Expert Witnessing: Daubert and Behe
In looking at other stuff online related to expert witness rules, I came across a page by Patrick Malone that offers advice to lawyers on the selection and retention of an expert witness coming under Daubert scrutiny. Daubert v. Merrell Dow resulted in a set of rules for courts to act as “gatekeepers” to expert testimony, excluding those experts who don’t produce reliable testimony by established methods. Daubert rules for experts have been adopted by many states across the country. Where Daubert isn’t used, the earlier Frye rules are the usual standard.
Something that I need to look at is that apparently the Discovery Institute’s book, Traipsing Into Evolution, tries to argue that Judge Jones did things wrong because of Daubert considerations. It sounds like a ludicrous argument on its face, but I’ll need to have a look at the specifics before I can confirm or reject that impression.
But in any case, there was a particular passage in Malone’s article that made me think of Michael Behe, defense expert witness last year in the Kitzmiller v. DASD trial.
Keeping an open mind Before Daubert, an adversary’s discovery that your expert had formed an opinion, then read the relevant literature, would amount to, at worst, a credibility point for cross-examination. Now, that kind of discovery can get an expert tossed off the case.12 Beware the expert who claims that he or she doesn’t need to read the literature on the subject because no amount of literature could change his or her mind. That is exactly what happened in Cooper. The expert rationalized his behavior, stating, “[A]after I read those two articles years ago, they didn’t affect my prior judgment—and they still haven’t—that smoking doesn’t have anything to do with healing in spinal fusion. So even if there were 10 more articles, I’m not going to change my mind about it.”13 The court was not impressed.
[…]
12. See, e.g., Mitchell, 165 F.3d 778, 783.
13. Cooper, 259 F.3d 194, 202.
Remember Behe being confronted with 58 peer-reviewed articles and several textbooks discussing the evolution of the immune system? Remember Behe admitting he hadn’t read a lot of those? And remember Behe saying that he was confident that the material just wasn’t good enough, sight unseen? It seems obvious that the Thomas More Law Center could have benefited from reading Patrick Malone’s 2003 article on expert witnesses. They could have avoided a costly mistake.
Update: Ed Brayton pointed me to the actual decision in Cooper and here is the relevant section from it:
In the face of the medical literature and Cooper’s own records, Dr. Mitchell categorically dismissed any suggestion that Cooper’s smok- ing was the cause of the nonunion. Dr. Mitchell stated that he rejected the medical articles as unpersuasive after he read just two of them. When asked if he should have considered more of the articles, Dr. Mitchell replied:
No, for the simple reason, after I read those two articles years ago, they didn’t affect my prior judgment, and they still haven’t, that smoking doesn’t have anything to do with healing in spinal fusion. So even if there were ten more arti- cles, I’m not going to change my mind about it. In this case, Dr. Mitchell did not identify specifically how he ruled out smoking and other potential causes of the nonunion. Simply asserting that he read two articles on smoking and rejected them as unpersuasive is insufficient. Such a practice offers no solid grounds for rejecting smoking as a cause of the nonunion, and renders his opinion that the Rogozinski System was the actual culprit little more than speculation. As the Supreme Court has repeatedly held, “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.” Kumho Tire, 526 U.S. at 157 (quoting Joiner, 522 U.S. at 146).
Fast forward to Behe on the stand in the Kitzmiller case:
[169]Q. You haven’t read the books that I gave you?
[170]A. No, I haven’t. I have read those papers that I presented though yesterday on the immune system.
[171]Q. And the fifty-eight articles, some yes, some no?
[172]A. Well, the nice thing about science is that often times when you read the latest articles, or a sampling of the latest articles, they certainly include earlier results. So you get up to speed pretty quickly. You don’t have to go back and read every article on a particular topic for the last fifty years or so.
[173]Q. And all of these materials I gave you and, you know, those, including those you’ve read, none of them in your view meet the standard you set for literature on the evolution of the immune system? No scientific literature has no answers to the question of the origin of the immune system?
[174]A. Again in the context of that chapter, I meant no answers, no detailed rigorous answers to the question of how the immune system could arise by random mutation and natural selection, and yes, in my, in the reading I have done I have not found any such studies.
Score another one for Santayana.
The Cooper decision cannot justify the Dover decision because the Dover decision does not cite the Cooper decision as a precedent.
Also, there are significant differences between the Dover and Cooper decisions. Behe, unlike the expert witness in Cooper, did not flatly say that he stopped reading the literature once he had made up his mind on the scientific issues at hand. Also, Behe said that one of the reasons why he had not read all of the publications presented to him was that he felt that the material in those publications was reflected in later publications that he did read.
Also, Judge Jones violated Rule 803(18) of the Federal Rules of Evidence by treating the publications as just an exhibit, with no statements from the publications being read into the record. Rule 803(18) says of “learned treatises,” “If admitted, the statements may be read into evidence but may not be received as exhibits.” And Judge Jones did not merely assert that Behe was an unreliable witness, but asserted that the publications refuted Behe’s claims. See http://im-from-missouri.blogspot.com/2006/08/judge-jones-fell-for-bad-courtroom.html
I agree that the amount of evidence demanded by Behe was unreasonably high, but for various reasons I also feel that Judge Jones should not have ruled on the scientific merits of ID and irreducible complexity.
BTW, what does “Score another one for Santayana” mean?
Strange. The Dover decision is justified by the legal grounds cited within it. Jones did not rely upon Cooper, certainly, but then again he wasn’t taking the step of excluding Behe’s testimony for cause, either. The point I’m making is that he would have been well-supported in doing so if he had wanted to.
There’s another point here, though. As mentioned before, apparently there’s some attempt by the Discovery Institute to use Daubert considerations to somehow attack the KvD decision on whether ID is science. Hopefully, Larry will be consistent and repudiate that, since the only point where Daubert was discussed at all in KvD was during voir dire for plaintiffs’s expert Dr. Barbara Forrest.
Like, duh. They were about very different things. KvD was a constitutional law case, and Cooper was a product liability case. That’s not the point. The point is about what is expected of an expert witness in a federal courtroom.
This is an insignificant difference that you’ve chosen to highlight. The cross-examination made it clear that Behe did stop reading. He didn’t have to quote the same thing that Mitchell did in Cooper for the same principle to apply. Besides which, the principle in question isn’t quite “stopping reading”. As Malone points out, the principle is about an expert who comes in with a pre-existing conclusion in mind and will not be persuaded to the contrary by the evidence. That clearly is consistent across Mitchell and Behe.
Yes, Behe did say that. It was a particularly stupid thing to say. Present-day scientific literature is notorious for incompletely recognizing past work. For example, the archetypal case has to be the complete overlooking of Mendel’s paper on genetics from 1865 to 1900. (Though in 1900 three researchers independently found the same thing in their research, looked and found Mendel’s article, and all three independently acting assigned priority to Mendel.) If I’m staking my scholarly reputation on the claim that there is NO x in the scientific literature, I’d be incompetent if I didn’t actually look at all the relevant past literature. Skimming a few of the more recent publications that might have something to do with x is in no way a sufficient methodology to reliably substantiate the conclusion of no x ever having been there.
I’m just skipping stuff that’s been hashed over thoroughly already.
As for Santayana, Google “santayana history lessons” for some help. Sheesh. One can only wonder what he might have said about people who couldn’t be bothered to learn that they should learn the lessons of history.