Mississippi High Court Nixes Appraisal Testimony in Condemnation Proceedings

In an eminent domain proceeding, the Supreme Court of Mississippi (a Daubert state) has reversed the trial court's ruling admitting testimony from the government's appraiser. Relying on the discounted cash flow method, the appraiser computed a value for the utility properties based on data from the Public Utilities Commission. However, the PUC rate base excluded "contributed assets," such as pipelines, easements, wells, and tank sites deeded over to the utility by developers for no consideration. Such assets accounted for about half the physical assets at issue. The expert was therefore held to have relied on insufficient facts or data. See Dedeaux Util. Co. v. City of Gulfport, No. 2005-CA-00102-SCT (Miss. Sept. 28, 2006).

5th Circuit Upholds Exclusion of Testimony on Eyewitness Identification

The Fifth Circuit has issued an unpublished opinion upholding the trial court's exclusion of a psychologist's testimony on sources of error in eyewitness identification. See United States v. McGinnis, No. 05-30317 (5th Cir. Sept. 28, 2006) (Davis, Barksdale, & DeMoss, JJ.).

The panel distinguished between cases where expert testimony affords counterintuitive insights at variance with common myths about memory and perception, versus cases where it merely elaborates on commonsense insights already within the jurors' fund of general knowledge. The panel also said:

Although expert eyewitness identification testimony may be critical when eyewitness testimony makes the entire difference between a finding of guilt or innocence, it obviously becomes considerably less critical when physical evidence of guilt substantiates such testimony.

(Internal quotations omitted.) To the extent that the quoted remark was addressed to the Rule 702 inquiry, it is of dubious consistency with Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997). In Joiner, the Supreme Court rejected the proposition that the standard of review for rulings on expert evidence should vary depending on whether the ruling under consideration is "outcome-determinative." It is possible, however, that the quoted remark was addressed more to the separate constitutional challenge that the defendant mounted.

The Executioner's Song

The San Francisco Chronicle and a host of other press sources are reporting on the conflicting expert testimony in hearings before U.S. District Judge Jeremy Fogel on California's lethal injection procedures. Yesterday, an anesthesiologist testified that the state has new procedures, which, if followed, should eliminate any significant possibility of a gratuitously painful execution.

It has occurred to us to wonder whether such physician testimony on execution methods is consistent with the AMA's ethical guidelines on physician involvement in executions. Among other things, those guidelines prohibit "rendering of technical advice regarding execution."

Health Statistics in Drug Marketing

Toxic tort litigators are used to hearing about the uses and abuses of statistics on relative risk. Comes now a piece in Slate on the misleading use of relative risk numbers in drug marketing.

On the Concept of Evidence That a Plaintiff Was Not Taking a Drug

Concerning the Vioxx case that just went to the jury in New Orleans, Ted Frank writes, in a post at Point of Law: "[Add] this case to this list of cases that have gone to trial where there's evidence the plaintiff wasn't even taking Vioxx."

We know this case only from what we read in Ted Frank's post and the AP story to which he links. So it's always possible Ted Frank knows more than we do. But here is what the press account says about the "evidence" on whether this plaintiff was taking Vioxx, pro and con.

Pro: "Smith, 56, had a heart attack 3 1/2 years ago and has said he didn't realize Vioxx may have been cause for concern at the time. He began taking Vioxx for knee pain, and he and his attorneys say he took it for 138 days, about 4 1/2 months."

Con: "But [defense counsel] said Smith's medical records immediately following the heart attack do not show Smith told doctors he was taking Vioxx."

In an attenuated, technical, legalistic sense, the absence of a physician's note reflecting any immediate post-heart attack mention by the patient of his medication may constitute "evidence" that he never took it. Merck's own counsel, however, do not appear to have regarded this "evidence" as sufficiently compelling to rest their case on it. They did suggest to the jury the possibility that Smith's memory might be faulty, but they also argued (as the AP puts it) that "Smith had other health factors, including high blood pressure and cholesterol, that put him at risk of a heart attack before he began taking the drug."

A wise strategic choice, in our view. This piece of "evidence" that the plaintiff "wasn't even taking Vioxx" would seem a slender reed on which to pin all hopes for a defense verdict. Still less, of course, would it support a JMOL motion, a sanctions request, or (say) an insinuation of fraud.

Update 9/27/06: The jury deliberated only briefly before coming back with a verdict for Merck.

Oklahoma High Court Upholds Exclusion of Human Resources Testimony

The Supreme Court of Oklahoma (a Daubert state) has upheld a lower court's exclusion of a human resources expert on reliability grounds. The claim in the case arose from an attorney's failure to file an action seeking relief for his client from alleged workplace harassment. The expert proposed to opine that the fact or threat of a lawsuit prompts a standard response by human resources departments: segregating or insulating the employee from the source of the harrassment, followed by an internal investigation. His opinion was excluded for want of a reliable methodological or experience-based foundation.

The opinion does not appear to be available yet online. See Worsham v. Nix, 2006 OK 67 (Sept. 19, 2006).

When Cultures Collide

Compare this with this.

Update 9/24/06: A discussion of "this" and "this" has broken out at SSA Connect. See the comments to this post.

Delaware Supreme Court Upholds Exclusion of Dermal Absorption Testimony in Benlate Case

This past Friday, the Delaware Supreme Court issued an opinion upholding the exclusion of plaintiffs' expert testimony on the dermal absorption of Benlate. The witness lacked the expertise, the court said, to choose among competing models of dermal absorption, and his failure to consult existing studies on the issue rendered his methodology unreliable. See Bowen v. E.I. DuPont de Nemours & Co., Inc., No. 580, 2005 (Del. Sept. 15, 2006).

Demi Mega

Sometime this weekend, the cumulative word count at this domain (including both this blog and our parent site) passed 500,000.

When we reach a million words, maybe we'll give it a rest.

Lay Testimony on Handwriting Identification Must Satisfy Both Rule 701 and Rule 901(b)(2), Second Circuit Holds

A Second Circuit panel has held that a lay witness offering handwriting-identification testimony must satisfy not only the lay opinion requirements of Fed. R. Evid. 701, but also the requirements of Fed. R. Evid. 901(b)(2), which provide that the witness must have acquired his or her familiarity with the subject's handwriting for purposes other than litigation. The latter requirement is satisfied, the court held, where the witness acquired his or her familiarity for purposes of a criminal investigation. See United States v. Samet, No. 03-1420 (2d Cir. Sept. 11, 2006) (Jacobs, Sotomayor, & Hall, JJ.).

Texas Court of Criminal Appeals Holds That Probation Officers May Opine at Sentencing on Defendant's Suitability for Supervised Release

In a decision handed down Wednesday, the Texas Court of Criminal Appeals has held that probation officers may offer opinions, at sentencing, on the defendant's suitability for supervised release. Such testimony is relevant to the jury's sentencing recommendations, the court held. It may constitute lay opinion, expert testimony, or elements of both, the court's opinion suggests. See Ellison v. State, No. PD-8673-05 (Tex. Crim. App. Sept. 13, 2006).

Brave New Forensic World

A reader draws our attention to a miraculous new device, developed courtesy of a $2 million federal grant, that the West Virginia Police plan to start using to test for drug use. Marketed as the "EyeCheck Pupillometer," the device resembles a set of binoculars. A light flashes, and the device measures the rate at which the subject's pupils constrict and then re-dilate. From this information, the machine can purportedly detect (and tell the differences between) marijuana, cocaine, and alcohol usage. According to the press release, it can also identify "abnormalities from chemical and biological effects, as well as natural disasters."

Remarkably versatile machine, we must say. Had it been used to scope out some New Orleanian pupils during Katrina, maybe FEMA would have gotten word about the breach of the levees a little sooner.

TalkLeft smells "junk science." We're skeptical too, but readers can consult the supportive research cited by the manufacturer and decide for themselves.

Update: The Science & Law Blog has more.

Advisory Committee Mulls Rule Changes on Expert Disclosure

The Federal Civil Practice Bulletin has posted a report from Professor Steven Gensler, of the University of Oklahoma College of Law, on the recent doings of the Rules Advisory Committee. Among other things, the committee is apparently considering changes: (1) to clarify when testimonial experts are subject to the report requirement of Rule 26(a)(2)(B) (good idea); (2) to permit lawyers to show work product to experts without waiving the privilege (debatable); and (3) to exempt draft reports from discovery (ditto). Discussions apparently remain in their early stages.

7th Circuit Lacks Jurisdiction to Reach Daubert Issue in Qualified Immunity Appeal, Panel Says

In the wee hours of the morning, after a night out drinking, a college student makes his way to what he mistakenly believes is his friend's house, and bangs on the patio door. The widow who actually lives in the house calls 911 and tells the dispatcher that a stranger is trying to gain entry. The police arrive, and one of them sees the student standing in the backyard. The officer shouts some kind of warning. According to the officer, the student then charges him. Fearful that the student has a weapon or may get his hands on the officer's own, the officer shoots and kills the student.

The student's estate brings a section 1983 claim, alleging excessive force. The officer moves for summary judgment on grounds of qualified immunity, claiming that his conduct was objectively reasonable because the student was charging him. In response, the estate offers expert forensic evidence that the student did not in fact charge the officer. That evidence is shaky. It places the student at a location, when shot, that appears inconsistent with the bullets' angle of entry. It posits that the officer dragged the student's body to a spot near the patio, but fails to account for the absence of any blood trail. And it is seemingly inconsistent with the recovery of the shells near the tree where the officer and other eyewitnesses say the student was standing. Nevertheless, the district court finds that the estate's expert evidence creates a genuine issue of fact and denies the officer's motion. The officer appeals from denial of the summary judgment motion, and argues on appeal that the estate's forensic evidence is unreliable and should not have been considered in light of Daubert.

The Daubert challenge cannot be entertained by way of interlocutory appeal, the Seventh Circuit has ruled, in light of Johnson v. Jones, 515 U.S. 304 (1995) (holding that appellate jurisdiction is lacking where summary judgment rulings on qualified immunity rest on issues of evidentiary sufficiency). Pendent appellate jurisdiction over the Daubert issue is unavailable, the panel's opinion says, because pendent jurisdiction would depend on the existence of some other appealable order. See McKinney v. Duplain, No. 05-3812 (7th Cir. Sept. 12, 2006) (Ripple, Manion, & Kanne, JJ.).

Engineer's Testimony on 4-Wheel Drive Risks Was Properly Excluded, 8th Circuit Holds

The Eighth Circuit has published a decision upholding the district court's exclusion of an engineer's opinion that defects in a 1998 Nissan Pathfinder's 4-wheel drive system caused a fatal rollover and crash. See Smith v. Cangieter, No. 05-3902 (8th Cir. Sept. 11, 2006) (Murphy, Melloy, & Colloton, JJ.).

Pennsylvania MedMal Statistics

The Commonwealth of Pennsylvania, where we practice law, is one of several states to have been designated by the AMA as suffering from a malpractice litigation "crisis." That designation was bestowed some time ago now, but so far as we're aware, the AMA hasn't sounded any "all clear" bulletins for the Commonwealth. So in a free moment, we decided to take a look at some of the numbers, just to see what a "crisis" looks like.

For the year 2005, a total of 1698 medical malpractice suits were filed in the state's courts. The state's estimated 2005 population was a little under 12.5 million. That works out to one malpractice suit filed per every 7320 residents. The rate of filings is down about 40%, by the way, from 2002 levels.

Some 223 malpractice cases were tried to a jury verdict in 2005. An additional 14 cases were heard in bench trials. That's a total of 237 malpractice trials on the year -- one for every 52,446 residents.

Defense verdicts were rendered in 179 of the 223 jury trials, and 12 of the 14 bench trials -- in 80.6% of the cases, that is. Plaintiffs' verdicts were rendered in 46 cases. That's one plaintiff's verdict for every 270,209 residents.

The plaintiffs' verdicts fell in the following damage ranges:

Over $10 million: 0
$5 million to $10 million: 3
$1 million to $5 million: 10
$500 thousand to $1 million: 12
$500 thousand or less: 21

On the assumption that every verdict fell at the top of the range in each category, this would represent a maximum of $102.5 million in plaintiffs' verdicts on the year -- about $8.26 per resident. On the assumption that each verdict fell at the midpoint of the relevant range, it would represent a total of $66.75 million -- about $5.37 per resident.

Obviously, these figures don't account for pre- or post-trial settlements, transaction costs, etc. The fate met by claims in litigation, however, is supposed to be what drives the so-called "crisis." So we thought these numbers would be of interest.

Rules 702 Governs Testimony re "Personal Use" Quantities of Meth, Says Utah Supreme Court

The Utah Supreme Court has held that Rule 702 governs testimony by law enforcement officers on whether some quantity of methamphetamine is consistent with personal use. Such testimony is expert opinion, not lay opinion, according to the high court, and it is subject to the discovery requirements for expert testimony in criminal trials. See State v. Rothlisberger, 2006 UT 49.

The ruling affirms an intermediate appellate opinion on which we reported in 2004.

Judicial Engineering

A South Carolina statute calls for anyone practicing engineering to be licensed by the state, and defines the practice of engineering to include the giving of "expert technical testimony." The South Carolina Supreme Court has nevertheless held that an out-of-state engineer offering expert accident reconstruction testimony was not practicing engineering within the statute's meaning. The court did acknowledge that an engineer testifying as an expert was "arguably" giving "expert technical testimony." But the legislature cannot have intended that result, said the state's high court, because it would imply that engineers not licensed by South Carolina cannot serve as expert engineering witnesses in South Carolina's courts.

The opinion does not appear to be available online yet. See Baggerly v. CSX Transp., Inc., No. 26208 (S.C. Aug. 28, 2006).

Update 9/9/06: The opinion is now posted here.

1st Circuit Upholds Exclusion of Engineer's Opinion on Ladder Defect

The First Circuit has upheld the exclusion of testimony from the plaintiff's engineering expert in a products case involving an allegedly defective ladder. See Beaudette v. Louisville Ladder, Inc., No. 05-2685 (1st Cir. Sept. 6, 2006) (Torruella, Lynch, & Howard, JJ.).

The Lawyer, The Expert, His Wife, and Their Contractor

From the West Virginia Record, a story of intrigue reaching cinematic proportions.

Florida Supreme Court Upholds DNA Testimony

Defense counsel did not render ineffective assistance by failing to raise an appellate argument that the trial court erred in admitting statistical DNA evidence without a proper Frye hearing, the Florida Supreme Court has ruled in a habeas case. See Branch v. State, No. SC05-433 (Fla. Aug. 31, 2006). Florida requires a Frye hearing only where the science is novel. The petitioner had complained that the prosecution's DNA expert was not himself a statistician and did not participate in compiling the database on which his statistical testimony was based. The high court rejected both arguments.