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David Bernstein Archives

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; 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.

Trial consultant Adrienne Lefevre, writing in the ABA's Products Liability Newsletter:

Jurors, like sporting event spectators, look to pick, and then root, for a side. When jurors have no allegiance to either side, many rely on the story behind the parties to motivate them to commit to a "team." An effective story should incorporate simple arguments that appeal to jurors' common sense. In today's courtrooms, when attorneys simply argue a products liability case using the law or mounds of complicated scientific evidence, they unwisely increase the risk of defeat.
Get it? Don't count on relying on the law or the facts, unless you are able to conjure up a "good story" that appeals to common sense and the jury's need to "root for a team." Lefevre goes on to discuss ways that jury decisionmaking tends to conflict with basic principles of our legal system (e.g., juries rely on a defendant's general reputation to assess blame in a particular case, juries award larger damages against big corporations). Some of my thoughts on civil juries, and why they should be abolished or at least restricted, can be found here.

More on FRE 702:

Blog 702, generally an excellent resource for Rule 702-related matters, rather harshly condemns my theory that Rule 702 is stricter than the the Daubert trilogy. Here's what Joiner says about methodologies and conclusions:

But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
Note the permissive language, backed up by an abuse of discretion standard.

Now, compare Rule 702, as amended, stating "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise... if ... "the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case." Note the lack of permissive language; courts must exclude evidence if an expert has not applied the principles and methods reliably to the facts of the case.

Similarly, Kumho Tire seems to give district courts almost infinitely wide discretion in how to determine the admissibility of experience-based testimony, including giving an example of a perfume-sniffer who is to be qualified based solely on experience and "whether his preparation is of a kind that others in the field would recognize as acceptable." Contrast this, again, with Rule 702's absolute requirement that all expert testimony be "the product of reliable principles and methods," that courts must ensure that "the witness has applied the principles and methods reliably to the facts of the case." Arguably, merely asking a perfume sniffer if "his preparation is of a kind that others in the field would recognize as acceptable" doesn't meet this standard.

Finally, Daubert itself was very ambiguous, and there was a great debate over whether it was a "loose scrutiny" or "strict scrutiny" opinion. Joiner and made it clear that Daubert was to be interpreted rather strictly with regard to scientific evidence, Kumho Tire made it clear that a reliability test applies to all expert evidence, and Rule 702 made things even stricter. For courts to go back and assume that any stray dicta is Daubert is sound simply ignores what has happened since then. Unfortunately, what many courts have been doing, in my view, is deciding based on their own predilections whether they want to admit challenged evidence, and then they go back and find precedents that support their perspective, instead of starting with an analysis of Rule 702's requirements, and then deciding whether the evidence meets that standard.

[cross-posted at the Volokh Conspiracy]

Federal Rule of Evidence 702 was amended in 2000 to provide that expert testimony is admissible only if:(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. This rule is both a codification, and to some extent an elaboration, on the so-called "Daubert trilogy" of Supreme Court cases. It's an elaboration because, for example, the Joiner decision stated that courts MAY exclude testimony if an expert witness has taken a potentially reliable principle or methodology, but not applied it reliably to the facts at hand; Rule 702 states that the court MUST do so.

Nevertheless, many federal district courts are simply ignoring or merely paying lip service to Rule 702, and relying on pre-2000 circuit court precedent. A particularly egregious example is Riley v. Target Corp., 2006 WL 1028773, slip op. (E.D. Ark. Apr. 13, 2006). No need to bore readers with the facts of the case. Target challenged the plaintiffs' physician's "differential diagnosis" (which was actually a differential etiology) under Rule 702.

The court found that the methodology of differential diagnosis is a generally reliable one, and then added that any weaknesses in the expert's opinions go to the weight of his testimony, not its admissibility. The court then cited a 1995 (!) circuit court case for the proposition that "[f]aults in an expert�s use of differential etiology as a methodology or lack of textual authority for his opinion go to the weight, not the admissibility, of his testimony".

Note that the court not only relied on a pre-2000 precedent that directly contradicts the text of Rule 702, but relied on a pre-Joiner (1997) case! [UPDATE: Even worse, I just noticed, the court quoted a 1995 case for the proposition thhat "[o]nly if an expert's opinion is 'so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded." This was clearly wrong as of 1995, much less now, and thus not surprisingly that case itself, as the court noted, was quoting a 1988, pre-Daubert case! This judge has apparently slept through the last thirteen years of expert evidence jurisprudence.] This case is one of many examples of a court relying on stray dicta from cases that are no longer good law, and paying mere lip service, at best, to the text of Rule 702.

So note to federal district court judges, and their clerks: you shouldn't be relying on any precedent on expert evidence from before 2000, because those precedents relied on a different version of Rule 702, not to mention that many of them were decided before Kumho Tire (1999) and Joiner (which are themselves less strict than amended Rule 702). If you feel the need to do so anyway, the holding needs to be checked against the text of amended Rule 702. If the precedent conflicts with the rule, the rule quite obviously trumps the precedent.

UPDATE: There's nothing inherently wrong with citing pre-2000 precedents, so long as they are consistent with amended Rule 702. But many courts seem unable and unwilling to distinguish precedents that are consistent with Rule 702 and ones that are not. Moreover, the starting point for analysis should be the text of Rule 702, not a circuit court's interpretation of old 702 from 1998. I should add that courts should be cautious about relying even on post-2000 precedents, because many of these themselves ignore the text of 702 and instead cite pre-2000 precedents.

[Cross-posted at the Volokh Conspiracy]

Daubert and FRE 702:

[Cross-posted at the Volokh Conspiracy]

I'm working on a paper on the admissibility of expert testimony, and I've noticed a disturbing trend: courts that want to admit questionable expert testimony frequently cite permissive-sounding language from the 1993 Supreme Court Daubert opinion. Daubert was indeed a rather ambiguous opinion, and could indeed provide comfort to judges who want to shirk their "gatekeeper" role.

The problem, however, is that Daubert (and for that matter, its stricter, but still occasionally ambiguous progeny, Joiner and Kumho Tire) is not the governing rule for the admissibility of expert testimony. In 2000, amended Federal Rule of Evidence went into effect. The amended rule was intended to codify the "Daubert trilogy", but wound up containing some stricter language than the Daubert trilogy itself has: "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 education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Thus, for example, while Kumho Tire suggested that some experts can simply rely on their experience to justify their conclusions, amended Rule 702 requires that the expert be able to DEMONSTRATE that he applied his experience reliably to the facts of the case. This may be impossible in many cases, which is very problematic, but it's equally problematic for a partisan, paid, experience-based expert to be able to testify simply based on his say-so, with no real hope of effective cross-examination. (How would you cross-examine the Kumho Tire Court's example, the perfume-tester, who claims to be able to distinguish among hundreds of perfumes via one sniff? Even if his sniffing is generally reliable, how do you know whether he's correct in this particular case, or is either just wrong or shading his testimony? And how is it helpful to the jury to have two equally qualified perfume-testers, one paid for by each side, both swearing based on nothing more than their say-so that the perfume is, respectively, Chanel or Gorgio?) (I have an idea how to rescue experience-based testimony from Rule 702 oblivion, but I'll save that for another time.)

To take another example, way too many courts have relied on language from the trilogy in admitting phony "differential diagnosis" testimony on causation that in fact constitutes nothing more than "post hoc ergo propter hoc" reasoning. Allowing an expert to testify that exposure to substance X caused injury Y simply because the expert can't identify any other cause, and in the absence of any proof that substance X CAN cause injury Y, is not exactly reliable principles and methods being applied reliably to the facts of the case. It's more like, in many instances, allowing paid hired guns to speculate wildly to a conclusion mandated not by science but by the necessity of supporting a plaintiff's causation theory.

Washington Post on Vioxx Litigation

[Cross-posted at Volokh.com]

An excellent editorial in the Post, which includes this gem:

Unfortunately for Merck, scientific facts didn't play much of a role in the first Vioxx trial, which ended on Aug. 19. The Texas jury in that case awarded $253.4 million to the widow of a man who died of a heart attack triggered by arrhythmia, which is not a condition Vioxx has been proven to cause. The jury, declaring that it wished to "send a message" to Merck, decided to make an enormous symbolic award anyway. Besides, said one juror afterward, the medical evidence was confusing: "We didn't know what the heck they were talking about."

Unfortunately, no matter how many quotes like this one reads, nor no matter how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors, it won't convince many academics that perhaps jury trials are not a good way to resolve medical causation issues (the breast implant litigation being a fine example). For a well-written, but ultimately unpersuasive apologia for juries in this context, see this article by Vidmar and Diamond. For that matter, despite the protests from skeptics such as myself, many academic lawyers seem intent on actually expanding the power of juries to wreak havoc with the pharmaceutical industry.

Cross-posted from Volokh Conspiracy:

New Article Posted on SSRN: My article, Learning the Wrong Lessons from "An American Tragedy": A Critique of the Berger-Twerski Informed Choice Proposal, forthcoming in the Michigan Law Review, is now available for download from SSRN. Comments are welcome. Here is the abstract:

This paper is a critique of Margaret Berger and Aaron Twerski, "Uncertainty and Informed Choice: Unmasking Daubert," forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects.

Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury.

No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials - even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action.

Cross-posted from the Volokh Conspiracy.

There was once a safe and effective prescription remedy for morning sickness called Bendectin (Debendox in other countries). After a great deal of "phantom risk" hysteria, Bendectin was driven off the American market by thousands of lawsuits, unsupported by valid scientific evidence, claiming it caused birth defects. The litigation continued well after a consensus formed in the scientific community that Bendectin does not cause birth defects, and the evidence has since continued to accumulate that Bendectin is perfectly safe.

With Bendectin off the market, the rate of hospitalizations for morning sickness has doubled, and hundreds of thousands of pregnant women annually face "unwarranted and preventable suffering."* The withdrawal of Bendectin from the market, was, as one article puts it, "an American tragedy"**--Bendectin was never taken off the market in other countries or, as in Canada, quickly returned to the market after a short hiatus; you can easily get it in generic form from Canada or elsewhere (you can also make a home version from nonprescription ingredients, but physicians are understandably reluctant, given the litigation history of the drug, to recommend this). Meanwhile, Bendectin and other litigation fiascoes related to women's reproductive health has severely discouraged pharamceutical companies from researching new morning sickness drugs, contraceptives, etc.

No plaintiffs' attorney is more identified with the Bendectin litigation than former ATLA president Barry Nace [by the way, consider what it says about ATLA's members that they elected him president long after he helped drive Bendectin off the market]. He had many Bendectin cases, and was the one who took Daubert v. Merrell Dow Pharmaceuticals, which revolutionzed the rules for the admissibility of expert testimony, to the Supreme Court (though he hired Georgetown professor Mike Gottesmann to argue the case before the Supremes). At some point, Nace decided that one of his Bendectin cases wasn't worth pursuing, and his client sued him.

In August 1998, his attorney in this case filed a brief in support of a motion for summary judgment, in which he argued, among other things, that Nace wasn't liable to the client because "courts soundly and uniformly reject the notion that Bendectin causes birth defects." Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Update: Kaimi Wenger points out that Nace's attorney is likely arguing only that courts have ruled that Bendectin doesn't cause birth defects, not that it actually doesn't. I initially read the brief (as did the source who sent it to me, and the source who sent it to him) as denying that Bendectin causes birth defects, not simply that many courts have rejected causation evidence. The wording of the entire paragraph is awkward and somewhat ambiguous. The argument also isn't very persuasive without the concession that Bendectin doesn't in fact cause birth defects; without the concession, the argument is that because many other courts that the New Jersey trial court, in a summary judgment context, where all facts are construed against the party who wants the case dismissed, should reject the notion that evidence that Nace originally planned to present would have been admitted. This despite the fact that the issue had never come up before in New Jersey, and New Jersey's admissibility test was, at best, consistent with but not identical to the test in other jurisdictions. But, on rereading the brief, I think it is just a bad argument, not (intentionally) an explicit argument that Bendectin doesn't cause birth defects. Nevertheless, one would have thought that Nace would be reluctant to have his attorney argue that his experts' testimony that Bendectin causes birth defects wouldn't be admissible in New Jersey which, in practice, is among the most plaintiff-friendly jurisdictions in the country.

* Paolo Mazzotta, et al., Attitudes, Management and Consequences of Nausea and Vomiting of Pregnancy in the United States and Canada, 70 INT�L J. GYNECOLOGY & OBSTETRICS 359 (2000).

** Melanie Ornstein, et al., Bendectin/Diclectin for Morning Sickness: A Canadian Follow-up of an American Tragedy, 9 REPRODUCTIVE TOXICOLOGY 1 (1995)

Another State rejects Daubert

On Friday, the North Carolina Supreme Court rejected the federal Daubert standard for the admissibility of expert testimony. The court decided to retain North Carolina's unique admissibility standard. Like Daubert, this standard purports to require that expert testimony be reliable. However, lest they get confused, the court advised lower courts in North Carolina that "application of the North Carolina approach is decidedly less mechanistic and rigorous than the 'exacting standards of reliability' demanded by the federal approach. The court condemned Daubert's "gatekeeping" approach as putting "trial courts in the onerous and impractical position of passing judgment on the substantive merits of the scientific or technical theories undergirding an expert's opinion." The court also expressed specific concern that Daubert leads to too many civil actions being dismissed on summary judgment (though it's not clear why the court thinks that cases based on unreliable expert evidence should survive summary judgment).

I've been arguing for years that civil justice reform advocates have been too complacent about the state of the rules for the admissibility of expert testimony. As a forthcoming article of mine explains,



Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute

Katherine Lazarski
Press Officer,
Manhattan Institute


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