1. A 'Qwest' for Justice
An end-of-term
hint from the Supreme Court that it might take up an appeal gave renewed
significance to an expert witness case decided in February by an en
banc 10th U.S. Circuit Court of Appeals.
Not that
the case had not already earned its share of attention. It resulted in the
affirmation of the 2007 conviction of Joseph Nacchio, former Qwest CEO, on
federal insider-trading charges. Nacchio is currently serving a six-year sentence
in a Pennsylvania prison.
On June
30, the last day of the Supreme Court term, as hope appeared to be fading for
Nacchio's last-ditch appeal, the court requested the entire record from his
earlier trials and appeals. The move signals that the court might take up Nacchio's
appeal when it reconvenes in the fall.
Nacchio
had appealed his conviction on several grounds, foremost among them that the
trial judge had improperly excluded the testimony of an expert. Nacchio argued
that the judge excluded the expert because his identity was not disclosed until
three days before trial. The judge should have based his ruling on the "gatekeeping" standards
of Daubert and Kumho Tire, Nacchio argued.
A divided
three-judge panel of the 10th Circuit sided with Nacchio, holding that the
expert's exclusion was improper. But on review by the full bench, the 10th
Circuit held that the judge properly performed his gatekeeping function and
it affirmed Nacchio's conviction.
Review
by the Supreme Court would not just decide Nacchio's fate, but could set new
precedent governing the use and admissibility of expert testimony.
2. Bridging the Separation of Powers
When the Arizona legislature enacted a law setting minimum qualifications
for expert witnesses in medical malpractice cases, many legal observers
believed it had crossed the constitutional line of separation of powers.
Last year, Arizona's intermediate court of appeals took their side
and ruled that the statute was unconstitutional. It held that the statute
encroached on the judicially promulgated Arizona Rule of Evidence 702,
governing the admissibility of expert testimony.
So when the Arizona Supreme Court reversed the court of appeals and
upheld the statute, the precedent was widely seen as important not
just in Arizona, but for supporters throughout the United States of
legislation to limit tort liability.
"This is a very important decision, a huge decision," the executive
vice president of the Arizona Medical Association said in a statement after
the ruling was issued. "We feel it's a benchmark ruling that is important
for other states as their courts look at tort reform in terms of separation
of powers."
The
statute limits who may testify as an expert on the issue of standard of care
when the defendant is a medical specialist. It requires that the expert have
devoted a majority of time in the year preceding the incident to active practice
or teaching in the same specialty.
While
acknowledging that the statute sets qualifications for experts above those
required by its own rule of evidence, the court concluded that the statute
was within the legislature's power to set substantive rules governing tort
actions.
3. No Automatic Exemption from Sequestration
Trial
lawyers routinely argue that experts should not be included in orders
that exclude witnesses from the courtroom. They ground this argument
on Federal Evidence Rule 703, which permits an expert to base an
opinion on facts or data made known during trial.
It
makes sense. After all, the purpose of a sequestration order
is to avoid one witness's testimony from being influenced
by that of another witness. Yet Rule 703 would seem
to expressly authorize experts to have their opinions
influenced in this way.
But this
common assumption has been called into question by the 7th U.S. Circuit Court
of Appeals. It ruled that experts are not entitled to any per se exception
from sequestration orders. Rather, the party seeking to keep the expert in
the courtroom would have to show that the expert's presence is "essential."
"Merely
because Rule 703 contemplates that an expert may render an opinion based on
facts or data made known at trial does not necessarily mean than an expert
witness is exempt from a Rule 615 sequestration order," the court said.
Only
two federal circuits had formerly decided this question and both of those decisions
were nearly three decades ago. By aligning itself with those two earlier rulings,
this case serves to solidify the rule that experts enjoy no automatic exemption
from sequestration.
4. The Right to Confront an Expert
A
Supreme Court opinion issued this year is significant not for what
it says about the testimony of experts, but what it says about
the lack of such testimony.
At issue
in the case was a Massachusetts statute that permitted the written results
of forensics laboratory analysis to be admitted as evidence without testimony.
In the case at bar, the so-called certificate of analysis certified that a
substance found in the defendant's possession was cocaine.
At trial,
the defendant objected to admission of the certificate, arguing that the Constitution's
Confrontation Clause required the scientist who conducted the analysis to testify
in person. The trial judge overruled the objection and the state's appellate
courts upheld the judge's decision.
Calling
this a "rather straightforward application" of the Confrontation
Clause, the Supreme Court, in an opinion written by Justice Antonin Scalia,
ruled 6-3 to reverse the conviction.
"The
analysts' affidavits were testimonial statements, and the analysts were 'witnesses'
for purposes of the Sixth Amendment," the court said. "Absent a showing
that the analysts were unavailable to testify at trial and that petitioner
had a prior opportunity to cross-examine them, petitioner was entitled to 'be
confronted with' the analysts at trial."
Melendez-Diaz
v. Massachusetts, 557 U.S. ___ (2009).
5. A Scientific Process of Elimination
Courts
are divided on the admissibility of a medical expert's opinion based
on "differential
diagnosis." This is the method by which a physician determines the cause
of a patient's symptoms by eliminating all other possible causes – a
scientific process of elimination.
And even
in jurisdictions where appellate courts have upheld the admissibility of differential
diagnosis, there often remains uncertainty about when such a diagnosis conforms
to the standards of reliability required by Daubert.
Such was
the case within the 6th U.S. Circuit, where the court, in a 2001 decision,
had indicated that a differential diagnosis could be admitted if it was sufficiently
reliable, but had failed to provide details on how to determine reliability.
The
issue arose in a product liability case in which a man claimed a pool chemical
caused him to lose his sense of smell. The trial judge excluded the testimony
of the man's expert, a board-certified otolaryngologist and former chemical
engineer, ruling that his differential diagnosis was "unscientific speculation."
Reversing
the trial judge, the 6th Circuit established a clear-cut test for judges to
apply.
"A doctor’s differential diagnosis is reliable and admissible where
the doctor (1) objectively ascertains, to the extent possible, the nature of
the patient’s injury, … (2) 'rules in' one or more causes of the
injury using a valid methodology, and (3) engages in 'standard diagnostic techniques
by which doctors normally rule out alternative causes' to reach a conclusion
as to which cause is most likely."
Best
v. Lowe's Home Centers, 563 F.3d 171 (6th Cir. 2009).
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