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Florida Supreme Court Welcomes Junk Science:

In Marsh v. Valyou, the Florida Supreme Court (1)reiterated that Florida follows the Frye general acceptance test; (2) held that Frye doesn't apply to a medical expert's "opinion" testimony regarding causation; (3) held that even if Frye did apply, it should be applied only to the issue of whether the technique of "differential diagnosis" is generally accepted in the medical community, regardless of whether the technique was used in a generally accepted way. [It was not, as the dissent explains in some detail. In fact, it wasn't really a differential diagnosis at all, but a differential etiology, and this cannot properly be used to "rule in" a cause that has not been otherwise established by other evidence.]; and (4) implicitly rejected the notion that Florida Rule of Evidence 702, modeled on the federal rule that led to the Daubert Supreme Court opinion, provides a "backup" reliability test for causation testimony.

In short, the Florida Supreme Court essentially held that any qualified medical expert (with qualifications always defined loosely) can testify to almost any causation theory, without any real judicial scrutiny. Florida law, then, has regressed to the pre-Daubert let-it-all-in stage, at least with regard to medical causation testimony. Florida thus joins Illinois and Kansas as states that have applied Frye so liberally as to make it virtually meaningless in cases involving causation disputes. The general argument is that only real scientific methodologies, not "pure opinion", are subject to Frye. As I've written, "this peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!"

The dissent, written by Justice Cantero and joined by two other justices, is a model opinion, and eviscerates the majority's reasoning. The dissent could have found additional support in this article of mine on Frye, published at 41 Jurimetrics J. 385-407 (2001).

Interestingly, the national tort reform groups were absent as amici from this case, once again confirming that are dropping the ball when it comes to ensuring that the victories they won with the Daubert trilogy and amended Rule 702 aren't snatched away by permissive state court rulings.

I hope that Marsh will lead the Florida legislature to joins Georgia and Michigan in adopted a state version of amended Rule 702 by statute. Otherwise, Florida will become a breeding ground for quackspertise.

UPDATE: The best overall discussion of Frye out there is in my co-authored treatise, The New Wigmore: Expert Evidence. To give credit where it's due, David Kaye wrote this chapter.

HappyConservative:

Marsh's experts did not base their opinions on new or novel scientific tests or procedures, and Respondents did not challenge the patient history, examination methods, clinical practices, or other methodologies upon which they did rely. In fact, Respondents could not challenge the underlying methodology, as we have previously held that differential diagnosis is a generally accepted method for determining specific causation.


Enough said. This decision was rightly decided.

It seems to me that in general you have excessive expectations for the scientific literature. Rarely will the literature detail precisely every valid minor variation of a valid technique that is acceptable. Adoption of your view would result in many claims with merit being blocked.
11.25.2007 5:35pm
Houston Lawyer:
So if I'm a licensed doctor, but a quack, I can give quack testimony in Florida with no scientific basis whatsoever. Is the defense allowed to introduce palm readers to testify on its behalf?
11.25.2007 5:46pm
BruceM (mail) (www):
Houston Lawyer: I guess so, but could you not adequately cross-examine a palm reader to show the jury that he/she is an unreliable hoax? I would love it if my opponent used a palm reader or psychic. I would not object pre-trial, I'd destroy the "expert" witness right in front of the jury, making a mockery of their entire case, and I'd win.

While I'm not arguing junk science should be admissible, I fail to see what people are so afraid of. Good cross examination will expose junk science every single time. Heck, James Randi would become the most valuable expert witness in the nation.
11.25.2007 8:01pm
Bill Poser (mail) (www):
It seems to me that the Court confuses the "cause of a medical condition" resulting from differential diagnosis with the underlying cause of the illness. Differential diagnosis is indeed an established and accepted technique for determining what medical condition the patient suffers from, that is, the cause of the symptoms. It is not a technique for establishing the underlying cause of the medical condition, which is what is at issue in this case. That is, differential diagnosis is the basis for the undisputed diagnosis that Ms. Marsh suffers from fibromyalgia. Whether her fibromyalgia was caused by trauma is an entirely different matter, not settled by differential diagnosis. It is this claim of causation that is not based on generally accepted techniques and is therefore subject to the Frye test.
11.25.2007 8:20pm
r78:
The decision of the majority seems to be consistent with Florida law.

I can understand how someone who advocated tort reform and revising the rules of evidence to favor corporations and defendant may not care for the outcome of this decision, but such outcome oriented criticism is hardly persuasive.
11.25.2007 9:32pm
gattsuru (mail) (www):
While I'm not arguing junk science should be admissible, I fail to see what people are so afraid of. Good cross examination will expose junk science every single time.


Despite the efforts of individuals such as Mr. Randi, though, we still find 41% and 55% of the American public polled by Gallup believe in ESP and psychic healing, respectively.

These are not exactly a pair of eccentric materials -- most people know what they are, and most reasonably educated individuals could cite some arguments for and against them regardless of their personal opinion. They are also well-known in the scientific community for being absolutely bunk, or at least close enough to non-repeatable and non-verifiable to be bunk.

Do you really want to be in a situation where God or Fate rolls the dice such that half your jury believes in psychic healing in a case that involves such, and where Alex Orbito's opinion is held to be as true as that of an actual medical doctor?
11.25.2007 10:52pm
Milhouse (www):
r78, does Florida law allow theft? Because that is what Marsh has done - stolen money that does not belong to her. Does it allow perjury? Because that is what this "expert" has done, testifying to something that he could not possibly know, because the method he used to determine it isn't capable of doing so.

There is a difference between proving something and convincing a jury that you have proven it; Marsh's lawyers did the latter but not the former, which means that the money still belongs to the defendant and so long as Marsh does not return it she is a thief.

No court or legislature has the right to authorise awards based on such testimony, any more than it has the right to legalise shoplifting.
11.25.2007 10:53pm
Anderson (mail):
I hope that Marsh will lead the Florida legislature to joins Georgia, Mississippi, and Michigan in adopted a state version of amended Rule 702 by statute.

I'm sorry, but does that mean to say that Miss. adopted an "amended Rule 702 by statute"? Because I don't think that's right; the Miss. supreme court adopted the modified Rule 702 by its own motion. See the McLemore decision, 863 So. 2d 31 (Miss. 2003).
11.25.2007 11:09pm
Milhouse (www):
BruceM, here's a f'rinstance.

In the bad old days, a phrenologist could come into the court and testify that he could definitely identify the defendant by the bumps on his head. You could call experts to tell the jury that phrenology is bunk, and the prosecution could call "experts" from the Society of Phrenologists to swear up and down that it's been proven in dozens of tests, and how is the jury to know which set of experts to believe?

Nowadays that wouldn't fly. The jury would never get to hear the phrenologist. But suppose he didn't call himself a phrenologist? Suppose he claimed that the bumps on the head were "unique like fingerprints", and by analysing these "fingerprints" he could identify the defendant. And suppose the court said, "well, fingerprint analysis is well accepted, everyone knows it's reliable, so we'll allow the jury to hear this"? When all he's really doing is using the name of a reliable technique for an unreliable one. That's about what the court here seems to have done.
11.25.2007 11:09pm
DavidBernstein (mail):
Anderson, I think you're right, and I'm wrong, but I don't have time to check definitively right now.
11.25.2007 11:27pm
Sean M:
David,

Did you see you /were/ cited by the majority opinion? "The Daubert Trilogy in the States" is cited in the slip op. at 6.

On the merits, the court probably could have gotten by (though I think Bill Poser is correct on what it confuses) by just saying the testimony here satisfied Frye. But to say that the causation is "pure opinion testimony" is bizarre, unnecessary, and ultimately damaging as David suggests.
11.25.2007 11:47pm
David M. Nieporent (www):
Good cross examination will expose junk science every single time.
Really? How will it do that? Does any medical or other scientific research institution on the planet use "cross examination" to assess whether there's a causal relationship between a symptom and a cause?

Maybe good cross-examination can expose hoaxes, but how does it expose mere junk science?
11.25.2007 11:55pm
Kevin Murphy:
Good cross examination will expose junk science every single time.


So, if a "legitimate" voodoo witch-doctor testifies that the defendant used voodoo to harm the plaintiff, you would disprove this by cross-examination how?
11.26.2007 2:34am
HappyConservative:
Does anyone else find references to voodoo witch doctors less than useful?

If you think that a jury would be convinced by a voodoo witch doctor, clearly, you do not support the jury as an institution. But, I think the jury is an important institution that checks government power and actually makes reasonably decent decisions.
11.26.2007 3:39am
BruceM (mail) (www):
Gattsuru: even if ever member of my jury routinely went to see psychics themselves, I would have no problem convincing that jury that THIS psychic is a fraud. They very well may go see their own psychic on their way home from court, but if a lawyer can't convince 12 people that a psychic (who is under oath and has to answer your questions) is not for real, then he/she has no business litigating cases. They should go do transactional work or be a law professor :)

Milhouse, phrenology was not used to identify people, it was used to show characteristics, i.e. you're a short-tempered introvert because your ears point in and the top of your skull is flat. I suppose you are referring to an example of the state calling someone to testify that my client's skull shape indicates he is likely to be violent or otherwise exhibit criminal behavior. Whatever traits they said my client had that indicate criminality, I'd bring in 20 people with that same physical trait and without a history of that same behavior. If that's the best evidence the state has against my client, I'd win every time.

Kevin Murphy: Simple, I'd have the "legitimate" voodoo witch doctor harm me, the lawyer, with voodoo right there in open court. Who wouldn't want to see a lawyer harmed by a witch doctor? If he can't then it's clearly bunk, and the jury will see the entire show.

David: Hoaxes and junk science are just two different classifications of lies (or at the very least non-truths, as the junk science proponent might very well believe his theories with all his heart). I can cross examine people about the picture of bigfoot they claim they took, or I can cross examine people about their supposed psychic ability (So you say you can predict the future, what are the next winning lottery numbers?). In fact, the latter would probably prove more fruitful.

I do support having things cleared up before trial, so to that extent I support Daubert hearings and having the trial court act as a "gatekeeper" as is done on the federal and most state levels. But only due to efficiency and less things for the jurors to have to focus on, think about, and consider during deliberations. Anything that can be cleared up as a matter of law pre-trial should be. But just because you CAN keep out the other side's purported "expert" witness doesn't mean you necessarily should. If the other side intends to call a complete fraud who will fall apart under cross examination, why not let the guy testify? Assuming, of course, that keeping him out wouldn't ipso facto mean summary judgment in your favor, in which case you have a duty to avoid trial and seek summary judgment.
11.26.2007 3:54am
Public_Defender (mail):
The downfall of Daubert rules may come when courts figure out that "experts" in child sex abuse cases are little more than phrenologists. ("I talked to her, she told me the defendant did X. I diagnosed her as the victim of sexual abuse.")

Another downfall could come when courts are asked to hold cops to the same standard that they hold real experts. Oh, so you took a two-hour class at the acadamy. Yeah, that makes you an "expert."
11.26.2007 4:40am
BruceM (mail) (www):
Public_Defender: I think a cop being allowed to testify about anything he wants merely by saying "based on my training and experience..." is a problem that transcends Daubert and all the rules and principles of expert testimony. I think it's a sui generis class of testimony, neither expert nor lay. It's just "Cop Testimony"... it's a huge problem, particularly for defense attorneys. It's based on a faulty predicate, that the "training and expereince" of police officers permits them to testify about anything related to police work. Based on my training and experience, drivers who follow every rule of the road to the letter are likely intoxicated, because they don't want to be pulled over (in other words, merely following the law gives reasonable suspicion for a search and seizure). Based on my training and experience, people with sunglasses and sandals are drug couriers. Based on my training and experience, vehicles with out-of-state license plates are likely to have drugs inside. Based on my training and experience, teenagers don't say they were raped unless they really were. And most insidious -- Based on my training and experience, large quantities of cash mean the money was more likely than not involved in narcotics trafficking (and should be forfeited).

These are not called as expert witnesses because they're not subject to Daubert. It's a rare class of presumed expertise, or presumed knowledge, based on the predicate of training and experience in law enforcement. You can't challenge a cop's training and experience, it's always ipse dixit.

Based on MY training and experience as a lawyer, cops consistently lie about their training and experience (and I'd be happy to testify as to same).
11.26.2007 5:35am
Bob Tolchin (mail):
This is nonsense.

New York has always had and continues to have the Frye test, and changeover to Daubert has been rejected repeatedly by the Court of Appeals.

As a plaintiff's lawyer, I actually advocate for the Daubert test because I see it as potentially more permissive. Under Frye, at least as applied in NY, one must show that an expert's opinion is "generally accepted in the relevant scientific community." That means that a scientist applying good techniques, theory, and methodology who is at the cutting edge of his discipline could not testify until his approach had become "generally accepted." Under Daubert, the court will allow any testimony that is premised on tolerably sound techniques, theory, and methodology. Though general acceptance is among the factors that the court can consider to assess this soundness, it is just one among many factors and is not dispositive. Thus, under Daubert, Einstein could have testified that E=MC2 the day after he published his paper, even though it was completely unknown in the scientific community, no other scientist used it, and Volokh would have called it "junk science," whereas under Frye it would have been kept out of court for years.
11.26.2007 9:03am
Anderson (mail):
Under Daubert, the court will allow any testimony that is premised on tolerably sound techniques, theory, and methodology.

Good point; one might add that it's considerably easier for a state-court trial judge to ascertain whether Theory X is "generally accepted in the relevant community" than it is for him or her to rule on whether it's "premised on sound theory and methodology." Just sayin'.
11.26.2007 9:09am
gattsuru (mail) (www):
even if ever member of my jury routinely went to see psychics themselves, I would have no problem convincing that jury that THIS psychic is a fraud.


I think you've either underestimated the ability of fraudsters, or overestimated the intellect of some juries.
11.26.2007 10:49am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/26/2007 A short recon of what's out there that might draw your attention, updated throughout the day...
11.26.2007 11:11am
Henri Le Compte (mail):
Bob Tolchin:
Don't you see the potential damage that may be done to the truth by this more permissive standard? The requirement for "generally accepted in the relevant scientific community" helps keep out the merely speculative. Those things that are merely "possible," or "an exciting idea, but unproven." It is meant to be "a check," a way to keep enthusiastic quacks out of the court room.

As a scientist, I can tell you that I read contradictory studies all the time. It is only over time, and after many years of sifting, that the complexities of many issues reveal themselves. This is why we still have scientists! A few years ago, the FDA issues black box warnings on all antidepressants, stating (on the basis of a poor analysis of existing studies) that they may cause suicides in kids. The result? A precipitous drop in antidepressant prescriptions, and a shocking rise in suicides among kids. Real children who are real dead, over a misreading of the data. This kind of thing (wrong ideas) happens all the time.

You are being misleading (and very lawyerly) when you suggest that speculative inquiry is somehow akin to Einstein. For every Einstein there are literally thousands of dead end, wasted time, just plain wrong theories. If scientist are wrong every day, and some spend entire careers being wrong, how is a jury supposed to spot that?
11.26.2007 11:16am
CJColucci:
Slightly off-topic, since you're one of the contributors to the New Wigmore, I've long been interested in when and how treatise authors become brand names. For example, I'm sure that early editions of Collier on Bankruptcy were valued because of whatever insights Mr. Collier, whoever he was, had on bankruptcy. The current contributors to Collier are people whose insights rightly command top dollar, but what is left of Collier in Collier? Since you're involved in the latest iteration of Wigmore, (the previous revision seemed to be trying to keep something of Wigmore in), in what sense is Wigmore still present in Wigmore? And if the answer is "not much," how long before the New(er) Wigmore becomes "X,Y, and Z on Evidence," much as Greenleaf, after many revisions, some by Wigmore, became "Wigmore"?
11.26.2007 11:36am
hattio1:
Milhouse says;

No court or legislature has the right to authorise awards based on such testimony, any more than it has the right to legalise shoplifting.


Of course, no court or legislature did authorise the award, a jury did. I guess you can argue that by not granting summary judgment and/or granting a remittitur the court authorized the award. But both are SUPPOSED to be used sparingly.


BruceM says;

Based on MY training and experience as a lawyer, cops consistently lie about their training and experience (and I'd be happy to testify as to same).


Based on my training and experience as a lawyer, you could have ended the previous sentence after the word lie.

Interesting story regarding that. Cop was trying to testify that based on the way my client put an automatic into park he was really trying to put it into reverse and flee (down a dead end road that my client knew was a dead end because he lived on it). He kept saying that based on his 20 years experience my client was trying to get the car into reverse. I asked him if in his 20 years experience anybody had ever taken an automatic from drive to park without going through reverse. He didn't have a very good answer.
11.26.2007 11:55am
BruceM (mail) (www):
hattio1: Yes, most cops lie on the stand because they know they will get away with it, and are urged by the prosecutor to tell the jury what the prosecutor needs to make out his case. I was merely narrowing my statement to the "based on my training and experience" predicate. Cops don't lie about everything, but when they start a statement off with those words, you can bet its going to be a falsehood. And there's no way to counter it, you can't prove what a cop's training and/or experience did not encompass. So the state gets to manufacture its own testimony.

Henri: you say "If scientist are wrong every day, and some spend entire careers being wrong, how is a jury supposed to spot that?" My answer is: through cross-examination.

Someone please give me an example of testimony (expert or otherwise) that is either demonstrably erroneous or independently unverifiable, but for some reason cannot be countered by effective cross-examination? I propose that no such testimony exists. I've certainly never encountered it.
11.26.2007 12:10pm
Houston Lawyer:
BruceM

So all those billions paid out to plaintiffs who claimed that breast implants caused their ailments were just the result of poor cross examination? I think not.
11.26.2007 12:45pm
Christopher Cooke (mail):
Ironically, I think Frye is supposed to impose a stricter standard than Daubert on the admissibility of expert opinion testimony, but because it does, many courts react by limiting the occasions when it applies.
11.26.2007 1:48pm
BruceM (mail) (www):
Houston Lawyer: Well, sometimes you just can't controvert pre-existing beliefs, no matter how good you are. There were constant media stories about the dangers of breast implants, a highly-publicized recall of all silicone breast implants, and constant stories about individuals who had all sorts of problems. So, yeah, there was not any credible scientific evidence that the implants caused autoimmune problems. However, jurors were highly predisposed to believe these implants were dangerous no matter what they were told.

That being said, there were a lot of these cases; some lost, some won. I would argue what is probably an obvious fact, the good defense lawyers won, whereas the ones who did not adequately confront the junk science lost... and they lost big in most cases.

Also, not all junk science is as clearly identified as a voodoo witch doctor. But, to the extent there was no evidence of causation, I fail to see how a good lawyer could not bring that out in cross examination. The opposing expert has to conclude that there is no evidence to support the claim of causation. Tie them down and force them to concede that.
11.26.2007 1:52pm
govols:
BruceM,

BruceM,

The real danger for relying on cross-examination is in criminal cases, where defendants usually lack resources and their attorneys lack the time/experience/diligence (on average)to garner the necessary knowledge to make a successful Daubert/Frye challenge. Of course, even if they did, Daubert has been a joke in the criminal realm, and would probably fail them regardless. Professor Bernstein has implied in a previous article that criminal expertise will ultimately be sifted and winnowed more akin to how courts use Daubert in civil cases; I'm more skeptical about such a development.
11.26.2007 2:08pm
NickM (mail) (www):
Public_defender - a 2 hour class at the academy beats some of what civil "experts" attempt to claim as their basis for expertise. I deposed one who claimed that his knowledge of the Japanese keiretsu system stemmed from reading unspecified articles on LEXIS (which he hadn't brought with him, in violation of the subpoena) and reading 2 books on keiretsu - while standing at a B. Dalton bookstore.
He also didn't remember what subject his own bachelor's degree was in.
The plaintiff's law firm, BTW, was nationally known for plaintiff's tort work.

Nick
11.26.2007 2:50pm
BruceM (mail) (www):
govols: I agree with your sentiments.
11.26.2007 3:37pm
Calm Reflection (mail):

David: "In short, the Florida Supreme Court essentially held that any qualified medical expert (with qualifications always defined loosely) can testify to almost any causation theory, without any real judicial scrutiny"


Marsh v. Valyou "… pure opinion is not subject to Frye, but … the underlying scientific principles are….These cases dictate that where an expert's opinion is based on an underlying scientific principle, that underlying principle is subject to Frye."
11.26.2007 4:16pm
RigorAllTheTime (mail):

In the bad old days, a phrenologist could come into the court and testify that he could definitely identify the defendant by the bumps on his head. You could call experts to tell the jury that phrenology is bunk, and the prosecution could call "experts" from the Society of Phrenologists to swear up and down that it's been proven in dozens of tests, and how is the jury to know which set of experts to believe?

Nowadays that wouldn't fly. The jury would never get to hear the phrenologist.


They sure would get to hear him, if he called himself a Drug Recognition Expert This suggests courts are widely incompetent to assess the most trivial scientific questions.
11.26.2007 4:37pm
happylee:
To compound matters, I hear Ron Paul has refused to issue an official statement denouncing this opinion...raising the ghastly possibility that our next President will not support "sound science." (Sound science is defined as methods and conclusions that are supported by those in charge. Dissenters are, by definition, kooks and their kooky theories have no place in the courtroom.)
11.26.2007 5:16pm
Adam J:
The thing I don't get about Frye and Daubert is I fail to understand how a judge is any better than a jury at determining whether scientific evidence is credible. A judge has no specialized knowledge in this regard to give him any advantage to determining which is science and which is bunk. Maybe some sense of elitism leads some to believe the judge is better because they probably are in general smarter then the average jury, but they certainly have no experience in analyzing scientific methods that I'm aware of. If you feel this way, why should we stop at scientific evidence? Why not let the judge analyze all evidence, and throw out the jury all together. I don't feel this way however, so I fail to see why we make a distinction between scientific facts and ordinary facts, since I know of no reason why the judge would be better with scientific facts then a jury.
11.26.2007 5:59pm
BruceM (mail) (www):
RigorAllTheTime: Since the Constutition doesn't apply to drugs, I don't see why rules of evidence would. In other words, the Drug Exception to the Constitution implies a Drug Exception to the rules of evidence.

Our entire system of prohibition is based on racism and the perjured congressional testimony of Harry Anslinger. Not science. So, every "expert" testifying for the government about drugs is employing junk science, at best. They've come out and admitted they lie, because if they don't children will use drugs (and parents should lie to their kids about drugs, even though they used drugs themselves and know the truth). No judge should allow such testimony, and should take pride in being reversed on excluding it.
11.26.2007 8:56pm
Evidence Maniac (mail):
FYI, the Florida legislature can't overrule the Supreme Court on this. The Florida Constitution gives the Supreme Court, not the Legislature, the power to establish rules of procedure.

(Weird, but true.)
11.26.2007 9:46pm
courtwatcher:
David,
I'm not sure what the use of the phrase "junk science" and the "word" "quackspertise" add to this discourse, unless your point is a political or ideological one rather than a scholarly or reasoned one.
11.27.2007 12:50am
J.McFaul (mail) (www):
"Someone please give me an example of testimony (expert or otherwise) that is either demonstrably erroneous or independently unverifiable, but for some reason cannot be countered by effective cross-examination? I propose that no such testimony exists. I've certainly never encountered it."

chiropractic?
11.27.2007 5:03pm