by
Robert Ambrogi - Editor
BullsEye Newsletter: December 2008
It is that time of year when pundits, critics and reviewers compile
their Top 10 lists of the year's best and worst. This year, we weigh
in with our picks of the 10 most important expert witness cases of
2008.
After reading
our list, you may not agree with all our choices. Let us know what you think.
Share your own top cases and add your comments in our feedback section lower
on this page. Now, without further ado, our Top 10.
1. Experts for e-discovery. A ruling on an evidentiary
issue may open the floodgates to routinely requiring expert witnesses
in e-discovery disputes. It came in the federal prosecution of a
former government employee, after the judge ordered the government
to conduct a thorough search of electronic files for relevant information.
After the government completed the search, the defendant objected,
arguing that the search terms the government used were inadequate
to produce the appropriate information.
U.S. Magistrate-Judge John M. Facciola ruled that the issue is "beyond
the ken of a layman" and could be resolved only through a Daubert-style
evidentiary hearing aided by expert testimony.
"Whether search terms or 'keywords' will yield the information sought
is a complicated question involving the interplay, at least, of the sciences
of computer technology, statistics and linguistics," he wrote. "Given
this complexity, for lawyers and judges to dare opine that a certain search
term or terms would be more likely to produce information than the terms that
were used is truly to go where angels fear to tread."
The case is U.S. v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C.
2008).
2.
DNA expert put to the test. Is it OK for an expert to
testify about DNA evidence based on a peer review of the DNA tests,
without actually conducting the tests herself? The 8th U.S. Circuit
Court of Appeals said yes. Such testimony neither violates the
Confrontation Clause nor constitutes hearsay, it ruled.
The decision
takes on even greater significance in light of a similar case pending before
the Supreme Court. On Nov. 10, 2008, the Supreme Court heard arguments in Melendez-Diaz
v. Massachusetts (No. 07-591). The issue there is whether a state forensic
analyst's laboratory report prepared for use in a criminal prosecution constitutes "testimonial" evidence
under the Confrontation Clause.
The case
is United States v. Richardson, 537 F.3d 951 (8th Cir. 2008).
3.
An expert's change of mind. Can an expert be
sued for changing his mind? That was the question raised by the 10th
U.S. Circuit Court of Appeals when it allowed a lawsuit to go forward
against a doctor whose change of heart on the eve of trial contributed
to dismissal of a medical malpractice claim.
The opinion never decides the question of expert immunity, instead
remanding the case to the trial court to consider the issue. But
a strong dissent says that sets a dangerous precedent.
"Allowing this claim to march along sends the message to would-be expert
witnesses: Be wary – very wary – of changing your mind, even when
doing so might be consistent with, or compelled by, the standards of your profession," writes
Circuit Judge Neil Gorsuch in disagreeing with his colleagues on the three-judge
panel.
The case is Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. March
4, 2008).
4.
No Daubert hearing necessary. In a complex antitrust
class action, the 6th U.S. Circuit Court of Appeals ruled that
the trial court did not abuse its discretion when it allowed an
expert to testify without first conducting a Daubert hearing.
The court
noted that the trial judge had "spent a substantial amount of time and
effort reviewing the parties' voluminous filings relative to the admissibility – or
inadmissibility – of [the expert's] testimony pursuant to the applicable
standards set forth in Daubert."
A
district court is not required to conduct an evidentiary hearing to qualify
an expert witness, it said. "The record on the expert testimony was extensive,
and the Daubert issue was fully briefed by the parties."
The case is In re Scrap Metal Antitrust Litigation, 527
F.3d 517 (6th Cir. 2008).
5.
Software savvy not required. Must an expert who uses software
understand how it works? The question arose in a case in which
a forensics expert used proprietary software to conduct DNA analysis.
He had used the software for years but could not explain its underlying
code.
The
expert's inability to explain the details of how the software worked,
the defendant argued, meant that prosecutors had failed to provide
a sufficient foundation for admission of the DNA evidence. The
Connecticut Supreme Court disagreed.
It
applied a three-part test to find that the software was widely
accepted among DNA experts, the expert was well qualified to operate
it, and the test results were extensively validated and independently
verified.
The case
is State v. Foreman, 288 Conn. 684 (Conn. 2008).
6. No scholarly
literature. In a criminal case,
the defense argued that an FBI agent should not have been allowed
to testify about the rifling of gun barrels because there is no scholarly
literature on the subject. The 7th U.S. Circuit Court of Appeals
ruled that publication is not a prerequisite for expert testimony
and that the agent's reliance on the FBI's rifling database was sufficient.
"District judges may admit testimony resting on 'scientific,
technical or otherwise specialized knowledge' that will assist the
trier of fact. … Testimony
based on the FBI’s rifling database may not have been 'scientific', but
it was both 'technical' and 'specialized'. Rule 702 does not condition admissibility
on the state of the published literature, or a complete and flaw-free set of
data."
The case is United States v. Mikos, 539 F.3d 706 (7th Cir.
2008).
7. A Qwest for justice. Exclusion of expert
testimony led the 10th U.S. Circuit Court of Appeals to reverse a
Denver jury's conviction of former Qwest CEO Joseph Nacchio on 19
counts of insider trading. The three-member appellate panel found
that the trial judge had wrongly excluded an expert for failing to
disclose the methodology underlying his opinions.
The trial judge may have confused the rules of civil and criminal
procedure, the panel suggested. While the former require an expert
to prepare and disclose a thorough report, the latter require only
a written summary of any testimony and a description of the witness's
opinions. The criminal rules do not require extensive discussion
of methodology, so the court's exclusion of the expert on that basis
was an abuse of discretion that required a new trial.
An en banc panel of the 10th Circuit is currently reviewing
the decision. It heard arguments in September but as of this writing
has not issued an opinion.
The case is U.S. v. Nacchio, 519 F.3d 1140 (10th Cir. 2008).
8.
Capitalizing on complexity. Misuse of expert witnesses
in complex patent litigation contributed to a judge's decision
to impose more than $10 million in sanctions against Medtronic
Sofamor Danek Inc.
U.S. District
Senior Judge Edward F. Harrington ordered the sanctions after concluding that
Medtronic had improperly resisted the construction of the patent claims mandated
by the Federal Circuit Court of Appeals earlier in the case. The company's
entire defense, he wrote, was "based on an attempt to obscure, evade,
or minimize" the circuit's construction.
Medtronic's strategy was underscored by its reliance on two expert
witnesses who each presented testimony contrary to the Federal Circuit's
mandate. The defendants "clearly sought to take advantage of
the technical and legal complexities inherent in this case," Judge
Harrington wrote.
The case is Depuy Spine Inc. v. Medtronic Sofamor Danek Inc.,
Civil Action No. 01-10165-EFH (D. Mass. Feb. 25, 2008).
9. Business records bite back. Wal-Mart, seeking to block
certification of a class action against it for unpaid wages, argued that the
plaintiffs' expert's testimony was inadmissible because it was based solely
on his review of Wal-Mart's own, unreliable business records. The Massachusetts
Supreme Judicial Court disagreed, allowing the class action to go forward on
behalf of some 67,000 current and former employees of the retail giant.
"In excluding even the portion of [the expert's] report and testimony
that consisted of counting data found in Wal-Mart's own business records, the
motion judge acted not on the basis of any challenge to [the expert's] methodology,
but essentially on his view that the records themselves were insufficiently
reliable," the SJC explained.
"This was error. Business records have a special place in our
law of evidence. By statute, business records are admissible even when they
would otherwise be inadmissible 'hearsay or self-serving' if 'the entry, writing
or record was made in good faith in the regular course of business and before
the beginning of the civil or criminal proceeding."
The case is Salvas v. Wal-Mart Stores, 452 Mass. 337 (2008).
10.
Statutory limits unconstitutional. What happens
when a tort reform statute conflicts with court rules regarding the
qualifications of expert witnesses? That was the case in Arizona,
when the legislature enacted a statute setting strict requirements
on experts in medical malpractice cases.
The
Arizona Court of Appeals ruled that the statute violated the constitutional
separation of powers. Under the state constitution, the power to
set rules governing court procedures belongs to the courts, it said.
"[A]
witness qualified under Rule 702 may nevertheless be excluded by the statute's
strict practice or teaching requirements," the court said. "The statute
is therefore in direct conflict with Rule 702."
The
case is Seisinger v. Siebel, 2008 WL 2426811 (Ariz. App. Div.
1 2008).
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