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: […]
Archive | Expert Evidence
The Misbegotten Judicial Resistance to the Daubert Revolution
I posted a link to a draft of this paper (when it had a different title). It’s now been published in the Notre Dame Law Review, and here’s the final version.
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 […]
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 […]
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 […]
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, […]
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 […]
Brown v. EMA casts doubt on the “weapons effect” justification for gun control
By David Kopel on June 27, 2011 9:38 pm in Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, Guns, Supreme Court
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]