Charles Walter and Edward P. Richards, 17 IEEE Engineering In Medicine And Biology Magazine (July-August 1998) #4 p 78-81.
Several years ago, I (CW) represented a lady who was driving her new car slowly down a main street here in Houston when, suddenly, a stretch limousine coming from the other direction turned left in front of her. My client stopped her car successfully, but not before it's front bumper barely touched the limo. The impact could not have been noticeable to anyone inside either vehicle because there were no scratches on my client's bumper, and no perceptible dent on the limo. Nevertheless, the occupant of the limo, who was en route to a doctor's appointment in connection with her alleged MS, sued the limo driver and my client. The plaintiff's alleged damages were that the "collision" had aggravated her MS to the tune of a quarter of a million dollars. Laughable? You'd better stop laughing. The limo driver disappeared, leaving my client to face the allegations alone. The plaintiff found a medical doctor in Scotland who did research on MS and was willing to testify under oath that, in his opinion, the impact in this case was sufficient to cause the damage claimed. Suddenly, a defendant with no apparent exposure faced serious money damages.
This is an example of "junk science" in the courtroom. While fender benders have relatively low stakes, the same phenomenon has driven important drugs off the market and threatens the biomaterials industry. In Perry Mason programs truth wins out with good legal work, but in the real world, junk science changes the settlement value of cases dramatically, and thereby moves money unjustly from defendants to plaintiffs with bogus claims or fails to move money from miscreant defendants to deserving plaintiffs. Junk science makes money for lawyers, but it does not serve the interests of justice.
As indicated in our example, junk science gets into the courtroom in the guise of an expert witness who is called by a party to give an opinion about a technical matter on behalf of the party who called the expert. Attorneys take advantage of the fact that judges lack the background, or sometimes the will, to keep junk science out. In what follows, we propose some new rules, which, if adopted, would help keep junk science out of courtrooms.
The rules governing the admissibility of evidence require that evidence presented in a trial be "relevant." Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the outcome of the case more or less probable that it would have been without the evidence.
Generally speaking, witnesses may testify in the form of opinions or inferences only to the extent that they are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. However, if specialized knowledge will assist a trier of the facts to understand the evidence or to determine a fact in issue, an expert witness may testify in the form of opinions and inferences. An expert witness may be qualified as such by knowledge, skill, experience, training and/or education.
The rule governing expert testimony is that a qualified expert may testify in the form of opinions and inferences if such testimony will assist a trier of the facts to understand relevant evidence or to determine a fact in issue. Unqualified individuals may not testify as experts because their opinions might not be reliable, and expert testimony that will confuse a trier of the facts or otherwise not be helpful is inadmissible.
Thus, there are three basic questions controlling the admissibility of expert testimony:
(1) Is the expert qualified?
(2) Is the expert testimony relevant?
(3) Will the relevant expert testimony be helpful?
In what follows we refer to information related to these three questions as "information materially related to the reliability of expert testimony."
In our previous article we described cases wherein a trial court judge excluded the testimony of a qualified expert because he considered the expert's opinion to be "subjective belief or unsupported speculation." The rationale is that, to be helpful, the opinion of a qualified expert must be based on facts and objective belief. For example, the pope could not testify that there is a god, but Dr. Faustus could testify that there is a devil.
The problem is that not everyone agrees that the pope's opinion does not rise above "subjective belief or unsupported speculation." Catholics, for example, believe the pope's opinion in matters of morals and religion is infallible. Generally, trial judges have not been trained to distinguish subjective versus objective scientific belief or between pure speculation and a reasonable new scientific hypothesis.
The problem is exacerbated by the fact that attorneys have a duty to act with zeal in advocacy upon their client's behalf and to maintain the confidentiality of information protected by the attorney-client privilege as well as other client information acquired by the attorney during the representation of the client. The relevant exceptions to the "confidentiality" rule arise when the attorney has reason to believe it is necessary to disclose confidential information in order to comply with a court order or some law, and to prevent a client from committing a criminal or fraudulent act or benefiting from the consequences of one in the commission of which the lawyers services were used.
The exceptions to an attorney's duty of confidentiality are invoked, if at all, only when the exception clearly applies. Given the duty to act with zeal, the tendency is to maintain client confidentiality rather than err in such a manner that would harm a client.
In the context of these rules, neither a party, the party's attorney, nor an expert has a duty to disclose adverse information materially related to the reliability of the content of an expert's testimony on behalf of the party. Indeed, if an attorney were to disclose information suggesting that a witness was not as expert as indicated, or that the expert's testimony might not be as relevant or helpful as it seems, the attorney would probably be sued for malpractice if the client was dissatisfied with the outcome of the litigation.
The same rules of zealous representation and confidentiality apply to all attorneys, including attorneys who prosecute patents for their clients in the U.S. Patent and Trademark Office (PTO). However, in the case of patent prosecutions, there is also a specific duty to disclose certain information to the PTO. This duty arises from the fact that a patent is affected with a public interest that is best served when the PTO is aware of and in a position to evaluate all information material to the patentability of a discovery. Therefore, the Code of Federal Regulations establishes that each individual associated with the filing and prosecution of a patent application has a "duty of candor and good faith" in dealing with the PTO. This duty specifically includes a continuing duty during the pendency of an application to disclose all information known to be material to patentability. This duty of disclosure extends to any person who is substantively involved in the preparation or prosecution of the application and who is associated with the inventor, including the applicant himself, his attorney, and any assignee.
Information is material to patentability if it is not cumulative with other such information and it establishes (by itself or with other information) a prima facie case of unpatentability of a submitted claim, or if it is inconsistent with a position taken by the applicant in (1) asserting an argument of patentability, or (2) opposing an argument of unpatentability relied on by the PTO.
A presumption that this disclosure duty has been fulfilled arises if all information known to be material to patentability of any claim issued in a patent was cited by the PTO or submitted to the PTO in a manner prescribed by law. Any attempt to misuse this disclosure procedure risks the patent. Thus, no patent will be granted on an application in connection with which fraud on the PTO was practiced or attempted or the duty of disclosure was violated through bad faith or intentional misconduct. In order to meet this duty of disclosure the applicant must disclose all materially related U.S. patents (identified by patentee, patent number, and issue date), foreign patents and published foreign patent application (identified by country, document number and publication date), publications (identified by author, title, place of publication, page numbers and date), and other information known to applicant. Generally, copies of documents should be submitted to the PTO, and, in the case of foreign documents, translations (if readily available) should be submitted together with a concise explanation of the relevance, as it is presently understood by the individual associated with the application who is most knowledgeable about the content of the submitted information. In this connection, the applicant is encouraged to examine
(1) art cited in search reports of a foreign patent office in a counterpart application, and
(2) the closest information over which individuals associated with the filing or prosecution of the application believe any pending claim patentability defines, to make sure that any material information contained therein is disclosed.
In order to apply for a patent, the applicant must execute an oath or declaration acknowledging his or her duty to disclose to the PTO all information known to him to be material to patentability.
The use of expert testimony in litigation is also affected with a public interest that is best served when the court is aware of and in a position to evaluate as much information as possible that is material to the expertise of each testifying expert and to whether or not the expert's testimony will be helpful to the trier of the facts. The means used to assist the PTO in making sound evaluations of technical information related to patent applications provides a model for assisting courts in making sound evaluations of experts and their proposed testimony. Therefore, we propose the following draft model rules governing experts and expert testimony.
(a) Expert testimony by its very nature is affected with a public interest. The public interest is best served, and the most effective use of expert testimony to assist the trier of the facts occurs when, prior to the introduction of expert testimony, the court is aware of and evaluates all information material to the qualifications of each party's experts, and the relevance and reliability of their proposed testimony.
(1) Each party who names an expert to testify in connection with pending litigation, each attorney representing such party in said litigation, and each expert named to testify in such litigation has a duty of candor and good faith in dealing with the court in which the litigation is pending, which includes a duty to disclose to the court all information known to that individual to be material to the reliability of any testimony or proposed testimony by the expert as defined in this section. This information will be disclosed in a written Daubert Brief, intended to assist the judge in determining whether the proffered testimony meets the standards established in the Daubert Case.
(2) There is no duty to disclose information about an expert who has not testified and is not listed by a party as a witness. The duty to disclose all information known to be materially related to the reliability of expert testimony is deemed to be satisfied if all information known to be materially related to the reliability of any testimony or proposed testimony by the expert was cited by the court in a written document or submitted to the court in the manner prescribed in section 2. However, the court shall strike the entire pleadings of any party who practices or attempts fraud on the court or who violates the duty of disclosure through bad faith or intentional misconduct.
(b) Under this rule, information is material to the reliability of expert testimony when it is not cumulative to information already of record or being made of record, and
(1) it refutes, or is inconsistent with, a position taken in the litigation by the party with knowledge of the information, the party's attorney, or the party's expert, and
(2) it establishes, by itself or in combination with other information, a prima facie case that the expert testimony is not reliable.
A prima facie case that expert testimony is not reliable is established when the information compels a conclusion that the testimony is not reliable under the preponderance of evidence, burden of proof standard, assuming the broadest reasonable construction of the testimony and before any consideration is given to evidence which may be submitted in an attempt to establish that the testimony is not reliable.
(a) In order to have information about the reliability of expert testimony considered by the court during litigation, a Daubert Brief should be filed prior to the identification of each expert witness and, if necessary, amended upon receipt of additional information that might be construed as materially related to the reliability of expert testimony.
(b) Any Daubert Brief filed hereunder shall include the following information about the party's expert:
1) a brief resume of the expert's knowledge, skill, experience, training and education;
(2) a brief description of the expert's reputation in the field relevant to the litigation;
(3) a list of publications by the expert that are relevant to the litigation, their date, where they were published, and the extent they were accepted by other experts in the field;
(4) a list of references relied on by the expert;
(5) a description of the methodology employed by the expert;
(6) a list of references, if any, indicating alternative methodologies not employed by the expert but generally recognized by others in the field;
(7) a summary of the expert's opinions, and the theories and data upon which each was founded;
(8) a list of references, if any, indicating alternative opinions, theories or data not used by the expert but generally recognized by others in the field; and
(9) any data, conclusions, or theories previously espoused by the expert that differ from those in the expert's testimony in this litigation.
(a) A party wishing to use an expert witness during litigation must file an oath or declaration at the time the party names the expert witness. The oath or declaration must acknowledge the duty to disclose to the court all information known to the person to be material to the reliability of the expert witness named by the party and be executed in accordance with parts (b) or (c) of this section.
(b) The oath or affirmation may be made before any person within the United States authorized by law to administer oaths. Such oath or affirmation shall be valid as to execution if it complies with the laws of the State where made.
(c) The declaration may be used in lieu of the oath if, and only if, the declarant is on the same document, warned that willful false statements and the like are punishable by fine or imprisonment, or both and may jeopardize the outcome of the litigation to which the declaration pertains.
The proposed rules requiring disclosure of information material to the reliability of a party's expert testimony would shift a substantial burden from the courts to the parties and their attorneys and experts. The courts would still have to interpret highly technical information in some instances, but the Federal Rules of Evidence already provide a means for assisting judges to do so. Rule 706 provides that the court may appoint expert witnesses of its own selection. The court's own appointed expert could be used to interpret information, whether disclosed by the parties or not, for the court.
However, a substantial part of the burden of getting the information before the court would be shifted to the parties. While this might create a problem for attorneys who are not familiar with the expert's technical field, it is only fair that one who seeks to introduce expert testimony to assist the trier of the facts be required to do so with candor and in good faith.
A similar problem would be encountered if attorneys who were not familiar with scientific and technical matters were permitted to represent clients wishing to prosecute patent applications in the PTO. Accordingly, in order to become registered to practice before the PTO as a patent attorney, an attorney must apply to the Commissioner of Patents, and establish that he or she is of good moral character and repute, possesses legal, scientific, and technical qualifications necessary to render applicants for patents valuable service, and is otherwise competent to advise and assist applicants for patents in the presentation and prosecution of their applications. The establishment of competency and the legal, scientific and technical qualifications is achieved by a rigorous examination which cannot be "a mere academic exercise."
Similarly, it would serve the interests of justice and their clients if at least one of the attorneys representing clients who elect to introduce expert testimony was technically, scientifically and legally competent to advise and assist those clients in matters related to the expert testimony, including its reliability. Registered patent attorneys could serve this function immediately, but a better approach would be to extend the pool of technically competent attorneys by establishing an "expert testimony bar" to serve such clients. We propose a rule that would require attorneys representing clients who elect to use expert witnesses in litigation to associate themselves with a registered member of the expert witness bar before any expert may be named. The rule would apply to all parties except those in pro se litigation, and, of course, expert witness bar attorneys would not be required to associate themselves with another member of that bar.
(a) No individual will be registered to practice as an Expert Testimony Attorney unless he or she shall:
(1) Apply to the Supreme Court in writing on a form supplied by the Clerk and furnish all requested information and material; and
(2) Establish to the satisfaction of the Court that he or she is:
(i) Of good moral character and repute;
(ii) Possessed of the legal, scientific, and technical qualifications necessary to enable him or her to render clients wishing to introduce expert testimony valuable service; and
(iii) Is otherwise competent to advise and assist clients who elect to introduce expert testimony in the selection of their experts and determining the reliability of the expert's proposed testimony.
(b) In order that the Court may determine whether an individual seeking to have his or her name placed upon the register has the qualifications specified in paragraph (a) of this section, satisfactory proof of good moral character and repute and sufficient basic training in scientific and technical matters must be submitted to the Court. Except as provided in this paragraph, each application for registration must take and pass an examination which is held from time to time. Each applicant for admission to take the examination for registration must be accompanied by the application fee set by the Court. The taking of an examination may be waived in the case of any attorney who is registered to practice before the PTO. The examination will not be administered as a mere academic exercise.
(c) Within two months from the date an applicant is notified that he or she failed an examination, the applicant may request regrading of the examination upon payment of the fee set by the Court. Any applicant requesting regrading shall particularly point out the errors which the applicant believed occurred in the grading of his or her examination.
Before an individual may have his or her name entered on the register of Expert Testimony Attorneys, the individual must, after his or her application is approved, subscribe and swear to an oath or make a declaration prescribed by the Court and pay the registration fee set by the Court.
(a) An Expert Testimony Attorney shall not accept or continue employment in connection with any aspect of expert testimony which the attorney knows or should know is not within the attorney's professional, technical, or scientific competence unless another attorney who is competent to handle that aspect of the expert testimony is associated in the matter.
(b) An attorney is competent to handle expert testimony in the federal courts if the attorney:
(1) Is registered to practice as a Expert Testimony Attorney before the U.S. Supreme Court,
(2) Has the knowledge, skill, experience, training and/or education necessary to enable the attorney to study the specific professional, technical, and/or scientific fields underlying the expert testimony and become sufficiently competent in those fields to advise a client in connection with the reliability of the expert testimony, and
(3) Studies the professional, technical and/or scientific fields underlying the expert testimony and becomes sufficiently competent to advise a client in connection with the reliability of the expert testimony.
(c) An Expert Testimony Attorney may be competent to handle expert testimony even though he or she cannot readily explain the expert testimony in lay terms.
(d) If the judge finds that the Expert Testimony Attorney has materially misrepresented the information required in the Daubert Brief, the judge is required to report this to the Supreme Court Committee charged with the supervision of the Expert Testimony Bar. If, after investigation, the allegations are determined to be true, the Expert Testimony Attorney shall lose his/her registration and this fact will be reported to the appropriate state bar for further proceedings.
The rules suggested above are drafted for use by federal courts. Similar rules are suggested for use by the state courts. These model rules are intended as a framework for solving the problem of "junk science" in the courtroom. We suggest these drafts for consideration by the U.S. Supreme Court and their counterparts for consideration by the various highest level civil and criminal courts in each state. The first three rules comprise a framework of a mechanism for testing the reliability of expert testimony; the last three rules comprise the framework of a mechanism for ensuring the technical competence of attorneys necessary to fulfill the expectations of the first three rules.
1. Edward P. Richards and Charles Walter, Science in the Supreme Court: Round Two IEEE ENGINEERING IN MEDICINE AND BIOLOGY MAGAZINE 17(2), 124 (1998).
2. 37 C.F.R. Section 1.56.
3. 37 C.F.R. Section 1.98.
4. 37 C.F.R. Section 10.7(a).
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