Which Federal Rule of Civil Procedure We Are

WE ARE RULE 8(a)!

"You are Rule 8, the most laid back of all the Federal Rules of Civil Procedure. While your forefather in the Federal Rules may have been a stickler for details and particularity, you have clearly rebelled by being pleasant and easy-going. Rule 8 only requires that a plaintiff provide a short and plain statement of a claim on which a court can grant relief. While there is much to be lauded in your approach, your good nature sometimes gets you in trouble, and you often have to rely on your good friend, Rule 56, to bail you out."

Which Federal Rule of Civil Procedure Are You?

More on Lead in D.C. Water

The City of Washington, D.C., will be offering free blood tests for lead this weekend, for all comers, according to a report in today's Washington Post (registration required). The City's Department of Health has posted a health advisory. The Water and Sewer Authority has posted this map of lead service line locations. Criticism of WASA meanwhile continues to mount. At least one class action lawsuit is reportedly in preparation.

Hair of the Dog

A dog hair is found at the murder scene. Did it come from the defendant's dog? Time to haul out the DNA kits. According to press reports, the judge in an Illinois murder trial has ruled that expert testimony matching the DNA from crime-scene dog hair to the defendant's dog will be admissible. There has already been similar testimony about the defendant's own hair, estimating that only .007 per cent of the population would match the DNA from the human hair found at the crime scene, as the defendant's hair does. But apparently the prosecution wishes to gild the lily.

The prosecutors say evidence on dog hair DNA has been used in other cases, but we can't find them. In 2003, the Washington Court of Appeals held that it was error for a trial court to admit canine DNA evidence without a Frye hearing, albeit harmless error in the circumstances of the case. "We have examined the record, existing case law on DNA evidence, scientific literature on the canine genome, and the documents submitted at our request by the parties," the Washington court said. "Based on this information, we are not convinced that forensic canine DNA identification is a theory that has received general acceptance in the scientific community, or that reliable techniques or experiments exist to identify individual canines for forensic purposes." See State v. Leuluaialii, 118 Wn. App. 780, 77 P.3d 1192 (2003).

How They Do It in Texas

In a missive from Jim Dedman, of jdedman.com, we learn of a Texas Court of Appeals decision reprising Kumho Tire. The plaintiff in the Texas case died when his vehicle rolled over after a tread separated from a tire. Surviving family members sued Goodyear, alleging a manufacturing defect. The jury returned a verdict for plaintiffs, but the Court of Appeals reversed, holding that plaintiffs' expert evidence was unreliable and improperly admitted. As in Kumho Tire, the court observed that tactile inspection of the tire might be an appropriate method for determining the cause of failure in general, but that plaintiffs had not established the reliability of the specific procedures employed by this particular expert. See Goodyear Tire & Rubber Co. v. Rios, No. 04-02-00574-CV (Tex. App. San Antonio Feb. 25, 2004).

Texas basically follows Daubert, with a couple of additional "factors" thrown in. So this outcome probably should not be viewed with astonishment.

Jury Returns Verdict for IBM in Santa Clara "Clean Room" Trial

After just two days of deliberations, the jury has found for IBM in the Santa Clara "clean room" trial. IBM's counsel says that if you put on a four-month case and can't get the jury to deliberate for even three days, it says something about the strength of your claims. Plaintiffs's counsel say they were shackled by adverse evidentiary rulings under California law and will do better in other cases. See today's New York Times story for further details.

Iowa Supreme Court Limits Prosecutors' Cross-Examination of Experts

Litigators often want to ask the opposition's experts whether they have frequently testified on one particular side of an issue, as a way of suggesting that the experts are biased, or as a way of implying that the experts make their living from marketing reliably friendly opinions to litigants in need. Such cross-examination is widely assumed to be fair game.

Not necessarily, it transpires, if you're an Iowa prosecutor. The Iowa Supreme Court has ordered a new trial for a babysitter convicted of murdering a child under her care, based in part on prosecutorial cross-examination along these very lines. The prosecution's theory was that the babysitter had caused blunt head trauma to the child. The defendant's expert opined that that the child's head trauma had occurred much earlier. On cross, the county attorney's questioning attempted to connect the expert's opinion to a presentation the expert had given "in front of all the defense lawyers here in the State of Iowa." The prosecutor also asked: "You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn’t that true?" The prosecutor went on to imply that the expert had testified on 46 occasions on behalf of persons charged with killing children.

The Iowa Supreme Court's opinion condemns such prosecutorial questioning as an "improper effort to demean the witness," citing the ABA Standards for Criminal Justice, which provide: "The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily." Now what about civil trials? See State v. Werts, No. 173/01-1813 (Iowa Sup. Ct. Feb. 25, 2004).

IBM "Clean Room" Trial in Santa Clara Goes to Jury

According to the New York Times, jurors have begun deliberations in the Santa Clara trial of claims by IBM workers who say their non-Hodgkin's lymphoma and breast cancer were caused by exposure to workplace chemicals. Per the Times: "The outcome could be far-reaching for the technology industry because the chemicals involved were widely used in electronics manufacturing in the 1970's and 1980's."

Bernstein & Jackson on Daubert in the State Courts

Along with Jeffrey D. Jackson, of the Kansas Judicial Center, the estimable Professor David E. Bernstein, of George Mason University's School of Law, has authored a very helpful and carefully researched article (forthcoming in Jurimetrics) about the adoption of Daubert in the state courts -- concluding that only a minority of states have embraced the Daubert trilogy in a full-blown way. The article, entitled "The Daubert Trilogy in the States," is available for download at the SSRN site.

10th Circuit Upholds Exclusion of Fire Experts' "Pyrolysis" Opinions

The Tenth Circuit has published an opinion upholding the exclusion of testimony from multiple plaintiffs' experts who opined that a fire originated because a defective fluorescent light ballast heated the surrounding wood to a temperature of approximately 300 degrees Fahrenheit. The experts relied on a theory known as "pyrolysis," which posits that wood can catch fire at temperatures well under the usual 400 degrees, if exposed to a heat source over a lengthy period. The district court concluded that the pyrolysis hypothesis had not been subject to adequate testing for its reliability to be established in the scientific community. It also found that even if the pyrolysis theory was valid, it had not been reliably applied to the facts of the case.

Defendants did not mount a frontal assault on the concept of pyrolysis at the district court level, and in fact they arguably conceded it, but the Tenth Circuit panel said:

"[T]he district court's gatekeeper role requires it to examine the basis for challenged expert testimony to determine its reliability looking beyond the testimony of the witnesses before it to the scientific foundation for that testimony."

Read literally, that statement would seem to imply that even if every expert witness in an adversary proceeding agrees on the validity of a scientific principle, the district court is affirmatively required to evaluate the principle for itself. But the panel's opinion does rest in part on other evidentiary shortcomings that would have permitted the district court to exclude the evidence in its sound discretion. See Truck Ins. Exchange v. Magnetek, Inc., No. 03-1026 (10th Cir. Feb. 25, 2004) (Ebel, Briscoe, & Tymkovich, JJ.).

Update on Lead in D.C. Water: Bad to Worse

Per today's Washington Post: Health authorities have now advised all pregnant women and children under six in Washington, D.C., to cease drinking unfiltered tap water immediately, and to have their blood tested for lead. The Water and Sewer Authority is talking about handing out free water filters. There is also talk of providing alternate sources of drinking water for the indigent. No reported lawsuits yet.

5th Circuit Holds Challenged Damages Testimony Did Not Affect Verdict

In a trade secrets case, the Fifth Circuit has declined to overrule the district court's decision admitting lost-profits testimony from two of the plaintiff's experts, because the testimony had no impact on the verdict. The panel did not reach the issue of the testimony's reliability, because the relatively small size of the jury's $2.2 million award, in comparison with the $25 million in lost profits claimed, indicated that the jury considered and rejected the entire lost-profits analysis, awarding only development costs. See Dresser-Rand Co. v. Virtual Automation, Inc., No. 02-20834 (5th Cir. Feb. 23, 2004) (DeMoss, Dennis, & Prado, JJ.).

Commerce and the Academy

The February 24 New York Review of Books features Richard Horton's review of Sheldon Krimsky's new book, Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research? To judge from the review, the book (which we have not read) argues that university research has become too financially intertwined with the world of commerce, and that the integrity of the scientific enterprise is suffering as a result.

The review doesn't mention it, but Ralph Nader wrote the foreword.

Court Stays All New Jersey Executions Pending "Reasoned Medical Opinion"

The death penalty in New Jersey is administered by lethal injection. The regulations governing its administration were amended by the Department of Corrections in 2001 to delete a former requirement that an emergency cart be available to revive the inmate in case of a last minute stay. The rationale for this change, apparently, was that once the lethal drugs are administered, their deadly effects are irreversible.

In response to a lawsuit challenging this and other features of New Jersey's death penalty regime as cruel and unusual, a New Jersey appellate court has now stayed all New Jersey executions, for want of record evidence to support the DOC's assumption that execution by lethal injection is, and necessarily must be, an irreversible process. A prisoner whose execution-in-progress is stayed enjoys a constitutionally protected interest, according to the court, in having attempts made to revive him, if such efforts are feasible. "Consequently, unless and until DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, we are persuaded that a death sentence cannot be carried out under these regulations." The court also held that certain restrictions on media coverage of executions, including a blanket prohibition against filming the executions themselves, could not withstand First Amendment challenge without further evidence supporting the DOC's contention that the restrictions are necessary to promote legitimate safety, security, and penological objectives. The court remanded the action for further development of the factual record in the trial court. See In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, by the New Jersey Department of Corrections, No. A-0899-01T1 (N.J. Super. Ct. App. Div. Feb. 20, 2004) (Pressler, Ciancia, & Alley, JJ.) (unpublished).

On the reversibility issue, the court articulated at least three characterizations of the evidence absent which it could not sustain the regulations against constitutional challenge: a "reasoned medical opinion," an "articulated medical basis," and "strong medical evidence." If these expressions mean different things, it is the third, seemingly, that will govern. The first two characterizations were of what the record did not (yet) contain, in the court's view; the third characterization, "strong medical evidence," was used to describe what evidence would in fact be needed.

What standards of reliability would the New Jersey courts ordinarily require such evidence to meet? Except in toxic tort cases, New Jersey broadly adheres to Frye's "general acceptance" test for expert testimony. See State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997), cert. denied, 528 U.S. 1085 (2000). Under the Harvey decision, general acceptance can normally be shown in any of three ways: by expert testimony, by authoritative scientific and legal writings, or by citation of judicial opinions reflecting general acceptance of the relevant theory. But other fine points of New Jersey law that fall beyond our ken may also be relevant here. For example, the deference sometimes afforded to agency "expertise" may be a factor. It will be fascinating to see what kind of evidence the Department of Corrections develops on this issue.

National Academies Approve Pesticide Testing in Human Subjects

On 11/15/03, we posted on the questionable ethical propriety of testing pesticide safety on paid human subjects. The National Academy of Sciences has been evaluating the issue at the EPA's behest, and has now concluded that such testing may be permissible under certain circumstances, the Washington Post reports.

From the NAS press release: "[S]cientific investigators should take steps to avoid exploitation of any particular social group. . . . All parties involved in designing and evaluating a research protocol should consider whether the proposed level of remuneration given to participants would constitute exploitation or offer an undue incentive to take part."

2d Circuit Opinion Analyzes Line Between Expert and Lay Opinion

In reversing a jury's $132 million civil RICO verdict in a bank fraud trial, the Second Circuit has issued an opinion addressing the vexing problem of where lay opinion under Rule 701 leaves off, and where expert opinion under Rule 702 begins. The plaintiffs offered an employee to testify in the form of lay opinion about various aspects of banking practice and custom. The district court admitted the testimony, citing the witness's years of experience in international banking, as well as the testimony's grounding in principles of "common sense." The Second Circuit held that insofar as the testimony rested exclusively on the witness's experience, it was subject to Rule 702's disclosure requirements for expert evidence, and not properly admissible as lay opinion. The court also held that Rule 701 violations are subject to a harmless error analysis, but did not reach the issue of whether this particular error was harmless, because reversal was required in any event by virtue of a faulty jury instruction. See Bank of China v. NBM LLC, No. 02-9267 (2d Cir. Feb. 17, 2004) (McLaughlin, Katzmann, & Scheindlin, JJ.).

Update: An earlier version of this post mistakenly asserted that the Second Circuit panel had held the error was not harmless. Thanks to the alert readers who drew this error to our attention.

Scientists Blast Administration for Distorting Science in Service of Policy

The charge that the Bush Administration suppresses or distorts scientific findings unfavorable to its policy positions is not new. Readers may recall our post of 7/20/03 discussing a Washington Monthly article on this theme.

Sixty influential scientists, including twenty Nobel laureates, have now issued a harsh indictment accusing the Administration of systematically manipulating, distorting, and censoring scientific assessments that fail to support its political agenda. Issued under the banner of the Union of Concerned Scientists, the report accuses the Administration of promulgating bad science, and suppressing good science, to what the authors say is an unprecedented extent, in areas ranging from global warming to air quality to reproductive health.

The basics can be gleaned from the New York Times report and the UCS press release. Further details are available in the UCS report itself. You can also listen to an audio recording of the one-hour UCS telephonic press conference.

Update: Here's the 2/23/04 NYT editorial discussing the UCS report. Meanwhile, a piece by Michael Benson in the International Herald Tribune is invoking the specter of Lysenkoism.

GPS Evidence Admissible in Peterson Trial

According to a CNN report, the judge in the Peterson murder trial has ruled that the GPS evidence offered by the prosecution, tracking Scott Peterson's vehicular comings and goings after Laci Peterson went missing, will be admissible. The evidence rests on a methodology that is "generally accepted and fundamentally valid," Judge Delucchi said.

Debate over GPS Evidence Continues in Peterson Trial

Here's the CNN story.

Daubert and the Packing of Oblate Spheroids

In the year 1611, as part of his investigations into atomistic hypotheses, Johannes Kepler conjectured that the way to pack the greatest number of identical spheres into a given space was to stack them like oranges on grocer's shelves, in an arrangement known as face-centered cubic packing. Kepler calculated that the spheres in such an arrangement would occupy about 74% of the space in question. In 1840, famed mathematician Carl Friedrich Gauss offered a proof of Kepler's conjecture for spheres arrayed in a regular lattice. Only in 1998 was the conjecture proved by Thomas C. Hales to hold true for all possible arrangements, even irregular ones.

Left to themselves, randomly distributed spheres are less efficient space-fillers, occupying, on average, only about 64% of the space available. Do other convex objects occupy space more densely, when randomly distributed?

It now transpires that oblate spheroids do. According to press reports, physicist Paul Chaikin, working with his Princeton colleague, chemist Salvatore Torquato, has established that randomly distributed oblate spheroids will occupy up to 68% of the space into which they are packed. The results were announced in the February 13 issue of Science.

This research has wide implications, we are told, for inquiry into such deep issues as the structure of matter, as well as various potential practical applications -- e.g., the construction of less porous ceramics.

What interests us for the moment, however, is the methodological approach taken by Chaikin and Torquato to investigating the problem. Their approach involved vats of M&M's. Plain chocolate M&M's.

Chaikin's interest in spheroid packing was sparked when his students, wanting to poke fun at Chaikin for his habit of lunchtime chocolate consumption, smuggled a 55-gallon drum full of M&M's into his lab. It happens that M&M's are almost perfect spheroids, and are extremely uniform in size and shape. Seizing on this serendipity, Chaikin and Torquato commenced to pour M&M's into containers and count them. When questions arose about whether the M&M's at the center of the containers were perhaps spontaneously arraying themselves in nonrandom configurations, they ruled out that possibility by giving the containers an MRI. To assess their hypothesis that the oblate shape of the M&M's permitted more numerous points of contact between individual M&M's, facilitating denser packing, they had an assistant pour paint through the containers, remove the M&M's, and count the unpainted spots on them.

What is striking about this description is how easily it lends itself to either of two characterizations. In one, the scientists are ridiculed (probably by some attorney) for the unorthodox and even unprecedented techniques they used to reach their conclusions. In the other, they are extolled for following the best experimental traditions of empirical science, and for submitting their findings to a learned journal. On how many occasions, we wonder, does this same basic pair of alternative characterizations play itself out in courtrooms?

We do know one thing. You can now win the raffles where the prize goes to whoever comes closest to guessing the number of plain M&M's in the glass container. Estimate the volume of the container in cubic centimeters, multiply by .680 (the fraction of the container's volume actually occupied by randomly distributed chocolate spheroids), and divide by .636 (the volume of a plain M&M in cubic centimeters).

John Edwards and Cerebral Palsy (cont'd)

The debate on John Edwards's representation of cerebral palsy victims with malpractice claims continues, with Franco Castalone posting an extended discussion of the medico-scientific literature on cerebral palsy causation as it stood during John Edwards's legal career, in response to Walter Olson's most recent salvo.

Castalone's broader point, if we are interpreting him correctly, is that once you delve into the details, the scientific questions arising in litigation often lack the simple and unequivocal answers that participants in political debate may want to portray them as having. The same is true, let it be said, of the legal questions. Most Americans probably have no better understanding of the detailed rules and processes governing civil litigation than they do of the principles of particle physics. The combined prevalence of scientific and legal illiteracy leaves a lot of room for partisans to spin things their way, and few are seen to resist the temptation. To us, this implies that alongside the debate over the ethical bona fides of lawyers who offer scientific evidence that their adversaries may consider dubious, there is also room for inquiry into whether public discourse on the science wars is currently being conducted in an acceptably ethical fashion. Here are some criteria that may be relevant to such an inquiry:

-- Is the speaker's discourse free from ad hominem attack?
-- Is it free from needlessly inflammatory rhetoric, and from question-begging dysphemisms like "junk science"?
-- Does it recognize the possibility of legitimate disagreement?
-- Does it pander to the audience's preconceived antipathy for lawyers?
-- Does it marshall its evidence in an intellectually honest fashion, disclosing the existence of contrary evidence?
-- Does it engage the underlying science in more than a superficial or partisan way?
-- Does it propose practicable and balanced solutions to any problems to which the speaker may be pointing?

These are high standards, to which few would always succeed in conforming. And we have probably missed some important factors that would also warrant attention. But maybe politico-legal discussion should try to follow some standards of intellectual integrity too, and we have to start somewhere.

Update: Franco Castalone's commentary had already satisfied most of these conditions. With the publication today of his latest post, on no-fault compensation systems for cerebral palsy cases, he seems to us to have satisfied all of them.

Second Circuit Affirms Exclusion of Design Defect and Accident Reconstruction Testimony

In a published opinion, the Second Circuit has affirmed the trial court's exclusion of expert testimony from three engineering and accident reconstruction witnesses who opined that the injuries sustained by plaintiffs in an automobile accident were attributable to the vehicle's defective design. See Zaremba v. General Motors Corp., No. 03-7565 (2d Cir. Feb. 13, 2004) (Cardamone, Cabranes, & Mukasey, JJ.).

Live Testimony Concludes in CA Trial of Toxic Tort Claims by IBM Employees

In the California trial of claims by IBM employees that exposure to chemicals in IBM "clean rooms" caused their cancers, the defense has presented its final live witness: toxicologist John Whysner, who opined that the exposures played no causal role. Closing arguments are scheduled for next week. The San Jose Mercury News has the story.

GPS Evidence in Dispute at Peterson Murder Trial

The court in the Laci Peterson murder trial is conducting a hearing into the admissibility of evidence from GPS devices that police planted on Scott Peterson's vehicles, to track his comings and goings during the weeks after she was reported missing. It is apparently an issue of first impression in the California courts.

In re Janet Jackson's Breast -- Class Complaint Withdrawn

CNN reports that the nationwide class action lawsuit filed on behalf of all victims of Janet Jackson's right breast (see our post of 2/7/03) has been withdrawn. Despite an alleged outpouring of support from hundreds of parents throughout the Nation, the representative plaintiff has concluded that she will wait to see whether the network's remedial measures turn the trick.

The attorney who filed the action must be grateful that Fed. R. Civ. P. 23 was recently amended to clarify that individual notice need not be sent to all putative class members (an estimated 80 million viewers, in this case) when a class action is dismissed or settled prior to class certification.

All Americans will want to remember, meanwhile, that the statute of limitations is now running again. It was tolled during the six-day pendency of the Tennessee lawsuit under American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), but the clock is now ticking once more, by virtue of the suit's dismissal. Assuming that choice-of-law principles would dictate application of the pertinent Texas statutes of limitation under principles of lex locus delicti, litigants apparently would have anywhere between one and four years to file, depending on whether they favor the Tennessee lawsuit's defamation theory, under which Janet and Justin should pay damages to all Americans who were held up to worldwide opprobrium and ridicule, or the breach of implied contract theory, under which the networks violated an implied covenant not to air anything seamy during the Super Bowl.

A word to the wise: Don't wait until the last minute to line up your expert on wardrobe malfunction.

National Academies Study Recommends Limits on Bullet Lead Comparison Testimony

That National Academies' National Research Council has released its report on bullet lead comparison evidence, concluding that there are inadequate underlying data to support forensic testimony that some particular bullet came from some particular box, or was manufactured on a particular date. The NRC also says that FBI examiners should not rely on bullet lead analysis to testify in criminal cases about the statistical probabilities that a crime-scene bullet originated with the defendant. Details are available in an NRC press release and in the full NRC report.

TalkLeft also has more.

Mercury in Vaccines, and Elsewhere

Today's NYT reports on testimony yesterday before a federal panel evaluating whether a link exists between thimerosal, a mercury-based preservative used in routine childhood vaccines, and rising rates of autism. The epidemiological witnesses tended to discount any connection; the toxicologists seemed readier to perceive one. Among other reasons for investigating the link, the issue recurrently arises in proceedings under the National Vaccine Injury Compensation Program.

Meanwhile, however, another article in today's Times indicates that if mercury is the cause of increased autism rates, thimerosal from vaccines may not be the only source. The EPA is now estimating that one child in six is at risk for developmental disorders from intra-uterine mercury exposure -- double its previous estimates.

Harmless Error to Exclude Psych Testimony on ADD at Sentencing, Says 7th Circuit

The Seventh Circuit says it was error to exclude testimony at the sentencing phase from a bank fraud defendant's psychologist, who opined that defendant was unable to concentrate on financial matters because he suffered from Attention Deficit Disorder. The district court ruled the testimony inadmissible under Daubert. The Seventh Circuit panel noted that under the sentencing guidelines, any testimony is admissible during sentencing proceedings if it bears "sufficient indicia of reliability" -- a less stringent standard than Daubert imposes. But the error was harmless, according to the panel, because the trial court did actually consider the testimony and legitimately discounted it. See United States v. Ferron, No. 03-1911 (7th Cir. Feb. 9, 2004) (Bauer, Posner, & Easterbrook, JJ.).

Employee Toxic Tort Suit Against IBM to Go to Trial in New York

The National Law Journal reports that another employee suit against IBM is going to trial, this time in New York, alleging personal injuries as a result of exposures to chemicals in IBM's "clean rooms." The New York case is the first to involve a birth defect claim. Controversy centers on a John Hopkins study commissioned by IBM. According to IBM, it shows no statistically significant increased prevalence of birth defects among the children of exposed employees. According to the plaintiffs, it shows a 12-fold increase in central nervous system anomalies. Thanks to The Legal Reader for the pointer.

Heroic Lawsuit Filed on Behalf of Breast-Exposure Victims

From an article posted at the law firm web site of Wayne A. Ritchie II, the attorney who has filed a federal class action complaint seeking billions of dollars for persons alarmed to have seen Janet Jackson's right breast:

"Instead of a noble and learned profession, imbued with the spirit that produced Jefferson, Madison, and Lincoln, there is an increased tendency to view the practice of law as a business, just another way to make money, a commercial enterprise, in which the emphasis is on the billable hour and the bottom line. In a day in which even a small firm can have an astounding overhead, there is tremendous pressure to bring in fees - to make money."

It's good to know that a few intrepid lawyers are still more interested in representing the downtrodden than in fame or fortune.

10th Circuit Upholds Exclusion of Testimony that Zoloft Caused Suicide

The Tenth Circuit has published a decision upholding the trial court's exclusion of testimony from a neuropsychopharmacologist who opined that Zoloft caused a teen's suicide. The appellants' main argument on appeal was that the trial court did not sufficiently permit the expert to respond to critiques of his testimony. On first reading, our impression is that the opinion may confuse substantive testimony, as to which failures of pretrial disclosure may warrant preclusive sanctions under Fed. R. Civ. P. 37(c), with material offered to established admissibility under Fed. R. Evid. 104(a), to which no comparable disclosure requirements apply. We may have more to say about this opinion after more careful review. See Miller v. Pfizer, Inc., No. 02-3092 (10th Cir. Feb. 4, 2004) (Ebel, Anderson, & Hartz, JJ.).

Why Rules Against Student Gum-Chewing Fail Rational Basis Scrutiny

The February 9 edition of the New Yorker reports on a controlled study undertaken by Dr. Kenneth Allen, a professor of dentistry at NYU, establishing beyond reasonable scientific peradventure that chewing gum in class will raise your dental anatomy grade from a C+ to a B-.

Wrigley's sugarless gum, that is, because this is dental school, after all.

Update on Lead in D.C. Water

Per today's Washington Post: "The D.C. Water and Sewer Authority fired a high-ranking manager last year who had repeatedly warned top agency officials and federal authorities of lead contamination in the city's tap water before tests last summer revealed that the lead exceeded federal limits in thousands of homes."

New Atom 0.3 Feed for Blog 702

Because Blogger now makes it for us, automatically, we have added a new Atom feed -- really simpler syndication, from the Blogger patron's point of view. Those who favor the witty teasers in our manually prepared RSS feed may continue to indulge their preference.

Intelligence and Scientism

Today's NYT Op-Ed piece by David Brooks ("The C.I.A.: Method and Madness") is worth a read. In more than one area of human inquiry, bureaucracies have built false auras of scientistic prestige from whatever ramshackle techniques happen to have been available, in local intellectual toolsheds whose inventory may owe as much to unexamined custom as to any rational design. This may even happen, sometimes, at universities.

Recap of Federal Appellate Decisions in January

January was one of the busiest months on record for federal appellate courts addressing Daubert questions, with sixteen decisions handed down, including eight published ones. Little new ground was broken, except perhaps in United States v. Casas, No. 02-1623 (1st Cir. Jan. 20, 2004) (excluding "overview" evidence by law enforcement officer). But some longstanding statistical trends continued. The Fourth Circuit, for example, has yet to reverse a decision excluding expert evidence in this millennium, having affirmed on 26 of 26 occasions. Over the same time period, meanwhile, the Sixth Circuit has yet to reverse a decision admitting expert evidence, affirming such rulings 27 out of 27 times.