"Lancet" Study Casts Further Doubt on "Meadow's Law"

From today's London Telegraph:

Most sudden deaths of a second infant in families are due to natural causes, according to medical researchers.

The largest study of families that have lost two babies unexpectedly has found that 87 per cent of the deaths were from natural causes.

The findings further undermine the opinion of Prof Sir Roy Meadow, the paediatrician whose discredited expert medical evidence has led to parents' murder convictions being overturned.

"Meadow's law", as promulgated by the professor was that, in reference to cot deaths, "one in a family is a tragedy, two is suspicious and three is murder".

Research, published in The Lancet today, casts further doubt on this theory.

The full story can be found here.

New Blog on Public Health Issues

We have stumbled onto Effect Measure -- a public health weblog that apparently debuted in November. It is edited by "senior public health scientists and practitioners," writing under the nom de plume "Revere."

Good, substantive stuff -- including this recent post on the encroachment of Daubertian concepts into the public policy arena.

Illinois Supreme Court Adopts De Novo Review for Frye Rulings and Upholds Admissibility of Risk Assessment Evidence for Sex Offenders

From scattered press reports, we learn that on December 16, 2004, the Illinois Supreme Court upheld the admissibility of actuarial risk assessment tools to estimate the probability that a sex offender will commit additional acts of sexual violence if released into the community. In proceedings under the Illinois Sexually Violent Persons Commitment Act, the state offered expert psychologists to testify to the respondent's dangerousness, based on instruments including the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Static-99, the Violent Risk Assessment Guide (VRAG), the Sex Offender Risk Assessment Guide (SORAG), and the Hare Psychopathy Checklist-Revised. The respondent argued that the actuarial risk assessment methodology was novel, and that the trial court should have conducted a Frye hearing. The Illinois Supreme Court disagreed, concluding that the methodology enjoys general acceptance, and noting that courts in at least 19 states have upheld testimony based on similar methods.

Bad news for sex offenders, no doubt, but the story doesn't end there. The court also announced a change in the standard of appellate review for Frye rulings, from the previous "abuse of discretion" standard to de novo review. From the opinion:

Although not raised by the parties, we wish to begin our discussion by clarifying the appropriate standard of review for a trial court's Frye rulings.

In Illinois, the admission of expert testimony is governed by the standard first expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002). Commonly called the "general acceptance" test, the Frye standard dictates that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. In this context, "general acceptance" does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts. Donaldson, 199 Ill. 2d at 78. Instead, it is sufficient that the underlying method used to generate an expert's opinion is reasonably relied upon by experts in the relevant field. Donaldson, 199 Ill. 2d at 77. Significantly, the Frye test applies only to "new" or "novel" scientific methodologies. Donaldson, 199 Ill. 2d at 78-79. Generally speaking, a scientific methodology is considered "new" or "novel" if it is " 'original or striking' " or "does 'not resembl[e] something formerly known or used.' " Donaldson, 199 Ill. 2d at 79, quoting Webster's Third New International Dictionary 1546 (1993).

Historically, this court has applied an across-the-board abuse of discretion standard when reviewing Frye rulings. See, e.g., Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76 (2002); People v. Miller, 173 Ill. 2d 167, 187 (1996). After careful consideration, we believe that the better approach is that advocated by Chief Justice McMorrow in her Miller special concurrence, namely, that reviewing courts may rely upon materials that were not part of the trial record to determine whether a Frye hearing is required and, if so, whether the scientific technique at issue is generally accepted in the relevant scientific community. See Miller, 173 Ill. 2d at 204 (McMorrow, J., concurring); see also Donaldson, 199 Ill. 2d at 104-07 (McMorrow, J., concurring, joined by Garman, J.). Accordingly, we hereby adopt a dual standard of review with respect to the trial court's admission of expert scientific testimony. The decision as to whether an expert scientific witness is qualified to testify in a subject area, and whether the proffered testimony is relevant in a particular case, remains in the sound discretion of the trial court. The trial court's Frye analysis, however, is now subject to de novo review. In conducting such de novo review, the reviewing court may consider not only the trial court record but also, where appropriate, sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions. See Miller, 173 Ill. 2d at 203 (McMorrow, J., concurring).

As Chief Justice McMorrow correctly explained in Miller, allowing for de novo review in this context makes sense for several reasons, foremost of which "is the fact that the general acceptance issue transcends any particular dispute." See Miller, 173 Ill. 2d at 204 (McMorrow, J., concurring). Indeed, " '[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future cases.' " Miller, 173 Ill. 2d at 204 (McMorrow, J., concurring), quoting Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988). Application of less than a de novo standard of review to an issue that transcends individual cases invariably leads to inconsistent treatment of similarly situated claims. See Miller, 173 Ill. 2d at 204-05 (McMorrow, J., concurring). Because "[t]he general acceptance of a scientific technique does not change from one courtroom to another," the legal assessment of that general acceptance should not change from court to court either. Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring).

In addition, Chief Justice McMorrow correctly noted that a de novo standard that permits reliance on materials outside the trial record is not, in this context, problematic. See Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring). Under the Frye standard, the trial court is not asked to determine the validity of a particular scientific technique. Rather, the court's responsibility is to determine the existence, or nonexistence, of general consensus in the relevant scientific community regarding the reliability of that technique. " 'Accordingly, because the focus is primarily on counting scientists' votes, rather than on verifying the soundness of a scientific conclusion, there will not be the concerns about witness credibility and hearsay normally associated with citations to empirical or scientific studies whose authors cannot be observed or cross-examined.' " Miller, 173 Ill. 2d at 205 (McMorrow, J., concurring), quoting Jones, 548 A.2d at 42.

Significantly, this court in both Donaldson and Miller implicitly acknowledged the utility of the de novo standard in the Frye context, even when purporting to apply an abuse of discretion standard. In both of those cases, this court went outside the trial court record to assess the validity of the trial court's Frye ruling. In Miller, for example, the court expressly relied upon numerous court decisions and journal articles that had been published "[s]ince the time of the pretrial hearing." Miller, 173 Ill. 2d at 189. In Donaldson, the court had to go outside the record to ascertain the very definition of the scientific principle at issue. Donaldson, 199 Ill. 2d at 82 n.2. Thus, today's decision to formally endorse a de novo standard for Frye rulings is not so much a departure from this court's existing analytical framework as it is a recognition of the analytical framework under which this court has been operating for sometime, albeit under the wrong name.

Finally, we note that several other state supreme courts employ a de novo standard when reviewing Frye rulings. See, e.g., State v. Tankersley, 191 Ariz. 359, 365, 956 P.2d 486, 492 (1998); Castillo v. E.I. Du Pont De Nemours & Co., 854 So. 2d 1264, 1268 (Fla. 2003); State v. Shively, 268 Kan. 573, 576, 999 P.2d 952, 955 (2000); Wilson v. State, 370 Md. 191, 201 n.5, 803 A.2d 1034, 1040 n.5 (2002); State v. Bailey, 677 N.W.2d 380, 398 (Minn. 2004); State v. Harvey, 151 N.J. 117, 167, 699 A.2d 596, 619 (1997); State v. Gore, 143 Wash. 2d 288, 304, 21 P.3d 262, 271 (2001).

Justice Freeman dissented, troubled that the majority had acted sua sponte in changing Illinois law on the the standard of review. See In re Commitment of Simons, No. 97026 (Ill. Dec. 16, 2004).

1st Circuit Upholds Statistical Evidence in Discrimination Case

The First Circuit has upheld the trial court's decision admitting plaintiff's expert statistical testimony in an age discrimination case. See Currier v. United Techs. Corp., No. 04-1696 (1st Cir. Dec. 22, 2004) (Lipez, Coffin, & Cyr, JJ.).

Educating Experts About Daubert

A visitor to the site inquires: "Are there any Daubert training tapes out there for novices who have not yet testified as an expert but will be in the not-so-distant future?"

We personally have no idea. Perhaps some of our readers do.

One risk of providing such material to an expert (especially material delving into tactical considerations) would be that the expert could later be portrayed as having shown an unseemly interest in the legalities, if the expert's review of the material were disclosed during discovery. That risk of disclosure is more than negligible. Attorney-client privilege would not apply, and the fate of any attorney work-product objection in such a context must be reckoned as uncertain, even if it is assumed that the material in question would have been prepared by counsel. Moreover, in federal court, and in state jurisdictions that model their rules of civil procedure on the federal ones, there would be room for an argument that any Daubert "training tape" formed part of "the data or other information considered by the witness in forming the opinions," in which case its disclosure in the expert's report would be mandatory under Fed. R. Civ. P. 26(a)(2)(B).

Many lawyers and judges, meanwhile, might actually be happiest if experts didn't worry their pretty little heads at all about the legal standards governing the admissibility of their testimony. There is a belief in many quarters that any curiosity by an expert about the legal context in which the expert's opinions will be used and evaluated must indicate a want of neutrality and objectivity on the expert's part -- a belief that a truly honest expert, uninfluenced by considerations of advocacy or side-taking, wouldn't need to know about the legal issues. The expert's only job, on this view, is to hand over the expert's Findings, and to let other people wrangle over their validity and meaning. Such a belief can be criticized as epistemologically naive, and moreover seems unfair to novitiate experts, who are often unprepared for the treatment their work will receive at the hands of the adversary process, and who are also often unfamiliar with the peculiarly legal standards for evidentiary reliability under which their testimony will be judged. But the belief is widespread, and because some experts have indeed been known to tailor their substantive opinions to fit the demands of the litigants who retained them, it will not go away.

At the same time, an expert is surely entitled to know what Rule 26 requires, by way of a report, and how the general process of testing the admissibility of the expert's testimony will go. One might even be forgiven for advising the expert about the substantive factors that bear on admissibility under Daubert and its progeny, so that the expert may avoid hiding his or her light under a bushel. Propounding attorneys do their experts a disservice when they conceal this information, as occasionally occurs on the theory that too much knowledge of the legal process might make the expert skittish about embarking on the endeavor in the first place (or, more benignly, as the simple result of lawyerly laziness or oversight). At the very least, counsel who retain an expert should explain some of the legal basics.

But that mechanism is arguably insufficient, not only because counsel may understand Daubert imperfectly themselves, but also because of inherent incentives to avoid mention of information that an expert might find discouraging. Should there be a more standardized method for communicating the relevant legal rudiments to experts? Perhaps a text or video sanctioned by judicial or academic authority, so that experts might educate themselves by consulting a neutral and untainted source about the legal and evidentiary milieu, without the risk of being branded as hacks-for-hire, whose opinions are for sale to the highest legal bidder?

Yes, there should be. But so far as we know, there really isn't -- nothing tailored for consumption by experts, as opposed to lawyers. That's too bad. It would help experts to present their testimony in a form more helpful to the court and the trier of fact.

Until that situation is remedied, experts may wish to go to the primary sources -- the rules of evidence and procedure, the Supreme Court's opinions in Daubert and its progeny, decisions from the lower courts involving testimony in the expert's field -- and to such secondary legal sources as the Federal Judicial Center's Reference Manual on Scientific Evidence (2d ed. 2000). If there is still some aspect of the process that an expert doesn't understand after consulting such sources, the expert should push counsel to provide an answer.

Some of that source material, of course, is available via our parent site, Daubert on the Web. Be sure to tell them we sent you.

6th Circuit Affirms Admissibility of Fire Causation Testimony

In an unpublished decision, the Sixth Circuit has affirmed the lower court's decision admitting expert testimony on the causes of a fire in the bench trial of a maritime case. See Hartley v. St. Paul Fire & Marine Ins. Co., No. 03-6208 (6th Cir. Dec. 21, 2004) (Ryan, Cole, & Rogers, JJ.).

England Announces Review of Child Death Cases

BBC News is reporting that after a review of nearly 300 cases in which British parents were charged with the deaths of children under two years of age, the cases of 28 will be revisited. The review focused on convictions entirely or primarily reliant on testimony by prosecution medical experts. Controversy over such cases has been raging in Great Britain for some time, partly because of the heated debate over testimony on Munchausen's Syndrome by Proxy offered by Sir Roy Meadow and his disciples. The full report of the Attorney General can be found here.

6th Circuit Upholds School District's IDEA Testimony

In an IDEA case brought by the family of an autistic student, the Sixth Circuit has upheld the lower court's ruling, in a nonjury trial, admitting the testimony of the school district's expert witnesses, including a nationally recognized authority on IDEA compliance. The opinion says Daubert is "largely irrelevant in the context of a bench trial," and adds that the Court of Appeals "is not in the business of dictating to district courts the amount of weight they must give to certain expert opinions." See Deal v. Hamilton County Bd. of Educ., No. 03-5396 (6th Cir. Dec. 16, 2004) (Moore, Cole, & Marbley, JJ.).

5th Circuit Upholds Exclusion of Testimony re Forklift Design

The Fifth Circuit has published an opinion upholding the trial court's exclusion of an engineering expert's opinion about the allegedly defective design of a forklift. The testimony was faulted for want of testing, and for other flaws including a lack of clear and specific proposals for design alternatives. See Guy v. Crown Equipment Corp., No. 03-60760 (5th Cir. Dec. 15, 2004) (Garwood, Jolly, & Barksdale, JJ.).

8th Circuit Upholds Exclusion of Testimony re Eyewitness ID

The Eighth Circuit has published an opinion upholding the trial court's exclusion of the defendant's expert on eyewitness identification in a criminal case. The expert had proposed to testify only on the reliability of eyewitness i.d. in general, not on the specific identifications offered by the prosecution witnesses in the particular case. The panel's opinion also said the court would generally be reluctant to reverse the exclusion of an eyewitness identification for abuse of discretion unless the prosecution's case rested solely on uncorroborated eyewitness testimony, as this one did not. See United States v. Martin, No. 04-1028 (8th Cir. Dec. 14, 2004) (Loken, Beam, & Gruender, JJ.).

4th Circuit Excludes Voice Spectographic Analysis

For reasons left somewhat ambiguous by its unpublished opinion, the Fourth Circuit has upheld the trial court's exclusion of a defendant's voice spectography evidence in a criminal case.

See United States v. Ricketts, No. 03-4721 (4th Cir. Dec. 10, 2004) (Niemayer, Williams, & Shedd, JJ.).

EPA Need Not Follow Daubert in Promulgating Test Methods, Says D.C. Circuit

The District of Columbia Circuit has rejected the contention, pressed by various corporate and municipal dischargers of pollutants, that EPA was required to adhere to Daubert when it promulgated water testing methods for its "whole effluent toxicity" or "WET" water quality standards. The polluters argued that the tests would later be used in enforcement proceedings in federal court, where Daubert governs the admissibility of expert evidence. "Evidentiary rules govern the admissibility of evidence at trial," replied the court, "not the establishment of the processes whereby such evidence will be created." That language would seem to leave open the possibility that a trial challenge would be entertained. But we'll have to wait and see.

See Edison Elec. Inst. v. EPA, No. 96-1062 (D.C. Cir. Dec. 10, 2004) (Edwards, Randolph, & Williams, JJ.).

5th Circuit Upholds Exclusion of Cancer Causation Testimony

The Fifth Circuit has published a decision upholding the trial court's exclusion of an expert's opinion that inhalation of thorium dioxide caused plaintiff's lung and throat cancer. See Burleson v. Texas Dep't of Criminal Justice, No. 03-50650 (5th Cir. Dec. 9, 2004) (DeMoss, Stewart, & Clement, JJ.).

Eleventh Circuit Upholds Exclusion of Medmal Causation Testimony

The Eleventh Circuit has published an opinion upholding the trial court's exclusion of the plaintiff's causation evidence in a prisoner's medical malpractice case. The panel did hold, however, that the trial court erred when it ruled that the plaintiff's physician experts were not qualified to opine on nurses' duty of care. See McDowell v. Brown, No. 04-10272 (11th Cir. Dec. 8, 2004) (Edmondson, Fay, & Corrigan, JJ.).

How to Fund Medicare

A study being published in JAMA today links long-term lead exposure to cataracts, according to numerous press reports. From the AP dispatch:

A study has found a link between lead exposure and the development of cataracts in older men, adding to the list of harmful effects blamed on the heavy metal. To measure the men's long-term, cumulative exposure to lead, the researchers analyzed their shin bones, where lead is believed to remain for up to 20 years.

The men with the highest lead levels were found to be 2.7 times more likely to have cataracts than those with the lowest levels.

"These are, to our knowledge, the first data suggesting that accumulated lead exposure, such as that commonly experienced by adults in the United States, may be an important, unrecognized risk factor for cataract," said the researchers, led by Debra Schaumberg, assistant professor of medicine and ophthalmology at Harvard Medical School.

The researchers said the highest levels of lead were not outside the range of what would be found in the general American population of older adults.

The study gave no information about how the participants were exposed to lead, but common sources include leaded gasoline, paint, water and air pollution.

The AP story says that upwards of 20 million American over age 65 suffer from cataracts -- the leading cause of blindness.

10th Circuit Upholds Causation Testimony in Products Suit

The Tenth Circuit has published an opinion upholding the trial court's ruling admitting the causation testimony of two plaintiffs' experts in a products liability suit arising from a gas explosion. In an extended discussion, the court approved the experts' reliance on inferential methods bearing a close resemblance to differential diagnosis, but which the Tenth Circuit panel preferred to call "reasoning to the best inference" in the non-medical context. See Bitler v. A.O. Smith Corp., No. 02-1527 (10th Cir. Dec. 6, 2004) (Lucero, McKay, & Hartz, JJ.).

Georgia Judge Bans Expert for Life

According to a story in 12/13/04 edition of American Medical News, a Georgia trial judge has issued an order purporting to bar a physician from testifying as an expert witness in his courthouse for life.

The case that occasioned this unusual order involved a coronary bypass in which the surgeons inserted an intra-aortic balloon pump that allegedly restricted blood flow to the patient's right leg, precipitating its ultimate amputation. It seems that Fulton County Judge Craig L. Schwall, Sr., took umbrage when Dr. Larry R. Williams, the plaintiffs' expert, executed an errata sheet recanting on some deposition testimony. In two previous affidavits, Dr. Williams had attributed the patient's injury, in part, to the hospital nursing staff's failure to notify the patient's physicians of changes in his condition. Apparently Dr. Williams backpedaled on that position at one or both of his depositions, but then corrected the transcript and recurred to his original opinion.

Not in my courtroom, said Judge Schwall. From the American Medical News story:

"Dr. Williams repeatedly agreed that Mr. Whitley's physicians were fully aware of Mr. Whitley's condition during the critical time period at issue, that additional medical interventions likely would not have been ordered even if additional communication between the nurses and physicians had occurred and that none of the alleged deviations from the standard of care by the hospital nursing staff caused any injury to Mr. Whitley," Schwall wrote.

Instead of just dismissing the case against the hospital, the judge went a step further, saying that he was "troubled by the fact that Dr. Williams has offered testimony ... by three separate affidavits and two separate depositions." Schwall also said that he believed that the testimony was "conflicting, lacking in credibility and apparently untruthful."

The judge pointed to changes that were made in Dr. Williams' testimony through the errata sheet. Schwall, who also said the plaintiffs' lawyers played a role in the changed testimony, said that four deletions or additions were made in areas that were damaging to Whitley's case.

"Dr. Williams does not remember whether he conceived the changes to his testimony or whether they were suggested to him by plaintiffs' counsel," Schwall wrote, "but he knows that he was never sent a blank errata sheet and that he did not make any changes or edits to the typewritten errata sheet sent to him by plaintiffs' counsel."

Can changing the substance of your testimony in an errata sheet warrant a lifetime ban on testimony as an expert witness? Is there even anything improper about it?

We're not Georgia lawyers, but we have taken a peek at O.C.G.A sec. 9-11-30(e), the applicable Georgia provision, which tracks the language of Fed. R. Civ. P. 30(e) on witness revisions to deposition transcripts. Like the federal rule, section 9-11-30(e) permits the witness to make changes "in form or substance."

We've also taken a look at J. Harvey Co. v. Reddick, 240 Ga. App. 466, 473-74, 522 S.E.2d 749, 755 (1999) (citations and footnotes omitted):

Although our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition, the statute expressly contemplates changes to form or substance. In addition, federal courts which have addressed this issue have overwhelmingly concluded that a witness may make "any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the deponent's reasons for making the changes are unconvincing." These decisions are based on the plain language of Federal Rule 30(e), which is virtually identical to O.C.G.A. [sec.] 9-11-30(e).

There are several important safeguards which curtail abuse on the part of the deponent. First, the deponent's original answers remain part of the record and can be read at trial to impeach the witness or for further clarification. This is because "a deposition is not a 'take home examination' and an 'errata sheet' will not eradicate the import of previous testimony taken under oath." Second, if the changes are "so substantial as to cause the deposition to become incomplete or useless without further testimony," then the examiner may reopen the deposition and propound further questions to the witness concerning the nature of and reason for the changes. Finally, where the deponent is a party, his self-contradictory testimony must be construed against him and cannot create an issue of fact for the purpose of summary judgment unless the contradiction is adequately explained.

In other words, it would appear that the rules permit more than the mere correction of transcription errors; they permit substantive recantations. No doubt there might be other legal bases for sanctioning a party or a witness who offers shifting testimony. But from the news story, the good Judge Schall seems pretty interested in that errata sheet. To us, here in Pennsylvania, it seems that banning future testimony from witnesses who have made substantive changes in deposition testimony, besides being a draconian sanction, may be in significant tension with the policies of a state whose general rule is to permit just such changes.

That general rule, moreover, seems eminently defensible. Witnesses say all sorts of things under the bright lights at deposition, for reasons that sometimes defy rational explanation. No experienced litigator would assume that every such excited utterance is automatically true. We are not familiar with the details of the Georgia case, but we do know that experts are often taken aback by the adversarial character of deposition questioning, and by the unfamiliar litigation protocols that tend to thwart experts' attempts to control the exposition (as they may be accustomed to doing). That, of course, is all well and good, and part of the adversary process. But the search for truth should not be a game of gotcha, where a deposition witness is sanctioned unless he or she acquiesces to being irrevocably tied to his words, every time he misspeaks, with no possibility of revision or clarification. Cf. Stanley v. Lennox Indus., Inc., No. 29809 (Idaho Nov. 5, 2004) (error to discount summary judgment affidavit contradicting expert's earlier deposition testimony). Still less should traps be laid, in which deposition witnesses are told to make what changes they will, only to be sanctioned later for making them.

Nor does it seem deeply scandalous, to us, that a witness confronted with a lengthy deposition transcript might consult with the attorney retaining him, to figure out what revisions might matter. Such consultation may be potentially damaging to the witness's credibility, but if it warrants a lifetime testimonial ban, the expert registries will be emptying pretty quickly.

Through his counsel, the expert has filed a motion for reconsideration. We'll keep you posted.

Update 12/6/04: Well, apparently that motion for reconsideration is actually a mandamus petition. An interested bystander has drawn our attention to an article at law.com (registration) that provides a somewhat richer description of the legal and procedural wranglings. Meanwhile, HealthLawProf Blog has also noticed the story, calling the judge's sanction "shocking."

Texas Decisions Updated

With the help of Jim Dedman, our Texas correspondent, we've updated our parent site's page on state court appellate decisions from Texas, adding a number of new opinions, bringing the total to 19 Texas appellate decisions on the year, so far.

English Review Commission Calls for Restrictions on Expert Testimony

Partly in reaction to the ongoing controversy over Sir Roy Meadow's theories on Munchausen's Syndrome by Proxy, the head of England's Criminal Cases Review Commission, Prof. Graham Zellick, is calling for more stringent scrutiny of expert testimony in criminal cases, according to reports in the London Telegraph (registration) and the Guardian. Some experts "appear to be making it up as they go along," says Zellick. He adds:

There ought to be some quite straightforward legal framework which would allow the judge to say "get out of my court, don't come in here with this nonsense."

Got any ideas? You should probably drop Prof. Zellick a line.

Copy us while you're at it.

Procedural Query

In federal court, an expert may not testify to opinions not within the scope of his or her report, as supplemented from time to time.

Typically, pretrial schedules call for plaintiffs to submit their reports first, then defendants. Sometimes courts schedule a round of rebuttal reports by plaintiffs, or by both parties. But not always.

May a plaintiffs' expert testify on direct examination at trial, then, about the criticisms raised by defendants' experts, without first having filed a supplemental or rebuttal report of his or her own addressing the criticisms? How about cross-examination?

A literal application of the rules and received procedural platitudes would suggest the following: No commenting, during direct, on the opposition's report (because the plaintiffs' original report didn't cover that); free rein for defense counsel on cross (because the rule requiring reports is there to prevent surprise, and defense counsel can waive the protection); and free rein on redirect, if defense counsel open the door.

But that protocol might be thought unfairly asymmetrical, if it routinely permits defense experts to comment on plaintiffs' experts during direct, but not vice-versa. Of course, there's some inherent asymmetry built into the sequencing of reports, and plaintiffs could perhaps protect themselves through supplementation. Still, it's quite an advantage, isn't it, if defense counsel can choose whether to open the door for a critique from a plaintiffs' expert, or lay low?

If defense counsel chooses to lay in the weeds, may he or she then launch an ambush during closing argument, decrying the failure of the plaintiffs' expert to utter a single syllable rebutting the defense expert's attack?

Does it help to cure the asymmetry, that a plaintiffs' expert's response to any pretrial Daubert challenge may count as a supplemental report?

We are curious about whether there's decisional law on point, and on what people perceive the actual practice in federal court to be, and about people's opinions of what it should be.

Thoughts?