11th Circuit Upholds Statistical Testimony in Medicare-Fraud Prosecution

On plain error review, the Eleventh Circuit has upheld the trial court's admission of testimony from a statistician in a Medicare-fraud case.

The defendant was a dermatologist charged with performing unnecessary skin-cancer surgeries on hundreds of elderly patients. The putative need for surgery was based on biopsies conducted in the dermatologist's laboratory. Lab employees testified that the lab was staffed by inadequately trained technicians who did a poor job at preparing the biopsy slides. Sometimes, apparently for sport, the technicians altered the slides. Once, they said they substituted chewing gum for tissue. Another time, they substituted styrofoam. On both occasions, they said, the dermatologist diagnosed cancer based on the slides.

The prosecution's expert statistician selected a random sample of the dermatologist's slides and passed them along to the government's health experts, who testified to various opinions based on them. The statistician also testified at trial, without objection, about how he generated the random sample. The dermatologist was convicted.

On appeal, the dermatologist's lawyers argued on various grounds that the trial court should have excluded the statistician's expert testimony sua sponte. In response, the government argued, among other things, that the statistician's testimony wasn't expert evidence in the first place, because he did not offer an "opinion." In an unpublished per curiam opinion, the 11th Circuit affirmed the admission of the testimony but made short work of the government's "opinion" argument:

In its brief, the Government inexplicably contends [the statistician] was not an expert because he did not render any expert opinion. Although an expert is permitted to render an opinion, Fed. R. Evid. 703, 704, he is not required to do so, and failure to offer an opinion does not negate an expert's status, see Fed. R. Evid. 702. During the Government's proffer and during his testimony, [the statistician] discussed his specialized training, as well as the methodology he employs in selecting random samples. His specialized knowledge lay outside the province of the jury and rendered him an expert.

See United States v. Rosin, No. 06-15538 (11th Cir. Jan. 16, 2008) (Black, Hull, & Fay, JJ.).

Witness Tampering Watch (British Edition)

If the RSPCA's experts don't initially say what the RSPCA wants, they may be told to say something different.

The British are shocked. K9 Magazine has the story.

Expert Testimony on False Confessions Too Abstract, Says 5th Circuit

In an unpublished per curiam opinion, the Fifth Circuit has upheld a trial court's decision excluding a criminal defendant's proffered expert evidence on false confessions. The expert's testimony, the panel said, consisted only of generic propositions; the expert failed to apply them adequately to the facts of the case. From the opinion:

Pursuant to Rule 702, testimony from a qualified expert witness is permitted if the opinion will assist the trier of fact, "the testimony is based upon sufficient facts or data, [] the testimony is the product of reliable principles and methods, and [] the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702 (emphasis added). Here, the district court determined that [the expert] added nothing more than abstract scientific nostrums. [The expert's] proffered testimony did not apply recognized or accepted principles to [the defendant's] particular circumstances. Instead, it offered only the general proposition that false confessions can occur. See United States v. Alexander, 816 F.2d 164, 169 (5th Cir. 1987) (stressing that trial court's are not required to admit generic expert testimony). Accordingly, even if the district court could have properly admitted the evidence, it was not "manifestly erroneous" to exclude it.

See United States v. Dixon, No. 06-31234 (5th Cir. Jan. 16, 2008) (King, Barksdale, & Dennis, JJ.).

More on Babies in the Microwave

Defense expert: Babies are not pancake batter.

Judge Posner on the Static 99

In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy."* In a Seventh Circuit opinion issued yesterday, Judge Posner devotes substantial discussion to the Static 99, its uses, and its limitations. See United States v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (Posner, Wood, & Williams, JJ.).
______________________________________

* See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a fact important to a sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

On Babies in the Microwave

At the murder trial, do you need a microwave expert, or a baby expert?

Sadly, the question is not hypothetical.

California Supreme Court Hears Argument on Recoverability of Expert Fees Under Cal. Civ. Code 1021.5

California's high court heard argument Wednesday on whether expert fees are recoverable by the prevailing party in actions brought under the state's private attorney general statute. Law.com has the story.

9th Circuit Upholds Fingerprint Evidence

In an unpublished opinion, a Ninth Circuit panel has upheld the trial court's decision to admit fingerprint testimony without a Daubert hearing. The reliability of fingerprint evidence may properly be taken for granted, the opinion holds -- at least in the absence of evidence from the objecting party calling its reliability into question. See United States v. Calderon-Segura, No. 05-50820 (9th Cir. Jan. 9, 2008) (Kozinski, Reinhardt, & Brunetti, JJ.).

Anesthesiologist Competent to Testify on Ophthalmologic Effects, Says Idaho Supreme Court

Reversing a trial court's evidentiary ruling, the Idaho Supreme Court has held that an anesthesiologist was competent to opine that a patient's anesthesia caused post-operative blindness in his right eye. The lower court had wanted to hear from an ophthalmologist. See Foster v. Traul, No. 33537 (Idaho Dec. 24, 2007).

8th Circuit Reverses Exclusion of Accident Reconstruction Experts

The Eighth Circuit has reversed a trial court decision that excluded testimony from plaintiffs' accident reconstruction experts and awarded summary judgment to defendants. The district court relied in part on differences between conditions in the experts' testing and during the accident. Those differences were not so substantial, the appellate panel held, as to render the experts' opinions unreliable. See Sappington v. Skyjack, Inc., No. 06-3855 (8th Cir. Jan. 4, 2008) (Bye, Bowman, & Smith, JJ.).

Happy New Year

Our resolution: to blog once again.