Wednesday, March 31, 2004

Predictions of Future Dangerousness and Rates of Error

Press sources including the Houston Chronicle are reporting on a study released yesterday by the Texas Defender Service that casts doubt on expert predictions of future dangerousness in capital cases. The study followed 155 inmates labeled dangerous by prosecution experts during the sentencing phase of their trials. Only 8 of them, or about 5%, were subsequently involved in serious assaults.

Critics of the study point out that for at least part of the study period, 40 of the inmates were on death row in near-total lockdown, which is supposed to prevent assaultive behavior. There is also a difference, of course, between predicting dangerousness within a prison setting over a finite time period and predicting dangerousness in the population at large over a lifetime. The press reports don't say whether the study investigated what rate of assaultive behavior would be expected from a comparable prison population comprising inmates for whom predictions of expert dangerousness had not been made. We have no first hand knowledge of prison life. But mightn't it be expected that the number of assaultive inmates in general would, if anything, exceed 5%?

Tuesday, March 30, 2004

. . . And the Basis and Reasons Therefor . . .

Today's LA Times (subscription) reports this colloquy in the deposition of an expert witness, discussing cancellations of performances in the entertainment industry:

By the Witness: There was one show where the airplane caught fire, and so they couldn't make it.

Q: That's a good reason.

A: Yes.

Q: How were you notified of that?

A: I was on the plane.

Monday, March 29, 2004

Utah Decisions to Be Included at "Daubert on the Web"

As Texas goes, so goes Utah. A learned member of the Utah bar has now volunteered to help us track Utah state court decisions at Daubert on the Web. Stay tuned for more details.

If you're a practitioner from one of the other 48 states, this is your chance to get in on the ground floor. If you'd like to help by tracking decisions on expert evidence from your local jurisdiction, write to us now to claim your turf.

Prof. Bernstein on Expert Evidence in Asbestos Cases

The prolific Professor Bernstein has authored a law review article, forthcoming in 31 Pepperdine L. Rev. 11 (2003), entitled "Keeping Junk Science Out of Asbestos Litigation." The SSRN abstract can be viewed, and the article itself downloaded, here. Thanks to Volokh, et al., for the info.

Sunday, March 28, 2004

7th Circuit Upholds ATF Agent's Testimony on Firearms' Nexus with Interstate Commerce

In an unpublished opinion, a Seventh Circuit panel has upheld testimony from an ATF expert that firearms traveled in interstate commerce, citing the expert's extensive training and experience. This is, of course, the usual result. (Apparently, ATF even has its own "Interstate Nexus School.") The court characterized defendant's objections, which were not raised at trial, as "insubstantial." See United States v. Williams, No. 02-4361 (7th Cir. Mar. 24, 2004) (Easterbrook, Manion, & Kanne, JJ.).

Saturday, March 27, 2004

"Daubert on the Web" Dips Toes into State Law; Texans Dance in Streets

To date, this weblog's parent site, Daubert on the Web, has focused exclusively on federal appellate decisions. Users have sometimes written to ask why state law decisions are not also collected there. The answer is simple: One lawyer, by himself, can keep track of only so much. To do the states, there would have to be helpers.

But now there are some -- or at least one, in the person of Texas attorney Jim Dedman, who has graciously agreed to monitor appellate decisions in Texas and pass them along, in return for a princely monthly stipend of zero dollars and zero cents. Our sincere thanks to Mr. Dedman, whose help has already enhanced the site and, we hope, its usefulness to our visitors. (Go take a peek.)

Meanwhile, if you're an attorney who would like to help with building a page for your own state, please write to us and let us know. Because you know something? If we have our way, then not only are we going to Texas, we’re going to South Carolina, and Oklahoma, and Arizona, and North Dakota, and New Mexico . . . .

D.C. Mayor Fires Health Chief over Handling of Lead Contamination

According to today's New York Times, the mayor of Washington, D.C., has dismissed the city's chief health officer, citing his inadequate response to the problem of lead contamination in city drinking water. (See our post of 3/20/04.)

Thursday, March 25, 2004

FDCC Quarterly Addresses "General Causation"

The Federation of Defense and Corporate Counsel has released the Fall 2003 issue of the FDCC Quarterly, which includes an article by William O. Dillingham, Patrick J. Hagan, and Rodrigo E. Salas, entitled Blueprint for General Causation Analysis in Toxic Tort Litigation.

The article is indeed a fair blueprint of standard defense arguments for challenging causation, many of which center on the uses and abuses of epidemiological data. But all in all, the article is more an aspirational portrayal of the law that defense counsel might prefer, than it is a neutral portrayal of the law as it stands.

Here is how the defense blueprint works. An analytical distinction is first drawn between "general" and "specific" (or "individual") causation. "General causation" involves the general capacity of some given toxic agent to cause harm in humans. "Specific" causation involves the question whether an exposure to that agent was indeed the cause in fact of a given plaintiff's injury. This analytical distinction once drawn, it is next demanded that general and specific causation be separately proved. It is then insisted that proof of general causation be undertaken through reliance on epidemiological studies. And, in some versions of the blueprint, it is urged, finally, that the only probative epidemiological evidence would be studies showing that exposures to the relevant toxin, at relevant levels, double the incidence of the relevant health effect in the exposed population.

Volumes could be written on how the controversy over this blueprint has played out in the courts. Here we will mention only three difficulties with it.

First, the fact that the elements of some claim can be parsed into logically component parts does not always warrant the inference that separate proof for each component is necessary or even feasible. Consider wire fraud. For me to use my phone to commit wire fraud, it's logically necessary that the phone be in sound working order. That is, it must possess the generic capacity to transmit communications between humans. It is also logically necessary, of course, that the phone be used to transmit a specific fraudulent message. Yet despite the logical necessity that both conditions be satisfied before wire fraud can be made out, no one supposes that the phone's generic operability must be proved separately from its use to transmit a particular fraudulent message on some particular occasion. Factfinders can infer its generic operability from evidence showing its use on a particular day to make a specific call. This analogy does hold in some toxic tort cases -- particularly in cases where the immediacy of temporal association provides strong evidence, by itself, of a causal effect. See, e.g., Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001).

Second, even where separate proof of general causation is offered, it is unrealistic, for a host of reasons, to expect that peer-reviewed epidemiological research will be universally available. The reasons include the dubious ethical propriety of exposing human populations to suspected toxins for research purposes, as well as the sheer impracticality of conducting anticipatory epidemiological studies for every potential toxin. The FDCC authors say epidemiological evidence should be the "linchpin" of general causation analysis, but courts have routinely rejected the contention that epidemiology is categorically required. See, e.g., Rider v. Sandoz Pharms. Corp., 295 F.3d 1194 (11th Cir. 2002).

Third, even where epidemiology is available and pertinent, care must be exercised to avoid conflating general and specific causation -- as does the proposal, still advanced by some in the defense bar, that only epidemiological evidence showing a doubling of population risk should be counted as proof that exposure to a toxin caused any given plaintiff's health condition. This proposal is often rested on the notion that only a doubling of risk would satisfy the "more likely than not" burden of persuasion -- a fallacious proposition for several reasons, including its spurious equation of evidentiary likelihood with statistical measures. It is equally spurious to equate "statistical significance" with epidemiological findings showing a relative risk of 2.0 or greater, as the authors of the FDCC article do. Courts have generally declined to impose any such "doubling of risk" test in the toxic tort setting. See, e.g., In re Hanford Nuclear Reservation Litig., 292 F.3d 1124 (9th Cir. 2002).

Sunday, March 21, 2004

Comment If You Dare

We've added comments. It's an experiment. We'll keep them if readers behave.

Join the Franco Castalone Preservation Society

Franco Castalone, the pseudonymous author of the LitiGator weblog, has announced his intention to pack it in.

He must be stopped.

Frequenters of Castalone's site will know him as a thoughtful commentator whose insight and level-headedness would be sorely missed. He is also the author of the only known legal weblog to have posted photographs of attractive women bestriding a pink tank.

It would be one thing if Castalone lacked the time to continue in light of competing professional demands, or if, after many months of blogging, he had finally grown exhausted by the project of thinking up new things to say. But that isn't his reason. Here's his reason:

[T]he technical problems with Radio have proven to be intolerable. For the second time in a month, we have found that new postings and/or edited postings have not been posted to the site for several days after they were created. There is no reason that a user should have to accept such a poor level of service.
Help save the Castalone phenomenon from extinction. Send an e-mail to Franco Castalone and tell him there are other blogging services that may be more reliable. Who knows? Radio may even deliver your message.

CDC Study Discounts Link Between Claritin and Birth Defects

Various news outlets (e.g., the Atlanta Journal-Constitution, CNN, HealthDay) are reporting on a CDC-sponsored study tending to discredit any strong association between mothers' ingestion of loratadine (Claritin) during pregnancy and the birth defect in male children known as hypospadias. An earlier Swedish study had suggested that the risk of hypospadias roughly doubled when pregnant mothers took the drug. A summary of the new CDC study is posted in the CDC's current Morbidity and Mortality Weekly Report.

Is this a clean bill of health for Claritin? The media are having some trouble getting that question straight. (If lawyers are often frustrated over mistakes in press coverage of their cases, imagine how epidemiologists must feel about reportage on their own discipline.) CNN portrays the study's findings as negating a causal association. But that statement apparently goes too far. The Atlanta Journal-Constitution quotes a CDC epidemiologist who says that although the new CDC study would have captured a threefold increase in incidence, there is a 34% statistical chance that it would miss the twofold increase found in the Swedish study. And HealthDay quotes a spokesman for Schering-Plough, which makes Claritin, who advances only the fairly modest claim that the CDC study "confirms the favorable risk-benefit ratio of loratadine."

Saturday, March 20, 2004

Daubert and the Vernal Equinox

Last year, we couldn't get anyone to venture an opinion. But last year, there was no blog, and news of the challenge may not have spread very far. So we're giving everybody another chance. Why not go ahead and tackle the vernal equinox hypothetical.

Experts Quarrel over Tests re Lead in D.C. Drinking Water

Controversy over lead in the water supply of our nation's capital continues to roil. Yesterday's Washington Post reports on disagreements among experts about the significance of blood test results in city children. The results for children under six are showing blood levels 47% higher than the national average for their age group. The city's interim chief medical officer says the results show an absence of massive lead toxicity, and believes that alternative testing measures are unnecessary. But outside experts are saying that such elevated blood levels cannot be considered safe, and are calling for further testing to assess the scope of the problem. Dr. John F. Rosen, who heads up the lead program at the Montefiore Medical Center of the Albert Einstein College of Medicine in New York, is quoted as follows:

It doesn't look to me as if there is a systematic approach to protecting children. There's no doubt that lead-based paint has the highest concentrations of lead, but that does not negate the importance of dealing with excessive exposure of lead to children from D.C.'s drinking water. It contributes to . . . the amount of lead in the children's body, which has the potential of damaging their brain forever.
The city's health officer responds:

There will be people who will never consider the data definitive or sufficient to totally allay concerns, but in the real world you do the very best you can. There's a problem with lead in the water, and it has to be fixed, but that clearly hasn't had an adverse effect we can demonstrate on blood lead levels at this time.
No doubt it's possible that some critics will never be satisfied. But a 47% elevation sure sounds like an adverse effect. And as experts on lead exposure go, Dr. Rosen isn't chopped liver.

Friday, March 19, 2004

Pennsylvania Medmal Suits Drop 30% in Wake of "Reform"

According to data from Pennsylvania's Supreme Court, the number of medical malpractice suits filed last year dropped by nearly 30% from the previous three years, the Scranton Times Tribune reports. Although the reasons for the decline are uncertain, many analysts and attorneys will attribute them to substantive and procedural changes adopted by the state's legislature and the courts since 2002. These include adjustments to the state's joint-and-several liability regime, provisions to discourage venue-shopping, and the new requirement that attorneys filing medical malpractice claims obtain a "certificate of merit" from an independent health care professional attesting that treatment fell outside acceptable standards.

There's no evidence that Pennsylvania malpractice premiums have fallen as a result. We'll see if they do.

Thursday, March 18, 2004

Wisconsin Governor Vetoes Bill Adopting Daubert

Wisconsin is not a Daubert state. Under Wisconsin's law of evidence, questions of expert reliability are for the jury, and it looks as though things will be staying that way. The Republican-controlled legislature had passed a bill that would have adopted the federal standards for expert testimony. But Democratic Governor Jim Boyle has vetoed it. Here's his veto message.

11th Circuit Affirms Exclusion of Accountant's Testimony on Lost Profits

The Eleventh Circuit has affirmed the trial court's exclusion of an accountant's testimony on lost profits. The accountant's estimates were based on figures for gross sales and gross profits, without deducting associated expenses. His opinion therefore failed to square with Georgia law on lost profits, according to the panel, and it relied on methods not generally accepted in the accounting community. The panel also held that the trial court did not err in excluding the evidence even though the defendant's Daubert objection was not raised until trial. See Club Car, Inc. v. Club Car (Quebec) Import, Inc., No. 03-11169 (11th Cir. Mar. 15, 2004) (Edmondson, Birch, & Farris, JJ.).

8th Circuit Reverses Decision to Admit Economist's Opinion on Antitrust Damages

The Eighth Circuit has reversed the trial court's decision admitting an economist's testimony on damages in an antitrust case arising under section 1 of the Sherman Act. The expert was qualified, according to the panel, but his opinion was unhelpful to the trier of fact, because it failed to "incorporate all aspects of the economic reality," such as how the emergence of competitors affected the rate of growth of plaintiff's profits. The panel left open the possibility that the expert could offer a revised opinion, using an appropriate rule of reason analysis, on remand. See Craftsmen Limousine, Inc. v. Ford Motor Co., No. 03-1441 (8th Cir. Mar. 15, 2004) (Melloy, Lay, & Smith, JJ.).

Tuesday, March 16, 2004

Jury Awards $20 Million to Popcorn Worker

Those lawsuits where workers are claiming their lung diseases resulted from exposure to chemicals used to add butter flavoring to popcorn at the factory? (See our posts of 3/3/04 and 3/11/04.)

A jury has awarded $20 million to the first plaintiff, after deliberating for just two hours. The St. Louis Post-Dispatch has the story.

Sunday, March 14, 2004

Pending Legislation on Malpractice Evidence

How do you feel about a federal statute regulating expert evidence, in both state and federal courts, on the duty of care in malpractice cases, reading as follows:

(1) REQUIREMENT - No individual shall be qualified to testify as an expert witness concerning issues of negligence in any health care lawsuit against a defendant unless such individual--

(A) except as required under paragraph (2), is a health care professional who--

(i) is appropriately credentialed or licensed in 1 or more States to deliver health care services; and

(ii) typically treats the diagnosis or condition or provides the type of treatment under review; and

(B) can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment of the disease or injury which is the subject matter of the lawsuit against the defendant, the individual was substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of the lawsuit on the date of the incident.

(2) PHYSICIAN REVIEW - In a health care lawsuit, if the claim of the plaintiff involved treatment that is recommended or provided by a physician (allopathic or osteopathic), an individual shall not be qualified to be an expert witness under this subsection with respect to issues of negligence concerning such treatment unless such individual is a physician.

(3) SPECIALTIES AND SUBSPECIALTIES - With respect to a lawsuit described in paragraph (1), a court shall not permit an expert in one medical specialty or subspecialty to testify against a defendant in another medical specialty or subspecialty unless, in addition to a showing of substantial familiarity in accordance with paragraph (1)(B), there is a showing that the standards of care and practice in the two specialty or subspecialty fields are similar.

(4) LIMITATION - The limitations in this subsection shall not apply to expert witnesses testifying as to the degree or permanency of medical or physical impairment.

This or substantially similar language appears in at least three bills that have been introduced in the Senate during the current 108th Congress: S. 11 (the "Patients First Act of 2003"); S. 607 (the "Help Efficient, Accessible, Low-Cost Timely Healthcare [HEALTH] Act of 2003"); and S. 2061 (the "Healthy Mothers and Healthy Babies Access to Care Act of 2003"). As a practical matter, the language, which the bills' sponsors certainly seem persistent about proposing, would seemingly limit the pool of experts on the standard of care in medical malpractice cases to physicians currently practicing in the same subspecialty -- a requirement more stringent than existing standards under Daubert and the law of many states. See, e.g., Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15 (1st Cir. 2003).

In the context of substantive "tort reform," conservative oblivion to principles of federalism is nothing new. But attempts to regulate state court evidentiary rules represent a relatively new gambit. We wonder if this will become a trend.

The Warsaw Convention and Deep-Vein Thrombosis

Passengers on long airline flights sometimes develop deep-vein thrombosis ("DVT") -- a serious and potentially fatal condition resulting from the formation of blood clots in the legs. The condition is not rare. A study in The Lancet has put the incidence level at 1 per cent of low- to medium-risk passengers who fly ten or more hours over a period of six weeks. A recent International Herald Tribune article reports that roughly 200 airline passengers who developed the condition have sued the airlines for failure to warn of the risk or advise passengers of measures they might take to reduce it (e.g., wearing loose clothing, moving around the cabin, performing simple leg exercises in their seats, remaining well hydrated, avoiding alcohol consumption, and taking anti-clotting medications).

According to a Reuters story, some lawyers are now saying that the Supreme Court breathed new life into such lawsuits in its February 24 decision in Olympic Airways v. Husain, 157 L. Ed. 2d 1146 (2004).

Is that true?

The plaintiff in Olympic Airways was an asthmatic seated three rows from the smoking section on an international flight. He died from reactions to second-hand smoke after airline attendants refused to move him to another seat. The Warsaw Convention makes the airlines liable for "accidents" occurring on international flights. Was this passenger's death an "accident"? In Air France v. Saks, 470 U.S. 392 (1985), the Supreme Court held that under the Convention, an "accident" must involve some "unexpected or unusual event or happening that is external to the passenger," and not merely "the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft." The defendant airline in Olympic Airways argued that the passenger's adverse reaction to the second-hand smoke failed to satisfy this definition. But the Court held that liability could be imposed if the definition was satisfied by any event in the causal chain culminating in the injury, including not only affirmative acts by the airline but also failures to act. The airline's refusal to move the passenger met that condition, even though his death also resulted from the passenger's "internal" asthmatic reaction.

The refusal to move the distressed passenger in Olympic Airways could plausibly be characterized as an "unexpected or unusual" event. Can the same be said for the failure to counsel passengers about DVT? Certainly in-flight warnings about DVT have not been customary. But what is expected and usual by way of such warnings might not be governed entirely by current practices involving in-flight, DVT-specific admonitions. The airlines have long been in the business of offering safety advice more generally -- e.g., in that familiar speech from the flight attendant at departure. And some airlines have begun offering specific DVT warnings in other forums. Here, for instance, is a United Airlines web page in which the airline's corporate medical director suggests that "all travelers" should be aware of the issue, going on to boast that the carrier "always takes the extra step to provide customers and employees with added medical safety and service." Warnings can also be found, e.g., at the sites for American, China Airlines, Delta, Singapore Air, and Swissair, among numerous others. We couldn't find anything on DVT at the sites for Alaska/Horizon, America West, Frontier, Hawaiian (which does cover how to transport your bowling ball), Jet Blue, Midwest, Southwest, or US Airways.

Would offering in-flight warnings be more difficult than posting them on the internet? Let's get real. Continental and Northwest both have web pages with highly legible graphics depicting potentially prophylactic exercises, and they look as though they'd fit splendidly into that little laminated fold-out safety card in the seat pocket in front of you. (Query to our readers who fly Continental and Northwest: Are they already there?) If such warnings are not more routinely issued on the plane, the reason, we suspect, has little to do with issues of impractibility, and a lot to do with the airlines' resistance to advising passengers to get up and walk around.

Thursday, March 11, 2004

More on Daubert and Popcorn

On 3/3/04, we posted about a pending lawsuit by workers alleging that their respiratory illnesses were caused by exposure to the chemicals used to add fake butter flavoring to microwave popcorn in the manufacturing process. We noted that public health officials were reassuring the public that microwaving the popcorn at home wouldn't hurt you.

What the health officials should have said, apparently, is that no study has yet been completed on the issue of consumer risk. According to ABC News, EPA is now investigating.

Wednesday, March 10, 2004

Class Action Announced over Lead in D.C. Water

Lawyers from Paul Hastings, Janofsky & Walker have announced the filing of what appears to be the first class action complaint over lead contamination in D.C. drinking water. The suit seeks damages and injunctive relief.

Pennsylvania Radar Guns Questioned

According to allegations reported in the Philadelphia Daily News, the Pennsylvania state police are using defective Genesis radar guns that would clock a parked car at 70 m.p.h. According to a police expert subpoenaed to testify in a speeding case, the electrical systems in the police vehicles (Ford Crown Victorias) have to strain to handle the heavy electrical load of the radar and other police equipment. This causes the vehicles' alternators to work overtime, producing electrical noise that the radar guns misinterpret as a valid radar signal. The radar gun's manufacturer has recommended a fix, but the state police say it's unnecessary and continue to use the devices.

Tuesday, March 09, 2004

Update on Earprints

On 1/25/04, we posted on the difficulties encountered by earprinting as a forensic methodology in English and American courts. Undeterred by such evidentiary setbacks, enthusiasts at the University of Leeds in England have now developed a computerized database of British earprints, according to Reuters.

Felons of the world take note. It's not enough to bring gloves to the crime scene anymore. You'll need to wear earmuffs too.

Monday, March 08, 2004

Science and Psychology

Today's New York Times is running an article by Erica Goode on academic psychologists who are challenging the empirical basis for a number of common therapeutic tools and diagnoses, ranging from Rorschach tests to Munchausen's syndrome by proxy. The basic underlying debate is nothing new, of course. Psychology may be one of those fields that is defined more by its common objects of study than by any consensus on methods, and there has long been tension between proponents of rigorous quantitative and empirical methods versus psychologists favoring "softer" approaches.

The truth may be that one needs the right tools for the particular job at hand. It is legitimate, on the one hand, to try to test the efficacy of therapeutic measures through empirical methods, if only because ineffective therapies are useless at best and dangerous at worst. On the other hand, not every important aspect of human thought or behavior is easily amenable to scientific or quantitative analysis, and both medical and psychological interventions sometimes require practitioners to take steps that have often proved successful in the past, even though we may not fully understand why they work, when they do.

By what standards, then, should psychological claims be judged? That question is complex, and certainly it cannot be resolved by any simplistic nostrums we might inscribe in a web log. One proposition seems fair, however. Psychological theories and techniques should be tested against scientific standards whenever their proponents claim scientific status for them. That claim is often tacitly made, it seems to us, when a litigant is placed in some diagnostic category. If, for example, a mother in a custody battle faces testimony that she is afflicted by Munchausen's by proxy, the force of the testimony goes beyond mere allegations that she has subjected her children to medical abuse in the past and could therefore repeat that conduct. It suggests in addition that her future behavior is likely to be governed by a recognized mental health condition, and may be predicted by reference to features objectively associated with that condition. If we are to engage in the business of screening expert testimony at all, then before such testimony is permitted, it seems reasonable to demand some degree of rigorous empirical support for the condition's actual objective existence -- i.e., some showing that the "condition" amounts to more than fancy nomenclature for a recurrent pattern of human conduct, invented by some psychiatrist on a quiet day at the office. The same might be said, no doubt, of various modern "syndromes" offered in exculpation of misconduct.

Sunday, March 07, 2004

Expert Testimony, the Fifth Amendment, and Martha Stewart's Appeal

According to the Washington Post and other sources, Martha Stewart's appeal is likely to challenge the trial court's exclusion of expert evidence that her stock trade wasn't illegal. We didn't follow the trial closely and don't know the precise legal basis for the court's evidentiary ruling. We are gathering, however, that the ruling may have been based in part on the notion that the technical legality of the trade was not immediately relevant to the question at issue -- i.e., whether Ms. Stewart had a motive to obstruct investigations into it (a question that might depend more directly on what she personally believed, rightly or wrongly, about the trade's legality). Our conjecture seems to fit with reports that the judge was prepared to let Ms. Stewart testify about her own beliefs on the subject, if she took the stand.

Admittedly, Ms. Stewart might have believed the trade illegal notwithstanding its technical legality. Still, the issue of the trade's actual legality does seem circumstantially germane to the issue of Ms. Stewart's beliefs about its legality, if only because Ms. Stewart is a former stock broker. And expert testimony probably represents one of the few vehicles through which the defense could present its case on the issue without waiving Ms. Stewart's right not to testify. Sometimes exclusionary rulings are defensible partly because the party possesses ample alternative means for making her case. But does such a justification so readily suffice, when the alternatives would entail the waiver of constitutional protections?

However that may be, Ms. Stewart may face an uphill battle on appeal. The court's evidentiary ruling does not appear to have revolved around issues of testimonial reliability under Daubert and Kumho Tire. But if Daubert rulings in parallel situations afford any guide, the Second Circuit may be slow to find that the trial court abused its discretion. Based on our running tally, the Second Circuit has not reversed a ruling excluding testimony under Daubert in this decade. Over that same period, not once, so far as we can tell, has any federal appellate court upheld expert attorney testimony against challenge under Daubert.

Saturday, March 06, 2004

7th Circuit Reverses Exclusion of Civil Engineering and Human Factors Testimony

In a legal malpractice case, the Seventh Circuit has reversed the trial court's exclusion of testimony from a civil engineering and human factors expert. The lower court barred the expert from testifying that the Cook County government's failure to maintain a road appropriately caused the accident at issue in the underlying litigation. The appellate panel faulted the district court's failure to explain its reasoning, apart from a simple recitation of the Daubert factors that omitted to detail how the district court applied them to the testimony in question. Although the panel left the Daubert issue for the district court to resolve afresh on remand, it strongly hinted that the testimony was well-defended and should be found admissible. See Mihailovich v. Laatsch, No. 01-3885 (7th Cir. Mar. 5, 2004) (Bauer, Manion, & Rovner, JJ.).

Friday, March 05, 2004

How They Do It in Hong Kong

During an idle surfing moment today, we stumbled across this disturbing piece of evidence that Daubert is a communist plot.

Gay Marriage, the Constitution, and Social Science

According to AP reports, both sides in the pending gay-marriage litigation in California want to offer research and testimony from social scientists about the allegedly harmful effects of prohibiting or permitting it.

May 17 will mark the fiftieth anniversary of Brown v. Board of Education, 347 U.S. 483 (1954), which also relied on social scientific research, in the opinion's famous eleventh footnote, to lend legitimacy to the Court's assessment that segregation worked deleterious effects on schoolchildren. Heated debate over that reliance raged for many years, with many liberals tending to celebrate the Court's supposed embrace of social science, and many conservatives tending to decry it -- perhaps partly from a sense that the Devil himself could cite social science to suit his purpose. Despite their disagreements on the merits, both sides in that debate tended to share the common belief that the Court did rely heavily on the cited research in framing its constitutional analysis.

In later years, a growing body of scholarly commentary has come to question whether the research cited in Brown's footnote 11 was really pivotal in the Court's constitutional decision. See, e.g., Sanjay Moody, Brown Footnote Eleven in Historical Context: Social Science and the Supreme Court's Quest for Legitimacy, 54 Stan. L. Rev. 793 (2002). It might be thought, for example, that segregation is inherently invidious, and therefore an affront to equal protection, no matter what might or might not be disclosed, through empirical investigation, about segregation's practical consequences.

We are not constitutional scholars here at Blog 702, but to us, the strongest arguments by proponents of gay marriage do not depend on the contention that recognition of gay matrimony will promote some broader social good. The most compelling argument for gay marriage, to us, is that its prohibition enshrines the legal stigmatization of a group. If that is so, then it may be opponents of gay marriage who are the more driven to reliance on sociological arguments, to show its allegedly negative social consequences. How compelling should we expect their sociology to be, before it is accepted as a reason to disfavor a group, rather than as a reason to treat it equally? A lot more compelling, it seems to us, than this.

Virus Alert -- Please Read

Someone is sending fake e-mails about the " mailing system," pretending to be from the " team." The e-mails warn about "attacks on your e-mail account" and urge recipients to open an attachment called "" with a password given in the text of the e-mail. The attachment, unsurprisingly, contains a virus.

These e-mails do not originate with this site. You do not have an e-mail account at Daubert on the Web (we don't offer them). So don't open the attachment. Delete the e-mail and go about your business.

Update: If you did click the attachment, our investigations reveal that your computer may now be infected with the Beagle virus. The good people at Symantec have details and a removal tool.

Wednesday, March 03, 2004

Daubert and Popcorn

Trial began yesterday in one of several cases involving workers who allegedly contracted lung disease from exposure to the chemicals used to add fake butter flavoring to microwave popcorn during its manufacture. Plaintiff's counsel promises "world-class research." Health officials say microwaving the popcorn at home won't hurt you. The St. Louis Post-Dispatch has the story.

Monday, March 01, 2004

John Edwards on John Edwards's Litigation Career

In light of all the recent discussion of John Edwards's legal career by third-party observers, it seems fair to mention that John Edwards himself has now said a little bit about it, in an op-ed piece in today's New York Times.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.