If the Shoe Fits

The Third Circuit has published an opinion upholding the trial court's decision to admit shoeprint identification testimony in a bank robbery case. See United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007) (Smith, Fisher, & Dowd, JJ.).

The news that forensic testimony has withstood Daubert scrutiny in a criminal case falls decidedly in the dog-bites-man category. But the Ford opinion also contains a pair of interesting footnotes on two topics of more general interest: (1) the vexing problem of "fit"; and (2) the level of confidence or certainty with which an expert may (or must) express (or hold) his or her views -- an issue that has figured prominently in opinions handed down during the past week or so (see our posts of 3/21/07, 3/27/07, and 3/28/07 ).

(1) "Fit"

Ever since Justice Blackmun's passing and somewhat cryptic reference to "fit" in the Daubert opinion, judges and lawyers alike have struggled to assign some determinate meaning to the concept. Is it simply a more demanding version of the relevance standard, or does it have some narrower and perhaps more technical meaning? The latter, narrower interpretation is suggested by review of the case from which Justice Blackmun borrowed the "fit" terminology -- a Third Circuit decision involving expert testimony on the accuracy of eyewitness identification, in which the court established a requirement for detailed evidentiary proffers showing that the research invoked by the expert spoke to the specific kinds of impediment to accurate identification allegedly presented by the factual circumstances of the case. See United States v. Downing, 753 F. 2d 1224, 1242 (3d Cir. 1985). The broader, "heightened relevance" interpretation, however, has also been espoused -- most notably by Judge Kozinski, in the Ninth Circuit's opinion on remand from the Supreme Court's decision in Daubert.

Yesterday's opinion in Ford comments on the issue as follows, in footnote 6:

The discussion of "fit" in [In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994)] indicated that the standard for analyzing the fit of an expert's analysis to the case at hand is "not that high," but is "higher than bare relevance." Id. at 745. That statement remains sound law inasmuch as it requires that experts who purport to apply their principles and methods to the facts of the case do so in a reliable manner. The Paoli Court's discussion of fit requires that expert opinions that apply principles or methods to the facts of the case and produce conclusions that have a debatable connection to the question in issue be predicated on a reliable methodology. Id. This is the critical import of Paoli's discussion of fit within the context of reliability. Outside of this relatively narrow setting, "fit" is a relevance concern.

Following Paoli, this Court reiterated the helpfulness discussion in Daubert, and noted the Supreme Court's explanation that "[f]it is not always obvious, and scientific validity for one purpose is not necessarily validity for other unrelated purposes." In re TMI Litigation, 193 F.3d 613, 670 (3d Cir. 1999) (quoting Daubert, 509 U.S. at 591). We emphasized again that "[t]his requirement [of 'fit'] is one of relevance and expert evidence which does not relate to an issue in the case is not helpful." Id.

In its reconsideration of Daubert on remand, the Ninth Circuit explained that

[t]he Supreme Court recognized that the "fit" requirement "goes primarily to relevance," but it obviously did not intend the second prong of Rule 702 to be merely a reiteration of the general relevancy requirement of Rule 402. In elucidating the "fit" requirement, the Supreme Court noted that scientific expert testimony carries special dangers to the fact-finding process because it "'can be both powerful and quite misleading because of the difficulty in evaluating it.'" Federal judges must therefore exclude proffered scientific evidence under Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury.

Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1321 n.17 (9th Cir. 1995) (citations omitted) (emphasis added). Although we do not adopt the apparent presumption of exclusion enunciated by the Ninth Circuit, we agree with the spirit of our sister court's exhortation. In particular, district courts should tread carefully when evaluating proffered expert testimony, paying special attention to the relevance prong of Daubert.

The question of fit here is not debatable, as it was in Paoli. See Paoli, 35 F.3d at 779-81 (evaluating the fit between expert testimony on animal studies and the question of human exposure). Thus, we examine the question of whether [the shoeprint expert's] conclusions fit the factual question in issue in the context of our relevance considerations.

The language of footnote 6 is abstract, but if we read it correctly, it adopts something like the Dowd opinion's limited conception of "fit." It appears to say that insofar as "fit" imposes any requirement going beyond ordinary relevance, it comes into play in a special class of cases involving a problematic connectedness between the expert's "principles or methods" and the facts of the case. For example, if the underlying research validated shoeprint identification techniques only for penny loafers, problems of "fit" would arise if the expert applied the techniques to Nikes. In that situation, the "fit" requirement would not necessarily bar the testimony, as we read footnote 6, but it would demand some level of attention to the question whether penny-loafer techniques can reliably be extended to the running-shoe context.

2. Confidence

The expert in Ford did not testify to a definitive match, but only to a similarity between the shoeprints and the soles of the defendant's shoes. The Third Circuit rejected the argument that the testimony should therefore be excluded because it established only the possibility of a match. "An expert opinion that expresses a possibility that a crime scene impression may have been made by shoes worn by the defendant, and otherwise comports with the Daubert analysis," said the court, "is clearly relevant to the question of whether the defendant was present at the scene of the crime." The panel elaborated on that statement in footnote 7 of the Ford opinion:

Indeed, due to the inherently closed factual universe created by the Federal Rules of Evidence and the partisan decisions of litigants in selecting experts, it is desirable to have expert witnesses express their degree of confidence accurately. See Samuel R. Gross and Jennifer L. Mnookin, Expert Information and Expert Evidence: A Preliminary Taxonomy, 34 Seton Hall L. Rev. 141, 143-44 (2003) ("[T]he degree of certainty expressed by the witness should reflect both knowledge and its limits, both what is known and what is not."); id. at 170-71 ("Normally, a witness's level of confidence is grist for the adversarial mill...."); id. at 186. By confining the jury's considerations to the facts and opinions presented to them at trial, the rules circumscribe the amount of available information. Consequently, especially where expert testimony is concerned, the Rules may create an artificially polarized world, leaving the jury to evaluate the often contradictory testimony of dueling experts. Because the parties are apt to select experts based on their ability to provide highly favorable testimony, it is preferable that, where there is cause for doubt as to a particular opinion, the experts make clear any uncertainty.

8th Circuit Upholds Exclusion of Testimony from Self-Proclaimed Engineer

As with Iraq, so too with Daubert: Nobody ever talks about all the good news.

Yesterday, the Eighth Circuit published its decision in Ahlberg v. Chrysler Corp., No. 06-1560 (8th Cir. Mar. 28, 2007) (Bye, Bowman & Gruender, JJ.). The plaintiff was killed trying to stop his son's 1999 Dodge Ram truck from rolling down the driveway, after the plaintiff's 28-month-old grandson, who had been left in the cab with the motor running, apparently shifted the truck into neutral or reverse. In the ensuing lawsuit against Chrysler, the plaintiff's theory was that the truck was defectively designed because it did not incorporate a brake-shift interlock ("BSI") device, which would have required that the brake be depressed while the driver shifted the vehicle out of park. To support that theory, the plaintiff offered expert testimony from Paul Sheridan, a former Chrysler employee who had chaired a Chrysler minivan "safety leadership team" from 1992 to 1994, when the team was disbanded and Sheridan discharged. The team never considered whether the Dodge Ram should be equipped with a BSI device. Sheridan had no engineering degree, but described himself as an engineer because he had "dealt with engineers," "managed engineers," and "been involved with technical issues" for his entire occupational life.

The Eighth Circuit upheld the trial court's exclusion of Sheridan's testimony. From the opinion:

We hold that the magistrate judge did not abuse his discretion in refusing to allow Sheridan to testify as an expert. The proffer of Sheridan's testimony was properly rejected because Sheridan employed no methodology whatsoever -- reliable or otherwise. The plaintiffs attempt to satisfy the Rule 702 and Daubert criteria by arguing that Sheridan's techniques were subject to review by his Chrysler peers; that a BSI device was more than 99% reliable; and that Chrysler, as a whole, employed manufacturing and safety standards recognized in the auto industry. These arguments lack any substance. First, the plaintiffs have not actually described Sheridan's alleged techniques, nor have we identified any from the record. Second, even if we were to assume that Sheridan was a member of a specialized field, the relevant peer-review group would not be Sheridan's coworkers. If that proposition were true, any employee could arguably be considered an expert on account of the fact that he or she worked with others. Third, the plaintiffs' argument regarding error rate fails to address any methodology actually used by Sheridan. The plaintiffs' argument regarding general acceptance in the relevant community suffers from the same flaw.

We do not know the facts of the case and express no view on the merits. We are obviously very sorry for the Ahlberg family's loss. And Paul Sheridan may be a fine and knowledgeable fellow.

But here, in at least one tiny little pocket of Baghdad, things went as planned and intended. Daubert and Rule 702 accomplished their mission. In Ahlberg, we have a case in which no court can be accused of stretching the rules to admit expert testimony in promiscuous fashion. Similar outcomes may be more common than some partisans in the expert wars care to admit.

Abuse of Discretion to Exclude Testimony on Accuracy of Eyewitness I.D., Says NY High Court

From Newsday and other sources, we learn of a ruling yesterday, by the New York Court of Appeals, under which testimony on the accuracy of eyewitness testimony will generally be admissible if certain criteria are met. From the opinion in People v. LeGrand, No. 39 (N.Y. Mar. 27, 2007):

[W]e hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

More on the Colorado Supreme Court's Ramirez Decision

Yesterday, we posted about the Colorado Supreme Court's decision in People v. Ramirez, focusing on its abandonment of "reasonable medical certainty" as a necessary condition for admissibility. We paid less attention to the opinion's treatment of Daubert's requirements under Colorado law.

James M. England, our Colorado correspondent, now writes and fills that gap:

Back in July of 2005, you carried my summary of a new Daubert opinion from the Colorado Supreme Court, which I speculated might be "far-reaching." Never mind; this week that same court unanimously departed as far as possible from that case, without even mentioning it.

In the 2005 case, People v. Wilkerson, the Court upheld the exclusion of defense expert testimony that a shooting was more likely accidental than not, based on the lack of "empirical or methodological justification in the record" for the expert's supposed "numeric calculation of the possibility that the shooting in this case was accidental." In extreme contrast, its new decision, People v. Ramirez, approves the admission of prosecution expert testimony expressly based only upon "suspicion" and unaccompanied by any indicia of reliability or sound methodology.

Ramirez was tried for sexual assault on a ten-year-old child. A day or two after the last alleged assault, hospital medical examination detected no evidence of sexual assault. Some 40 days later, the child was re-examined by a clinic's nurse practitioner, who testified at a preliminary hearing (but not at trial) that she found signs of a "healing laceration." This nurse was presented at trial as an expert witness "in the area of child sexual assault examinations," for which she was found qualified by having "done" some 91 such examinations. (Aside from two week-long conferences, the nurse testified she had no formal training or education in evaluating children for evidence of sexual assault, and that her knowledge in this area was derived from "a lot of reading" of journal articles which she did not identify, and in assisting an unidentified pediatrician who performed sexual assault examinations.)

On voir dire, the nurse said she had not reached conclusions to a "reasonable degree of medical certainty," but had reached findings which "are suspicious, but not diagnostic." The nurse further described her resort to a four-tier hierarchy of possible examination findings ranging from "normal" to "non-specific" to "suspicious" to "definitive," and said that she found the results of her examination of this child to be "suspicious," which "raises my index of suspicion," and which "may well have been caused by sexual abuse but there could have been another possibility." The trial court overruled defense reliability objections, stating that the nurse's testimony "doesn't really show any sexual penetration, but it just shows that there was something there that was suspicious and I think that is useful." In testifying, the nurse never did describe to the jury what her "suspicious" finding was, nor provide any basis for her belief that it was "suspicious."

The Colorado Court of Appeals reversed the resulting conviction, finding (in an unpublished opinion) that the opinion testimony addressed "only possibilities" and amounted to "no more than conjecture and speculation." In passing, that Court also noted the general requirement in Colorado law that a medical opinion be based on "reasonable medical probability."

On certiorari review, the Colorado Supreme Court first examined the evolution of the standard of "reasonable medical certainty," before (helpfully) concluding that it is not a valid requirement under CRE 702. Implicitly at least, the Court then also rejected the requirement of expert testimony based on "reasonable probability," without mentioning Wilkerson (let alone trying to reconcile with it). (Wilkerson was apparently never cited in the briefs filed with the Supreme Court.) The Supreme Court then went on to consider whether this expert testimony was sufficiently reliable under CRE 702 and sufficiently grounded "in the methods and procedures of science rather than subjective belief or unsupported speculation." Remarkably, the Court concluded that the testimony of a "suspicious" finding was sufficiently reliable because it was the product of a "reliable scientific principle" (the medical examination) and that the "four-point scale" was also based on sufficiently reliable scientific principles, resorting to the following unpersuasive analysis:

One would expect to find "normal" and "definitive" at the polar ends of a scale measuring signs of sexual abuse. Although it is difficult given the record before us to describe in any detail the difference between a "non-specific" finding and a "suspicious" finding, we nonetheless find the scale used by [the nurse] to be reasonably reliable. It logically follows that "suspicious," being closer on the scale to "definitive" than "normal," indicates a finding that is more indicative of sexual abuse than a "non-specific" finding, which is closer to "normal" than "definitive" on the scale. We find that the jury could have reasonably inferred from [the nurse's] testimony that "suspicious," while not being an absolute finding of sexual abuse, was nevertheless a strong indicator of sexual abuse. Thus, the scale was sufficiently reliable under CRE 702 for [the nurse] to use.

In this regard, a startling aspect of the Court's opinion is that it appears to considerably dilute the extent of any foundation required for any expert opinion. The Court of Appeals (not surprisingly) had noted that the prosecution had not established any basis for its witness' conclusion that her examination had resulted in a "suspicious" finding. The Supreme Court, however, justified the absence of such foundation under CRE 705's provision that expert opinion does not first require testimony as to "the underlying facts or data, unless the court requires otherwise." The Court's opinion not only glosses over the discretionary nature of this provision, but also disregards Daubert's reliability gatekeeping requirements. Especially where an expert couches a conclusory opinion in terms of a suspicion which is ranked on an idiosyncratic and objective "scale," a basic Daubert foundation would require display and consideration of the methodology supposedly utilized by that expert in order to determine if sufficient reliability exists, entirely without regard to Rule 705.

Unless this opinion is significantly modified on rehearing, the state of Daubert in Colorado is now substantially confused. An attorney wanting to exclude virtually any expert opinion (at least where the expert is unable to support an opinion of probability with "empirical or methodological justification") need only cite Wilkerson. Conversely, an attorney wanting to admit even the flimsiest and equivocal expert opinion need only cite Ramirez (and can further use it to justify not laying more than a minimal foundation for that opinion). And the conscientious trial judge does what?

"Reasonable Medical Certainty" Not Required for Admissibility, Colorado High Court Rules

The admissibility of a medical expert's opinion does not depend, in form or substance, on whether the opinion is held to a reasonable medical certainty or probability, the Colorado Supreme Court has ruled in a major decision on the subject. From the opinion:

We granted certiorari in this case to review the court of appeals' decision that the expert testimony of a certified pediatric nurse practitioner in a sexual assault case should not have been admitted by the trial court. The nurse described her findings as "suspicious" and testified that her conclusions were not based on a reasonable degree of medical certainty. After reviewing the cases on which the court of appeals based its decision, we find that the standards of admissibility set forth in those cases, including the requirement that expert medical testimony be offered with a reasonable degree of medical certainty or probability, predate the Colorado Rules of Evidence, which is the modern standard for determining the admissibility of expert testimony.

See People v. Ramirez, No. 06SC71 (Colo. Mar. 26, 2007).

Mississippi High Court Upholds Fire Inspector's Testimony

The Mississippi Supreme Court has upheld the admissibility of a fire inspector's testimony, in a criminal case where the defendant was convicted of pouring rubbing alcohol on his girlfriend and setting her ablaze. We are unsurprised. See Taylor v. State, 2004-KA-02384-SCT (Miss. Mar. 22, 2007).

Illinois Legislature Considers Bill on Expert Testimony

From the St. Louis Post-Dispatch, we learn of a bill pending in the Illinois legislature that would: (1) move Illinois out of its Frye regime and into the Daubert column; (2) adopt the report requirements of Fed. R. Civ. P. 26; (3) provide for mandatory pretrial hearings on admissibility of expert testimony, upon motion; (4) require that a pretrial ruling on reliability objections issue no later than the final pretrial conference, setting forth "the findings of fact and conclusions of law upon which the order to admit or exclude expert evidence is based"; (5) provide for discretionary interlocutory appeal by any party disappointed by the court's ruling; and (6) undo the de novo standard of review announced in In re Simons, 211 Ill. 2d 523, 821 N.E.2d 1184 (2004), in favor of an "abuse of discretion" standard.

The bill would apply only in civil cases. A synopsis of HB 1896 appears at the website for the Illinois General Assembly, as does the full text of the proposed legislation.

Reasonable partisans could probably differ over whether Illinois should adopt Daubert and/or the report requirements of Rule 26, and any opinions we Pennsylvanians might have on those subjects would probably change nobody's mind. We cannot resist noting, however, that the bill's other provisions -- calling for mandatory pretrial hearings, mandatory "findings of fact and conclusions of law," and discretionary interlocutory appeals -- represent a marked departure from the federal model whose emulation the bill otherwise proposes.* Not to put too fine a point on it, they seem calculated to gum up the works.

Update 3/22/07: The Madison Record now reports that the bill has died in committee.

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* In theory, interlocutory appeals from federal pretrial evidentiary rulings might conceivably be had, in some circumstances, under 28 U.S.C. § 1292(b). In practice, this has almost never occurred.

Requirement of "Reasonable Degree of Medical Certainty" Requires No Recital of "Magic Words," Says Nebraska Supreme Court

The sufficiency of expert physician testimony is sometimes challenged because the witness has not stated that his or her opinions are given to a "reasonable degree of medical certainty." Recital of that magic language by the expert can obviously forestall such objections. But some experts have been known to balk, despite a high level of confidence in their opinions, because to their understanding, "certainty" connotes indubitability and does not come in "degrees."

Whether the expert is required to intone the magic language is a question of substantive law on which the states have shown some variability. The better-reasoned authority, in our view, holds that the standard governs the substance of the testimony, not the language in which the testimony must be given. Last week, the Nebraska Supreme Court issued an opinion, in a child abuse case, reaffirming its adherence to that view. See State v. Kuehn, No. S-05-888 (Neb. Mar. 16, 2007).

11th Circuit Upholds ER Physician's Testimony on the Bizarre

On plain error review, the Eleventh Circuit has upheld, in an unpublished opinion, the admissibility of a physician's testimony that the conduct of an ER patient (later to become a bank robbery defendant) was "a little bit bizarre." The physician also testified that although the defendant claimed in ER to have been struck in the head with the butt of a gun, he showed no evidence of edema or hematoma. See United States v. Dean, No. 06-14088 (11th Cir. Mar. 15, 2007) (Tjoflat, Hull, & Marcus, JJ.).

5th Circuit Upholds Exclusion of Testimony Linking Benzene to Hodgkins

Now finally finished with our all-consuming brief-writing campaign, we return to the blogosphere just in time to note that the Fifth Circuit issued a published opinion yesterday, upholding the exclusion of testimony from a physician/epidemiologist who linked benzene exposures to Hodgkins lymphoma. After what looks to have been unusually searching scrutiny of the epidemiological studies on which the expert relied, the district court found them jointly and severally insufficient to support generic causation. The Fifth Circuit panel upheld that ruling and appears (abuse-of-discretion standard or no) to have agreed with it. This opinion will likely come to enjoy a prominent place in the the defense bar's string cites, especially in benzene cases. See Knight v. Kirby Inland Marine, Inc., No. 06-60134 (5th Cir. Mar. 19, 2007) (Davis, Stewart, & Crone, JJ.).

Expert Suicide Watch

From Maryland, a sad story.

Tell your experts to tell the truth.

The Incredible Lightness of Posting

In case readers are wondering: we're still alive and everything. We're just busier than heck.