New Daubert article: The Failure of the Daubert Revolution

Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution
DAVID E. BERNSTEIN George Mason University - School of Law
February 2007George Mason Law & Economics Research Paper No. 07-11


Abstract: This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision.

First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test?

Second, once we have identified this rationale, has the "Daubert revolution" succeeded on its own terms?
JEL Classifications: K00, K13

Working Paper Series

Suggested Citation
Bernstein, David E., "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution" (February 2007). George Mason Law & Economics Research Paper No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461

What would Daubert say about those damages? 2.20.2007

From a popular listserv:

In the calculation of lost fringe benefits in a wrongful termination case I included the cost of medical insurance that the employer had been providing to the employee. The company’s medical plan covered the spouse of the employee so the cost of the benefit was significant. The attorney taking my deposition asked that if the plaintiff was able to secure medical benefits in a new job should those be taken into consideration as an offset to the loss of medical benefits at his prior place of employment and I said that yes I would have to take that into consideration but that to my knowledge he was not covered or was not eligible for coverage in any of the jobs he has had since his termination.

The plaintiff’s wife is self employed and on their income tax returns there is a Schedule C which shows her earnings. The income tax return also shows that she paid $6,000 in self employed health insurance. The attorneys question was that:

if the wife was paying for heath insurance and if the husband (plaintiff) was covered under that insurance shouldn’t that be treated as deduction against the loss of medical benefits from his prior employer (defendant)?

Also if the plaintiff was eligible for health insurance at another employer but did not elect to be covered because he could not afford the employee part of the cost should the defendant be given a credit for the medical insurance that was available but not elected by the plaintiff?

Thoughts?

Dispatches from the witness box: Telling the jury about the data that the economic expert used

(continued from 2/10/2007 post...)

After the basic information about how economic damages calculated, the attorney will generally go over the data used in the calculation during the economist's direct . In wrongful death cases with individuals with somewhat checkered past (for example drug use and jail time) and infrequent work histories, the review of documents other than just W-2s and tax returns become very important.

The following illustrate thee trial testimony from such a case.

Question: what data and information did you review?

Ans: Generally, I reviewed all information that tell me about the person's ability to be employed in the labor market. In this case I reviewed all the information that was available that told me about that issue. That includes financial documents concerning his past employment. In this case the only documents that were available were a couple w2s and some documents from his past employer that showed how much he earned.

In addition I also reviewed medical records. In this type of case it is common to review medical records. The medical records tell the economist if there are any factors that will inhibit the person abliity to work. For example, does the person have any physical limitations and/or chemical dependency problems.

In addition, I also reviewed law enforcement and criminal justice records. These are important because it is generally accepted in the economics community that incarceration, arrest and convictions have an effect on a persons wages. The science of economics is very clear that 'run-ins' with the law decrease the projected wages for an individual.

Question 3. In this case did you find the usual information and financial records that you would find?

Answer:

No I did not. The level of financial document in regards to past earnings was not consistent with that of the average stable wage earner.

Question Why? Well for instance there were no tax returns. The only tax document showed that he earned less than 7000. The other documents I reviewed showed earnings less than 12000 a year for a full year.

Question 4: would the average person have filed taxes and had evidence of prior jobs?

Question 5. Did you see any documents that suggest he was getting additional education or training?

Question 6. Would you expect this for the average worker of any race or gender?

Daubert watch: Court slams door on professor's statistical testimony

In Lucresia Mayorga Santamaria vs. Dallas Indep. Sch. Dist. ( Decided: 11/16/2006) in Federal Court in the Northen District of Texas Judge Lindsay determined that the testimony of a statistical expert would not aid or assist it in deciding whether there had been a violation of the Fourteenth Amendment or of Title VI.


This lawsuit concerned allegations of unlawful segregation of Latino school children at Preston Hollow Elementary School. Preston Hollow is an elementary school in a predominantly Anglo neighborhood in Dallas, Texas. In support of their claims, Plaintiffs offered testimony of a well known and qualified university education professor.

After conducting a mathematical analysis of the data, the stats expert concluded that the pervasive and robust within-school segregation was based on race/ethnicity. The district court determined that the professor's testimony and statistical analysis were fraught with flaws. However because the court did not feel that the professor's report would assist the court in this case, even if it were not fraught with flaws, it did not actually rule on the admissibility of the report under Fed. R. Evid. 701.

For more go to: dauberttracker.com

Dispatches from the witness box: Direct examination of a defense economic expert in a wrongful death case

The direct examination of an defense economic expert in a wrongful death case tends to go a little differently than the plaintiff's expert. In part, by the time the defense economic expert goes up on the stand, many of the questions that a typical juror will have about what an economist does and the methodology that economists use have been addressed by the plaintiffs.

Rather than go over the same lines of questioning as the plaintiff's attorney some defense attorneys will start the main line of questioning as follows.

Defense attorney: Doctor, can you explain generally how you calculate economic damages in a wrongful death case like this?

Ans: Yes, you generally look at three areas: projected earnings, benefits, and household services. Earnings are..... Lost benefits are the benefits, like health and life insurance, that you would have expected the would have received over his normal working life time....

Household services are the services that the person could have been expected to contribute to the household had they lived. These would include things like the economic value of taking care of the household, mowing the lawn, taking care of the kids...

Defense attorney: Doctor, your methodology is similar to the plaintiffs economic expert is it not?
Ans: yes it is.

[To be continued...]

Dispatches from the courtroom: Using economic expert testimony to tell the jury about the deceased checkered history

In wrongful death cases it is not uncommon for economic experts to unknowly inform the jury with information about the deceased person's history that may not have been otherwise admitted.

In some cases, the information used in a thorough economic analysis requires the economist to review information such as the medical records and criminal records. This type of information can be extremely important in situations where the deceased had a short or sporadic work history.

For instance a person who has a history of drug abuse and incarceration and has not work consistently or regularly will generally have lower expected future earnings than a person with similar past problems who has worked more consistently. In short the latter person, from an empirical standpoint may be past their problems while the former may not be. Economists in court settings routinely use data from various sources to determine the effect of personal behavior factors on wages

Although needed by the economic damage expert, the discussion of the deceased's past drug use or incarceration may be new news to the jury who is hearing the wrongful death case.

The next series of post will discuss the experiences of one our sponsoring economists who recently testified in a high profile wrongful death case.