Professor David Faigman’s recent article, “The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science,” 102 U.C. Davis Law Rev. 101 (2013), notes that the paper grew out of informal remarks given at a recent symposium. A little Googling quickly turned up the Symposium Site on the University of California, Davis, website. Like Professor Faigman’s paper, this symposium is a valuable contribution to the art and learning of what Rule 702 hearings should, and should not, be.
The symposium, The Daubert Hearing — From All the Critical Perspectives (March 2, 2012) described itself:
Pretrial practice has long been the center of gravity in modern litigation. The vast majority of cases never go to trial. Instead, after pretrial discovery and in limine motions, the cases settle. The Supreme Court’s celebrated 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, has solidified that trend. In Daubert, the Court abandoned the traditional general acceptance standard for the admissibility of scientific testimony and announced a new empirical validation test. Throughout the country counsel began basing pretrial in limine motions on Daubert to target opposition expert testimony. In criminal cases, defense counsel started challenging the prosecution’s forensic evidence identifying the accused as the perpetrator. In civil tort cases, defense counsel filed motions attacking the plaintiff’s evidence on general causation. When counsel won these motions, the opposition lacked sufficient evidence to go to trial. The hearing on the pretrial Daubert motion became the centerpiece of the litigation.
This symposium will begin with a demonstration Daubert hearing. After the demonstration, all the participants will deliver remarks, giving their perspective on the law and tactics of Daubert hearings. In addition, there will be expert academic commentary by Professor David Faigman of U.C. Hastings School of Law, the lead author of the popular treatise, MODERN SCIENTIFIC EVIDENCE.
The symposium featured a list of distinguished speakers:
The symposium’s hypothetical is available on line, and the symposium itself, which was video recorded, is available for viewing at the UC Davis website.
The scientists who role-played as expert witnesses, Drs. Toscano and Greenland, were obviously pushed to articulate certain positions that they did not personally subscribe to. Still, their true colors managed to show, and to influence the mock hearing. For instance, Dr. Toscano stated several times that causation is very difficult to prove, and in so stating, he managed to convey the impression that he had a personal, subjective higher bar for causal claims than the rest of the scientific community. This approach is a common rookie mistake for defense counsel and their expert witnesses, and it should be avoided. There are plenty of good examples of causal relationship that have been established with epidemiology, and the defense expert should be prepared to identify them, and to explain why in some cases, the causal relationships required more exacting evidence. The other glaring error in the defense presentation was that the exact methodological error was not made clear through Dr. Toscano’s testimony although the defense lawyer, Mr. Smith, explored the gaps and leaps of faith in his cross-examination of Dr. Greenland. In this setting, the defense expert witness’s focus is on the methodological inadequacies of the plaintiffs’ witness, not on why he rejected the causal claim.
Dr. Greenland was his inimitable self, even going so far as to talk into his magic marker under the impression that it was a microphone. Who knows; perhaps it was, but it also wrote on the white board. More telling was that Dr. Greenland embraced a probabilistic conception of causation, which he explained was essentially a bet on the correct result. This metaphor seems fatally defective. A bet is a bet, but you cannot call the bet until you have actual evidence of who won. It may be lovely that Dr. Greenland, or some other expert witness, is willing to place the bet, perhaps with odds, but this metaphor fails to take causal inference out of the subjective realm. Along with his betting metaphor, Greenland emphasized that the causation decision is driven by a cost-benefit analysis of Type I and II errors. The slippery slide into substituting the precautionary principle for causal analysis was obvious.
On the plaintiffs’ side, Bert Black, an apostate defense lawyer, did a very good job of portraying the shenanigans used by plaintiffs’ lawyers to avoid and evade gatekeeping. Statistical significance is not necessary; epidemiology is not necessary; Bradford Hill factors are not necessary; therefore, I can show causation without much of anything. Black illustrated nicely how the focus is redirected to other cases, such as when someone from a drug company wrote an improvident article that concludes causation from case reports alone. Or cases involving signature diseases, or acute outbreaks, for which causal relations were discerned and embraced by scientists on the basis of very informal epidemiologic studies or even case series (which someone characterized as anecdata).
Former federal judge James Rosenbaum presided magisterially, and cowardly denied the cross-motion Rule 702 challenges. In his comments after the mock, Judge Rosenbaum revealed his conception of the gatekeeping process as essentially a determination that the witness is competent. Of course this is not the law, and much more is required than to determine that the witness is minimally qualified. Professor Faigman respectfully chastised the judge for ignoring the statute and the caselaw.
One of the more interesting dialogues in the discussions after the mock centered on the harm to an expert witness’s reputational interests from the gatekeeping process. To be sure there can be such harm, but as Professional Faigman pointed out, the potential for such harm cannot intimidate judges from ruling on the facts and law before them. I believe though that expert witnesses should be aware of the potential for this sort of harm from their testimonial adventures, and should require certain contractual assurances from the lawyers who engage them. For instance, expert witnesses should insist upon whether such challenges are possible in the jurisdiction, what the standards are, and whether they will have an opportunity to speak to the challenges. The expert witnesses should insist upon prompt notification of all such challenges, and upon prompt receipt of all briefs and affidavits that challenge the validity or reliability of their opinions, as well as an opportunity to be heard on their responses.
