For your delectation and delight, desultory dicta on the law of delicts.

A TrumPence for Your Thoughts

November 21st, 2020

Trigger Warning: Political Rant

“Let them call me rebel and welcome, I feel no concern from it; but I should suffer the misery of devils, were I to make a whore of my soul by swearing allegiance to one whose character is that of a sottish, stupid, stubborn, worthless, brutish man.”

Thomas Paine, “The Crisis, Number 1” (Dec. 23, 1776), in Ian Shapiro & Jane E. Calvert, eds., Selected Writings of Thomas Paine 53, 58 (2014).

♂, ♀, ✳, †, ∞

Person, woman, man, camera, TV

Back on October 20, 2020, televangelist Pat Robertson heard voices in his head, and interpreted them to be the voice of god, announcing the imminent victory of Donald Trump. How Robertson knows he was not hearing the devil, he does not say. Even gods get their facts and predictions wrong sometimes. We should always ask for the data and the analysis.

Trump’s “spiritual advisor,” mega-maga-church pastor and televangelist, Paula White, violated the ban on establishment of religion, and prayed for Trump’s victory.[1] Speaking in tongues, White made Trump seem articulate. White wandered from unconstitutional into blatantly criminal territory, however, when she sought intervention of foreign powers in the election, by summoning angels from Africa and South America to help Trump win the election.  Trump seemed not to take notice that these angels were undocumented, illegal aliens. In the end, the unlawful aliens proved ineffective. Our better angels prevailed over Ms. White’s immigrant angels. Now ICE will now have to track these angels down and deport them back to their you-know-what countries of origin.

How did we get to this place? It is not that astute observers on the left and the right did not warn us.

Before Trump was elected in 2016, Justice Ruth Bader Ginsburg notoriously bashed Donald Trump, by calling him a “faker”:

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”[2]

Faker was a fitting epithet that captured Trump’s many pretensions. It is a word that has a broader meaning in the polyglot world of New York City, where both Justice Ginsburg and Donald Trump were born and grew up. The word has a similar range of connotations as trombenik, “a lazy person, ne’er-do-well, boastful loudmouth, bullshitter, bum.” Maybe we should modify trombenik to Trumpnik?

Justice Ginsburg’s public pronouncement was, of course, inappropriate, but accurate nonetheless. She did something, however, that Trump has never done in his public persona; she apologized:

“‘On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them’, Ginsburg said in a statement Thursday morning. ‘Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect’.”[3]

Of course, Justice Ginsburg should have been more circumspect, but her disdain for Trump was not simply an aversion to his toxic politics and personality. Justice Ginsburg was a close friend of Justice Antonin Scalia, who was one of the most conservative justices on the Supreme Court bench. Ginsburg and Scalia could and did disagree vigorously and still share friendship and many common interests. Scalia was not a faker; Trump is.

Other conservative writers have had an equal or even a greater disdain for Trump. On this side of the Atlantic, principled conservatives rejected the moral and political chaos of Donald Trump. When Trump’s nomination as the Republican Party candidate for president seemed assured in June 2016, columnist George Will announced to the Federalist Society that he had changed his party affiliation from Republican to unaffiliated.[4]

On the other side of the Atlantic, conservative thinkers such as the late Sir Roger Scruton rolled their eyes at the prospect of Donald Trump’s masquerading as a conservative.[5] After Trump had the benefit of a few months to get his sea legs on the ship of state, Sir Roger noted that Trump was nothing more than a craven opportunist:

“Q. Does ‘Trumpism’ as an ideology exist, and if it does, is it conservative, or is it just opportunism?

A. It is opportunism. He probably does have conservative instincts, but let’s face it, he doesn’t have any thoughts that are longer than 140 characters, so how can he have a real philosophy?”[6]

Twitter did, at some point, double the number of characters permitted in a tweet, but Trump simply repeated himself more.

In the United States, we have had social conservatives, fiscal conservatives, classic liberal conservatives, and more recently, we have seen neo-cons, theo-cons, and Vichy cons. I suppose there have always been con-cons, but Trump has strongly raised the profile of this last subgroup. There can be little doubt that Donald John Trump has always been a con-con. Now we have Banana Republicans who have made a travesty of the rule of law. Four years in, we are all suffering from what Barak Obama termed “truth decay.”

Cancel culture has always been with us. Socrates, Jesus, and Julius Caesar were all canceled, with extreme prejudice. In the United States, Senator Joseph McCarthy developed cancel culture into a national past time. In this century, the Woke Left has weaponized cancel culture into a serious social and intellectual problem. Now, Donald Trump wants to go one step further and cancel our republican form of democracy. Trump is attempting in plain sight to cancel a national election he lost.

Yes, I have wandered from my main mission on this blog to write about tort law and about how the law handles scientific and statistical issues. My desultory writings on this blog have largely focused on evidence in scientific controversies that find their way into the law. Our political structures are created and conditioned by our law, and our commitment to the rule of law, and the mistreatment of scientific issues by political actors is as pressing a concern, to me at least, as mistreatment of science by judges or lawyers. Trump has now made the post-modernists look like paragons of epistemic virtue. As exemplified in the political response to the pandemic, this political development has important implications for the public acceptance of science and evidence-based policies and positions in all walks of life.

Another blogger whose work on science and risk I respect is David Zaruk, who openly acknowledges that Donald Trump is an “ethically and intellectually flawed train wreck of a politician.”[7] Like Trump apologists James Lindsay and Ben Shapiro, however, Zaruk excuses the large turnout for Trump because Trump voters:

“are sick to death of being told by smug, arrogant, sanctimonious zealots how to think, how to feel and how to act. Nobody likes to be fixed and especially not by self-righteous, moralising mercenaries.”

But wait:  Isn’t this putative defense itself a smug, arrogant, sanctimonious, and zealous lecture that we should somehow be tolerant of Trump and his supporters? What about the sickness unto death over Trump’s endless propagation of lies and fraud? Trump has set an example that empowers his followers to do likewise. Zaruk’s reductionist analysis ignores important determinants of the vote. Many of the Trump voters were motivated by the most self-righteous of all moralizing mercenaries – leaders of Christian nationalism.[8] Zaruk’s acknowledgement of Trump’s deep ethical and intellectual flaws, while refraining from criticizing Trump voters, fits the pattern of the Trump-supporting mass social media that engages in the rhetoric of gas-lighting “what-about-ism.”[9]

Sure, no one likes to be told that they are bereft of moral, practical, and political judgment, but voting for Trump is complicit in advancing “a deeply ethically and intellectually flawed” opportunist. Labeling all of Trump’s opponents as “smug, arrogant, sanctimonious zealots” is really as empty as Trump’s list of achievements. Furthermore, Zaruk’s animadversions against the Woke Left miss the full picture of who is criticizing Trump and his “base.” The critique of Trump has come not just from so-called progressives but from deeply conservative writers such as Will and Scruton, and from pragmatic conservative political commentators such as George Conway, Amanda Carpenter, Sarah Longwell, and Charles Sykes. There is no moral equivalency between the possibility that the Wokies will influence a Biden administration and the certainty that truly deplorable people such as Bannon, Gingrich, Giuliani, Navarro, et alia, will both influence and control our nation’s policy agenda.

Of course, Trump voters may honestly believe that a Democratic administration will be on the wrong side of key issues, such as immigration, abortion, gun control, regulation, taxation, and the like. Certainly opponents of the Democratic positions on these issues could seek an honest broker to represent their views. Trump voters, however, cannot honestly endorse the character and morality of Mr. Trump, his cabinet, and his key Senate enablers. Trump has been the Vector-in-Chief of contagion and lies. As for Trump’s evangelical Christian supporters, they have an irreconcilable problem with our fundamental prohibition against state establishment of religion.

It has been a difficult year for Trump. He has had the full 2020 experience. He developed COVID, lost his job, and received an eviction notice. And now he finds himself with electicle dysfunction. Trump has long been a hater and a denier. Without intending to libel his siblings, we can say that hating and denying are in his DNA. Trump hates and denies truth, evidence, valid inference, careful analysis and synthesis. He is the apotheosis of what happens when a corrupt, small-minded business man surrounds himself with lackies, yes-people, and emotionally damaged, financially dependent children.

Trump declared victory before the votes could be tallied, and he announced in advance, without evidence, that the election was rigged but only if it turned out with the “appearance” of his losing. After the votes were tallied, and he had lost by over 5,000,000 votes, and he lost the Electoral College by the same margin he labeled a “landslide” for him four years earlier, he claimed victory, contrary to the evidence, just as he said he would. Sore loser. Millions of voting Americans, to whom Zaruk would give a moral pass, do not see this as a problem.

In The Queen’s Gambit, a Netflix series, the stern, taciturn janitor of a girls’ orphanage, Mr. Shaibel, taught Beth Harmon, a seven year old, how to play chess. In one of their early games, Beth has a clearly lost position, and Mr. Shaibel instructs her, “now you resign.” Beth protests that she still has moves she can make before there is a checkmate, but Mr. Shaibel sternly repeats himself, “no, now you resign.” Beth breaks into tears and runs out of the room, but she learned the lesson and developed the resiliency, focus, and sportsmanship to play competitive chess at the highest level. If only Mr. Shaibel could have taught our current president this lesson, perhaps he would understand that the American electorate, both the self-styled progressives and conservatives who care about decency and morality, have united in saying to him, “now you resign.”

Dr. Mary Trump, the President’s niece, has written an unflattering psychological analysis of Trump. It does not take a Ph.D. in clinical psychology to see the problem. Donald Trump and his family do not have a dog. Before Donald Trump, James K. Polk (11th president) was the last president not to have a dog in the White House (March 4, 1845 – March 4, 1849). Polk died three months after leaving office.

I suppose there are some good people who do not like dogs, but liking and caring for dogs, and being open to their affection back, certainly marks people as capable of empathy, concern, and love. I could forgive the Obamas for never having had dogs before moving into the Whitehouse; they were a hard working, ambitious two career couple, living in a large city. They fixed their omission shortly upon Obama’s election. The absence of dog from the Trump White House speaks volumes about Trump. In a rally speech, he mocked: “Can you imagine me walking a dog?” Of course, he would not want to walk a dog down a ramp. How interesting that of all the criticisms lodged against Trump, the observation that he lacked canine companionship struck such a nerve that he addressed the matter defensively in one of his rallies. And how sad that he could not imagine his son Barron walking a dog. It was probably Barron’s only hope of having another living creature close to him show concern. Of course, Melania could walk the dog, which would allow her to do something useful and entertaining (besides ignoring the Christmas decorations), especially in her high-heel dog-walking shoes.

Saturday, November 7, 2020. O joy, o rapture! People danced in the streets of the Upper East. Cars honked horns. People hung out their windows and banged pots. Grown men and women shed tears of joy and laughter. A beautiful New York day, VD Day, not venereal disease day, but victory over Donald. Trump can begin to plan for the Trump Presidential Lie-brary and adult book store.

But wait. Trump legal advisor Harmeet Dhillon tells Lou Dobbs on the Fox News Channel: “We’re waiting for the United States Supreme Court – of which the president has nominated three justices – to step in and do something. And hopefully Amy Coney Barrett will come through.” Well, that was not a terribly subtle indication of the corruption in Trump’s soul and on his legal team. Americans now know all about loyalty oaths to the leader, and the abdication of principles. Fealty to Trump is the only principle; just read the Republican Party Platform.

Former White House chief strategist Steven Bannon was not to be out done in his demonstrations of fealty. Bannon called for Dr. Anthony Fauci and FBI Director Christopher Wray to be beheaded “as a warning to federal bureaucrats. You either get with the program or you are gone.” Bannon, of course, was not in a principal-agent relationship with Trump, as was Dhillon, but given that Trump has an opinion about everything on Twitter-Twatter, and that he was silent about Bannon’s call for decapitations, we have to take his silence as tacit agreement.

It does seem that many Republicans are clutching at straws to hang on. Fraud claims require pleading with particularity, and proof by clear and convincing evidence. Extraordinary claims require extraordinary evidence. First and second order hearsay will not suffice. Surely, Rudy the Wanker knows this; indeed, when he has appeared in court, he has readily admitted that he is not pursuing a fraud case.[10] In open court, Guiliani, with a straight face, told a federal judge that his client was denied the opportunity to ensure opacity at the polls.[11]

Under the eye of Newt Gingrich, former Republican Speaker of the House, poll workers should be jailed, and Attorney General William P. Barr should step in to the fray. Never failing to disappoint, Bully Barr obliged. Still, the Republican attempt to win by litigation, a distinctly un-conservative approach, has been failing.[12]

How will we know when our national nightmare is over? There will not be the usual concession speech. Look for Trump’s announcement of his candidacy for the 2024 presidential election.

Donald J. Trump Foundation, Trump Airlines, Trump Magazine, Trump Steaks, Trump Vodka, Trump Mortgage, Trump: The Game, Trump University,, Trump Marriage #1, Trump Marriage #2, Trump Taj Mahal, Trump Plaza Hotel and Casino, Plaza Hotel, Trump Castle Hotel and Casino, Trump Hotels and Casino Resorts, Trump Entertainment Resorts, Trumpnet – all failures – are now gone. Soon Trump himself will be gone as well.


A dimly lit room filled with coffins. Spider webs stretch across the room. Rats scurry across the floor. Slowly, the tops of the coffins are pushed open from within in, by arms of skeletons. The occupants of the coffins, skeleton, slowly get up and start talking.

Skeleton one: COVID, COVID, COVID, COVID, COVID, COVID, that’s all everyone wants to talk about.

Skeleton two: It’s no big deal; we were going to die anyway. Well at some point.

Skeleton three: And besides, now we are immune. Ha, ha, ha!

Skeleton four: Hey, look at us; we’re rounding the corner.

All, singing while dancing in a circle conga line:

We’ll be coming around the corner when he’s gone (toot, toot)

We’ll be coming around the corner when he’s gone (toot, toot)

We’ll be coming around the corner, we’ll be coming around the corner

We’ll be coming around the corner when he’s gone (toot, toot).

[1]  Wyatte Grantham-Philips, “Pastor Paula White calls on angels from Africa and South America to bring Trump victory,” USA TODAY (Nov. 5, 2020).

[2]  John Kruzel, “Justice Ruth Bader Ginsburg has taken to bashing Donald Trump in recent days,” (July 12, 2016).

[3]  Jessica Taylor, “Ginsburg Apologizes For ‘Ill-Advised’ Trump Comments,” Nat’l Public Radio (July 14, 2016).

[4]  Maggie Haberman, “George Will Leaves the G.O.P. Over Donald Trump,” N.Y. Times (June 25, 2016).

[5]  Roger Scruton, “What Trump Doesn’t Get About Conservatism,” N.Y. Times (July 4, 2018).

[6]  Tom Szigeti, “Sir Roger Scruton on Trump: ‘He doesn’t have any thoughts that are longer than 140 characters’,” Hungary Today (June 8, 2017).

[7]  David Zaruk, “The Trump Effect: Stop Telling me What to Think!,” RiskMonger (Nov. 5, 2020).

[8]  See Katherine Stewart, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism (2020).

[9]  See Amanda Carpenter, Gaslighting America – Why We Love It When Trump Lies to Us 2018.

[10]  Lisa Lerer, “‘This Is Not a Fraud Case’: Keep an eye on what President Trump’s lawyers say about supposed voter fraud in court, where lying under oath is a crime,” (Nov. 18, 2020).

[11]  Gail Collins, “Barr the Bad or Rudy the Ridiculous?” N.Y. Times (Nov. 18, 2020).

[12]  Jim Rutenberg, Nick Corasaniti and Alan Feuer, “With No Evidence of Fraud, Trump Fails to Make Headway on Legal Cases,” N.Y. Times (Nov. 7, 2020); Aaron Blake, “It goes from bad to worse for the Trump legal team,” Wash. Post (Nov. 13, 2020); Alan Feuer, “Trump Loses String of Election Lawsuits, Leaving Few Vehicles to Fight His Defeat,” N.Y. Times (Nov. 13, 2020); Jon Swaine & Elise Viebeck, “Trump campaign jettisons major parts of its legal challenge against Pennsylvania’s election results,” Wash. Post (Nov. 15, 2020).

Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent

June 2nd, 2020

The Advisory Committee notes to the year 2000 amendment to Federal Rule of Evidence 702 included a comment:

“A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a ‘seachange over federal evidence law’, and ‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system’.”[internal citation omitted]

In stating its review of the caselaw, perhaps the Committee was attempting to allay the anxiety of technophobic judges. But was the Committee also attempting to derive an “ought” from an “is”?  Before the Supreme Court decided Daubert in 1993, virtually every admissibility challenge to expert witness opinion testimony failed. The trial courts were slow to adapt and to adopt the reframed admissibility standard. As the Joiner case illustrated, some Circuits were even slower to permit trial judges the discretion to assess the validity vel non of expert witnesses’ opinions.

The Committee’s observation about the “exceptional” nature of exclusions was thus unexceptional as a description of the case law before and shortly after Daubert was decided. And even if the Committee were describing a normative view, it is not at all clear how that view should translate into a ruling in a given case, without a very close analysis of the opinions at issue, under the Rule 702 criteria. In baseball, most hitters are thrown out at first base, but that fact does not help an umpire one whit in calling a specific runner “safe” or “out.”  Nonetheless, courts have repeatedly offered the observation about the exceptional nature of exclusion as both an explanation and a justification of their opinions to admit testimony.[1] The Advisory Committee note has thus mutated into a mandate to err on the side of admissibility, as though deliberately committing error was a good thing for any judge to do.[2] First rule: courts shall not err, not intentionally, recklessly, or negligently.

Close Calls and Resolving Doubts

Another mutant offspring of the “exception, not the rule” mantra is that “[a]ny doubts regarding the admissibility of an expert’s testimony should be resolved in favor of admissibility.”[3] Why not resolve the doubts and rule in accordance with the law? Or, if doubts remain, then charge them against the proponent who has the burden of showing admissibility? Unlike baseball, in which a tie goes to the runner, in expert witness law, a tie goes to the challenger because the defender of the motion has failed to show a preponderance in favor of admissibility. A better mantra: “exclusion when it is the Rule.”

Some courts re-imagine the Advisory Committee’s about exceptional exclusions as a recommendation for admitting Rule 702 expert witness opinion testimony as a preferred outcome. Again, that interpretation reverses the burden of proof and makes a mockery of equal justice and scientific due process.

Yet another similar judicial mutation is the notion that courts should refuse Rule 702 motions when they are “close calls.”[4] Telling the litigants that the call was close might help assuage the loser and temper the litigation enthusiasms of the winner, but it does not answer the key question: Did the proponent carry the burden of showing admissibility? Residual doubts would seem to weigh against the proponent.

Not all is lost. In one case, decided by a trial court within the Ninth Circuit, the trial judge explicitly pointed to the proponent’s failure to identify his findings and methodology as part of the basis for exclusion, not admission, of the challenged witness’s opinion testimony.[5] Difficulty in resolving whether the Rule 702 predicates were satisfied worked against, not for, the proponent, whose burden it was to show those predicates.

In another case, Judge David G. Campbell, of the District of Arizona, who has participated in the Rules Committee’s deliberations, showed the way by clearly stating that the exclusion of opinion testimony was required when the Rule 702 conditions were not met:

“Plaintiffs have not shown by a preponderance of the evidence that [the expert witness’s] causation opinions are based on sufficient facts or data to which reliable principles and methods have been applied reliably… .”[6]

Exclusion followed because the absent showings were “conditions for admissibility,” and not “mere” credibility considerations.

Trust Me, I’m a Liberal

One of the reasons that the Daubert Court rejected incorporating the Frye standard into Rule 702 was its view that a rigid “general acceptance” standard “would be at odds with the ‘liberal thrust’ of the Federal Rules.”[7] Some courts have cited this “liberal thrust” as though it explained or justified a particular decision to admit expert witness opinion testimony.[8]

The word “liberal” does not appear in the Federal Rules of Evidence.  Instead, the Rules contain an explicit statement of how judges must construe and apply the evidentiary provisions:

“These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”[9]

A “liberal” approach, construed as a “let it all in” approach would be ill-designed to secure fairness, eliminate unjustifiable expense and time of trial, or lead to just and correct outcomes.  The “liberal” approach of letting in opinion testimony and let the jury guess at questions of scientific validiy would be a most illiberal result.  The truth will not be readily ascertained if expert witnesses are permitted to pass off hypotheses and ill-founded conclusions as scientific knowledge.

Avoiding the rigidity of the Frye standard, which was so rigid that it was virtually never applied, certainly seems like a worthwhile judicial goal. But how do courts go from the Justice Blackmun’s “liberal thrust” to infer a libertine “anything goes”? And why does liberal not connote seeking of the truth, free of superstitions? Can it be liberal to permit opinions that are based upon fallacious or flawed inferences, invalid studies, or cherry-picked data sets?

In reviewing the many judicial dodges that are used to avoid engaging in meaningful Rule 702 gatekeeping, I am mindful of Reporter Daniel Capra’s caveat that the ill-advised locutions used by judges do not necessarily mean that their decisions might not be completely justifiable on a carefully worded and reasoned opinion that showed that Rule 702 and all its subparts were met. Of course, we could infer that the conditions for admissibility were met whenever an expert witness’s opinions were admitted, and ditch the whole process of having judges offer reasoned explanations. Due process, however, requires more. Judges need to specify why they denied Rule 702 challenges in terms of the statutory requirements for admissibility so that other courts and the Bar can develop a principled jurisprudence of expert witness opinion testimony.

[1]  See, e.g., In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (“‘[R]ejection of expert testimony is the exception, rather than the rule,’ and we will generally permit testimony based on allegedly erroneous facts when there is some support for those facts in the record.”) (quoting Advisory Committee Note to 2000 Amendments to Rule 702); Citizens State Bank v. Leslie, No. 6-18-CV-00237-ADA, 2020 WL 1065723, at *4 (W.D. Tex. Mar. 5, 2020) (rejecting challenge to expert witness opinion “not based on sufficient facts”; excusing failure to assess factual basis with statement that “the rejection of expert testimony is the exception rather than the rule.”); In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (committing naturalistic fallacy; “[A] review of the case law … shows that rejection of the expert testimony is the exception rather than the rule.”): Frankenmuth Mutual Insur. Co. v. Ohio Edison Co., No. 5:17CV2013, 2018 WL 9870044, at *2 (N.D. Ohio Oct. 9, 2018) (quoting Advisory Committee Note “exception”); Wright v. Stern, 450 F. Supp. 2d 335, 359–60 (S.D.N.Y. 2006)(“Rejection of expert testimony, however, is still ‘the exception rather than the rule,’ Fed.R.Evid. 702 advisory committee’s note (2000 Amendments)[.] . . . Thus, in a close case the testimony should be allowed for the jury’s consideration.”) (internal quotation omitted).

[2]  Lombardo v. Saint Louis, No. 4:16-CV-01637-NCC, 2019 WL 414773, at *12 (E.D. Mo. Feb. 1, 2019) (“[T]he Court will err on the side of admissibility.”).

[3]  Mason v. CVS Health, 384 F. Supp. 3d 882, 891 (S.D. Ohio 2019).

[4]  Frankenmuth Mutual Insur. Co. v. Ohio Edison Co., No. 5:17CV2013, 2018 WL 9870044, at *2 (N.D. Ohio Oct. 9, 2018) (concluding “[a]lthough it is a very close call, the Court declines to exclude Churchwell’s expert opinions under Rule 702.”); In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (suggesting doubts should be resolved in favor of admissibility).

[5]  Rovid v. Graco Children’s Prod. Inc., No. 17-CV-01506-PJH, 2018 WL 5906075, at *13 (N.D. Cal. Nov. 9, 2018), app. dism’d, No. 19-15033, 2019 WL 1522786 (9th Cir. Mar. 7, 2019).

[6]  Alsadi v. Intel Corp., No. CV-16-03738-PHX-DGC, 2019 WL 4849482, at *4 -*5 (D. Ariz. Sept. 30, 2019).

[7]  Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579, 588 (1993).

[8]  In re ResCap Liquidating Trust Litig., No. 13-CV-3451 (SRN/HB), 2020 WL 209790, at *3 (D. Minn. Jan. 14, 2020) (“Courts generally support an attempt to liberalize the rules governing the admission of expert testimony, and favor admissibility over exclusion.”)(internal quotation omitted); Collie v. Wal-Mart Stores East, L.P., No. 1:16-CV-227, 2017 WL 2264351, at *1 (M.D. Pa. May 24, 2017) (“Rule 702 embraces a ‘liberal policy of admissibility’, under which it is preferable to admit any evidence that may assist the factfinder[.]”); In re Zyprexa Prod. Liab. Litig., 489 F. Supp. 2d 230, 282 (E.D.N.Y. 2007); Billone v. Sulzer Orthopedics, Inc., No. 99-CV-6132, 2005 WL 2044554, at *3 (W.D.N.Y. Aug. 25, 2005) (“[T]he Supreme Court has emphasized the ‘liberal thrust’ of Rule 702, favoring the admissibility of expert testimony.”).

[9]  Federal Rule of Evidence Rule 102 (“Purpose and Construction”) (emphasis added).

Dodgy Data Duck Daubert Decisions

March 11th, 2020

Judges say the darndest things, especially when it comes to their gatekeeping responsibilities under Federal Rules of Evidence 702 and 703. One of the darndest things judges say is that they do not have to assess the quality of the data underlying an expert witness’s opinion.

Even when acknowledging their obligation to “assess the reasoning and methodology underlying the expert’s opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts,”[1] judges have excused themselves from having to look at the trustworthiness of the underlying data for assessing the admissibility of an expert witness’s opinion.

In McCall v. Skyland Grain LLC, the defendant challenged an expert witness’s reliance upon oral reports of clients. The witness, Mr. Bradley Walker, asserted that he regularly relied upon such reports, in similar contexts of the allegations that the defendant misapplied herbicide to plaintiffs’ crops. The trial court ruled that the defendant could cross-examine the declarant who was available trial, and concluded that the “reliability of that underlying data can be challenged in that manner and goes to the weight to be afforded Mr. Walker’s conclusions, not their admissibility.”[2] Remarkably, the district court never evaluated the reasonableness of Mr. Walker’s reliance upon client reports in this or any context.

In another federal district court case, Rodgers v. Beechcraft Corporation, the trial judge explicitly acknowledged the responsibility to assess whether the expert witness’s opinion was based upon “sufficient facts and data,” but disclaimed any obligation to assess the quality of the underlying data.[3] The trial court in Rodgers cited a Tenth Circuit case from 2005,[4] which in turn cited the Supreme Court’s 1993 decision in Daubert, for the proposition that the admissibility review of an expert witness’s opinion was limited to a quantitative sufficiency analysis, and precluded a qualitative analysis of the underlying data’s reliability. Quoting from another district court criminal case, the court in Rodgers announced that “the Court does not examine whether the facts obtained by the witness are themselves reliable – whether the facts used are qualitatively reliable is a question of the weight to be given the opinion by the factfinder, not the admissibility of the opinion.”[5]

In a 2016 decision, United States v. DishNetwork LLC, the court explicitly disclaimed that it was required to “evaluate the quality of the underlying data or the quality of the expert’s conclusions.”[6] This district court pointed to a Seventh Circuit decision, which maintained that  “[t]he soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment.”[7] The Seventh Circuit’s decision, however, issued in June 2000, several months before the effective date of the amendments to Federal Rule of Evidence 702 (December 2000).

In 2012, a magistrate judge issued an opinion along the same lines, in Bixby v. KBR, Inc.[8] After acknowledging what must be done in ruling on a challenge to an expert witness, the judge took joy in what could be overlooked. If the facts or data upon which the expert witness has relied are “minimally sufficient,” then the gatekeeper can regard questions about “the nature or quality of the underlying data bear upon the weight to which the opinion is entitled or to the credibility of the expert’s opinion, and do not bear upon the question of admissibility.”[9]

There need not be any common law mysticism to the governing standard. The relevant law is, of course, a statute, which appears to be forgotten in many of the failed gatekeeping decisions:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

It would seem that you could not produce testimony that is the product of reliable principles and methods by starting with unreliable underlying facts and data. Certainly, having a reliable method would require selecting reliable facts and data from which to start. What good would the reliable application of reliable principles to crummy data?

The Advisory Committee Notes to Rule 702 hints at an answer to the problem:

“There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert’s testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert’s basis cannot be divorced from the ultimate reliability of the expert’s opinion. In contrast, the ‘reasonable reliance’ requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient basis of information—whether admissible information or not—is governed by the requirements of Rule 702.”

The answer is only partially satisfactory. First, if the underlying data are independently admissible, then there may indeed be no gatekeeping of an expert witness’s reliance upon such data. Rule 703 imposes a reasonableness test for reliance upon inadmissible underlying facts and data, but appears to give otherwise admissible facts and data a pass. Second, the above judicial decisions do not mention any Rule 703 challenge to the expert witnesses’ reliance. If so, then there is a clear lesson for counsel. When framing a challenge to the admissibility of an expert witness’s opinion, show that the witness has unreasonably relied upon facts and data, from whatever source, in violation of Rule 703. Then show that without the unreasonably relied upon facts and data, the witness cannot show that his or her opinion satisfies Rule 702(a)-(d).

[1]  See, e.g., McCall v. Skyland Grain LLC, Case 1:08-cv-01128-KHV-BNB, Order (D. Colo. June 22, 2010) (Brimmer, J.) (citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003), citing in turn Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579,  592-93 (1993).

[2]  McCall v. Skyland Grain LLC Case 1:08-cv-01128-KHV-BNB, Order at p.9 n.6 (D. Colo. June 22, 2010) (Brimmer, J.)

[3]  Rodgers v. Beechcraft Corp., Case No. 15-CV-129-CVE-PJC, Report & Recommendation at p.6 (N.D. Okla. Nov. 29, 2016).

[4]  Id., citing United.States. v. Lauder, 409 F.3d 1254, 1264 (10th Cir. 2005) (“By its terms, the Daubert opinion applies only to the qualifications of an expert and the methodology or reasoning used to render an expert opinion” and “generally does not, however, regulate the underlying facts or data that an expert relies on when forming her opinion.”), citing Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).

[5]  Id., citing and quoting United States v. Crabbe, 556 F. Supp. 2d 1217, 1223
(D. Colo. 2008) (emphasis in original). In Crabbe, the district judge mostly excluded the challenged expert witness, thus rendering its verbiage on quality of data as obiter dicta). The pronouncements about the nature of gatekeeping proved harmless error when the court dismissed the case on other grounds. Rodgers v. Beechcraft Corp., 248 F. Supp. 3d 1158 (N.D. Okla. 2017) (granting summary judgment).

[6]  United States v. DishNetwork LLC, No. 09-3073, Slip op. at 4-5 (C.D. Ill. Jan. 13, 2016) (Myerscough, J.)

[7]  Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

[8]  Bixby v. KBR, Inc., Case 3:09-cv-00632-PK, Slip op. at 6-7 (D. Ore. Aug. 29, 2012) (Papak, M.J.)

[9]  Id. (citing Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004), quoting Children’s Broad Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (“The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.”).

Science Journalism – UnDark Noir

February 23rd, 2020

Critics of the National Association of Scholars’ conference on Fixing Science pointed readers to an article in Undark, an on-line popular science site for lay audiences, and they touted the site for its science journalism. My review of the particular article left me unimpressed and suspicious of Undark’s darker side. When I saw that the site featured an article on the history of the Supreme Court’s Daubert decision, I decided to give the site another try. For one thing, I am sympathetic to the task science journalists take on: it is important and difficult. In many ways, lawyers must commit to perform the same task. Sadly, most journalists and lawyers, with some notable exceptions, lack the scientific acumen and English communication skills to meet the needs of this task.

The Undark article that caught my attention was a history of the Daubert decision and the Bendectin litigation that gave rise to the Supreme Court case.[1] The author, Peter Andrey Smith, is a freelance reporter, who often covers science issues. In his Undark piece, Smith covered some of the oft-told history of the Daubert case, which has been told before, better and in more detail in many legal sources. Smith gets some credit for giving the correct pronunciation of the plaintiff’s name – “DAW-burt,” and for recounting how both sides declared victory after the Supreme Court’s ruling. The explanation Smith gives of the opinion by Associate Justice Harry Blackmun is reasonably accurate, and he correctly notes that a partial dissenting opinion by Chief Justice Rehnquist complained that the majority’s decision would have trial judges become “amateur scientists.” Nowhere in the article will you find, however, the counter to the dissent: an honest assessment of the institutional and individual competence of juries to decide complex scientific issues.

The author’s biases eventually, however, become obvious. He recounts his interviews with Jason Daubert and his mother, Joyce Daubert. He earnestly reports how Joyce Daubert remembered having taken Bendectin during her pregnancy with Jason, and in the moment of that recall, “she felt she’d finally identified the teratogen that harmed Jason.” Really? Is that how teratogens are identified? Might it have been useful and relevant for a scientific journalist to explain that there are four million live births every year in the United States and that 3% of children born each year have major congenital malformations? And that most malformations have no known cause? Smith ingenuously relays that Jason Daubert had genetic testing, but omits that genetic testing in the early 1990s was fairly primitive and limited. In any event, how were any expert witnesses supposed to rule out base-line risk of birth defects, especially given weak to non-existent epidemiologic support for the Daubert’s claims? Smith does answer these questions; he does not even acknowledge the questions.

Smith later quotes Joyce Daubert as describing the litigation she signed up for as “the hill I’ll die on. You only go to war when you think you can win.” Without comment or analysis, Smith gives Joyce Daubert an opportunity to rant against the “injustice” of how her lawsuit turned out. Smith tells us that the Dauberts found the “legal system remains profoundly disillusioning.” Joyce Daubert told Smith that “it makes me feel stupid that I was so naïve to think that, after we’d invested so much in the case, that we would get justice.”  When called for jury duty, she introduces herself as

“I’m Daubert of Daubert versus Merrell Dow … ; I don’t want to sit on this jury and pretend that I can pass judgment on somebody when there is no justice. Please allow me to be excused.”

But didn’t she really get all the justice she deserved? Given her zealotry, doesn’t she deserve to have her name on the decision that serves to rein in expert witnesses who outrun their scientific headlights? Smith is coy and does not say, but in presenting Mrs. Daubert’s rant, without presenting the other side, he is using his journalistic tools in a fairly blatant attempt to mislead. At this point, I begin to get the feeling that Smith is preaching to a like-minded choir over there at Undark.

The reader is not treated to any interviews with anyone from the company that made Bendectin, any of its scientists, or any of the scientists who published actual studies on whether Bendectin was associated with the particular birth defects Jason Daubert had, or for that matter, with any birth defects at all. The plaintiffs’ expert witnesses quoted and cited never published anything at all on the subject. The readers are left to their imagination about how the people who developed Bendectin felt about the litigation strategies and tactics of the lawsuit industry.

The journalistic ruse is continued with Smith’s treatment of the other actors in the Daubert passion play. Smith describes the Bendectin plaintiffs’ lawyer Barry Nace in hagiographic terms, but omits his bar disciplinary proceedings.[2] Smith tells us that Nace had an impressive background in chemistry, and quotes him in an interview in which he described the evidentiary rules on scientific witness testimony as “scientific evidence crap.”

Smith never describes the Daubert’s actual affirmative evidence in any detail, which one might expect in a sophisticated journalistic outlet. Instead, he described some of their expert witnesses, Shanna Swan, a reproductive epidemiologist, and Alan K. Done, “a former pediatrician from Wayne State University.” Smith is secretive about why Done was done in at Wayne State; and we learn nothing about the serious accusations of perjury on credentials by Done. Instead, Smith regales us with Done’s tsumish theory, which takes inconclusive bits of evidence, throws them together, and then declares causation that somehow eludes the rest of the scientific establishment.

Smith tells us that Swan was a rebuttal witness, who gave an opinion that the data did not rule out “the possibility Bendectin caused defects.” Legally and scientifically, Smith is derelict in failing to explain that the burden was on the party claiming causation, and that Swan’s efforts to manufacture doubt were beside the point. Merrell Dow did not have to rule out any possibility of causation; the plaintiffs had to establish causation. Nor does Smith delve into how Swan sought to reprise her performance in the silicone gel breast implant litigation, only to be booted by several judges as an expert witness. And then for a convincer, Smith sympathetically repeats plaintiffs’ lawyer Barry Nace’s hyperbolic claim that Bendectin manufacturer, Merrell Dow had been “financing scientific articles to get their way,” adding by way of emphasis, in his own voice:

“In some ways, here was the fake news of its time: If you lacked any compelling scientific support for your case, one way to undermine the credibility of your opponents was by calling their evidence ‘junk science’.”

Against Nace’s scatalogical Jackson Pollack approach, Smith is silent about another plaintiffs’ expert witness, William McBride, who was found guilty of scientific fraud.[3] Smith reports interviews of several well-known, well-respected evidence scholars. He dutifully report Professor Edward Cheng’s view that “the courts were right to dismiss the [Bendectin] plaintiffs’ claims.” Smith quotes Professor D. Michael Risinger that claims from both sides in Bendectin cases were exaggerated, and that the 1970s and 1980s saw an “unbridled expansion of self-anointed experts,” with “causation in toxic torts had been allowed to become extremely lax.” So a critical reader might wonder why someone like Professor Cheng, who has a doctorate in statistics, a law degree from Harvard, and teaches at Vanderbilt Law School, would vindicate the manufacturers’ position in the Bendectin litigation. Smith never attempts to reconcile his interviews of the law professors with the emotive comments of Barry Nace and Joyce Daubert.

Smith acknowledges that a reformulated version of Bendectin, known as  Diclegis, was approved by the Food and Drug Administration in the United States, in 2013, for treatment of  nausea and vomiting during pregnancy. Smith tells us that Joyce is not convinced the drug should be back on the market,” but really why would any reasonable person care about her view of the matter? The challenge by Nav Persaud, a Toronto physician, is cited, but Persaud’s challenge is to the claim of efficacy, not to the safety of the medication. Smith tells us that Jason Daubert “briefly mulled reopening his case when Diclegis, the updated version of Bendectin, was re-approved.” But how would the approval of Diclegis, on the strength of a full new drug application, somehow support his claim anew? And how would he “reopen” a claim that had been fully litigated in the 1990s, and well past any statute of limitations?

Is this straight reporting? I think not. It is manipulative and misleading.

Smith notes, without attribution, that some scholars condemn litigation, such as the cases involving Bendectin, as an illegitimate form of regulation of medications. In opposition, he appears to rely upon Elizabeth Chamblee Burch, a professor at the University of Georgia School of Law for the view that because the initial pivotal clinical trials for regulatory approvals take place in limited populations, litigation “serves as a stopgap for identifying rare adverse outcomes that could crop up when several hundreds of millions of people are exposed to those products over longer periods of time.” The problem with this view is that Smith ignores the whole process of pharmacovigilance, post-registration trials, and pharmaco-epidemiologic studies conducted after the licensing of a new medication. The suggested necessity of reliance upon the litigation system as an adjunct to regulatory approval is at best misplaced and tenuous.

Smith correctly explains that the Daubert standard is still resisted in criminal cases, where it could much improve the gatekeeping of forensic expert witness opinion. But while the author gets his knickers in a knot over wrongful convictions, he seems quite indifferent to wrongful judgments in civil action.

Perhaps the one positive aspect of this journalistic account of the Daubert case was that Jason Daubert, unlike his mother, was open minded about his role in transforming the law of scientific evidence. According to Smith, Jason Daubert did not see the case as having “not ruined his life.” Indeed, Jason seemed to approve the basic principle of the Daubert case, and the subsequent legislation that refined the admissibility standard: “Good science should be all that gets into the courts.”

[1] Peter Andrey Smith, “Where Science Enters the Courtroom, the Daubert Name Looms Large: Decades ago, two parents sued a drug company over their newborn’s deformity – and changed courtroom science forever,” Undark (Feb. 17, 2020).

[2]  Lawyer Disciplinary Board v. Nace, 753 S.E.2d 618, 621–22 (W. Va.) (per curiam), cert. denied, 134 S. Ct. 474 (2013).

[3] Neil Genzlinger, “William McBride, Who Warned About Thalidomide, Dies at 91,” N.Y. Times (July 15, 2018); Leigh Dayton, “Thalidomide hero found guilty of scientific fraud,” New Scientist (Feb. 27, 1993); G.F. Humphrey, “Scientific fraud: the McBride case,” 32 Med. Sci. Law 199 (1992); Andrew Skolnick, “Key Witness Against Morning Sickness Drug Faces Scientific Fraud Charges,” 263 J. Am. Med. Ass’n 1468 (1990).