At PsychLaw, we frequently discuss how to voir dire experts in the behavioral sciences. Voir dire challenges are necessary to keep pseudo science out of our courtrooms. When voir dire goes right, a court will strike the pseudo science. For instance, in Holman Enterprises v. Fidelity and Guar. Ins. Co.,[1] the district court granted a party’s motion to strike the report of an expert where the expert’s report was “replete with legal conclusions and speculations,” “obvious conclusion[s] of law,” “fail[ed] to even discuss the insurance industry’s basic definition,” “provided no analysis to support … blanket conclusions,” and ultimately failed to meet the Daubert standard.[2]
In Hall v. United Ins. Co. of America, the opinion of a “licensed professional counselor,” purporting to evaluate the competency of a person he never met, but solely on a review of documents, was struck by an Alabama federal court for failing to meet the requirements of Rule 702[3]. In affirming the decision, the Eleventh Circuit noted:
Petrella’s “expert” opinion was based on his review of several documents related to Bobby’s mental health …. While Bobby’s medical doctor concluded that he was competent, Petrella came to the opposite conclusion, with no explanation offered in his affidavit for this contrary result. The district court concluded that [the plaintiff] had not demonstrated that the information Petrella reviewed contained sufficient facts or data upon which to base his opinion … and that Petrella did not cite to any scientific methodology or literature supporting his conclusions or approving of the method he employed to make those conclusions. … Accordingly, the judgment of the district court is affirmed.[4]
At PsychLaw.net we know that the legal profession, writ large, has an apparent aversion to “science,”[5] perhaps born out of what Justice Breyer described as a “lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims.”[6] As noted above, too often attorneys and courts rely simply on the professional’s recitation of their expertise and the perception that their field’s governing body would police any unethical or unprofessional conduct. Unfortunately, governing bodies frequently fail to discipline an unethical or unprofessional colleague. Certainly, this is the case with the psychological profession, where purported expert testimony that fails to meet the American Psychological Association’s (APA’s) ethical standards and practice guidelines routinely goes unpunished.
[1] Holman Enterprises v. Fidelity and Guar. Ins. Co., 563 F.Supp.2d 467 (D.N.J. 2008).
[2] Id. at 472-73.
[3] Hall v. United Ins. Co. of America, 367 F.3d 1255, 1261 (11th Cir. 2004).
[4] Id. at 1261-62.
[5] Lorandos, supra note 8. Moreover, the majority of this misleading, unreliable and highly damaging inexpert testimony is introduced by prosecutors, who, as a group, enjoy near carte blanche when seeking to admit any scientific expert; according to a 2010 study, a whopping 95.8% of proffered prosecution experts were admitted, compared with only 7.8% of those offered by criminal defendants. Id.
[6] Stephen Breyer, Science in the Courtroom, 16 Issues in Sci. & Tech. 52, 53 (2000). Lorandos, supra note 8, at 4-5.