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.
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.
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.
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.
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?
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.
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).
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.
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.
Maybe good cross-examination can expose hoaxes, but how does it expose mere junk science?
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?
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.
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.
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."
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).
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.
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'.
I think you've either underestimated the ability of fraudsters, or overestimated the intellect of some juries.
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?
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, 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.
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.
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.
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.
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.
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
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."
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.
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.
(Weird, but true.)
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.
chiropractic?