Sunday, October 30, 2011

3rd Edition - Reference Manual on Scientific Evidence - Federal Judicial Center

Daubert v. Merrell Dow Pharmaceuticals - decided in 1993 - was a true landmark case.  The Supreme Court ruling changed the terrain, provided a reference point for those who proposed that a court consider scientific opinion testimony, and guided those who opposed or sought to limit its use.  On paper it was a plaintiff's win: the aggressive argument by the pharmaceutical industry that only consensus or "generally accepted" opinion testimony is admissible.
Rejection of the "general acceptance" test was important but the signal more widely embraced by an increasingly conservative judiciary was the injunction that judges should be "gatekeepers"  who would verify that opinion testimony was reliable - i.e. its conclusions were reached by the methods of science.  Judges had long possessed that power, but it was rarely enforced.  But after Daubert a receptive audience of conservative judges embraced the role and acted aggressively to bar expert testimony that might earlier have been admitted with minimal judicial scrutiny. - GWC

Reference Manual on Scientific Evidence, 3rd Edition
Federal Judicial Center

Table of Contents

Introduction, 1
Stephen Breyer

The Admissibility of Expert Testimony, 11
Margaret A. Berger

How Science Works, 37
David Goodstein

Reference Guide on Forensic Identification Expertise, 55
Paul C. Giannelli, Edward J. Imwinkelried, & Joseph L. Peterson

Reference Guide on DNA Identification Evidence, 129
David H. Kaye & George Sensabaugh
Reference Guide on Statistics, 211
David H. Kaye & David A. Freedman

Reference Guide on Multiple Regression, 303
Daniel L. Rubinfeld

Reference Guide on Survey Research, 359
Shari Seidman Diamond

Reference Guide on Estimation of Economic Damages, 425
Mark A. Allen, Robert E. Hall, & Victoria A. Lazear

Reference Guide on Exposure Science, 503
Joseph V. Rodricks

Reference Guide on Epidemiology, 549
Michael D. Green, D. Michal Freedman, & Leon Gordis

Reference Guide on Toxicology, 633
Bernard D. Goldstein & Mary Sue Henifin

Reference Guide on Medical Testimony, 687
John B. Wong, Lawrence O. Gostin, & Oscar A. Cabrera

Reference Guide on Neuroscience, 747
Henry T. Greely & Anthony D. Wagner

Reference Guide on Mental Health Evidence, 813
Paul S. Appelbaum

Reference Guide on Engineering, 897
Channing R. Robertson, John E. Moalli, & David L. Black

Appendix A. Biographical Information of Committee and Staff, 961

Sunday, October 23, 2011

Chevrolet turns 100

This Times video gives us 100 years of Chevrolet - who gave us the 409 and the Corvette - two icons of of testosterone and America, which were as important to the 50's as the iPhone is today.

Monday, October 17, 2011

OTHERWISE: Kiobel v. Royal Dutch Petroleum : cert granted

OTHERWISE: Kiobel v. Royal Dutch Petroleum : cert granted: "The U.S. Supreme Court agreed today to review Kiobel v. Royal Dutch Petroleum. In this case arising from alleged collusion between the Nigerian military and Shell Oil the Second Circuit Court of Appeals held that corporations are immune under the Alien Tort Claims Act for human rights violations. For earlier commentary see this and this. - GWC"

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Scotus argument recap: What does "results from" mean?

The Supreme Court heard argument last week in Pacific Operators Offshore v. Valladolid.  Richard Epstein recaps the oral argument HERE for Scotusblog.

Docket No.Op. BelowArgumentOpinionVoteAuthorTerm
10-5079th Cir.Oct 11, 2011
Issue: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?
Plain English Issue: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?

BP Recovers $4 Billion From Anadarko for Gulf Spill -

BP Recovers $4 Billion From Anadarko for Gulf Spill - "LONDON — The British oil company, BP, said Monday that a partner in a well that exploded in the Gulf of Mexico, Anadarko Petroleum, had agreed to pay $4 billion to settle claims relating to last year’s oil spill."

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Monday, October 10, 2011

Manhattan Institute's gripe about "SawStop" verdict, etc.

The Manhattan Institute's Point of Law (which does not provide post-specific linking) doesn't like the Osorio verdict or the impending? CPSC power saw safety rule. - GWC
First Circuit upholds $1.5M table-saw verdictPOSTED BY TED FRANK
For $1600-$3000 or so, it's possible to buy a top-of-the-line table saw with "SawStop" "flesh detection" technology—if you don't mind paying $175 every time a false positive mistaking a wet pocket in wood for flesh drives an aluminum block into the blade and cartridge. Or you can simply buy a relatively high-quality table saw for less than half that price and be more careful. Of course, if lawyers have their way, you won't have that choice: the First Circuit has upheld a $1.5 million verdict on behalf of a plaintiff who lost his finger in a cheaper saw, theorizing that the absence of the top-of-the-line technology was a product defect. The CPSC is proposing regulations that would take away the consumer choice to buy cheaper saws without flesh-detection technology, pushed in part by lobbying by the inventors of the SawStop. [Osorio v. One World Tech. via Torts Today via Torts ProfCPSC press releaseFine WoodWorking;Overlawyered coverage of trial-court verdict]

Saturday, October 8, 2011

Table Saw without `saw stop' technology defective: First Circuit

photo by FineWoodworking magazine
Carlos Osorio suffered serious hand injuries at work while using a Ryobi portable table saw.  He filed a multi-count complaint alleging negligence and breach of the seller's duty Massachusetts doctrine of implied warranty.   The First Circuit U.S. Court of Appeals in Osorio v. One World Technologies has upheld a plaintiff's verdict based on the claim that a table saw was defective due to failure to include automatic instant braking technology such as that invented by Stephen Gass - the founder of Saw Stop who lauded the verdict in a Q&A with FineWoodworking magazine.  The company has promoted its product with its famous hot dog video.

Patrick McCombe, a FineWoodworking reporter has an interesting review of the defense tactics and the plaintiff's countermeasures here.

Fine Woodworking, which has covered the Osorio case closely reports that on October 5, 2011 - the day the First Circuit affirmed the $1.5 million plaintiff's verdict - the Consumer Product Safety Commission voted 5-0 to issue an advance notice of proposed rulemaking for a new power saw safety rule. [The CPSC briefing package is HERE.]  Gass has been pressing for such a rule for 8 years.

One of the "risk utility factors" in a design defect case is the cost and practicality of the proposed alternative safer design.  This article from FineWoodworking includes a price list.  The SawStop cabinet saw commands a premium price that could make a real difference to a consumer.

After that view an ad for a SawStop portable contractor's saw which is twelve times the price of the Ryobi.
A competing designer David  Butler - a blade brake inventor - is working to adapt the technology to portable contractors saws. VIDEO HERE
10 inch professional cabinet saw

updated February 10, 2014

Saturday, October 1, 2011

A Scramble for Solutions as a Hip Device Fails -

An epidemic of failed metallic hip implant cases is growing. Thanks to the United States Supreme Court patients will have no remedy in tort. By 7-2 vote in Riegel v. Medtronic (2008) the court ruled - in an opinion by Antonin Scalia - that a tort judgment that an FDA-approved medical device was negligently designed  is barred because state product liability law for design defect is preempted by a federal statute - 21 USC 360k which says that a state may not impose a "requirement" which is "different from or in addition to" one imposed by the FDA.

But as Justice Ruth Ginsburg pointed out in dissent the FDA does not know what alternative safer designs were reasonably available to the manufacturer. The design choice therefore remains the manufacturer's, not that of the U.S. Food & Drug Administration. - GWC
A Scramble for Solutions as a Hip Device Fails -
 "[A]t hospitals nationwide...a growing number of patients seek to have faulty metal-on-metal artificial hips removed and replaced. More than a decade ago, some researchers had warned that the hips shed tiny pieces of metallic debris that posed potential health threats to patients. But those warnings were not heeded, and now doctors and patients face a growing public health problem as one of the country’s biggest medical device failures unfolds."

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