Archive | Expert Evidence

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 [...]

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

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

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 [...]

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

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 [...]

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 [...]