September 8, 2006
Threshold for Admissibility in CERCLA and FELA cases
An interesting question arises as to whether there is a lower standard of causation in some areas and whether this should impact admissibility rulings. This issue has arisen in CERCLA cases, Kalamazoo River Study Group v. Rockwell Int'l Corp., 171 F.3d 1065 (6th Cir.1999); Goodrich v. Betkoski, 99 F.3d 505 (2d Cir.1996); Freeport–McMoran v. B–B Paint Corp., 56 F.Supp.2d 823 (E.D.Mich.1999); and in FELA cases, Claar v. Burlington Northern R.R., 29 F.3d 499 (9th Cir.1994); Savage v. Union Pacific R.R., 67 F.Supp.2d 1021 (E.D.Ark.1999). Courts have generally concluded that admissibility criteria are not relaxed in these cases.
A recent Indiana case, however, appears to waffle on this issue. In Norfolk Southern Railway Co. v. Wagers, 833 N.E.2d 93 (Ind. App. 2006), the decedent’s estate alleged that his lung cancer was caused by his workplace exposure to asbestos fibers, diesel fumes and exhaust, and herbicides. Wagers also had a significant history of smoking cigarettes. At deposition, plaintiff’s expert testified that he had no knowledge about the frequency with which Wagers may have encountered or used materials containing asbestos and that he had no quantitative data about Wagers's exposure to asbestos and diesel fumes. Nevertheless, his testimony was admitted. According to the appellate court, "The trial court acknowledged Norfolk's ‘compelling’ arguments that Parkinson's opinion should be excluded under Evid. R. 702(b). However, it found controlling the Estate's argument that actions under FELA require less evidence of causation to establish liability than ordinary negligence actions and that a relaxed standard of causation in FELA actions also lowers the threshold of admissibility for expert testimony. Norfolk contends that the trial court erred in determining that this lower standard of admissibility applies in FELA cases. We need not decide whether a lower standard of admissibility applies, however, because Parkinson's testimony meets the requirements of Evid. R. 702(b)"
The appellate court’s protestations to the contrary notwithstanding, it is hard to imagine that most judges applying a Daubert-like test would permit an expert to testify on such a skimpy dosage and exposure record.
September 7, 2006
The New York Times published a wonderful "appreciation" for Steve Irwin, the Crocodile Hunter, who died this past week when he was stung in the heart by a stingray. Lawrence Downes wrote that Irwin would be missed particularly for his talent at bringing the wonders of nature to viewers around the world. (See full article here.) Irwin was no scientist, but he undoubtedly inspired many young viewers to become scientists. Mr. Downes observed:
It was easy to parody Mr. Irwin’s boisterous shtick, and many people did. It is easy, too, to shake our heads at the relentless peddling of nature as TV entertainment, and to lament that the only animals people ever bother thinking about are either fuzzy-cute or man-eating. It is all too obvious that Mr. Irwin was no biologist, that exploring the world on cable TV is a lot different from actually plunging into it, that wild animals really are dangerous, and blah blah blah.
But there are far worse ways to view the natural world than through the eyes of a young child, and Mr. Irwin offered a far more temperate version of the classic 6-year-old-boy approach, which is to confront a wild animal, marvel at its strength and ferocity, and then try to hit it with a rock. For Mr. Irwin, wild nature was something to wonder at, and he did so with an enthusiasm indistinguishable from love. Animals — even deadly ones — are good, poachers are evil, and, crikey, that’s pretty much it.
Call that simple-minded, call it dumb, but it resonates. Future environmentalists and conservationists have to come from somewhere.
Popularizers, like Steve Irwin -- and others inlcluding Carl Sagan (who WAS a first-class scientist) -- have always received a bad rap. But it is the Irwins and Sagans of this world -- who ignite the imaginations of the young, and relieve the anxieties of all of those who fear the complexities of the science -- that are needed to improve the science literacy of the general public. Given the current state of knowledge of science among lawyers and judges, we could use a few Irwins to take up the challenge of popularizing science in the law.
September 5, 2006
In United States v. Mahone, a July decision from the United States Court of Appeals for the First Circuit, the court agreed with the trial judge's decision that a forensic specialist in footwear impressions was qualified because "she stated that she had made more than 11,000 footwear comparisons [while] she had worked as a 'latent impressions' specialist for more than two years. Giving the expert the benefit of the doubt on her years of experience, this means that she did fourteen comparisons a day every working day for three years. This is a little hard to believe, yet the court never raised an eyebrow at such a patently ridiculous claim. She also never said how many of the 11,000 she got right.
Such silliness is not limited to the First Circuit. In a 2000 case, Sullivan v. Ford Motor Co., the federal court in Manhattan admitted a safety engineer's report following a severe accident. Based on the expert's experience, the court found both that he was qualified to testify and that the basis for his testimony was reliable. The court explained as follows:
The fact that [the expert] did not know all of the precise details about the accident at issue in this case does not indicate that his expertise based on his experiences investigating approximately 15,000 road accidents, preparing approximately 10,000 reports based on these investigations, witnessing approximately 100 test crashes, authoring studies based on his observations, as well as his education in the area of physics, mechanical engineering and law, would not be helpful to the jury in determining this factual issue.
Brief reflection on the expert's claimed experience suggests that it is somewhat incredible. To have investigated 15,000 accidents, he would have had to visit approximately two accident scenes every working day for 30 years. This leaves little time to write 10,000 accident reports.
September 4, 2006
Mental Illness, Mental Abnormality, and Insanity
The law of behavioral responsibility, on both the criminal and civil sides of the docket, is in a state of moral and empiricial disrepair. There are a host of different theories that States use to determine when someone should be "excused" from conduct that otherwise would be criminal. (Of course, the very low number of defendants who successfully claim "insanity" are not "let go," but often spend the remainder of their days in mental hospitals.) In the recent case of Clark v. Arizona, the Supreme Court usefully summarized the many different theories employed today:
The main variants are the cognitive incapacity, the moral incapacity, the volitional incapacity, and the product-of-mental-illness tests. The first two emanate from the alternatives stated in the M'Naghten rule. The volitional incapacity or irresistible-impulse test, which surfaced over two centuries ago (first in England, then in this country), asks whether a person was so lacking in volition due to a mental defect or illness that he could not have controlled his actions. And the product-of-mental-illness test was used as early as 1870, and simply asks whether a person's action was a product of a mental disease or defect. Seventeen States and the Federal Government have adopted a recognizable version of the M'Naghten test with both its cognitive incapacity and moral incapacity components. One State [Alaska] has adopted only M'Naghten's cognitive incapacity test, and 10 (including Arizona) have adopted the moral incapacity test alone. Fourteen jurisdictions, inspired by the Model Penal Code, have in place an amalgam of the volitional incapacity test and some variant of the moral incapacity test, satisfaction of either (generally by showing a defendant's substantial lack of capacity) being enough to excuse. Three States combine a full M'Naghten test with a volitional incapacity formula. And New Hampshire alone stands by the product-of-mental-illness test. The alternatives are multiplied further by variations in the prescribed insanity verdict: a significant number of these jurisdictions supplement the traditional "not guilty by reason of insanity" verdict with an alternative of "guilty but mentally ill." Finally, four States have no affirmative insanity defense, though one provides for a "guilty and mentally ill" verdict. These four, like a number of others that recognize an affirmative insanity defense, allow consideration of evidence of mental illness directly on the element of mens rea defining the offense.
In Clark itself, the Court held that the Arizona rule of "moral incapacity," was not unconstitutional. Under this rule, an Arizona defendant can claim insanity only if a mental disease or defect leaves him unable to understand that his action was wrong. Moreover, the Clark Court also held that the Arizona rule that evidence of mental incapacity was admissible only to show insanity, and could not be admitted to negate mens rea, did not violate the Constitution. (For an excellent discussion of this aspect of the Clark ruling, see Sherry Colb's analysis on Findlaw.com -- see here.
The Clark Court held that this patchwork of approaches to criminal responsibility was essentially a product of our federalist system, which defers greatly to the judgment of the States. But, at some point, the Constitution should require a certain basic minimum regarding what states of mind are necessary to assume responsibility over behavior. Professor Colb, for instance, argues in the piece cited above that mental states that negate mens rea, at the least, should qualify under basic standards of due process. Perhaps, more importantly, the Constitution should contain some basic conception or philosophy of human behavior. After all, much of the basic rationale for criminal punishment follows from the view that people have free will and thus are responsible for the consequences of their behavior (at least, for those results that were intended, known, or foreseeable).
But this raises an even deeper contradiction in the Supreme Court's, and thus the Constitution's, views of behavioral responsibility. On the civil side of the docket, the Supreme Court held in a couple of cases that sexual aggressors can be committed indefinitely if a State demonstrates that they are mentally abnormal and likely to be violent. In the cases of Kansas v. Hendricks and Kansas v. Crane, the Court developed a definition of mental abnormality that is inconsistent with much of the jurisprudence that it has accepted on the criminal side. According to the Court, the reason why a "mentally abnormal" person can be civilly committed is that the twin pillars of the criminal system -- retribution and deterrence -- are not implicated when someone is mentally abnormal. The Court defined "mental abnormality" as "substantial lack of volitional control." The reasoning is straightforward: if someone cannot control their behavior, then they should not be punished for their behavior (i.e., retribution is not implicated as a goal), and they will not be deterred from acting criminally. Yet, as the above discussion of insanity makes clear, this volitional control argument is employed by very few states in criminal cases and is generally thought to be unworkable in practice. How, after all, does one distinguish between behavior that someone cannot control and behavior not controlled?
In any case, what is clear is that the Supreme Court has accepted different versions of human agency on the criminal and civil sides of their docket. Someone who lacks volitional control, therefore, can constitutionally be held responsible for his conduct and be put in prison. When that person emerges from prison, he can then be incarcerated in a mental hospital idefinitely, because he lacks volitional control. I suppose that given the stark political realities of the situation, this outcome should not be so surprising. The defendant is locked up on both sides of the equation. But the Constitution is not supposed to trade in stark political realities, and should have a more sophisticated understanding, or at least a more consistent definition, of human agency.