FDA Bans Ephedra

Today's NYT reports on the Food and Drug Administration's issuance of a consumer alert advising that "dietary supplements containing ephedra present an unreasonable risk of illness or injury, and should not be consumed." The FDA has sent letters to manufacturers advising them that FDA intends to promulgate a final rule that will ban sales of ephedra, effective 60 days from its publication.

The FDA is particularly emphatic about the strength of its evidence that ephedra is unsafe. According to the agency's consumer alert: "[T]he FDA gathered and thoroughly reviewed a prodigious amount of evidence about ephedra's pharmacology; clinical studies of ephedra's safety and effectiveness; newly available adverse events reports; the published literature; and a seminal report [summarized here] by the RAND Corporation, an independent scientific institute. The FDA also reviewed tens of thousands of public comments on the agency's request in February, 2003 for information about ephedra-associated health risks." Some of that evidence is discussed in an FDA White Paper issued in February 2003.

To date, ephedra has been blamed for some 155 deaths, nationwide. "The time to stop taking this product," says HHS Secretary Tommy Thompson, "is now."

Expert Testimony on False Confessions

Via TalkLeft, we learn of Steve Chapman's column advocating the admissibility of testimony on false confessions.

Appraising the "Costs" of Litigation

As the proprietors of overlawyered.com have somehow failed, so far, to mention, the National Law Journal is reporting on a study assessing the annual "costs" of the "U.S. Tort System" for the year 2002 at $233 billion, or 2.23% of GDP, or $809 per American inhabitant. Some commentators have called this the equivalent of a 5% national sales tax. The study was performed by the actuarial firm of Tillinghast-Towers Perrin, which "provides actuarial and management consulting to financial services companies." That firm has posted a summary at its website.

As someone whose income derives entirely from litigation transaction costs, your humble reporter was naturally moved to investigate further, in the effort to determine why he himself had not received a larger share of this sum. As someone who maintains a website and a weblog about expert evidence, he was also curious to discover what proportion of this figure might be attributable to costs associated with expert testimony and motion practice relating thereto.

But the study, it transpires, is not primarily about litigation transaction costs at all. Indeed, the study's authors say they did not even attempt to estimate "costs incurred by federal and state court systems in administering actual suits" -- the figure that some literal-minded readers might naturally equate with the "cost" of the "U.S. Tort System." The study's estimate does include values for some transaction costs: plaintiffs' "attorney fees" (an estimated 19% of the total); defense "costs" (14%); and "administration," which is apparently the study authors' term for insurance company "overhead" (21%). But the largest component of the "costs" reported in the study is the actual dollar value of damage awards and settlements (46%).

All these numbers, apparently, come from insurance company data on payments under liability policies -- a category that the study treats, somewhat misleadingly, as essentially synonymous with payments involving "torts." There is room to quibble, at the margins, about how reliable those data may be. But what should not be lost, in those quibbles, is the questionable legitimacy of even counting judgments and settlements as "costs" of the "U.S. Tort System." No doubt they are "costs" from the viewpoint of the insurance companies who pay the claims, and from whom TTP derives consulting income (as are insurance company profits, from the viewpoint of businesses and consumers footing the bill for the premiums, although the study fails to mention this). But to claimants, and from the standpoint of the judicial system, damage awards and settlements aren't "costs." They are compensation for legal injury, through which plaintiffs who have suffered an antecedent loss are made whole by the persons who caused the loss -- or at least, in the case of settlements, by defendants who elect not to contest the matter in court. In that sense, they are mere transfers of wealth, which do not necessarily equate to costs to the economy as a whole. No doubt there is some economic sense in which some share of these payments is born by consumers, so that accident victims, for example, won't be left to bear that entire burden themselves. But a comparable consumer burden would exist in a world where consumers insured themselves against the relevant harms. It's just that in the latter world, there would no longer be any temptation to chalk up the costs to the "U.S. Tort System." We'd speak instead of the cost of accidents. Or perhaps, if we allowed subrogation, we'd speak of the costs of tortious misconduct.

To put the point another way, we can think of the "costs" of settlements and judgments as having been incurred in the course of litigation, but it may be more legitimate to think of them as incurred before the "U.S. Tort System" ever gets involved, at the moment that tortious conduct inflicts legal injury.

What about the study's conclusion that only 46% of all these "costs" go to actual claimants? The study's authors cite this as evidence that the "U.S. Tort System" is inefficient. That may well be true, but the authors' math doesn't necessarily establish the point. For one thing, from the authors' description of the data, it appears that defense costs for all claims are included, whether the claimants prevailed or not. That is, the study apparently does not offer a separate estimate of defense costs associated with claims actually paid, in whole or in part. This is no small matter, because defendants' attorney's fees and insurance company "overhead" make up 35% of the total "costs" estimated by the study, and 65% of the transaction costs -- and presumably the study's authors would not wish to count it as an inefficiency, whenever some plaintiff's claim is defeated. At least they probably wouldn't say that aloud.

More fundamentally, however, and even if we suppose the study's figures to be well-conceptualized and accurate, the study's authors do not compare the transaction costs in the "U.S. Tort System" to those that are or would be incurred in any alternative system for resolving civil disputes. They also fail to reckon with the possibility that measures to reduce transaction costs, in any such alternative system, would work injustice. The Supreme Court's Daubert decision, for example, has certainly done its share to escalate those costs. But the defense bar seems to regard this as a small price to pay, for what they conceive to be fairer results -- and nobody calls this the "Daubert tax."

7th Circuit Upholds Fingerprint Testimony in Unusual Context

The Seventh Circuit has published a decision upholding the testimony of an ATF fingerprint expert. See United States v. Bowman, No. 02-4387 (7th Cir. Dec. 23, 2003) (Posner, Kanne, & Evans, JJ.). What makes the decision unusual is that the ATF expert, who testified for the prosecution, did not match any prints to the defendant, nor indeed to any human being at all.

The defendant in Bowman was charged with unlawful possession of a firearm by a felon. At trial, the issue of possession hinged (or probably should have hinged) primarily on witness credibility. Two police officers had stopped the defendant's vehicle after observing it in an alley, being driven without headlights, in the dark. The defendant's driver's license had expired, and so the police arrested and searched him. The arresting officer testified at trial that during the search, he discovered a handgun in the defendant's jacket pocket, removed it, and made it "safe" by removing the mazagine from the gun and a bullet from its chamber. The arresting officer's partner, who witnessed the arrest, corroborated that testimony. The defendant offered testimony from three family members and friends who also observed the arrest, and who testified that no gun was retrieved from the defendant.

So far, so good. But the prosecution also called an experienced ATF fingerprint expert, who testified that he recovered a latent palm print and thumbprint from the gun. The expert said neither print belonged to the defendant, and that neither had been positively identified. The prosecution then asked the expert whether the location of the thumbprint on the gun was consistent with someone making the gun "safe." Over defense counsel's vigorous objection, the expert was permitted to testify that it was. Defense counsel mounted a vigorous cross-examination, but the jury convicted.

On appeal, the defendant argued that although the ATF agent's expertise in fingerprint identification was unchallenged, he had not been qualified as an expert in gun handling, and that his opinion on the origin of the print was not founded on reliable methods and data. The Seventh Circuit opinion gives short shrift to this argument, in light of the expert's experience, over a 37-year career, in analyzing prints on thousands of weapons, and the witness's ability, on the stand, to demonstrate his familiarity with the weapon and the process of making it "safe."

The defendant's stronger argument, relegated in the Seventh Circuit's opinion to a footnote, may have been that the testimony was more prejudicial than probative. After all, the testimony tended to show, at most, that some human being may have removed the gun's magazine, and/or a bullet from its chamber, at some point during the gun's lifetime. Because such events are routine occurrences in the biography of almost every handgun, the probative value of the testimony seems to approach the vanishing point, absent any testimony matching the prints to the arresting officer.

Faced with the task of upholding a conviction they consider essentially righteous, the appellate courts commonly invoke the harmless error doctrine, at least in the alternative. That path was open to the Seventh Circuit in Bowman, but the panel chose not to travel down it. One reason may be that the core theory of the defendant's case was that the handgun was planted -- an issue that would have boiled down to a swearing contest, but for the ATF expert's testimony, and as to which that testimony may well have broken any tie in the jurors' minds. A "harmless error" ruling might not ring true, in such circumstances.

Because the controversy in Bowman does seem to have been primarily a matter of weight, which any juror of reasonable intelligence could evaluate, the appellate outcome may be defensible. All the same, the government's use of such insubstantial "expert" testimony seems vaguely disquieting, as does the Seventh Circuit's failure to see any real difficulty with it. The expert's opinion was near the fringes of his expertise, if not beyond it. And this is the sort of case in which the witness seems to have been called more to impart the sheen of expertise to the prosecution's theory, than for any probative value his testimony may truly have contained -- a problem that could have been averted, perhaps, if the same testimony had been offered, say, by the arresting officer, in the form of lay opinion.

Court to Pentagon: Don't Make Soldiers Serve as Guinea Pigs

Tuesday's New York Times reports that Judge Emmet G. Sullivan has preliminarily enjoined the military from requiring soldiers to submit to anthrax vaccinations. See Doe v. Rumsfeld, No. 03-707 (D.D.C. Dec. 22, 2003).

Among other bases for objection, the soldiers contend that the drug has not been licensed by the FDA, or proven effective, for purposes of preventing transmission of anthrax via inhalation -- the likely battlefield anthrax risk. A federal statute bars the administration of investigational drugs, or drugs not approved for the intended use, to service members, without their informed consent. The bar can be overcome by executive fiat -- the president has discretion to waive the prohibition. But rather than approach President Bush for the waiver, the Department of Defense has chosen to litigate instead.

An interesting choice, given the seeming weakness of the military's substantive position. The Department of Defense website reportedly justifies the vaccination program with the claim that the Iraqis possess "thousands of pounds of anthrax agent." No such lethal cache has yet been found, of course. But the weakness in DoD's case runs deeper. If we are reading Judge Sullivan's opinion correctly, DoD is unable to cite any controlled clinical studies showing the vaccine to be effective against inhalation anthrax in humans.

One wonders what the Bush Administration's reaction would have been, if Saddam Hussein had involuntarily administered the same unproven vaccine to American POW's.

Federal Judge Limits Testimony from Bullet-Matching Expert

Faithful readers may remember last month's post reporting on scientific critiques of the forensic methods by which FBI experts compare the metallic composition of bullets to determine whether they came from the same batch.

A correspondent has now drawn to our attention a recent decision excluding FBI bullet-matching testimony in part. See United States v. Mikos, No. 02-cr-137 (N.D. Ill. Dec. 5, 2003) (Guzman, J.). The expert was permitted to testify that the bullets from the crime scene were indistinguishable, in chemical composition, from bullets recovered from the defendant's vehicle. But the testimony was excluded, for want of a sufficiently reliable scientific basis, insofar as the expert sought to opine on the likelihood that the bullets originated from the same manufacturing batch.

The Death of the Trial

As controversy continues to roil over the supposed propensity of Americans to seek solutions to all their problems through litigation, the New York Times reports on a new ABA-sponsored study by Marc Galanter suggesting that federal jury trials, at least, are going the way of the dinosaur.

Notice we said trials, not lawsuits. Federal civil filings remain robust. But fewer than 1.8% of all federal civil actions now reach trial, as compared with 11.5% in 1962. Does this decline result from more frequent settlements? That appears doubtful. Preliminary numbers from research by USC investigators, which still need to be validated, suggest that settlements are actually in decline, falling from about 50% in the 1970's to between 35% and 40% in the 1980's and 1990's. A more plausible explanation for the decline in jury trials may be an increase in "nontrial adjudications" -- e.g., dismissal via summary judgment. Such pretrial dispositions are now reportedly rendered in about 50% of all civil actions, compared with 32% in 1970.

Daubert has certainly contributed to the increased amenability of civil claims to pretrial dismissal. Further empirical study is warranted, to measure Daubert's precise contribution to any such trend. But it is meanwhile an eye-opening datum, that the chances of ever seeing a jury impaneled in a federal civil case are less than 1 in 50. In a private civil action, the odds are actually better, apparently, that the Supreme Court will grant your petition for certiorari.

The 4th Circuit Does It Again

The Fourth Circuit has again followed its settled habits: (1) affirming a Daubert ruling (2) admitting the testimony of a law enforcement officer on the modus operandi of drug dealers (3) in an unpublished opinion. And it has done so: (4) in a per curiam decision (5) without oral argument. See United States v. Gwynn, No. 03-4293 (4th Cir. Dec. 11, 2003) (Wilkinson, Traxler, & Gregory, JJ.).

If these rulings upholding expert law enforcement testimony on the methods of drug dealers are really as routine as the appellate opinions make them sound, it is becoming difficult to understand why defendants even raise the point on appeal. The opinion in Gwynn contains no analysis of the details of the officer's testimony. It simply rests on the proposition that testimony in this category has been ruled admissible before. Did the defendant raise a categorical argument on appeal that such testimony should be inadmissible in general under Daubert and Kumho Tire? If so, then perhaps the Fourth Circuit could squelch this sort of thing by publishing a few opinions rejecting that argument. Did the defendant raise some more particular challenge to the details of the officer's testimony? If so, then some additional discussion of the details might afford clearer guidance to the appellate bar, even if the opinions remained unpublisihed.

Numerators & Denominators: Ted Frank Responds

In answer to our post of even date herewith entitled "Numerators and Denominators," Ted Frank sends the following response:

"I would dispute that I invert my style of reasoning; I've been critical of the argument by anecdote elsewhere in the tort reform context:

http://www.amazon.com/exec/obidos/tg/detail/-/0465053750//qid=1071272163/sr=1-2/ref=sr_1_2/002-2447511-9528013?v=glance&s=books&vi=reviews

"I've long been an opponent of public policy by anecdote, and I view civil tort reform no differently. Anecdotes have entertainment value; anecdotes can be used to illustrate larger principles; anecdotes provide an accessible means for a layperson -- or a reporter -- to understand a complex topic. And while blogging is a form of writing that lends itself to anecdote (and the purpose of the overlawyered blog in particular is to collect media and web coverage of tort reform issues, which in turn lends itself to blogging about anecdotes), you'll note that I often try to make larger policy points about problems in the tort system to turn the anecdotes into illustrations. It's one thing to say 'Federal Rule of Civil Procedure 23 is currently structured in such a fashion that trial lawyers have an incentive to attempt to extort large sums from corporations regardless of the effect on consumer welfare'; it's another to point out the Blockbuster or Bank of Boston class action settlements.

"Unfortunately (or perhaps fortunately), I have very little say with how a Newsweek or a John Stossel presents the issue (I certainly winced at favorable reports on NBC and ABC, but I wince at most television news), but I'm confident that when it comes to media portrayals of tort litigation, the plaintiffs' bar comes out ahead. It's just not dramatically interesting when rigorous research and writing and litigating results in a corporation saving tens of millions of dollars that a trial lawyer was unfairly attempting to extract; that movie isn't going to get made as opposed to a David vs. Goliath story with an identifiable protagonist, and television news programs prefer similar story arcs. The stunning shift in the public perception of the Stella Liebeck case over the last ten years is, I think, illustrative.

"Unless I am sloppy (and blogging is conducive to sloppiness as well as to anecdotes), you will not catch me saying 'Because Stella Liebeck can recover, there is something wrong with the tort system.' The Liebeck case is neither necessary nor sufficient to come to that conclusion. I will say, however, 'There are problems with the tort system, and the Stella Liebeck case illustrates some of those problems' or 'The Liebeck result was incorrect for the following X reasons.'

"Incidentally, I would disagree that 'the goal for the tort system' (emphasis added) should be zero bad outcomes. I would strongly suspect that a tort system achieves 100% perfection is devoting too much in the way of societal resources to avoiding mistakes. That's not to say that avoiding bad outcomes should not be a goal for the tort system. But at some point there is a cost-benefit tradeoff where it would be better for society to have a bad outcome in some small fraction of cases than to divert more engineers and doctors away from other productive activities to the litigation process to ensure perfection. Or perhaps it would be better to say that one needs to take a more holistic view of what is a bad outcome.

"In other words, I'm perfectly aware that some bad results are endemic to having any sort of tort system, and that any tort system will produce its share of horror story anecdotes. But I also think a natural public policy response to this reality is to structure the tort system in such a way that individual bad results by individual judges or individual juries have less of a chance to have consequences far beyond the facts of the individual case. As I said elsewhere in response to one of your posts, 'Courts make mistakes, and the more issues that come within the judicial system's ambit, the more mistakes that will be made. Cf. Frank H. Easterbrook, "The Limits of Antitrust," 63 Tex. L. Rev. 1 (1984).'"

Numerators and Denominators

Math has broken out in the recently revived debate over the McDonald's coffee lawsuit. (The Curmudgeonly Clerk has links to everybody's contributions here.)

We start with CC's observation that McDonald's knew of 700 previous instances in which customers complained of coffee burns. Ted Frank responds that this figure is really just a numerator in search of a denominator. The denominator, says Frank, is in the tens of billions (of cups of McDonald's coffee served), and a risk of 1 in 24 million, says Frank, doesn't render a product unreasonably dangerous. CC responds that the point of the 700 prior incidents is not so much to calculate risk coefficients for McDonald's coffee, but to show that the plaintiff's experience in the infamous lawsuit was not unique, and that McDonald's was on notice of the problem.

It might be interesting for all sides to apply comparable reasoning internally, within the tort reform debate. Let's give it a try.

After trolling the internet for litigation horror stories, Newsweek was able to come up with some smallish number of examples that it was willing to consider egregious. Call this number N.

To Frank, N should again be a numerator in search of some denominator (call the denominator D). What might be a suitable one? That depends on the point to be made. If the point is that the American tort system handles (say) personal injury claims too permissively, then seemingly D should equal the number of p.i. cases brought in the United States over whatever time period N represents. Frank might protest that Newsweek collected only a partial sample, and that point would be valid, but our own point does not depend on Newsweek's sampling techniques, and would apply even if N were taken to be the total number of unduly plaintiff-friendly outcomes in all p.i. cases, whether Newsweek found them or not. (We are supposing, of course, that everyone has agreed on some metric for what should count as "unduly plaintiff-friendly outcomes"). Call such outcomes "false positives" (because the the judicial system has permitted a factfinder to diagnose a tortiously caused injury where none is supposed to have existed). If our concern is the risk of injustice faced by defendants in the p.i. system, then the figure of interest should arguably be the rate of false positives, or N/D. (Of course, so far, that's just one side of the picture. If we are concerned to gauge the overall justness of the p.i. system for all parties, and not just defendants, we should care about false negatives too -- as Frank would presumably agree. We should care, that is, about the frequency with which deserving plaintiffs are thwarted in seeking recovery.)

Meanwhile, however, perhaps N might be cited not so much for the purpose of calculating rates of injustice, but more to show that one particular episode of injustice is not unique, and that further investigation, and even remedial measures, may be warranted. Certainly that seems to be the spirit in which advocates of tort "reform" offer their examples. It's worth noticing, in this vein, that the Curmudgeonly Clerk has responded in just such a spirit, by attempting to evaluate whether cases like the McDonald's coffee litigation should be counted in N at all (much as one might imagine McDonald's responding to reports of recurrent coffee burns by determining whether it could or should have taken measures to prevent them).

There is an interesting parallelism, here, to recurring debates in the toxic tort context. Toxic tort defendants, and their experts, commonly want to emphasize the quantitatively low absolute risks allegedly associated with the relevant hazardous substance. Sometimes, they go so far as to claim that those quantitative risks are the only pertinent consideration. Toxic tort plaintiffs, by contrast, and their experts, may tend to feel that even seemingly low risks are unacceptable, where they eventuate in harm. And sometimes, they go so far as to claim that the quantitative risk should be ignored, in favor of their anecdotal evidence.

Are we wrong, or do the parties to the tort reform debate sometimes tend to invert their respective styles of toxic tort reasoning, when evaluations of the civil justice system come into play? Perhaps that claim is unfair, because the truth may be that both styles are often pertinent, in both contexts. We are, or should be, concerned with the numerical prevalence of good and bad outcomes. We don't want a high ratio of bad verdicts or hospitalized McDonald's customers. But we should also be concerned to do our best in the particular case. The goal for the tort system, confessedly unrealizable in practice, should be zero bad outcomes. The goal for McDonald's, equally unachievable in reality, should be zero scalded patrons. When we fall short of those goals, we should consider doing something about it -- in both instances.

Our wisdom does not extend to prescribing perfect remedies for the American tort system. But we do have a modest proposal for the fast-food problem. McDonald's should drop the pretense of serving "coffee," and stick to soft drinks.

Update: Our modest proposal doesn't seem unrealistic, in light of news that McDonald's Corporation now plans to give up on pizza and Mexican food.

The Scientific American on Daubert

A reader draws to our attention a two-page article on Daubert in December's Scientific American, entitled "Science v. Law: A Decade-Old Rule on Scientific Evidence Comes Under Fire." The gist: Daubert's defenders say it keeps bad science out of the courtroom, but its detractors say good science suffers too.

The Coffee Wars (cont'd)

As the Curmudgeonly Clerk and Prof. Bernstein continue their exchange on the jurisprudence of spilled coffee, it grows increasingly obvious why this particular meme has taken such firm root in the American psyche. Discuss the McDonald's coffee case, and deeply held convictions come quickly to the fore.

Our own deeply held conviction, reported in an earlier post, is that McDonald's doesn't sell actual "coffee." It sells an insulting and debauched facsimile, produced by adding artificial styrofoam flavoring to hot camel bile and straining the resulting mixture through a patented fungus. Anyone who contemplates tinkering with the temperature of this putative "beverage" in an attempt to optimize its "taste" is simply living in a dream world. Some readers have seemed uncertain how seriously to take our views on this point, but the Curmudgeonly Clerk is right to have taken them as very seriously intended. In contemplating coffee in the abstract, it may seem plausible to suppose that some balance must be struck, between the enhanced palatability afforded by higher temperatures, on the one hand, and the elevated risks of third-degree burns, on the other. But we're not discussing Starbucks, or even a pot of 8 O'Clock from the A&P. We're discussing drive-through McDonald's coffee, which no rational human consumer would voluntarily purchase or imbibe except for the potential coma-mitigating effects of any caffeine it may contain. Defending its temperature by appealing to considerations of palatability has a decidedly false ring, to our ears. It is the sort of ingenious argument that only lawyers could concoct. It tries to get the coffee off on a technicality.

But Professor Bernstein puts a different set of convictions on display, when he comments on a McDonald's executive whose testimony may have damaged the company's cause. "I don't know any theory of Torts," writes Prof. Bernstein, "that suggests that liability should depend on whether the jury likes the attitude of a particular witness or not."

Read this last quoted sentence aloud. Now think of the last trial you attended. What on earth can Professor Bernstein be thinking?

First, let us peel away some rhetoric, starting with "theory of Torts." We all know, of course, that the Committee of Tort Theoreticians gathers annually, to consider possible means by which American jurors can be made to adhere to the norms of Fundamental Common Sense, which jurors so sorely lack, and which Theorists of Tort uniquely possess. No one supposes that any member of this august body has ever advocated a uniform jury instruction that would read: "Select a random witness, and assign liability depending on your reaction to his or her attitude." No one, in other words, proposes that defendants whose witnesses have unlikeable attitudes should be liable, for that sole reason, as a matter of law.

If that were all that Prof. Bernstein meant to say, he would be quite correct. But he seems to be saying more. He seems to be expressing some tacit yearning for a happier world in which Theories of Tort would do all the work of mapping fact patterns into outcomes, at least where scalding coffee is concerned. The problem, of course, is that the rules of tort liability, standing alone, are insufficient to determine all outcomes, and so we rely on juries to do what work remains. This brings us to the issue of whether a jury's decision "should depend" on whether the jurors "like the attitude of a particular witness or not." That manner of characterizing the jurors' judgment seems unduly dismissive, if not unrealistically puritanical. For one thing, it presupposes, without argument or support, that the jury's conclusion will have hinged entirely on its reaction to one single witness, to the exclusion of all other evidence. For another, it imports the uncritical supposition that the jurors' reactions will have been founded on irrational emotional considerations, rather than rationally defensible practical judgment. But let us say, for example, that a McDonald's executive takes the stand and exhibits an absence of apparent concern about consumer safety. Is it really so illegitimate for the jurors to notice and take his "attitude" into account? Mightn't his "attitude" fairly be regarded as one piece of information, among others, from which to infer an irresponsible corporate culture?

However that may be, the practical and inescapable truth is that jurors have visceral reactions to all kinds of witnesses -- to corporate executives, to criminal defendants, and even (here's why we get to discuss this, in a weblog about expert evidence) to paid experts. It would be naive to suppose otherwise, and impracticable to expect anything different. The strong likelihood is that jurors even have visceral reactions to ladies who sue McDonald's for large sums over spilled cups of inexpensive coffee. There is room for debate about how far such reactions typically embody an underlying rationality that the jurors might or might not be able to articulate at a level of precision and rigor acceptable to Tort Theoreticians. What cannot reasonably be debated is that trial outcomes are and inevitably will be affected, sometimes decisively, by the myriad and ineffable ways in which factfinders respond to witnesses.

Does this really operate to McDonald's disadvantage, in the larger coffee-spilling scheme of things? The tenacity with which the McDonald's coffee litigation clings to its perch in popular legal discourse is itself the product of a visceral reaction. The story is a hardy perennial precisely because it seems to violate "common sense," that someone could sue because the coffee was hot. It seems safe to assume that the McDonald's jurors may have come to the problem, initially, with exactly that reaction. Evidently they heard something, during the trial, that overcame it. Maybe they heard that the coffee was hotter than they felt coffee of that caliber had any good reason to be.

The urge to believe that there is one correct solution to every practical controversy is powerful, even among persons who concede, in the abstract, that reasonable persons could often differ. From this urge can spring an equally powerful impulse to regulate discourse as a method of controlling, by means other than rational persuasion, the inferential habits of persons whom we are not content to leave to their own inferential devices -- an impulse, to be fair, of which Professor Bernstein is himself a keen critic in other contexts. The whole law of evidence, and in particular the modern law of expert evidence, can be seen as one product of just such impulses. Whatever the legitimacy of such projects, there are fundamental limits beyond which they cannot proceed. One such limit arises from the stubborn human propensity to rely on intuition. Another arises from the stubborn human sense of the absurd -- which recognizes, for what it is, the claim that McDonald's coffee is engineered with the human taste bud in mind.

The Coffee Wars

If Newsweek's cover story on litigiousness in America accomplishes nothing else, it can at least claim to have rekindled the important debate over the proper temperature at which to serve coffee. Professor Bernstein seems to think that McDonald's got it basically right. The Curmudgeonly Clerk questions whether the sources on which Prof. Bernstein relies would withstand Daubert analysis, and also addresses differences between the home and drive-thru environments. To our minds, the Curmudgeonly Critique misses one central point. Insofar as Prof. Bernstein's position depends on the thesis that higher temperatures are necessary to "maintain taste," his opinion seems lacking in "fit," as concerns the McDonald's concoction.

Lee Malvo and Mens Rea

CNN is carrying this report on expert testimony from a defense psychologist in the trial of accused DC sniper Lee Malvo, who has raised an insanity defense. Malvo's lawyers are pushing the theory that Malvo's mentor, John Allen Muhammad, indoctrinated or brainwashed the teenage Malvo into serving as a child soldier in a war for racial justice. The prosecution has objected to expert testimony on this subject, but with little success.

Virginia law evidently permits expert testimony on a criminal defendant's mental capacity, but only in the context of an insanity defense. See, e.g., Peeples v. Commonwealth, 30 Va. App. 626, 519 S.E.2d 382 (Va. Ct. App. 1999) (en banc). Whatever one may think of expert testimony on mens rea, has Virginia drawn the line in a coherent way? In the Peeples case, the court of appeals relied on reasoning previously tendered by the Virginia Supreme Court in Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985): "The state of knowledge in the fields of medicine and psychiatry is subject to constant advance and change. The classifications and gradations applied to mental illnesses, disorders, and defects are frequently revised. The courts cannot, and should not, become dependent upon these subtle and shifting gradations for the resolution of each specific case."

It is not immediately obvious why that rationale, if legitimate, should be subject to exception in cases involving an insanity plea. Your humble reporter can claim no expertise in any aspect of criminal law, but if psychiatry lacks the requisite doctrinal fixity to supply helpful and reliable guidance on defendants' mental states in general, then surely that circumstance is unaltered by any particular criminal defendant's choice of plea. Conversely, if psychiatric evidence is sufficiently reliable to be potentially helpful to the trier of fact in insanity cases, why should it not be considered equally reliable and helpful, e.g., on general issues of mens rea?

Perhaps the question is naive. Perhaps the intent is simply to set a high price (invocation of a defense that jurors may find unsympathetic, and/or probable indefinite post-trial incarceration in a psychiatric facility) for a criminal defendant's use of expert psychiatric testimony to excuse his wrongful acts. Such a justification would not seem completely indefensible. There could be a legitimate feeling that persons who commit felonies should either accept the penal consequences, if they possess the capacity to conform their conduct to law, or accept incapacitation during the pendency of treatment, if they do not.

But if that is the policy justification for the rule, then it might be better to say so forthrightly, rather than blaming the alleged inability of psychiatry to reach stable consensus. The justificatory foundations for evidentiary rules should be explicit and transparent. It is misleading, and fosters confusion, to cloak the justifications for evidentiary rules in epistemic terms, when their real animus is different.

Justice Breyer Addresses AEI on the Judicial Uses of Economic Reasoning

As CNN reports, Justice Breyer addressed the American Enterprise Institute on Thursday, discussing reliance by nonexpert, generalist judges on technical economic learning. The AEI's website has the entire, hour-long address available on video.

Federal Circuit Upholds Exclusion of Royalty Testimony

The Federal Circuit has upheld the exclusion of a patent defendant's expert testimony on a reasonable royalty. The trial court was not satisfied that industry license agreements on which the expert relied were truly comparable, and the appellate tribunal found no abuse of discretion. See Utah Medical Prods., Inc. v. Graphic Controls Corp., No. 03-1081 (Fed. Cir. Dec. 4, 2003) (Mayer, Michel, & Rader, JJ.).

10th Circuit Affirms Exclusion of Engineer's Testimony re Design Defect

In a published November 28 decision, the Tenth Circuit has affirmed the trial court's exclusion of testimony from a mechanical engineer, Dr. R.K. Tessman, that the aerial lift on a boom truck was defectively designed. The engineer had no previous experience designing aerial lifts, nor any education or experience relating to them. Nor had his proposed design been tested or published. The decision is not yet available at the Tenth Circuit's site or on Findlaw. See Vanover v. Altec Indus., Inc., No. 03-5016 (10th Cir. Nov. 28, 2003) (Tacha, Anderson, & Henry, JJ.). Update: The opinion is posted now. Here's the link. Further update: We were mistaken in saying that the opinion is published. It is not.

Airplanes, Blood Clots, and Motions in Limine

The New York Times is carrying a story on lawsuits alleging a link between long-haul air travel and the risk of blood clots, deep vein thrombosis, and pulmonary embolism. More than 200 such suits have been filed, but an action now pending in Los Angeles may be the first to go to trial. There is peer-reviewed literature supporting a causal link, and researchers have urged airlines to advise passengers on how to mitigate the risks. But a spokesman for the airline industry has denied any direct causal association.

And in the event of a water landing, your seat cushion may serve as a flotation device.

Via Bob Ambrogi: A Site for Medical Demonstratives

A post at Bob Ambrogi's site spreads news of The Doe Report -- a website managed by "the leading seller of stock Medical Demonstrative Evidence (MDE) in the U.S.A." Definitely worth a look if you're hunting for medical exhibits.