Introductory Cases

Doesn't this sound strangely familiar to those who hear VEs rely upon "25-years experience?"

From Daubert on the Web: Seventh Circuit

Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416 (7th Cir. 2005) (see the briefs).  Puerto Rico digital television broadcaster contracts to purchase set-top boxes from Zenith.  Boxes supplied by Zenith do not meet digital video broadcast (DVB) standards prevalent at time of sale.  roadcaster sues Zenith, claiming its subscription base would have expanded dramatically but for problems caused by deficiencies in boxes.  In support, broadcaster offers  testimony from industry expert Peter Shapiro.  District court excludes testimony as unreliable and awards summary judgment against broadcaster for want of proof of damages.  Exclusion affirmed.  Expert did not base his estimates on data from comparable markets, insisting that Puerto Rico was unique.  Asked what methods he used to project broadcaster's potential subscriber base, he fell back to reliance on his general expertise and his curriculum vitae, and his failure, e.g., to perform multivariate regression was left unexplained.  His extrapolations were mere ipse dixit.

(Emphasis added).  See the Reference Manual on Scientific Evidence, as discussed in the decision.

What is ipse dixit?

Definitions of  ipse dixit on the Web:

    * (Latin). A mere assertion, wholly unsupported. We say it is "your ipse dixit, " "his ipse dixit," "their ipse dixit," and so on.
    http://ppcl.chungnam.ac.kr/my/references/phrase/data/659.html

    * an unsupported dogmatic assertion
      http://www.cogsci.princeton.edu/cgi-bin/webwn

In addition to the strong discussion in favor of multivariate regression analysis, I particularly enjoyed this portion from the decision:

An expert must offer good reason to think that his approach produces an accurate estimate using professional methods, and this estimate must be testable. Someone else using the same data and methods must be able to replicate the result. Shapiro’s method, “expert intuition,” is neither normal among social scientists nor testable—and conclusions that are not falsifiable aren’t worth much to either science or the judiciary.

and this as well:

A witness who invokes “my expertise” rather than analytic strategies widely used by specialists is not an expert as Rule 702 defines that term. Shapiro may be the world’s leading student of MMDS services, but if he could or would not explain how his conclusions met the Rule’s requirements, he was not entitled to give expert testimony. As we so often reiterate: “An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.” Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). See also, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 933 (7th Cir. 2003); Huey v. United Parcel Service, Inc., 165 F.3d 1084, 1087 (7th Cir. 1999); Burns Philp Food, Inc. v. Cavalea Continental Freight, Inc., 135 F.3d 526, 530-31 (7th Cir. 1998); Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d 1027, 1031 (7th Cir. 1997); People Who Care v. Rockford Board of Education, 111 F.3d 528, 537-38 (7th Cir. 1997); Braun v. Lorillard Inc., 84 F.3d 230, 235 (7th Cir. 1996).

There are many nice cases on point if you take the time to look for them.  For example:

An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process. See Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C. Cir. 1988), holding that an expert's declaration, full of assertion but empty of facts and reasons, won't get a case past a motion for summary judgment, for the judge must "look behind [the expert's] ultimate conclusion ... and analyze the adequacy of its foundation." Id. at 829. See also Washington v. Armstrong World Industries, Inc., 839 F.2d 1121 (5th Cir. 1988); Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987). Professor Bryan would not accept from his students or those who submit papers to his journal an essay containing neither facts nor reasons; why should a court rely on the sort of exposition the scholar would not tolerate in his professional life?

Mid-State Fertilizer Co. v. Exchange Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989).

Zeigler doubtless would dispute our statement that there is "nothing" in the record to counter Ridge's assessment. It introduced an affidavit from Peter Tuteur, a professor at Washington University School of Medicine, opining that Eugene's pulmonary problems did not accelerate his death. But this affidavit is worthless, because Dr. Tuteur gives no reason. He did not examine Eugene, did not discuss the normal variability in the time it takes colon cancer to kill its victims, did not point to epidemiologic studies, did not cite a single article in the medical literature--in sum, did not help the decisionmaker. "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). Neither Ridge nor Tuteur is a cancer specialist; and between the two, Ridge at least had the advantage of observing whether a pulmonary problem sapped Eugene's ability to withstand the effects of the cancer.

Some federal agencies refuse to make decisions on the basis of reports such as the one Ridge (or for that matter Tuteur) supplied. For example, the Food and Drug Administration would not dream of deciding whether some new treatment postpones death from cancer (an issue equivalent to whether black lung hastens death) without a statistically sound epidemiologic study or a well-conducted double-blind experiment. Reports from physicians in the field along the lines of "I gave drug X and it kept the patient alive for four extra months" would be dismissed as worthless anecdotes. While the FDA and other agencies, such as the Environmental Protection Agency, insist on statistically valid results, the Department of Labor in black lung cases (and the Social Security Administration in disability cases) rely on evidence that does not carry any indicators of statistical power. But Zeigler, which took the same approach by proffering only Dr. Tuteur's unreasoned assertion, is in no position to complain. Unless mine operators show that the Department's approach to these matters is medically unsound, it is entitled to proceed as it did here.

Zeigler Coal Co. v. Director, O.W.C.P., 312 F.3d 332, 335 -336 (7th Cir. 2002).

In Daubert, the Supreme Court provided a non-exhaustive list of factors courts could consider when determining whether to admit expert testimony, including whether the opinion can be (and has been) tested, whether it has been subjected to peer review and publication, whether there is a known or potential error rate, and whether it is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94. Although the factors listed in Daubert are useful guideposts in determining whether to admit expert testimony, a litigant's failure to establish these factors does not necessarily mean that an expert's opinion is inadmissible. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). All that is required is that "an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. The critical inquiries are whether "the expert testimony at issue 'both rests on a reliable foundation and is relevant to the task at hand." ' United States v. Cruz- Velasco, 224 F.3d 654, 660 (7th Cir. 2000) (quoting Daubert, 509 U.S. at 597). The Supreme Court's holdings in Daubert and Kumho Tire have been codified in Federal Rule of Evidence 702, which provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702; Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). . .

Price v. Code-Alarm, Inc., 2002 WL 1870041, *4-*5 (N.D. Ill. 2002).

Additional Helpful Reading: 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002)

Elliott v. Commodity Futures Trading Commission (Seventh Circuit Numbers Case!)

Glomski v. Massanari, 172 F.Supp.2d 1079 (E.D. Wis. 2001)

McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) 

Seventh Cir. version (in PDF format)

Peabody Coal Co. v. McCandless

Zeigler Coal Co. v. Director, O.W.C.P., 312 F.3d 332, 335 -336 (7^th Cir. 2002)

Daubert on the Web, nice summary of cases by Circuit.

Fed. R. Evid. 702