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A Good Example of How Daubert Has Changed the Legal Landscape:

This opinion, by superior court judge Judith Fabricant in Massachusetts, illustrates the remarkable transformation that has occurred in American courtrooms because of the Daubert decision. Daubert requires judges to serve as "gatekeepers" who exclude unreliable expert testimony, and the judge did just that. The case involved allegations that exposure to mold caused a child's autism, and the plaintiff lined up a very well-qualified expert, an assistant professor at Harvard Medical School. Unintimidated, the judge methodically took apart the testimony, concluded that it was based on unreliable speculation, and excluded the evidence. I think it's fair to say that pre-Daubert (Massachusetts is a Daubert state) the odds that this testimony would have been excluded are rather low.

Oris (mail) (www):
You say Massachusetts is a "Daubert state," but how can a state not be a Daubert state? It was a SCOTUS opinion, so isn't it binding on all states? Or was that case federal law-specific, and thus not binding on state courts?
10.6.2006 2:14pm
donaldk:
That is a real judge. Too bad there are not more like her.
10.6.2006 2:17pm
Mike BUSL07 (mail) (www):
I also enjoy how she spanked the other expert witness. Something along the lines of 'devoid of any legal reliability.'
10.6.2006 2:34pm
ak47pundit (www):
Oris:

Dauber affected and is binding on Federal Courts, and State court's may choose to adopt it.

Michigan's Courts for example adopted the Daubert test in July of 2004 instead of using Frye, and Daubert was decided in 1993 (with the Federal Rules of Evidence being revised to incorporate it in 2000). As an aside, The Michigan Legislature actually codified the standard for evaluating expert witnesses into law at MCL 600.2955.

For an article see here for michigan's adoption of Daubert.
10.6.2006 2:50pm
Luke 1152 (mail):
Tort reform cheerleaders love to wax on about the wonders of how Daubert has changed everything, but there isn't any real evidence that it has.

The only thing we see are anecdotal cases cited here and there. This "theory" is, essentially, that these 1 or 2 or 20 cases prove how tens of thousands of different cases are handled each year. Such a "theory", itself, would fail the Daubert test.
10.6.2006 2:53pm
gorjus (mail) (www):
Oris, ak47pundit has it right, but just a note about precedent. Sometimes Supreme Court decisions just effect certain state laws--for instance, the Republican Party of Minnesota v. White decision specifically addressed judicial speech canons in that state.

If your state had the exact law, that decision would be binding on you, too. But if you don't, there's a question as to whether it applies.

Similarly, Daubert just applied to the Federal Rules of Evidence, which are only used in Federal Courts. Each state has their own, often drawn extensively from the FRE. However, in some--like Michigan, or my state, Mississippi--different standards and rules were used, so it didn't necessarily apply.

(Mississippi just adopted Daubert a couple of years ago and the trial judges are really working at learning it, after decades of Frye).
10.6.2006 3:20pm
Oris (mail) (www):
Thanks for the clarification, ak47pundit and gorjus.
10.6.2006 3:55pm
JohnAnnArbor:
Perhaps judges charges with evaluating scientific testimony should have assistants that are trained scientists or engineers to help out here.
10.6.2006 4:19pm
Guest44 (mail):
Better yet, let's get rid of juries altogether. Judges are much better at determining whether someone's knowledge of their own memories is sound, whether someone is a sufficiently good estimator of height, race, time of day, etc.
10.6.2006 4:44pm
Bruce F. Webster (mail) (www):
As someone who serves from time to time as an expert witness, I have a keen interest in Daubert/Kumho. While I was at PricewaterhouseCoopers, we had all-day seminars about Daubert, and I am careful to keep the Daubert guidelines in mind when I prepare an expert report.

On the other hand, I'm a bit underwhelmed in how it is applied in practice. My particular field (information technology) and my major categories of cases (failed/disputed IT projects, trade secret theft, [source code] copyright infringement) don't necessarily lend themselves to the peer-reviewed methodology standards that Daubert endorses. My approach is to make use of classic works in my field (Brooks, Boehm, Yourdon, et al.) as well as articles published in ACM, IEEE, and so on.

On the other hand, I have faced opposing experts who lack a college degree or whose methodology boils down to "my experience". Yet they are usually admitted, even in Federal court or in state courts and arbitrations that claim to adhere to Daubert. I've had several cases where our side filed a Daubert motion against the opposing expert; I don't know of a case where it succeeded, however strong the meirts.

At the same time, I had a Federal judge initially block my expert report in an IP case largely because the other side dragged a few red herrings in front of her (e.g., I didn't compare source code, even though we did not claim nor was I opining on copyright infringement via stolen source code). She reversed herself in a phone conference a week later, my report went in (as did my rebuttal report of the other witness), I was deposed, I spent a full day testifying at trial, the judge actually cited my testimony in her instructions to the jury, and we won the case. But since the judge never issued a formal ruling on her reversal, I get this brought up from time to time at deposition or trial, and I'm sure there are some potential clients who passed on me because when they did a Westlaw search on my name, this is all that showed up. Sigh.

I am actually contemplating authoring a series of articles to be published in peer-reviewed journals that set forth proposed formal methodologies for the types of cases I work on, largely in hopes of seeing Daubert more intelligently applied in IT-related cases.

And, frankly, I strongly concur with JohnAnnArbor's comment about judges having technical assisants. I've served as a neutral expert in one case (and directly as the arbitrator in another), and it was frankly a much cleaner and less expensive process. The problem with IT is that it's so easy for one side or another to wave hands and blow smoke that I wonder how the trier of fact (be it judge or jury) can really sort through it all.

Just a few thoughts. ..bruce..
10.6.2006 4:48pm
Waldensian (mail):
This judge did a fine job.

Although I am no scientist, by a long shot, I have more than a passing interest in autism causation, and I have never read anything suggesting that mold exposure could be a "substantial contributing factor to a reasonable degree of medical certainty." Let's see the Harvard doc publish something in a peer-reviewed journal on that topic, rather than bloviate in a deposition, and then I'll take a greater interest.

One note about the Harvard doc really surprised me:

As potential environmental triggers under
active debate and research, she listed mercury, intrauterine viral infections, season of birth, global positioning, and water pollution.

"Global positioning"?!? Is anyone familiar with the literature on that? What on earth (pardon the expression....) does it mean?

I continue to be grateful to Mr. Bernstein for fighting the good fight against junk science in the realm of autism. I wish that there were more like him in the MSM.
10.6.2006 5:03pm
JohnAnnArbor:
"Global positioning"?!? Is anyone familiar with the literature on that?
A guess: meaning where on the planet someone's born, similar to the latitude dependency of multiple sclerosis?
10.6.2006 6:25pm
logicnazi (mail) (www):
The judge clearly did a good job in this case. However, as the judge observers herself working through the expert literature is often extremely challenging for a non-expert. I'm strongly in favor of some system allowing the court to consult/employ their own experts in deciding whether to admit this sort of material.

As an extreme version of this I can imagine some kind of technical courts run by the NSF or something that exist to examine the merits of expert evidence in scientific fields.

--

Also reading the opinion I am left wondering if these experts are just guns for hire working for a family trying to make a buck or more disturbingly it was poorly informed doctors like this who convinced the family the autism was caused by allergy in the first place.

I find it completely plausible that negligent doctors who aren't aware of all the research diagnosed the girl with autism and seeing the symptom allergy link, which could easily be explained by the strange effects enviornment has on autistic people, told the family this was probably what had caused the problem. Then outraged that their condiminum caused her daughter to be damaged the woman sues the landlord.

This is also what causes people to think that big corporations always get away with things because I very much doubt that the judge's rejection of the evidence is going to cause the mother to reevaluate what her doctor may have told her.
10.6.2006 6:39pm
New Guest 99:
Actually, Massachusetts law permits the admission of expert testimony if it meets either Daubert OR Frye.
10.6.2006 8:51pm
von (mail) (www):
Professor Bernstein's textualist points are well taken (re FRE 702 and Daubert), but, in practice, it's virtually impossible to enforce. The judicial impulse is to let in the evidence at trial, with the hope that cross-examination will cure any ills. It's not an irrational impulse: There's simply not enough time for most judges to be the kind of gatekeeper that Professor Bernstein would rather have. In other words, this is yet another area where the theoretical collides with the practical.
10.6.2006 9:48pm
JohnAnnArbor:

There's simply not enough time for most judges to be the kind of gatekeeper that Professor Bernstein would rather have. In other words, this is yet another area where the theoretical collides with the practical.

Well, if the judges had some help from a pool of scientists and engineers, it would be easier, right? A few non-lawyers in the mix would do everyone a world of good. Engineers especially; they deal with reality daily.
10.7.2006 1:23am
Lev:

Well, if the judges had some help from a pool of scientists and engineers, it would be easier, right?


Especially since judges are lawyers, lawyers are law school graduates, and law school applicants are, by self selection, seldom from science and engineering.
10.7.2006 2:11am
David M. Nieporent (www):
It's not an irrational impulse: There's simply not enough time for most judges to be the kind of gatekeeper that Professor Bernstein would rather have. In other words, this is yet another area where the theoretical collides with the practical.
I don't know, Von. If they vigorously enforced these rules, they'd cut down on the number of lawsuits, giving them more time.

Anyway, they can always foist it off on magistrate judges, or a state equivalent.
10.7.2006 4:04am
Mary Katherine Day-Petrano (mail):
W -- "This judge did a fine job.

Although I am no scientist, by a long shot, I have more than a passing interest in autism causation, and I have never read anything suggesting that mold exposure could be a "substantial contributing factor to a reasonable degree of medical certainty." Let's see the Harvard doc publish something in a peer-reviewed journal on that topic, rather than bloviate in a deposition, and then I'll take a greater interest. ... I continue to be grateful to Mr. Bernstein for fighting the good fight against junk science in the realm of autism. I wish that there were more like him in the MSM."

L--Nazi -- "I find it completely plausible that negligent doctors who aren't aware of all the research diagnosed the girl with autism and seeing the symptom allergy link, which could easily be explained by the strange effects enviornment has on autistic people, told the family this was probably what had caused the problem. Then outraged that their condiminum caused her daughter to be damaged the woman sues the landlord."

For these two and others who view envorinmental insults to a person as the cause of autism as "junk science," I can firsthand tell you that (1) immediately following having received childhood vaccines, (2) my language regressed leading to meeting diagnostic criteria of autism. Following this, I have had a lifetime of autoimmune vulnerabilities, easily contracting near-fatal childhood bacterial spinal meningitis, every cold or flu that remotely came my way, and have had a continuous lifelong inflammation reaction. If I am around any exposure to chemicals, mold, lead-based paint, or other environmental insults, I get immediate immune system reactions, many times severe.

I surely do believe that when proper impartial, unbiased research is undertaken (and not that of the vaccine-boased CDC) into the causation of autism, these mercury-based vaccines will be proven to be one of the culprits (but maybe not the only environmental culprit), by introducing an insult to the automimmune system of some people who are already genetically vulnerable, these vaccines and other environmental insults set off a severe lifelong reaction of the autoimmune system known as autism. The one certainty of W and L--Nazi is they are not people who have firsthand personally experienced autism.

But, if we are talking about the use of "junk science" that does not meet the standards of Daubert, one need go no further than the Florida State and Federal courts where the functional limitations of people with MS and autism are decided by Judges or advocated by opposing counsel on such bases as (1) 'You don't look disabled,' J. Levine; (2) MS is "multiple scoliosis" (i.e, bony curvatures in the brain), J. Kovacavich; (3) cause for conviction and 4 year driver's license suspension based on request for speech recognition accommodations for autism 'stongly implied she is unable to see,' i.e, blind, J. Morris; (4) as cause to deny accommodations for autism and find contempt based on written format functional limitations, 'what you can't see the court reporter right here in front of the courtroom?, Whittemore; (5) denial of employment as substitute custodian by characterizing autism as 'she is too physically disabled,' Atty. Munch; (6) denial of speech recognition and extra time autism accommodations as cause for dismissal of suit, she cannot communication 'in a concrete manner,' J. Bucklew.

As I said, "junk science" rules the autism decisions of the Florida Bench and Bar. For all you who live elsewhere, or do not have to endure the trials and tribulations of autism and the "junk science" basis of decisions being made about your autism and essential rights, how lucky you are.
10.7.2006 2:26pm
Mary Katherine Day-Petrano (mail):
And, W and L--Nazi, even if autism "causation" in the first instance is (in your view) problematic, it would seem a 'piece o' cake' to prove and exacerbation of autistic symptamology by a new environmental insult, such as the toxic mold, under the *eggshell plaintiff rule.* The defendant takes the plaintiff as he finds her.
10.7.2006 2:47pm
Mary Katherine Day-Petrano (mail):
"and"=an
10.7.2006 2:48pm
Mary Katherine Day-Petrano (mail):
Autism and "junk science" ... why am I getting reminiscences of Justice Taney/Dredd Scott v. Sanford and its progeny?
10.7.2006 2:51pm
JohnAnnArbor:
Mary Katherine Day-Petrano:

Anecdotes, however compelling, do not equate with causation.

Denmark changed vaccines in the 1990s, switching from the mercury-based preservative.

NO CHANGE was observed in autism diagnoses between before and after the change.

QED.
10.7.2006 4:26pm
Mary Katherine Day-Petrano (mail):
JAA, neither does "junk science."

The logical step when you have countless autistics who became autistic after being given mercury-based vaccines is to explore whether a correlation indicates that further research would reveal also causation between the two. A nice characterization "anecdote" -- but you yourself do not remotely bother to answer the correlation with any valid scientific disproof of causation. Or is this how the discourse goes on this suject, a tit for a tat -- but no real research? Or, do I detect you are a card-carrying member of Cure Autism Now!

Nor is your reference to a study carried out in Denmark relevant to the environmental causes of autism in the the United States -- you leave unaddressed many danlging threshold considerations that would have to be constant between the United States and Denmark to validate application of the Danish study you reference to the United States -- e.g., differences existing in the environmental laws between the two countries, differences between mercury-vaccine regulations in the two countries, regulation of other environmental causes such as lead between the two countries, etc.

So what if Denmark switched its vaccines from pre-1990 to post-1990? You do not give (for each country) the exact ingredient changes and ppb., you do not even describe the sampled population and differences in genetics, nor do you even provide the entire study itself for those of us who got A+ in our semesters of statistics to see for ourselves exactly what it is upon which you ground your assertion -- more "junk science" maybe?

I usually regard such bald assertions on a "say so" with skepticism, until proven otehrwise.
10.7.2006 5:05pm
Bruce Hayden (mail) (www):
Mary,

Yes, I do agree that there may be theoretical problems with the validity of the Denmark study. But finding theoretical problems with it is not the same as validating the converse. What you are citing is ancedotal evidence - the uncontrolled possible correlations with personal experiences. That is a good starting place for making hypotheses, not an ending point of proving them, or at least making them plausible.

In other words, what we have right now is one study that showed that the incidence of autism didn't drop in Denmark after switching from a mercury based vaccine to one that is not, and ancedotal evidence of autistics here who developed symptoms shortly after innoculations by mercury based vacines. At present, the first should be admissible, though attackable, whereas the second should probably not be, in the face of the first, under Daubert.

I think that the answer to this is to look at the incidence here before and after the switch. However, could this cause even be identifiable amid what appear to be more frequent causes, notably assortive mating? I know you know more about this than I do, but my understanding is that the incidence of both autism and AS seems to continue to be rising in ths country, despite having moved away from mercury based vaccines. If they were easily and infallibly diagnosed, and had been for awhile, the change in slope at the point where we switched vaccines might be statistically significant. But because they aren't, I suspect that it will be impossible to statistically prove (presumably) your case. (Indeed, there is a possibility that mercury could induce the one and not the other, but that there is enough misdiagnose of one for the other that it is impossible to prove correlation).
10.8.2006 1:27am