Ohio Appellate Court Approves Discovery of Paralegal's Role in Drafting of Expert Reports

We've been informed of a decision earlier this month, from the Ohio Court of Appeals, approving the deposition of a paralegal identified by two expert witnesses as playing some role in the drafting of their reports. The opinion upholds the denial of a motion for protective order by proponent's counsel, over a dissent prophesying a general opening of the discovery floodgates. The majority dismisses the dissent's concerns as overwrought. But maybe this sort of thing is a bit more common than the majority imagines? See Stanton v. Univ. Hosps. Health Sys., Inc., 2006-Ohio-2297.

The Year So Far

Some updated numbers:

• Federal appellate opinions so far in 2006 addressing the admissibility of expert evidence under Rule 702: 42
  
• Projected opinions to be rendered this year at that pace: 104
  
• 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: 17
  
• Percentage published, year to date: 40.5
  
• Percentage published, 1/1/2000 to date: 59.0

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.

State Law Roundup

Some decisions from state high courts this past week:

The Mississippi Supreme Court held, in Webb v. Braswell, No. 2004-CA-01438-SCT (Miss. May 25, 2006), that evidence of lost future profits in an unestablished business failed Daubert's reliability test.

The Pennsylvania Supreme Court held, in Commonwealth v. Conklin, No. 5 MAP 2005 (Pa. May 24, 2006), that licensed clinical social workers are competent to offer expert testimony on the defendant's propensity to engage in violent sexual predation in proceedings under the state's Sexually Violent Predators Act. The defendant had contended that state law permitted only licensed psychologists or psychiatrists to do so.

The Rhode Island Supreme Court held, in State v. Day, No. 2003-143-C.A. (R.I. May 25, 2006), that the trial court did not abuse its discretion in refusing the defendant's request to fund expert testimony on eyewitness identification. That result is consistent with Rhode Island precedent, but the defendant had hoped to carve out an exception for identifications based on newspaper photographs.

Seventh Circuit Rules on Unitherm's Applicability to Evidentiary Rulings

Earlier this year, in Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 126 S. Ct. 980 (2006), the Supreme Court ruled that to preserve a sufficiency challenge to a party's evidence at trial, the opposing party must file pre- and post-verdict motions for judgment as a matter of law under Fed. R. Civ. P. 50. Under Unitherm, failure to file a renewed post-verdict motion under Rule 50 leaves both the district and appellate courts without the power to direct entry of judgment in favor of the verdict-loser (or even to order a new trial) on sufficiency grounds.

Does Unitherm require that a party renew its evidentiary objections in Rule 50 motions? A Seventh Circuit panel has ruled: (1) that evidentiary error may be preserved for appeal under Fed. R. Evid. 103 without any need for a Rule 50 motion; but (2) the objecting party's failure to file any post-verdict Rule 50 motion has the effect of limiting appellate relief to a new trial. Absent a post-verdict Rule 50 motion, that is, the appellate court may not rule that evidence should have been excluded and then direct entry of judgment against the verdict-winner on the theory that the verdict-winner's remaining evidence is insufficient. See Fuesting v. Zimmer, Inc., No. 04-2158 (7th Cir. May 22, 2006) (Flaum, Evans, & Williams, JJ.).

Will the holding in Fuesting be followed in other circuits? Not clear. The Fuesting opinion relies heavily on language from Rule 103 and its Advisory Committee Notes suggesting (on the Seventh Circuit's interpretation) that satisfaction of Rule 103's conditions is sufficient, by itself, to preserve error. But neither Rule 103's text nor its Advisory Committee Notes manifestly compel that conclusion. Meanwhile, there is strong language in Unitherm about how failure to seek a new trial from the district court via post-verdict Rule 50 motion waives the right to secure such relief on appeal, at least in sufficiency contexts where evidentiary error is not in play.

For now, then, the safest course is probably to renew the evidentiary objections in pre- and post-verdict Rule 50 filings, raise the concomitant sufficiency challenge in both motions, and request a new trial in the alternative in the post-verdict motion. Admittedly, that's a lot of paper-shuffling for everybody. But better to shuffle the paper now, then in a later malpractice suit.

Working in Mysterious Ways

In doing some research, we've run across the following statement, in Ind. Code § 34-45-3-1, concerning the scope of Indiana's legislative chapter on expert testimony:

"This chapter applies to a witness who is an expert in any art, science, trade, profession or mystery."

8th Circuit Upholds CPA's Testimony on Damages in Distributorship Dispute

The Eighth Circuit has upheld the trial court's decision admitting CPA testimony on lost profits in a commercial dispute involving breach of a distributorship agreement. The distributor objected that the CPA's analysis rested on undemonstrated factual assumptions, but the appellate panel dismissed that argument, restating the Eighth Circuit's general rule that the factual bases of an expert's opinion usually go to weight, not admissibility. That rule was all the more applicable, said the panel, given that the CPA's need to make factual assumptions arose largely from the distributor's breach. See Matthew Headley Holdings, LLC v. McCleary, Inc., No. 05-2122 (8th Cir. May 19, 2006) (Colloton, Heaney, & Gruender, JJ.).

8th Circuit Upholds Neurologist's Testimony

The Eighth Circuit released an opinion today upholding evidence from a neurologist in an auto accident case. The neurologist testified, on behalf of the defendant insurer in a bench trial, that the accident did not cause the plaintiff's shoulder problems. See Robinson v. GEICO Gen. Ins. Co., No. 05-3191 (8th Cir. May 19, 2006) (Loken, Bowman, & Smith, JJ.).

Proposed Kentucky Rule Amendments: Revised Rule 702 Would "Codify" Daubert and Its Progeny

Barry M. Miller, our Kentucky correspondent, draws our attention to proposed amendments to the Kentucky Rules of Evidence, under which Kentucky would conform its current version of Rule 702 to the federal version as amended in 2000.

Kentucky first adopted Daubert eleven years ago, in Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995). Is the state's contemplated adoption of the 2000 amendments to Fed. R. Evid. 702 now intended to codify existing jurisprudence under Daubert and Mitchell, or displace it? The Evidence Rules Commission Notes give the answer:

In 1995, the Kentucky Supreme Court followed the lead of the United States Supreme Court and adopted the rationale of the Daubert decision as the appropriate interpretation of the language of Rule 702. Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995). In 2004, the Kentucky Supreme Court restated the flexible standard originally espoused in Daubert in Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004).

The 2007 amendment to Kentucky Rule of Evidence, Rule 702 is designed to follow the development and adopts exact language set by the Federal Rules. The amendment will codify the approach taken in the Daubert case, followed in the Toyota Motor Corp. case and allow the trial court to act as gatekeeper to the introduction of "scientific, technical, or other specialized knowledge." The amendment does not specifically require the use of all or any one of the factors suggested by the court. It allows the trial court to use those factors that are appropriate to the case at trial.

NJ Supreme Court Upholds Testimony on Battered Women's Syndrome

The New Jersey Supreme Court has issued an opinion upholding testimony on battered women's syndrome, in a murder case involving the victim's deathbed denial, over twenty years ago, that her fatal injuries resulted from spousal abuse. The court reached its conclusion even though the woman was never diagnosed with battered women's syndrome during her lifetime. See State v. Townsend, No. A-112/113-04 (N.J. May 15, 2006).

What You Don't Want Your Expert To Say on Cross

"Look, I don't want to continue with defending myself. I concede to whatever."

Overexperted?

Here's a piece from Saturday's Fort Worth Star-Telegram on the booming expert-testimony industry. It focuses on experts enlisted by corporate defendants. That makes some intuitive sense. Maybe, as Willie Sutton might say, that's where the money is. But we wonder if any empirical investigation has been attempted, recently, into the comparative expenditures of the plaintiff and defense bars.

We wonder this partly because we have begun to question the conventional wisdom that permissive rules on expert testimony tend to favor plaintiffs. That conventional wisdom may represent the natural conclusion, when the focus of debate is on tightening up the rules for malpractice claims, product liability actions, and toxic torts. Make the rules stringent enough, and no tort claimant would be able to carry his burden of proof.

But expert evidence can also be a handy vehicle for spin and rationalization, for clients with the wherewithal to hone their experts' presentations through big-budget focus groups and consultancies.

And so we're curious, just where this estimated $6-8 billion per year is coming from, and where it's going.

Amended Rule 702 and Kumho Tire

The second example offered by Prof. Bernstein in support of his thesis that amended Rule 702 is more stringent than the Daubert trilogy involves Kumho Tire.

The main problem with Bernstein’s second example is that it proceeds largely by assuming what it sets out to prove: the supposed leniency of Kumho Tire versus the alleged stringency of amended Rule 702. Bernstein first asserts that Kumho Tire “seems to give district courts almost infinitely wide discretion in how to determine the admissibility of experience-based testimony.” To support that venturous assertion, Bernstein cites only Justice Breyer’s example of a perfume sniffer who claims an ability to distinguish among 140 different odors. According to Bernstein, the Kumho Tire opinion contemplates that the perfume sniffer “is to be qualified based solely on experience and ‘whether his preparation is of a kind that others in the field would recognize as acceptable.’” Bernstein contrasts this supposed licentiousness with what Bernstein calls Rule 702’s “absolute requirement that all expert testimony be ‘the product of reliable principles and methods,’ [and] that courts must ensure that ‘the witness has applied the principles and methods reliably to the facts of the case.’” The implication is that amended Rule 702 would test the perfume sniffer’s testimony by some more stringent criteria than the Kumho Tire opinion applied.

In our view, however, the actual Kumho Tire opinion is not remotely so licentious as Bernstein suggests, nor do we think amended Rule 702 is so stringent as he may suppose. Let us begin with the perfume sniffer – an example offered by Justice Breyer in the course of rejecting the contention that the so-called “Daubert factors” are inapplicable in gauging nonscientific testimony. Here is the passage at issue:

At the same time, and contrary to the Court of Appeals’ view, some of Daubert’s questions can help to evaluate the reliability even of experience-based testimony. In certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert’s experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community. Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.

We must therefore disagree with the Eleventh Circuit's holding that a trial judge may ask questions of the sort Daubert mentioned only where an expert “relies on the application of scientific principles,” but not where an expert relies “on skill- or experience-based observation.”

Manifestly, the claim that it may be “useful” to make a certain inquiry about a perfume sniffer’s “preparation” (whatever Justice Breyer may have meant by that) does not equate to announcement of a legal test that would make the perfume sniffer’s testimony admissible “solely” as a function of whether other perfume sniffers respect the witness’s training, ability, or approach (though surely the perfume sniffer’s failure to satisfy standards promulgated by the International Perfume Sniffers’ Guild would be a potentially negative factor). Nor does the balance of the Kumho Tire opinion announce any such test. Quite the contrary, the Kumho Tire opinion repeatedly and explicitly rejects the position that experience-based testimony should be generally exempt from the kind of gatekeeping scrutiny prescribed in Daubert. It likewise rejects the position that the standards of rigor prevailing in the expert’s discipline are automatically sufficient to warrant admissibility – for as Justice Breyer takes pains to note, the discipline itself may lack reliability.

What the Kumho Tire opinion does do is recognize that no general formula can be stipulated in advance about what particular indicia of reliability may be germane to testimony from different nonscientific disciplines – something that was already implicit, perhaps, in the Daubert Court’s conclusion that no such universal formula could be found even for scientific testimony.

Kumho Tire’s rejection of a formulaic litmus test has never been accepted cheerfully by people who feel that expert evidence is admitted too promiscuously. And those people are not entirely without a point. It is true, in fact, that experience-based testimony sometimes relies on acquired abilities that may verge on the ineffable. That can make it difficult to force the reduction of the expert’s testimony to the kind of discursively argumentative format of which lawyers are notoriously fond, which in turn can make it difficult to frame a Daubert critique, or (perhaps) even to cross-examine the witness effectively. (We don’t know much about perfume sniffing, but we can well imagine the frustration of narcotics defendants trying to challenge a probable cause determination resting on nothing more substantial than the inarticulate behavior of a drug-sniffing canine.)

Those are problems, mind you, whose prevalence it would be easy to exaggerate. The actual Kumho Tire decision, for example, involved not a perfume sniffer, but an engineer’s opinion on the cause of a tire failure. In upholding the trial court’s exclusion of the testimony, the Supreme Court found itself conducting no struggle to tease articulable content from an ineffable record. The record, in fact, was so substantial and discursive that even the Supreme Court’s brisk summary of the key evidentiary information has a decidedly soporific quality -- one rivaled, perhaps, only by posts at this blog. That record permitted not only an assessment that the expert’s theory lacked general acceptance in his field, but also a finding that it lacked support in the literature, as well as an evaluation of its analytical gaps. In practice, rational analysis did not find itself lacking for toeholds.

It may be conceded, for all that, that Kumho Tire probably left trial courts with less in the way of concrete guidance for experience-based expert testimony than Daubert had provided for scientific testimony. But whatever might be said about the failure of Kumho Tire to provide a handy, one-size-fits-all solution to the general problem of testing nonscientific testimony for reliability, we think it’s bold to claim that the amendments to Rule 702 did any better. Indeed, there’s no good reason, in our view, to think they did anything different. Certainly the Kumho Tire Court saw nothing in those amendments (then in proposed draft form) to undercut the Court’s reasoning or holding; it affirmatively cited a preliminary draft of the amendments for the proposition that testimony from experts of all stripes should be scrutinized to determine whether the principles and methods they employ “have been properly applied to the facts of the case.” And certainly the amendments’ drafters did not see themselves as correcting any errors or deficiencies in Kumho Tire. Quite the reverse, the Advisory Committee Notes to the 2000 amendments cited Kumho Tire in support of their statement that “[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” Those same Advisory Committee Notes, by the way, quoted Justice Breyer’s discussion of the perfume sniffer with approval.

Where does this leave us? No doubt the requirements of Rule 702 are “absolute” in the sense that they are formulated in the imperative format native to rules, as opposed to the more discursive style of judicial opinions. But it would be specious to reason from that mere difference in form to a difference in content, and there is little other evidence to suggest that any difference in content was stated or intended, when Rule 702 was amended in 2000. Those who believe our system of civil litigation has run amok because of overly permissive rules on expert testimony might have preferred amendments with more ambition. They might have preferred a new, canonical, hyper-restrictive 84-word rule, intended to displace all the permissive mumbo-jumbo that judges had written before, and through which all testimony pretending to the status of specialized “knowledge” could universally be tested, henceforth, for validity. Such an ambition would arguably betoken a species of epistemological arrogance that philosophers and scientists have long since shown enough wisdom and intellectual humility to abandon. But that, of course, would never stop the lawyers.

Happily, however, the lawyers haven’t promulgated any such rule yet. In its current form, Rule 702 rests fundamentally on a set of earlier judicial decisions -- decisions, when read carefully, that show deep respect for the complex and variegated texture of human knowledge. Without reference to those earlier judicial opinions, the amended rule would, in fact, be virtually unintelligible. It’s not that the rule overturned those precedents. The rule distills and embodies them, and whoever would know the meaning of the rule must look to those precedents for its proper elucidation.

Simmons on "Conquering the Province of the Jury"

From C.E. Petit, we learn of a forthcoming article in the University of Cincinnati Law Review by Ohio State law professor Ric Simmons. Entitled "Conquering the Province of the Jury: Expert Testimony and the Professionalization of Fact-Finding," the article argues that prohibitions against "invading the province of the jury" should no longer count as a basis for excluding polygraph testimony or expert evidence on the reliability of eyewitness identification.

Shoo, Fly, Don't Bother Me

There is apparently a forensic specialty that involves estimating the time of death based on the life cycle of the flies that congregate at the lex locus delicti. Prosecutors in search of appellate decisions upholding testimony from forensic entomologists can now cite Simmons v. State, No. SC04-19 (Fla. May 11, 2006).

Sixth Circuit Affirms Summary Judgment in Meridia Litigation

The Sixth Circuit has affirmed the district court's award of summary judgment to defendants in the multi-district Meridia litigation. In the course of doing so, it upheld the lower court's exclusion of a pharmacologist's opinion that the elevation in blood pressure caused by Meridia outweighed any health benefits. See In re Meridia Prods. Liab. Litig., No. 04-4175 (6th Cir. May 11, 2006) (Cole, Gilman, & Friedman, JJ.).

Modus Operandi Testimony: It's Not Just on Drug Dealers Anymore

The Eighth Circuit has published an opinion upholding a law enforcement officer's expert testimony on the modus operandi of illegal gambling operations. See United States v. Anderson, No. 05-3289 (8th Cir. May 10, 2006) (Colloton, Heaney, & Gruender, JJ.).

More on Daubert and Amended Rule 702

Professor David Bernstein has replied to our post of 5/6/06, in which we took issue with his contention that Fed. R. Evid. 702, as amended in 2000, is stricter than, and to that extent supersedes, the teachings of Daubert and its pre-2000 progeny. Bernstein’s response is cross-posted at The Volokh Conspiracy and Point of Law.

Bernstein’s response offers two principal examples to buttress his claim that Rule 702 is more exacting than the requirements on expert evidence imposed in the Daubert trilogy. We’ll address his first example here, and discuss the second in a subsequent post.

Bernstein’s first example contrasts Chief Justice Rehnquist’s famous “ipse dixit” passage from Joiner with the text of amended Rule 702. As we understand him, Bernstein reads the Joiner opinion as merely permitting district courts to exclude testimony from experts who have applied concededly reliable methods in an incorrect or unreliable fashion, whereas he reads the language of Rule 702 to require exclusion in such circumstances.

We do not believe the claimed inconsistency to exist. Bernstein’s reading of Joiner, in particular, seems wide of the mark. Bernstein quotes the following excerpt, in which we have numbered the sentences for the reader’s convenience:

(1) But conclusions and methodology are not entirely distinct from one another. (2) Trained experts commonly extrapolate from existing data. (3) But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. (4) A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

Bernstein invites us to “[n]ote the permissive language, backed up by an abuse of discretion standard.” No one supposes, however, that the amendments to Rule 702 in 2000 did anything to change the standard of appellate review announced in Joiner. That leaves the passage’s allegedly “permissive” content. Bernstein’s reference, presumably, is to the italicized “nothing” and “requires” in Sentence #3 (his emphases), and perhaps to the word “may” in Sentence #4.

It is true, no doubt, that on a narrowly literalist reading, Sentence #3 does not explicitly require district courts to exclude expert opinions that are “connected to existing data only by the ipse dixit of the expert.” But in fact, on a narrowly literalist reading, nothing in Rule 702 imposes such any such requirement either. The naked language of Rule 702 says only that admissibility follows “if ”certain conditions are satisfied. It does not say “only if.” The naked text says nothing explicit, that is, about what happens if the stated conditions go unmet. If, as Bernstein (correctly) claims, Rule 702 mandates that evidence not satisfying those conditions must be excluded, it does so only by virtue of a negative inference, supplied via interpretation.

Now interpretation is a good thing, in our estimation. This is especially so, perhaps, in divining the meaning of the Federal Rules of Evidence – which are presented in a pithy, cathechistic format, but which are intended to guide the resolution of a vast array of complex evidentiary disputes in widely disparate factual contexts. Supreme Court opinions, however, need their fair share of interpreting too, and the standard interpretation of Sentence #3 has long incorporated precisely the same negative inference that Bernstein (correctly) reads into the text of Rule 702. Proponents of expert evidence, that is, do not quote Sentence #3 to argue that district courts may admit opinions that are connected to the data only by the sheer ipse dixit of the expert. Parties opposing the admissibility of the evidence quote Sentence #3 to argue that such evidence must be excluded. That’s how courts quote the language too.

So too with Sentence #4. On a narrowly literalist reading, Sentence #4 does not say anything about what a district court may or may not do, once it has concluded that there is “too great an analytical gap.” It is universally understood, however, that if the district court finds “too great an analytical gap,” the exclusion of the evidence should follow. The nub of most controversies here, of course, is whether some “analytical gap” exists and is “too great,” which is what the district courts “may” decide under Joiner, within the limits of their sound discretion. The most closely parallel provision in Rule 702 speaks of whether “the witness has applied the principles and methods reliably to the facts of the case.” Once again, it is generally left to the district court’s sound discretion to decide whether the expert has satisfied that requirement. And once again, everyone agrees that if the expert is found not to have done so, the testimony will be excluded.

We can make these same points less formalistically. In the quoted passage from Joiner, Chief Justice Rehnquist was rebutting a very particular argument. The expert in Joiner had relied on various epidemiological studies to support an opinion that the plaintiff’s lung cancer resulted from PCB exposures. In excluding the expert’s testimony, the district court concluded that the studies did not support a generic causal link between PCB exposure and lung cancer. The plaintiff’s counsel argued, on appeal, that the district court’s ruling violated Daubert’s famous prescription that the “focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” The district court in Joiner, however, did not in fact reason in the fashion that Daubert proscribes. It did not exclude the expert’s opinion from mere substantive disagreement with the expert’s conclusions, nor based on any argument that took the falsity of those conclusions as a premise. It simply found that the expert’s methods did not actually “generate” the conclusions he adopted. Thus in the oft-quoted passage from Joiner that Bernstein cites, Rehnquist was putting to rest the argument that any judicial inquiry into an expert’s application of his methods constitutes a forbidden “focus” on the expert’s conclusions. Far from being in any disharmony with that teaching, Rule 702, as amended, expressly adopts it.

As we’ve said, we’ll tackle Prof. Bernstein’s second example in another post. In the meantime, though, why does any of this matter, if it makes no difference in evidentiary outcomes? What difference does it make whether a ruling purports to be reached under Joiner or by virtue of amendments to Rule 702, if the result is the same?

To us, it matters because if someone wanted to overthrow thirteen years of precedent under Daubert in one fell swoop, perhaps because someone felt those precedents were too permissive, the presumptive method of choice would be to claim that those precedents were trumped by some short, catechistic text, such as the text of amended Rule 702, to whose explication courts should henceforth devote themselves, to the exclusion of consulting the disfavored precedents. (That, after all, is precisely how decades of jurisprudence under Frye were overthrown.)

We do not say that Prof. Bernstein has such an agenda, and we do not say he doesn't. We’re merely concerned to show that any such agenda won’t fly. The amendments to Rule 702 in 2000 didn’t overturn anything in Joiner (whether holding or dictum). Quite the contrary, those amendments incorporated and distilled Joiner’s reasoning. There remains some controversy over precisely what Joiner and Rule 702 mean. But there’s no good reason to think they mean anything different, or to conclude that the latter was intended to supersede the former.

On the Argument that Amended Rule 702 Supersedes Pre-2000 Precedents

Last November, when Professor David Bernstein first floated his novel theory that the 2000 amendments to Fed. R. Evid. 702 announced new and stricter standards for expert testimony -- standards that allegedly superseded those announced by the Supreme Court in Daubert and its progeny -- we contented ourselves with some preliminary scoffing, promising to revisit the issue if Bernstein's theory didn't die aborning.

The theory apparently lives still. This morning brought news of a new Bernsteinian salvo on the subject, cross-posted (like his first) at The Volokh Conspiracy and Point of Law.

So now we're forced to pay closer attention. That's unfortunate, in a way. If we lived in a perfect intellectual meritocracy, where ideas received notice solely as a function of whether they rested on reasonably sturdy intellectual foundations, we don't think many people would give this theory a second glance -- not without a far more substantial defense than Bernstein has yet offered. And if we discuss the theory here, even to rebut it, it may gain some slight increment of additional currency. However small that increment might be, it is arguably more than the theory has yet been shown to deserve.

But we must face facts, and the modern marketplace of ideas is unmeritocratic to the following extent: it is short on barriers to entry. (We know this because a copy of Microsoft FrontPage is all we needed to crash the party.) If an idea, however benighted, makes its way onto one or two prominent blogs, it can very rapidly take on an aura of intellectual respectability, regardless of its merit.

In this case, that outcome must be resisted. We'll do our best. It may take more than one post. In this one, we want to focus on three basic points.

First, although Bernstein remains pretty vague about the details of his theory, his fundamental thesis, as stated, is bold and sweeping. According to Bernstein, the 2000 amendments to Rule 702 did not merely codify the teachings of Daubert and its progeny. Bernstein says those amendments also announced new and stricter standards, not adopted in the Daubert trilogy itself, and that those standards affirmatively displace various "dicta" from those Supreme Court decisions, as well as lower court authority having relied on those "dicta." So much so, Bernstein says, that "you shouldn't be relying on any precedent on expert evidence from before 2000." (Um, wow.)

Second, in public discussion to date, Bernstein has offered substantially no analysis or precedential support for this bold and sweeping theory. That lacuna may or may not be cured in his promised forthcoming paper. For the moment, however, the theory rests on Bernstein's largely unexplicated interpretation of the language of amended Rule 702 -- coupled, perhaps, with a vaguely "textualist" approach to the Federal Rules of Evidence that may draw inspiration from contexts involving statutory construction, or conceivably from Bernstein's favored theories of constitutional interpretation. To date, Bernstein has cited no decisional authority following, or even articulating, his theory. Nor has Bernstein attempted to support the theory by reference to the closest thing we have to a legislative history: viz., the Advisory Committee Notes to the 2000 amendments (which the reader will scour in vain, we suspect, for any hint of an intention to overthrow anything from Daubert or its pre-2000 progeny).

Third, despite the conspicuous absence of authority or analysis offered in support of this theory, Bernstein presents it dogmatically, as though it were a self-evident legal truth, in which all reasonable persons professing to be learned in the law would be forced to concur after a brief visit to the law library (as opposed to a tendentious position espoused by a single commentator hoping to interject a new line of argument into an ongoing debate). That might be all to the good at a venue like Point of Law -- an excellent site, which we greatly enjoy visiting whenever our blood pressure needs a little boost, but one with an openly controversialist mission. The Volokh Conspiracy is another matter. Although several VC contributors are known to have a libertarian streak, VC presents itself as an academic blog. That obviously does not mean that its contributors never take strong positions. But it does create truth-in-labeling expectations -- a legitimate assumption by the readership that contributors will explicitly distinguish neutral and uncontroversial descriptions of existing law, on the one hand, from legal argument, on the other.

That distinction is of special importance here because Bernstein presents his theory in a "note to federal district court judges, and their clerks." Some novitiate clerks, in particular, might mistake it for a fair and impartial description of prevailing legal doctrine. If so, they would be misled.

For those novitiate clerks, then, we have a little note of our own: You know better, we're sure, than to believe everything you read in a blog -- even a reputable blog. So do what your judge hired you to do. You could start by doing some legal research. See if any substantial decisional authority supports the proposition that the 2000 amendments to Rule 702 were intended to displace the substantial corpus of precedents rendered under Daubert up to then, in hundreds of judicial opinions spanning the better part of a decade. See if the Advisory Committee Notes lend any credence to that idea. See how much support you can find for this idea in the secondary legal literature.

Do some thinking too, because that's also part of your job. Think about whether revisions to the Federal Rules of Evidence obey the same logic as statutory repeals-by-implication, or a different logic more suited to their different institutional provenance and function. Think about whether it would be wise, or plausible, for the authors of the amendments to wipe the precedential slate clean, on the theory that better guidance would be afforded by the 84 Delphic words of amended Rule 702, on whose meaning any consensus has proved notoriously elusive. And think, if that were their intention, about whether they would announce the change explicitly, or whether they would instead implement it so quietly, and so coyly, that its very existence might well have gone undiscovered, but for the later researches of a legal academic.

More anon.

Update 5/7/06: Professor Bernstein has now offered a fuller and (we think) more modulated expression of his views, to which we are likely, in turn, to have a more modulated response. If our post was unduly harsh, we apologize. In extenuation, we plead strong feelings about the relevant ideas. No personal disrespect toward Prof. Bernstein was intended. In fact, you should buy his books.

Expert Perjury Watch (Alabama Edition, cont'd)

Robert Madrid, the Alabama expert witness whose confabulated vitae we covered last month, has pleaded guilty to first degree perjury and faces a year in jail, according to an AP story.

General Acceptance Meets General Denial

Need we await further study? Or are the data now in?

The Science of Arson Investigation

Sometimes, when we've been reading too much John Stuart Mill, we think: To heck with rules on expert testimony. Let it all in.

Then we read something like this.

NYT on Peer Review

Here's a piece from today's New York Times on how peer review isn't what many people think.

Justice Alito's Opinion in Holmes v. South Carolina

From Justice Alito's career on the Third Circuit, there were already substantial grounds to hope that his rationalistic temperament might do something to hold any alleged ideological biases in check. Those hopes remain very much alive after his maiden opinion today in Holmes v. South Carolina, in which the Court reversed a death sentence that rested on a deck-stacking rule of evidence adopted by the South Carolina courts.

Indeed, on reading the Court's unanimous opinion in Holmes, we feel cautiously encouraged that the Supreme Court may still occasionally serve a meaningful role in defending the rights of criminal defendants against truly grotesque depredations, even when other tribunals may be disconcertingly slow to see a problem.

The evidentiary rule at issue in Holmes surely falls in that category. The prosecutors in Holmes had good forensic evidence. The defendant, predictably enough, had arguments that the forensic evidence was flawed. But the defendant also had credible evidence that another person had admitted to committing the crime. The South Carolina Supreme Court upheld the trial court's exclusion of the latter, under an evidentiary rule barring merely "conjectural" evidence of third-party guilt in circumstances where the prosecution had strong forensic proof.

In point of fact, the evidence of the third-party admission in Holmes was anything but "conjectural," and so the Supreme Court's result probably could have been reached by relatively modest jurisprudential means. What interests us is the more encompassing logic deployed by Justice Alito to reach it. To oversimplify slightly, Justice Alito concluded that one party's evidence could not be excluded on the sole basis that the other party's evidence, if taken as true, would be conclusive. Justice Alito devastatingly recited the simple counterargument: if the defendant's exculpatory evidence in Holmes were simply taken as true, it would follow, by parity of reasoning, that the prosecution's forensic evidence should be inadmissible. To decide whether the evidence is true, of course, is the core function of the trial.

The real holding of Holmes, we realize, will probably prove narrower than that, in practice. And because the decision is grounded in the Sixth Amendment right to present a defense, it has no direct application in civil cases. Still, the fallacious reasoning embodied in the evidentiary rule overturned in Holmes remains prevalent in domains beyond the criminal justice setting. Not uncommonly, courts will exclude one side's expert evidence based on the tacit or explicit premise that the other side's is correct. The lines in this latter situation can be hard to draw. We wonder, though, if Justice Alito's reasoning might somehow be put to use in drawing them.