Month: July 2019

The Importance of Voir Dire

Posted on by Shawn Wygant

As the Supreme Court instructed in Daubert: “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline.”  113 S Ct at 2796; 125 L Ed 2d at 482.  Compared to lay witnesses, experts purport to offer testimony that is scientific; and the Court offered that the term “scientific” implies a “grounding in the methods and procedures of science.” Id. 113 S Ct at 2795; 125 L Ed 2d at 481.  The word “knowledge,” the Court instructed, “connotes more than subjective belief or unsupported speculation.” Id.  The Court made it clear that:

“…in order to qualify as ‘scientific knowledge’, an inference or assertion must        be derived by the scientific method.  Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.” Id.113 S Ct at 2795; 125 L Ed 2d at 481.

          The Court’s instruction to the trial courts was that when “expert,” or  “scientific” testimony is offered:

“…the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will   assist the trier of fact to understand or determine a fact in issue.  This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 482 emphasis added

           At PsychLaw.net we remind that Rule 104(a) of the Federal Rules of Evidence provides that opposing counsel may voir dire a witness before the witness is permitted to testify as to his or her opinion.  Questions relating to qualifications may also be pertinent to a motion to exclude evidence on the basis of Federal Rule of Evidence 702.  Such motions would contend that the expert will not assist the trier of fact [FRE 702] and that the expert does not know the datum of his or her discipline [FRE 703]. At PsychLaw.net we feel that in order to aid to the gatekeeper, a good vior dire examines an  expert’s  qualifications, his/her knowledge of the datum of their discipline, and attempts to answer the questions posed in the previous posts.  As the First Circuit informed: “…Voir dire is an extremely helpful device in evaluating proffered expert testimony….”[1], [2]

Concerning the gatekeeper’s ongoing responsibilities, the First Circuit also held that Daubert was intended to liberalize the trial court’s discretion concerning scientific expert testimony.  As a result, it laid down a clear expectation that the trial judges will make continuing sub silentio rulings on the validity of proffered scientific evidence.[3]  Speaking to the utility of voir dire and Daubert hearings, the Third Circuit has offered:

“[A]fter Daubert, we no longer think that the distinction between a methodology and its application is viable. [I]t is extremely elusive to attempt to ascertain which of an expert’s steps constitute parts of a ‘basic’ methodology and which constitute changes from that methodology.”[4]

          With these issues in mind, we at PsychLaw.net have appended a motion to conduct an extended voir dire together with a memorandum of law in support.  This motion and memorandum directs the gatekeeper’s attention to the critical issues of evidentiary reliability, validity and “fit.”  This is particularly important with mental health professionals because of the profound ethical issues involved. For example, the would-be cross examiner will want to use an extended voir dire, to inquire about:

    1. Education
    2. Training
    3. Professional experience
    4. Knowledge of the datum of the expert’s discipline
    5. Research activities and Publications – and –
    6. Professional Ethical Issues:

Credentials.

Through discovery the attorney conducting voir dire will work to describe the expert’s curriculum vitae and personal resume as thoroughly lacking in “fit” for the issues at hand.  Occasionally, outright fraud may come to light. Falsehoods in the expert’s curriculum vitae and personal resume, will lead the gatekeeper to a conclusion there are falsehoods in the report as well.

                   Conflicts of Interest.

Conflicts of interest can provide a legal basis for challenge and court ordered disqualification of an expert witness. In Chapter Two of Cross Examining Experts in the Behavioral Sciences, we describe the conflict between treating therapist and expert witness.  Also, a conflict of interest presents a viable area of examination which may go to weight later on by impugning the expert’s integrity.

 

Employment Beyond Competency.

An expert unfamiliar with the datum of his or her discipline or just out of their depth, will be exposed by careful voir dire.  The goal is to show that the employment by the other side, simply beyond the witness’ experience and capability.

                   Improper Attorney Influence.

Pre hearing discovery is the best way to expose efforts by sponsoring counsel to influence the professional expert opinions. Normally such correspondence is not privileged in any way unless it is pure attorney work-product and was not relied on by the expert in forming a professional opinion. In the event the witness has relied in whole or in part on any of the data exchanged in communication with counsel, this information is proper for production and examination during voir dire.

                   Contingent Fee.

Occasionally, an expert will take a “bonus” at the completion of trial when a particular side is successful.  This is sometimes found in civil rights litigation, where attorney fees are part of the recovery and padded bills are then affixed.  Obviously if an expert’s compensation is driven by a contingency outcome, the objective orientation of the “scientist” is lost.

                   Creating Conclusions Before Research.

A meticulous file analysis may occasionally demonstrate that an expert opinion or conclusion was reached before any research was done.  This is often found where the expert proposes to testify from “clinical experience”.  As we illustrate in Chapter Three of Cross Examining Experts in the Behavioral Sciences, clinical experience often amounts to nothing more than speculation.  When an expert’s testimony relies on little “more than subjective belief or unsupported speculation”, 113 S Ct at 2795; 125 L Ed 2d at 481 and voir dire exposes this inadequate foundation, the witness should be stricken.

                   Investigation not done.

Often, a close examination of a mental health professional’s time records, notes, raw test data, and/or file reports, reveals that a purported investigation was simply not accomplished. This is frequently found as an artifact of the anchoring biases we discuss in Chapter Three of Cross Examining Experts in the Behavioral Sciences.

                   Intentionally Ignoring Data.

Voir dire of experts frequently exposes their anchoring biases, and their overlooking the rule in / rule out problems, discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences.  In particular, experts too often ignore relevant data. This may also occur when counsel or clients do not reveal all requisite data, or by the expert turning a professional blind-eye to relevant alternative hypotheses.  This can be seen as an outcome of the PIASH effect.[5]

                   Use of False Data.

Falsified information in notes, testing, records, reports, or other basic data must be discovered and utilized in voir dire. We recommend meticulous preparation by counsel prior to voir dire, with special attention paid to the claims made by mental health professionals as discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences. This preparation will occasionally uncover a proffered expert so wedded to antiquated and anecdotal data as to render their opinions entirely unreliable.

___________________________________________________________________________________________________________________________

[1].       Cortes-Irizzary v Corporacion Insular, 111 F.3d 184, 188 (1st Cir. 1997).

[2].       See, also: Faigman, D. L; Porter, E. & Saks, M. J. (1994). Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799:

The Court has served notice that experts should trade in their crystal balls for electron microscopes. But the success of this move into the twentieth century largely depends on the law’s proper understanding of the crossroads at which law and science meet. “Becoming scientifically literate should prove to be continuing challenge to the law.” Id. at 1801 “It is . . . vitally important that a rigorous and thorough analysis of scientific data be undertaken before those data are admitted into evidence. This task is made difficult because of the general lack of scientific literacy among Americans, including lawyers and judges.”

There also is empirical data that suggests litigants express greater satisfaction in proceedings that allow their attorneys and not the presiding tribunal, to have direct control over the presentation of relevant evidence. See, e.g., Thibaut, J. & Walker, L. (1978).  A Theory of Procedure, 66 Calif. L. Rev. 541. See also Lind, A. E. & Tyler,T. R. (1988). The Social Psychology of Procedural Justice; Thibaut, J. & Walker, L. (1975). Procedural Justice: A. Psychological Analysis.

[3].       See, i.e.: Hoult v Hoult, 57 F.3d 1 (1st Cir. 1995).

[4].       See, i.e.: In re Paoli Railroad Yard Litigation, 35 F.3d 717, 745-750 (3rd Cir. 1994). The Court went on to opine that under Rule 703, the trial judge must make an independent evaluation of the reasonableness of the reliance by experts in the particular field on the particular type of data proffered.

[5]  See, e.g., Campbell, T.W.. (2002).  The piash effect: Psychotherapy-influenced allegations of sexual harassment. American Journal of Forensic Psychology. 20. 53-68 The post-event information effect influences the recall of ambiguous events open to interpretation. Applying data related to confirmatory bias, mood-congruent memory, source monitoring errors, attribution theory, and stereotyping demonstrates how psychotherapy can taint the memories of plaintiffs in harassment matters. Plaintiffs can be expected to express therapeutically constructed memories with genuine sincerity. As a result, cross-examination attempting to impeach plaintiffs as fabricating is ill-advised in these circumstances.

DAUBERT  HEARINGS

Posted on by Shawn Wygant

Federal Rule of Evidence 104(a) provides that preliminary questions concerning the qualification of a person to be a witness, or the admissibility of evidence, shall be determined by the court. Under this rule, the court is authorized to hold an evidentiary hearing to make a preliminary determination that an expert is properly qualified, and that the expert’s underlying reasoning or methodology is scientifically valid and can be applied to the facts of the case.[1]

Federal Rule of Evidence 104 (c) provides in part that hearings on preliminary matters, such as Daubert hearings, may be conducted when the interests of justice require.

In the exercise of its gatekeeping function, the Daubert Court held that a trial court must undertake a preliminary determination of whether the methodology of the expert’s proposed testimony is scientifically reliable. To accomplish this with the greatest judicial economy, and to avoid “junk science” creeping into the minds of the trier of fact, a Daubert hearing is the appropriate way to challenge an expert whose methodology is questionable.[2]

At PsychLaw.net we believe it is especially important for the gatekeeper to distinguish between a number of meaningful issues:

Is this particular expert qualified?

Do the qualifications of this expert fit the facts of this case?

What is the scientific validity of the methodology the expert has used?

What is the scientific reliability of the methodology the expert has used?

What is the scientific validity of the underlying data the expert bases his or her opinions on?

What is the scientific reliability of the underlying data the expert bases his or her opinions on?

To what extent is the expert’s  reliance on that data reasonable. These are analytically distinct concepts.[3]

At PsychLaw.net we remind you that in answering these gatekeeping questions, the courts must evaluate the experts, their opinions, and the foundations for those opinions on a case-by-case basis.[4] In conducting these hearings, the trial judge may rely on another expert’s evaluation of underlying data.[5] Nonetheless, reliance on other experts must not eviscerate the judge’s gatekeeping role.[6], [7]

For these reasons, at PsychLaw.net, we have shared Dr. Lorandos’ Evidence and Cross Examination videos which explain in detail how to use the basic foundational material to conduct a Daubert hearing.

[1]. See, i.e.: Smelser v Norfolk Southern Ry. Co., 105 F.3d 299, 302-303, 46 Fed. R. Evid. Serv. (LCP) 468, 1997 FED App 33P (6th  Cir. 1997);cert denied, 118 S.Ct. 67, 139 L. Ed.2d 29 (US 1997). When applying Daubert, the trial court resolves preliminary questions on admissibility of expert testimony under FRE 104(a), and must determine whether expert testimony reflects scientific knowledge, whether findings are based on scientific knowledge and derived by the scientific method.  In Smelser, the trial court did not apply Daubert factors in admitting the testimony of a biomedical engineer and the verdict for a plaintiff in FELA suit was reversed. See, also: Watkins v Schriver, 52 F.3d 769 (8th Cir 1995); Eagleston v Guido, 41 F.3d 865 (2nd Cir. 1994), cert denied, 116 S.Ct 53 (1996).

[2]. See, i.e.: United States v. Vitek, 144 F.3d 476 (7th Cir. 1998).  The trial court held a lengthy and exhaustive Daubert hearing.

[3]. Curiously, one Circuit has rules that a trial judge may still fulfill his or her gatekeeper function without making an explicit finding that an expert’s underlying sources of information are trustworthy. See, i.e.: United States v. Locascio, 6 F.3d  938 (2d Cir. 1993). cert. denied., —U.S. —; 128 L Ed. 2d 365 (1994) The Second Circuit ruled that a finding or trustworthiness of sources was not required. This Circuit reasoned that although Daubert principle interpreting Fed. R. Evid. 702 applies equally to Fed. R. Evid. 703, trial courts retain authority and discretion to determine admissibility of expert testimony based on inadmissible evidence without having to conduct an explicit trustworthiness analysis.

[4]. See, i.e.: Soden v. Freightliner Corp., 714 F-2d 498, 502- 505 (5th Cir. 1983) Fed. R. Evid. 703 requires courts to examine reliability of expert’s sources on a case-by-case basis.

[5]. See, i.e.: In re Japanese Elec., Prod. Antitrust Litig., 723 F.2d 238, 285 (3d Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v.. Zenith Radio Corp., 473 U.S. 574 (1986).  Proper inquiry is not what the court deems reliable but what experts in relevant discipline deem it to be.

[6]. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.  2786, 2793-2799, 125 L. Ed. 2d 469, 485 (1993); In re Paoli R.R. Yard PCB Litigation v. Southeastern Pa. Trans., 35 F.3d 717, 742 (3d Cir. 1994) Daubert clearly holds that Fed. R. Evid: 703 requires an independant gatekeeping role.

 [7]. See, i.e.: Head v. Lithonia Corp. Inc., 981 F.2d 941. 944 (10th Cir. 1989) It is reversible error when a trial court fails to make a preliminary determination that data underlying an expert’s opinion is of kind reasonably relied on by experts in field.  And see:

1st Circuit: See University of Rhode Island v. A.W. Chesterton Co., 2 F.3d 1200,1217-1218 (1st Cir. 1993) Fed. R. Evid. 703 does not afford automatic entitlement to proponents of expert testimony, and court must give careful consideration to any facts on which expert will rely to determine whether reliance is reasonable.

2d Circuit: See In re Agent Orange Prod. Liab. Lit., 611 F. Supp. 1223,1246 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988) A guarantee of trustworthiness is seen when an expert relied on material of a kind normally employed by experts in field.

3d Circuit: See Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 682 (3d Cir. 1991) Case remanded because of failure of trial court to make inquiry and finding as to what experts in field find reliable when defendant’s expert based opinion of prospective profits on predicted sales rather than an available data of actual performance).

4th Circuit: See Wilder Enters., Inc. v. Allied Artists Pictures Corp., 632 F.2d 1135,1144 (4th Cir. 1980) Expert opinion testimony was properly excluded due when proponent failed to show that data underlying opinion was of type reasonably relied on by experts in field.

Evidentiary Rules and Motion Practice

Posted on by Shawn Wygant

At PsychLaw.net we know it is a matter of common knowledge that scientific expert testimony is offered in a very high percentage of American trials.[1]  The testimony of mental health professionals was first reviewed by the United States Supreme Court in 1908 in Muller v. Oregon, 208 U.S. 412 (1908).  Muller was a landmark case dealing with social welfare legislation designed to limit the work day of women. These women typically labored in a factory or laundry up to ten hours. In this case, attorney Louis Brandeis accumulated a substantial body of medical and social science research demonstrating the debilitating effect on women and girls of working long hours.  Brandeis presented this material to the United States Supreme Court in a brief defending Oregon’s limits on the number of hours females could be employed.  As the Supreme Court upheld the constitutionality of the legislation, it discussed Brandeis’ social science material.  The Court declared that although they “may not be, technically speaking, ‘authorities’, the studies would nonetheless receive judicial cognizance.”  Since that time, motions and briefs designed to bring the weight of social science research to the attention of the court have been termed “Brandeis briefs”.

In  Muller v Oregon the Court made it clear that it wanted good quality scientific data bearing directly on the issues.  Today, when any court is asked to admit expert testimony as valid science under Daubert, opposing parties may attack the proof as scientifically invalid or questionable by offering counter proofs.[2]  Because of the Federal Rules’ emphasis on liberalizing expert testimony, and the specific requirements of Daubert and Kumho, it is the job of the advocate to lay out the scientific issues for the court’s consideration.  At PsychLaw.net we feel this is best accomplished in motion practice.

Nevertheless there’s a problem.  As Mr. Chief Justice Rehnquist wrote in Daubert:

“I defer to no one in my confidence in federal judges, but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its ‘falsifiability,’ and I suspect some of them will be, too.” Daubert 509 U S 579, 113 S Ct at 2800; 125 L Ed 2d at 485.

The Chief Justice continued by explaining that trial court judges are expected to become “amateur scientists,”[3] and warned that science is an  “unusual subject matter” for the judiciary.  He advocated that the courts should “proceed with great caution . . . because our reach can so easily exceed our grasp”.[4] In any trial where scientific evidence is needed, the “great caution” that the Chief Justice recommends creates a duty and an opportunity for both the advocate of scientific testimony and the would be cross examiner.  The duties and responsibilities created by Daubert and Kumho, to keep “junk science” out, and admit only scientifically reliable and valid expert testimony, are described previously in this chapter.  The opportunity for the attorney advocating the evidence and the would-be cross examiner, is motion practice.

Rules 26(b)(4) and 26(c)(1) of the Federal Rules of Civil Procedure provide for the discovery of facts known and opinions held by experts.  At PsychLaw.net we feel that discovery practice provides the cross examiner with an opportunity to understand the qualifications, grounding and foundational basis of proffered expert testimony.  Similarly, Federal Rule Criminal Procedure 16(a)(1)(E) provides that a summary of proposed expert testimony may be obtained prior to trial and the “summary must describe the witnesses’ opinions, the bases and the reasons therefor, and the witnesses’ qualifications.” And Fed. R. Civ. P. 26(a)(Z)(B) requires the report to contain:

“A complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”

Today, the cross examiner is faced with a new evidentiary world, where the intent of Federal Rule of Evidence 702 is toward “liberal admission” of proposed expert testimony.[5]  These rule governed reports, and the additional material gained through discovery, must be used by the would-be cross examiner in motion practice. Doing so avoids the unhappy possibility of a trier of fact hearing some damaging “junk science” that forces the cross examiner to play catch up.  For these reasons, we at PsychLaw.net are providing numerous sample motions each accompanied by a memorandum of law.  We have designed  these sample motions and memoranda to demonstrate an integration of the material in the text.  They will also aid the cross examiner in directing the gatekeepers attention to important issues of scientific reliability and validity before a jury is seated.

As unprepared for an analysis of scientific issues as  gatekeepers too often are, they are given broad discretion in evidentiary rulings[6].  As a result, it is particularly important to rely heavily upon pre-trial motion practice and the hearings which should be granted under Daubert and Kumho.  The would-be cross examiner of suspected “junk science” must bear in mind that trial judges are rarely overruled in these decisions.[7]    For these reasons, it is essential to ask for a Daubert hearing.

 

[1].       See, i.e.: Gross, S. R. (1991).  Expert Evidence, Wis. L. Rev. 1113, 1118-19 Presenting the findings of a survey of 529 civil jury trials conducted in California Superior Courts in 1985 and 1986.

[2].       For example, see: U.S. v. Velasquez, 64 F.3d 844, 849-852, 42 Fed. R. Evid. Serv. (LCP) 1175 (3d Cir. 1995) [A drug trial wherein the Third Circuit concluded that it was error to exclude defense evidence on lack of standards in field of handwriting analysis simply because trial court determined that the proof was sufficiently reliable to be admitted under FRE 702.  The Third Circuit appellate panel concluded that expert testimony on handwriting analysis is clearly admissible and decided to apply Daubert in order to be cautious.  As this was a pre Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167; 143 L.Ed.2d 238 (1999) case.  Under the Daubert standard, the defense counter proof should have been admitted since “the same considerations that inform the court’s legal decision to admit evidence under Rule 702 may also influence the factfinder’s determination as to what weight such evidence … should receive”.

[3].       Id. 113 S Ct. 2786, at 2800.

[4].       Id. 113 S Ct. 2786, at 2797.

[5].       See, i.e.:Habecker v Cooperloy Corp, 893 F2d 49,  29 Fed Rules Evid. Serv 452 (1990) It is the intent of FRE 702 to endorse the  “liberal admission” of expert testimony, and “liberal qualification” of experts.

[6].       Trial judge has broad discretion. United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference).

1st Circuit             United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference.

2d Circuit             See, e.g., United States v. Aminy, 15 F.3d 258, 261 (2d  Cir. 1994) In an expert witness / testimony review, the appellate court ruled that it was not error to admit expert evidence that foil wrapping of heroin was similar to that used by known drug dealers.

4th Circuit            See, e.g., Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) Daubert  requires only that trial judge make a “preliminary assessment” of whether proffered expert testimony is both reliable and helpful; plaintiffs do not have to prove that assessments of their experts are correct, they only have to  demonstrate that their opinions are reliable.

5th Circuit            Snap-Drape, Inc. v. Commissioner, 98 F.3d 194, 197 (5th Cit. 1997). cert. denied, – U.S. -, 118 S. Ct. 77 (1997) “The decision whether to admit expert testimony is entrusted to the sound discretion of the trial court and is reversible on review only for abuse of discretion.”

6th Circuit            See, e.g., United States v. August, 745 F.2d 400, 407 (6th Cir. 1984) It was not an abuse of discretion to allow a statistician to testify in a case alleging manipulation of blind draw system, that the system assigned cases to judges in intended random fashion.

7th Circuit            See, e.g., United States v. Stevenson, 6 F.3d 1262, 1266 (7th  Cir. 1993) It was not error to allow a drug enforcement agent to testify as an expert on distribution amounts in narcotics case.

8th Circuit            See Johnson Group, Inc. v. Beecham, Inc., 952 F.2d 1005, 1007 (8th Cir. 1991) It was not an abuse of discretion to allow expert testimony despite the possibility that the expert’s testimony included legal conclusions.

10th Circuit          See, e.g., State Office Sys. v. Olivetti Corp., 762 F.2d 843, 845-846 (10th Cir. 1985) It was not an abuse of discretion to allow the testimony of a company president on financial records given the witness’s knowledge and experience.

11th Circuit          See, e.g.,United States v. Burchfield, 719 F.2d  356, 357-358 (11th Cir.1983) It was not an abuse of discretion to permit expert testimony on commonly used counterfeit-bill-passing techniques.

D.C. Circuit United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996) The trial court has broad discretion in determining whether to admit or exclude expert testimony.

[7].       For some recent examples of cases wherein a request has been to overrule an admissibility decision on scientific evidence, see, i.e.:

1st Circuit             See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993) cert. denied, 512 U.S. 1223 (1994) Affirming trial court, both in its denial of motion in limine to exclude expert testimony and in its subsequent decision to strike testimony when cross-examination revealed it to have been based on inadequate foundation.

2d Circuit             See, e.g., Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705,707-708 (2d Cir. 1989) A forensic engineer’s testimony was improper when matters were not “beyond the jury’s ken”.

3d Circuit             See, e.g., Paoli R.R. Yard PCB Litig. v. Monsanto Co., 916 F.2d 819, 855-856 (3d Cir. 1990). cert. denied, 499 U.S. 961 (1991) (Paoli) The trial court’s insistence on certain credentials to qualify witness was abuse of discretion.

4th Circuit            See. e.g., Scott v. Sears, Roebuck & Co., 789 F.2d 10512, 1055-1056 (4th Cir. 1986) An expert’s statistical evidence should have been excluded as unhelpful because it merely repeated common knowledge.

5th Circuit            See, e.g., In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230,1233-1235 (5th Cir. 1986) It was an abuse of discretion to admit testimony where expert’s assumptions had no reasonable basis.

6th Circuit            See, e.g., CMI-Trading, Inc. v. Quantum Air. Inc., 98 F.3d 997, 990 (6th Cir. 1996) The district court “is accorded wide discretion in determining the admissibility of evidence challenged as irrelevant”.

Foundational Questions Regarding Peer-reviewed Journals

Posted on by Shawn Wygant

This blog relies extensively on the data and articles found in the peer-reviewed literature for cross-examining mental health professionals.  Consequently, at PsychLaw.net we feel it will be necessary for cross-examining attorneys to lay a foundation regarding the significance of peer-reviewed journals.  We recommend the following questions for foundational purposes.

  1. Dr. X, you would agree that the practice of your profession can advance no further than the availability of the basic research to support it — Correct?
  2. Just as the practice of medicine depends on basic research in the life sciences such as Biology and Chemistry, the practice of your profession depends on basic research in the behavioral sciences such as Psychology and Sociology — Correct?
  3. And practicing professionals such as yourself are ethically obligated to maintain a working familiarity with the emerging research in your field — Correct?
  4. [For psychologists] – Ethical standard 1.05 of the 1992 ethical code for psychologists – “Maintaining Expertise”[1] – states:

– [read] –

“Psychologists who engage in assessment, therapy, teaching, research, organizational consulting, or other professional activities maintain a reasonable level of awareness of current scientific and professional information in their fields of activity, and undertake ongoing efforts to maintain competence  in the skills they use.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For psychiatrists] – Section Five of the AMA Principles of Medical Ethics with annotations especially applicable to psychiatry, state:

– [ read ] –

“A physician shall continue to study, apply, and advance scientific knowledge, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.”

Now my question: You are obligated to comply with this provision– Correct?

AND

– [read] –

Provision One of Section Five: “Psychiatrists are responsible for their own continuing education and should be mindful of the fact that theirs must be a lifetime of learning.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For social workers] – Ethical standards 4.01 (b) and 4.01 (c) of the 1997 ethical code for social workers – “Competence”[2] – state:

– [read] –

4.01 (b) – “Social workers should strive to become and remain proficient in professional practice and the performance of professional functions.  Social workers should critically examine and keep current with emerging knowledge relevant to social work.  Social workers should routinely review the professional literature and participate in continuing education relevant to social work practice and social work ethics.”

Now my question: You are obligated to comply with this provision– Correct?

AND

– [read] –

4.01 (c) – “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For marriage and family therapists] – Ethical standard 3.4 of the 1998 ethical code for marriage and family therapists –

“Professional Competence and Integrity”[3] – states:

– [read] –

“Marriage and family therapists remain abreast of new developments in family therapy knowledge and practice through educational activities.”

Now my question: You are obligated to comply with this provision– Correct?

  1. Familiarity with peer reviewed journals can assist a professional in maintaining a reasonable level of awareness of current scientific and professional information — Correct?
  2. A peer-reviewed journal relies on a board of editors to review articles submitted to it for publication — Correct?
  3. And articles submitted to a peer-reviewed journal are reviewed independently by at least three different editors — Correct?
  4. And typically, editors reviewing the submitted article do not know who wrote it — Correct?
  5. After reviewing the submitted article, each editor makes recommendations such as: publish as is — Correct?
  6. Or publish with minor revisions — Correct?
  7. Or publish with major revisions — Correct?
  8. Or not currently suitable for publication — Correct?
  9. And sometimes, resubmit with major changes and reorganization — Correct?
  10. And sometimes editors conclude this article is not – and will not be – suitable for publication — Correct?
  11. Peer-review, therefore, amounts to a valuable source of quality control regarding what is published in scientific journals — Correct?
  12. The peer-review process encourages the publication of articles that make a significant contribution to your field — Correct?
  13. And the peer-review process discourages the publication of articles amounting to “junk science” — Correct?
  14. And authors of controversial articles, published in peer-reviewed journals, are ethically obligated to cite other articles taking a contrary position — Correct?
  15. In other words, peer-reviewed articles are obligated to present a fair and complete review of the existing literature — Correct?
  16. Articles published in peer-reviewed journals can therefore be considered generally recognized and accepted by your field — Correct?
  17. And sometimes authors whose work appears in the peer reviewed journals, write chapters or books on the same subject — Correct?
  18. And when these subjects, by these authors find their way into chapters and books, they can therefore be considered generally accepted by your field — Correct?

Because they are not as familiar with peer-reviewed journals as they should be, mental health professionals may attempt to diminish their importance. At ___ we feel you should consider, for example, the following exchange between a cross-examining attorney and a psychologist.

Attny:         Would you agree with the idea that your profession can advance no further than the availability of basic research to support it?

Psych:         I believe that my profession advances on the basis of basic research, but also advances on the shared community experience of skilled clinicians that come together to educate each other and to share their experiences and any relevant clinical information.

Claims such as these should be cross-examined in the following manner.

  1. These “skilled clinicians who come together to educate each other” typically know each other — Correct?
  2. And unlike the peer-review process of a journal, any criticisms expressed by these skilled clinicians – who come together to educate each other – are expressed on a face-to-face basis — Correct?
  3. And considerations of future professional relationships could make it more difficult for these “skilled clinicians” to respond candidly and forthrightly to each other — Correct?
  4. In other words, these “skilled clinicians” – coming together to educate each other and to share their experiences – may merely amount to you and your buddies talking about interesting cases over beer and pizza — Correct?
  5. And there are substantial differences between formal peer-review, and you and your buddies discussing interesting cases over beer and pizza — Correct?

At PsychLaw.net we know that some professionals may also attempt to avoid acknowledging that peer-reviewed articles can be considered generally recognized and accepted by their field.  Consider the following exchange, for example; and most importantly, note how the cross-examining attorney persisted in obtaining the acknowledgment he sought.

Attny:         Do you agree that peer-reviewed articles can be considered generally recognized and accepted in the field once they go through that process? [referring to the peer-review process].

Psych:         Recognized and accepted how?

Attny:         As a reliable authority by practitioners or psychologists?

Psych:         Recognized and accepted as good enough to be published in a journal.

Attny:         To be relied on by professionals?

Psych:         Not necessarily.

Attny:         What I am getting at is if you see something that has been peer-reviewed, A – is it more likely acceptable material to the mainstream of psychologists, or B – is it more likely radical thesis type material on the fringe; which is a more plausible answer to that?

Psych:         A is a more plausible answer to that.

 

Mental health professionals typically protest cross-examinations that challenge their too often ill-informed opinions.  While protesting, they may offer anecdotal evidence or idiosyncratic experiences attempting to defend themselves.  More often than not, these attempts are less than responsive to the questions directed at them.  In particular, mental health professionals often attempt to deny, minimize, or rationalize the findings reported in peer-reviewed journals.  At PsychLaw.net we feel their attempts in this regard warrant the following sequence of questions to maintain control of the cross examination:

  1. You understand that I am not interested in your unsubstantiated opinions — Correct?
  2. Consistent with your ethical obligation to maintain familiarity with developments in your field, I want to know what peer-reviewed articles support your opinions — Correct?
  3. And you do understand the difference between unsubstantiated opinion and peer-reviewed articles — Correct?

By now, you have noticed how most of our cross-examination questions end with the direct phrase, “Correct?”  We at PsychLaw.net have developed the questions in this manner to assist attorneys in maintaining control of the cross-examination procedure.  If given the opportunity, many mental health professionals will suggest why they regard various cross-examination questions as inappropriate.  Other mental health professionals may protest an approach that limits their answers.  Consider, for example, how a psychologist objected to this type of cross-examination:

Psych:         “You’re asking me about something that you have read and that I’m getting from you which is your, you know, synopsis of it.  I haven’t read it, and you’re asking me ‘Correct, correct.’ All I can say is this is what you’re telling me but I cannot tell you specifically anything about the article because I myself haven’t read it.”

Professionals who express these kinds of protests can be questioned in the following manner:

  1. You previously acknowledged the significance of peer-reviewed journals — Correct?
  2. Do you understand that when I refer to peer-reviewed articles, I will ask you to assume – consistent with a peer-reviewed article – that something is true. Do you understand that kind of question?
  3. In other words, do you understand that when I refer to peer-reviewed articles in your field, I am asking you to hypothetically assume that something is true?
  4. And when I end my questions by asking “Correct,” do you understand that I am trying to focus you on the issue on at hand?
  5. You prefer to respond to my questions in a focused, relevant manner as opposed to an unfocused, irrelevant manner — Correct?

 Overview

Unlike other critics of mental health professionals, we at PsychLaw.net contend that these professionals can assist the legal process. When mental health professionals express opinions well supported by relevant data, they can assist a trier of fact to better understand issues in dispute.  Expert testimony premised on relevant research deserves respect from the legal system.   Expert testimony premised on intuitive hunches and ill-conceived theories, however, deserves well prepared cross examination to effectively discredit it.

 

[1].       American Psychological Association (1992). Ethical principles of psychologists and code of conduct.  American Psychologist, 47, 1597-1611.

[2].       National Association of Social Workers (15 August 1996). Code of ethics: Adopted by the NASW Delegate Assembly August 15, 1996, Effective January 1, 1997.  Author: Washington, D.C.

[3].       American Association for Marriage and Family Therapy (August/September 1998).  AAMFT Code of Ethics, effective July 1, 1998. , p. 10-11.