EvidenceProf Blog

Keep On Truckin': Central District Of Illinois Allows Testimony About Destroyed Log Books Under Rule 1004(1)

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

That said, Federal Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....

So, let's say that an individual driving a minivan is injured in a car crash with a semi truck and trailer. And let's say that the minivan driver later pleads guilty to driving under the influence. Finally, let's say that the driver of the semi truck and trailer keeps log books but that neither he nor his employer are under any obligation to preserve the log books for more than six months. Of the log books are destroyed after the individual pleads guilty to DUI and before she sues the truck driver and his employer for negligence, should the court find that the log books were destroyed in bad faith? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924157 (C.D.Ill. 2011), the answer is "no."

In Campbell, the facts were as stated above, with Jodi Campbell bringing a negligence action against Samuel Gross, the driver of the truck, and RAP Trucking, his employer. Before trial, Campbell filed a motion to preclude testimony about the contents of his now destroyed log books. Specfically, the defendants planned to call Charles Burwell,

who inspected the log books in connection with the accident on or about February 10, 2008, in his role as an Illinois State Police commercial vehicle compliance officer. Burwell is expected to testify that: (1) he inspected Gross's semi and reviewed his log books, including for any hours of service or other violations; (2) he wrote a report of the inspection; (3) the report does not identify any hours of service or other violations as might have been discovered in the log books; and (4) if the log books had reflected a violation of any kind, it would have been indicated in his report.

The Central District of Illinois denied the motion. Campbell then filed a motion to reconsider, and the court concluded that the issue was governed by Federal Rule of Evidence 1004(1). The court thus found that

the admissibility of Burwell's testimony depends on whether the log books in question were destroyed in bad faith. Plaintiff asks this Court to infer that the log books were destroyed in bad faith simply because the log books were actually destroyed, based on the theory that if the log books were favorable to the Defendants, they would have been retained. Defendants argue that RAP Trucking is not obligated or required by any authority to maintain the log books in question for longer than six months after their creation, as acknowledged by one of Plaintiff's disclosed experts, George P. Huston. Although RAP Trucking was clearly aware of the accident at the time the log books were discarded, no suit had been filed and they did not expect a suit to be filed as Plaintiff had been charged and plead guilty to driving under the influence (DUI) in connection with the accident.

The court thus "agree[d] with the Defendants that there is no evidence of bad faith destruction of the log books advanced by the Plaintiff, and further that the explanation for the destruction of the log books is not unreasonable."

-CM 

Bryant and Multiple Concurrent Purposes

In my last entry, Post-Bryant Case Law Confirms Scalia’s Fears, I discussed the ease in which the primary purpose test can be manipulated to reach desired outcomes.  This post addresses the test’s inability to determine the testimonial or non-testimonial nature of interrogations involving multiple concurrent purposes. 

The inability of the primary purpose test to account for multiple concurrent purposes was one source of contention in Bryant.  In that case, the majority rightly noted that police and victims of violent crime often act with more than one purpose.  See Michigan v. Bryant, 131 S.Ct. 1143, 1161 (2011).  Moreover, it would be rare for a person involved in such a volatile situation to announce his intent before speaking.  Thus, a test that asks a court to divine the “primary purpose” of a hypothetical similarly-situated individual from among potentially several unstated purposes is nothing but “an exercise in fiction.”  Id. at 1167 (Thomas, J., concurring). 

Despite the difficulties inherent in determining an individual’s “primary purpose,” the Bryant majority confidently concluded that the responding officers’ sole purpose was to assess the alleged “ongoing emergency” that existed at the time, despite no direct evidence of that intent. See id. at 1165-66.  But this is just part of the analysis, as Bryant also requires courts to consider the declarant’s purpose, which promises to compound the analytical difficulty.  See id. at 1170 (Scalia, J., dissenting) (“Now courts will have to sort through two sets of [potentially] mixed motives to determine the primary purpose of an interrogation;” moreover, “[Bryant] creates a mixed-motive problem . . . where the police and the declarant each have one motive, but those motives conflict.”).  

By analogy, courts considering forfeiture-by-wrongdoing arguments have recognized that people often commit acts with multiple motives.  For example, in United States v. Martinez, the United States Court of Appeal for the District of Columbia rejected the defendant’s claim that a would-be witness was killed in retaliation for his involvement with the police, rather than to prevent his future trial testimony.  476 F.3d 961 (D.C. Cir. 2007).  According to the court, defendant’s “argument is based on a false either-or dichotomy,” as “intending both to exact revenge and to prevent the informant from disclosing further information and testifying” are purposes that “often go hand-in-glove.”  Id. at 966.  See also State v. Alvarez-Lopez, 98 P.3d 699, 704-05 (N.M. 2004) (“The State ‘need not . . . show that [defendant’s] sole motivation was to procure the declarant’s absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) (same); Vasquez v. People, 173 P.3d 1099, 1104-05 (Colo. 2007) (en banc) (same).

As in the forfeiture-by-wrongdoing cases, lower courts applying the primary purpose test have recognized the possibility of multiple concurrent purposes.  An Oregon case, State v. S.P., 215 P.3d 847 (Ore. 2009) (en banc), is particularly instructive. 

In S.P., the Oregon Supreme Court examined hearsay statements of a three year-old sexual abuse victim, N, made to staff members at a local “Child Abuse and Response Service” (“CARES”).  The CARES evaluation team consisted of a pediatrician, a social worker, two Department of Human Services workers, and a Sheriff’s Deputy.  As the Deputy observed the evaluation through a one-way mirror, a social worker elicited information from N that implicated defendant Youth in various crimes. 

At Youth’s trial, the juvenile court ruled that most of N’s statements were non-testimonial, thus admissible in the absence of confrontation.  Id. at 850.  The Court of Appeals reversed, and declared N’s statements testimonial.  State v. S.P., 178 P.3d 318 (Ore. Ct. App. 2008).  According to the intermediate appeals court, the CARES interview served two “primary” purposes: to obtain information for a medical diagnosis and to preserve evidence for prosecution.  Id. at 329-330.

Like the lower court, the en banc Oregon Supreme Court viewed the case as one involving the “concurrent and coequal” primary purposes of medical diagnosis and preservation of criminal evidence.  S.P., 215 P.3d at 864.  As a result, the court resolved the case by examining “whether the declarant’s statements were the equivalent of ‘testimony.’”  Id.  Examining “all the circumstances,” including “the knowledge and intentions of all persons involved in the interrogation,” id. at 865 (a standard arguably consistent with Bryant), the court reasoned that “N made his statements in a formal setting, in response to structured questions about past events with potential serious consequences for [Y]outh.”  Id. at 864.  According to the court, “witnesses do go into court to describe past sexual misconduct, and that is exactly what N did at CARES.”  Id.  Thus, “[f]rom a functional standpoint, N’s examination was similar to the ex parte examinations condemned in Crawford,” in that “N acted as a witness; he bore testimony against [Y]outh.”  Id. 

Cases involving multiple concurrent purposes raise several important and unresolved issues, including (1) whether more than one “primary” purpose is possible under the Bryant test; (2) if not, how to determine whether a forensic or medical diagnosis purpose is the “primary” one; and (3) more broadly, how to resolve interrogations conducted by non-police actors.  See Bryant, 131 S.Ct. at 1155 n.3 (“Davis explicitly reserved the question of ‘whether and when statements made to someone other than law enforcement personnel are ‘testimonial’  We have no need to decide that question in this case either . . . .”).  These are each significant issues that are already creating splits among the courts.

Marc C. McAllister

Duty Free: Court Of Appeals Of Texas Finds No New Trial Warranted Despite Jury Misconduct

Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that a trial involves the question of whether a defendant breached a fiduciary duty. And let's say that jurors use dictionaries to look up the terms "fiduciary" and fiduciary duty." Jurors can testify about these acts consistent with Rule 606(b), but does this jury misconduct warrant a new trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Holland v. Lovelace, 2011 WL 3805519 (Tex.App-Dallas 2011), the answer is "no."

In Lovelace, 

Kim Holland, in her capacity as Receiver of Petrosurance Casualty Company (PCC), brought [a] suit for damages against three former PCC officers and PCC's auditors and consultants. After a five-week jury trial, the trial court signed a judgment awarding Holland $30,000 in damages against appellees Charles Ray Lovelace, Robert Carlin Lee, and Richard Wayne Miller (together, the Officers). The trial court's judgment also provided that Holland take nothing from appellee Murrell, Hall, McIntosh & Co., PLLP (MHM).

In reaching this conclusion, the jury found that the Officers breached their fiduciary duties but that MHM did not knowingly participate in the breach. Thereafter, Holland filed a motion for a new trial against MHM, claiming that there was jury misconduct falling into six categories. After the trial court denied the motion, Holland appealed to the Court of Appeals of Texas, Dallas.

According to Holland, inter alia, it was "the regular practice of some jurors" to look up definitions of unfamiliar words and share the definitions with other jurors. Moreover,

according to multiple witnesses, including juror Mito, juror Mito looked up the word "fiduciary" or the term "fiduciary duty" during trial and may have shared the definition with others. Also, alternate juror Jones testified that (1) four jurors looked up "[t]hree to four" words said by witnesses during trial, and (2) he believed juror Adams "looked stuff up" because juror Adams brought his computer to the jury room most days, and when other jurors asked him what some of the words meant, he told them.

The Court of Appeals of Texas, Dallas, found that this testimony was properly received under Texas Rule of Evidence 606(b) but also found that a new trial was not warranted because

there [wa]s no evidence that sharing the definition of "fiduciary" or any other word most likely caused a juror to vote differently than the juror would have voted otherwise on an issue vital to the judgment. See Pharo, 922 S.W.2d at 950. 

Now, I'm not going to say that the court was wrong because I don't know whether the definitions of "fiduciary" or "fiduciary duty" that the jurors found were different than their legal definitions and could have led to a different vote. But what I do know is that the jury misconduct in Lovelace was nothing like the jury misconduct in Pharo v. Chambers County, Texas, 922 S.W.2d 945 (Tex. 1996), the case cited by the court. 

In Pharo, a juror made a casual comment about the aged condition of jury cards, and teh bailiff responded "for me to do something about the cards, I would have to raise the taxes." The court found that this comment was improper but that it did not require a new trial because "[t]he evidence indicate[d] that the bailiff made the remark casually, in a context unrelated to the issues in the lawsuit, and in a manner that was perceived by the panel members who heard it as a joke."

So, did the misconduct in Lovelace necessitate a new trial? I don't know, but I don know that the misconduct was in a context related to the issues in the lawsuit, unlike in Pharo.

-CM

606(b) TX

Holland v. Lovelace
--- S.W.3d ----, 2011 WL 3805519
Tex.App.-Dallas,2011.

http://courtstuff.com/cgi-bin/as_web.exe?c05_11.ask+D+13316181

A Taxing Matter, Take 2: 11th Circuit Affirms District Court's Ruling Denying Wesley Snipes' Motion For A New Trial

Yesterday, the Eleventh Circuit decided United States v. Snipes, 2011 WL 3890354 (11th Cir. 2011). In the opinion, the court affirmed the opinion of the United States District Court for the Middle District of Florida, which had denied actor Wesley Snipes' motion for a new trial and his related motions for leave to interview jurors. Snipes filed these motions after he was convicted of  three counts of willfully failing to file tax returns. In this post, I will explain why I think that the Eleventh Circuit got it wrong.

I previously posted an entry about Snipes' case last December, and that post contains the relevant facts of the case:

After actor Wesley Snipes was convicted of three counts of misdemeanor offenses involving willful failure to file his income tax returns and sentenced to consecutive terms aggregating three years imprisonment, he, inter alia, moved for permission to interview jurors and for a new trial. Part of the basis for this motion was, inter alia, an e-mail that defense counsel received the evening after the United States Court of Appeals for the Eleventh Circuit rejected Snipes' appeal of his conviction. This e-mail, which came from one of the jurors who heard Snipes' case stated,

I served on the jury in Ocala that found him guilty on 3 counts of failing to file taxes. It was a deal that had to be made because of certain jurors that had already presumed he was guilty before the trail [sic] started and we only found this out in the last few days of deliberation. We thought we were making the right deal because we did not think he would go to jail for not filing taxes. There were 3 on the jury that felt this way and told us he was guilty before they even heard the first piece of evidence going against what the judge had said. If I can be of any help feel free to call me at....

As noted, Snipes thereafter moved for a new trial and for leave to interview jurors based upon this apparent jury misconduct, but the district court denied him relief. According to the Eleventh Circuit,

On appeal, Snipes argues that the district court abused its discretion in denying his motions, raising two distinct arguments as to why his proffered emails were admissible under Rule 606(b). He first contends that the emails fell outside the Rule's general exclusion of evidence concerning the jury's deliberative process, because they were offered to show that jurors committed perjury during voir dire by falsely indicating that they accepted the presumption of innocence. Alternatively, he contends that even if the emails fell within the Rule's exclusionary provision, they were nevertheless admissible under the enumerated exceptions for evidence concerning improper outside influence or evidence concerning the jury's use of extraneous information.

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

According to the Eleventh Circuit, the juror e-mails did not qualify for admission under an enumerated exception to Rule 606(b), and I agree with this conclusion. But what about Snipes' argument that the e-mails were admissible notwithstanding Rule 606(b) to prove that jurors lied during voir dire? The Eleventh Circuit did not even address this argument. If it did, however, I think that it would have found for Snipes. As I noted in my prior post,

The Supreme Court of North Dakota in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), noted that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." Now, I'm not sure whether the court was quite correct that courts categorically had reached this conclusion, and at least one court since Hidanovic has reached the opposite conclusion (see here). That said, I have done extensive research into the subject and found that the court in Hidanovicwas basically correct: Almost all courts addressing the issue have held that jurors can testify about statements made during jury deliberations, not to impeach the validity of verdicts, but to prove that jurors lied during voir dire (which can lead to verdicts being overturned).

So, why did the Eleventh Circuit not even address this issue? I don't know, and this oversight makes no sense to me. What the Eleventh Circuit did cite was Tanner v. United States, 483 U.S. 107 (1987), in which the Supreme Court upheld Rule 606(b) against a Sixth Amendment challenge. Why? Well, according to the Court, 

Petitioners' Sixth Amendment interests in an unimpaired jury...are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire.

Here's the thing, though: When jurors lie during voir dire, a defendant's Sixth Amendment rights clearly are not protected. This is why the vast majority of courts allow juror testimony to prove that a juror lied during voir dire. Indeed, earlier this year, in United States v. Cooper, 2011 WL 493111 (11th Cir. 2011), the Eleventh Circuit came close to doing just that.

In Cooper, a juror knew a witness for the prosecution, and defense counsel sought a new trial because this juror allegedly lied during voir dire concerning this fact. The Eleventh Circuit noted the limitations of Rule 606(b) but also noted that a party can obtain a new trial if he can show "'that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'" The problem for the defendant is Cooper was simply that the juror apparently didn't lie:

Here, Cooper has not met the standard for a new trial based on juror misconduct. Because Johnson was asked during voir dire only if he knew the prosecutor, agents, defense attorneys or defendants, and was neither provided with the names of witnesses nor asked whether he knew any of the witnesses, Cooper cannot prove that Johnson failed to answer a material voir dire question untruthfully. Additionally, because Cooper's affidavits affirmed only that Johnson and Williams knew each other, and because Cooper failed to provide any proof of specific facts showing that Johnson had a "close connection" to Williams, he has not met the standard to imply that Johnson was a biased juror. Additionally, none of the affidavits alleged that Johnson improperly credited Williams's testimony or led the other members of the jury to place undue weight on Williams's testimony. Accordingly, Cooper's allegations of Johnson's misconduct were mere speculation, and the district court did not abuse its discretion in declining to conduct further investigation and denying Cooper's request for a new trial.

The clear implication of this analysis is that the defendant could have gotten a new trial if the juror did lie in response to a material question during voir dire. I am thus very surprised that the Eleventh Circuit did not even give Snipes a chance to interview jurors to uncover whether any jurors lied during voir dire.

-CM

Fried Shrimp: 11th Circuit Finds No Problem With Lay Testimony On Standard Practices Of Truck Drivers

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, let's say that a truck driver and several other defendants are charged with stealing two containers of frozen shrimp from a shipping container yard. And let's say that the prosecution has several lay witnesses testify concerning the standard practice of truck drivers. Is this proper lay testimony? According to the recent opinion of the Eleventh Circuit in United States v. Collado, 2011 WL 3821997 (11th CIr. 2011), the answer is "yes."

In Collado, 

Hendy Collado and several co-defendants were charged with stealing two containers of frozen shrimp from a shipping container yard in Jacksonville and transporting them to Miami. It [wa]s undisputed that Collado drove his truck into the yard, picked up a container of frozen shrimp, and transported it to Miami. His defense at trial was that he did not know that the shrimp was stolen, and that the government failed to prove that the shrimp was part of interstate commerce and that its value exceeded $1,000.

This defense, however, was not successful, and Collado was ultimately convicted of conspiracy to possess stolen goods valued in excess of $1,000 and possession of stolen goods valued in excess of $1,000. 

After he was convicted, Collado appealed, claiming that the district court erred in allowing the prosecution to admit "expert" testimony concerning the standard practices of truck drivers. Specifically,

One witness, the terminal manager of the Jacksonville container yard, testified that when truckers came to the yard to pick up cargo, they were required to present certain paperwork, to inspect the container and its contents, and to sign certain paperwork. Another witness, the owner of the trucking company that Collado was working for, testified that Collado was required by the company and federal law to document his time and the loads he transported. As Collado did not comply with these requirements, the government argued that Collado knew that he was involved in an illegal scheme.

The government argued in response "that this testimony constituted lay opinion testimony under Fed.R.Evid. 701." The Eleventh Circuit disagreed, quickly concluding that

Rule 701 permits an officer or employee of a corporation to offer lay opinion testimony about industry standards...This is all the witnesses here testified about; they merely described shipping practices with which they were familiar, based on their own observations and personal experience. The district court, therefore, did not abuse its discretion in admitting their testimony.

I agree and think that the court's opinion finds support in the Advisory Committee's Note to the 2000 Amendment to Federal Rule of Evidence 701, which notes that 

The amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.''...

For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. 

Indeed, the Eleventh Circuit previously cited to this language in Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co, Ltd., 320 F.3d 1216-17 (11th Cir. 2003), in which it found that a district court did not err in allowing ship repairers to offer lay opinion testimony about industry standards in the ship repairing industry and the reasonableness of the defendant’s charges and the time it took to complete the repairs.

-CM

In General, Take 2: ND Iowa Allows For Admission Of Expert Testimony About Device Not "Generally Accepted" By Lawnmower Manufacturers

In yesterday's post, I noted the courts in a decent number of cases have allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence not having general acceptance in the relevant expert community. This usually happens in cases where the test/methodology is novel and has not yet had a chance to gain general acceptance. That left the question of whether a court has ever allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence being rejected by the relevant expert community. Well, the recent opinion of the United States District Court for the Northern District of Iowa in Estate of Bruess ex rel. Bruess v. Blount Intern., Inc., 2011 WL 2680760 (N.D. Iowa 2011), kind of fits that description, but it also kind of doesn't.

In Bruess, 

Donald J. Bruess died on October 24, 2007, when a riding lawn mower he was operating rolled over into a pond, pinning Bruess under the water. While the mower being operated by Bruess c[ould not] be located, it [wa]s believed to be a model 5022 ZTR, manufactured by Dixon. In his amended complaint, Bruess[' son] allege[d], among other things, that the mower was negligently designed and unreasonably dangerous as a consequence of not having a rollover protective system (“ROPS”).

Before trial, Bruess' son identified Thomas A. Berry as an expert witness.

After an extensive review of the "hazard/risk" of a riding lawn mower rolling over, and the types of operator protection which can be employed when a rollover occurs, Berry opines in his report that the zero-turn mower involved in this incident was "defective in design and unreasonably dangerous." Among other things, Berry concluded that "[t]he manufacturer knew or should have known of technically and economically feasible design alternatives that would have significantly reduced the risk without adversely affecting the utility of the machine." Moreover, Berry concluded that "design alternatives" were available for the Dixon zero-turn mower.

Specifically, Berry asserted that

The Dixon 5000 Series should have been provided with a rollover protective structure or rollbar and seat belts that would create an operator protective zone in the event of a tipover and/or rollover accident. The cost of providing a ROPS and seatbelt for the Dixon 5000 Series is estimated to be in the range of $100 if the mounting structure is designed into the frame up and up to $150 if not.

Dixon thereafter moved to exclude Berry from testifying because his testimony would not satisfy the Daubert test.

In response, the Northern District of Iowa noted that "[t]he first, and perhaps most important, factor in a design defect case is whether or not the theory has been tested." And, according to the court,

In reaching his initial opinions, Berry had not designed, tested, or certified a ROPS on this particular model. Furthermore, there is no evidence that he has designed, tested, or certified a ROPS for ZTR mowers of this particular size. However, Berry has done extensive testing of ROPS on various mowers throughout his career, both for manufacturers and for litigation purposes. The Eighth Circuit cases "do not require that experts manufacture a new device or prototype in order for their opinion to be admitted."...Rather, "an expert proposing safety modifications must demonstrate by some means that they would work to protect the machine operators but would not interfere with the machine's utility."...The Court is satisfied that Berry's previous experience designing, testing, and certifying ROPS for other mowers sufficiently validates Berry's opinion that a ROPS on this mower could protect the machine operator and would not interfere with the machine's utility, even though he did not conduct testing on this machine. Therefore, Berry's testimony meets the first factor of Daubert.

Conversely, under the second Daubert factor, th court concluded that "Berry's theory about this mower's defective design is not supported by peer review and this detracts from the reliability of his opinion."

The Northern District then noted that

The third factor looks at the rate of error of the theory or technique. Neither Dixon nor Bruess have briefed this issue and the Court does not believe this factor is relevant. The Daubert reliability factors should only be relied upon to the extent they are relevant.

That then took the court to the "general acceptance" factor. The court started by noting that

The parties substantially disagree on whether or not Mr. Berry's theory about rollover protection systems has gained a general acceptance in the relevant community. Bruess asserts that ROPS have been placed on more safety-minded manufacturers' tractors since the 1970s, and that at least nineteen competitors have put them on ZTR mowers of 850 pounds or less. In contrast, Dixon points out that Berry agreed that the "vast majority" of ZTR mowers under 850 pounds were not equipped with ROPS in 1999. In Wagner v. Hesston Corp., 450 F.3d 756, 759 (8th Cir. 2006), the Eighth Circuit Court of Appeals looked at industry standards in measuring "general acceptance," by noting "the lack of evidence showing general acceptance in the industry of safety guards for large bailers[.]" 

The Northern District of Iowa resolved this issue by concluding that

In this case, the most relevant community is manufacturers of riding lawnmowers of similar size (850 pounds or less) during 1999. Plaintiff's Exhibit 6014 shows that only two of the current nineteen manufacturers had manufactured ROPS for their mowers of 850 pounds or less at that time. In fact, these manufacturers only had ROPS as optional equipment. Furthermore, the industry standard at the time did not require ROPS for ZTR mowers. The fact that the evidence on the record shows that only two manufacturers of ZTR mowers of this size included ROPS as even optional equipment establishes that Berry's testimony falls short of meeting the "general acceptance" standard articulated in Daubert.Therefore, Berry's failure to establish this factor detracts from the reliability of his testimony.

So, that's 1 factor supporting admissibility, and 3 factors cutting against admissibility. But wait, there's more. The court therefter noted that "[t]he Eighth Circuit Court of Appeals has also held that an opinion that is based on research conducted independent of litigation is more reliable than one that has been developed for litigation." Applying this factor, the Northern District of Iowa found that

At Mr. Berry's deposition, he testified that he was hired out of college to begin working with an engineering company and spent 40–80 of his time on litigation matters. Since 2005, Berry has devoted 60–70% of his time to being an expert witness in lawsuits and he derives 100% of his working income from serving as an expert witness. Berry estimates he has been hired by Bruess's attorney, Mr. Gehlhausen, seven or eight times and has previously testified about ZTR lawn mowers. Furthermore, Berry's article entitled "Stability Related Accidents Involving Ride-on Mowers" was published after litigation began. On the other hand, Berry has designed, tested, and certified mowers throughout his professional career for manufacturers as well. The Court concludes that this factor weighs against the reliability of Berry's testimony.

And the court then also noted that "[a]nother factor the Eighth Circuit Court of Appeals has adopted is whether the expert has ruled out alternative ways the harm may have occurred." Applying this factor, the court concluded that

Although it is possible that the accident occurred because the decedent was incapacitated, the proper consideration is whether Mr. Berry has ruled out other possible alternatives that could have caused the harm once the accident did occur. In this case, Berry's opinion suggests a ROPS may have altered the outcome of the accident, and the issue is whether this mower was defectively designed because it did not include a ROPS. The Court concludes that Berry has met the requirements of this factor.

Thus, based upon these additional factors, the Northern District of Iowa determined that Berry's testimony was sufficiently reliable to satisfy the Daubert test.

So, there you (sort of) have it. ROPS has been rejected by the lawnmower manufacturer community, and yet the Northern District of Iowa allowed expert testimony concluding that the decedent's death could have been prevented if his lawnmower were equipped with it. Of course, as I noted above, this isn't a clear cut case because we don't know (all of) the reasons that most lawnmower manufacturers have refused to install ROPS. Is it because they think that it wouldn't improve the safety of lawnmowers (much)? Or is it because they don't want to spend the extra money to install it? Or, as is likely, is it some combination of the two along with other factors?

-CM

Post-Bryant Case Law Confirms Scalia's Fears

The Sixth Amendment’s Confrontation Clause has undergone significant change in the past seven years, particularly as it relates to hearsay statements made in response to police interrogation or its functional equivalent.  Prior to Crawford v. Washington, 541 U.S. 36 (2004), the rule of Ohio v. Roberts allowed such statements to be admitted upon a mere showing of reliability.  The amorphous nature of the Roberts rule eventually led to its demise; under Roberts, courts frequently attached different meanings to the same reliability factor, and often reached opposite outcomes on virtually identical facts. 

In overruling Roberts, Crawford’s stated goals were to curtail judicial discretion and to prevent testimonial evidence from reaching the factfinder without the benefit of adversarial testing.  See Crawford, 541 U.S. at 67-68 & 54.  Just seven years later, the Court’s more recent rulings in this area, most notably Michigan v. Bryant, 131 S.Ct. 1143 (2011), have revived those very deficiencies.  Reminiscent of Roberts, Bryant notes more than ten factors to distinguish “testimonial” from “non-testimonial” statements.  Bryant further instructs courts to consider “all relevant information” and to decide each case “in context,” a classic totality-of-circumstances approach bearing striking similarities to the Roberts framework. 

Justice Scalia, the author of Crawford, was one of only two dissenters in Bryant.  Justice Scalia’s dissent bemoaned the opinion’s overall influence on Confrontation Clause jurisprudence, and particularly noted the ease in which the majority’s standards can be manipulated to reach desired outcomes.  See Bryant, 131 S.Ct. at 1170 (Scalia, J., dissenting). 

Bryant was decided on February 28, 2011, so there is now more than six months of lower court case law applying Bryant.  A comparison of recent cases confirms Justice Scalia’s fears.  For example, post-Bryant cases have drawn opposite inferences from the same Bryant factor: the declarant’s dire medical condition.  In addition, one post-Bryant case, People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. June 28, 2011), distinguished Bryant based upon the precise wording of the questions asked, yet the two factual scenarios were nearly identical in all other respects. 

In both Bryant and Clay, police responded to the call of a man having recently been shot.  In both cases, police discovered the man in dire medical condition, mortally wounded and lying on the ground.  In both cases, the shooting victim died shortly after speaking with the police.  Yet, the Clay court distinguished Bryant based upon the nature of the questions asked, ignoring most other factors set forth in Bryant.  For example, the Clay court downplayed the informality of the encounter by relegating it to a footnote, a factor the Bryant Court found significant.  See id. at *10 n.1.  In its attempt to divine the primary purpose of the interrogation, the Clay court reasoned that the officer’s inquiry, “Who shot you?  I don’t think you are going to make it. Who shot you?” was more akin to “Tell us who did this to you so that we can arrest and prosecute them,” the testimonial example noted in Bryant, than to a general inquiry beginning with “what happened?”  Accordingly, the Clay victim’s response was deemed “purely accusatory,” hence testimonial.  Id. at *7.

Clay illustrates how slight changes in an interrogator’s wording can change the Sixth Amendment outcome.  Presumably, had the officer simply asked the declarant “a general battery of questions” (even including questions aimed at discovering the identity of the assailant, as in Bryant), the declarant’s response would become magically non-testimonial.  Uttering questions such as “what happened?” rather than “who shot you?,” or posing questions about the identity of one’s assailant within “a general battery of questions,” is an incredibly easy distinction for interrogating officers to manipulate.  It also makes the Constitution turn on trivialities.  Notably, the Clay court had the benefit of a dying declarations argument that had been preserved on appeal.  Thus, the Clay court, unlike the Bryant Court, did not need to stretch the concept of “ongoing emergency” to reach the same overall outcome. 

Other courts analyzing interrogations nearly identical to Clay have reached the opposite outcome.  For example, in State v. Calhoun, 657 S.E.2d 424 (N.C. Ct. App. 2008), a pre-Bryant case, the court deemed non-testimonial the statements of a shooting victim identifying his assailant.  As in Clay, the declarant in Calhoun, who was found motionless after having been shot, was asked just one question: who shot him.  In response, the declarant stated it was “Chico” and “Worm.”  The victim was then asked to squeeze the interrogator’s hand to confirm that “Chico” and “Worm” were the shooters, and the declarant did so.  This was the extent of the interrogation.  However, in contrast to Clay, the court deemed the declarant’s statements non-testimonial.  The Clay court would presumably disagree, as the officer’s sole question in Clay, “who shot you,” was nearly identical to the sole question posed in Calhoun. 

Another recent case, Graure v. United States, 18 A.3d 743 (D.C. Ct. App. 2011), further illustrates the malleability of the Bryant test.  In that case, defendant Vasile Graure was prosecuted for having set fire to a strip club.  Club employee Djordjevic, the eventual out-of-court declarant, confronted Graure as he entered the club carrying gasoline and a lighter.  As the two struggled, Graure was able to pour and ignite the gasoline, and Djordjevic was “completely covered in flames.”

Minutes later, club manager Kathleen Lazorchack saw Djordjevic emerge from the building.  According to Lazorchack, Djordjevic was “[c]harred from [] head to toe.”  Indicating a concern for his own welfare, rather than some hypothetical desire to address an ongoing emergency, Djordjevic told Lazorchack not to touch him.  At this point, Lazorchack asked, “how did this happen?”  Id. at 752. 

Djordjevic responded, “I saw that man coming back with a can and I tried to stop him.”  Another club employee, Talebnejad, then asked Djordjevic, “what happened?”  Djordjevic explained that “the guy” came back to the club and tried to burn it, and that Djordjevic had tried to stop him.  Id. at 751-52. Witnesses later described Djordjevic as “very frantic” and “in shock.”  Id. at 755.

Djordjevic was still in the hospital at the time of Graure’s trial, and the trial court introduced the statements Djordjevic made after exiting the club.  The United States Court of Appeals for the District of Columbia affirmed.  Id. at 755.  After noting three Bryant factors – the weapon employed, the victim’s medical condition, and the informality of the situation – the court stated that “all of the factors . . . identified in Bryant support a conclusion that [the] statements were not testimonial.”  Id. at 757 (emphasis added).  According to the court, “[w]hat had injured the visibly burned Djordjevic was fire, a weapon that could have continued to pose a threat to those in or near the club.”  Moreover, “the situation did not involve formal or structured questioning.”  Finally, “Djordjevic’s medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’”  Id. at 757-58. 

While Graure’s ruling is plausible, the declarant, Djordjevic, likely had no purpose whatsoever in answering the simple questions posed by his superiors.  Djordjevic was “in shock” at the time and seemed to be focused on caring for his wounds rather than the danger posed by the defendant.  Indeed, it seems that Djordjevic, who acted bravely in attempting to stop the defendant from entering the club, had by this time shifted his focus away from the defendant and toward his own wounds, as would be expected under these circumstances. 

One could also question whether Djordjevic’s interrogator’s had any purpose other than to simply understand what had happened.  Talebnejad had gone home to his apartment about ten minutes after Graure was kicked out of the club, and returned to the club after he received a call about the fire.  Id. at 752 n.7.  Moreover, Talebnejad testified that he asked Djordjevic “what happened” simply because he “just wanted to know what happened.”  Id. at 758 n.18.  It would be natural for Talebnejad, a manager at the club who did not witness the event, to simply wish to know what had occurred.  Like a commuter who drives past the scene of an accident, the simple desire to understand what had caused the accident is neither a purpose directed toward future prosecution nor one intended to address an “ongoing emergency.”

Bryant, Clay, and Graure each involve statements made by a crime victim within minutes of the criminal event.  The victim’s statements in each case were made in direct response to preliminary investigative questions.  In all three cases, the court speculated as to the likely purpose of a reasonable victim in the circumstances of the actual victim.  In all three cases, it is possible that a similarly-situated declarant would envision prosecution, would be motivated by ending the threat from the assailant, would have multiple motivations, or even no motivation at all.  Various scenarios are also possible for the interrogators in each case.

In seeking to uncover which of the above purposes was the primary one, the Bryant Court believed “[t]he questions the [officers] asked – ‘what had happened, who had shot him, and where the shooting occurred,’ – were the exact type of questions necessary to allow the police to ‘assess the [emergency] situation.”  Id. at 1165-66.  Clay distinguished Bryant despite strong similarities in the overall factual scenarios, reasoning that the officer’s “evident reason” for asking “who shot you” was to give the declarant “his final opportunity to bear witness against his assailants.”  2011 WL 2570701 at *7.  Faced with the same type of generalized questions deemed significant in Bryant and highlighted in Clay, the Graure court could have invoked this factor to support its ruling, but it did not.  Rather, the Graure court emphasized only three of the Bryant factors, ignoring several others, yet stating that “all of the factors . . . identified in Bryant support a conclusion that Djordjevic’s statements were not testimonial.”  Graure, 18 A.3d at 757.  This analytical method, where any and all factors might be relevant in any given case, permits a court to reach whatever result it desires.

Judicial manipulation of the Bryant framework is further illustrated by comparing how Bryant, Clay, and Graure treated the dire medical condition of the declarant.  On this factor, the Bryant majority believed that “a person in Covington’s situation would [not] have had a ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution.’”  Bryant, 131 S.Ct. at 1165.  The Graure court agreed, reasoning that the declarant’s “medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’” Graure, 18 A.3d at 758.  The Clay court drew the opposite inference from nearly identical facts.  According to Clay, when a declarant’s medical condition is grave, the declarant might instead believe that the situation presents “his final opportunity to bear witness against his assailants.”  Clay, 2011 WL 2570701 at *7.  Justice Scalia advanced a similar argument in his Bryant dissent, see Bryant, 131 S.Ct. at 1171 (Scalia, J., dissenting).  Either inference seems reasonable.

In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.”  While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator.  I have written an article proposing a bright-line rule to replace Bryant’s factors test.  You can download the full article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606

Marc C. McAllister

Associate Professor of Law, Florida Coastal School of Law

mmcallister@fcsl.edu

In General: Has A Court Ever Found Non-Generally Accepted Expert Evidence Admissible Under Daubert?

An e-mail on the Evidence Law Professor listserv raises an interesting question. Before 1993, federal courts applied the Frye test to determine whether expert evidence should be admitted. This standard focused solely upon whether the proffered expert evidence was sufficiently established to have  general  acceptance in the field to which it belonged. In 1993, however, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which it concluded that the Frye test was superceded by the adoption of the Federal Rule of Evidence. In Daubert, the Court replaced the Frye test with the Daubert test, pursuant to which courts determining whether to admit expert evidence may consider several factors, including:

—Whether a "theory or technique ... can be (and has been) tested";

—Whether it "has been subjected to peer review and publication";

—Whether, in respect to a particular technique, there is a high "known or potential rate of error” and whether there are “standards controlling the technique's operation"; and

—Whether the theory or technique enjoys "'general acceptance'" within a ''relevant scientific community.'"

A main goal behind creation of the Daubert test was to exclude "junk" science from the courtroom that might have general acceptance in a relevant "expert" community but lack reliability.

This takes me to the question on the listserv, which was whether a court has ever found that expert evidence that did not have general acceptance within the relevant expert community still satisfied the Daubert test. I think the general consensus is that the answer is "yes" for novel evidence/methodologies that have not yet been sufficiently tested but probably "no" for evidence/methodologies that have already been sufficiently tested and rejected by the relevant expert community. If readers have any examples to the contrary, please feel free to e-mail me or leave them in the comments. In this post, I will highlight the case that I used to show the former point to my Evidence students.

In Borawick v. Shay, 68 F.3d 597, 610 (2nd Cir. 1995), the Second Circuit held that "Daubert allows for the admissibility of scientific evidence, even if not generally accepted in the relevant scientific community, provided its reliability has independent support." And while Borawick itself did not address this particular fact pattern, if you Shepardize the case or search for "even if not generally accepted" in ALLFEDS, you will find a few cases from the Second Circuit that address this fact pattern and allow for the admission of expert evidence that is not generally accepted in the relevant expert community.

The case I use in my Evidence classes to illustrate this point is Silivanch v. Celebrity Cruises, Inc., 171 F.Supp.2d 241 (S.D.N.Y. 2001), in which a passenger who allegedly contracted Legionnaires' Disease from a spa on a cruise sued the cruise line for negligence and the manufacturer of the sand filter used in the spa for products liability and breach of warranties. The plaintiff's expert performed a test on the filter and determined that it was defectively designed and that its inability to backwash properly was preventing disinfectants from circulating throughout the filter medium. The Southern District of New York found that the expert's testimony was admissible: 

The Essef Defendants object that this test is entirely novel and has never been validated. Certainly, there is no evidence that Mr. Suchanek's specific methodology has been tested, subjected to peer review, or widely accepted in the scientific community. But the critical question is whether it is sufficiently reliable to be admissible. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. In essence, Mr. Suchanek's protocol consisted primarily of observing the operation of the very device at issue. He introduced one additional element-the DE-so that the functioning of the filter could be visualized. The Essef Defendants have presented no evidence that this alteration in any way affects the normal operation of the filter or provides a misleading view of its performance. Daubert does not hold that every time an expert witness adopts some variation of a well-established method, his evidence will be excluded unless that variation itself has been scientifically validated. Indeed, with respect to one of the Daubert factors, the Supreme Court observed that “[s]ome propositions, moreover, are too particular, too new, or of too limited interest to be published.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786. That is the case here; the aspect of Mr. Suchanek's testing that is challenged by the Essef Defendants is too narrow for it to have been subjected to the scrutiny of the scientific community. Finally, even if Mr. Suchanek's tests were not adequately validated, their admission caused no substantial prejudice, since the results were consistent with other evidence that the TR-140 filter had a coring problem. For example, while Mr. Suchanek was employed by Essef Corporation, he performed dye tests that showed that the flow of water in the TR-140 during backwash was concentrated in the center of the tank. (Tr. 1361-62). He testified without contradiction that such dye tests are common in the industry. (Tr. 1362).

-CM