10th Circuit Affirms Exclusion of Expert's Opinion on Damages

The Tenth Circuit has published an opinion upholding the exclusion of an expert's testimony in support of a damage model because: (1) the expert exhibited an "utter lack of any familiarity, knowledge, or experience with damages analysis"; (2) his methods were "misleading, not reliable, and unsupported by use in any other comparable setting" and did not fit the facts of the case; and (3) the testimony would have confused the jury rather than assisting it. See Lifewise Master Funding v. Telebank, No. 03-4086 (10th Cir. June 29, 2004) (Ebel, Kelly, & McConnell, JJ.).

9th Circuit Affirms Exclusion of Testimony from Criminal Defendant's Sociologist

The Ninth Circuit has published an opinion upholding the trial court's exclusion of expert evidence from a sociologist, offered to support a criminal defendant's contention that he was smuggling the drugs under duress. The sociologist would have testified that the defendant's reluctance to approach the Mexican police for help was consistent with general Mexican attitudes toward law enforcement, in view of widespread government corruption and the reach and power of Mexican drug cartels. The panel affirmed the trial court's exclusion of the expert's testimony as more prejudicial than probative. See United States v. Verduzco, No. 03-50044 (9th Cir. June 29, 2004) (Bright, O'Scannlain, & McKeown, JJ.).

Blog 702 Celebrates 1st Birthday

Blog 702 is one year old today. We'd like to thank our readers for their loyalty and support. There's a lot of commentary on what makes blogging worthwhile -- as a device for marketing, a way of influencing discussion and events, et cetera, et cetera. But there's nothing so rewarding as knowing that there's an audience whose members sometimes find the weblog entertaining or informative. So thanks to all the people who have tuned in.

And stay tuned. The expert wars are a growth industry, and we're not going away anytime soon.

Alabama Upholds Testimony on Duct-Tape Matching

From Edward Still, our Alabama correspondent, comes news of the first known decision on the admissibility of testimony on duct-tape matching. From the opinion by Alabama's Court of Criminal Appeals:

Deardorff next argues that Richard Dale Carter, the State's forensic expert, was erroneously permitted to testify that the duct tape recovered from the victim's body matched the roll of duct tape recovered from the warehouse unit Deardorff had rented from Turner. He acknowledges that defense counsel made no objection at trial to Carter's testimony. We review the claim for plain error, and we find none.

Carter testified as to his academic credentials and the course work he had completed at the FBI academy schools. He stated that his area of specialty is firearm and toolmark examination. After he testified about the results of his comparison of the bullets and the revolver he received in this case, he testified that he compared the duct tape found on the victim's jacket and the pillowcase to the roll of duct tape that was recovered from Deardorff's warehouse unit. Carter explained the manufacturing process involved in making rolls of duct tape and he testified in detail about the manufacturing marks that remain on the tape. Carter stated that, in his opinion, the tape recovered from the crime scene and the roll of duct tape recovered from Deardorff's warehouse unit were all made on the same machine during the same four- to six-month period.

. . . .

Carter's testimony established that he had received on-the-job training with the forensic sciences departmental director when he began his career, that he had been working as a forensic scientist for more than 30 years, and that he had completed numerous post-graduate training seminars. The proper predicate for Carter's expert testimony regarding the duct-tape comparison was laid, and the trial court did not abuse its broad discretion when it permitted Carter to testify. No plain error occurred as a result of Carter's testimony, and Deardorff is not entitled to any relief on this claim.

See Deardorff v. Alabama, No. CR-01-0794 (Ala. Ct. Crim. App. June 25, 2004).

Alternative Approaches to Vitae-Embellishing Experts

Advice to prosecutors: If you can't get them for perjury, try grand larceny.

North Carolina Rejects Daubert

Via David Bernstein at Point of Law, we learn that North Carolina's Supreme Court issued a decision this past Friday rejecting Daubert in favor of that state's existing and more lenient reliability standard. See Howerton v. Arai Helmet, Ltd., No. 383PA03 (N.C. Sup. Ct. June 25, 2004).

9th Circuit Upholds Testimony from Claims Adjustment Expert

The Ninth Circuit has published an opinion upholding testimony from an insurance claims adjustment expert in a "bad faith" dispute, rejecting defendants' contention that experience specific to "bad faith" claims should be required. See Hangartner v. Provident Life & Accident Ins. Co., No. 02-17423 (9th Cir. June 25, 2004) (Goodwin, Tashima, & Clifton, JJ.).

9th Circuit Overturns Expert's State Perjury Conviction

In an en banc decision, the Ninth Circuit has granted habeas corpus relief to an expert physician convicted of giving perjurious testimony about his qualifications in a personal injury trial. From the majority opinion:

Before plunging into the details of this perjury case, it is worth recalling “the traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony.” Bronston v. United States, 409 U.S. 352, 360 (1973). Underlying this limited role of perjury prosecutions is the “one consideration of policy [that has] overshadowed all others during the years when perjury first emerged as a common-law offense: ‘that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying.’ ” Id. at 359 (citation omitted). Quoting a nineteenth century treatise to the effect that “the obligation of protecting witnesses from oppression, or annoyance, by charges, or threats of charges, of having borne false testimony, is far paramount to that of giving even perjury its deserts,” Bronston held that intent to mislead, or actually misleading, a jury or other factfinder is not sufficient to make out the crime of perjury. Id. at 359. California law is the same. In re Rosoto, 519 P.2d 1065, 1071 (Cal. 1974) (holding that “failure to volunteer testimony to avoid the misleading impression does not constitute perjury,” and citing Bronston approvingly).

These cautions apply with particular force to expert witnesses such as Chein. Although paid, usually well, for their efforts, such witnesses generally appear because they freely choose to do so, often with considerable immunity from subpoena. See generally Janet Fairchild, Annotation, Right of Independent Expert To Refuse To Testify as to Expert Opinion, 50 A.L.R.4th 680 (1986). Unless the strict requirements governing perjury convictions developed by the common law and applied by California are carefully applied, the willingness of experts to assist factfinders with the specialized knowledge needed to decide many cases, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), may atrophy.

Judge Berzon's opinion was joined by Chief Judge Schroeder and Judges Hawkins, McKeown, Wardlaw, Gould, and Berzon. Judge O'Scannlain dissented, joined by Judges Rymer, T. Nelson, Rawlinson, and Clifton. See Chein v. Shumsky, No. 01-56320 (9th Cir. June 25, 2004).

Manhattan Institute Launches "Point of Law" Site

Walter Olson and Ted Frank's unfailingly thought-provoking commentary can now be found not only at Overlawyered, but also at Point of Law, a newly launched "web magazine" sponsored by the Manhattan Institute. Even those who may disagree with the site's essentially conservative slant are sure to find it stimulating. Check out the section on scientific evidence.

LaRue and Caudill Come Out Against Romance

From C.E. Petit, our Illinois correspondent, we learn of a forthcoming article in Seton Hall Law Review by Lewis H. LaRue and David S. Caudill entitled "A Non-Romantic View of Expert Testimony." From the abstract:

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. Second, that focus must be accompanied by a modest view of science rather than an idealized version of its capacity to produce knowledge for law. Third, the focus on the application phase of expertise must also be accompanied by a modest view of law itself, including judges, lawyers, juries, and the evidentiary rules. It is far too easy, in the post-trilogy series of debates, to romanticize the power of science, or the virtues of the legal system, or both, and to fail to recognize their practical limitations. Romantic images of science are often bolstered by demonizations of forensic scientists, plaintiff's experts, or social science, just as romantic images of law often rely on demonizations of judges untrained in science, lawyers as overly zealous advocates, or jurors as emotional, uncritical, and confused. Thus the pragmatic emphasis on application needs to be mediated by pragmatic views of science and law. Fortunately, the pragmatic aspects of science and law -- which we associate with their local, social, rhetorical, and institutional features -- are most visible in the focus on application. Nevertheless, in the heat of debate, the limitations of law and science often recede into the background, which results in undue attention to red herrings as well as unrealistic proposals for reform.

The full text of the article is available at the SSRN website.

10th Circuit Reverses Sanction Excluding Rebuttal Report

The Tenth Circuit has held that a district court abused its discretion when it: (a) granted an extension for one party to file expert disclosures; (b) neglected to adjust the date for the opposing party's rebuttal reports; and (c) later struck the rebuttal disclosures as untimely, even though the unadjusted deadline for them called for their submission prior to the reports they were to rebut. See 103 Investors I, L.P. v. Square D Co., No. 02-3345 (10th Cir. June 23, 2004) (Ebel, McKay, & Lucero, JJ.).

3d Circuit Affirms Handwriting Testimony on Ultimate Issue

The Third Circuit has published an opinion affirming the admissibility of testimony from an extraordinarily qualified handwriting expert on the ultimate issue of authorship of key documents. See United States v. Rutland, No. 03-3915 (3d Cir. June 23, 2004) (Alito, Fisher, & Aldisert, JJ.).

More on Polybrominated Diphenyl Ethers

Yesterday's LA Times (subscription) reports on three new studies released last month detecting high concentrations of PBDE's (used in flame retardants) in American meat, fish, and poultry. Some 15 million Americans are estimated to have PBDE levels considered high. Scientists are trying to puzzle out whether the main exposure pathway is through ingestion or through inhalation of indoor air. But they have concluded that PBDE's are ubiquitous, and that avoiding exposure is well-nigh impossible.

Overall, evidence is mounting that the issue isn't going away anytime soon. A Google search for "polybrominated diphenyl ethers" currently turns up about 10,000 results. And already, a search for "polybrominated diphenyl ethers lawsuit" turns up about 300.

Nobel Laureates for Kerry

According to Reuters, 48 Nobel-Prize winning scientists have signed an open letter decrying the Bush Administration's posture toward science and scientists. That complaint is not without foundation.

The 48 scientists also say John Kerry would do better. That could be true as well. But their letter doesn't say why they think so.

A New Twist on Disciplinary Proceedings Against Malpractice Experts

Today's New York Times brings news of a complaint filed before the Florida Medical Association by three doctors seeking sanctions against Dr. John Fullerton, who testified against them in an unsuccessful malpractice suit.

There's nothing very unusual in that. State medical associations are increasingly being asked to punish members who provide expert testimony for plaintiffs in medical malpractice cases.

This particular physician, however, has responded by suing the complaining physicians for libel.

The Times quotes critics who are quick to respond that the defamation action is an example of "lawsuit culture" careening out of control:

"It's something out of Dickens," said Philip K. Howard, the chairman of Common Good, a group advocating changes to what it calls the nation's lawsuit culture. "Why don't these doctors sue back and complain about the complaint? This spins out into the stratosphere, as each person complains about the other person and America descends into a kind of Möbius strip where everyone complains about everything."

At first, Mr. Howard may seem to have a valid point. We started with an actual human transaction -- three physicians treating a stroke victim. We then endured a primary lawsuit (the malpractice action). The primary lawsuit spawned a secondary proceeding (the disciplinary filing with the FMA). With the filing of the defamation action, proceedings have propagated to the tertiary level. Matters having already taken so litigious a turn, it is not unrealistic to imagine a quaternary layer of legal proceedings, if the libel action is unsuccessful -- an action by the three malpractice defendants for malicious prosecution. Where will it all end?

But the Times story buries one salient fact that begins to make Dr. Fullerton's libel claims look a little more reasonable. It transpires, in the twenty-first paragraph of the story, that he is not even a member of the FMA, which therefore lacks any power to discipline him. As the Times puts it, the FMA "has no power to do more than criticize him in a written opinion." In other words, it has only the power to issue a writing injurious to Dr. Fullerton's credibility and reputation, or one that vindicates him, if he prevails.

We are not Florida lawyers, but we have had a quick look at the Restatement (Second) of Torts. Under traditional defamation law, a necessary element of a libel claim is that the defamatory publication be unprivileged. If the FMA did have disciplinary jurisdiction over Dr. Fullerton, the other three physicians might therefore have a plausible argument that their FMA complaint could not form the predicate for tort liability. True, the FMA, in strictness, does not conduct judicial proceedings of the sort where parties and witnesses (including expert witnesses) would enjoy an unconditional privilege against defamation claims. And true, the FMA is not a governmental body, to whose administrative proceedings a comparable privilege might apply. But some plausible case could nevertheless be made that at least a conditional privilege attached to FMA disciplinary proceedings, perhaps under section 598 of the Restatement:

Communication to One Who May Act in the Public Interest

An occasion makes a publication conditionally privileged if the circumstances
induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public
interest, and

(b) the public interest requires the communication of the defamatory matter
to a public officer or a private citizen who is authorized or privileged to take
action if the defamatory matter is true.

But the prospects of any such defense would seem to dim considerably, if the FMA lacks jurisdiction over the respondent and therefore lacks authority to take disciplinary action against him. Absent such authority, there seems little material difference between the three physicians' FMA complaint and (say) a letter to the editor.

It would be interesting to know whether the complaining physicians knew, when they filed with the FMA, that Dr. Fullerton was beyond its disciplinary reach. If they did, what did their lawyers tell them about the potential risks? In fairness, maybe the three physicians wouldn't have cared. Maybe they felt that if a participant in litigation can't stand the heat, he should stay out of the kitchen. If so, they appear to be in a fight with another physician who feels the same way.

Site to Include West Virginia Decisions

Mark T. Coulter, Esq., of Peirce, Raimond & Coulter, has graciously volunteered to monitor West Virginia state law decisions for Daubert on the Web.

Now we have ten state law correspondents, from states representing a total of 124 electoral votes: AL (9), CO (9), IL (21), KY (8), MI (17), ND (3), TX (34), UT (5), VA (13), and WV (5). We want an electoral vote majority of 270 by election day. So do your patriotic duty and join the campaign. To enlist as a correspondent for your state, just write to us.

More on Registries for Clinical Trials of Pharmaceuticals

According to today's NYT, GlaxoSmithKline has agreed to list all clinical trials of its marketed drugs on a web site. Meanwhile, Merck has announced support for the AMA's proposal to establish a government registry for clinical trials. Are there any substantial arguments against such transparency? We can't think of any -- not, at least, for drugs that make it to market.

4th Circuit Upholds Exclusion of Biomechanics Testimony

In a published opinion, the Fourth Circuit has upheld the exclusion of testimony from a biomechanics expert, who proposed to testify that someone of plaintiff's athletic ability would not have lost her balance while leaning backwards over a railing. See O'Neill v. Windshire-Copeland Associates, LP, No. 02-1271 (4th Cir. June 16, 2004) (Michael, King, & Wooten, JJ.).

Experts Needn't Be Qualified in Front of Jury, 10th Circuit Holds

The Tenth Circuit has reaffirmed the principle that voir dire on expert qualifications need not occur in front of the jury, in a published opinion affirming the admission of testimony from a law enforcement officer in a narcotics trial. See United States v. Arras, No. 02-2341 (10th Cir. June 14, 2004) (Seymour, Hartz, & Tymkovich, JJ.).

Medical Journals Consider Requiring Registration for Clinical Trials

A group of medical journals is considering a proposal that would require drug makers to register clinical trials at their inception, as a condition for later publication of the results. The proposal comes in the wake of Eliot Spitzer's recent lawsuit charging the manufacturers of the drug Plaxil with touting one favorable clinical trial while playing down other, less successful ones. The New York Times has the details.

Back to the Future

On 3/31/04, we posted on a study by the Texas Defender Service calling into serious question whether expert testimony on future dangerousness -- the sine qua non for imposition of capital punishment in Texas, and a factor in several other states -- is any more reliable than, say, a Tarot card reading.

Now Monday's New York Times has the story.

Update 6/16/04: And here's a Dallas Morning News editorial.

OSHA Witness Had Undisclosed Ties to 3M

The Minneapolis Star Tribune (subscription) is reporting that Warren Myers, one of two experts selected by OSHA to testify on the merits of disposable respirators manufactured by 3M, failed to disclose his affiliations with the company before offering a ringing testimonial endorsement of their product. An unnamed OSHA source says Myers was asked, before OSHA hired him, whether he was employed by or otherwise affiliated with any organization involved in the rulemaking, and said no. It now transpires, however, that just weeks prior to his OSHA testimony, Myers had served as a paid consultant to 3M counsel defending against thousands of claims that defects in an earlier generation of 3M masks contributed to lung disease.

The paper quotes Myers as saying: "That was with [3M] legal counsel, not 3M. I billed the law office."

Site Updated

We've been on the road a lot over the past couple of weeks, and postings have been sporadic. So too with updates to our parent site, Daubert on the Web.

But we've gone and caught up. In addition to adding several recent federal appellate decisions, we've now posted new state law cases and materials for Alabama, Illinois, Kentucky, Michigan, North Dakota, and Texas.

Expert Testimony in Planned Parenthood v. Ashcroft

When Judge Phyllis J. Hamilton handed down her decision last week in Planned Parenthood Federation of America v. Ashcroft, No. C 03-4872 PJH (N.D. Cal. June 1, 2004), holding the Partial Birth Abortion Ban Act of 2003 to be unconstitutional, the media reported the story in the usual way. That is, they reported the story in sports page mode. The winners and losers in the most recent abortion contest were identified, the storied rivalry between the teams was briefly traced, and some thoughts were offered on what the outcome implied for each team's longer term prospects.

Abortion is a politically charged issue, and one on which most members of the public have already chosen sides, so it is understandable if reportage doesn't always dwell on the legal nuances. All the same, public debate might advance beyond mere side-picking, and the occasional mind might even be opened, if it were more broadly understood how our legal system shapes the terms of the litigious debate. To read Judge Hamilton's opinion is to be reminded that constitutional adjudication does not follow the same discursive logic as political discussion. In the litigation context, debate occurs within much narrower doctrinal confines, and there are rules that govern the forms in which each side may offer evidence in support of its position.

It is striking, in particular, how prominent a role was played by expert physician testimony in Judge Hamilton's opinion. Most members of the public probably do not form their opinions on abortion by contacting practicing physicians to gather information about the medical details. Indeed, most members of the public probably consider themselves capable of developing informed opinions with scarcely any knowledge of those details. But the courtroom is a very different arena. Planned Parenthood presented trial testimony from eight physician experts, and deposition testimony from another four. The government responded with five medical experts of its own.

Judge Hamilton's opinion delves into all of this expert colloquy rather deeply. It will be interesting to see whether the expert testimony will remain in such sharp focus as the controversy proceeds up the appellate ladder. If it does, then at least three issues seem pertinent:

(1) Judge Hamilton barred the government physicians from testifying on the techniques employed in intact dilation and evacuation ("D&E"). None of the government experts had ever performed any D&E procedures, and the court therefore confined their testimony to opinions on the procedure's general safety, based on their literature review. This might be thought to introduce some bias, because physicians who take a dim moral or medical view of the procedure would seem unlikely, in general, to have performed it very often. On the other hand, this is not the only context in which an ostensibly neutral evidentiary rule might systematically tend to produce biased results. One thinks immediately of engineering experts who testify for plaintiffs in product liability suits. Their testimony frequently founders for lack of experience in designing the relevant items. That tends to load the evidentiary dice, too, because it may be more difficult for safety-obsessed engineers to find reliable industry employment. Is there some legitimate reason to weigh the experience factor differently in these different contexts? Should it matter that abortion is a subject of especially heated political debate, or that the legal issues to be adjudicated have constitutional dimensions?

(2) Judge Hamilton felt the credibility of some government witnesses was called into question in light of their record of political advocacy. Is that legitimately a significant factor, in constitutional adjudication where the judge sits as trier of fact? No opinion is expressed here on whether the testimony from the government's experts could claim strict methodological rigor. But suppose it could. Would it be appropriate to discount it nevertheless, based on an assessment of the experts' underlying motivations? Suppose, by contrast, that it couldn't. Then is anything gained by resting decision, even in part, on the notion that the experts' testimony was ideologically driven, if the decision could be sustained in any event, strictly on the medico-scientific merits?

(3) There is debate on how much deference, if any, the courts should show to congressional "findings" supporting the legislation. Judge Hamilton's opinion concluded that the legislation would fail constitutional scrutiny even under the most deferential standard. That approach dodges the logical bullet for now. Looming in the background, though, is the question how to apply the very notion of deference, to the extent that the record before Congress differs from the one before the courts. The whole concept of deference is inherently fuzzy, but it seems natural to say that the level of deference should depend largely on the strength of the respective records. If the predicates for congressionally found facts are woefully thin, then arguably they should receive almost no deference at all. On the other hand, if congressional findings reflect the well-buttressed result of rigorous and thorough inquiry, then arguably they should receive more weight. But such an approach would already embroil the courts in an evaluation of the record before Congress, if only to determine what level of deference should apply, and it is hard to see how that inquiry would differ substantially from one in which the courts simply evaluate the evidence for themselves. Should the congressional evidence be gauged by reference to Daubert's standards for scientific reliability? If not, then by what different metric should it be assessed, and what level of rigor should be required of it?

(4) All in all, what do we think of constitutional holdings that make litigation outcomes depend heavily on recondite expert testimony? On the one hand, it is good to bring state-of-the-art medico-scientific knowledge to bear on these important issues, no? On the other hand, constitutional principles should ultimately rest on some clearer and firmer footing than the ephemeral opinions of a few expert trial witnesses, should they not?

We don't know the answers to these questions. But it will be fascinating to see whether and how the appellate courts address them in all of the various pending "partial birth abortion" cases.

CPA Testimony on Damages Not Lay Opinion, Says 6th Circuit

The Sixth Circuit has reversed a trial court's decision admitting a CPA's testimony on lost profits and lost business value as lay opinion. There is precedent for permitting business officers and employees to offer lay opinion on lost profits, based on their personal knowledge of the company's affairs. But the CPA in this case was neither an officer nor an employee, and so Rule 702's requirements applied. See JGR, Inc. v. Thomasville Furniture Indus., Inc., No. 02-3640 (6th Cir. June 3, 2004) (Martin, Moore, & Weber, JJ.).