Admissibility Of Expert Testimony Research Articles

Verdict reversed on the basis of disallowed pharmacology testimony

Causation is a necessary element of a health care malpractice case. The plaintiff must show that the defendant’s error caused harm to the patient. The judge decides what testimony may be presented to the jury, and the jury makes the ultimate decision as to causation, based on testimony presented. However, on appeal, a judge’s decision about the admissibility of expert testimony is subject to challenge and reversal. A recent verdict against a hospital and pharmacy was reversed when the appellate court ruled that a pharmacologist should have been allowed to testify on behalf of the defense. An 82-year-old patient with a history of numerous cardiovascular disorders was admitted to the defendant hospital with a diagnosis of paroxysmal atrial fibrillation. His physician ordered oral amiodarone to be given as a loading dose in three separate administrations of 400 mg spread throughout the day. The patient was discharged with a prescription that directed: “1 tablet(s) oral (by mouth) as directed. 3 tablets a day for three days. 2 tablets a day for one week. 1 tablet daily thereafter.” The defendant pharmacy processed the prescription, placing on the medication vial a label that said: “Take 3 tablets by mouth for 3 days, 2 tablets once daily for 1 week, then 1 tablet once daily thereafter.” To avoid legal liability, whether due to a jury verdict or an out-of-court settlement, pharmacists need to ensure that patients understand the directions for using their medications. On the day of his discharge, the patient’s wife gave the patient three 400-mg tablets of amiodarone at 10:00 pm. The patient woke up at 2:00 am and slumped to the floor. He was again admitted to the hospital, and he suffered a stroke. He died just over a year later. The patient’s estate sued the hospital and the prescribing physician for “failing to specify that the amiodarone should have been taken in three separate doses throughout the day.” The estate sued the pharmacy and pharmacist for “negligently filling the prescription and indicating on the medication bottle that the amiodarone should be taken ‘once daily.’” A jury heard the evidence and submitted its verdict: “We, the jury, have concluded that the incorrect dose of amiodarone more likely than not did not cause [the patient’s] stroke; however, it more likely than not did cause harm.” The jury awarded just under $1 million in damages, assigning 75% fault to the hospital and physician and 25% fault to the pharmacy and pharmacist. The hospital appealed the verdict. The pharmacy settled out of court. The key issue on appeal was a ruling by the trial judge to exclude testimony of a pharmacologist who was offered as an expert by the defense. The judge concluded that the pharmacologist “did not demonstrate the requisite knowledge, experience, and training with the drug amiodarone.” The appellate court disagreed. The pharmacologist had a PhD in toxicology and pharmacology, had served as chair of the department of pharmacology and experimental therapeutics at a nearby medical school for more than a decade, and had published approximately 60 peer-reviewed journal articles. The court concluded that the trial court had “improperly conditioned [the pharmacologist’s] qualification upon specialization with the specific drug amiodarone.” As the pharmacologist was the only expert qualified to offer detailed testimony on the effects of amiodarone on the body, the exclusion of this relevant testimony from the jury’s consideration was prejudicial to the defense. The judgment of the jury was vacated, and the case was remanded to the lower court for a retrial. This case may ultimately be won by the defense. But the pharmacy has settled, and that will not be reversed. Lengthy and complicated directions are difficult to convey in a prescription label. To avoid legal liability, whether due to a jury verdict or an out-of-court settlement, pharmacists need to ensure that patients understand the directions for using their medications. A prescriber’s inclusion of the words “as directed” in a prescription provides no assurance that any directions have actually been given to the patient.

Mirror, mirror on the wall, who’s the least biased of them all? Dangers and potential solutions regarding bias in forensic psychological evaluations

When psychological evaluators are asked to provide their expert opinions in legal proceedings, they are expected to do so in an objective and unbiased way. The statutory requirements regarding the admissibility of expert testimony in many countries often cite objectivity and reliability as standards. However, as is true in many realms of human decision-making, the field of forensic psychological assessment is fraught with bias. In this article, we discuss several lines of research that have investigated bias in forensic psychological evaluations. We also discuss emerging lines of research involving methods to measure and reduce bias. We conclude with a call for structured self-monitoring as an important strategy for forensic evaluators to mitigate bias in their work.

The Rhetoric of Expert Testimony Standards: Why the War Between Frye and Daubert Still Smolders

One only need look as far as Florida to see why different standards for the admissibility of expert testimony still exist in the states. Unlike other Federal Rules of Evidence that have been more or less uniformly adopted by states, the expert testimony standard of Rule 702 involving the admissibility of expert testimony continues to meet resistance. This essay highlights the importance of rhetoric in framing the debate. Specifically, the labels given each test have been used to influence and shape views about their propriety. Instead of the rhetoric, the question that should be asked is supplied by design thinking analysis, what are the rules for screening the admissibility of expert testimony at trial hired to do?

Why the Ninth Circuit's <I>Antonick v. Electronic Arts</I> Case Is an Ideal Vehicle for Addressing the Circuit Split Over Admissibility of Expert Testimony in Software Copyright Cases

This paper contends that unless the Supreme Court grants certiorari in Antonick v. Electronic Arts, the Ninth Circuit’s bar on admissibility of expert testimony in software copyright cases will result in absurd trial procedures in the most significant region for software development and litigation. In a shocking departure from the decisions of every other circuit that has confronted software copyright infringement litigation, the Ninth Circuit reaffirmed and applied an anachronistic bar on expert testimony—originating in Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)—to all copyright disputes, including those involving highly technical works. As the Oracle v. Google and Cisco v. Arista Networks litigations demonstrate, intellectual property disputes relating to computer software often involve both patent and copyright infringement claims. Therefore, the Ninth Circuit’s Antonick ruling creates a case management nightmare. Patent case management appropriately allows jurors to learn the technology with the aid of expert witnesses. But under the Ninth Circuit’s Antonick holding, the district judge will need to empanel separate juries to hear the copyright issues lest they be “tainted” by hearing competent testimony from qualified experts about the contents of the computer code. Software intellectual property litigation will only increase as the digital revolution unfolds. The Antonick case provides an ideal vehicle to correct the Ninth Circuit’s “nutty,” anachronistic, and illogical interpretation of copyright law.

The Causal Conundrum: Examining the Medical-Legal Disconnect in Toxic Tort Cases from a Cultural Perspective or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail

The literature regarding the law-epidemiologic disconnect in causal proof is vast, non-conclusive and partisan. Some favor weakening the plaintiff’s burden in cases of ambiguous causation (when we don’t have enough objective scientific proof), even if bastardizing scientific requisites is necessary. Scientific purists, of course, object. Some suggest crafting novel legal causes of action, such as proportionate liability. Legal purists reject this approach. The conflict has been raging for decades and we are no closer to resolving the issue than when it was first raised some thirty years ago. This research takes a novel approach at resolving the dilemma, trying to understand the divide from a cultural or “poetics” perspective before even attempting to reconcile the disconnect. After discussing five conflicting decisions reaching contrary scientific conclusions regarding ‘specific’ and ‘general’ causation, and different legal resolutions regarding admissibility of expert testimony, I set forth a detailed discussion of the elements of ‘poetics,’ a method of examining how meanings get mangled across the communication-divide. Using this methodology I examine the cultural and linguistic dissonance of tort law and science. Then, with these tools in hand, I visit the poetics of law, epidemiology and medicine, only to discover not only a “poetic failure” between the three disciplines, but internal discord within the field of epidemiology itself. Exposing faults within the foundational underpinnings of epidemiology highlights difficulties faced by the field, which, when incorporated into legal discourse, compromises legal outcomes. Once the flaws were exposed, I could propose options for legally valid and scientifically reliable resolution. However, not until courts appreciate the inherent discord within epidemiology itself, recognizing resultant limitations in addressing multi-causation, both scientifically and legally, will we reach a point where far-reaching resolution is even on the event-horizon, and we are doomed to generating ever-conflicting opinions.

Expert Witness Testimony: Fed.R.Evid. 702-705 Primer; Hypothetical Question Discretionary Use

Expert Witness Testimony: Fed.R.Evid. 702-705 Primer; Hypothetical Question Discretionary Use

Historical, current, and legal bases for forensic speaker identification

It is of great interest to the legal system to identify individuals by their voice. Controversy in this area has continued for nearly seven decades with states divided with regard to the merits and standards used for forensic voice identification. Forensic speaker identification and admissibility of expert testimony has always been questionable, and is meeting more legal and scientific criticism. A number of methodologies have evolved that provide different approaches to speaker identification. These methods will be contrasted with a systematic review. In addition, the legal qualifications to testify as an expert witness in state or Federal courts—regardless of specialty, including in civil or criminal cases have evolved since the landmark 1923 Frye case, as well as the more sweeping 1993 Daubert case, and continue to evolve. This presentation discusses the history of the qualifications, an overview of different jurisdictional requirements, and the legal requirements of a speaker identification voice expert. The enigma of speaker identification for use in forensic applications will be illustrated by utilizing actual cases applying various methods of speaker identification or elimination.

Adversarial bias, litigation, and the Daubert test: An economic approach

The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client–expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.

Adversarial Bias, Litigation, and the Daubert Test: An Economic Approach

The last few decades have seen a dramatic shift in the admissibility of expert testimony in American courtrooms from a laissez-faire approach to a strict standard for admissibility, often called the Daubert test. The implicit rationale behind such a stringent standard for admissibility is the trier of fact's vulnerability to adversarial bias, which many legal scholars and practitioners assume to be rampant. Employing a standard litigation model in the literature, I demonstrate that client-expert relationships may not always exhibit adversarial bias and that a litigant may voluntarily present neutral expert testimony under certain situations. I also show that a litigant is more likely to deploy hired guns if the litigation environment is more favorable to his cause. In particular, the burden of proof assignment and the court's prior belief are shown to influence adversarial bias.

Psychological expert witness testimony and judicial decision making trends

Despite the establishment of the Daubert standard in 1993, the evidentiary criteria are rarely used as a basis for admissibility of expert witness testimony in the behavioral sciences. Ever since the promulgation of Frye and the Federal Rules of Evidence, controversy has surrounded the admissibility of expert testimony in courtrooms. There appears to be no existing uniform application of standards governing the admissibility of psychological expert witness testimony. Therefore, it is essential for the psycho-legal communities to explore judicial decision-making trends regarding psychological expert witness evidence. In this current research, psychological expert witness testimony and judicial decision-making will be explored. In preliminary examination, 97 criminal and civil case summaries from the LexisNexis Academic Database involved issues of admissibility. Analyses conducted by eight trained and paired coders revealed that reliability and assistance to the trier of fact were the most often cited reasons for admissibility in courts. Consistent with prior studies, it was also found that the most applied standards for admissibility of psychological evidence were the Federal Rules of Evidence. Interestingly, while the Daubert scientific criteria for admission of scientific testimony were mentioned, they were rarely utilized. A secondary analysis of 167 civil and criminal appellate cases indicated that the reliability of testimony (18% of all cases), ability to assist the trier of fact (17%), the expert witness' qualifications (17%), and the relevance of the testimony (16%) were the most commonly cited reasons for determining admissibility. A tertiary qualitative analysis focusing on these four categories then revealed eight major trends in admissibility of psychological expert evidence.

Evidentiary Reliability, Valuation Standards, and Rules of Thumb

The Daubert standard of evidentiary reliability codified in Federal Rule of Evidence 702 defines the admissibility of expert testimony based on the following:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Reflections on Daubert: A Look Back at the Supreme Court’s Decision

The Daubert Case Daubert, a civil case, hinged on the validity of expert opinion on the scientific methodology used to determine the alleged causal link between an anti-nausea drug, Bendectin, and fetal birth defects. A key issue before the Court was whether the socalled “Frye test,” which emerged from Frye v. United States (1923), was the appropriate means for determining the admissibility of expert testimony or whether the Federal Rules of Evidence enacted in 1975 superseded Frye.

Daubert, Frye and DTI: Hijacking the Right to Trial by Jury

This article is a response to a number of recent articles by commentators such as Wortzel (2013), Meltzer and colleagues (2013), and Wortzel, Tsiouris, and Filippi (2014) that seek to restrict the admissibility of diffusion tensor imaging (DTI) in court cases where an injured plaintiff has suffered a mild traumatic brain injury. The legal question governing the admissibility of expert testimony in these cases is that they misframe the issue of whether DTI technology has gained general acceptance as a diagnostic tool for single incidents, such as when they make a “plea for healthy skepticism regarding the value of [DTI], especially given the nature of [its] frequently visually spectacular impact on judges and jurors” (Wortzel et al. 2014, 9). This article offers a brief overview of DTI technology and its capabilities; summarizes the legal standards governing admissibility of such evidence and the position utilized by opponents of DTI to prevent admissibility; discusses events that transpired at an Emory conference seeking to develop some expert consensus around these issues; and concludes with the following: that when the question of admissibility is viewed through the proper lens, district courts should reach the conclusion that DTI has gained sufficient acceptance to be admitted and that the problems raised by its opponents are more properly handled by way of vigorous cross examination, as opposed to the outright exclusion recommended by some neuroradiologists.

Predicting and postdicting eyewitness accuracy and confidence

A primary consideration regarding the admissibility of expert testimony in criminal trials is whether particular evidentiary issues are intuitively understood by jurors. Experiment 1 assessed the eyewitness identification accuracy and confidence of 287 retail store clerks, half of whom knew, while interacting with the target, that they would later be tested on their ability to identify that person. Two weeks later, each clerk/witness was tested on both a target absent and a target present lineup. In Experiment 2, 32 undergraduate students were given a detailed description of Experiment 1 and asked to postdict the clerks’ accuracy and confidence. Although individual students often erred in their absolute estimates, their postdictions were sensitive to the effects of the warning and lineup manipulations; on average their estimates largely approximated the direction and magnitude of the effects observed in the clerks’ data.

Risk Assessment in the Law: Legal Admissibility, Scientific Validity, and Some Disparities between Research and Practice

Risk assessment expert testimony remains an area of considerable concern within the U.S. legal system. Historically, controversy has surrounded the constitutionality of such testimony, while more recently, following the adoption of new evidentiary standards that focus on scientific validity, the admissibility of expert testimony has received greater scrutiny. Based on examples from recent appellate court cases involving sexual violent predator (SVP) hearings, we highlight difficulties that courts continue to face in evaluating this complex expert testimony. In each instance, we point to specific problems in courts' reasoning that lead it to admit expert testimony of questionable scientific validity. We conclude by offering suggestions for how courts might more effectively evaluate the scientific validity of risk expert testimony and how mental health professionals might better communicate their expertise to the courts.

Due Process and the Admission of Expert Evidence on Recovered Memory in Historic Child Sexual Abuse Cases: Lessons from America

This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.

Expert Evidence on the Reliability of Eyewitness Identification—Some Observations on the Justifications for Exclusion: Gage v HM Advocate

In Gage v HM Advocate, the Appeal Court of the High Court of Justiciary in Scotland considered the admissibility of expert testimony concerning the reliability of eyewitness identification. It concluded that such evidence was inadmissible for the following reasons: (i) the trial provides adequate safeguards, (ii) the factors that affect the reliability of eyewitness identification are matters within the common knowledge and experience of the jury, and; (iii) the reception of such evidence is likely to make the jury unduly sceptical of eyewitness identification evidence generally. This note provides a critique of this reasoning.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The Commonwealth of Virginia

AbstractThis article presents the legal framework for computation of economic damages in the Commonwealth of Virginia. Attention is given to the case law and statutory provisions governing damages for personal injury and wrongful death actions. The categories of damages are reviewed with specific consideration given to Virginia law's limited judicial precedent, conservative tort law, and evidentiary requirements for admissibility of expert testimony to establish economic loss. Included in the discussion is an analysis of law controlling the establishment of future losses.

“Do You Hear What I Hear?”: Empirical Research on Earwitness Testimony

Despite recurring empirical interest in eyewitness research, legal scholars have conducted far less research exploring the significance and limitations of earwitness testimony. Nevertheless, earwitness expert testimony serves an important purpose, which dates back many centuries. This Article analyzes empirical studies regarding earwitness testimony and places them into a recognized legal framework regarding admission of expert testimony. The result of this analysis demonstrates that, if courts believe that eyewitness testimony meets the restrictions on "junk science" employed by both Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Federal Rules of Evidence, then the courts should also admit earwitness testimony under the same rationale. This Article, however, recognizes the many methodological issues in the study of earwitness testimony and addresses both the limitations in earwitness expert testimony and the hurdles it must face to meet the evidential standards of admissibility.

Factors Used in U.S. Circuit Court Judges’ Admissibility Decisions in Psychological/Psychiatric, Toxicology, Damages, and Engineering Cases

Content analysis was performed on a systematic sample of 400 U.S. District Court cases published on Lexis between July 1, 1993 and March 1, 2010 in which the admissibility of expert testimony was at issue. These cases were selected from the four most frequently occurring kinds of testimony (clinical psychological/psychiatric, toxicology, damages, and engineering). One-hundred cases from each category were systematically selected by decision date so that they spanned the period of time from the July 1993 Daubert decision to the present. Significant differences were found in the number of expert qualifications, Daubert factors, and non-Daubert factors evaluated by judges. Significant main effects for admissibility ruling were found for the mean number of expert qualifications, the mean number of Daubert factors, the mean number of Daubert factors minus general acceptance, the mean number of mentions of general acceptance, and the mean number of non-Daubert factors evaluated by judges. Significant main effects for admissibility standard were also found for the mean number of Daubert factors and the mean number of Daubert factors minus general acceptance. The admissibility of the evidence was significantly predicted by the number of negative expert evaluations, the number of negative Daubert factor evaluations, the number of positive and negative non-Daubert factor evaluations, the admissibility standard, and the category of evidence. Findings are discussed in the context of the social construction of the admissibility of expert testimony.