Our Continuing Adventures, at Point of Law and Elsewhere

Posting has been a little light here, partly because of the call of other duties, and partly because our blogging time has focused on our ongoing exchange with Ted Frank on medical malpractice at Point of Law. The latter will be winding up this coming week; the former, around August 1. Stay tuned.

British Government Appeals Ruling in Meadow Case

The government has appealed a ruling by a British court that overturned the professional discipline of Sir Roy Meadow for giving false testimony, according to BBC and Reuters. The ruling held that experts may not be disciplined for giving testimony that was simply mistaken, and that any discipline of expert witnesses by professional societies must be triggered by a referral from the trial judge. Attorney General Lord Peter Goldsmith says the ruling threatens to turn British judges into "unpaid gatekeepers" for other professions.

Truth, Falsehood to Grapple at Point of Law

We're flattered to have been invited to participate, along with Ted Frank, in a "Featured Discussion" this week, starting tomorrow, at Point of Law. The topic (or the topical point of departure, at least) will be Ted's proposal to adopt some analogue to the "business judgment rule" in medical malpractice cases. We'd love to tell you who'll be standing up for truth, and who'll taking up the cudgels on behalf of falsehood, but we're still negotiating with Point of Law on that question.

"Human Events" on Daubert

We are not the sort who use the word clueless lightly.

1st Circuit Issues Decision on Modus Operandi Evidence as Lay Opinion Versus Expert Testimony

A police officer testifies that based on his training and experience, a notation was part of a drug dealer's customer order list. Expert testimony, or lay opinion? The latter, apparently -- at least for the moment, in the First Circuit. See United States v. Maher, No. 05-1598 (1st Cir. July 6, 2006) (Torruella, Hug, & Lynch, JJ.).

Former Marijuana Grower Turns Expert Witness to Battle Royal Canadian Mounted Police

From CBC News: A former cultivator of marijuana recently took the stand in a Canadian drug trial, to offer his expert opinion that the defendant ran a low-end operation and was too inept to sustain a viable cannabis enterprise.

It didn't work, but the expert plans to keep trying.

Further Adventures in Forensic Entomology

The Toronto Star has the grisly story.

The Continuing Saga of Amended Rule 702

Readers of long standing will remember Professor Bernstein's theory that the 2000 amendments to Rule 702 superseded the Daubert trilogy and/or codified a strict interpretation thereof, "resolving certain ambiguities in the trilogy in favor of a conservative admissibility standard." (To trace the tortuous history of this debate, readers can review Bernstein's original post of 11/3/05, our response of 11/27/05, Bernstein's later salvo of 5/6/06, our rejoinder of even date therewith, Bernstein's reply of 5/7/06, and our further posts of 5/9/06 and 5/14/06.)

Professor Bernstein has now offered up the decision in Liquid Dynamics Corp. v. Vaughan Co., No. 05-1105 (Fed. Cir. June 1, 2006), as an "excellent example" of the ways in which "many federal courts are ignoring the language of amended Federal Rule of Evidence 702, and relying on selective quotes from earlier precedents to evade their gatekeeping responsibilities."

We remain unconvinced. Let's address, one by one, the six aspects of the Vaughan opinion that Bernstein considers "disturbing." The italicized block quotes are from Bernstein's most recent post.

"(1) The court never cites the text of Rule 702, or, for that matter, shows an awareness that Rule 702, as amended in 2000, is the governing rule for the admissibility of expert testimony."

Here is what the Vaughan opinion actually says: "In Daubert, the Supreme Court set forth four factors to consider when evaluating the validity and relevance of scientific evidence pursuant to Rule 702 of the Federal Rules of Evidence." That isn't a quotation of the rule's text, but it's certainly a citation of the rule, and it seemingly evinces an awareness that Rule 702 "is the governing rule." To be sure, the opinion doesn't specifically mention the 2000 amendments to Rule 702. But the court's failure to recite a full chronicle of Rule 702's history, from its 1975 adoption through the present, does not imply the court's ignorance of the rule's current provisions -- let alone any attempt on the court's part to "evade" the rule's requirements (a charge by Bernstein that strikes us as somewhat intemperate).

"(2) The court cites the 1993 Daubert opinion as the apparent last word on the scope of Rule 702, even though Daubert was only the first in a trilogy of relevant cases ending in 1999, and Rule 702 was amended in 2000 to codify what amounts to a strict interpretation of all three opinions, resolving certain ambiguities in the trilogy in favor of a conservative admissibility standard."

Here we are unsure what point Bernstein is trying to make. It could be a point about the Vaughan court's habits of citation, or it could be one about substance. If Bernstein's complaint is that the Vaughan opinion fails to cite certain of Bernstein's preferred authorities, then no doubt his point is valid, so far as it goes. The alleged sin of citational omission, however, does not equate, on this occasion, to a real substantive deficiency. Bernstein's main citational quarrel is presumably with the Vaughan court's failure to mention General Electric Co. v. Joiner, 522 U.S. 136 (1997), in which the Supreme Court clarified that expert testimony is subject to exclusion if it rests on an unreliable application of otherwise reliable methods. But the Vaughan court did address the substantive issue to which Joiner would be relevant, in more detail than Bernstein acknowledges. We'll return to that issue below, in connection with Bernstein's third point.

As for Bernstein's contention that the Vaughan opinion portrays Daubert as the "last word" on expert testimony, we're not sure just how the opinion is thought to do that. In addition to citing Daubert, the opinion also cites Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) -- the last decision in that "trilogy of relevant cases ending in 1999." It also cites three apposite post-Daubert (and post-Joiner) decisions from the circuits -- not just the one Eleventh Circuit case that Bernstein mentions. We'll say more about those circuit cases in our response to Bernstein's fifth and sixth points.

"(3) A very brief excerpt: 'The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Such a flawed analysis, it argued, made the testimony and evidence unreliable.' The court concludes that this objection goes to weight, not admissibility, and refuses to review the reliability of the evidence. Yet Rule 702, as amended, specifically states that expert testimony is only admissible if 'the witness has applied the principles and methods reliably to the facts of the case.' If an expert used incorrect or missing data and the wrong equations in an analysis, it's hard to see how he met the standard imposed by the above language, and the court certainly doesn't explain it."

The excerpt quoted by Bernstein (which we have underscored here) is the Vaughan court's description of a similar but non-identical fact pattern from another case entirely -- not its description of the fact pattern in Vaughan. In Vaughan, there was no contention that the expert used "the wrong equations." Indeed, the expert used the same computer models that the opposition used in its own analysis. The primary objection to the expert's modeling in Vaughan was his use of parameters that didn't match up with all the true values for the patent-infringing device. The expert responded, essentially, that such parameter variations would not be material to the relevant opinion (i.e., the presence of a "robust" helical flow pattern in a slurry tank). In other words, the outcome was not especially sensitive, according to the expert, to modest variations in the relevant variables. As the Vaughan decision notes, the expert supported his assessment by pointing to tests he had run using different parameters.

The actual substantive analysis in the Vaughan opinion, in short, did not depend on any simplistic nostrum that errors in an expert's data always go to weight and never go to admissibility. Nor did the Vaughan panel "refuse to review the reliability of the evidence" (though what it was really charged to review, of course, was an underlying exercise of evidentiary discretion by the district court). The Vaughan panel simply upheld, as within the trial court's sound discretion, a ruling that certain particular inaccuracies in one expert's data did not so vitiate his analysis as to render it scientifically unreliable. Bernstein offers no substantive basis for reaching any different conclusion, nor any rebuttal to the Federal Circuit's supportive reasoning.

It might be proposed, of course, that any inaccuracy in an expert's data should be enough to render the expert's opinion inadmissible as a matter of law, whether or not that inaccuracy is substantial and material to the expert's opinion. But that would be a new amendment to Rule 702.

"(4) The court cites Daubert for the proposition that 'the focus of a court's inquiry into the relevance and reliability of scientific evidence "must be solely on principles and methodology, not on the conclusions that they generate,"' but fails to recognize that, even if one wrongly ignores the text of Rule 702, the 1997 Joiner case specified (specifically in response to the misuse of the earlier language in Daubert) that 'conclusions and methodology are not entirely distinct from one another,' and that courts could reject testimony even when based on what, in general, may be a reliable methodology, if it was misused in the case at hand."

Here we may be close to the heart of Bernstein's grievance.

If "recognizing" that reliable methods can be misapplied entails no more than scrutinizing the method's application in the case at hand, then as already noted, the charge that the Vaughan panel failed of its duty is simply untrue. The Vaughan opinion explicitly considered the appellant's "unreliable application" arguments, and it gave substantive reasons why the district court was within its discretion in rejecting them (as distinct from conclusorily rubber-stamping the district court's decision with unelaborated "goes to the weight" rhetoric).

On the other hand, if "recognizing" Joiner is a matter of affording it equal rhetorical time whenever Daubert is quoted, then we're no longer discussing actual evidentiary decisions at all. We're rather discussing a partisan insistence that due discursive homage be paid to one side's favorite battle-cries from the corpus of evidentiary jurisprudence. We can leave for another day the question whether all such battle-cries are really created equal. For present purposes, it suffices to note that so far as the Vaughan opinion discloses, it was not a case where anybody was arguing that the expert's opinion should be excluded on the ground that his conclusions were false (or lacked general acceptance). The most of which the Vaughan court can fairly be accused here, in our view, is the gratuitous recital of some irrelevant Daubert boilerplate.

"(5) The court cites a 1986(!) 8th Circuit opinion for the proposition that if [sic] inadequacies in expert testimony, especially if they can be vigorously contested at trial, are a matter of weight, not admissibility. In terms of the evolution of federal expert evidence law, 1986 might as well be 1800."

It would be one thing, no doubt, to defend a Daubert ruling through exclusive reliance on plainly obsolescent precedents from bygone days of evidentiary lore. It is another, perhaps, to cite one pre-Daubert case in passing, at the end of a string-cite that also includes several post-Daubert decisions.

Are all pre-Daubert decisions now presumptively bad law? We invite the reader to take a peek at the 1986 decision whose citation Bernstein criticizes: Wilmington v. J.I. Case Co., 793 F.2d 909 (8th Cir. 1986). It involved the admission of a statistical study in a discrimination case. We can see nothing in the decision, offhand, that Daubert and its progeny, or the amendments to Rule 702, would even touch. In particular, Wilmington did not remotely hold, or suggest in dictum, that all "inadequacies" in expert testimony (or all such inadequacies capable of being addressed through vigorous contest at trial) present questions of weight rather than admissibility. Nor was it cited for any such proposition in Vaughan.

"(6) In fairness, the court cites a favorable 2003 11th Circuit opinion, which unfortunately is equally wrongheaded, showing how judicial error can compound judicial error. The 11th Circuit opinion bizarrely actually does quote the language of amended Rule 702, and then proceeds to completely ignore the requirement that 'the witness has applied the principles and methods reliably to the facts of the case.' (And the 11th Circuit opinion is also the apparent source of the 1986 citation.)"

In "fairness," the relevant passage from Vaughan cites three post-Daubert decisions, not just one. One of the decisions that goes unmentioned in Bernstein's discussion is In re TMI Litig., 193 F.3d 613 (3d Cir. 1999). Vaughan quotes with approval the TMI court's prescription (which the TMI court borrowed in turn from a First Circuit case, also cited in Vaughan) that expert testimony should not be kept from the jury, "so long as it rests upon good grounds." (Our emphasis; internal quotations and citations omitted.) The insistence on such "good grounds" is parlously close, perhaps, to what Bernstein says he himself is demanding. Certainly the TMI passage that Vaughan quoted (and that Bernstein omits) seems uncongenial to any argument that the courts have simply overlooked the requirements of amended Rule 702.

That leaves the Eleventh Circuit decision that Bernstein calls "equally wrongheaded": Quiet Technology DC-8, Inc. v. Hurel Dubois UK, Ltd., 326 F.3d 1333 (11th Cir. 2003). Bernstein goes overboard, we think, in claiming that the Quiet Tech court "completely ignored" the "reliably applied" question. As we read the Quiet Tech opinion, it gave substantial consideration to the appellant's "reliably applied" arguments, ultimately to reject the contention that they were so compelling as to warrant the testimony's exclusion as a matter of law. But as the opinion is available online, an ultimate assessment can be left as an exercise for the reader.

That concludes our discussion of Bernstein's poster-child opinion. We conclude that if the Vaughan decision is indeed an "excellent example" of the federal courts' supposedly rampant disregard for Joiner and/or amended Rule 702, then the Republic is in pretty good shape. What might cause it problems, would be a rule that no expert testimony is ever admissible, if any part of the witness's testimony is arguably mistaken. But Rule 702 doesn't say that, yet.

Update 7/9/06: A lively and interesting discussion has now broken out in the comments to Professor Bernstein's post, where we've chimed in ourselves, and where some of the participants, Bernstein included, seem to be struggling in good faith to explore the complexities and/or locate some common ground. It's not easy, of course, as views on this topic are often strongly held.

First Circuit Upholds Footwear Impression Testimony

The First Circuit has published an opinion upholding testimony from a footwear impression expert, over objections similar to those commonly raised against testimony on fingerprint and handwriting identification. See United States v. Mahone, No. 05-1492 (1st Cir. July 5, 2006) (Lipez, Howard, & Hug, JJ.).

The panel's opinion contains this interesting statement, on which the opinion does not elaborate: "[The footwear impression expert] offered a potential error rate of zero for the method, stating that any error is attributable to examiners." We're guessing that this statement, offered en passant, is not intended to announce a more general rule of law under which human error doesn't factor into a methodology's "error rate." The intended meaning, we take it, is that according to the expert, there exist objective standards governing the technique's application, such that if those standards are followed, there will be (again according to the expert) no false positives.

4th Circuit Upholds Damages Testimony in Breach of Fiduciary Duty Claim

In 1999, a financially unsophisticated widow hired an investment advisor to manage her retirement portfolio, then valued at $729,856. She arranged to withdraw $6000/month to cover her living expenses.

The advisor soon moved her assets into investments with substantially higher risk. At first, this paid off. In early 2000, the value of the widow's portfolio peaked at about $1.1 million. But the advisor did not then move to transfer those gains to lower-risk investments, and by the time the widow terminated the advisor in May 2002, her account stood at $342,105.

Not a totally unprecedented sequence of events in that time period.

The widow sued the advisor on theories including negligence, fraud, and breach of fiduciary duty. At trial, the widow's expert on damages stated his view that it would not fully compensate the widow to measure damages by reference to her opening account value. He also opined that the advisor's most serious breach occurred after the widow's gains, when the advisor failed to consolidate her advances. Noting that the proper measure of loss in such situations is generally disputed, the expert offered estimates ranging from $244,495 to $505,395, under different scenarios in which the widow's investments would have been handled more prudently. The jury found for the widow and awarded compensatory damages of $423,000.

In an unpublished opinion, the Fourth Circuit has now upheld the expert's testimony over the advisor's objections that it was unreliable. The panel's opinion observes that the jury could have found the advisor to have done a good job at first, then squandering the widow's gains. The advisor's argument, presumably, was that the widow's relationship with investment risk was one of fair-weather friendship -- but that's a jury issue, no doubt, and not a Daubert question. See Parmenter v. Rollins Fin. Counseling, Inc., No. 05-1189 (4th Cir. June 29, 2006) (Wilkins, Motz, & King, JJ.).