words, yet motions to exclude expert testimony for lack of a formulaic recital are not uncommon, and an expert’s departure from the customary verbal formula, whether on direct or on cross, may increase the risk that the expert’s testimony will be discounted or excluded as mere speculation (as though the law could countenance no middle ground between “certainty” and idle conjecture).

There is considerable ambiguity, in short, about what, precisely, may be the current status and contours of the standard whose potential “abolition” Beck & Herrmann bemoan.¹ This, by itself, might be counted as a mark against a legal standard, but we will not pursue that argument any further for now.

C. The Standard’s Potential Functions

Whatever its actual current meaning in the jurisdictions still adhering to it, the requirement that expert testimony reflect a “reasonable degree” of medical, professional, or scientific “certainty” might hypothetically assume any of multiple forms. The rule might require the witnesses themselves to attest that their opinions are held to a “reasonable degree of certainty.” It might condition admissibility on a judicial determination that their testimony is of RDC caliber. It might make RDC a part of the sufficiency calculus. Or it might combine some or all of those requirements:

The “Reasonable Degree of Certainty” Standard: Seven Potential Versions
	Expert Must Profess RDC	Actual RDC Is a Necessary Condition for Admissibility	Actual RDC Is a Necessary Condition for Sufficiency
1	X	X	X
2	X	X
3	X		X
4	X
5		X	X
6		X
7			X

The appropriate form (if any) for an RDC rule might depend on the functions it is intended to perform. We will focus here on just two such functions, because we think they’re the most plausible candidates. We will paint them with an admittedly broad brush.

1. The Liability-Minimizing Function

One potential function for the rule might be to limit civil liability for certain specific kinds of claim (e.g., suits against health care providers, pharmaceutical companies, and medical device manufacturers) to cases where the specialized or technical analysis supporting the imposition of liability reaches a higher than usual threshold of … well, let’s call it “warranted assertibility.” We say “higher than usual threshold” because the different jurisdictional flavors of Daubert’s reliability calculus (including the analyses followed in several states where the evidentiary assessment is still nominally conducted under Frye but increasingly exhibits Daubertian features) already make substantial demands in this area – demands considerably more stringent than those formerly prevailing at common law.

The rule’s use to perform this liability-limiting function would seemingly represent a policy decision that certain fields of professional and/or commercial endeavor deserve special forms of legal protection (a policy animus also operative, for example, in many state statutes governing the competency of experts to testify on the standard of care in malpractice cases). We do not propose to weigh in on that policy question here. We will instead offer only a few more limited observations.

First, the pursuit of substantive agendas through evidentiary or procedural means has sometimes resulted in debasement of policy discourse (because the strategy is sometimes adopted for the very purpose of presenting substantively controversial policy agendas in misleading terms – i.e., in bland procedural clothing). Subject to that caveat, however, there is nothing instrinsically reprehensible or wrongheaded about pursuing substantive goals through procedural methods, so long as the substantive policy agenda is made explicit. To their credit, Beck & Herrmann are reasonably disclosing about theirs.

Second, this strategy for insulating certain favored classes of defendant from certain forms of liability would be an indirect strategy. Not that there’s anything wrong with that. We do it all the time. We try to protect criminal defendants from wrongful incarceration by giving them the right to confront the witnesses against them. We try to prevent accidents by regulating motor vehicle speed. But whenever we pursue some policy goal through indirection, it is reasonable to ask what incremental contribution the means will make to achieving the end, at what collateral cost, and whether some other means might be better tailored to the task.

Third, although the liability-limiting agenda under discussion would be consistent with several alternative implementations of the RDC rule, it does suggest certain directions for implementation. It suggests, for example, that the requirement might apply specifically to medical testimony, or testimony about the causation of personal injury (or certain types of claim involving personal injury), rather than to expert testimony more generally. It suggests, as well, that the requirement might extend beyond the mere demand that experts employ a certain form of words in describing the confidence with which they hold their opinions (i.e., beyond Version 4). It suggests, that is, that in the course of their admissibility and/or sufficiency decisions, the courts might also participate in evaluating whether the evidence possesses whatever degree of “certainty” the rule requires (as in Versions 1-3). Such a judicial evaluation might even be prescribed in the absence of any requirement for an expert attestation (as in Versions 5-7).

2. The Confidence-Testing Function

A second function the rule might perform would relate more to the goal of promoting the trustworthiness of expert opinion testimony more generally, by adding a layer of screening at the level of the expert’s own intellectual conscience. Once again, such a function would be consistent with multiple alternative implementations of the rule. But once again, some plausible directions for implementation are suggested. Even if it were felt, for example, that existing tests for sufficiency and admissibility provide basically adequate tools for gauging the probativeness and warranted assertibility of expert testimony (or that they would provide adequate tools for those purposes after some judicious tinkering), concern might still arise over the sincerity of expert opinion; its honesty, if you will. Because it is precisely opinion testimony we’re discussing, perjury laws cannot be expected to do a very good job at deterring experts from presenting opinions that may be methodologically defensible, to one degree or another, but in which the experts do not, in their heart of hearts, feel much confidence (i.e., truly believe). No doubt the temptation for experts to bend their testimony in the client’s favor, within whatever limits the rules on reliability may permit, is not one that any plausible evidentiary measure could hope to eliminate fully. But something might be gained from requiring experts to say, under oath, that they hold their opinions at some reasonably high level of confidence. At least some subset of experts -- some whose own consciences would not permit them to make such an attestation, plus some others who would fear for their reputations if they did – would balk.

This second vision of the “reasonable degree of certainty” rule suggests that forms of words should be important. No weaseling: are you reasonably certain, or not? Version 4 represents the purest implementation of this vision.

Our throat now cleared, we will turn, in the next installment, to the specifics of the Beck & Herrmann argument.

_________________________________

¹ The very decisions that Beck & Herrmann cite as exemplary embodiments of the RDC standard serve as vivid illustrations of the standard’s ambiguity. They say they are “very comfortable,” for example, with the standard articulated in State v. Jackson, 92 Ohio St. 3d 436, 448, 751 N.E.2d 946, 961 (2001). In the course of rejecting an objection that testimony should have been expressed as “probable” rather than “reasonably certain,” the Jackson court held that “reasonable certainty” is synonymous with “probability.” To us, that sounds suspiciously like the “coin-flip” test that Beck & Herrmann decry. The hermeneutic trail, however, does not end there. What, after all, does “probability” really mean to the Ohio Supreme Court? The reader might hope to find enlightenment in the Jackson opinion’s citation of State v. Benner, 40 Ohio St. 3d 301, 313, 533 N.E.2d 701, 714 (1988). In Benner, a coroner testified that the cause of death was “more than likely strangulation or asphyxia.” On appeal, the defendant protested that this testimony did not satisfy the RDC standard. The Benner court rejected that objection, and/or held that any error in admitting the testimony was harmless. The Benner opinion first equated “reasonable certainty” with “probability.” It then offered a lengthy if ultimately inconclusive exegesis of the latter term, drawing heavily on standard and legal dictionaries. In the course of that exegesis, it noted: (1) that one of its earlier decisions had equated “probable” with “extremely likely”; (2) that the wisdom of another earlier decision, in which the court had posited that something “likely” is less certain than something “probable,” was questionable; (3) that the OED defines “probable” and “likely” in basically equivalent terms; (4) that Black’s Law Dictionary defines “likelihood” as “probability,” and also as connoting something less than reasonable certainty; (5) that numerous decisions in other jurisdictions have equated “probable” and “likely”; (6) that the coroner’s characterization of his opinion as “more than likely” placed his testimony on a point located somewhere on the continuum between “likely” and “extremely likely”; and (7) that any error was harmless. Are we clear now? Not in the estimation of the Ohio Court of Appeals. See State v. Riley, 2007-Ohio-879, at ¶¶ 26-28 (Ct. App. Wood County 2007) (Benner inapposite because decided prior to the 1994 amendments to Ohio Evid. R. 702), appeal dism’d in part, 866 N.E.2d 1092 (Ohio 2007). Indeed, Ohio’s intermediate appellate courts appear to question whether the RDC rule remains viable following Ohio’s adoption of a Daubert regime. See, e.g., Coe v. Young, 145 Ohio App. 3d 499, 502-04 763 N.E.2d 652, 655-56 (Ashtabula County 2001) (in light of Daubert’s focus on methods rather than the conclusions they generate, “there is no requirement that an expert utter any ‘magic language’; i.e. that his opinion was within the reasonable degree of certainty or reasonable degree of certainty within the particular knowledge of his professional experience [sic]”).

Beck & Herrmann are also “very comfortable” with the very different version of the RDC standard espoused in McMahon v. Young, 442 Pa. 484, 485-86, 276 A.2d 534, 535 (1971) (mere probability insufficient for medical testimony), and Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa. Super. 2001) (even “very highly probable” would be insufficient). Pennsylvania has not adopted Daubert and continues to adhere to Frye. In particular, Pennsylvania adheres to the standard variant of Frye under which general acceptance is a precondition for the admissibility of only “novel” scientific evidence. The state’s peculiarly strict version of the RDC rule thus functions, to some degree, as a surrogate or substitute for Daubertian gatekeeping – a highly imperfect one, some might say.

Both the Ohio and Pennsylvania courts have sometimes characterized the RDC standard as going to “competency.” This poses potential issues under Fed. R. Evid. 601 about the standard’s applicability in diversity proceedings, adding another layer of uncertainty.

Department of Citations for Obscure Propositions

2007-06-21T21:44:00.000-05:00

Sometimes we run across an expert report that seems largely devoid of direction or argument, and we find it can be hard to identify, in any succinct and familiar legal vocabulary, the evidentiary vice from which it suffers.

You've seen the kind of report we're talking about. The expert may be well qualified, and the propositions stated in the report, considered in themselves, may look defensible enough -- some to the point of being platitudinous. Each proposition may even be supported by citations to the literature. But the report itself meanders, proceeding from one proposition to another with no evident organizing principle. Although the exposition otherwise bears all the badges of literacy, the relationship between one point and the next is left obscure, as is the manner in which the expert's various assertions are thought to support his or her ultimate conclusions (if indeed the report offers decipherable conclusions at all). You read such a report and say: "Is it me? This doesn't look like an analysis. It doesn't look like a chain of reasoning. It does not appear to apply any recognizable method. It looks like a random trail of discursive breadcrumbs on the logical road to nowhere."

Well, we still don't know what name to give this phenomenon, but now we know of something to cite when it happens. From the Delaware Supreme Court's decision on Monday in Spencer v. Wal-Mart Stores East, LP, No. 305, 2006 (Del. June 18, 2007):

[T]aking phrases from various trade journals and piecing them together to develop an opinion is not a satisfactory basis or technique to be used to form an expert opinion in the Delaware courts. After reviewing [this expert's] report, the Superior Court found that the majority of [the expert's] opinion was "based simply on his culling potentially favorable snippets from various snow plowing and safety publications, instead of an opinion based on the application of facts to a scientific theory, or adequate experience and special training." That finding is solidly grounded in the record. [The expert] failed to perform a sound analysis of the facts and theories, and to show how he reached his conclusions from his observations.

Presentation of Disastrous Expert Was Ineffective Assistance, 7th Circuit Holds

2007-06-19T13:38:00.000-05:00

Defense counsel provided ineffective assistance by calling a highly counterproductive psychological expert at the penalty phase of an Indiana capital case, the Seventh Circuit has held.

The defendant molested a 10-year-old boy, killed him when he threatened to tell his parents, threw the body in the trunk of his car, drove to the countryside, and dumped the body under a bridge. His lawyers asked an expert to evaluate the defendant but to prepare no report. The expert prepared a report anyway, opining that the defendant had a history of pedophilia, possessed a firm grip on reality, lacked remorse, would likely continue to molest other children, and could commit "another violent assault on a young victim if [he] again felt it was necessary." When the lawyers asked the expert why he had disregarded their instructions, he told them: "Don't worry about it. I'm sandbagging the State.... I'm trying to make them think that I'm going to be a good witness for them, but I'm going to take -- when I take the stand, I'm going to be able to turn this all around on them."

Defense counsel also learned, at about the same time, that the expert -- Dr. Lawrence Lennon, then the director of a child and adolescent psychiatric center at an Indianapolis hospital -- believed mental illness to be a myth, and that he favored such therapeutic techniques as "putting 18-year-olds on his lap and sticking a bottle in their mouth."

Nevertheless, they served his report on the prosecution, and called him to the stand in the penalty phase of the trial. His direct testimony was devoted largely to his therapeutic philosophy and theories of child development. On eventually turning to the subject at hand, the expert did mention the defendant's childhood abuse (among other things, the defendant said he was raped by a stranger at age 10). The expert offered no meaningful assessment, however, of the defendant's mental state at the time of the murder, nor any testimony to connect it with the defendant's abuse during childhood. On cross, the expert confirmed that in his opinion, the murder was related to the defendant's desire to avoid prison. He also volunteered that the defendant had sociopathic traits, as well as expressing a belief in the defendant's future dangerousness (a subject the prosecution itself may not argue as an aggravating circumstance under Indiana law).

We come now to the "sandbagging" part, which did not come off in quite the way that the expert had portended in his earlier conversations with defense counsel. With the expert still on cross, the prosecutor asked whether the defendant had been sexually aroused by the killing -- whether, in fact, the defendant had masturbated on the victim's corpse. The expert answered that the defendant admitted doing so. The expert had never previously disclosed that fact to defense counsel.

Of the expert's other problems, of course, defense counsel had more warning. Did they simply decide to ignore the clear danger signals and hope for the best? Or is something more going on here? There is always the lurking suspicion that defense counsel might fall on their swords to support a post-conviction claim of ineffective assistance in a death penalty case. But if that happened in this case, it may not have been too long a fall.

See Stevens v. McBride, No. 05-1442 (7th Cir. Jun. 18, 2007) (Ripple, Manion, & Wood, JJ.).

A Key Term Defined

2007-06-17T11:52:00.000-05:00

We're glad this has been cleared up. Ted Frank:

When reformers use "frivolous" they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy.