Officer Administering HGN Test May Testify as Lay Witness, Says New Hampshire Supreme Court

In State v. Dahood, 148 N.H. 723, 814 A.2d 159 (2002), the New Hampshire Supreme Court held that the Horizontal Gaze Nystagmus or "HGN" test is admissible as a matter of law, under Daubert, as circumstantial evidence of intoxication, so long as a proper foundation is offered through a "qualified witness."

If the police officer who administered the HGN test is offered as that "qualified witness," must the officer be tendered as an expert, whose testimony would therefore be subject to pretrial disclosure requirements? No, the New Hampshire Supreme Court has now held. The officer may testify as a lay witness. See State v. Cochrane, No. 2005-021 (N.H. Apr. 26, 2006).

Interrogatory Answer Outlining Opinion of Non-Testifying Expert Is Not Party Admission, Says Minnesota Supreme Court

An interrogatory answer outlining the proposed testimony of a toxicologist who did not testify at trial could not be offered by the adversary as a party admission, because the party to be charged with the admission had not adopted the proposed testimony in an "unequivocal, positive, and definite" manner, the Minnesota Supreme Court has ruled. See Kelly v. Ellefson, No. A04-615 (Minn. Apr. 27, 2006).

Cupp on Daubert and Products Liability

Courtesy of TortsProf Blog, we've learned of a paper by Richard L. Cupp, Jr., associate dean and professor at Pepperdine School of Law, entitled "Believing in Products Liability: Reflections on Daubert, Doctrinal Evolution, and David Owen’s Products Liability Law" -- a fascinating and thought-provoking look at the symbiotic relationship between Daubert and products liability doctrine.

Pennsylvania's High Court Upholds Admissibility of Computer-Generated Animations

The Pennsylvania Supreme Court has issued a major opinion upholding the admissibility of computer-generated animations as demonstrative evidence, without the need for a Frye inquiry. Justice Newman authored the majority opinion. See Commonwealth v. Serge, No. 150 MAP 2004 (Pa. Apr. 25, 2006). Justices Cappy, Castille, and Eakin each filed separate concurrences.

Our Litigious Society

The Administrative Office of the U.S. Courts has released its latest statistical report on the federal caseload. Some of the numbers, we realize, might look very different, if state courts were included. But the federal figures are interesting nonetheless.

There were 266,216 civil cases pending at the end of 2005 -- a little less than one case per thousand U.S. residents. Federal filings increased from 217,013 in 1990 to 253,273 in 2005. In other words, they experienced about the same rate of growth as the American population. More cases were terminated than were filed in 2005: in the federal courts, at least, Americans grew about 10% less litigious on the year.

Of the year's 253,273 filings, there were 169,265 statutory actions, 51,335 tort actions, 26,020 contract actions, and 4561 real property actions. The tort actions included 47,364 personal injury cases, which in turn included 1221 medical malpractice claims. That's roughly one federal medical malpractice suit for every quarter million Americans.

The statutory actions included 61,238 prisoner petitions -- about a quarter of all filings for the year. Some 18,322 suits arose under federal labor laws, with an additional 16,930 involving workplace discrimination claims. There were 15,487 actions filed under the Social Security laws.

By the government's count, a total of 781 civil RICO actions were filed.

It's Worse Than We Thought

It has been suggested that readers of this blog may be the only audience who might appreciate this.

We find the thought alarming.

The Year So Far

Some updated numbers:

• Federal appellate opinions so far in 2006 addressing the admissibility of expert evidence under Rule 702: 34
  
• Projected opinions to be rendered this year at that pace: 108
  
• Average per annum from 2000 through 2005: 132
  
• Decisions this year in which a district court's evidentiary ruling was held to be error: 2
  
• Decisions in which an erroneous district court ruling led to reversal of the judgment: 0
  
• Number of dissents in this year's opinions to date: 0
  
• Number of this year's opinions published to date: 11
  
• Percentage published, year to date: 32.4
  
• Percentage published, 1/1/2000 to date: 58.9

Update 5/28/06: We've added "under Rule 702" in the first bullet point, and the same reservation applies to the other bullet points. The caveat is necessary to distinguish decisions under other procedural and evidentiary rules that may also apply to expert testimony, such as Fed. R. Evid. 601. See, e.g., Jerden v. Amstutz, No. 04-35889 (9th Cir. Jan. 12, 2006). We should also mention that we're not counting opinions like Fuesting v. Zimmer, Inc., No. 04-2158 (7th Cir. May 22, 2006), that simply modify rulings handed down last year.

Experts Must Satisfy Rule 702 as Well as Statutory Competency Requirements, Alabama Supreme Court Holds

An Alabama statute provides that an expert witness is competent to testify in a medical malpractice case only if the expert qualifies as a "similarly situated health care provider" under certain specific statutory criteria. That statutory requirement does not displace the independent requirement, under the Alabama Rules of Evidence, that the expert possess sufficient qualifications and experience for his testimony to assist the trier of fact, the Alabama Supreme Court has ruled. The expert must satisfy both the statutory competency requirements and the standards imposed under Ala. R. Evid. 702. The court's opinion in Holcomb v. Carraway, No. 1041471 (Ala. Apr. 21, 2006), is not yet available online.

Another State High Court Rejects Comparative Bullet Lead Analysis

In an opinion released Wednesday, the Maryland Court of Appeals held that comparative bullet lead analysis does not enjoy sufficient general acceptance to be admissible under Maryland's Frye/Reed test. See Clemons v. State, No. 70, Sept. Term, 2005 (Md. Apr. 19, 2006).

Mississippi Supreme Court Upholds Real Estate Appraisal Testimony

The Mississippi Supreme Court has issued an opinion upholding the testimony of an appraiser in an eminent domain case. The parties' appraisers agreed on the appropriate methodology (comparable sales), but disagreed on how to categorize the property (and thus on what comparable sales to consult). The plaintiffs' appraiser thought the property's highest and best use was industrial or commercial; the defendants' appraiser thought it was residential, institutional, and/or agricultural. The trial court sided with the defendants and directed the plaintiffs' appraiser not to base his testimony on industrial or commercial uses. In response, the expert abandoned reliance on industrial or commercial comparables in his testimony, but the trial court permitted him to offer an ultimate opinon on the value per acre that remained unchanged. The state's high court affirmed, citing the discretion vested in the trial court, and noting that the trial court's orders did not attempt to dictate the appraiser's ultimate valuation, but merely proscribed testimonial reliance on commercial or industrial uses. See Tunica County v. Matthews, No. 2004-CA-02352-SCT (Miss. Apr. 13, 2006).

Goodbye to Google Analytics (or "Aroint Thee, Cookies!")

We've deleted the Google Analytics coding from the site. It was up for only a few days.

When we first got the invitation, it seemed like a chance to try something free and cool. And we admit, it was fun, after we had installed the requisite code on each page of the site, to go and peek at the data.

But after a few days, we started hearing from users, who reported that the site was now trying to foist cookies on them. So the coding has been uninstalled. The cookies are gone, your privacy is intact, and our conscience is again clear.

Because we think it's a good motto. Don't be evil.

Washington Supreme Court Upholds Testimony re Penile Plethysmograph

No Frye hearing was required when a psychologist testified to results of a penile plethysmograph exam in proceedings under Washington's Sexually Violent Predators Act, the state's high court ruled yesterday. The test may have little value in predicting recividism, but it is an accepted method for diagnosing deviance, the court said. It was the respondent's psychopathy, in combination with his deviance, that supported the commitment verdict, the court explained. See In re Halgren, No. 76161-2 (Wash. Apr. 13, 2006).

Daubert and Unpublished Decisions

As many readers will have heard by now, the Supreme Court has approved amendments to the Federal Rules of Appellate Procedure that will permit citation of unpublished opinions beginning in 2007 (unless Congress intervenes in the interim, which it isn't likely to do).

There may be fields of legal practice where the change will make little difference. The prediction here, though, is that in the area of expert evidence, the changes will be noticeable. About 40% of all federal appellate opinions addressing the admissibility of expert evidence are currently unpublished. After the rules change, there will be a substantial expansion of the corpus of decisions to canvass for precedents involving the same expert, or the same field, or the same issue, or similar fact patterns.

As matters stand, it can sometimes be difficult to find a citable case on point, and when precedents on point aren't to be found, briefing and appellate analysis can tend to take a factor-oriented direction. Arguments about admissibility, that is, can tend to proceed, in a precedent-poor environment, by reference to abstract and fluid principles that radically underdetermine the outcomes (which are, to that degree, somewhat unpredictable).

But as the body of citable decisions expands, so too does the likelihood of finding decisions on point. We can't prove it by rigorous empirical means, but it's our perception that as the number of Daubert precedents has grown over time, recurring issues and fact patterns have begun to precipitate what might be called "local" rules of decision -- decisional ecologies in particular topical and disciplinary neighborhoods, within which like cases increasingly tend to be decided in like manner. If we are right in perceiving such a trend, then maybe it will accelerate as a larger body of citable precedents becomes available. Ceteris paribus, that would seem a positive prospect.

Cursory Daubert Ruling Abdicates Gatekeeping Function, Says 7th Circuit

A district court's one-sentence ruling, to the effect that a human resources expert had sufficient expertise to testify, abdicated the lower court's gatekeeping function, because it reflected no analysis of the expert's methodology, the Seventh Circuit has held. The error, however, was harmless. See Naeem v. McKesson Drug Co., No. 04-3816 (7th Cir. Apr. 12, 2006) (Flaum, Ripple, & Kanne, JJ.).

California High Court Upholds Forensic Hair Comparison Evidence

The California Supreme Court has upheld forensic hair comparison evidence against a challenge from a criminal defendant who argued that the evidence was so unreliable as to violate his Due Process rights. Interestingly, the defendant raised no Kelly/Frye argument against the admissibility of the evidence on appeal, and no Due Process arguments at trial. The Kelly/Frye objections that he did raise at trial were deemed sufficient to preserve the Due Process arguments that he raised only on appeal. See People v. Huggins, No. S037006 (Calif. Apr. 10, 2006).

Fourth Circuit Affirms Exclusion of Differential Diagnosis Testimony in Toxic Mold Case

A Fourth Circuit panel has issued an unpublished opinion excluding differential diagnosis testimony from plaintiffs' expert, Dr. Richard Bernstein, in a case alleging that plaintiffs' respiratory ailments were caused by toxic mold. See Roche v. Lincoln Prop. Co., No. 03-2064 (4th Cir. Apr. 7, 2006) (Widener, Gregory, & Beam, JJ.). The opinion recognizes that differential diagnosis is a reliable medical technique but holds that Dr. Bernstein did not implement it in reliable fashion.

Dr. Bernstein is no relation, presumably, to Prof. David Bernstein, who worries that differential diagnoses are sailing into court unimpeded.

Prof. Childs on "The Overlapping Magisteria of Law and Science"

Following our post earlier today on party-funded scientific research, we've had a chance to review a related paper by Professor William G. Childs of the Western New England College School of Law. Entitled "The Overlapping Magisteria of Law and Science: When Litigation and Science Collide," the paper addresses two possibly unintended consequences of Daubert and its progeny: litigation-driven scholarship, and discovery into the peer-review process. It mounts plausible arguments that: (a) existing or potential institutional checks, both legal and scientific, can ameliorate negative consequences from bias in litigation-driven research; and (b) discovery into the peer-review process is one of them, and may actually help to incentivize better peer review.

Certainly Prof. Childs is right that the law of evidence cannot respond to party-funded research with a rule of blanket exclusion. Such a solution would fall prey to the genetic fallacy, and would also ignore the fact that litigation-driven research is often desirable and beneficial. Sometimes, indeed, it may be the only research on the matters in controversy, because nobody would much care to research them but for their actual or potential pertinence to some legal claim.

We think we also agree with Prof. Childs's view that discovery into the peer-review process is a potentially helpful check on bias. The danger of bias arises largely from the imperfection, and the limited scope, of peer review itself. Because peer review is sometimes cursory, and because it virtually never involves a full, direct, independent investigation into all of the author's research and data, it's possible for interested parties, in concert with affiliated experts, to get work past the peer reviewers and into the published literature, and then to invoke the peer reviewers' imprimatur in subsequent litigation, even if the research might not stand up very well under closer scrutiny. If peer review is to remain a factor in evaluating admissibility under prevailing evidentiary law, it seems sensible to permit litigants to test what the peer review really entailed, and how searching it really was.

Might discovery into peer review exert too strong a chilling effect? Prof. Childs thinks that's doubtful, in part because only a very small share of published scientific articles end up playing any significant role in litigation. We suspect he's right about that. More fundamentally, he's probably right that one person's "chilling effect" is another person's "incentive to conduct peer review carefully." Trial judges do vary in their zeal to regulate abusive discovery practices, but if that's a problem, immunizing peer review from discovery would be too draconian a solution, given the central importance that peer review can assume in Daubert proceedings, and in legal controversies more broadly.

Prof. Childs has some ideas about where to draw the discovery-regulating lines, and not everybody will agree with those ideas in every particular. But the subject does warrant discussion and debate. One important question is who should compensate peer reviewers for responding to third-party discovery requests. Prof. Childs touches on this topic only briefly, noting that litigants often end up paying for deponents' time, and suggesting that journals could indemnify their reviewers for their time and legal costs. We worry, though, that a solution relying only on indemnity could pose substantial economic burdens on scholarly publications. (Would publishers need to purchase insurance, in case litigators took an economically ruinous interest in something from their publications?) Indemnity might also pose problems of "moral hazard," if peer reviewers responding to discovery found it costless (and perhaps even income-enhancing) to spend whatever time, and incur whatever legal fees, they chose, regardless of the need therefor. Such concerns could be abated, perhaps, through a rebuttable presumption that compensation for the reviewers' time should come from the deposing party. But we'd have to think about it more, to be sure.

What We Don't Know About Workplace Exposures to Nanotechnology Materials

A fascinating article in today's Washington Post explores whether growth in the nanotechnology industry is outpacing scientific knowledge about the health effects of worker exposure to nanotechnology products.

Answer: it sure is. By some estimates, nanotechnology will become a $2.6 trillion industry within ten years. Right now, there are basically no regulatory standards. Of the $1.2 billion earmarked for the federal government's National Nanotechnology Initiative in 2007, only about 0.2% is allocated to studying workplace safety issues. See Rick Weiss, Nanotech Raises Worker-Safety Questions, Washington Post, Apr. 8, 2006, at A1.

"Legal Affairs Debate Club" Tackles Party-Funded Science

A reader has drawn our attention to a lively Legal Affairs Debate Club exchange on the subject of scientific research funded by corporations in anticipation of litigation.

Expert Perjury Watch (Alabama Edition)

No actual Ph.D. in cognitive neuropsychology from MIT. No degree from Harvard Medical School either. No membership in Mensa, and no career as an Atlantic Coast Conference scholar-athlete. Not even a real college degree, as it turns out.

Just an utterly confabulated resume, is all.

Objection, Your Honor, He's Assisting the Trier of Fact!

New Jersey now permits questions from jurors, and alarm has broken out over how experts respond to them. The New Jersey Law Journal has more. (Tip to The Legal Reader.)

The concern, apparently, is that the experts may start to soliloquize, and that the adverse party might be put in the awkward position of objecting. But we're not sure how worried it's reasonable to be. In our experience, experts are prone to wander afield even when lawyers are asking the questions. And we're not very patient with the idea that a party's due process rights are affronted when the party's lawyer is required to raise objections. If we indulge the assumption that jurors are sufficiently fair-minded to be there in the first place, can the rules and the process not be explained to them, in a way they can be brought to accept?

Human Factors and Chicken Litter

An Arkansas judge has excluded testimony from human factors expert Arthur Fisk, who opined that allegedly cancer-causing fertilizer made from chicken litter should carry warnings. The Northwest Arkansas Times has the story.

Fisk holds a Ph.D. in experimental psychology. He admitted at deposition that he had no expertise in chicken litter (we wonder how hard it was to wrest that concession from him), or in the relevant alleged carcinogens. He had proposed to testify about how people adjust their behavior based on product warnings, but the trial judge ruled that jurors wouldn't need his help with that problem. This appears to be the same Dr. Fisk whose testimony was excluded in Vandiver v. Ohio River Co., LLC, No. 05-60533 (5th Cir. Mar. 30, 2006). If so, he's having a bad month.

Update: Emboldened by their success with Fisk, defendants are now seeking to exclude plaintiffs' expert Rod O'Connor, a chemist and retired Baylor professor. To judge from the local press reports, this new motion sounds considerably weaker. O'Connor proposes to testify that the fertilizer degrades to arsenic, which is then transported from the fields to area homes by environmental forces. Lawyers from Tyson Foods, who've been helping to mount the chicken litter's defense, are objecting that O'Connor should have taken air samples and biological samples in addition to dust samples, that his figures don't account for background levels of naturally occurring arsenic, and so forth. We're not familiar with the details of the case, but objections like those are commonly held to go to weight, not admissibility.

A Note on Insurance Company Behavior

Despite Katrina and other calamities, home and auto insurers made a record $44.8 billion in profits last year, according to the LA Times.

In other words, there is a payout crisis. The insurers say they face deep problems, for which the only cures are premium hikes, cutbacks in coverage, and an expanded role by state and federal governments in insuring against natural disasters:

"Unless insurers can get relief, you're going to see a pullback by the private industry," warned Robert P. Hartwig, chief economist of the industry-funded Insurance Information Institute.

"We're not being good stewards of our investors' capital or our policyholders' surplus if we keep doing business where we can't make money."

New Study Links Cell Phone Use to Brain Tumors

Numerous press sources are reporting on a new Swedish study linking heavy cell phone usage to a 240% increase in the risk of a malignant brain tumor on the side of the head where the phone is used.

Fifth Circuit Upholds Exclusion of Engineering, Human Factors Testimony in Products Case

In an unpublished decision, a Fifth Circuit panel has upheld the trial court's exclusion of testimony from engineering and human factors witnesses in a products case. Both witnesses, the panel held, failed to test their proposed designs and warnings. See Vandiver v. Ohio River Co., LLC, No. 05-60533 (5th Cir. Mar. 30, 2006) (Barksdale, Stewart, & Clement, JJ.).