The Ninth Circuit has examined Daubert in a handful of cases and applied Daubert to different issues over the past several months.
Testimony by expert handwriting analysts in criminal cases is certainly not a novel concept. However, the Ninth Circuit’s recent opinion in United States v. Prime, 431 F.3d 1147 (9th Cir. 2005) serves as a reminder of the importance that such evidence muster Daubert scrutiny. The court also suggested that the “rate of error” factor delineated in Daubert should be afforded less weight than the “methodology” factor when discerning whether expert testimony is admissible. Id. at 1153.
In Prime, the defendant appealed his conviction on multiple counts of wire fraud and securities counterfeiting. He challenged, among other things, the district court’s admission of testimony by the government’s handwriting analyst, who concluded that the defendant’s handwriting appeared on numerous incriminating documents. The defendant argued that the handwriting analysis was unreliable under Daubert, and therefore inadmissible.
Although it recognized that other circuits generally found handwriting analysis to be reliable, the Ninth Circuit focused its review on discerning whether the district court had properly weighed the Daubert factors in the case at hand. In doing so, the court emphasized the necessity of a case-by-case Daubert evaluation “rather than a general pronouncement that in this Circuit handwriting analysis is reliable.” Id. at 1152. Ultimately, the Ninth Circuit found that the testimony had been properly admitted insofar as the expert’s methodology, peer review system, and control standards all tended to weigh in favor of admissibility under Daubert.
The methodology entailed an initial review and analysis of the defendant’s known writings. Thereafter, a second set of incriminating documents was analyzed to discern whether it belonged to the defendant. Id. During a pretrial Daubert hearing, the district court also considered testimony from an accompanying government expert whose research supported the proposition that a person’s handwriting is rarely identical to others, and that expert handwriting analysis can reliably discern whether the same individual wrote two samples. Id. at 1153.
For purposes of the “peer review” factor, the Ninth Circuit found that the district court considered that the government’s expert worked for the Secret Service, which had an in-house peer review system whereby each handwriting analysis was subjected to a second, independent examination. Id. The Ninth Circuit found that the “control standard” factor was satisfied to the extent the Secret Service’s laboratory, where the government’s handwriting analyst worked, adhered to testing standards set forth by a reputable crime laboratory association. Id. at 1154.
As for the “margin of error” factor, the district court considered research studies conducted by Professor Moshe Kam of the Electrical and Computer Engineering Department at Drexel University. Those studies tended to show that when two writing samples were written by the same person, handwriting analysts arrived at the correct conclusion 87% of the time. However, when the samples were written by different people, the analysts erroneously associated the writings 6.5% of the time. Id. Although it found that the district court correctly considered the error rate, the Ninth Circuit went a step further and expressed that an expert’s methodology, if reliable, should be afforded more weight than the “margin of error” factor:
While Kam’s study demonstrates some degree of error, handwriting analysis need not be flawless in order to be admissible. Rather, the Court [in Daubert] had in mind a flexible inquiry focused ‘solely on principles and methodology, not on the conclusions they generate.’ Daubert, 509 U.S. at 595. As long as the process is generally reliable, any potential error can be brought to the attention of the jury through cross-examination and the testimony of other experts.
Id. Based on this language, one could reasonably conclude that the Ninth Circuit is leaning toward the rationale that as long as an expert’s methodology is reliable, the “margin of error” factor enumerated in Daubert will impinge more on weight than admissibility. In other words, it would appear the court has adopted the view that for purposes of a Daubert analysis, the “methodology” factor will have greater preclusive effect than the “margin of error” factor.
Similar to the holding in Prime, the district court of Arizona, applying Daubert, reaffirmed the principle that an expert is not required to reach a conclusion without the slightest doubt to still be reliable. An expert need not rule out every possible scenario regarding an accident to render his opinion reliable under Daubert. In Friend v. Time Mfg. Co., 422 F. Supp. 2d 1079 (D. Ariz. 2005), the plaintiff alleged that a Versalift Aerial Platform Lift manufactured by the defendant, Time, malfunctioned when it continued to move up into the power lines, electrocuting the plaintiff. The United States District Court for Arizona applied Daubert to review the admissibility of the plaintiff’s expert on Time’s motion to strike as unreliable the testimony of the plaintiff’s proffered expert under Fed. R. Evid. 702. The district court reaffirmed Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L.Ed.2d 238 (1999), in which the United States Supreme Court concluded that Daubert’s list of specific factors for considering the reliability of the testimony “neither necessarily nor exclusively applies to all experts in every case.” Friend, 422 F. Supp. 2d at 1081 (citing Kumho, 526 U.S. at 141-142).
The main dispute was whether the testimony of plaintiff’s expert, Rasnic, was reliable as to the cause of the alleged product malfunction. Time argued that because Friend did not remember anything from the accident, he relied entirely on his expert’s testimony to support his contention of a mechanical failure causing his injuries. Specifically, Time argued that Rasnic could only narrow down the alleged failure to three possibilities: (1) the master control contacts welded shut allowing the pump motor to continue running in conjunction with function switches that welded shut; (2) the motor control contractor stuck and simultaneously a spool valve on the hydraulic valve was stuck open; and (3) the master control contacts welded shut and spool valve was stuck open. Id. at 1081-82. Rasnic testified that any one of these failures would have caused the bucket to continue rising, but believed that the second scenario – dual machine failure – is what most likely happened. Id. at 1082. Time argued that because Rasnic failed to replicate his theory of dual failure through testing, provide evidence of similar accidents, and establish that the parts in questions were welded, his conclusion was not supported by scientific or forensic evidence. Time also asserted that Rasnic did not eliminate the other potential causes of the accident. Id.
Friend argued in response that:
to a reasonable degree of engineering probability, Rasnic concluded that a temporary contact weld of a contractor in conjunction with a control valve failure led to the boom rising uncontrollably upwards, and that this known potential mechanical failure could not be stopped by Friend because Time failed to install an emergency stop button.
Id. Friend argued that Rasnic’s opinion met the Daubert standard for expert testimony, and the district court agreed. The district court found substantial evidence supporting Rasnic’s conclusion that there was a control valve stick, including the fact that: Time’s operating manual describes the control valve stick under its emergency procedures, numerous individuals have experienced malfunctions with the machine in question, Rasnic designed similar devices which recognized the problem with sticking valves, and sticking valves are a common phenomenon recognized in industry publications and research. Id. As to the conclusion that there was a temporary contact weld in the contractor that controls power to the hydraulic pump, Friend pointed out that the contractor at issue is the very same contractor that stuck immediately after the accident, during the inspection of the equipment, and which stuck again months later, and was later replaced, and that Time knew of similar devices failing. Id. at 1082-83.
In addition, Rasnic relied on research of industry experts and testimony to support his opinions, and relied on generally accepted engineering principles and his own extensive experience in the field. Id. at 1083. The district court noted that the defendant’s arguments were more properly issues to be considered by the jury. The district court held that Rasnic reached his conclusions within a reasonable degree of engineering certainty, and the fact that Rasnic has not ruled out every possible scenario raised by Time does not render such opinion unreliable. Id. (citing United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993) (reversing the district court’s exclusion of expert testimony stating that “certainty is an unreasonable expectation in the realm of expert opinion. [An expert’s] use of the conditional could in expressing her conclusion is neither unusual nor disqualifying as to her testimony. In any area of science . . . expecting an expert to reach a conclusion without the slightest doubt as to its accuracy is exceedingly unrealistic. Experts ordinarily deal in probabilities, ‘coulds’ and ‘mights’ . . . It is the rare expert who is willing to opine conclusively about a past occurrence.”).
In a very recent case, Ninth Circuit Judge Kozinski dissented from the majority in a lengthy opinion applying Daubert to challenge the majority’s reliance on and admissibility of testimony offered in support of a school district’s decision to ban a high school student’s t-shirt that expressed religious statements disapproving of homosexuality. Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006) involved a lawsuit brought by a high school student through his parents against the school district and members of a school board alleging violations of the First Amendment, the Establishment Clause, the Equal Protection Clause, the Due Process Clause, and Cal. Civil Code § 52.1. All but the First Amendment claims (freedom of speech, free exercise of religion, and establishment of religion) were dismissed and the only issue before the Ninth Circuit was whether the district court properly denied the student a preliminary injunction to enjoin the school from continuing its violation of the student’s constitutional rights.
The student challenged the decisions of school officials to keep him out of class because he was wearing a t-shirt with a religious message that condemned homosexuality. The t-shirt read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL,” handwritten on the back. Harper, 445 F.3d at 1171. The student wore his t-shirt in response to the Day of Silence, a protest sponsored by the Gay, Lesbian, and Straight Education Network (GLSEN), in which participants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual, and transgender (LGBT) youths in school. Id. at 1175.
On review of the district court’s denial of the preliminary injunction, the Ninth Circuit affirmed the district court’s order that the plaintiff was not likely to succeed on the merits. The Ninth Circuit applied the standard articulated in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), where a school is permitted to prohibit the conduct “if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.” Harper, 445 F.3d at 1175. The Ninth Circuit found there was no evidence that school officials attempted to change the student’s religious view; rather, their comments addressed the student’s conduct towards other students and disruption of school activities.
Circuit Judge Kozinski dissented and concluded that the school authorities offered no lawful justification for banning the student’s t-shirt and, therefore, the district court could have enjoined the school from doing so pending the outcome of the case. Id. at 1192 (Kozinski, J., dissenting). Circuit Judge Kozinski disagreed with the majority’s conclusion that Harper’s t-shirt violated the rights of other students by disparaging their homosexual status and concluded that the evidence presented to support this proposition failed to meet the Daubert standard. Id. at 1198-99.
Such sua sponte lawmaking raises many problems, the first of which is that it finds no support in the record. What my colleagues say could be true, but the only support they provide are a few law review articles, a couple of press releases by advocacy groups and some pop psychology. Aside from the fact that published articles are hardly an adequate substitute for record evidence, the cited materials are just not specific enough to be particularly helpful. None would seem to meet the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Harper, at 1198-99. Even in reviewing the sources, “none provides support for the notion that disparaging statements by other students, in the context of a political debate, materially interfere with the ability of homosexual students to profit from the school environment.” Id. at 1199 (Kozinski, J., dissenting).
Jessie L. Harris is an associate with Williams, Kastner & Gibbs PLLC in Seattle, WA. He maintains a civil trial practice with an emphasis on employment law, product liability defense, commercial litigation, and general tort defense. He is admitted to practice in Federal Court in the Western and Eastern Districts of Washington and is an active member of the American Bar Association (Litigation Section) and the King County Bar Association. Jessie can be reached at jharris@wkg.com or (206) 628-2436.
Arissa M. Peterson is an associate with Williams, Kastner & Gibbs PLLC in Seattle, WA. She practices civil and commercial litigation with a concentration on product liability defense, including pharmaceutical and medical device, mass tort, and multi-district litigation. She is a member of DRI’s Drug and Medical Device and Young Lawyer Committees. Arissa can be reached at apeterson@wkg.com or (206) 233-2984.
[PRINTER FRIENDLY VERSION]
