Hiatus

We're packing our bags and hopping on an airplane and heading to distant climes for a major trial -- one that begins on Monday and will last perhaps a month.

A trial, for those not among the cognoscenti, is what happens when the plaintiffs' lawyers win the Daubert motions. It's this arcane procedure where the parties present their evidence to a body of citizens known as a jury, who then weigh it and attempt to render justice according to law.

Major trials being the distractions they are, there will be a hiatus in this weblog. For the next few weeks, updates to our parent site, Daubert on the Web, will also be on hold.

We'll miss our faithful readers, but we draw solace from the knowledge that the web is full of other diversions. Keep your RSS readers turned on and tuned in, because we will be back.

When Less Can Be More

You should always depose the adversary's expert. Right?

CA Supreme Court Grants Review in Lockheed Litigation Cases

We learn from press reports that on April 13, the California Supreme Court granted plaintiffs' request for review of the Court of Appeal's decision in Lockheed Litig. Cases, 126 Cal. App. 4th 271, 23 Cal. Rptr. 3d 762 (2d Dist. 2005).

The case is a mass tort action brought by workers allegedly injured by exposure to solvents. The Court of Appeal rejected the trial court's conclusion that evidence of causation should be inadmissible unless it showed an increased relative risk of greater than 2.0, but it also upheld the trial court's exclusion of the causation opinion offered by Dr. Daniel Teitelbaum. Dr. Teitelbaum is a toxicologist who testifies frequently as an expert witness, and whose opinions were among those at issue in General Elec. Co. v. Joiner, 522 U.S. 136 (1997).

The plaintiffs argued in the Court of Appeal, and will presumably argue before the California Supreme Court, that the trial court improperly weighed the evidence and subjected Dr. Teitelbaum's testimony to more searching scrutiny than is warranted or permissible under Cal. Evid. Code § 801(b) and the state's "Kelly/Frye" test. Stay tuned.

"Frivolous" to Argue that Erie Governs Rules on Expert Testimony, Says 7th Circuit

The Federal Rules of Evidence normally govern in diversity cases, but not always. Where a state evidentiary rule is intimately bound up with the substantive claims at issue, it has sometimes been held on Erie grounds that the state rule should govern. See, e.g., Wray v. Gregory, 61 F.3d 1414 (9th Cir. 1995). Plaintiffs' lawyers from Frye states sometimes feel tempted to argue, under those broad principles, that state law should supply the rule of decision on the admissibility of expert testimony in diversity cases. A Seventh Circuit panel has now issued an opinion calling such arguments "frivolous," noting that Daubert, Joiner, and Kumho Tire were all diversity cases. See Schrott v. Bristol-Myers Squibb Co., No. 03-3950 (7th Cir. Apr. 13, 2005) (Easterbook, Wood, & Evans, JJ.).

Georgia's Licentiousness Draws Criticism

Georgia's legislature recently enacted a "reform" measure that imposes the Daubert standard for civil cases but provides that all expert evidence shall be admissible in criminal cases. (See our posts of 2/19/05 and 3/28/05.)

Commentators from diverse points along the ideological spectrum have now noticed what Georgia has done, and have begun to raise criticisms. The public health scientists over at Effect Measure, who are self-described "progressives," had previously called the legislation "unbelievable ." Now, over at Volokh, Prof. Bernstein -- who is no criminal-coddling leftist, and who is certainly no apologist for evidentiary promiscuity -- calls Georgia's new enactment a "scandal."

Well, no doubt. This may be what happens, though, when evidentiary "reform" is pursued by political means. It's almost surprising, in retrospect, that Congress didn't write special evidentiary rules for expert testimony in the Schiavo case. Would such a thought have shocked the congressional conscience? We doubt it. We imagine it's just that nobody thought of it in time.

3d Circuit Upholds Exclusion of Damages Testimony in Franchise Dispute

In an unpublished opinion, the Third Circuit has upheld the trial court's exclusion of plaintiff's expert on damages in a franchise dispute, as well as the lower court's award of summary judgment to the defendant. The expert was unfamiliar with the plaintiff's business, according to the Third Circuit panel. Moreover, the expert's damages model was speculative and would therefore have lacked probative value even if admissible under Daubert, the panel said. See Crawford v. SAP America, Inc., No. 04-1849 (3d Cir. Apr. 7, 2005) (Roth, Chertoff, & Restani, JJ.).

2d Circuit Affirms Exclusion of Business Ethics Testimony

The Second Circuit has affirmed the trial court's exclusion of testimony from an expert witness who proposed to opine, on behalf of the defendant in a libel case, that the plaintiff's conduct was a violation of business ethics and amounted to extortion. See DiBella v. Hopkins, No. 03-7012 (2d Cir. Apr. 4, 2005) (Cardamone, McLaughlin, & Wesley, JJ.).

Expert Perjury Watch (Alabama Edition)

You know things are bad when your expert takes the fifth.

Pop Quiz on Research Ethics

You are an EPA official. You are told of a proposed study, known as the "Children's Environmental Exposure Research Study" (or "CHEERS," for short), to be jointly sponsored by EPA and the American Chemistry Council. In the study, parents from low-income families who use pesticides in the home will be paid $970/year to allow their infants and toddlers to go about their usual activities as use of the pesticides continues. The data will be used to evaluate the effects of pesticides on small children.

You:

(a) Say: "No. No way. Not at my agency. We cannot fund or support this. Not one penny. Now get out of my office, and never come back."

(b) Hire outside experts to help determine whether the research would be ethical.

For the respective answers of Sen. Barbara Boxer (D-CA) and Stephen L. Johnson (nominated by Pres. Bush to head up the EPA), see this story in today's New York Times.

Update 4/10/05: Apparently confirmation politics are good for something. The study has been nixed.

Does Peer Review Matter?

The existence vel non of supportive peer-reviewed literature is often the focal point of Daubert disputes. Does peer review make any difference in the quality of the scholarly product? Daniel Enger weighs in at Slate. (Thanks to our Colorado correspondent, Jim England, for the pointer.)

Connecticut Supreme Court Upholds Exclusion of Testimony Reliant on "Grisso" Instrument for Gauging Juvenile Comprehension of Miranda Rights

The "Grisso" protocol is an instrument developed by forensic psychologist Thomas Grisso to aid in evaluating juvenile offenders' comprehension of their Miranda rights. The Connecticut Supreme Court has released an opinion holding: (a) that the protocol is purportedly founded on scientific methodologies and is therefore subject to scrutiny under Porter (Connecticut's decision adopting Daubert); and (b) that a lower court did not abuse its discretion in excluding testimony based on the protocol in connection with a suppression hearing. See State v. Griffin, No. 17052 (Conn. Sup. Ct. Apr. 5, 2005).

Update 4/7/05: A post at the Connecticut Law Blog offers a detailed analysis of the Griffin decision.

Note to Mozilla Users

We try to spend more time thinking about content than about the intricacies of html. But with increasing numbers of visitors using Mozilla Firefox rather than Internet Explorer, we were forced to confront the problem that some of the pages at our parent site didn't display properly in Mozilla browsers. We won't bore you with the details, except to say that it had to do with the different ways Mozilla and IE handle code within tables. The upshot is that we've fixed the problem, and Mozilla users should now enjoy a more aesthetically satisfactory experience. In fact, why not load up your Firefox browser and go take a spin right now?

"Sound Science" and Yucca Mountain

Some highlights from e-mails written by federal employees researching the suitability of Yucca Mountain as a repository for nuclear waste:

• "Science by peer pressure is dangerous but sometime it is necessary."

• "The QA bullshit grows deeper. I may need to say that I did everything by hand for the data package I am submitting that you and [redacted] reviewed. The program I wrote is not in the system and QA will be all over it like flies on &%#$. All references to [redacted] are being deleted. Here’s my question: When we go to start QA’ing the site-scale modeling work, will I get taken to the cleaners because I am not referencing either a tech procedure or a scientific notebook?"

• [In response to the above:] "What if you just download the raw files from [redacted] and say you used those? Do they need to know any more than that? You don’t really need to do an analysis just say this is the data I used. Maybe that would work."

• [Replying:] "Not a bad idea. I am now considering it. Ideally, one would assume that the more information you proved QA, the better the QA. In reality, it seems that the opposite is true. At any rate, it’s a damn shame to be wasting time with this sort of thing."

• “Model simulations have been in progress but about 3 weeks ago I found a small error in the model input that was generated using the [redacted] data. The error was minor but would have created a QA nightmare so this was fixed and the simulations are being re-done (I’ll send you a summary of the results when I get to this point). The input files are basically re-formatted [redacted] export files with a minor amount of parameter estimation occurring to fill small gaps in the record (even for the high ranking sites, there are gaps all over the place). Here’s the weird news; to get this milestone through QA, I must state that I have arbitrarily selected the analog sites. So for the record, seven analog sites have been arbitrarily (randomly) selected. Hopefully these sites will by coincidence match the sites you have identified. P.S. please destroy this memo."

• "Dealing with this QA bullshit is really starting to make me sick."

• "Don’t look at the last 4 lines. Those lines are a mystery that I believe somehow relate to the work [redacted] was doing in entering the 1994 data. These lines are not used by [redacted] (we stop at 9/30/94). I’ve deleted the lines from the 'official' QA version of the files (which do have headers). In the end I keep track of 2 sets of files, the ones that will keep QA happy and the ones that were actually used."

• "There is of course, no scientific notebook for this work. All work is in the form of electronic files…. They may be expecting to see something that at least looks like a scientific notebook documenting work in progress. I can start making something up but then the [redacted] projects will need to go on hold."

• "The programs, of course, are all already installed otherwise the [redacted] would not exist. I don’t have a clue when these programs were installed. So I’ve made up the dates and names (see red edits below). This is as good as its going to get. If they need more proof, I will be happy to make up more stuff, as long as its not a video recording of the software being installed."

Matthew Wald has the story.

2d Circuit Upholds Damages Expert in False Advertising Case

In an unpublished opinion, the Second Circuit has upheld the trial court's decision admitting testimony from the damages expert for Playtex in its false advertising suit against Procter & Gamble. See Playtex Prods., Inc. v. Procter & Gamble Co., No. 03-7651-cv (2d Cir. Mar. 28, 2005) (Sotomayor, Raggi, & Hall, JJ.).