EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 21, 2016

"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.


*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.



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But Colin, the burden of proof is on the defence. The defence should have put up someone from AT&T to testify that yes the disclaimer is in fact true, that all incoming calls are unreliable. But the defence couldn't find anyone to do that. The defence instead just put up someone who read out the disclaimer and said that he would follow what the disclaimer said. The defence didn't put up an expert in the field who had knowledge of what the disclaimer did or didn't mean. That is what the defence needed to do but they didn’t.
The state put up Fitzgerald who said that he had never come up with this disclaimer before, he had worked on many AT&T cases and it had never come up.
The burden of proof was is on the defence and they couldn’t prove to Welch what the disclaimer meant.

Posted by: ben | Mar 21, 2016 10:10:41 PM

Ben: Let’s flesh that out some more: The burden was on the defense to show that Gutierrez could have used the AT&T disclaimer to have the incoming pings deemed inadmissible or at least considered problematic by the jurors. If Gutierrez had challenged the incoming pings at a Frye/Reed hearing, the State would have had the burden of proving that the incoming pings were reliable for determining location status. We know that the State’s actual expert at trial has now testified that he would not have done so if he had seen the disclaimer. We also know that Gerald Grant has testified that incoming pings were unreliable. That leaves Chad Fitzgerald, who, as noted, seemingly testified that his AT&T friend and he assumed that the disclaimer only referred to certain types of calls. This post was about how such testimony likely failed the “analytical gap” test of Joiner/Blackwell.

Posted by: Colin | Mar 22, 2016 9:10:03 AM

Colin, can you point me to the info about the "AT&T friend," or was that discussed in the podcast? I haven't had a chance to listen to the latest one yet. Thanks

Posted by: CeeJay | Mar 22, 2016 9:32:49 AM

I think it probably makes the most sense to wait for the transcripts to be released before we do anything else so that we can confirm the misrepresentation.

Posted by: Colin | Mar 22, 2016 4:16:52 PM

With all due respect Colin, the defence didn't have an expert testify about what the meaning of the disclaimer was - about why the disclaimer was written, what is the disclaimers meaning? They had Grant read it out aloud, but that was it.

Posted by: ben | Mar 22, 2016 9:51:05 PM

ben: Neither did the State, which is the problem for the State. We know that there were problems with incoming pings. That was amply demonstrated by the Dupont Circle-Baltimore ping scenario. According to Grant, he would have taken the disclaimer at his word, meaning that all incoming pings were potentially unreliable. Fitzgerald, meanwhile, merely assumed that the disclaimer applied to certain incoming calls, and so did his friend at AT&T. Later, however, Fitzgerald seemingly testified that there were other potential problems with incoming pings. In his affidavit, Waranowitz indicated that he wouldn’t have testified as he did if he had seen the disclaimer.

Posted by: Colin | Mar 23, 2016 3:26:04 AM

I absolutely get the analytical gap and it makes sense.
My brain gets scrambled at times with the cell tower evidence but you described it beautifully. Thanks Colin as always.

Posted by: margee | Mar 23, 2016 7:47:51 AM

off topic (responding to Colin Twitter interaction w Lindseyy re time of death/lack of evidence of restraint) - no evidence of physical restraint eg ligature but if remember correctly stomach contents included white granular material not discussed/described/identified/explained so ? cannot exclude possibility of restraint by drug/chemical.

Posted by: WLJ | Mar 23, 2016 3:23:53 PM

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