Unreported 4th Circuit Decisions Involving Dogs Biting Men (part 2)

An earlier post took note of a predictable result reached in an unpublished Fourth Circuit opinion. A reader has responded with a post in the User Forum, noting that although it has a penchant for unpublished dispositions, the Fourth Circuit does not flatly bar their citation. And the reader is correct. Fourth Circuit Rule 36(c) merely emphasizes that the citation of unpublished dispositions is "disfavored."

The reader says he would like to know whether anyone has a hypothesis concerning the Fourth Circuit's especially low publication rate, and how practitioners may be accustomed to coping with it. It is noted that the User Forum permits anonymous postings. ;-)

"Nature" Adopts Financial Disclosure Policy

The New York Times reports in today's edition that the scientific journal "Nature" and its sister publications will begin requiring authors to disclose any financial ties with companies or products that could profit from what the authors write. The new requirements stems from a previous incident in which an author extolled the benefits of antidepressant products in which he had undisclosed financial interests. According to the Times, similar policies are in place at some other journals, such as the New England Journal of Medicine, but far from all.

It seems surprising that rigorous conflict-of-interest rules at scholarly scientific publications are not already prevalent, and it may fairly be considered a chink in a peer-reviewed journal's armor, if they are not.

Dog Bites Man

We're working on macros for two routine entries:

"Appellate Court Upholds Law Enforcement Testimony on Modus Operandi of Drug Traffickers"

and

"Fourth Circuit Affirms Daubert Ruling in Unpublished Opinion"

See United States v. Epps, No. 03-4234 (4th Cir. Sept. 26, 2003) (Michael, Motz, & King, JJ.).

Justice Department Issues Training Manual on Eyewitness Evidence

The DOJ's National Institute of Justice has issued a trainer's manual on procedures to be followed by law enforcement personnel in collecting eyewitness evidence. The manual seems likely to become a reference point for expert testimony on the subject. (Via TalkLeft.)

New Mexico Judge Finds Polygraphy Unreliable

A New Mexico judge, tasked by the NM Supreme Court with assessing whether polygraph testimony should remain admissible in that state, has entered his findings, concluding that polygraphy is scientifically unreliable. (From antipolygraph.org via TalkLeft.)

11th Circuit Upholds Exclusion of Testimony re Collusive Pricing

The Eleventh Circuit has upheld summary judgment in class litigation by wholesalers alleging antitrust violations by cigarette companies. In the course of its ruling, the panel affirmed the trial court's partial exclusion of testimony from wholesaler expert Franklin M. Fisher, who would have opined that certain industry practices supported an inference of collusive pricing. According to the Court of Appeals, Fisher's analysis did not permit him or the trier of fact to distinguish between an unlawful price-fixing conspiracy and lawful conscious parallelism. See Williamson Oil Co. v. Philip Morris USA, No. 02-14037 (11th Cir. Sept. 22, 2003) (Marcus, Wilson, & Restani, JJ.).

PBDE Manufacturers to Public: Stay Calm, We're Looking Into It

ABC News reports that investigators have now measured PBDE's in breast milk from a sample of American women at levels orders of magnitude higher than in other countries where the substance is banned. Mothers should go on breastfeeding, experts say, because the benefits outweigh the risks. Yet alarm in the public health community seems to be growing.

Not to worry, though. Industry spokesmen say they're hard at work on the problem. "As an industry group and as a company we are working with just about any and every scientific group that is doing long-term studies on the safety of these products," says a representative of manufacturer Albemarle Corporation.

That wouldn't be surprising.

How "Speculative" May Expert Testimony Admissibly Be?

In a suit by HMOs to recover medical costs incurred by their members due to misleading cigarette marketing, the Eighth Circuit has upheld the exclusion of an economist's testimony comparing the incidence of health problems in the real world versus a "counterfactual" world in which the cigarette companies didn't conspire to mislead the public. See Group Health Plan, Inc. v. Philip Morris USA, Inc., No. 02-1684 (8th Cir. Sept. 16, 2003) (Arnold, Hansen, & Reid, JJ.). The trial court excluded the testimony as speculative. The appellate panel affirmed but seemed slightly impatient with the idea that "speculation" was necessarily fatal to an expert's testimony: "Although courts cast their assessment of how much speculation is permissible in various verbal forms, their conclusions in cases involving counterfactual estimations essentially come down to this: A certain amount of speculation is necessary, an even greater amount is permissible (and goes to the weight of the testimony), but too much is fatal to admission."

As Judge Arnold's opinion goes on to note, that nostrum may not be too helpful in deciding individual cases. But it's refreshing to see a judicial admission that "speculation" is often an inevitable element of expert opinion.

Malpractice Premiums Not Sparking Physician Exodus, Says GAO

Does free access to medical care require that we raise the bar for expert testimony in medical malpractice cases, lest physicians paying ruinous insurance premiums flee the problem jurisdictions? Some advocates of tort "reform" say yes. But now a GAO study suggests that reports of physician exodus may be be overblown. Indeed, in some states designated by the AMA as facing liability "crises," the number of physicians per capita has actually been increasing. Meanwhile, other investigators have reportedly concluded, based on actuarial study, that payouts have been quite stable since the 1980's, with premiums varying primarily as a function of the state of the economy, rather than the volume of malpractice awards.

Tuesday's Washington Post reports on the GAO findings. The actual GAO report is available here.

Georgia Supreme Court Backs Off on Adopting Daubert

An earlier post discussed the Atlantic Legal Foundation's amicus brief in the case of Orkin Exterminating Co. v. Carder, in which the Georgia Supreme Court had granted certiorari to consider whether Georgia should adopt Daubert. That post drew a response from an interested bystander who had observed oral argument in that case in the Georgia Supreme Court.

That same interested bystander now advises that the court has withdrawn certiorari as improvidently granted. His own post gives links to the news accounts.

Grist for Meditation

Attention, lawyers: Buddhism is good for you, but cell phones make you senile.

Still More on 9/11 Health Effects

Was the Manhattan air safe to breathe after 9/11?

First, there were the immediate EPA reassurances.

Then, when those reassurances were revealed to be baseless, plans were announced for a 20-year study.

Now, via Reuters, we learn of an already-completed UC-Davis study that says the World Trade Center was spewing toxic material "like a chemical factory" for at least six weeks after the attacks -- e.g., fine metals, tiny particles of glass, and sulfuric acid. Conditions for workers at ground zero would have been "brutal," says the lead investigator.

Law Review Piece on Daubert & Child Abuse Cases

Via the Blawg Review, we learn of:

Joëlle Anne Moreno, Einstein on the Bench?: Exposing What Judges Do Not Know About Science and Using Child Abuse Cases to Improve How Courts Evaluate Scientific Evidence, 64 Ohio St. L.J. 531 (2003).

Professor Moreno's work seems likely to prove invaluable for attorneys and judicial officers grappling with medico-scientific evidence in child abuse cases. But practitioners in other fields should take a peek too, if only because of footnote 42, which supplies a handy compendium of decisions from fifty states either adopting Daubert, sticking with Frye, or striking some third course.

Ted Frank on Expert Batting Averages

Over at overlawyered.com, Ted Frank has chimed in, in his reliably thoughtful way, in response to my post of August 30 on expert batting averages.

He is right to suggest that statistical analysis of expert testimony may raise more questions than it answers, and to observe that it is often more illuminating, in searching for explanations, to evaluate each expert's testimony in light of its context in each particular case.

Is Frank also correct to hypothesize that forensic experts and criminalists do better than experts in civil cases partly because prosecutions are state-funded endeavors? Probably so. Moreover, challenges to civil experts by corporate defendants are often well-subsidized too, and that may bring admissibility rates down in civil cases. It is also possible that statistical comparisons are subject to special suspicion here, because different kinds of experts tend to testify in criminal versus civil proceedings. In short, the overall numbers probably tell us very little about the actually operative reasons for case outcomes. In the end, the numbers only point to potential issues, and one must then look deeper.

Still, if one does look deeper and surveys the actual federal appellate decisions, it is hard to shake the impression that on the whole, Daubert scrutiny is less exacting in the criminal context. This could be partly because persons facing incarceration are less likely than litigants facing civil judgments to forgo weak appellate arguments, which would make for a certain tendency to give Daubert arguments short appellate shrift in criminal cases. But my own sense is that a de facto double standard may also be in play, and to me, that possibility warrants further systematic study than it has so far received, in a nation that prides itself on the fairness of its criminal justice system, at least by comparison with regimes elsewhere. It is even possible that in the end, certain kinds of evidence commonly offered in criminal proceedings should in fact be evaluated under different standards from the ones generally employed in civil litigation, if only because different kinds of evidence may require different treatment -- but probably, if we're going to do that, we should be explicit about what the different standards really are.

Frank also ponders various possible reasons why the chances of expert admissibility in civil cases should closely approximate those of a coin flip, and ventures that in the end this may be a coincidental artifact, perhaps partly attributable to a sample that works from appellate dispositions. Again, he may be right. More people should be doing statistical work here. For true though Frank's observation is, that statistical analysis can't easily capture the play of doctrinal considerations in individual cases, it can at least afford clues about trends that may warrant closer investigation. As for the fifty percent civil batting average itself, other students of the problem, working from samples of district court decisions rather than appellate ones, have come up with roughly comparable figures. For example, researchers working under the auspices of the Federal Judicial Center reported in 2002 on a 1998 survey of all active federal district judges, of whom 41% said they limited or excluded expert evidence in their most recent civil trial. And a 2001 Rand study, which analyzed 399 district court opinions issued between January 1980 and June 1999, found, if I'm reading it right, that in civil cases where the reliability of expert evidence was addressed, post-Daubert district courts were finding it unreliable at rates roughly ranging between 60% and 70% (controlling for case type, substantive area of evidence, and appellate circuit).

So if the FJC is right, the prospect for civil experts is not so bleak as my coin-flip numbers had suggested. And if Rand is right, the prospects are even bleaker. The data from both studies, of course, mostly predated the Supreme Court's 1999 decision in Kumho Tire.

P.S. to Ted Frank: Thanks for drawing the Berlyn decision to my attention. That particular fish had somehow eluded my net.

Science and the Internet

Via The Virtual Chase, we learn that scientists at the Fermi and Argonne National Laboratories, along with colleagues from other climes, are designing ways to help the scientific community harness the enormous mass of data that the internet has placed at investigators' potential disposal, if only there were enough time and resources to analyze it all. According to a September 4 article appearing in Tech News World, the scientists plan to build an "international data grid" that would afford worldwide access to terabytes or even petabytes of scientific data, and also to number-crunching resources at the supercomputer level. According to Tech News World, their project is "expected to break the growing stranglehold on scientific breakthroughs now held by countries that can afford to build massive particle accelerators, orbiting telescopes and scientific combines to decipher the human genome." It will lead, says one proponent, to a "democratization of science" -- people doing high-energy physics from Calcutta.

All this may or may not happen, but one issue it raises is whether and to what extent the traditional imprimaturs by which scientific elites confer legitimacy on researchers and their research are (or may become) anachronistic holdovers from the Gutenberg era. If anyone, regardless of educational pedigree and institutional affiliation, can obtain the data, crunch the numbers, and test a pet theory -- if speed-of-light access to information now permits a thousand scientific flowers to bloom, and a hundred schools of thought to contend -- will slower-moving scientific elites lose their status as ultimate arbiters of legitimacy? Or will an unmanageable flood of scientific "information" make them all the more important?

Fifth Circuit Upholds Exclusion of Expert on Securities Law

In a published opinion released Friday, the Fifth Circuit upheld the exclusion of expert testimony from a lawyer and securities expert, offered on behalf of the defendant in a criminal securities fraud case. See United States v. Tucker, No. 02-41104 (5th Cir. Sept. 5, 2003) (Wiener, Barksdale, & Furgeson, JJ.). The expert's qualifications were free from doubt, and in the main, his testimony was not challenged for alleged want of accuracy. For the most part, it was simply held to be unhelpful to the jury on various grounds.

The trial court's Daubert ruling appears to have been the primary point raised by the defendant on appeal. Counting the decision in Tucker, attorney witnesses are batting 0-for-7 in federal appellate decisions since January 1, 2000.

More on 9/11 Health Effects

As noted previously in this space, EPA's post-9/11 reassurances that the Manhattan air was safe to breathe turned out to be badly wanting in scientific foundation. It now transpires that in two decades' time, we may know whether EPA's unfounded claims were accidentally accurate. Newsday reports that the NYC health department, with funding from FEMA and help from CDC and ATSDR, has established a health registry, in which it wants everyone to enroll if they spent even "moments" downtown in the wake of the World Trade Center attacks. The hope is to enlist 200,000 registrants and track their medical situations over twenty years.

In some Afghanistani cave, Al Qaeda's lawyers must be preparing the statute-of-limitations brief even now.

More on Polybrominated Diphenyl Ethers

An earlier post took note of California's decision to ban fire-retardant PBDE's, and speculated that concern over their health risks might escalate in other venues. Now CBS News has picked up on the story. New studies apparently suggest that PBDE exposures may place unborn children at risk.

Firefighters, meanwhile, are piping up to say that the risks of death and injury from fire should also weigh in the balance. All very well and good, perhaps, in a simple risk-utility analysis. But what about allowing consumers to balance the relevant risks themselves? In other words, what about warning labels?

Warning labels have been grist for expert evidence in a few cases, but no clear and detailed standards for such testimony have emerged, and at least one commentator has wondered aloud whether the Daubert factors are really well-suited for the evaluation of such evidence. Some courts, forced to do their best, have felt it relevant to inquire whether the expert has himself drafted product warnings. See, e.g., Anderson v. Raymond Corp., No. 02-3393 (8th Cir. Aug. 13, 2003). But it may be doubted whether such experience can appropriately be demanded. Without knowing much about this niche in the American economy, one supposes that warning labels are commonly drafted by some combination of industry stalwarts and industry-retained attorneys, which would suggest that active practitioners in the warning-label-writing game may systematically tend to share certain biases. Meanwhile, there are situations where nobody has ever drafted a warning label, because the products that allegedly should bear one never have.

What, then, would qualify some expert to opine on whether products containing flame-retardant PBDE's should carry a warning, and what that label should say? Should this really be a matter of expert testimony at all, except for expert opinion about the underlying risks themselves?

Federal Circuit Says Exclusion of Expert Doesn't Nix Damages in Patent Claim

The ways of patent law are largely a mystery to your humble reporter, but that does nothing to stifle his desperate wish to comprehend.

By statute, the trial court is apparently required to assess damages against a patent infringer, in an amount not less than a reasonable royalty. In a jury trial, the court is even required to award such damages if the jury itself fails to do so (a procedure that wiser and more knowledgeable persons than myself have perhaps determined to be consistent with the Seventh Amendment). Whatever those statutory directives may mean, can they be circumvented by simply excluding the expert testimony offered to prove damages? Not necessarily, according to the Federal Circuit, which issued a decision yesterday reversing a trial court for refusing to award infringement damages in a bench trial after the trial court barred testimony from the patentees's damages expert. See Dow Chem. Co. v. Mee Indus., Inc., No. 03-1117 (Fed. Cir. Sept. 5, 2003) (Clevenger, Bryson, & Dyk, JJ.). The Court of Appeals did not reverse the Daubert exclusion, which the patentee had not even challenged on appeal, but rather held the district court to have erred in refusing to evaluate damages based on other record evidence. The panel relied in part on statutory language stating that the trial court "may" receive expert evidence on damages, concluding that the permissive statutory "may" implied the negation of "must." The statute, that is, imposes no general requirement that the patentee prove infringement damages through expert testimony, according to the ruling. The panel was careful to say that a patentee has no ground for appeal if the failure to award damages is attributable to the patentee's own failure to put on any satisfactory damage evidence whatsoever. But apparently, once such evidence is produced and admitted, whether from experts or otherwise, the trial court must issue a judgment in which that evidence is afforded at least some weight in light of controlling patent law standards for infringement damages -- at least if no contrary evidence is offered to support a different and lower award.

Dow Chemical v. Mee Industries was a mixed case, involving both expert and non-expert evidence, and no jury was involved. The claims were adjudicated in a bench trial. In such cases, it may be felt that no intolerable collision arises between Daubert, on the one hand, and the seeming requirement that the patentee's evidence on damages be afforded some weight (absent contrary evidence), on the other. In the common run, much of the information on which a damages expert would rely is likely to be admissible, independently, as garden-variety fact evidence, and that may leave significant room for appellate supervision of judicial damage awards, even when the trial court approaches the limit of sound discretion in excluding the expert's testimony under Daubert.

But what of cases where damages are supported only through expert testimony, or where expert opinion is essential to their reasonably accurate calculation? If the point of reference for such calculations is a "reasonable royalty," such occasions would seem likely to arise with some frequency. Does the patent statute arguably establish a more tolerant standard for expert testimony than the one supplied by Daubert and Kumho Tire in such circumstances? And does it arguably impose a more stringent standard of judicial review than Joiner's "abuse of discretion standard"? Or can the patent statute's command be effectively disregarded, whenever a district judge would have discretion, under Daubert and its progeny, to decide the admissibility of the expert testimony either way? Should the district court perhaps be required to appoint an expert of its own, in cases where expert testimony is indispensable and the parties' experts haven't done the job?

And what of cases that do involve juries? Among other conundrums, does this whole regime not leave room for at least the abstract possibility that the trial judge will exclude expert damage testimony, precipitating a no-damage verdict, and then end up being compelled to award damages itself, based on the very same information that the rejected expert evaluated? If the trial court does this, is its own damage award subject to any reliability analysis? Should it be? How would that work?

Maybe someone who does comprehend patent law can shed light. Your humble reporter's own analytical abilities have reached their limit here.

DEA Agents Know Marijuana When They Smell It

Some evidentiary objections are doomed from the start. Yesterday, the First Circuit upheld lay opinion testimony from a DEA agent who said he smelled marijuana during a search. See United States v. Santana, No. 02-2697 (1st Cir. Sept. 3, 2003) (Boudin, Torruella, & Baldock, JJ.). The panel ruled that the agent's opinion was grounded in his personal knowledge, as Rule 701 requires, and that expert testimony was not required on this point. What, one wonders, were the defense lawyers expecting?

Third Circuit Upholds Testimony re Drug Jargon

In an unpublished opinion issued Thursday, the Third Circuit upheld the admissibility of a narcotics agent's testimony that certain language used in defendants' recorded telephone conversations was drug jargon. This is, of course, the usual result. The surprising thing is that the Court of Appeals characterized it as a "close question" whether the testimony was helpful to the trier of fact. More searching inquiry was apparently unnecessary, because any error was held to be harmless.

Laudably, the Third Circuit makes even its nonprecedential decisions available on the internet. See United States v. Bennett, No. 01-3412 (3d Cir. Aug. 29, 2003) (Scirica, Rendell, & Ambro, JJ.).