Archive | Expert Evidence

Nathan Schachtman on the Elite Defense Bar and Expert Evidence

Posted with permission from the SchachtmanLaw blog.

A couple of months ago, Professor David Bernstein posted to the Volokh Conspiracy, a short piece about some of the missteps and mistakes committed by “elite defense counsel” in litigating expert witness issues. Professor Bernstein makes some interesting points about questionable positions taken by “elite defense counsel” (read: “highly paid, large firm lawyers”). For instance, according to Bernstein:
1. elite defense lawyers missed the boat early on by arguing that statistical evidence (observational epidemiology) was inadmissible or insufficient to prove general or specific causation;
2. defense counsel missed the significance of the Supreme Court’s opinion in Daubert;
3. defense counsel continued to press for Frye rule in state courts, although the Frye rule had been shown inadequate and unavailing as a rule to control medical causation opinions; and
4. defense bar has grown soft on Rule 702.

Although the charges seem at points overstated, Bernstein has presented an important indictment of the defense bar. At the very least, the charges deserve a full exploration by a wider audience. Defense lawyers who are self-critical about their practice should certainly be concerned that someone as persistently pro-702 has taken aim at them.
On the first point, many of the early scientific causation battles were fought in tobacco litigation, in which defendants and their counsel were forced to deny and contest the obvious, the causal role for tobacco in carcinogenesis, at all costs. The tobacco defense bar, however, should not be confused with the defense bar, generally. Defense lawyers in Bendectin, silicone, and asbestos cases developed arguments against specious use of epidemiologic evidence, as well as sophisticated, affirmative use of epidemiologic evidence to show lack of association. Even so, we should keep in mind that it often requires a large body of epidemiologic evidence

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The Daubert Counterrevolution

I’ve posted this paper on SSRN. It’s forthcoming in the Notre Dame Law Review. It’s become common for people to post papers on SSRN only when they are “done,” so as to show off their best work. But I’m actually really interested in comments on this one, and the final version isn’t due to the law review until the (North American) Summer. So if you read it and have comments, suggestions or corrections, please send them my way.

Here is the abstract: This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony.
Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. However, it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts, a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen the rules governing expert testimony, some lower courts resisting, and the Court responding by issuing a new opinion clarifying the courts’ new “gatekeeping” responsibilities. Eventually, an amendment to Federal Rule of Evidence 702 codified the Daubert trilogy, and did so [...]

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Some Expert Evidence Law News from California and Wisconsin

Bucking the trend in jurisdictions that apply the Frye general acceptance test (such as Florida and Illinois), in November the California Supreme Court stated that trial courts have “substantial gatekeeping” responsibilities, and favorably cited federal Supreme Court precedents like Daubert v. Merrell Dow Pharmaceuticals, Joiner v. General Electric Co., and Kumho Tire v. Carmichael.  Perhaps of greatest significance, as this has been an issue of ongoing controversy in both state and federal (despite Joiner and clear language in amended Rule 702), the Court noted that the gatekeeping responsibility ” means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning.  A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered [citing Joiner].”  Interestingly, the California court reached this ruling under the California evidence code, while limiting Frye (in California, “Kelly-Frye“) to novel scientific techniques.  Sargon Enterprises, Inc. v. University of Southern Cal., 288 P.3d 1237 (Cal. 2012). So we can tentatively put California in the strict scrutiny camp.

Meanwhile,  I had somehow missed that Wisconsin, which was perhaps the last state to allow any qualified expert to testify to just about anything “relevant” with virtually no judicial oversight, amended its code of evidence by statute in 2011 to adopt the language of amended federal rule 702. As near as I can tell, the Wisconsin Supreme Court has not yet had the opportunity to recognize the new rule, and it’s possible that the court will find some excuse to declare that it won’t abide by it.  But in the meantime, lower Wisconsin courts are applying it, and Wisconsin has gone from the “let-it-all-in” state to a “gatekeeping-reliability” state. [...]

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Some Federal Courts Continue to Neglect Federal Rule of Evidence 702

The admissibility of expert testimony in federal court is governed by FRE 702.  FRE 702 was amended, in fact completely rewritten, in 2000.  As I’ve noted before, that hasn’t stopped some federal courts from ignoring the text of the rule in favor of other considerations.  Thus, not for the first time, we find a court construing the Supreme Court’s 1993 Daubert opinion as explaining the scope of Rule 702, even though Daubert was addressing an earlier and different version of the rule.  In re Chantix Prods. Liab. Litig., (N. D. Ala. August 21, 2012) (“Rule 702, Federal Rules of Evidence, as construed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,  requires expert scientific evidence to be both reliable and relevant pursuant to Rule 702, such that it appropriately assists the trier of fact.”)  The judge, in charge not of an  individual case but an MDL, never does get around to citing the text of the rule, though he manages to cite lots of other material.

Really, how hard is it to understand that the admissibility of expert testimony is governed by statute, and when ruling on a statutory issue one starts with the text of the statute?  For that matter, how hard is it to understand that Rule 702 was rewritten in 2000, and therefore precedents from before 2000 could not be construing the text of that rule? Apparently harder than I think, because  in another recent case, the MDL judge invoked the Third Circuit approach to expert testimony, citing a circuit court  case from 1999 as a binding interpretation of Rule 702, and proceeded to ignore the language of the current statute:

Federal Rule of Evidence 702 reads: [I]f scientific, technical or other specialized knowledge will assist the trier of

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District Court Judge in Hutaree Case Rejects Government’s Conspiracy Theory Expert

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

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Ignoring the Text of Federal Rule of Evidence 702

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

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Brown v. EMA casts doubt on the “weapons effect” justification for gun control

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video
6See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn.
v. Kendrick, 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Soft-ware Assn. v. Foti, 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Enter-tainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff ’d, 469 F. 3d 641 (CA7 2006).
games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo-sure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or mak-ing louder noises in the few minutes after playing a vio-lent game than after playing a nonviolent game.7
—————— 7One study, for example, found that children who had just finishedplaying violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App.
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Interesting Rule 702 Causation Case

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 [...]

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Jesse Friedman Vindicated (Sort of)

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

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New Twists in Chevron Ecuador Case and Charges of Collusion

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 [...]

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Ninth Circuit on Medical Evidence

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 [...]

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Kristof on Environmental Toxins and Autism

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 [...]

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Getting to Causation in Toxic Tort Cases

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

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