Harry Potter and the Bottle of Aspirin

The people at overlawyered.com aren't going to like this. But if your child has persistent headaches, there's peer-reviewed literature suggesting that reading too many Harry Potter books may be the cause. And J.K. Rowling is rumored to have deep pockets.

Is It Laci Peterson's Hair?

The preliminary hearing in the Laci Peterson murder trial is underway. According to a Reuters story, defense counsel spent Thursday trying to exclude testimony from Constance Fisher, an FBI forensic scientist, about a single strand of hair found on a pair of pliers in Scott Peterson's boat. The defense lawyers say that the mitochondrial DNA testing that Fisher employed is less reliable than nuclear DNA tests. They also argue that Fisher should have compared the hair sample to DNA from Laci Peterson's body, instead of with a hair sample from Laci Peterson's mother. Fisher says the test is reliable and the sample was appropriate.

Is this just another example of clever lawyers launching desperate and sophistical attacks on DNA evidence during high-profile trials in California courtrooms? The Denver District Attorney's office has collected a number of judicial decisions on the admissibility of mitochondrial DNA tests.

Update: Here's the LA Times story. Meanwhile, a reader has written to ask a procedural question about admissibility proceedings in California preliminary hearings. Any takers?

Daubert on a Budget

Are you a small firm practitioner litigating a Daubert motion? Do you need to keep close watch on your research expenses? Stop by Walmart.

Terry Schiavo and the Limits of Expertise

It is natural, when confronted with heart-wrenching choices, to seek the counsel of others. And if a patient with a damaged brain is unable to make her own medical decisions, it is natural to seek such counsel from physicians. Anyone charged with life-and-death decisions about a loved one would want to know whether the patient is aware, can think and feel, can see and hear, can experience pain or pleasure. What do the medical experts say?

In the case of Terry Schiavo, the neurologists, as a group, would probably conclude that enough is enough, acording to a report in today's New York Times. Patients in persistent vegetative states, according to the Times's summary of the neurological criteria, do not "show self-awareness, comprehend language or expressions, or interact with others."

This sounds like something a doctor would say to explain to a relative that the patient's occasional apparent responsiveness was probably illusory. But it also sounds disturbingly like a description of many practicing attorneys. What seems missing, from all the neurological pronouncements, is a Sherman-like statement that consciousness is absent. In fact, on closer inspection of the medico-scientific colloquy, the question just seems to grow more and more ambiguous. One neurologist, for instance, is quoted as characterizing vegetative-state patients as in a condition of "wakefulness without awareness." If this is intended as a translation of neurological lore into helpful lay language that would dispel the uncertainties, perhaps the neurologist should give it another try. Other physicians seem to want to focus on the patient's chances of recovery -- but this seems to beg the question, because amputees don't recover either, yet we don't stop feeding them.

What the doctors should be saying, perhaps, or at least adding, is that medical science doesn't possess the answers to many of the truly central questions here. What is it to be a person, whose life is worth preserving? What is it to be conscious, to be aware? What should count as evidence, that a person understands a kiss or a caress? There may be medical facts that would inform a judgment on these questions. But the ultimate answers aren't medical or scientific. They have ethical and philosophical and humanistic dimensions not amenable to experimental test.

That is why Dahlia Lithwick has it right. Where the patient cannot make or articulate decisions about her care, the law needs to identify one single undisputed decision-maker, and for married people, there is no real choice but to make that person the spouse -- who will usually obtain medical advice and give it the appropriate weight in a decision also based on knowledge of, and compassion for, the patient as a person. If we start creating exceptions, so that all the interested parties may involve themselves with the same ease as in a probate dispute, we will inflict cruelty on all concerned, and end up with decisions based on litigation, expert testimony, and motions in limine. We need to solve fewer important problems that way -- not more.

Fourth Circuit Affirms Exclusion of Testimony Linking Cell Phones with Cancer

The Fourth Circuit has affirmed a lower court decision excluding the testimony of an epidemiologist who posited a causal link between radiation from cellular telephones and malignant brain tumors. Acording to the court, the epidemiologist's report supported only a link with benign tumors, and failed to demonstrate a dose-response relationship. See Newman v. Motorola, Inc., No. 02-2424 (4th Cir. Oct. 22, 2003) (unpublished) (Widener, Michael, & Shedd, JJ.).

Sex Experts Frustrated by Daubert Ruling

We at blog 702 have limited ourselves to the general topic of expert evidence, and so we seldom have the opportunity to regale our readers with anything very titillating. Daubert being a dry subject, we are generally forced to watch in silent and jealous petulance as blawgs of broader topical scope offer seductive commentary on subjects with more sex appeal -- subjects like Kobe Bryant or the constitutional right to engage in sodomy.

Oh, yes, it would be nice, sometimes, to flash readers our best come-hither look and blog salaciously about matters of . . . of wider cultural interest. But it would be wrong. Expert testimony is deadly serious business, and this is no place to pander to baser human appetites.

On then with our dreary business. In a short and unpublished opinion, the Ninth Circuit has upheld the district court's exclusion of testimony from two putative experts on the swinging lifestyle. See Recreational Developments of Phoenix v. City of Phoenix, No. 02-16890 (9th Cir. Oct. 17, 2003). The underlying record is so veiled, in the Ninth Circuit's opinion, that it might as well be wearing a burkha. But luckily, the scandalous details can be gleaned from the district court's opinion in Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F. Supp. 2d 1054 (D. Ariz. 2002).

Our story begins with Phoenix enacting an ordinance that forbade the operation of businesses providing an opportunity to view, or engage in, live sex acts. The owners and patrons of certain social clubs catering to the swinging lifestyle sued to enjoin enforcement of the ordinance. In furtherance of their crusade to uphold the constitutional right to swing, the plaintiffs offered two experts. The district court excluded the opinions of both, and awarded summary judgment to the city.

Plaintiffs' first expert, the holder of a doctorate in some unidentified subject, appears to have devoted his professional life to the study of matters carnal. E.g., his vitae reflected his presumably painstaking review of "over 2,000 anonymous self-analyses from [his] Human Sexuality courses." This expert sought to opine that swingers so conduct themselves as to minimize the risk of STD contagion. However, his testimony suffered from methodological flaccidity and was, by the expert's own admission, "primarily antidotal." These, in the district court's view, were fatal infirmities.

The second expert came from a discipline whose grasp of tawdry sexuality was beyond question. He was a journalist. But this expert too was faulted for want of methodological rigor. According to the district court, "[the witness] nowhere sets forth his plan of investigation, data collection, or analysis. For example, [he] reports the results of his 'inspection' of Plaintiffs' clubs, but gives no indication of when he visited them, how often, and whether the owners had notice of his visits. At a minimum, it would be useful to know whether [the witness], an investigative journalist, identified himself to Plaintiffs as a reporter or operated under cover."

We can't improve on that tag line.

Mississippi Supreme Court Embraces Daubert, Rejects Frye

Earlier this year, Mississippi amended its state evidentiary rule on expert testimony to conform to Fed. R. Evid. 702, as itself amended in light of Daubert and Kumho Tire. The other shoe has now dropped, in an 4-3 opinion from the Mississippi Supreme Court expressly holding that the rule change signals the state's adoption of Daubert and abandonment of Frye. See Mississippi Transp. Comm'n v. McLemore, No. 2001-CA-01039-SCT (Miss. Sup. Ct. Oct. 16, 2003).

The Future of the Present

Learning from a post at overlawyered.com that American Lawyer/Corporate Counsel is running a multi-article series on the "Future of Litigation," we paid a visit and took a peek at the article on the current state of the Daubert wars, entitled "Inexact Science."

The piece concludes that with defense lawyers now filing Daubert motions reflexively, plaintiffs may find it increasingly difficult to locate counsel willing to face the expense and uncertainties of expert-intensive litigation.

Could happen.

"Probative" and "Fundamentally Fair"

The Seventh Circuit has affirmed the admissibility of a forensic document examiner's opinion, in immigration proceedings, that a document of ostensibly Ethiopian origin was forged. The court's opinion in Gebrendrias v. Ashcroft, No. 02-4254 (7th Cir. Oct. 14, 2003), is unpublished, but a summary is available here. The parties' briefs are also available at the Seventh Circuit's site, even though the opinion itself isn't.

The Ethiopian woman seeking asylum argued on appeal that the testimony of the government's forensic expert failed to satisfy Daubert, but the Seventh Circuit rejected that argument on the ground that traditional evidentiary rules do not apply in immigration proceedings, where admissibility depends only on whether the proffered evidence is "probative" and "fundamentally fair." Having so held, the opinion does go on to perform a detailed analysis of the expert's testimony, and the reader comes away with the feeling that admissibility would have been upheld even under Daubert and Kumho Tire. The witness was highly experienced and well-qualified, his analysis was detailed and convincing, and (to judge from the Seventh Circuit's opinion) the appellant's attack on it was weak. And so maybe the choice of evidentiary standards didn't govern the result in this particular case.

All the same, two questions seem worth asking. First, it seems likely that a relaxation of normal evidentiary standards in immigration proceedings would rest largely on the difficulty that the petitioners may have in securing non-hearsay evidence, with key witnesses and documents frequently located far away, in the petitioner's country of origin. That, by itself, would seem a fairly weak basis to relax the evidentiary requirements when live expert testimony is actually proffered. In particular, when the United States offers such testimony, no obvious reason appears for failure to insist on its reliability, under whatever standards are used to weigh reliability more generally. Indeed, there are strong arguments that if anyone is to be barred from reliance on dubious evidence, the first litigant to be barred should be the sovereign.

But second, one is moved to wonder whether it might be a workable standard to govern the admissibility of expert evidence in general, to insist only that it be "probative and fundamentally fair." If an expert's opinion satisfies these two requirements, can there be persuasive policy grounds to exclude it nevertheless?

Update: Divided FDA Approves Silicone Breast Implants

The FDA has reapproved silicone breast implants by a 9-6 vote. Here's Gina Kolata's NYT report. The approval is contingent on education of surgeons and patients, and on continued monitoring of women who receive implants.

One is sniffing involvement by litigators in forging this grand design. If frequent complications spark new litigation, will all this "education" help insulate the manufacturer from liability? If that's the plan, it just might work -- at least if the notion of informed consent is observed in fact and not merely in form.

Update: Trial Judge Excludes IBM's "Corporate Mortality File"

To follow up on an earlier post, the San Jose Mercury News reports that the trial judge in the pending toxic tort action against IBM in Santa Clara has ruled that IBM's "corporate mortality file" will be inadmissible, because irrelevant and not helpful to the trier of fact.

Divided 10th Circuit Panel Affirms Admissibility of Toxicologist's Causation Testimony

Over Judge Hartz's vigorous dissent, a Tenth Circuit panel has published an opinion affirming a trial court ruling that admitted causation testimony from a well-known toxicologist. See Goebel v. Denver & Rio Grande Western R.R., No. 02-1391 (10th Cir. Oct. 9, 2003) (Kelly, Henry, & Hartz, JJ.).

The decision is interesting on a number of levels. First, the toxicologist was Dr. Daniel T. Teitelbaum, a frequent expert witness who may fairly be called a veteran in the Daubert wars. It was testimony from Dr. Teitelbaum that was at issue, e.g., in General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Second, the case involves an unusual fact pattern. We start with a train breaking down in the Moffatt Tunnel, which crosses the continental divide in Colorado at an altitude over 9000 feet above sea level. A locomotive engineer went out to inspect the train and was exposed to concentrated diesel fumes in the tunnel. Almost immediately, he developed a headache and experienced nausea and tightness in his chest. He received prompt treatment following the incident, but was later diagnosed with cognitive deficits and other symptoms, for which he sought compensation from the railroad in a suit under FELA. Dr. Teitelbaum opined that the engineer's condition resulted from the combination of altitude and respiratory irritants experienced by the engineer in the tunnel.

Third, the case involves an unusual procedural history. A jury awarded $755,000 to the engineer, but that verdict was vacated in an earlier appeal, and the case remanded for a new trial, because the record reflected no Daubert analysis whatsoever by the trial court. See Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000). On remand, the district court conducted a Daubert analysis and ruled Dr. Teitelbaum's testimony admissible. To expedite proceedings, the parties stipulated to the prior verdict, with the railroad reserving the right to appeal from the new Daubert ruling. This represents an interesting solution to the diseconomies of retrial that might otherwise have confronted the litigants under such decisions as Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir. 2003), and Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended on denial of rehearing en banc, 319 F.3d 1073 (9th Cir. 2003).

Fourth, the case involves the recurring battleground issues of differential diagnosis and generic versus specific causation.

Fifth and finally, and perhaps most intriguingly, the majority and dissent part company partly over which party bears what burdens in a Daubert challenge. Judge Kelly's majority opinion says: "In cases such as this one, where one party alleges that an expert's conclusions do not follow from a given data set, the responsibility ultimately falls on that challenging party to inform (via the record) those of us who are not experts on the subject with an understanding of precisely how and why the expert's conclusions fail to follow from the data set. Any failure by the challenging party to satisfy this responsibility is at that party's peril."

But Judge Hartz's dissent says: "The majority opinion fails to take the correct approach. It makes good arguments that the medical literature cited by Defendant does not prove Dr. Teitelbaum's opinion to be wrong. The test is not, however, whether Defendant can prove Dr. Teitelbaum's opinion is wrong. The test is whether there is adequate scientific support for Dr. Teitelbaum's opinion."

The law recognizes burdens of production and persuasion, but here the bone of contention does not seem to involve either of those relatively well-defined concepts. The issue here seems to relate more to analytical burdens in the realm of advocacy -- i.e., whether it is the challenging party who should first "point" to an assertedly impermissible gap in the expert's inferences, or the proponent who should first bear some prima facie argumentative burden of demonstrating the nonexistence of any such gaps. That topic has not been much explored in the decisional law. Of course, even in litigation, there aren't hard-and-fast rules for absolutely everything. For some things, there are just rules of thumb -- e.g., if you're objecting to the admissibility of testimony, try to offer a clear and convincing explanation of your objection.

Breast Implants Mount Comeback

Gina Kolata writes in Saturday's New York Times that the FDA is considering rescinding its ban on silicone breast implants. Inamed Corporation, which wants to sell the implants in the United States, is lobbying for the change, citing numerous studies negating claims that the implants lead to cancer, lupus, and other serious disease.

Lost in that debate, some critics say, is the real risk of other complications. The FDA has a web page devoted to these, complete with photographs that should not be viewed by the timid. Some numbers from the NYT article: Inamed's own two-year study showed 7.5% of its implants had to be removed or replaced. FDA data show a quarter of all implants rupturing within twelve years; 55%, within sixteen.

Let's leave aside women with a legitimate medical need for breast reconstruction, and consider instead the most prevalent use of the implants -- viz., to get bigger breasts. Given the absence of real medical utility in the vanity-implant context, can any device resulting in such a high rate of complications fairly be considered safe? There is no value-free scientific answer to that question, and it may boil down to a political question -- viz., how far we want the FDA to protect consumers from themselves. Ours is a free nation, and we do permit its inhabitants to do many risky and even self-destructive things. On the other hand, the allure of large breasts has been known to overwhelm sound judgment.

News Reports re Red Sox Victory Fail Daubert Scrutiny

Various news organizations are reporting today that the Boston Red Rox defeated the New York Yankees in the opening game of the American League championship series, by a score of 5-2. These reports are an example of how even respectable sports "journalists" can bamboozle the public by piecing together superficially plausible stories based on purely anecdotal data. Such "news" accounts may hold sentimental appeal, but a rigorous evaluation of the facts, in light of Daubert, demonstrates why these reports should be disregarded.

1. Has the theory in question been tested?

This factor, by itself, would be decisive. In numerous experimental trials, the hypothesis that the Red Sox can win an important post-season game has been repeatedly falsified. (See Buckner 1986.) Although scattered anecdotal reports of Red Sox victories in post-season play can be found in the literature, these are probably attributable to observational error. At best, they represent statistical outliers. For example, working from a sample of World Series games in which the Red Sox have participated in the past fifty years, the probability of a Red Sox victory in any given post-season game of importance would rise no higher than .429. Even that figure must be considered an over-optimistic appraisal, since the sample is intrinsically biased in favor of seasons in which the Red Sox possessed sufficient talent to claw their way to an American League pennant. Over the same period, meanwhile, the Yankees boast a .598 success rate in World Series play. Plainly, any sports writer contending that the Red Sox have won a significant post-season victory should have the burden of proof by a preponderance of the evidence. And the numbers don't lie. Based on any fair and neutral assessment of the historical and statistical data, it must be reckoned "likelier than not" that the Yankees won last night's game -- probably in a ninth inning comeback sparked by a Boston fielding error.

2. Has the theory been subjected to peer-review and publication?

Isolated reports in the popular press scarcely form a reliable basis for so implausible a conclusion as a Game 1 victory by the Red Sox in the Yankees' home park. The journalists claiming a Red Sox win offer no citations supporting their conclusions from respected peer-reviewed journals such as The New England Journal of Medicine, or Lancet.

3. What is the known error rate?

As any longstanding student of this problem is aware, the error rate is high. (See Buckner, op cit.)

4. Is the theory generally accepted?

Based on decades of study and analysis, the Curse-of-the-Bambino Model enjoys almost universal acceptance among experts in the field and has amply demonstrated its strength as a predictive heuristic. Any suggestion that the Red Sox wrested the home field advantage from the Yankees in the series opener, in a game where Pedro Martinez did not throw a single pitch, flies in the face of that settled paradigm.

The Science of Mold

The Insurance Defense Blog has this post on a collection of information about indoor mold hazards compiled as a class project at the University of Minnesota. Your humble investigator has encountered little Daubert jurisprudence on this subject at the federal appellate level. But surely it's coming.

IBM Moves to Exclude Epidemiologist's Analysis of Its "Corporate Mortality File"

Reuters reports on an impending motion in limine by IBM in a California lawsuit brought in Santa Clara Superior Court by two former employees who claim that hazardous chemicals at the workplace caused their cancers. The employees retained Boston University epidemiologist Dr. Richard Clapp to analyze IBM's "corporate mortality file," which collects health records and information for 30,000 IBM employees over a 30-year period. Dr. Clapp's findings show a higher than normal incidence of cancer. IBM calls the records incomplete and says they do not link health outcomes to any chemical. It also says that Dr. Clapp's analysis is scientifically flawed.

This is sure to be a recurring battle, with similar health claims against IBM pending on behalf of over 200 workers in three separate states.

PA Endorses Pretrial Competency Hearings for Child Molestation Cases

As we learn from a Philadelphia Inquirer report, the Pennsylvania Supreme Court ruled last week that pretrial competency hearings are appropriate, where charges of child molestation rest on the testimony of young children, and where the defendant can make a preliminary showing that the child's memory may have been tainted by improper interview techniques. Expert testimony may be entertained at such hearings, the court said, in the sound discretion of the trial judge.

Justice Cappy's majority opinion in Commonwealth v. Delbridge is available here; Justice Nigro's dissent, here; Justice Eakins concurrence and dissent, here.

7th Circuit Reverses Exclusion of Handwriting Expert

In a lengthy opinion, the Seventh Circuit has reversed a trial court's decision excluding the testimony of a handwriting expert who opined that a signature was genuine. See Deputy v. Lehman Bros., Inc., No. 02-4305 (7th Cir. Sept. 29, 2003) (Bauer, Manion, & Evans, JJ.).

1st Circuit Upholds GP Testimony on Standard of Care in Medmal Case

An abortion clinic performed a suction curettage procedure intended to terminate a woman's pregnancy. However, the clinic's examination had failed to detect that the pregnancy was ectopic, and the procedure failed to terminate it. Two weeks later, the woman, who was experiencing acute abdominal pain, made her way to a hospital emergency room, where the remains of a ruptured ectopic pregnancy were removed. In her malpractice suit against the abortion clinic, the woman offered testimony from a general practitioner to show that the clinic had failed to satisfy the prevailing standard of care during the examination that missed the ectopic pregnancy. Defendants objected that the GP was unqualified to opine on the relevant standard of care, because he was neither a gynecologist nor an obstetrcian.

The First Circuit has now upheld the trial court's ruling admitting the GP's testimony. See Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, No. 02-2359 (1st Cir. Sept. 29, 2003) (Linch, Lipez, & Howard, JJ.).

The Strange Case of Saami Shaibani

Court TV and the Raleigh News & Observer both have stories on the disqualification of Saami Shaibani, a physicist and prosecution expert in the highly publicized Peterson murder trial pending in Durham.

The state had offered Shaibani's testimony to show that Kathleen Peterson could not have suffered her fatal injuries in a fall down the stairs, as her husband, the defendant, claims. The bases for Shaibani's opinion included tests in which volunteers were asked to fall down stairwells. But that methodological oddity is not the reason that Shaibani's testimony came to grief. The problem was that Shaibani apparently padded his vitae. Defense counsel produced a letter from officials at Temple University, where Shaibani claimed a research affiliation. Temple disclaimed any current affiliation with Shaibani, and apparently has written similar letters before, when Shaibani -- an inveterate expert witness who seems to have made the dismantling of falling-down-the-stairs defenses something of a specialty -- made similar claims. The judge in the Peterson case concluded that Shaibani had perjured himself about his qualifications, and instructed the jury to disregard his testimony.

Shaibani's links to Temple, it should be noted, were not fabricated from whole cloth. According to the university, he did hold a "courtesy appointment" from 1995 to 1998, though it carried little more than parking privileges. Nor does it appear that any Temple appointment would have been necessary to qualify Shaibani as an expert. He is currently on the faculty at Virginia Tech, and claims to hold advanced degrees from Oxford University. This appears to have been a garden-variety case of truth-stretching, of the sort that might be undertaken by any expert witness with a death wish.

So tell your experts to go over their vitae and make sure they haven't inadvertently embellished. As this parable illustrates, the arcane distinctions between Frye and Daubert matter little, in such circumstances, because judges everywhere frown, uncontroversially, on perjury.