The Volokh Conspiracy

An interesting opinion in United States v. Stone (E.D. Mich. Jan. 30, 2012); this isn’t my field, so I can’t opine on it with confidence, but the decision strikes me as likely right. Here’s an excerpt:

On November 30, 2011, the Government notified Defendants that it intended to call an “Academic Expert,” Professor Michael Barkun, to testify concerning his research into conspiracy belief and theories. In response to Defendants’ motion to preclude Dr. Barkun’s testimony, the Government admitted that a hearing pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( “Daubert hearing”) was necessary to test the admissibility of Professor Barkun’s testimony.

Before the hearing, the Government provided Defendants with a longer, more concrete Rule 16(a)(1)(G) summary of Dr. Barkun’s proposed testimony, containing notice that Dr. Barkun will testify about conspiracy subcultures, beliefs and theories; and theories such as “stigmatized knowledge,” “New World Order” and the “Illuminati.” The Government also intends to ask Dr. Barkun questions to elicit conspiracy theorists’ beliefs about the history behind Federal Emergency Management Agency (“FEMA”) detention centers and the role of the internet in spreading conspiracy belief literature and thought. Dr. Barkun also plans to testify about significant events in conspiracy belief and how conspiracy theorists view these events. The events listed in the Rule 16 summary include: Ruby Ridge, Waco, the Oklahoma City bombing and the 9/11 attacks.

The Government states:

As he testifies about each of the concepts above, Professor Barkun will also be asked whether he has reviewed some of the materials seized during the search warrants executed at the defendants’ residences and some of the recorded conversations and whether this material is consistent with the conspiracy beliefs about which he is testifying. The government found a great deal of material in numerous locations which espouse these beliefs, shedding light upon the defendants’ intent and motive, as well as linking the co-conspirators to the goal of the charged conspiracy in Count One.

… Dr. Barkun’s testimony will not assist the jury, as required by Rule 702…. At the Daubert hearing, the Government insisted it would use Dr. Barkun’s testimony as evidence of Defendants’ “intent and motive” to forcibly and violently oppose the Government under the Seditious Conspiracy count. However, the Government failed to connect the proposed expert testimony to the issues in dispute under that count.

For instance, Defendants asked the professor whether there is any literature on what people who read the conspiracy belief books, charts and other items seized from some of the Defendants’ homes, do with the information contained there, i.e, whether studies demonstrate whether these individuals lead normal lives or act out violently pursuant to their beliefs. Dr. Barkun replied that he is not aware of such studies. Similarly, when asked whether it was possible to predict what a conspiracy theorist will ultimately do with his or her beliefs, Dr. Barkin admitted it was impossible to predict.

Continue reading ‘District Court Judge in Hutaree Case Rejects Government’s Conspiracy Theory Expert’ »

I’ve noted before that many federal courts simply ignore the text of Federal Rule of Evidence 702 in favor of their own formulations, sometimes relying on cases that were decided before Rule 702 was amended in 2000, and that conflict with the amended rule. I just came across a good example. On September 7th, the Eleventh Circuit decided the case of Rosenfeld v. Oceana Cruises, in which the court overturned a district court ruling excluding the testimony of a floor safety expert.

Here’s the Eleventh Circuit, quoting a 2004 case that in turn quoted a 1998 case–a case that predates not only amended Rule 702, but also the Kumho Tire case that established standards for the admissibility of non-scientific expert testimony while overruling, you guessed it, an overly lenient Eleventh Circuit opinion:

[T]rial courts determining the admissibility of expert testimony under Federal Rule of Evidence 702 must “engage in a rigorous three-part inquiry,” considering whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

That is perhaps a reasonable test, but it doesn’t happen to be the same as the three-part test that Rule 702 quite explicitly enumerates, to wit:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Eleventh Circuit notes that “Oceania argues that Vournechis’s methods failed to accurately test for wet conditions, and that his conclusions were ‘imprecise and unspecific’ and based on ‘incorrect assumption[s]‘ about the location of Rosenfeld’s fall.” Then, applying its own test, the court concludes that “these arguments attack the weight and the persuasiveness of Vournechis’s testimony, not its admissibility.”

Whoa! Part (3) of Rule 702 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, in fact, Vournechis did, for example “fail to accurately test for wet conditions,” then he did not apply his principles and methods reliably to the facts of the case, and this is an issue of admissibility, not mere weight. But since the Eleventh Circuit doesn’t quote or otherwise pay any attention to the text of the rule it’s purporting to apply, and instead applies the test it invented instead, it not surprisingly gets the law wrong.

In fairness to the court, though, I should point out that none of this was explained by the defendant’s attorneys, who never cite the text of Rule 702 in their brief.

Today’s Supreme Court decision in Brown v. EMA casts doubt on one of the shibboleths of gun prohibition.

Since the 1960s, some social scientists have been attempting to prove that guns cause violence. They do not make this claim in the straightforward sense that guns, as tools, can be used for malign purposes–for example, that a criminal with a gun might attempt a robbery which would he would consider too risky if he did not have a gun. Rather, the claim is that the presence of makes ordinary people more aggressive, anti-social and violent. Thus, as one study put it, “the trigger pulls the finger.” The hypothesis is known as “the weapons effect.”

Continue reading ‘Brown v. EMA casts doubt on the “weapons effect” justification for gun control’ »

In Tamraz v. Lincoln Electric Co., the Sixth Circuit recently overturned a district court verdict awarding $20 million to a plaintiff who claimed that his manganese exposure in the workplace led to his Parkinson’s disease. Judge Jeffrey Sutton wrote an excellent opinion for the majority. Judge Boyce Martin dissented.

Judge Sutton and Judge Martin both seem to agree that the the connection between the exposure and Parkinson’s is, as Judge Martin put it, “the subject of valid scientific debate and publication.” Judge Martin, however, argued that the plaintiff’s expert may rely on his “general experience and knowledge, and theoretical medical writing that explored the connection between manganese exposure and Parkinson’s Disease.” Judge Sutton, by contrast, demanded that the expert actually present reliable, non-speculative “scientific knowledge.”

The difference, ultimately, is that Judge Sutton relied on the language of Federal Rule of Evidence 702, which governs the admissibility of expert testimony, and Judge Martin did not.

Here’s Judge Sutton on the plaintiff’s expert’s hypothesis:

That is a plausible hypothesis. It may even be right. But it is no more than a hypothesis, and it thus is not “knowledge,” nor is it “based upon sufficient facts or data” or the “product of reliable principles and methods . . . applied . . . reliably to the facts of the case.” Fed. R. Evid. 702.

By contrast, Judge Martin, though able to find supporting language from various precedents and law review articles, never grapples with the rather stark and clear text of Rule 702. Indeed, his dissent doesn’t cite, quote, or discuss the language of Rule 702 at all.

So it’s worth reiterating a point I’ve made before. Rule 702, promulgated in 2000, and not the more ambiguous Daubert or Kumho Tire opinions, decided in 1993 and 1999 respectively, is what dictates the scope of admissible expert testimony. Any interpretation of Daubert, Kumho Tire, or the 1997 Joiner case that conflicts with the subsequent statute, Rule 702, is legally incorrect.

Back in 2004, I wrote:

I saw the documentary “Capturing the Friedmans” last night. The film is about a “normal” family torn apart when the pedophile father and his eighteen year-old son [Jesse] are accused of (and ultimately plead guilty to) violently molesting children who took computer classes in their home. The case arose against a backdrop of hysteria over purported mass child abuse around the country; some of the alleged perpetrators in other cases have been exonerated.

The film is interesting on many levels, but holds some special interest for a professor, like myself, who teaches evidence and expert evidence. (Warning! spoilers ahead!) There is the prosecutor who recalls that the Friedmans had “stacks” of child pornography in open view in their home (suggesting the sort of recklessness that the Friedmans would have to have if they engaged in the sort of abuse alleged), when in fact there was one magazine in a drawer in an office, and another stash hidden behind the piano. One of the accusers recants as an adult in the film, suggesting he was bullied into his allegations by prosecutors. A parent describes witnessing the bullying of his son, and peer pressure from other parents to support their children’s allegations with further allegations. Another prosecutor involved in the case admits asking children in molestation cases leading questions, and rejecting answers that tend to exonerate the accused. Another accuser, who initially seems a plausible witness to horrific events, reveals that he remembered nothing about the abuse until his memories were recovered (or invented) under hypnosis. Though the Friedmans are accused of repeated anal sodomy on young children, there is no physical evidence supporting the allegations. The allegations themselves seem so extreme as to be virtually unbelievable (one allegation involved an entire computer class of eight to eleven year olds stripped naked and repeatedly and violently sodomized by two adults, with the parents noting nothing amiss when they picked up their children after class). The son pleads guilty, tearfully begging for leniency based on his claim that his father molested him. Later, he claims that he was never molested, that it was his attorney’s idea to make up the story. The attorney, by contrast, swears that the “true” story of the father-son relationship came pouring out of the son one day. Meanwhile, the father admits to molesting children elsewhere, starting with his younger brother, who, fifty-plus years later, claims to remember nothing, making you wonder about the children who now claim, as adults, that their abuse allegations were fabricated. And the father pleads guilty to a long sentence, purportedly to help his son, but without actually cutting a deal with prosecutors to help his son, for reasons that are obscure.

Were both Friedmans falsely accused? Were they guilty, but the allegations exaggerated? Was just the father guilty? Can an admitted pedophile and his son get a fair trial if accused of mass abuse? The film certainly suggests some overzealous behavior by prosecutors, but also a certain level of unwarranted (at least for the father) sympathy for the accused by the director. And the viewer never does hear from any credible alleged victims, and we are never told if that’s because there aren’t any, because the director didn’t talk to everyone, or because he left them out of the movie.

In the end, the director leaves the ultimate issues of guilt or innocence in the underlying crimes unresolved. Highly recommended for anyone interested in criminal law or evidence.

Update: Fascinating overview of the case, with information (previously unknown to me) about the results of studies on pedophilia, by researcher (and fake abuse accusations expert) Debbie Nathan, who concludes that neither Friedman was guilty.

Via Ted Frank, I learn from the New York Times that

Proclaiming itself bound by technicalities, a federal appeals court on Monday upheld a lower court’s decision not to overturn the conviction of Jesse Friedman….

But in exceptionally harsh language, the court excoriated the trial judge, prosecutors and detectives in the case, suggesting that it ought to be reopened at the state level.

UPDATE: The opinion is here, and it’s well worth reading. It contains an especially good (and concise) summary of the prosecutions motivated by hysteria over alleged mass abuse of children in the late 1980s.

And I’m pleased to note that the Nassau District Attorney’s office has resolved to engage in a serious reinvestigation of the case.

In the midst of so much other legal news in the past few days, you might have missed the latest twist in the on-going saga of the legal case regarding Chevron’s Ecuador operations. My co-blogger at Opinio Juris Roger Alford explains.  It is fascinating reading, reaching far beyond international or transnational law issues, going as it does to the ethical relationships between a party and an expert appointed by a court.  It is, as Roger says, an explosive allegation by Chevron, based upon outtakes from the documentary film Crude, of collusion between the plaintiffs’ attorneys and the soon-to-be-appointed court expert.  (If you want background on the case(s), trace back Roger’s Opinio Juris links.)

As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

Note to enterprising academic or law student.  Roger adds the following in response to a comment suggesting that the master might have held ex parte meetings with each side prior to drafting a report.  He adds that the defense cannot release the DVD itself containing the full outtakes – it has been suggested that Chevron took quotes out of context – but that a student or academic could go to the courthouse in New York and get the full content:

It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

Update:  Karen Hinton, spokesperson for the plaintiffs, has a response in the comments below. Pulling up a little bit of it; the full official press release from the plaintiffs is in her comment:

I am the spokesperson for the plaintiffs in the lawsuit against Chevron. A couple of thoughts: The CDs filed with the court do not include the entire tape from which the scene was taken. It is Chevron’s edited version of the original tape. So reviewing it does not give you the complete picture. Chevron and the filmmaker Joe Berlinger have refused to provide the plaintiffs a copy of the tapes, as had the court. As a result, we do not have a way to review the original tape.

Randy Mastro’s comment that Cabrera never offered Chevron the opportunity to meet is absolutely incorrect. Chevron chose not to cooperate with Cabrera. Chevron did not submit any information to Cabrera for inclusion into his report. Why? Because the vast majority of the samples taken prior to Cabrera’s appointment showed overwhelming evidence of extensive contamination. Even Chevron’s samples showed illegal levels of contamination, though their levels were lower than the plaintiffs’ tests. We discovered that Chevron (as well as Texaco earlier) falsified their testing levels.

This is not the first time Chevron has taken comments out of context in order to derail the lawsuit.

Update 2:  Roger Alford (an international and comparative law professor at Pepperdine) adds a further post at OJ responding to Karen Hinton’s response as well as a phone call with her in which she told him that plaintiff lawyer Steven Donziger’s remarks that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit” are not a reference to what the plaintiffs’ lawyers and the expert are discussing doing, but a reference to Chevron’s manipulation of the evidence.  Roger gives the full transcript and says:

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpt is when lead plaintiffs’ lawyer, Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here . Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

I agree with Roger on what the transcript says, in its full context.  I too find it almost impossible to believe that this could be understood as a reference to Chevron’s evidence.  I would be astonished if a US federal judge, reading the full transcript, thought there was any question about what this comment referred to.

In the recent case of Primiano v. Cook, Ninth Circuit reversed the district court’s exclusion of a physician’s expert testimony on the failure of an elbow prosthesis.

The plaintiff’s expert, Dr. Weiss, testified

that the polyethylene bushing had worn through in less than eight months, “not a usual or expected circumstance.” Though finite, the typical lifespan of elbow prostheses “far exceeds” how long this one lasted. Dr. Weiss testified in his deposition that although wear starts immediately, elbow prostheses last as long as ten or fifteen years, even twenty, and the earliest he had seen them wear out was around five to eight years, varying with the patient’s activity level.

Dr. Weiss did not, however, know why the device failed.

The district court had excluded the testimony, on the theory that the mere fact that the device failed early cannot support an inference of defect; the real problem may have been that the device was inserted improperly by the plaintiff’s physician, who was also a defendant in the case.

If I were the district judge, I would probably have let Weiss’s testimony in, though I disagree with the Ninth Circuit that the judge abused his discretion in excluding it.

But what really disturbs me about the Ninth Circuit’s opinion is that it contains a great deal of loose language suggesting that Rule 702′s requirements that expert testimony testimony be “based upon sufficient facts or data,” “is the product of reliable principles and methods,” and “the witness has applied the principles and methods reliably to the facts of the case” can be met by bringing in a medical expert who relies on his “experience,” even if his testimony amounts to speculation based on very limited information. (The court engages in a typical subterfuge: instead of explaining how its view of medical testimony fits the rather clear language of Rule 702, it cites that language but focuses on precedents, including precedents from before the rule was amended. The court also to some degree conflates the issue of qualifications, itself often a problem for medical experts, with the issue of whether the expert is providing competent testimony under Rule 702).

It’s true that physicians often operate in a world of uncertainty, where no sound underlying scientific literature exists, and essentially have to make their “best guess” as to what’s good for their patients. But physicians treating their patients are in a very different position than physician who are testifying in court. The former are being paid to help their patients get well; the latter are being paid to say things that will be helpful to a party in litigation. Given the hundreds of thousands of physicians available as potential experts, who have a wide range of views, and some of whom are willing to serve as hired guns, if courts simply let medical experts testify to various theories of causation on their own say-so, at best juries will always be confronted with conflicting speculation that is impossible to penetrate, and at worst junk science will reign supreme.

Over recent decades, other development disorders also appear to have proliferated, along with certain cancers in children and adults. Why? No one knows for certain. And despite their financial and human cost, they presumably won’t be discussed much at Thursday’s White House summit on health care.

Yet they constitute a huge national health burden, and suspicions are growing that one culprit may be chemicals in the environment. An article in a forthcoming issue of a peer-reviewed medical journal, Current Opinion in Pediatrics, just posted online, makes this explicit.

The author is not a granola-munching crank but Dr. Philip J. Landrigan, professor of pediatrics at the Mount Sinai School of Medicine in New York and chairman of the school’s department of preventive medicine. While his article is full of cautionary language, Dr. Landrigan told me that he is increasingly confident that autism and other ailments are, in part, the result of the impact of environmental chemicals on the brain as it is being formed.

Without getting way beyond my knowledge of the relevant science, I wanted to point out a couple of flaws in Kristof’s piece. First, the fact that someone has an important title doesn’t mean that he’s not a crank, or even a granola-munching crank. And even if someone isn’t a crank in general, he might still have crankish opinions on a particular issue. Surely, we have all met someone who is generally non-crankish, but believes, e.g., that Obama was not born in the U.S., or the U.S. government was behind the 9/11 attacks.

I’m not saying Landrigan is a crank—though tips from his “Rodale Organic Style Book” Raising Healthy Children in A Toxic World, like abstaining from using commercial baby wipes, suggest that his views on keeping kids safe from chemical exposure are extremely conservative—just that his title doesn’t mean his views aren’t “crankish.” A cabbage with a Ph.D. is still a cabbage.

Second, Kristof pulls a bait and switch. First, he assures us that the article in question was published in a “peer reviewed” journal (though not a leading one), giving at least some indication of mainstreamness. But then Kristof adds; “While his article is full of cautionary language, Dr. Landrigan told me that he is increasingly confident that autism and other ailments are, in part, the result of the impact of environmental chemicals on the brain as it is being formed.”

In other words, to get published in a peer-reviewed journal, Landrigan had to use “cautionary language.” Meanwhile, his “confidence” is apparently not sufficiently backed by scientific evidence that he can use “confident” instead of “cautionary” language in the peer-reviewed article. The casual reader, in short, might be fooled into thinking that Landrigan’s “confident” views have passed peer review, when in fact they seem to represent his own non-peer reviewed speculation based on the current evidence.

UPDATE: I should add that even one “confident” peer-reviewed article would be just that; many peer-reviewed articles, including ones published in the leading medical and scientific journals, have turned out to be wrong.

I’ve posted this article, published in the Brooklyn Law Review, on SSRN.  It’s  intended to be a more or less practical guide for judges and attorneys to causation issues in toxic tort cases, not a philosophic treatise (not that there’s anything wrong with that!).  Here’s the abstract:

Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.

While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article’s unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts’ adherence to traditional notions of causation against their critics.

Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.

Part II discusses plaintiffs’ attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs’ exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.

Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans’ well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant’s products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.