Late Professor Berger’s Introduction to the Reference Manual on Scientific Evidence

In several posts, I have addressed isolated issues in Professor Margaret Berger’s introductory chapter to the third edition of the Reference Manual on Scientific Evidence (RMSE 3d).  Let me back up and address the bigger, more disturbing picture.

Professor Berger was a well-respected evidence scholar, who had written about Daubert issues in her lifetime.  See generally Edward K. Cheng, ” Introduction: Festschrift in Honor of Margaret A. Berger,” 75 Brooklyn L. Rev. 1057 (2010).  Along with Judge Jack Weinstein, she was the author of Weinstein’s Evidence and Cases and Materials on Evidence.  Berger was intellectually opposed to the Daubert enterprise.  See, e.g., Margaret A. Berger & Aaron D. Twerski, “Uncertainty and Informed Choice:  Unmasking Daubert,” 104 Mich. L.  Rev. 257 (2005).  This opposition is clearly reflected in the Berger’s chapter in the new edition of the RMSE 3d.

Over the course of several years, Berger organized and supervised a series of symposia, Science for Judges.  Berger’s symposia involved many respected authors as well as some highly partisan, pro-plaintiff scholars.  Berger also participated in some of the four so-called Coronado Conferences, which featured discussions, with subsequent publications, on expert witness issues.  Both Science for Judges and the Coronado Conferences were sponsored by SKAPP, the Project on Scientific Knowledge and Public Policy, an anti-Daubert advocacy group, headed up mostly by plaintiffs’ expert witnesses.

According to SKAPP‘s website, the organization enjoyed past support from the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation.  SKAPP has consistently misrepresented the funding source of its anti-Daubert organization.  What SKAPP hides is that this “fund” is nothing more than plaintiffs’ counsel’s walking-around money from MDL 926, which involved, ironically, claims for autoimmune disease allegedly caused by silicone gel breast implants.  This MDL collapsed after 1999, when court-appointed experts and then the Institute of Medicine declared that the scientific evidence did not support plaintiffs’ causal claims.  See Judge Jack B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation” 2009 Cardozo L. Rev. de novo 1, 14 (2009) (describing plaintiffs’ expert witnesses in silicone litigation as “charlatans”; “[t]he breast implant litigation was largely based on a litigation fraud. … Claims—supported by medical charlatans—that enormous damages to women’s systems resulted could not be supported.”)

Flush with silicone MDL “common benefits money,” plaintiffs’ counsel helped fund SKAPP, rather than returning the money to their clients.  See Ralph Klier v. Elf Atochem North America Inc., 2011 U.S. App. LEXIS 19650 (5th Cir. 2011) (holding that district court abused its discretion in distributing residual funds from class action over arsenic exposure to charities; directing that residual funds be distributed to class members with manifest personal injuries).  As with all common benefit funds in multi-district litigations, the fund in MDL 926 was established pursuant to a court order, but it was certainly not money from the federal courts; SKAPP’s funding was from plaintiffs’ lawyers, who had been rebuffed and refuted by science in the courtroom.  Some of those plaintiffs’ lawyers used their left-over “walking-around” money, laundered through SKAPP, to help sponsor anti-Daubert articles in several fora, including Berger’s Science for Judges symposia, and the Coronado ConferencesSeeSKAPP A LOT” (April 30, 2010).

Given the misleading propaganda from SKAPP about the sources of its funding, Professor Berger may well have been misled, along with other scholars who participated at SKAPP-funded events.  On the other hand, I would have hoped that these scholars were aware that the “Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Liability litigation,” was nothing more than plaintiffs’ counsels’ spending allowance for advancing their own litigation goals.

Back in 2000, Professor Berger wrote a similar introductory chapter on admissibility of expert witness testimony in the second edition of the RMSE.  The second edition’s chapter, however, was decidedly less partisan, with relatively neutral presentations and discussions of the leading Supreme Court and lower court decisions.  Berger’s opposition to judicial gatekeeping was subdued and in check, as befitted a neutral introduction in a volume published by the Federal Judicial Center.

The third edition of the RMSE features a very different introduction by Professor Berger.  The gloves are off, and so is any pretense at non-partisanship.

Berger, in her chapter in RSME 3d, provides a detailed discussion of Daubert, Joiner, Kumho Tire, and Weisgram, but remarkably, Berger offers virtually no discussion of the amendments to, and revisions of, Rule 702, in 2000, after she wrote the RSME 2d chapter.  The actual text of the Rule, which is now the operative, controlling legal language, is not set out in her RSME 3d chapter; nor does Berger present any of the discussion from the Advisory Committee notes on the scope and purpose of the 2000 revision.  Instead, Berger reports, and acquiesces in a loose practice, employed by some trial courts that continue to cite and to rely upon Daubert, or Circuit-level pre-2000 precedent, without mentioning the new Rule.  Later in the chapter, Berger does discuss a specific-causation decision by Judge Jack Weinstein, in In re Zyprexa, 2009 WL 1357236 (E.D.N.Y. May 12, 2009), where he excluded the expert witness.  A footnote makes clear that Judge Weinstein held the witness’s testimony failed the three prongs of the new Rule 702.  RMSE 3d at 24 & n. 64.  This discussion obscures as much as illustrates that the rule, as amended, is the operative language.  The chapter fails to note that Judge Weinstein’s correct practice of citing the actual Rule is correct as a matter of legal process.  Berger is not shy elsewhere about criticizing trial judges’ practices so her passivity in connection with the disregard of a statutory revision of Rule 702 is difficult to understand except as a way to dodge the mandates of the revised rule.

The second edition had a lengthy discussion of Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.), cert. denied, 519 U.S. 819 (1996), where Judge Posner famously declared “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”  See Margaret A. Berger, “The Supreme Court’s Trilogy on the Admissibility of Expert Testimony,” RMSE 2d 9, 24 (2000).  In the RMSE 3d, Rosen is gone, and now we have the philosophy of Milward, with its radical leveling of evidence and expert witness opinion to replace Rosen.  Remarkably, the cite to Milward had to have been added after Professor Berger’s death, but she no doubt would have approved.  There are no counterbalancing citations to important decisions, reversing trial judges for inadequate gatekeeping, such as Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010), cert. den., ___ U.S. ___ (2011), which were decided before Professor Berger’s death.

As an academic scholar and a citizen, Berger was entitled to her views about Daubert.  In her lifetime, she wrote and spoke about those views, sincerely and passionately.  Her writings and lectures helped provoke an important discussion on the role of science in the courtroom.  Her selection, however, to introduce a National Research Council volume on science in the courtroom seems dubious given her partisan views.  One could only imagine the hue and cry if, say, Peter Huber (of Galileo’s Revenge fame) were selected to write the volume’s introduction to the law of expert witness admissibility, or if tobacco companies had funded Science for Judges seminars, with money laundered through not-for-profit organizations.

Libertine View of Expert Witness Admissibility

Berger complains that the Federal Rules of Evidence were intended to be interpreted liberally in favor of the admissibility of evidence.  RMSE 3d at 36 (“the preference for admissibility contained both in the Federal Rules of Evidence and in Daubert itself”).  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 their 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.”

Rule 102 (“Purpose and Construction”).

Berger does not, nor can she, explain how a “let it all in” approach helps to secure fairness, eliminates unjustifiable expense and time of trial, or leads to just outcomes.  This 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.

In any event, we should resist the mechanical, outcome-determinative interpretation of “liberal.”  Bertrand Russell presented a much more compelling understanding of what it means to have a liberal outlook in human enterprises:

“The essence of the liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment. This is the way opinions are held in science, as opposed to the way in which they are held in theology.”

Bertrand Russell, “Philosophy and Politics,” in Unpopular Essays 15 (N.Y. 1950)(emphasis in original).  Lord Russell’s admonition counsels greater not less skepticism in the liberal outlook on opinions that lie at the fringes, and beyond the fringes, of human knowledge.

Now, it is true that the Supreme Court, back in 1993, spoke of the “Rule’s basic standard of relevance … is a liberal one.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587, 588 (1993).  Similarly, the Court spoke of the Rules’ general “liberal thrust” in relaxing barriers to opinion testimony.  But in adopting an epistemic standard, rather than a nose-counting, sociological standard of “general acceptance,” the Court did, in fact, liberalize the rules of admissibility for expert witness opinions.  Implicit in Professor Berger’s critique is an unhappiness with both the liberal epistemic and the conservative general-acceptance approach.  The principal remaining option apparently would be Ferebee‘s libertine, “let it all in” approach, which was rejected by the Supreme Court and Congress.

Serious Omissions in Berger’s “Admissibility of Expert Testimony”

A. Short Shrifting The Rules

I have previously written about the complete omission of Rule 703 and its role in ensuring the trustworthiness of expert witness opinion.  See New Reference Manual on Scientific Evidence Short Shrifts Rule 703 (Oct. 16, 2011).  And above, I have explored how Professor Berger studiously ignored the amended Rule 702 itself, in order to hold on to inconsistent dicta in cases that predated the statutory amendment.

The Federal Rules of Evidence are statutory law.  In 1972, the Rules were adopted by order of the Supreme Court, and were transmitted by the Chief Justice to Congress.  By law, the proposed rules “shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.”  Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9.  The Supreme Court has made clear that the Federal Rules of Evidence are legislatively enacted and that the Court must interpret them as it would any statute.  See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993) (courts must “interpret the legislatively enacted Federal Rules of Evidence as [they] would any statute”); United States v. Salerno, 505 U.S. 317, 322 (1992) (refusing to ignore the plain language of Rule 802 and 803; “To respect [the legislature’s] determination, we must enforce the words that it enacted.”); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988).

One of the key lessons of Daubert itself was that the Frye rule did not survive the 1972 enactment of the Federal Rules of Evidence, given the lack of reference to the Frye rule in chapter VII of the rules.  The Rules trump precedent.  See David Bernstein, “Courts Refusing to Apply Federal Rule of Evidence 702” (May 6, 2006) (arguing that the language of the 2000 amended Rule 702 trumps the various dicta scattered about the Daubert quartet as a matter of legal process).  But see Glen Weissenberger, “The Proper Interpretation of the Federal Rules of Evidence: Insights from Article VI,” 30 Cardozo L. Rev. 4 (2009) (arguing, admittedly contrary to Supreme Court precedent and the majority of evidence scholars, that the Federal Rules of Evidence are something more akin to a codification of common law, and that the usual canons of statutory interpretation do not fully apply).

B.  Ignoring the Hierarchy of Evidence

Professor Berger not only omits consideration of the reasonableness of relying upon individual scientific studies, she fails to give any consideration to a hierarchy of evidence, which distinguishes between and among study designs.  To some extent, the RSME 3d chapters on epidemiology and on medical testimony remedy this failure, but Berger’s chapter is thus badly out of synch with key chapters in the RMSE 3d, as well as with how science evaluates claims of causality and reaches conclusions of causality (or not) from multiple studies of varying designs and quality.  See RSME 3d, at 561 (noting that certain study designs, such as cross-sectional and ecological studies, are frequently unsuitable for supporting inferences of causal association); id. at 723-34 (describing the hierarchy of evidence in which some studies may raise interesting questions without offering much in the way of answering those questions).  The result of Berger’s treatment is that evidence is “leveled,” allowing litigants to escape meaningful gatekeeping as long as they can point to some study, regardless of study invalidity or poor quality.

Berger’s Concerns About Credibility

A. The Credibility of Theories

Berger worries that the 702 gatekeeping process leads to courts’ making credibility determinations of the expert witnesses and their scientific theories.  FMSE 3d at 36.  Surely federal judges have at least the ability to distinguish analytically between credibility of witnesses and the scientific opinions that are proffered.  As for the credibility of experts’ theories, I confess it is difficult to understand what Berger may have had in mind other than the actual requirements of Rule 702 itself.  If the proffered testimony is not based upon:

1. sufficient facts or data,

2. the product of reliable principles and methods, and

3. a reliable application of principles and methods to the facts of the case

then, no doubt, the testimony will be unreliable and incredible. The clear lesson of expert witness litigation, and of science in the law generally, is that qualified, and apparently credible expert witnesses, sometimes advance opinions and conclusions that fail one or more of the requirements of Rule 702.  Berger seems to have conflated reliability and credibility as a way of waving judges off any searching inquiry into the former.

B. The Credibility of Defense Expert Witnesses

Without any substantial support in case law or in the Rules, Professor Berger posits a concern over whether courts should permit a broad inquiry into the defense expert witnesses’ relationships with the defendant.  RMSE 3d at 21-22.  Berger worries that defendants will support their Daubert challenges with testimony from academics from “highly respected academic institution[s],” which likely receive donations and research grants from private corporations.

The posited concern is curious because it assumes that the “Daubert” challenge is to the plaintiff’s expert witness.  Accepting the assumption, why should not the concern be over whether the plaintiffs’ expert witnesses are compromised by their bias, whether financial or positional?  Berger’s assumption ignores the fact that the credibility and qualifications of expert witnesses are generally not at issue in a challenge to the reliability of proffered opinion testimony.

Berger’s entire discussion of credibility is a rather fanciful and far-fetched way of injecting credibility into Rule 702 determinations as a way to argue that such determinations must be left for the ultimate trier of fact — the jury — charged with resolving credibility issues.

Berger’s discussion is itself incredibly lopsided and biased attack on defendants’ expert witnesses. Her discussion is also beside the point of the Rule 702 and 703 evidentiary issues.  Courts should be focused on the reasonableness of the challenged expert witness’s reliance upon facts and data, and whether the witness has used the methods of science in a reliable way to reach his or her opinions.  Furthermore, there is a stark asymmetry between plaintiffs and defendants, and their expert witnesses, with respect to litigation bias.  Defense counsel and defense expert witnesses (assuming that they are financially compensated) stand to lose by having courts exclude plaintiffs’ expert witnesses and dismiss plaintiffs’ claims.  Plaintiffs’ expert witnesses and plaintiffs’ counsel, collectively, the litigation industry, have everything to gain and nothing to lose by abrogating the gatekeeping process.  Professor Berger’s introduction to expert witness admissibility in RSME 3d, wittingly or not, attempts to aid that litigation industry.

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