"Subscriber Activity" and Applying the Analytical Gap Test to Chad Fitzgerald's Testimony

In today's "Subscriber Activity" episode of the Undisclosed Podcast, we discussed the testimony by FBI Special Agent Chad Fitzgerald. From Susan Simpson's notes, it appears as if Fitzgerald and his friend at AT&T* assumed that the AT&T disclaimer about incoming calls being unreliable for determining location only applied to calls that went to voicemail because the recipient's phone was turned off. Of course, as we also noted, at other points during his testimony, Fitzgerald seemed to indicate that there were other circumstances when incoming calls could be unreliable for determining location, such as the "check-in lag" scenario.

But let's stick for now with Fitzgerald's initial statement about the limited nature of the AT&T disclaimer. Does that testimony survive the "analytical gap" test that I mentioned during the episode?

The language of the "analytical gap" test originated in the Supreme Court's opinion in General Electric Co. v. Joiner, 522 U.S. 136 (1997), but "[t]his concept of 'analytical gap' had been employed by federal courts before Joiner." Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009).

In Joiner, an electrician who suffered from lung cancer brought an action against the manufacturer of polychlorinated biphenyls (PCBs) and manufacturers of electrical transformers and dielectric fluid. In support of his action, the plaintiff sought to introduce animal studies showing that "infant mice that had developed cancer after being exposed to PCB's."

In deeming these studies inadmissible, the district court found that

The infant mice in the studies had had massive doses of PCB's injected directly into their peritoneums or stomachs. Joiner was an adult human being whose alleged exposure to PCB's was far less than the exposure in the animal studies. The PCB's were injected into the mice in a highly concentrated form. The fluid with which Joiner had come into contact generally had a much smaller PCB concentration of between 0-to-500 parts per million. The cancer that these mice developed was alveologenic adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCB's. One of the experts admitted that no study had demonstrated that PCB's lead to cancer in any other species.

The electrician later successfully appealed to the Eleventh Circuit, which bought his argument that the district court merely disagreed with the conclusions of his experts, not their methodology. The Supreme Court, however, disagreed with the circuit court, finding that

conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit** of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.... That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.

The Court of Appeals of Maryland later applied this analysis in Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009). In Blackwell, the parents of autistic child brought a products liability action against the manufacturer of vaccines that contained thimerosal, claiming that the preservative caused their child's autism. In support, the parents sought to present the testimony of five expert witnesses, who would have claimed that thimerosal caused the child's autism. The trial judge, however, precluded this testimony after conducting a Frye/Reed hearing.

In deeming this decision to be proper, the Court of Appeals of Maryland cited to Joiner and noted "the analysis of data or extrapolation requires more than mere conjecture to pass reliability scrutiny." There's a lot more to the court's opinion, but that's the long and short of why the expert testimony was inadmissible in Blackwell: while the experts were qualified, their testimony about a link between thimerosal and autism was mere conjecture.

Obviously, I wasn't in the courtroom for Adnan's reopened PCR proceeding. But, from what I can glean from Susan's notes and statement, Fitzgerald and admitted that his AT&T friend and he were engaging in mere speculation when drawing conclusions about the scope of the AT&T disclaimer. And, if that's the case, Fitzgerald's testimony fails the "analytical gap" test and is insufficient to deny Adnan a new trial.

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*As we noted, it appears that Fitzgerald misrepresented his friend's job at AT&T.

**Ipse dixit is Latin for "he himself said it," meaning the only proof we have of the fact is that this person said it.

-CM