6th Circuit Reverses Exclusion of Rescuer Testimony

The facts: Man jumps or falls from bridge into river. County threatens divers from private rescue service with arrest if they attempt rescue, but county allegedly undertakes no meaningful alternative rescue effort of its own. Man drowns. Survivors sue county.

Plaintiff's proffered expert testimony: County did not attempt a meaningful rescue operation and impeded a potentially successful operation by the private rescue service.

The trial court's core rationale for excluding the proffered evidence: There is no requirement that the county undertake a perfect rescue operation, but only that it afford a meaningful alternative to private rescue.

The Sixth Circuit's core rationale for reversing: Plaintiffs "offered testimony that several aspects of the county's response to the ... drowning suggested the county was not, in fact, engaged in a rescue operation at all, but only in a body recovery operation. This would obviously fall short of being a meaningful alternative to rescue."

See Beck v. Manistee County, No. 01-2723 (6th Cir. July 29, 2004) (Boggs, Gilman, & Marbley, JJ.).

Who's Funding That Research?

Need a quick way to check on an expert's direct or indirect affiliations with industry? In a casual romp through the excellent materials at The Virtual Chase on Evaluating the Quality of Information on the Internet, we have stumbled on the Center for Science in the Public Interest's Integrity in Science Database. Enter an expert's last name (or the name of a topic, university, or company), and you'll get information on research involving corporate funding. We've put a link to the site on our desktop.

NYT "Convention Blog" Story Leads with TalkLeft

Congratulations to Jeralyn Merritt, of TalkLeft, for making her way to the lead paragraph of this New York Times story, entitled "Year of the Blog? Web Diarists Are Now Official Members of Convention Press Corps."

Small Is Beautiful, No?

From LawPundit:

The more narrow that the purpose of the blog may be, the smaller is its potential audience. Blog 702 is a good example.

It's nice to hear that we're a good example of something. Although we do crave fame, we will persevere in our specialized focus, because that, we believe, is how we can be the most helpful to our reader.

Michigan Supreme Court Tosses $21 Million Malpractice Verdict

The Michigan Supreme Court has overturned a $21 million verdict in a medical malpractice case, faulting the trial court for failing to conduct a gatekeeping hearing on plaintiff's causation testimony.  Plaintiff alleged that his cerebral palsy resulted from the administration of the drug Pitocin to the mother during labor.  (The theory was that Pitocin caused intense contractions, which subjected the plaintiff to head trauma during delivery.)  The trial judge concluded that where defendants had offered no evidence that plaintiff's expert relied on a novel theory, no hearing was required.  The Supreme Court held that the trial court's approach would improperly shift the burden of persuasion on admissibility, requiring defendants to prove a negative.  It went on to hold that remand for a new trial was unnecessary, because plaintiff had also failed to produce sufficient evidence to sustain the verdict on the issue of defendants' duty of care.

The decision in Craig v. Oakwood Hosp., No. 121405 (Mich. Sup. Ct. July 23, 2004), is not yet available at the Michigan Supreme Court's website. Here's the AP report.

Update 7/28/04: Here's the opinion.

Update 7/30/04: Here's M. Sean Fosmire's take on the decision.

Daubert and the Finality of Judgments

Walter Olson points to a Fox News piece in which Radley Balko says the following question should be posed to John Edwards about his career as a litigator:

You specialized in seeking judgments for parents in cases of botched childbirth deliveries, which you argued resulted in cases of cerebral palsy. Two new studies released in 2003 show strong evidence that cerebral palsy is not likely caused by delivery room errors, but by genetics or prenatal infections. If medical science continues to exonerate delivery doctors from cerebral palsy cases, do you think the verdicts against the doctors you successfully sued should be reversed, or that your clients should return the money?

Let's skip the whole debate over whether Edwards should be faulted, as an advocate, for relying on expert evidence whose scientific validity some now consider questionable. Our views on that subject have already been stated at some length. See our posts of 1/20/04, 1/23/04, 1/27/04, 1/31/04 (multiple posts), and 2/15/04.

Since Balko is a self-described "policy analyst" (for the Cato Institute), let's focus instead on the broader policy question of whether it is ever appropriate to open final judgments in light of later scientific developments bearing on questions of medical causation -- and, if so, under what circumstances. This is an issue on which members of the defense bar might not wish to take over-hasty positions, because their own clients may often be the ones who benefit from the finality of judgments in contexts where the scientific knowledge of causation is still evolving. Yes, there will be occasions when a causal link previously enjoying significant support in the literature is called into serious question by later research. The causation of cerebral palsy may or may not constitute an instance of this. What is meanwhile certain is that there are also frequent occasions when a causal association is not susceptible of rigorous proof at the time a plaintiff's claim is first litigated, but is later found to enjoy stronger medico-scientific support. So if we adopt a policy of opening judgments in light of new research, it will not always be a question of having plaintiffs "return the money." It will often be a question of plaintiffs getting another bite at the apple.

It is possible, of course, that a permissive standard for opening judgments based on new science would affect plaintiffs and defendants asymmetrically, at least under existing law. For example, if we believe that defendants, as a group, are better equipped than plaintiffs to track developments in scientific research and act on them with alacrity, then defendants would likely profit more frequently than plaintiffs from arguments challenging the timeliness of motions to open the judgment. On the other hand, the plaintiffs' bar may already possess (and, in a world of more permissive judgment-opening, would very likely soon develop) a comparable proficiency at tracking the state of medico-scientific developments.

It is also possible, meanwhile, that asymmetries would and/or should start to tip in plaintiffs' favor, if revisiting settled verdicts based on new research were to become the order of the day. Relevant policy considerations legitimately include the comparative hardships imposed by opening the relevant judgments. Should we expect plaintiffs who recover substantial judgments for medical expenses and lost income in a permissive judgment-opening environment to hoard their awards, rather than spending them on securing medical care and supporting their families? After all, in such an environment, their entire awards would be vulnerable to future recoupment by defendants at any time, depending on the vicissitudes of prevailing medico-scientific opinion. If the potential hardships posed by reimbursement were felt to warrant some limits on the circumstances in which damage awards may be reopened based on new scientific research, what should those limits be?

Defendants would face potential hardships too, of course, in a more licentious judgment-opening world. On the whole, though, defendants may be in a better position, as a group, to spread the risks of such hardships. Or so the courts might conclude, if asked to sort the problem through.

Of course, Balko may not be primarily interested in policy considerations surrounding the finality of judgments. He may be more interested in finding occasion to advert in public forums to Edwards's career as a plaintiffs' medical malpractice lawyer. However that may be, we are left with one further question. We have been assuming, in this discussion, that prevailing law would not liberally bestow the right to relitigate past verdicts based on new science.  How correct, exactly, is that assumption?

6th Circuit Upholds Accident Reconstruction Testimony

In a vehicle rollover case, the Sixth Circuit has affirmed the trial court's decision admitting the defendant's accident reconstructionist's testimony, even though it was based in part on the presence at the accident scene of broken glass and other items not found until sixteen months after the crash. Under Kentucky common law, "the subsequent existence of a temporary condition, such as tracks or debris on a much-traveled road, is not admissible as evidence where considerable time has intervened and there is no showing that the condition has remained the same in the interval." Mountain Petroleum Co. v. Howard, 351 S.W.2d 178, 180 (Ky. 1961). But the debris found by the defense expert was concealed by foliage, and the Sixth Circuit agreed with the defendant that it was not so transient as to bar admissibility. The panel also noted that the Kentucky cases cited by the plaintiff involved fact witness testimony concerning transient conditions, not testimony by experts. See Smith v. Toyota Motor Corp., No. 01-6585 (6th Cir. July 14, 2004) (Boggs, Batchelder & Sutton, JJ.) (unpublished).

The Way It Works in Colorado

Our parent site's state law section now boasts an excerpt from Roxanne Bailin, James M. England, H. Patrick Furman, & Edward J. Imwinkelried, Colorado Evidentiary Foundations (Michie 1997), reprinted by kind permission of the publisher, through the gracious intervention of Mr. England, our Colorado correspondent.  Practitioners needing a basic orientation to Colorado's law of expert evidence could not hope for a better source.

Daubert and Copernicus

Today's New York Times excerpts the first chapter of The Book Nobody Read, in which Owen Gingerich recounts his adventures as an expert witness for the prosecution in a case involving the theft of a second-edition copy of Copernicus' De Revolutionibus Orbium Coelestium. 

Among other claims to fame, Professor Gingerich attempted to teach us astronomy in college.  He is not to be confused with Newt Gingrich, who presumably still contests the heliocentric hypothesis.

Four New Illinois Appellate Decisions

We have posted summaries of four new appellate decisions on our parent site's Illinois page, coming to you courtesy of our learned correspondent C.E. Petit:

• Perfection Corp. v. Lochinvar Corp., No. 1-03-0095 (Ill. App. 1st Dist. Jun. 18, 2004);
• Kim v. Mercedes-Benz USA, Inc., No. 1-03-1270 (Ill. App. 1st Dist. Jun. 17, 2004);
• People v. Robinson, No. 1-02-2841 (Ill. App. 1st Dist. Jun. 16, 2004); and
• The Southern Illinoisan v. Illinois Dept. of Public Health, No. 5-02-0836 (Ill. App. 5th Dist. Jun. 9, 2004).

The last of these cases involves a novel twist.  A newspaper sues to obtain data from a state cancer registry.  The registry opposes on the ground that the data could tend to disclose confidential information about individuals.  To support its contention, the registry offers testimony from an expert, who is able to extract individual identities from the data requested, using a methodology disclosed under seal.  The upshot?  The data are ordered released, on the ground that under the evidence submitted, only an expert would have the specialized knowledge necessary to extract the identities from the information, whereas members of the general public would not.

Utah on Undisclosed Pseudo-Lay Testimony

If a witness possesses training and experience that would probably qualify him as an expert, and if his testimony rests on grounds that would probably satisfy the reliability requirements for expert opinion, then some might think it an academic question whether his testimony should be categorized as expert evidence or lay opinion.  But even when the distinction may not be terribly important to jurors (as when law enforcement officers are testifying), it is still important to the parties in pretrial proceedings, because disclosure requirements are generally more stringent for expert testimony.  When appellate courts are asked to rule on the proper characterization, it is typically in a context where discovery requirements have not been satisfied.
 
John Bogart, our Utah correspondent, has pointed us to a Court of Appeals decision signaling that those requirements should not be skirted in that state.  A man found in possession of 32 grams of methamphetamine was charged with possession of a controlled substance for distribution.  The chief of police testified for the prosecution that in his experience, persons holding meth for personal use would generally possess it in quarter-gram or half-gram quantities.   The defendant objected that this was undisclosed expert testimony, but the trial judge ruled that it was lay opinion.  In denying reconsideration after the jury rendered a guilty verdict, the trial judge actually went further and held that the police chief hadn't offered an opinion at all, but had merely reported on his personal experiences, leaving it to the jurors to draw their own inferences.
 
It is fairly settled, in federal decisions, that such testimony should be treated as expert evidence, and the Utah Court of Appeals reached the same conclusion.  However, the Utah court went on to do something that the federal appellate courts often decline to do.  It actually found the error to warrant reversal and a new trial.  It didn't hold (as federal appellate courts commonly do) that the error was harmless because other evidence sufficed to support the conviction.  It didn't let the conviction stand on the theory that the testimony would have cleared admissibility hurdles in any event, nor did it conclude blithely that any prejudice was cured by defense counsel's opportunity to cross-examine.  It didn't decide (as the state invited it do to) that sufficient disclosure was afforded by a different police officer's similar testimony at the pretrial hearing.  Instead, it insisted that the prosecution go back and honor its pre-trial disclosure obligations in a manner that would permit the defendant to prepare a witness-specific response.
 
So in Utah, the dividing line between lay and expert opinion will have to be taken seriously, at least for now.  See State v. Rothlisberger, 2004 UT App. 226 (Utah Ct. App. July 1, 2004).

Crime of Perjury Alive and Well in Idaho

According to the Twin Falls Times-News, an Idaho jury has returned a perjury verdict against an expert who lied about his credentials at trial. Retained by the defense in a criminal case to challenge the integrity of audio tapes offered by the prosecution, the expert had claimed to boast a bachelor's degree in electrical engineering from Wayne State University in Detroit, a master's in acoustics from the University of Michigan, and a Ph.D. in advanced mathematics from the Michigan Institute of Technology. As matters turned out, he had attended none of those institutions and held none of those degrees

In keeping with the apparent fashion, the expert's counsel had sought dismissal of the charges on the theory that the expert's credentials weren't material. But the court denied the motion.

The expert is now free on $100,000 bond while he awaits sentencing on his felony conviction. He faces a potential jail term of up to 14 years, but the prosecution has not yet formulated a sentencing recommendation. Prior to his conviction, the expert reportedly declined a prosecution offer of three years' probation in exchange for a plea to a lesser misdemeanor charge.

Today's Item on Judicial Tolerance for "Collateral" Expert Perjury

Just a couple of weeks ago, the Ninth Circuit caused raised eyebrows in certain quarters when it overturned the perjury conviction of an expert who had stretched his credentials under oath. Now Martha Stewart's complaints about allegedly perjurious expert evidence have been likewise been rebuffed, partly on the ground that the false testimony at issue concerned such merely "collateral" matters as whether the expert actually participated in the relevant forensic tests, as he claimed.

Expert testimony revolves primarily around expert opinion, and experts can generally assume that even insincerely proffered opinions will not precipitate perjury charges. Maybe that's as it should be. But such matters as an expert's qualifications, or his role in conducting the tests on which his testimony relies, are matters of comparatively brute fact. It seems legitimate occasion for concern, if experts are seen as having free rein to prevaricate about those. To be sure, we are discussing a pair of examples where the experts have scarcely had a free ride. Both were charged with the crime of perjury. But in both cases, there has been a slightly puzzling lack of judicial indignation over witnesses whose honesty may not have lived up to courtroom standards.

If jurors are the commonsense creatures that we all want them to be, they would likely assume that any expert witness who would mislead them about his credentials, or about whether he showed up for the forensic tests, would also mislead them about other, more important things. Any seasoned litigator would probably reach that same conclusion. But a few seasoned litigators must also be wondering, by now, whether they shouldn't turn a blind eye and condone a little truth-stretching by their experts, given the judiciary's own readiness to do so.

Thanks to C.E. Petit, our Illinois correspondent, for pointing us to the Findlaw link for the opinion in the Martha Stewart case.

EPA to Fine DuPont for Withholding Data on Teflon Chemical

The EPA will seek to fine the DuPont chemical company for failing to report on tests indicating that a chemical used in its manufacturing processes is potentially dangerous to human health, according to multiple media outlets including the New York Times and the Washington Post (registration). The chemical, perfluorooctanic acid, a.k.a. PFOA or C-8, is used in making Teflon and stain-resistant surfaces.

The Federal Toxic Substances Control Act ("TOSCA") requires chemical manufacturers to notify EPA if they learn that a chemical poses a substantial risk of harm to humans or the environment. The 3M Company, which originally manufactured C-8, began phasing out the product in 2000, after advising the EPA of studies linking the chemical to cancer and birth defects in rats. DuPont is accused of withholding tests showing that C-8 was transmitted from a pregnant mother to her fetus and that significant levels of C-8 had turned up in samples of public drinking water from communities near DuPont's facilities. DuPont says the chemical is safe (or has not been proven unsafe to humans). It also says it will challenge the fine, which reportedly could run to hundreds of millions of dollars, becoming the largest environmental levy in history. (Under TOSCA, violators can be fined $25k/day, and the alleged DuPont violations date back to 1981.)

Why make such a big deal over this kind of thing? The EPA's lead enforcement attorney, quoted in the LA Times (subscription), says the information withheld by DuPont was "critical" to protecting the public health, and that EPA investigations into the chemical's safety could have begun sooner if the agency had been armed with the information. The agency's action "is intended to send a message that this type of information is critical to provide, and companies have an obligation to report it by law," he said.

On Talking to Polygraphers

According to an AP Story, a state polygrapher testified yesterday in the Scott Peterson murder trial that on the day after his wife disappeared, Peterson told the polygrapher (falsely, it would seem) that Peterson was not having an affair and that his marriage was fine. The polygrapher was identified to the jury only as a state officer, not as a polygraph examiner, and reportedly it is unclear from the testimony whether Peterson's alleged statement was made in the context of a polygraph exam.

Whatever the facts may be in the context of the Peterson trial, the question arises whether the public's broad awareness that polygraph results are generally inadmissible creates a trap for the unwary -- and if so, whether that's as it should be. A criminal suspect who knows that polygraph results are usually inadmissible may tend to assume that statements made during the exam cannot be used against him in any way. Yet potentially they can be. A statement later revealed to be misleading can be offered, perhaps, to show a guilty state of mind. Prosecutors might also try to charge the subject with making false statements to a law enforcement official. Should such uses of polygraph interviews be kosher? If so, should there be a requirement that polygraph subjects be warned about them, a la Miranda?

Following EDDix

The EDDix Group is a new company organized to "provide independent research, analysis and reporting on the Electronic Data Discovery (EDD) marketplace." The time has passed, apparently, when lawyers could feel self-congratulatory for even recognizing that electronic document discovery was possible or desirable. Now it's a booming market, and these folks want to be the people who help you keep up with it -- the trends, the vendors, the whatnot. The company's principals have been around the block, and they're not lawyers, so they have some reasonable chance of getting things straight. It's an intriguing project, with what promises to be an off-the-beaten-path approach to "keeping an i on all things e-d-d 4 u." Well worth a look.

Maybe we should also mention that they've selected Blog 702 as one of the
EDDix 50 -- their listing of fifty top legal weblogs. Obviously these are some very bright people.