1st Circuit Says Prosecution's Use of "Overview" Witness Was Harmless Error

The First Circuit has previously criticized the prosecutorial use of "overview" witnesses. In a decision issued yesterday, it repeated that criticism but held that the error was harmless in the circumstances of the case. As is now routine, it also upheld a law enforcement officer's testimony on the modus operandi of persons engaged in the drug trade. See United States v. Garcia-Morales, No. 03-2094 (1st Cir. Aug. 30, 2004) (Torruella, Selya, & Howard, JJ.).

8th Circuit Says Plaintiffs' Regression Admissible but Insufficient in Title VII Case

The Eighth Circuit has ruled that the regression evidence offered by plaintiffs' experts in the race discrimination class action against UPS was admissible but insufficient to defeat summary judgment on the merits. See Morgan v. United Parcel Service of America, Inc., No. 02-2545 (8th Cir. Aug. 30, 2004) (M. Arnold, Beam, & Melloy, JJ.).

5th Circuit Upholds Attorney Testimony on Fees

The Fifth Circuit has published an opinion upholding the trial court's admission of an attorney's expert testimony on the reasonableness of attorney's fees in a duty-to-defend case. The defense had objected on grounds including the witness's failure to file a report. See Primrose Operating Co. v. National American Ins. Co., No. 03-10861 (5th Cir. Aug. 23, 2004) (Garwood, Wiener, & DeMoss, JJ.).

Another State Debuts at Our Parent Site

We are pleased to welcome Arizona to our parent site's dominion. Arizona is a Frye state, having rejected Daubert in Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000).

Mitsubishi's Very Bad Day in the 6th Circuit

In a case involving a pediatrician who was crippled for life in an automobile accident, allegedly because the seatbelt in his Mitsubishi didn't operate properly, the Sixth Circuit has published an opinion sharply criticizing the trial judge for refusing to admit testimony from the plaintiff's seatbelt expert even though the appellate court had reversed the testimony's exclusion in a previous appeal in the same litigation.

The panel's opinion also holds: (1) that the plaintiff should have been permitted to conduct discovery of other consumers who filed seatbelt complaints with Mitsubishi; (2) that the district court erred in declining to rule on plaintiff's motion for sanctions for Mitsubishi's alleged violations of discovery rules; (3) that the plaintiff should have been permitted to present a strict liability theory to the jury; (4) that the district court erred in barring the plaintiff from calling court-appointed experts at trial; (5) that the plaintiff should have been permitted to offer certain impeachment evidence; (6) that the plaintiff should have been allowed to offer evidence that Mitsubishi declined to perform tests when informed by consumers that its seatbelts had a propensity to unlatch; and (7) that the defense verdict should be vacated, the claims remanded for a new trial, and the case assigned to a new district judge on remand.

See Nemir v. Mitsubishi Motors Corp., No. 02-1780 (6th Cir. Aug. 20, 2004) (Cole, Gilman, & Schwarzer, JJ.).

Second Draft of Proposed Model Local Rule on Expert Disputes

During August of last year, we promulgated a proposed model local rule to govern motion practice involving the admissibility of expert testimony. It was greeted with nationwide apathy. That could be because everybody was on vacation. Or it could be because this is among the most boring questions ever to engage human attention.

Boring, that is, until you're actually caught up in litigating a Daubert motion, at which point you may wish very fervently that the rules afforded much more explicit guidance than they do. Counsel opposing Daubert motions have very particular reason to be interested in this issue. If their expert's underlying testimony is reliable, they are likely to profit greatly from rules that promote disclosure, fairness, and due process in Daubert proceedings. To mention just one example, the opposition commonly has months to pore over your expert's report and prepare an encyclopedic motion to strike, perhaps supported by affidavits from numerous witnesses whose theories and very identities may have been utterly unknown to you until the day the motion to strike was served. Now you're playing catch-up. Might the discovery rules have been deployed to improve your preparedness?

Meanwhile, counsel resisting Daubert motions (read plaintiffs' lawyers) aren't the only ones with an interest in defining procedural expectations more sharply. Defense counsel should consider the teachings of Fed. R. Evid. 103(a) on how to preserve error for appeal. You must object at trial, on pain of waiving appellate review except for clear error. You must object, that is, unless your objection was already resolved in a "definitive" pretrial ruling. Rule 103 affords almost no guidance, however, on how to tell "definitive" pretrial rulings from non-definitive ones, and so in doubtful cases, you have some serious thinking to do when the adversary's experts take the stand. Should you make a series of futile objections, only to have the judge overrule them, perhaps with a weary sigh, while the jury looks on with mounting impatience and/or derision? Or should you hold your fire and risk waiver of your appellate rights? Wouldn't you be happier if you knew, before the trial began, whether you could rely on the pretrial papers to preserve error?

We think our model local rule has something for everyone, but we're conscious of having fallen down in our salesmanship. To remedy that failing, we have produced a second draft, also adding some "Advisory Committee Notes" to help explain why all of this may matter. It's August, the office is quiet, and sadly enough you have nothing better to do. Go take a look.

6th Circuit Upholds Testimony from Expert on Police Practices

The Sixth Circuit has published an opinion upholding the admissibility of testimony from the plaintiffs' expert on police practices in an excessive force case. See Champion v. Outlook Nashville, Inc., No. 03-5068 (6th Cir. Aug. 19, 2004) (Batchelder, Moore, & Caldwell, JJ.).

Our State Law Blitzkrieg Continues

We give you Alaska.

Alabama Supreme Court Declines to Adopt Daubert

From Edward Still, we learn that the Supreme Court of Alabama has again declined an invitation to adopt Daubert, this time in a medical malpractice case. The decision has not yet been approved for publication and is not yet available on the web. See Martin v. Dyas, No. 1020286 (Ala. Sup. Ct. Aug. 13, 2004).

Uses of the "Compare . . . with" Citation Form

We have long believed that the Bluebook's "compare ... with" citation signal is underused. The vast range of its potential application is illustrated on many everyday occasions.

For example, should governments ever act in the absence of perfect information? Compare Iraq with the Data Quality Act.

2d Circuit Holds Daubert Applicable in Jones Act Cases

The Second Circuit has published an opinion upholding the exclusion of expert causation testimony in a Jones Act case. Plaintiff's decedent died from squamous cell carcinoma after working as a seaman on defendants' vessels. Plaintiff's expert blamed onboard exposure to benzene and polycyclic aromatic hydrocarbons. On appeal from the district court's decision excluding the expert's testimony and awarding summary judgment to defendants, the Second Circuit held:

1. that the burden of proof on causation was not shifted to defendant under the Pennsylvania Rule, "an oddity of admiralty law" which, where applicable, requires defendants to "show[] not merely that [their] fault might not have been one of the causes [of the injury], or that it probably was not, but that it could not have been," see The Pennsylvania, 86 U.S. (19 Wall.) 125, 136;
2. that Daubert applies in Jones Act proceedings, notwithstanding the Jones Act's relaxed burden of proof; and
3. that the district court permissibly excluded the expert's testimony as unreliable on the grounds that the expert failed to quantify the decedent's dose and failed to rule out decedent's smoking and alcohol consumption as causes of his cancer.

See Wills v. Amerada Hess Corp., No. 02-7913 (2d Cir. Aug. 11, 2004) (Jacobs & Sotomayor, JJ.).

New Decisions from Illinois, Texas

Courtesy of Dedman, we've posted a new Texas decision affirming the exclusion of rebuttal testimony from a treating physician as a sanction for failure to comply with disclosure requirements. See Moore v. Mem'l Hermann Hosp. Sys., Inc., No. 14-02-01147-CV (Tex. App. - Houston [14th Dist.] July 8, 2004, no pet. h.).

Courtesy of Petit, we've posted a new Illinois decision reversing the admission of hypnotically enhanced eyewitness testimony in a murder trial, and also reversing the exclusion of the defense expert who opined that hypnotically enhanced memories are unreliable. See People v. Sutton, No. 1-02-1280 (Ill. App. 1st Dist. Jun. 23, 2004).

On Systematizing URLs for Judicial Opinions

A blog isn't a blog unless it occasionally obsesses over technogeek trivia. It's a quiet news week on the Daubert front, and so we'll take the opportunity now.

Over the years, our parent site, Daubert on the Web, has accumulated links to several hundred appellate decisions. Every now and then, we go back to shepardize those decisions and repair any broken links. We just completed that task for the Fifth Circuit.

It wasn't too bad, because the Fifth Circuit appears to be unusually conscientious. It posts all published and unpublished decisions, dating back to 1992, along with an exemplary search page, and its links appear to be fairly stable. We had to repair a few of the older ones, because the court's site appears to have been restructured at some point in the last couple of years, presumably during some overhaul designed to make it more comprehensive. But on the whole, there wasn't much that needed repair, and the Fifth Circuit made it easy to fix what did need fixing.

Still, it may not be bad sportsmanship to articulate some aspirational suggestions with which the experience leaves us.

First, the administrators of judicial websites need to be conscious, when they reorganize their sites, that many attorneys and other interested persons have probably already linked to the old URLs for the opinions, on the assumption that the links would be durable. We do not know how technically feasible it is, in a wholesale reorganization, to have the old URLs for the opinions point to the new ones. But since the URLs for judicial opinions are frequently organized by docket number or some other systematic numeric identifier, it seems as though it should be practicable.

Second, and while we're at it: Although we appreciate the fierce autonomy with which each court manages its own affairs, it would be a true boon, in the longer term, if some common conventions were adopted for the URLs of judicial opinions across courts. That goal seems especially workable for courts forming part of the same judicial system. It would be awfully nice, for example, if a uniform format were adopted by the federal courts permitting users to infer the proper URL so long as they knew the court, case number, and (perhaps) date of the opinion, without having to know each circuit's idiosyncracies. It would be even nicer if all opinions, from all circuits (or district courts, as more progress is made on posting their opinions on the web) were collected and made publicly accessible in a common format through some single site or interface -- building, perhaps, on Pacer. Lexis and Westlaw used to be the only people offering that functionality. Given what is now technologically possible, it's reasonable to propose that it be provided freely for all, by the judicial branch itself.

Third, to expand on an idea first drawn to our attention by Denise Howell, how hard would it be to make judicial opinions retrievable, at judicial websites, by citation to the appropriate reporter? The way most practitioners were trained, the unique identifier of interest for a judicial opinion is the opinion's citation from the relevant reporter. So long as that custom endures in legal practice and in legal citation, it is sensible to consider making the opinions electronically available by reference to that identifier. If someone needs to strike a deal with West Publishing to make this happen, perhaps the deal should be struck.

Britain Halts Administration of Vaccine Containing Thimerosal

Thimerosal (a.k.a. "thiomersal" outside the U.S.) is a mercury-based preservative used in some vaccines. There has been controversy over whether it causes autism. On the one hand, British health authorities say there is no link between autism and thiomersal. On the other hand, they are scrapping vaccines that use it.

Daubert and Settlement Approval

In an unpublished opinion, the Ninth Circuit has rejected a claim by objectors to a class settlement that the district court erred by failing to convene a hearing to entertain a Daubert challenge to the forensic economist who estimated the value of company stock in settlement approval proceedings. "[A]ll that was required," said the panel, "was that 'each party [be] given the opportunity to "air its objections" at a reasonableness or fairness hearing.' United States v. Oregon, 913 F.2d 576, 582 (9th Cir. 1990). Such a hearing was held here."

See Renfrew v. Sierra Energy, LLC, No. 02-17386 (9th Cir. Aug. 2, 2004) (O'Scannlain, Siler, & Hawkins, JJ.).

Bad News Day for Experts

First one New York Times story calling the integrity of expert testimony into question.

Then another.

5th Circuit Says Forensic Expert's Report Need Not Specify Protocols

In an unpublished opinion, the Fifth Circuit has rejected a criminal defendant's complaint that the reports of the prosecution's forensic experts failed to disclose the protocols used in testing contraband substances. The relevant paragraph from the opinion:

Ashlock's main critique of the government's forensic testimony centers on the experts' failure to disclose the protocols they followed in testing the substances they identified as contraband, rendering it impossible for anyone other than a chemist to examine the test results independently and reach a conclusion regarding the identity of the substances tested. Nothing in Rule 702 requires an expert to provide this level of detail, however. Instead, Rule 702 simply dictates that the party presenting the expert testimony must show by a preponderance of the evidence that the testimony is reliable. See United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003). At trial, the government met this burden by eliciting testimony revealing that: (1) each expert held a bachelor's degree in chemistry and had extensive on-the-job training in forensic chemistry; (2) each of the tests performed by the experts was generally accepted in the field of forensic chemistry; (3) each of the tests was performed in accordance with the standard procedures used in the laboratory; and (4) each expert had his or her results reviewed by another chemist in the laboratory or by a laboratory administrator. Based on this evidence, we hold that the district court did not abuse its discretion in admitting the government's expert-witness testimony under Rule 702.

See United States v. Ashlock, No. 03-10615 (5th Cir. Aug. 3, 2004) (King, Barksdale, & Pickering, JJ.).

It is sometimes contended, in civil litigation, that an expert's report should be stricken because it supplies insufficient detail to permit independent investigators to reproduce the expert's results. That position is apparently so uncontroversially untrue, in the Fifth Circuit, that its rejection does not call for a published opinion. We note that under Fifth Circuit Rule 47.5.4, unpublished opinions issued after January 1, 1996, may be cited as persuasive authority.

Trash Talking

A certain amount of bellicose rhetoric must perhaps be forgiven when its only intended function is to rally the bloodthirsty faithful. Enemies of Mao Tse-Tung thought were once called "foreign reactionaries" and "imperialist running dogs." Such pronouncements did not result in the ultimate triumph of World Communism. But they did, perhaps, promote a happy feeling of camaraderie among the true believers.

So too with "junk science," a phrase that does nothing to convert skeptics, but which does communicate the speaker's membership in a certain ideological club in a way that fellow members may find reassuring. The charter members of this club make themselves known by never using the word "science" at all without the "junk" prefix, except when referring to epidemiological studies failing to show a statistically significant association between some disease and some product of Fortune 500 manufacture. If you really want to show your bona fides with these people, you'll use the phrase "junk science" to dismiss even scientific hypotheses that enjoy widespread acceptance among serious and impartial investigators -- e.g., the law of gravitation.

Or global warming.