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"Quackspertise" in State Courts:

I have an op-ed on this subject in today's Wall Street Journal. The theme is that state courts are lagging well behind federal courts in excluded dubious expert testimony in civil casess. I'll post a link if and when it's available online (those with access to Factiva through their university can find it there).

I use the neologism "quackspertise" as a substitute for "junk science." Becaue the latter only applies only to science, it's a narrower concept than quackspertise, which appliess to any quackery in the guise of expertise.

vet66 (mail):
"Quackspertise!"

Isn't that what John Edwards relied on in some of his more high profile wins?!

I have encountered these quacks while serving as a juror on several occasions. Usually it has to do with toxicology tests, chain of custody, cutoff levels, and other bits of obfuscation designed by a shill to confuse jurors about reasonable doubt!
9.30.2006 11:27am
steve lubet (mail):
it was a well written article, but i was surprised to your receptivity to expanded federal diversity jurisdiction. i always thought that libertarians and conservatives were in favor of smaller federal government and more local control. i can see the argument when it comes to national class actions, but shouldn't states be better equipped -- in individual cases -- to balance the rights of plaintiffs and defendants within their borders?
9.30.2006 11:54am
Justin (mail):
Steve,

"Federalism," much like "terrorism," isn't a principle but a method. If it achieves liberal results (such as allowing gay marriage or certain lawsuits, or hurting Israeli interests, or as a guise for a neoconservative foreign policy), conservatives are against it. However, when it achieves conservative results (like banning abortion, preventing civil rights laws, or fighting Castro), conservatives are for it.
9.30.2006 12:00pm
Peter Wimsey:
it was a well written article, but i was surprised to your receptivity to expanded federal diversity jurisdiction. i always thought that libertarians and conservatives were in favor of smaller federal government and more local control. i can see the argument when it comes to national class actions, but shouldn't states be better equipped -- in individual cases -- to balance the rights of plaintiffs and defendants within their borders?



It's not surprising to me that a law professor would call for increased federal jurisidiction. While I don't know David's research background - for all I know, he focuses extensively on state courts - it is an unfortunate fact that a large majority of law professors focus almost entirely on the federal court system. This is understandable of course - almost all of my law professors were former federal clerks, for example - but I think it's not very helpful to the legal profession, since 90% of lawyers don't practice in the federal system at all.

I don't think it's really fair to blame law professors for this, since IMO there are much better incentives for them to engage in federal research. A sophisticated, reality based law journal article dealing with sentencing reforms in, say, MO, could have a real effect on sentencing reforms in that state, influencing courts and state legislatures to at least pay careful attention to the arguments in the article. However, colleagues in other states and law journals in other states are going to be much less interested in a state-specific article than in another tired article about the federal sentencing guidelines, which will join a vast pile of sentencing guidelines articles that have had little effect on anyone.
9.30.2006 12:30pm
DavidBernstein (mail):
I'm running out for the day, Steve, but the short answer is that I don't know of anyone whose concept of federalism includes the idea that Congress can't stop states from interfering with/discriminating against interstate commerce, which is what state courts often implicitly do when faced with claims against out of state corporations. States should be free to adopt whatever silly or counterproductive rules they want when a case involves only in-state parties.
9.30.2006 1:00pm
Steve Lubet (mail):
there are two questions, david. the easy one is federal power, and of course (almost) everyone agrees that congress can expand diversity jurisdiction within reasonable limits.

the second question is policy. don't libertarian/conservatives usually argue that the federal government should be smaller (whether or not it has the power to expand), and that more authority should be entrusted to state and local governments?

let's agree that the daubert rule, as codified by FRE 702, is superior. but lots of states have their own rules of evidence. should diversity jurisdiction be expanded to the max whenever the federal rules allow better results?
9.30.2006 1:24pm
gattsuru (mail) (www):
Link here for WSJ subscribers. I'm not one, so afraid I can't help much.

Lubet :

If the point is to avoid allowing the government's own courts to act improperly or on false evidence?

I think you'd be hard pressed to find a libertarian who would oppose limiting the government, even if they do so through the federal government. We're not about states rights, although that's usually a good stepping stone. We're about individual rights, and it's a bit hard to have a fair trial when another individual can provide quacks as 'experts'.
9.30.2006 1:59pm
Steve Lubet (mail):
in the standard conservative account (which i do not necessarily attribute to anyone posting here), state court juries and evidentiary rules must be given maximum deference when it comes to executing inadequately represented poor people. on the other hand, those same state courts (with their wacky rules and runaway juries) appear to be completely unreliable when it comes to entering money judgments against well represented mega-corporations.

please discuss.
9.30.2006 2:10pm
Peter B. Nordberg (mail) (www):
I am not a WSJ subscriber and cannot comment on the article. It does seem to me that simply as a matter of political prudence, people should want to avoid re-dividing the labor between state and federal courts based merely on a belief that some fora produce better outcomes than others on a given subject (expert witnesses, gay marriage, etc.). People's views of "better outcomes" differ, and whatever side you're on, the other side will someday be in power. A few vague constitutional limitations aside, the only thing stopping the opposition from re-dividing labor, once they're in power, will be whatever broader principles we have followed about which courts handle what.

It also seems to me that the position that state courts produce bad evidentiary rulings, in which "quacks" flourish, whereas federal courts produce sound ones, in which all and only the valid expertise comes in, would be a wildly overbroad one, operating at too high a level of abstraction to be realistically susceptible to objective empirical validation. Investigations might start, though, with an operational definition of what quackery is, so that we can at least tell a "good" outcome from a "bad" one, permitting us to count them up.
9.30.2006 3:13pm
Dr John Crippen (mail) (www):
Hi

Ah...yes. I have been using the expression Quacktitioner for some time to describe people not qualified as doctors who try to act AS doctors. See here

I wish I could say it was totally original. It is not. The US toy company Mattell Corp. introduced a toy called the "Nurse Quacktitioner, incurring the wrath (to much amusement amongst the US and UK medical professions) of the perfectly ludicrous Centre for Nursing Advocacy. If you are ever feeling down, and need a giggle, have a lot at the rants of these sad, sad people:

BW

DR John Crippen (UK)
NHS BLOG DOCTOR
9.30.2006 3:31pm
Wonderduck (mail) (www):
As a proud Mallard-American, I object to the use of this term.
9.30.2006 5:45pm
Charlie (Colorado) (mail):
Oooh, look out, David.

Duck!
10.1.2006 1:03am
Ted Frank (www):
Professor Lubet, your characterization of federalism as reflexively preferring state-court resolution over federal-court resolution is a vast oversimplification. Federalists such as Michael Greve have criticized the upside-down federalism whereby local courts are dictating national policy on matters of interstate commerce. See, in particular, Federalist No. 80, where Hamilton, in discussing Article III, quite clearly (and presciently) argues that incomplete diversity jurisdiction is necessary to prevent local courts from discriminating against out-of-state parties, a call that was unfortunately disregarded in Strawbridge v. Curtiss. I hope this also addresses some of Mr. Nordberg's concerns, though he is correct in implicitly noting that federal judges have not consistently applied Daubert.

I do agree with Professor Lubet that I would like to see a greater convergence in the deference that federal courts pay to state courts in civil and criminal cases, but note that one can, quite consistent with this view, argue for restricting federal habeas and increasing federal oversight of state civil-court abuses. I've discussed this elsewhere in more detail, but note here that federal courts already give a ludicrous amount of deference to state civil court law that noone would tolerate in the criminal context: e.g., Erie and Rooker. A multi-billion dollar judgment that can cause massive disruption to the national economy gets far less federal review than a one-year robbery sentence issued to a recidivist.

(P.S. to Professor Lubet: I haven't read it yet, but I had occasion to plug your book Friday, so go easy on me.)
10.1.2006 1:13am
Peter B. Nordberg (mail) (www):
I'm sure Ted Frank is correct that the federal courts (a biggish tent) do not always apply Daubert in consistent fashion. But I'm unsure that I made that implicit observation. I'm also unsure that consistently applying Daubert is to be equated with consistently reaching sound results.

To me, in fact, it seems very doubtful that even a Uniform National Daubertization Act would do much to promote consistency or forestall commerce-unfriendly outcomes. The Daubert standard radically underdetermines evidentiary outcomes, and Kumho Tire's abuse-of-discretion standard for appellate review implies some limits on how much order the Courts of Appeals can bestow. Meanwhile, it is something of an open empirical question whether Daubert is, in fact, more stringent than Frye. Practicing defense counsel don't necessarily see it that way. See Edward K. Cheng &Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005).
10.1.2006 2:23am
vic:
as a non lawyer who has recently seen some court action
i think the problem is thet the elected state judiciaries have abrogated control of their courtrooms to the plaintiff lawyers. and why not- the judges cannot bite the hand that feeds them.
the judges routinely exchange campaign contributions for lax evidentiary and other rules that essentially allow plaintiff lawyers to get away with murder ( metaphorically) and extortion (literlly) and routinely.
I recall thios david letterman stalker ruling from a little while ago
the sytem is absurd and corrupt
10.1.2006 2:38am
mizhu123 (mail) (www):
10.1.2006 2:58am
Ted Frank (www):
I don't see Cheng and Yoon's paper as remotely persuasive on that question; their metrics aren't measuring the right matters.
10.1.2006 12:05pm
neurodoc:
Vic, you seem to believe that all the bias is in favor of plaintiffs. There are states where the hands that have fed those elected judges the most are those of corporate interests and the tilt is decidedly toward defendants. For proof of this look at the records of those Bush has nominated to the federal judiciary from the Texas Supreme Court.
10.1.2006 3:26pm
Peter B. Nordberg (mail) (www):
Ted,

You may not see Cheng and Yoon as measuring the right things, but criticisms of the study do not substitute for actual evidence supporting contrary empirical conclusions. Except for anecdotes and intuitions, empirical evidence that Frye is more stringent than Daubert, as measured by outcomes, is markedly lacking. Even attempts to study that question quantitatively are lacking (which I find rather peculiar). What studies there are, are mostly dated, and mostly show mixed results or no effect.
10.1.2006 4:24pm
neurodoc:
Peter B. Nordberg: You suggest that the purpose of Daubert is to "forestall commerce-unfriendly outcomes." While no doubt most of the time Daubert has worked that way, keeping out a plaintiff's expert, might it not keep out a defense expert, and thus forestall an outcome unfairly "friendly" toward commerce? (Does anyone know of instances when Daubert has worked to the advantage of laintiffs?)

vet66: Do you know of instances when John Edwards relied on "quackspertise" to win medical malpractice or personal injury cases on behalf of his clients? If you do, I would be very interested in the details. If not, I must wonder if you are not laboring under a common misperception, that being that meritorious medical malpractice claims are rare, if not non-existant, and only plaintiffs bring forward dubious experts.
10.1.2006 5:19pm
Peter B. Nordberg (mail) (www):
Neurodoc: The policy justifications for Daubert, as articulated by the courts, have not generally included the promotion of liability-free interstate commerce, and I don't personally believe that should be a consideration -- except perhaps indirectly and implicitly, to the extent (if any) that Daubert prevents what would otherwise be a certain prevalence of inaccurate or unpredictable outcomes. But Professor Bernstein (and others) had made some interstate commerce noises in these comments, and I wanted to raise the question whether Daubert actually does operate to mitigate any such incidental anti-commercial effect (prescinding from the question whether we should try any harder to insulate commerce from liability than we already are). My personal view -- based on the empirical research, a nodding acquaintance with the decisional law, and my own two decades in the litigation trenches -- is that any such effect is dubious, but that Daubert does work in commercial defendants' favor by escalating plaintiffs' transaction costs and thereby discouraging certain kinds of litigation for merits-independent reasons.

You're correct that Daubert is sometimes applied to exclude defense witnesses in civil litigation -- but because plaintiffs have the burden of proof, even a rule that visits exclusionary consequences on both sides in equal measure will have a systematic pro-defendant effect. That's partly why we should want the rules to be based on truth-seeking rationales, rather than (say) dollar-seeking ones.

Criminal cases are one area where it might have been hoped that Daubert would operate to benefit the underclass rather than organized capital, by subjecting forensic evidence to more searching scrutiny. But that, infamously, has not occurred.
10.1.2006 8:05pm
Ted Frank (www):
Neurodoc, John Edwards's record in medical malpractice cases has been subject to much criticism. See, for example, Overlawyered: Aug. 17, 2004; Feb. 26, 2004; Feb. 2, 2004; Jan. 31, 2004; and Jan. 20, 2004, all of which compile links to other arguments pro and con.
10.1.2006 8:31pm
Ted Frank (www):
Peter writes: "Practicing defense counsel don't necessarily see it that way."

Name three.

I note that practicing plaintiffs' counsel sure see it that way; New Jersey's lack of Daubert standards was used as a selling point for bringing Vioxx litigation there instead of in the MDL.
10.1.2006 8:37pm
Peter B. Nordberg (mail) (www):
Ted,

We could start with the various defense counsel in the Cheng-Yoon study who showed no greater propensity to remove from Frye jurisdictions than from Daubert ones. I understand you are skeptical of that study, on grounds you haven't stated in this space, but I think it's beyond serious dispute that the Cheng-Yoon study captured more than three of them.

We could perhaps add the 35% of all attorney respondents to the 1999 Federal Judicial Center survey who said that Daubert hadn't changed their approach much. Some 45% of the 302 respondents represented mostly defendants; 31%, mostly plaintiffs; 22%, an even mix.

Mind you, I didn't say that defense counsel as a group don't like the Daubert standards. I imagine they do, if only for the reasons explained in one of my earlier comments.

How on earth did we get on John Edwards again? In any event, as long as we have: two-plus years having gone by, are his detractors going to have some actual evidence, this time, that he did anything inappropriate? That sure seemed to be missing on the last go-round.
10.1.2006 9:56pm
Ted Frank (www):
There are literally dozens of variables in the decision whether to remove (including, not least, the availability of removal, and even that isn't consistent from year to year), and Cheng and Yoon controlled for none of them. Their denominator data is therefore worthless, and garbage in, garbage out. They're measuring noise.

Wrt the 1999 FJC survey, attorneys who tended to use professional expert testimony, rather than junk science, would have no reason to change their approach post-Daubert. (Certainly I experienced litigation partners who wanted experts to be as aggressive as possible and the puppets of the litigators, and I experienced litigation partners who wanted their experts to be like Caesar's wife. The latter aren't going to be much affected by Daubert because they were already operating within Daubert's constraints; the former are.)

If they raised the penalty for drunk driving to make it a capital crime, it wouldn't affect the way I approach drunk driving, because I don't drive drunk now. It doesn't mean that the change in the law doesn't have an effect.

The survey answer you single out is at least as consistent with my hypothesis as yours.
10.2.2006 12:43am
Ted Frank (www):
Wrt Edwards, define "inappropriate." Sometimes the scandal is what is legal, rather than what is illegal. I certainly find his "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you" closing argument "inappropriate," as well as his voir dire techniques, but North Carolina trial judges apparently let attorneys get away with that sort of unfairly prejudicial nonsense.
10.2.2006 12:48am
Peter B. Nordberg (mail) (www):
Ted,

If you and I carry on for much longer, we'll have to start writing checks to Eugene Volokh to cover the hosting bill. I'll try to be brief.

Anent Daubert, I feel the need to review the bidding. I claimed that it is an open empirical question whether Daubert is more stringent than Frye, and whether it produces more predictable results. I noted the relative paucity of empirical study on these points. I did make a nod to some of what few data there are, and what they suggest. Mindful as I am, in the age of Daubert, that one or two studies can seldom resolve an issue dispositively, because any given study usually has some limitations or is open to some arguable criticisms, I made a pretty explicit gesture to the uncertainties. Defense counsel didn't "necessarily" see Daubert as more stringent, I said, citing to one piece of literature that seemed to supply grounds for that uncertainty. My "position," in sum, has been one of skepticism. I have not taken any stronger one, on the point at issue -- though I do think myself on solid ground in supposing that my uncertainty is shared by some number of practicing defense counsel N, where N > 2.

Anent John Edwards, the old issue, which I had thought was being resuscitated, was whether John Edwards relied on expert testimony that he shouldn't have. That was certainly the primary issue in the posts you linked to. A new issue, apparently, involves his conduct of voir dire and closing argument. That's one I haven't studied up on. If there's transcript, then John Edwards's approach to voir dire and closing argument can be presented to the voters for their evaluation. This time, at least, there'd be actual evidence of the alleged misbehavior.

The Prius is a fine car.
10.2.2006 3:02am
Luke 1152 (mail):

New Jersey's lack of Daubert standards was used as a selling point for bringing Vioxx litigation there instead of in the MDL.

Hmm, are you speaking here in your capacity as an attorney who used to work for Merck or in your capacity as "scholar" at the American Enterprise Institute which is funded by big pharma, tobacco, and other corporate paymasters?
10.2.2006 2:47pm
Anderson (mail) (www):
Sorry if I missed this above, but obviously where the federal courts lead, the state courts often follow. The better jurisprudence we get out of the federal courts on experts and Daubert, the more the states will catch up.

Mississippi, for ex, just recently adopted Daubert, and is feeling its way towards its application. Federal guidance is invaluable.
10.2.2006 3:42pm
Caliban Darklock (www):
I read Daubert all the time. It is so funny! It reminds me of my old office, and I agree - an expert should not remind you of people you see in Daubert! Especially not the boss with the pointy hair.
10.2.2006 8:18pm
Ted Frank (www):
Luke, my comment reported a verifiable fact. You're responding with an irrelevant (and untrue) ad hominem that violates the Volokh comment policy. Discuss substance, or stop polluting comment boards with hit-and-run anonymous attacks.
10.3.2006 9:56am