Walter Olson on John Edwards and "Zeal"

In a Saturday evening post, Walter Olson respectfully dissents from the view that any duty of zealous advocacy might excuse John Edwards's reliance, as a litigator, on problematic-but-admissible expert evidence. Olson links to an earlier post on the subject of zeal, in which he observed: "Time and again, in our experience, the putative obligation to represent clients in a 'zealous' fashion has proved the last resort of the scoundrel litigator and ethical edge-skater."

Sometimes a lot depends on how you frame the question. Olson is concerned, for example, that Edwards not be immune from reproach if he "employed dubious expert testimony to extract fortunes from innocent obstetricians." To us, that description seems to load the dice just a bit, but no doubt our own characterizations of the problem could also be found wanting in neutrality, by someone who thought we had missed the fundamental point. Beneath the rhetoric, there may simply be an honest difference of opinion on whether the evidence in controversy was legitimate, or instead was so far beyond the pale that no litigator could offer it and hold his head up high. More precisely, there may be a difference of hunch, since the relevant parties do not purport to be familiar with the facts of Edwards's cases.

Sometimes, meanwhile, everything does not in fact depend on how you frame the question. Just to be clear, the argument in defense of litigators who offer controversial expert evidence does not ultimately depend on the ethical requirement that they do so in "zealous" fashion. It would apply even in Arizona, which Olson has extolled for amending its ethical rules to replace the duty to represent the client "zealously" with a duty to "act honorably" in furtherance of the client's interests. The duty in question arises not from any particular verbalization of the litigator's responsibilities in codes of professional conduct, but rather from the litigator's role in an adversary system. That role does not include adjudicating the claims, or withholding admissible expert evidence because the litigator might reach different conclusions as an armchair medical scientist. It does include what the client has a right to expect, and does expect: viz., that on pain of malpractice exposure, the litigator will press the client's interests through whatever evidence is legitimately at the litigator's disposal. That is the "honorable" thing to do. And under the rule of law, it is not the litigator, nor any single man or woman, who ultimately defines the boundaries of evidentiary legitimacy. The rules of evidence do that, for honest advocates and scoundrels alike.

Update: Perhaps from a concern that we not agree to excess, Professor Bernstein has updated his post to concur in Walter Olson's assessment that if lawyers do owe any arguable duty to present evidence they know to constitute "junk science," that duty would disappear if any requirement to represent the client's interests "zealously" were dropped. Of course, this does not address what may be a more common situation, in which the lawyer sincerely believes in the validity of his or her expert evidence, even though it may be objectively dubious. But leaving questions of sincerity to one side, it may matter that the evidence under discussion goes to two indispensable elements of a medical malpractice case: negligence and causation. Quite apart from issues of "zeal," an attorney cannot honorably decline to offer available and admissible evidence in support of those elements just to salve his or her personal ideological or epistemological conscience, unless perhaps the attorney is also prepared to withdraw from the representation. Short of that, a refusal to tender viable evidence in support of indispensable elements of the claim would represent not merely an absence of zeal, but a more basic lack of professionalism.

Further update: Franco Castalone sees the point, and states it more eloquently.

Breaking News: Professor Bernstein & Blog 702 Agree on Something

We often disagree with Professor Bernstein, and he often disagrees with us, and neither party has ever been shy about saying so. But the good professor has managed to find some common ground, graciously expressing basic agreement, from his perch over at VC, with our post of 1/23/04 on John Edwards and the expert evidence he has used in his malpractice cases. If you're unhappy with a system that imposes on litigators an ethical duty to be zealous in protecting their client's interests, and which sometimes permits them to manifest their zeal by offering evidence that some might deem questionable, then criticize the system, says Professor Bernstein. Lawyers who simply follow the system's rules in good faith shouldn't be villified for doing their jobs.

It is comforting to hear litigators defended like this on occasion. Not that we're oversensitive or anything . . . .

6th Circuit Upholds Testimony from Two Damages Experts in Fraud Case

In an unpublished opinion, the Sixth Circuit has upheld the testimony of two damages experts offered by plaintiff Regal Cinemas in the trial of its fraud action against some shopping center developers. See Regal Cinemas, Inc. v. W & M Properties, No. 02-3450 (6th Cir. Jan. 27, 2004) (Cole, Clay, & Quist, JJ.). The decision may afford a lesson in how to brief Daubert issues at the appellate level. On appeal, the developers first contended that the experts' evidence was insufficient to support a finding of lost profits to a reasonable certainty, arguing (as they had to the jury) that the experts incorrectly accounted for theater size, failed to reckon with the effects on profitability of stadium-style seating, and (in the case of one expert) lacked experience with movie theaters. The developers also went on to challenge the admissibility of the expert testimony, but raised no independent arguments involving the testimony's reliability, simply referring back, instead, to their earlier discussion of the testimony's asserted insufficiency. The Sixth Circuit panel repaid this economy of exposition by remarking, not without a faint tone of impatience, that the standards for sufficiency and admissibility are different. The panel went on to conclude, rather briskly, that none of the developers' sufficiency arguments established that the district court had abused its discretion in admitting the evidence.

The moral? It may be ineffective, on appeal, to lead with a challenge to the sufficiency of the evidence, following up only later with an alternative Daubert challenge that simply incorporates the previous sufficiency arguments. Homage should be paid to the difference in standards, by way of separate analyses. And it probably makes sense, in general, to lead with the evidentiary objections. Decisions about admissibility are logically and chronologically prior to decisions about sufficiency, and deferring admissibility points to later portions of the brief may telegraph that counsel themselves don't think their evidentiary arguments are especially strong.

In this particular case, it may not have mattered, because it would have been a bold appellate step to hold the testimony on damages offered by these experts to be unreliable as a matter of law.

8th Circuit Affirms Exclusion of Polygraph Evidence

The Eighth Circuit has affirmed the trial court's exclusion of polygraph evidence, offered by a criminal defendant who wanted to introduce the results of lie detector tests taken by witnesses at the scene of the murder. The panel had no occasion to evaluate the reliability of the polygraph evidence, because the defendant never undertook his burden to establish its reliability or admissibility. See United States v. Greatwalker, No. 02-4082 (8th Cir. Jan. 30, 2004) (M.S. Arnold, Heaney, & Fagg, JJ.).

The New York Times on John Edwards's Cerebral Palsy Cases

The nation's newspaper of record (Saturday edition) is now running a story on John Edwards's malpractice cases on behalf of children with cerebral palsy. Refreshingly, the Times story actually contains some facts about the cases. The story is not a hatchet job, but it is no hagiography either, and it does include a few details that may supply grist for Edwards's critics. In one case, for example, Edwards's associate interviewed 41 physicians before finding a local doctor who would fit the bill as an expert witness. But the defendant in that case was a highly regarded physician at a prestigious area teaching hospital, which probably made a number of candidates reluctant to testify. Edwards's overall spin is that he chose his cases carefully and prosecuted them with perseverence.

From the facts reported so far, there doesn't seem to be much by way of scandal here, unless it's scandalous, in itself, to be a talented and successful plaintiffs' lawyer.

D.C. Water Violates EPA Lead Standards

Saturday's Washington Post reports that tap water is testing above EPA limits for lead in two-thirds of all D.C. homes sampled -- often by a factor of twenty. Officials aren't sure why, but expect a run on bottled water while it's sorted out. Does the District of Columbia Water and Sewer Authority enjoy immunity from actions in tort?

PBDE Watch

To update our posts of 8/9/03 and 9/6/03 on polybrominated diphenyl ethers, the Seattle Post Intelligencer is reporting that the State of Washington will be looking into the problem, if the Department of Ecology can get the funding to investigate.

Study in The Lancet Estimates Cancer Risks from X-Rays

Research published in the January 31 edition of The Lancet offers estimates of the incidence of cancer in industrialized countries attributable to medical x-rays. The estimates are not based on direct epidemiological studies of x-rayed populations, but instead represent extrapolations based on data from studies of A-bomb survivors. X-rays reportedly account for about 14% of all human exposure to radiation, and the researchers calculate that x-rays are responsible for causing 0.9% of all cancers in the United States. They emphasize that the medical benefits of x-rays greatly outweigh the risks. But at the same time, studies have suggested that an estimated 30% of all chest x-rays are medically unnecessary.

The full text of the study is available online for paid subscribers to The Lancet. If you're not a subscriber, you can get the story from the Times of London, or BBC News, or The Independent, or various other sources.

7th Circuit on Disclosure of Expert Testimony from Treating Physicians, Nurses

The Seventh Circuit has upheld the exclusion of expert testimony from treating physicians and nurses as a discovery sanction in a medical malpractice case. Under the discovery rules, parties are not required to provide reports from treating health care professionals. But if treating health care professionals will offer expert testimony, their identities must be disclosed, and they must be designated as experts. The Rule 26 disclosures from the plaintiff in the Seventh Circuit case did list the treating physicians and various nurses as witnesses, but not as expert witnesses. The Seventh Circuit upheld the exclusion of their deposition testimony on summary judgment as a Rule 37 sanction. See Musser v. Gentiva Health Servs., No. 03-1312 (7th Cir. Jan. 28, 2004) (Posner, Kanne, & Rovner, JJ.) (see the briefs).

4th Circuit Affirms Exclusion of Evidence that Benlate Caused Birth Defects

The Fourth Circuit has issued an unpublished opinion, upholding the trial court's exclusion of expert testimony linking the mother's benlate exposure with birth defects, and affirming the consequent award of summary judgment. See Bourne v. E.I. DuPont de Nemours & Co., No. 02-1469 (4th Cir. Jan. 27, 2004) (Widener, Neimeyer, & Gregory, JJ.).

Still More on John Edwards and Daubert

To update our posts of 1/20/04 and 1/23/04 on criticisms of the expert evidence used by John Edwards in some of the medical malpractice cases he litigated:

(1) Franco Castalone has chimed in, concurring that litigators do owe their clients a duty to present supportive evidence. He adds that such a duty extends not merely to propounding evidence whose admissibility is legally uncontroversial, but also to advocating the admissibility of evidence whose validity the client's adversary may dispute. Castalone is right, of course. We do rely on an adversary system of justice.

Castalone also suggests that the real political issue may be whether Edwards's expert witnesses had a reputation for integrity, or for dishonesty. Trial attorneys, he says, are known by the company they keep. And Castalone notes that "the judges who heard [Edwards's] cases and the defense lawyers who opposed Edwards would know."

Castalone is right again. It might indeed be desirable to conduct some semblance of factual investigation before accusing Edwards of building a legal career on fake testimony. But that's not the way things work in the electoral cycle, which brings us to . . .

(2) . . . Jim Copland's commentary on this subject at National Review Online, which can fairly be summarized as follows: (a) Edwards has a net worth somewhere between $12 million and $60 million; (b) some portion of that sum represents fees from medical malpractice litigation on behalf of cerebral palsy victims; (c) ACOG issued a peer-reviewed study in 2003 finding that delivery problems were not to blame in the "vast majority" of cerebral palsy cases; (d) "Edwards's own cases may have been legitimate, but given jurors' difficulty in making scientific determinations and the trial bar's record in this area, there is certainly reason to be suspicious"; (e) Edwards's rivals for the Democratic nomination "have been loath to attack his unsavory accumulation of wealth" because they are in thrall to trial attorneys and their campaign donations; (f) yet it is suits like the ones brought by Edwards that have "driven up malpractice-insurance rates exponentially"; (g) so Republicans would not give Edwards the same "pass" on this issue, were he the ultimate Democratic nominee.

Let us parse this phillippic. We can give short shrift to item (a), because Edwards's net worth does nothing to establish whether he did anything questionable. Item (b) likewise requires little discussion. It is an unquestioned fact that Edwards did indeed represent cerebral palsy clients in successful malpractice cases. But item (c) requires a little unpacking.

The peer-reviewed ACOG study to which Copland refers was released in January 2003, four years after Edwards took office and began earning his living as a Senator rather than as a litigator. It was performed under the auspices of the American College of Obstetricians and Gynecologists, a professional body whose members number prominently among the persons sued when it is alleged that delivery-room malpractice caused cerebral palsy. And its findings remain controversial, as may be inevitable given the stakes.

But what, exactly, were those findings? Here is how they have been described in the Wall Street Journal by Walter Olson, whom no one accuses of serving as a shill for the plaintiffs' bar:

"The report by no means relieves delivery rooms of responsibility. It estimates that between 6% and 10% of newborns' brain injuries do originate in events during labor and delivery, and that of these perhaps half, amounting to 3% to 5%, might be preventable (which does not mean that the failure to prevent them implies negligent care in any given case). In a larger swath of cases, perhaps another 25%, the handling of labor and delivery may influence the extent of damage in cases where pre-existing risk factors already spell trouble for a child. The report does not dispute that some high-verdict obstetric brain damage cases rest on valid science."

In other words, delivery room events may cause infant brain damage, or at least "influence the extent of damage," in something like one-third of all cases -- and this according one of the study's leading popular proponents. [See update below.]

Does this mean that the ACOG study revealed two-thirds of all medical malpractice claims in cerebral palsy cases to be utterly bogus? Obviously not. For one thing, few would propose, as a general matter, that the law treat the findings of one peer-reviewed study as legally dispositive, particularly when other researchers have had fewer than twelve months, since the study's publication, to scrutinize its findings and test its replicability. For another, the ACOG study did not establish, or hold itself out as establishing, that proponents of other theories were guilty of sheer fraud. We're not experts in the relevant medical science, but from our cursory lay review, it does appear that some aspects of the study's methodology have left fair room for debate (in particular, its criteria for hypoxia, which some have criticized as overly strict). For a third, even if the study's findings are accepted at face value, there remains the problem of sorting through each case to determine which category it falls into -- i.e., whether it is one of the cases where delivery room conduct caused the problem or "influence[d] the extent of damage." In this case-by-case sorting, there is likely to be some uncertainty. And as a result of that uncertainty, and of our practice of handling the sorting one case at a time, there is no guarantee that plaintiffs will prevail in exactly the "correct" proportion of all cases. There may even be some propensity, by jurors, to distribute the uncertainties in the favor of disabled children, and against physicians. But that does not mean their verdicts are unsupported by evidence in the individual case. The law has scoops and scoops of methods for dealing with that kind of problem. North Carolina, in particular, has been a Daubert state since even before Daubert was decided. See State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990).

That brings us to item (d). What evidence does Copland marshall, to support any charge that Edwards was complicit in any improper manipulation of this "sorting" process? None, because Copland does not even purport to know anything about it. For all he knows, Edwards's cases "may have been legitimate," even by Copland's own lights and under the ACOG study. But this does not detain Copland, who is concerned only to locate grounds for being "suspicious." What grounds does he locate, then, for suspecting Edwards in particular? None, because, to repeat, Copland does not purport to know anything whatsoever about Edwards's conduct in these cases. He purports to know only two amorphous generalities: "the trial bar's record in this area" and "jurors' difficulty in making scientific determinations."

Maybe Copland would say that his point is not to prove misconduct, but merely to show probable cause sufficient to warrant closer scrutiny. That brings us, however, to item (e). On the strength of nothing more than the "evidence" already adduced, Copland himself is ready to accuse Edwards of the "unsavory accumulation of wealth," and to complain that if Edwards's Democratic rivals do not "attack" him for this "unsavory" behavior, it must be because of their sycophantic fealty to trial lawyers and their campaign donations. Copland, in other words, is already prepared to convict, to the point where he actually cites the unwillingness of other Democratic candidates to attack Edwards on this basis as proof of their own corruption. Not content to tar Edwards, he wants to go after Edwards's Fellow Travelers (because it's impossible, naturally, that Edwards's fellow Democratic candidates might have refrained from attacking Edwards on these grounds due to their inability to cite the slightest factual support).

All of this, perhaps, is just Copland's particular way of getting to items (f) and (g). Copland's real objective may have been to mount an anticipatory defense of Karl Rove's eventual efforts, already presumably in development, to paint Edwards as the man who drove your friendly neighborhood obstetrician from practice. But political exigency is not enough to make undocumented insinuations fair. At this hour, reports on the New Hampshire voting have Edwards in fourth place, narrowly behind Wesley Clark. We'll see if this story still has legs after the southern primaries.

Update: Walter Olson writes: "I noticed one detail which I hope you will want to correct. In your Jan. 27 post, you quote four sentences of mine about the ACOG/AAP study and then write: 'In other words, delivery room events may cause cerebral palsy, or at least "influence the extent of damage," in something like one-third of all cases -- and this according one of the study's leading popular proponents.' However, I think this last sentence should read 'may cause infant brain damage,' especially if the views are being attributed to me. Cerebral palsy is one among many forms of infant brain damage. If I understand the state of research correctly, it is conceivable (though not inevitable) that future advances will conclusively exonerate delivery room events as the initiating cause of CP, by establishing a marker that can be found at earlier fetal stages which accurately predicts CP in infants. That would be consistent with affirming that delivery room events sometimes inflict other forms of infant brain damage through asphyxia, blunt force, maladministration of drugs, etc." We thank Walter Olson for drawing this error to our attention, and the text of the post has been corrected.

8th Circuit Upholds Testimony on Damages from Trade Secret Misappropriation

In trade secret litigation brought by Children's Broadcasting Corporation against Disney and ABC Radio, the Eighth Circuit has upheld trial testimony by Children's damages expert, Dr. Jonathan Putnam, who presented damage estimates corresponding to three different time intervals by which defendants' misappropriation might have accelerated defendants' entry into the children's radio market. The Eighth Circuit panel agreed with the trial court that Dr. Putnam was well qualified and relied on academically accepted methods. See Children's Broadcasting Corp. v. Walt Disney Co., No. 02-3161 (8th Cir. Jan. 26, 2004) (Loken, Heaney, & Reilly, JJ.).

Expert Witness Developments Across the Big Pond

In the native land of Sherlock Holmes, the courts are busy correcting two separate forensic misadventures that have received little press attention in the United States:

Earprint evidence. In 1998, Mark Dallagher was sentenced to life imprisonment for murdering a 94-year-old woman inside her home. The conviction rested largely on earprint impressions discovered on the woman's window. Police sent the prints to Cornelis Van Der Lugt, a Dutch policeman who lacked formal forensic credentials, but who had been working for years on developing the concept that each human earprint is unique, much as fingerprints are widely thought to be. After examining the prints, Van Der Lugt told the court he was "absolutely convinced" they were Dallagher's. As a result, Dallagher became the first man ever convicted of a crime based on earprint evidence. Law enforcement officials heralded the technique as a new and valuable weapon in the forensic arsenal, and began building earprint databases. But now, after being jailed for nearly seven years, Dallagher has been exonerated on the basis of DNA evidence. Earprinting's proponents apparently aren't prepared to wave the white flag. Van Der Lugt admits his hypothesis that human earprints are unique remains scientifically unproven. But he says it someday will be. American earprint jurisprudence is sparse, but a murder conviction based on earprint evidence was reversed in State v. Kunze, 97 Wn. App. 832, 988 P.2d 977 (1999), because the technique was held to lack general forensic acceptance.

Sudden Infant Death Syndrome. Sir Roy Meadow is a widely-known physician and professor whose prestigious career includes a three-year stint during the 1990's as president of the British Pediatric Association. He performed the seminal research in "Munchhausen's syndrome by proxy" -- a controversial disorder of Meadow's discovery or concoction, depending on whom you believe. Mothers who suffer from the disorder supposedly seek attention by inventing medical symptoms in their children or, in extreme and pathological cases, by causing them. Having published his research, Meadow went on to serve as an expert witness in many criminal and family court cases involving children having died from SIDS, and became famous for "Meadow's law," according to which one SIDS death is a tragedy, two are suspicious, and three are murder. The foundations for "Meadow's law" are essentially statistical; Meadow based it on the rate of incidence of SIDS and his computations of the odds that multiple instances would occur in one family. For some time, criminal convictions founded primarily on his testimony have been the subject of heated debate in England. (For one thing, such testimony arguably shifts the burden of proof to mothers, calling on them to prove they didn't smother their children.) After a Court of Appeal ruling that mothers should no longer be prosecuted in such cases when natural crib death is a possible explanation, the government is investigating doctors who have worked with Meadow, and thousands of previous court decisions, including hundreds of criminal convictions, are up for review. Some quick back-of-the-envelope research reveals no American criminal convictions based on testimony like Meadow's. But children have sometimes been removed from parental custody when found to be exhibiting Munchhausen's by Proxy. See, e.g., In re Aaron S., 163 Misc. 2d 967, 625 N.Y.S.2d 786 (Fam. Ct. 1993).

4th Circuit Sustains Exclusion of Mechanical Engineer's Testimony

The Fourth Circuit has upheld the trial court's exclusion of testimony by a mechanical engineer who opined that defects in a swim ladder on a yacht caused the plaintiff's injuries. And yes, true to Fourth Circuit form, the decision is unpublished. See Higginbotham v. KCS Int'l, Inc., No. 02-1527 (4th Cir. Jan. 23, 2004) (Wilkins, King, & Gregory, JJ.).

More on John Edwards and Daubert

The story of John Edwards's alleged reliance on "junk science" as a litigator, on which we posted earlier this week, and which was first brought to recent mainstream attention by Walter Olson, is picking up a modicum of steam. In a rare show of moderation, Andrew Sullivan is saying he doesn't "see how it should affect one's views about Edwards as a potential president." But Mickey Kaus (Jan. 20) seems to think the story may have legs, calling it "a promising line of attack against Edwards."

So it's worth mentioning that the expert evidence Edwards has been criticized for using was ruled admissible, in lawsuits in which Edwards's clients prevailed. Litigators, after all, do owe their clients a duty of zealous advocacy. It wasn't Edwards's job to adjudicate his clients' claims himself. It was his duty to present the strongest legally legitimate evidence on their behalf to a court and jury, in furtherance of the clients' interests under applicable law. There's no scandal in that. What would have been scandalous is telling a client that although expert evidence admissible under prevailing legal standards would support a verdict in the client's favor, Edwards personally disagreed with the evidence, or believed it should not be admissible, and therefore wouldn't offer it.

It may be politically relevant that Edwards chose to work as a plaintiffs' lawyer, or that he earned a pretty good living at it. But it seems to us that once he was in that role, offering admissible evidence on behalf of his client was not some moral or ethical failing. It was his job.

8th Circuit Upholds Testimony from Damages Expert

In litigation over business losses sustained because ADM's insurance broker failed to secure business interruption coverage, the Eighth Circuit has upheld the admissibility of testimony from ADM's damages expert. The broker said the expert failed to account for the impact of hedging on ADM's total losses, but the panel held that "[g]enerally, the factual basis of an expert's opinion goes to credibility of the testimony, not admissibility." The panel also repeated a recurrent 8th Circuit formulation of the test for admissibility under Daubert: "An expert's opinion must be excluded only if it 'is so fundamentally unsupported that it can offer no assistance to the jury.'" See Archer Daniels Midland Co. v. Aon Risk Services, Inc., No. 02-3788 (8th Cir. Jan. 21, 2004) (Murphy, Lay, & Fagg, JJ.).

Failure to Raise Daubert Challenge Not Ineffective Assistance, 10th Circuit Says

The Tenth Circuit has published an opinion rejecting a claim that defense counel in a murder case provided ineffective assistance in failing to raise a Daubert challenge to the testimony of the prosecution's forensic chemist. See Miller v. Mullin, No. 02-6199 (10th Cir. Jan. 21, 2004) (Seymour, Henry, & O'Brien, JJ.).

Daubert and John Edwards

After his surprising second-place finish in the Iowa caucuses, we knew it was only a matter of time before John Edwards's career as a litigator came in for fresh media scrutiny. But we thought it might take longer than one day. Via Walter Olson, we now learn that Edwards is already under attack for having relied, as a litigator, on what some critics are calling "junk science." The charge is that Edwards invoked expert testimony of debatable validity in malpractice actions he brought on behalf of children suffering from cerebral palsy.

If this becomes a central theme in the Democratic primaries, a grateful nation is certain to turn to our parent website for enlightenment. Are websites eligible for the Pulitzer?

10th Circuit Approves Daubert Challenge Raised in Footnote

In an unpublished opinion, the Tenth Circuit has upheld the exclusion of a physician's expert testimony in an FTCA action arising from a vehicular accident. The Daubert objection was raised and adjudicated by methods that seem procedurally dubious, but the panel approved them. See Solorio v. United States, No. 02-4227 (10th Cir. Jan. 15, 2004) (Seymour, Briscoe, & Lucero, JJ.) (unpublished).

The facts: Plaintiff's decedent was killed when struck by a vehicle driven by a federal employee. The vehicle veered into a barricaded construction area, hit a dirt pile and cement barrier, and then struck and killed the victim. Shortly before the accident, the vehicle was observed swerving. Shortly after it, the vehicle's driver was observed in the throes of a seizure. The driver had no history of seizures. Did the accident's impact cause the seizure, as the plaintiff contended? Or did the seizure cause the accident, negating negligence, as the government claimed? The driver had no useful memory on the subject, and so both sides retained medical experts to support their respective positions.

The government moved for summary judgment on the negligence issue. Its opening summary judgment brief contained a footnote citing Daubert and stating: "Dr. Savia's subjective belief or unsupported speculation is inadmissible as expert testimony." But the government filed no separate motion to strike. Responding to the summary judgment motion, plaintiff did not address the government's footnoted objection, but did rely on the challenged expert's opinion. On reply, the government attacked the admissibility of the expert's testimony explicitly. At the summary judgment hearing, the district court invited argument on the Daubert issue. Two days later, without convening a separate Daubert hearing or any further proceedings, the district court issued an order excluding the expert's testimony and awarding summary judgment to the government. On appeal, the plaintiff argued surprise, but the Tenth Circuit panel concluded that the footnote placed plaintiff on sufficient notice, and upheld the district court's disposition.

Let's leave to one side the intriguing question whether expert testimony was truly necessary, on this fact pattern, to raise a triable issue of negligence. (No fact witness testified to a pre-accident seizure.) Far more troubling is the notion that an objecting party can trigger the entire Daubert process without even filing a motion in limine, simply by the casual insertion of an uninformative boilerplate footnote in a summary judgment brief. There is the lingering feeling that the proponent in this case did not receive that Process which was Due. Perhaps this will help persuade the world to give a second look at our proposed model local rule to govern Daubert proceedings.

9th Circuit Upholds Opinion from Insurance Industry Expert

In an unpublished opinion, the Ninth Circuit has upheld testimony from the plaintiff's expert on insurance industry standards, in a claim for bad faith termination of disability benefits. The panel rejected the contention that the admissibility of such testimony must be gauged by reference to peer review, publication, or error rates. In any event, the defendants waived their reliability objections at trial. See Greenberg v. Paul Revere Life. Ins. Co., No. 02-16501 (9th Cir. Jan. 12, 2004) (Pregerson, Beam, & Paez, JJ.) (unpublished).

6th Circuit Upholds Criminalist Testimony on Ballistics, Footprints

The Sixth Circuit has upheld the admissibility of a multi-tasking criminalist who offered expert testimony both on ballistics and on a latent footprint. The defendant raised no objection at trial, and so review was for plain error. The criminalist reached his ballistics opinion via "firing pin comparison." The government did not establish any substantial foundation for the reliability of that method, but on plain error review, the panel upheld the testimony, because the criminalist did establish his training and experience, and did at least identify the test he performed. His footprint testimony was upheld on the grounds that the expert explained his experience, described the methods he used, and vouched for their general forensic acceptance. See United States v. Rodgers, No. 02-3975 (6th Cir. Jan. 6, 2004) (Krupansky, Moore, & Rogers, JJ.) (unpublished).

Voting Scandal at Blog 702

Our apologies to readers who tried to vote on the critical issue of citation forms for unpublished opinions. The Ikonboard software that runs the User Forum apparently keeps insisting that voters in surveys be registered members, despite our repeated instructions to the software that it should insist on no such thing.

To avoid further frustration by would-be voters, we have committed a Cardinal Blogging Sin, and deleted the relevant posts altogether. This may disserve the all-important Historical Record. But it's the exigent thing to do. Now if only we can persuade the Google cache to forget . . . .

New York Ponders "Beyond Any Doubt" Standard for Capital Cases

On 11/2/03, we posted on the proposal of Massachusetts Governor Mitt Romney to limit the death penalty to cases where the physical and forensic evidence satisfies "the highest evidentiary standard." Call this the "gatekeeping" method of tinkering with the machinery of death.

Today's New York Times now reports that capital defense lawyers are asking the New York Court of Appeals to adopt a new and higher standard of proof in death penalty cases: "beyond any doubt." Call this the "burden of proof" approach.

To what extent would the "burden of proof" method tend to bring the "gatekeeping" method in its wake?

Under the "reasonable doubt" standard, the two inquiries (admissibility and weight) still seem distinct in practice -- at least in federal criminal cases, which are the only criminal cases we tend to read. The "reasonable doubt" standard, that is, has little or no apparent application to discretionary judicial decisions to admit forensic testimony with questionably reliable methodological and scientific foundations. The "reasonable doubt" calculus applies primarily, or only, to what jurors could reasonably conclude from the evidence, once it has been permissibly admitted.

But "beyond any doubt" would seem to up the ante, to the point of requiring something close to certainty. And the New York Court of Appeals has noted, on more than one occasion, that "expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw conclusions from the facts. It is a kind of authorized encroachment in that respect." People v. Lee, 96 N.Y.2d 157 (2001). If, as the New York defense lawyers urge, the New York Constitution should be read to impose a requirement that capital convictions be essentially doubt-free, then it becomes reasonable to ask whether testimony from a prosecution expert could constitutionally support a conviction, unless the expert's "conclusions from the facts" were themselves valid "beyond any doubt."

Update on Anthrax Vaccine

In light of the FDA's recent approval of the anthrax vaccine for use to prevent inhalation anthrax, Judge Sullivan has lifted his preliminary injunction against the military's administration of the vaccine to nonconsenting soldiers. His two-page order calls the timing of the FDA's approval "suspicious," but says that the approval addresses the "principal reason" for issuance of the preliminary injunction.

Apparently, however, this was just one skirmish in what may be a longer war. The lawyers who brought the litigation say they will continue to press for a permanent injunction, because the vaccine's proponents rely largely on animal studies whose validity they question. The lawyers also say they will seek class certification.

Update on Silicone Breast Implants

First the FDA appeared poised to reapprove silicone breast implants. Then doubt crept in. Now, the FDA has settled on delay.

7th Circuit on Daubert and Immigration Proceedings

The Seventh Circuit has developed a healthy jurisprudence on the lessons Daubert may hold for adjudicative proceedings conducted by administrative agencies. Judge Posner has now authored what may prove to be an important opinion on how far the "spirit of Daubert" should inform immigration proceedings. See Niam v. Ashcroft, No. 02-4292 (7th Cir. Jan. 7, 2004) (Posner, Ripple, & Williams, JJ.).

Daubert Aids Plaintiffs in 10th Circuit Decision

In an unpublished decision, the Tenth Circuit has awarded plaintiffs a new trial in a wrongful death case arising from an auto collision. The district court did not satisfactorily discharge its gatekeeping function in overruling plaintiffs' Daubert objections to defendants' expert testimony on accident reconstruction and biomechanics. See Tuato v. Brown, No. 02-2007 (10th Cir. Dec. 30, 2003) (Seymour, Henry, & McConnell, JJ.).

Fen-phen Experts Questioned

Over at litig8r.net, Franco Castalone has this post about cardiologists whose work as experts in the fen-phen class action litigation is being criticized. One of them reportedly interpreted 10,000 echocardiograms in a single year, generating a $3 million fee.

More on Coffee

Over at overlawyered.com, the perpetually diverting Ted Frank expresses dismay that coffee-burn litigation has again reared its controversial head, this time in a lawsuit against Starbucks boasting a $10 million ad damnum clause.

Frank says the lawsuit's filing shows that the "plaintiffs' bar" (at least he didn't say "trial lawyers") "misled" people insofar as it claimed that McDonald's was serving coffee at temperatures so high as to fall outside the commercial mainstream. Actually, of course, if such a thing has been shown at all, it would be the burns from the Starbucks coffee that have shown it, and not the filing of some lawsuit. But that's an unimportant quibble, compared to the larger point, which is that the new litigation cries out for application of the blog 702 test: Did the coffee possess sufficient gastronomic appeal to justify the high temperature at which it was served? In the case of McDonald's, the answer seems a clear no. But Starbucks might have a better chance.

Ted Frank responds: "I don't think the entry I posted ever claimed that the lawsuit's filing, rather than the burns themselves, showed that McDonald's coffee was not uniquely hot. You're the second prominent person to suggest that I've indicated dismay over the Arslanian lawsuit, but the post expressly disclaims any criticism of Arslanian's complaint."

We respond right back: The "quibble" we discussed may be with our own mischaracterization, and apologies are due if we have mistaken Ted Frank's meaning. Meanwhile, it is mildly alarming to be called prominent.

More on the Anthrax Vaccine

Sometimes bureaucracies act swiftly. In the wake of a December 23 order preliminarily enjoining the Army's administration of the anthrax vaccine to nonconsenting soldiers, the FDA required only one short week (and over the holidays, at that) to complete its approval of the vaccine for protection against inhalation anthrax. This has probably rescued President Bush from any necessity to issue a potentially embarrassing presidential waiver authorizing the vaccine's mandatory administration to unwilling armed services personnel, and has also cleared the way for the Department of Defense to place a $30 million order for more vaccine.

It is a little startling to observe the level of disgruntlement that the district court's preliminary injunction has meanwhile sparked. Even if one disagreed with the ruling on the legal merits (as would not seem effortless to do, as of the date of its issuance, when the FDA had yet to give explicit approval of the vaccine for protection against inhalation anthrax), one might conclude, in a philosophical spirit, that reasonable jurists could differ over how much solicitude to display for American soldiers forced to submit, over their objections, to a vaccine involving nontrivial risks and debatable efficacy. But in some quarters, medium to high dudgeon has instead broken out, with accuracy an occasional casualty. Even Ted Frank, a justly respected commentator who usually takes pains to get it right, has wandered into uncharacteristic misstatement, mistakenly alleging, in a post somewhat tendentiously captioned "Anthrax Vaccination Pseudoscience," that "trial lawyers" prevailed upon a federal judge to "ban" the vaccine's "use." (The judge merely enjoined the military's administration of the vaccine to unwilling recipients, expressly permitting its administration to soldiers giving their informed consent.)

The "trial lawyers" behind all of this, by the way, scarcely qualify as rabid members of the plaintiffs' posse, if their vitae on the web are any guide. Mark Zaid appears to be an occasional thorn in the government's side, but his practice seems to focus largely on public policy matters, like the military anthrax case, not suited to the generation of stratospheric fees. (We'll see if he writes and chastises us for saying that.) Meanwhile, John J. Michels, Jr., is an alumnus of the U.S. Air Force Academy, served a 14-year stint as an officer before entering the reserves, and is a partner at McGuire Woods -- scarcely a plaintiffs' bastion.

Putting aside all the politics and the rhetoric, what about the scientific merits? Critics of the injunction ruling seem uneasy shouldering the burden of proving the vaccine's safety and efficacy -- admitting the absence of controlled clinical studies measuring the vaccine's effectiveness against inhalation anthrax in humans, as they must, and relying in large part on anecdotal data and animal studies of the sort that toxic tort claimants are perennially slammed for invoking. The injunction's critics seem more comfortable attacking the vaccine's doubters for failing to prove its inefficacy -- a posture that more readily permits the critics their usual rhetorical devices, including the brandishing of epithets like "pseudoscience."

Well, it's not an easy matter, is it, bearing the burden of proof? But to whom should we really assign it, when medical interventions are administered against the subjects' will? Would it really be so outrageous, to be as finicky in this context as we are in others?

Ted Frank responds: "I've corrected the error in describing the injunction as a ban on the vaccine. [Ted Frank's revised post is available here. --ed.] The opinion is still wrong. It failed to grant Skidmore deference to the informal FDA opinion (even as it acknowledged that the evidence in favor of the injunction was complex and contradictory), and then performed a balancing of interests that gave no weight to the fact that we're at war. I think Smith makes a persuasive case that the judge's balancing of interests was poor."