Saturday, August 30, 2003

Expert Batting Averages for the Millennium to Date

It has been another slow news week on the expert evidence front, so news must be manufactured.

What, it may be wondered, are the overall odds, these days, that expert testimony will survive a Daubert challenge in the federal courts? No doubt expert prospects vary widely, depending on the expert's discipline and also, perhaps, on the tribunal. But if we prescind from such variables, and try to come up with a team batting average, how are experts faring as a group?

At Daubert on the Web, statistics are maintained on the rate at which expert testimony in the various federal judicial circuits, and in various fields of expertise, is held admissible or inadmissible, after appeal. The sample comprises all federal appellate decisions, published or unpublished, rendered on or after January 1, 2000. The sample may be skewed (e.g., because it fails to capture cases in which expert testimony is so unproblematically admissible that no appellate issue ever arises). But that skewing may not be intolerable (e.g., because it seems likely that if any serious evidentiary challenge is mounted in district court, it will be raised on appeal too).

From these statistics, an overall admissibility rate can be extracted. As of today, the sample of 475 appellate decisions includes appellate adjudications on the admissibility of 440 expert opinions. (Some appellate decisions don't reach the admissibility issues, and other decisions rule on the opinions of more than one expert.)

Of the 440 expert opinions on which appellate decision was rendered, the district courts admitted the testimony on 248 occasions, and denied it on 192. So, before appellate dispositions are taken into account, the generic expert batting average in federal court, in this sample, is 248/440, or .564.

Appellate review changes the outcome in about 15% of all cases. That is, approximately 85% of all district court Daubert rulings from which appeal is taken are affirmed, and 15% reversed. But appellate dispositions, important as they may be in individual cases, apparently do not do much to alter the overall averages. Of the 440 appellate rulings on expert opinions, district court decisions to admit the testimony were affirmed on 216 occasions, and district court decisions excluding the testimony were reversed on 35 occasions. Thus, after appeal, the expert's testimony was held admissible (or, at least, not inadmissible) in 251 instances, for a batting average of 251/440 = .570.

That figure, however, paints an unduly optimistic picture for proponents of expert evidence in civil cases, and an unduly pessimistic one for criminal prosecutors, because there is a wide disparity in admissibility rates as between civil and criminal trials. Taken as a group, law enforcement experts and forensic witnesses boast a staggering admissibility rate, after appeal, of 93/113 = .823, and decisions involving their testimony make up roughly a quarter of the overall sample.

If the criminological and forensic experts are excluded from the sample, then the overall expert batting average (after appeal) drops to 158/327 = .483.

By way of comparison, in 1913 (his best year), Jake Daubert batted .350 playing for the Cincinnati Reds. Or, if you prefer, you can tell your experts that their odds match up pretty well with the lifetime slugging percentage of Yogi Berra.

What should be made of the fact that an expert's odds of surviving a Daubert challenge in a civil case are approximately 50/50? Cynics might hypothesize that because the rules governing admissibility nowadays are so vague, flaccid, and manipulable, outcomes will naturally tend to approximate the results that would be produced by flipping coins. And there may be some truth in such an explanation.

But it may also be the result toward which a rational system would tend. Here it would be interesting to hear commentary from economists and game theorists. Your humble investigator is neither of those things, but it may be speculated that litigants tend to push expert testimony, or challenges thereto, as far as they judge the rules to permit, so that the battle is usually at the margin of admissibility, where the decision might tip either way.

As experts are wont to say, further study is warranted.

Tuesday, August 26, 2003

Forensic Witnesses Upheld in 7th, 8th Circuits

Forensic witnesses again prevailed in a pair of appellate decisions announced yesterday.

In Buie v. McAdory, No. 02-3565 (7th Cir. Aug. 25, 2003) (Easterbook, Rovner & Wood, JJ.), a habeas petitioner argued that the state trial judge abridged his due process rights in permitting a forensic expert to testify that hair samples matched "within a reasonable degree of scientific certainty." According to petitioner, the witness overstated the degree of scientific support for her conclusion. The Seventh Circuit rebuffed this argument. The Constitution, said Judge Easterbrook in the panel opinion, does not require that prosecution experts be correct, nor does it impose Fed. R. Evid. 702 on state trial courts. It requires only that the defendant have an opportunity to cross-examine and present contrary evidence. A summary of the ruling in Buie, and a link to the opinion, can be found here.

And in United States v. Collins, No. 02-3353 (8th Cir. Aug. 25, 2003) (Loken, Riley & Smith, JJ.), the Eighth Circuit found no plain error in the trial court's admission of fingerprint evidence. See the details here.

Sunday, August 24, 2003

Blog 702 for Your Palm Pilot or Nokia Phone

Terrified by the thought that interested readers might be unable to review this blog whilst on commuter trains or awaiting flights in airline terminals, we have created a WAP site, suitable for review on PDA's and internet-enabled cell phones. The URL is:

To gain access, you'll need to set up a free account at, but they make it easy and painless. And if you do, you can create WAP sites of your own, gratis. Go ahead, take a look.

Saturday, August 23, 2003

EPA -- Island of Post-9/11 Panglossianism

The Washington Post reports that the White House intervened to soften Environmental Protection Agency warnings on air quality in the wake of the 9/11 attack on the World Trade Center, persuading EPA to delete cautionary statements and to add notes of reassurance. EPA deleted advice about cleaning indoor spaces, as well as information about "potential health effects from airborne dust containing asbestos, lead, glass fibers and concrete." And initial announcements that the air was safe to breathe "were not supported by proper air quality monitoring data and analysis," as the Post puts it.

EPA's guidance is routinely invoked as a kind of gold standard in Daubert disputes. For example, Justice Stevens's opinion in General Electric Co. v. Joiner, 522 U.S. 136 (1997), observed that the plaintiffs' expert in that case followed the same risk assessment methodology as the EPA.

So it is good to know that the Agency's inspector general has recommended, in the Post's words, "that the agency adopt new procedures so its public statements on health risks and environmental quality are supported by data and analysis." The IG's full report can be found here. If anything, it seems more critical than the Post's story suggests.

Thursday, August 21, 2003

Omission of Daubert Hearing Transcript Waives Issue on Appeal, 7th Circuit Says

Attention, appellate practitioners! If you want to appeal an adverse Daubert ruling, be sure to include the transcript of the Daubert hearing in the record on appeal. In a trade secrets case, the Seventh Circuit has just held that a litigant waived the point by failure to do so. A summary of the panel's ruling in Learning Curve Toys, Inc. v. PlayWood Toys, Inc., No. 02-1916 (7th Cir. Aug. 18, 2003) (Ripple, Kanne & Rovner, JJ.), and a link to the opinion, can be found here.

The Search for Truth at ALF (part 2.1)

In connection with my recent post on the American Legal Foundation's amicus brief urging the adoption of Daubert in Georgia, the mail has brought this account from an "interested bystander" who actually observed oral argument for Orkin Exterminating Co. v. Carder in the Georgia Supreme Court. Apparently Orkin's position at argument was considerably meeker than the one taken in ALF's briefing.

Sunday, August 17, 2003

The Search for Truth at ALF (part 2)

Here we are in August, and it's a slow news weekend on the expert testimony front, so we have time to renew the quest, undertaken on a bet, to locate some proposition on the Atlantic Legal Foundation's web site with which it seems reasonable to agree.

Having previously failed to locate anything unconditionally agreeable on the ALF's home page, your investigator decided to check out the "What's New" link. This takes the visitor to a spot where ALF recounts its recent adventures. The first entry there blandly announces a testimonial dinner honoring the Chairman and CEO of American International Group (which offers "insurance, financial services and the freedom to dare"). One is willing to take it on faith that this gentleman "exemplifies the ideals and principles of public service and private enterprise," just as ALF claims, and so technically the search might have ended here. But the spirit of the project, really, had been to find some slightly more colorful and potentially controversial assertion to endorse.

For those purposes, ALF's second "What's New" entry, entitled "Georgia on Our Mind," initially seemed more promising. At least everyone could agree, maybe, that here we have one cool tune. (You can hear a nice enough Van Morrison rendition at the Official Hoagy Carmichael Site, but where are Louis Armstrong and Ray Charles?)

As it turns out, unfortunately, ALF has no opinions to impart on Hoagy Carmichael, but wants instead to rehearse the arguments from an amicus brief it has filed before the Georgia Supreme Court, which has granted certiorari to review the Court of Appeals decision in Orkin Exterminating Co. v. Carder, 258 Ga. App. 796, 575 S.E.2d 664 (2002). You can well imagine your investigator's surprise on discovering that in this toxic tort case, the ALF is actually weighing in on behalf of the plaintiff, whose expert ALF regards as an exemplar of sound medico-scientific inquiry.

Just kidding. ALF has sided with the people spraying the pesticides, and believes the plaintiff's expert to constitute a threat to the Republic. Or so ALF's rhetoric would suggest. "The battle lines," says ALF, "are drawn."

It augurs well for the continued prosperity of this weblog that issues of expert evidence can still stir such emotion. Some might see the order granting certiorari in Orkin v. Carder in less dramatic terms. It solicited briefing on whether Georgia should adopt Daubert and Kumho Tire, or adhere instead to the standard for expert evidence established in Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982), which calls for the trial court to admit expert testimony if the procedure or technique on which the expert relies has "reached a scientific stage of verifiable certainty" or "rests upon the laws of nature." It cannot be gainsaid that decisions about evidentiary standards are important, but still, it might be doubted, even by aficionados of expert evidence law, whether such a question supplies legitimate occasion for metaphors involving heroic military adventure. To be fair, perhaps ALF cannot be faulted for taking these issues with the utmost seriousness. At all events, your investigator is no scholar in Georgia's evidentiary jurisprudence, but will confess that the Harper test does sound a little vague, and if ALF were merely concerned to argue in favor of clearer standards -- standards that might yield fairer or more predictable results -- then it is possible that ALF would have a point.

But ALF cannot bring itself to stop at extolling the merits of Daubert. It feels compelled to tell a parable, and apparently it wants the parable to be a horror story, so ALF delves headlong into the putative facts. The word "putative" is chosen advisedly, because this is the juncture at which the prospects of agreement with ALF quickly deteriorate, for failure of ALF's factual recounting to match up very successfully with the Court of Appeals version.

Here, for instance, is what ALF says about the events leading up to suit (emphases mine): "Edward Carder was employed by a company that retained Orkin to perform exterminating services at its offices. Orkin treated Carder’s work area in July 1988. Carder alleged that months later, on November 4, 1989, he suddenly broke out with a rash as he was jogging. He also allegedly began to experience intense foot and joint pain, in addition to cold sensitivity. Over the course of the next two years, Carder consulted numerous physicians. Two specialists diagnosed Carder’s condition as 'probable' Sweet’s Syndrome. Carder’s condition improved upon taking a steroid treatment. Despite the dermatologists’ diagnoses of 'probable' Sweet’s Syndrome, Carder believed that pesticides were the cause of his ailments. Carder then consulted Dr. Howard Frumkin, an occupational and environmental health physician at the Rollins School of Public Health at Emory University."

Got the picture? Fully sixteen months after his workplace exposure, the worker suddenly developed symptoms, while jogging far from the work site, which symptoms he baselessly attributed to pesticides, but which his physicians diagnosed differently. Unhappy with their diagnosis, and perhaps beset with litigious impulses, he shopped for a different doctor.

A horror story for the ages, no doubt, were it true. But according to the Court of Appeals opinion, to which some credence must be afforded, the plaintiff's exposures occurred not in July 1988, as ALF says, but in July 1989 -- perhaps four months before the onset of his symptoms, not sixteen. An ALF typo? Maybe so, but one that certainly cuts ALF's way. What, meanwhile, of the "rash" plaintiff developed? Skin lesions, it transpires. And that new physician he visited, after the first two doctors came up with a tentative diagnosis of Sweet's Syndrome? The first two doctors actually referred the plaintiff to the new specialist at Emory, apparently because of his background in epidemiology.

ALF continues its account (emphases again mine): "Dr. Frumkin created an experiment to attempt to connect pesticides with Carder’s symptoms. Dr. Frumkin did not use standard tests generally used when pesticide poisoning is suspected because, as he testified, Carder 'had none of the symptoms of typical poisoning.' Dr. Frumkin developed his own, new and experimental test, which consisted of a series of six uncontrolled exposures of Carder to either a mixture of pesticides or a placebo. Dr. Frumkin admitted his test lacked many components that have been recognized by scientists and courts as indicia of scientific validity and reliability."

Let's leave to one side ALF's seemingly baseless imputation of agenda-driven motivations to the plaintiffs' expert ("attempt to connect the pesticides"), and focus instead on the merits. Once again, it's clear enough what happened, no? The good doctor ignored the usual tests for "poisoning," and resorted to inventing a novel procedure of his own to reach the desired result, despite his method's lack of general acceptance amongst medical practitioners, and despite its lack of grounding in traditional medico-scientific principles.

Not really. Read the Court of Appeals decision, and you discover that the method applied was "challenge testing" -- an established diagnostic technique that no one, until now, has ever credited the good Dr. Frumkin with inventing. Orkin's challenge, on appeal, was not to the methodological legitimacy of challenge testing itself, but to the details of the physician's execution.

Might there be room for debate, about the causal link between these pesticides and this plaintiff's health condition, and even about the soundness of the diagnostic methods that his physician employed? No doubt. But if ALF were really confident in its position, maybe it would take more trouble to present the underlying facts in a more objective light.

So the quest, it seems, must continue. Would it be cheating if your investigator looked for agreeable propositions at -- the web site managed by the Association of Libertarian Feminists?

Friday, August 15, 2003

Eighth Circuit Upholds Exclusion of Design Defect Testimony

Engineers testifying to design defects in forklifts and similar devices often meet an unhappy fate. The Eighth Circuit has contributed to this trend, upholding the exclusion of testimony from an engineer who opined that a stand-up lift truck should have incorporated safety restraints and/or warnings. The appellate courts seem particularly keen on the idea that engineers should actually ride these things, before criticizing their design -- a concept that enjoys far less currency in defective design suits involving other vehicles (e.g., automobiles).

A synopsis of the decision in Anderson v. Raymond Corp., No. 02-3393 (8th Cir. Aug. 13, 2003) (Bowman, Riley & Melloy, JJ.), and a link to the opinion, can be found here.

Tuesday, August 12, 2003

Ninth Circuit Endorses Differential Diagnosis

The Ninth Circuit issued a decision today giving its imprimatur to differential diagnosis as a technique for assessing disease causation. The facts of the case involved the effects of an oil spill on the oyster population, but the ruling is sure to affect toxic tort litigation in other contexts as well. See Clausen v. M/V New Carissa, No. 01-35298 (9th Cir. Aug. 12, 2003) (O'Scannlain, Fernandez & Fisher, JJ.). Update: A more detailed summary of the Clausen opinion is now available here.

Lay Voice Identification Upheld

A Fifth Circuit panel has upheld the admissibility of testimony from a lay witness who opined, from his prior acquaintance with defendant's voice, that the voice on a wiretap was defendant's. In its unpublished opinion, the panel rejected any notion that voice identification testimony necessarily falls within the ambit of Fed. R. Evid. 702, and noted that Fed. R. Evid. 901(b)(5) specifically permits lay voice identification testimony. It also observed that the jurors could test the witness's identification against their own impressions. The ruling was issued in United States v. Gibbs, No. 02-50442 (5th Cir. Aug. 8, 2003) (Smith, Barksdale & DeMoss, JJ.).

Sunday, August 10, 2003

Fifth Circuit Upholds Testimony Based on Satellite Imagery

On Friday, the Fifth Circuit upheld the trial court's decision admitting testimony from a government expert who opined, based on satellite imagery, that a farmer had filed claims for crop disaster payments for acreage not actually under tillage at the time. A summary of the court's ruling in United States v. Fullwood, No. 02-10840 (5th Cir. Aug. 8, 2003), and a link to the opinion, can be found here. The panel relied in part on an earlier decision, upholding testimony from the same expert in a similar case, in United States v. Larry Reed & Sons, 280 F.3d 1212 (8th Cir. 2002).

Saturday, August 09, 2003

Attention All Litigators: Learn to Say "Polybrominated Diphenyl Ethers"

Today's NYT reports that California Governor-of-the-Moment Gray Davis is scheduled (how soon?) to sign legislation in which California will say "Hasta la vista" to polybrominated diphenyl ethers, or PBDE's -- flame retardant chemicals commonly found in foams and plastics used in furniture and electronics. Public health professionals are expressing concern over the rapid escalation of PBDE concentrations in the environment, and over studies of mice suggesting links between PBDE's and learning disorders, as well as other conditions, like hyperactivity, that may be attributable to brain dysfunction. This does not appear, necessarily, to be an instance of Chicken Little environmental alarmism. Scientists are likening PBDE's to PCB's, both in molecular structure and potential adverse effect.

The commercial origins of PBDE's are not so diffuse as to thwart litigation. Note to the United States District Court for the Southern District of Indiana: Indianapolis-based Great Lakes Chemical is the primary producer of PBDE's, according to the Times. Note to the plaintiffs' bar: PBDE levels can be measured in blood tests.

If toxic tort litigation does materialize, the Daubert debate can almost be rehearsed right now. The plaintiffs' experts will rely on animal studies and elements of molecular structure analogous with PCB's. Defense experts will counter that causation cannot be proved without human epidemiology, which so far remains lacking. It's a wonder there isn't already a form-bank for such debates. Maybe the folks at Deloitte & Touche are working on one.

Friday, August 08, 2003

Challenges to Financial Experts Increasing, Says Deloitte & Touche

A study by Deloitte & Touche reportedly shows that challenges to expert financial testimony have risen by 260% over the past four years, with about half the challenges succeeding.

By happenstance, no doubt, Deloitte's announcement of these findings coincides with its marketing launch of a "unique database to track all challenges to the testimony of financial expert witnesses." According to Deloitte, its database will help litigators "study the reasons why financial expert testimony has either passed or failed the admissibility standards set forth in Daubert, Kumho Tire, and Rule 702."

So whatever its other merits and demerits, Daubert continues to feed the consultant economy.

Thursday, August 07, 2003

Another Attorney Expert Witness Rebuffed

In United States v. Henry, No. 01-6607 (6th Cir. July 30, 2003) (unpublished), the Sixth Circuit has affirmed the trial court's exclusion of testimony from an experienced Criminal Justice Act attorney, who would have commented on the sentencing benefits that the prosecution's cooperating witnesses could expect to enjoy in exchange for their testimony. The Sixth Circuit concluded that the average juror could understand the testimonial incentives without the need for expert assistance. This continues the millennium's unbroken record of failure, by attorney witnesses, to render an admissible expert opinion in any federal case reaching the appellate level.

Wednesday, August 06, 2003

Drug Dealers Can Be Experts Too, Eighth Circuit Says

The Eighth Circuit has held that a drug trafficker may qualify as a defense expert on the modus operandi of illegal narcotics operations. It was error, says the court, for the trial judge to exclude the testimony based on the judge's appraisal of the witness's credibility, where the testimony satisfied Daubert's criteria for reliability (just as expert testimony for the prosecution on the same subject by narcotics officers is so frequently held to do). Of course, the testimony's exclusion was harmless error.

A summary of the opinion in United States v. Vesey, No. 03-1146 (8th Cir. Aug. 5, 2003), and a link to the opinion, may be found here.

Tuesday, August 05, 2003

Eighth Circuit Upholds Chiropractor's Causation Testimony

Yesterday, the Eighth Circuit upheld the admissibility of a chiropractor's opinion, based on a differential diagnosis, that plaintiff's fall in defendant's grocery store caused plaintiff's degenerative disc disease. A summary of the decision in Kudabeck v. Kroger Co., No. 02-2627 (8th Cir. Aug. 4, 2003), and link to the opinion, can be found here.

Handwriting Analysis Defended

A reader has chimed in to defend handwriting analysis, which is more frequently challenged than some forensic techniques, but not, apparently, with much greater success. According to the reader, the appellate track record of handwriting identification in the Daubert/Kumho era is "spotless."

Saturday, August 02, 2003

Proposed Model Local Rule on Motions Regarding Expert Evidence

It should properly be considered an anomaly, that no Federal Rule of Civil Procedure specifically governs pretrial motions relating to the admissibility of expert testimony. In light of the pivotal importance such motions often assume in the Daubert era, the omission should perhaps be remedied. Some might prefer to languish in procedural uncertainty, but others might prefer to see the rules spelled out with greater clarity. If fairness, due process, and efficiency happened along as an incidental result, who could complain?

As a service to humanity, therefore, I have devoted a lazy summer afternoon to drafting a proposed model local rule, for which I intend to campaign doggedly, until I prevail or the Nation's boredom with the project becomes too obvious to ignore -- whichever shall first occur.

Mind you, despite my flippant tone, I am utterly serious. Something must be done. Why not offer your views, and get in on the ground floor? Click on the link given above, and you'll see how you can offer your comments and suggestions.

Sixth Circuit Nixes Defendant's Criminologist

There is less debate than there should be about whether "criminology" represents an intellectually rigorous field of inquiry whose methods could withstand close Daubert scrutiny. Maybe the polity's seeming goal of zipless incarceration would be frustrated if searching questions were asked. For whatever reason, scrutiny certainly does seem to intensify when such testimony is offered by a criminal defendant. Illustrative is the Sixth Circuit's decision, yesterday, in United States v. Olender, No. 01-2426 (6th Cir. Aug. 1, 2003). Charged with possession of ammunition by a felon, the defendant offered up a criminologist, who proposed to offer his own spin on the police investigation and the significance of the evidence it generated. The district court concluded that fact witnesses with direct personal knowledge bearing on the elements of the crime would do, and also refused to let the criminologist state his views in the form of lay opinion. The Sixth Circuit cursorily upheld the trial court's decision.

Initially, the exclusion of such testimony may seem eminently sensible. Who may be the true owner of ammunition discovered in a household would seem a question falling well within the competence of an average juror, and it probably just introduces confusion, to allow "expert" commentary on relatively uncomplicated factual evidence that jurors can easily interpret for themselves. Still, that line of reasoning does not appear to enjoy much currency, when law enforcement officers testify as experts for the prosecution.

In the Olender case, any error in excluding the defendant's criminological testimony may have been harmless. After the defendant allegedly advised coworkers that he intended to kill his supervisor and several fellow employees, police executed a search warrant at his home, and found:

--Two disassembled FNFAL Steyr assault weapons kits, complete except for a part known as a "receiver."

--A receipt for one of the FNFAL Steyr assault weapons, which indicated the kit was shipped to Kevin Olender, 2312 23rd Street, Wyandotte, Michigan.

--938 rounds of 9-mm ammunition.

--800 rounds of 7.62 ammunition.

--12 high-capacity magazines which accommodated 7.62 ammunition.

--One box of 12-gauge shotgun shells.

--48 high-speed "strip clips" for loading 7.62 ammunition, along with bandoliers for carrying the loaded strip clips.

But the feds charged Olender only after a state jury acquitted him, so maybe there is more reasonable doubt here than meets the eye.

A summary of the Sixth Circuit's ruling, and a link to the opinion, can be found here.

Friday, August 01, 2003

The Impending Obsolescence of Fingerprint Identification

UPI reports that a team of Canadian scientists has invented a method to extract samples of DNA from fingerprints, even if the prints are old and smudged. They also have a method for analyzing the samples inexpensively and quickly (i.e., in as little as fifteen minutes).

Suppose this technology pans out. Then whenever the police have a fingerprint, they will have within their possession the data, and the means, to attempt identification by either of two methods: (a) fingerprint matching; or (b) DNA analysis. Won't the availability of the latter method doom the former?
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.