Terrifying Times

It is with much unease, that I am going to try and consolidate Peter's web hosting accounts with our family hosting account.  I have been assured by the hosting company that the liklihood of anything being lost is minimal at the worst.  I have no reason not to believe these people, it is after all what they do.  However, when it comes to anything that Peter built or wrote, I am, understandably, I think, nervous about loss.  I have backed up every single thing as per instructions from the web hosting company and if a loss should occur, I should be able to get everything republished as it was in short order.  Since all three accounts are with one hosting company, it is my hope that the transition will go as smoothly as they seem to think that it will.  As a final precaution, I have decided to merge the family plan and Peter's personal plan with the plan that is home to Daubertontheweb and Blog702 in the hopes that if anything does get scrambled, it will not be from those two sites.

Wish me Luck!

Mykaila Nordberg

Sad News

Peter B. Nordberg, the author and founder of Daubertontheweb.com and Blog702, passed away April 17 2010.

Please keep our family in your thoughts as we go through these hard days. I am his wife Mykaila, and I will post as soon as any decisions regarding the site and the blog are made.

You can view Peter's obituary at www.bergermontague.com .

Peter B. Nordberg, creator and founder of Daubertontheweb.com and Blog702, passed away April 17, 2010.

You can view his obituary at http://www.bergermontague.com/ , there is a memorial link on the home page of that site.

At this moment, I (his wife) have not decided what to do with the site or the blog. I would like to keep it running and get it back up to date in his memory and to honor him. I am not sure that I can do this. Peter's shoes will be next to impossible to fill. I will post a decision as soon as I have made one.

To all of you who have followed this blog over the years, or used the main site ... I thank you. The site was one of the joys of his life ... he truly loved doing it.

Pet Writing Peeve of the Day

"Acquaintanceship."

Spotted twice in as many days.

Still on Hiatus

Busy with other things right now.

Stay tuned.

Today's Pet Writing Peeve

Please, for the love of God:

Neither

Jones failed to attend the July 6, 2002, meeting.

nor, worse still,

Jones failed to attend the July 6, 2002 meeting.

but rather

Jones failed to attend the meeting of July 6, 2002.

and thereafter

Jones failed to attend the July 6 meeting.

Thank you for your attention.

No, We're Not Defunct

Just resting, filled as we are with blogging ennui (New Year's resolutions notwithstanding).

We do have our day job, you see, as well as other pursuits. And we're not under any contractual obligations to blog, so we're free to succumb to ennui when it besets us.

But we'll get over it at some point and rejoin the fray. We can already feel it coming.

11th Circuit Upholds Statistical Testimony in Medicare-Fraud Prosecution

On plain error review, the Eleventh Circuit has upheld the trial court's admission of testimony from a statistician in a Medicare-fraud case.

The defendant was a dermatologist charged with performing unnecessary skin-cancer surgeries on hundreds of elderly patients. The putative need for surgery was based on biopsies conducted in the dermatologist's laboratory. Lab employees testified that the lab was staffed by inadequately trained technicians who did a poor job at preparing the biopsy slides. Sometimes, apparently for sport, the technicians altered the slides. Once, they said they substituted chewing gum for tissue. Another time, they substituted styrofoam. On both occasions, they said, the dermatologist diagnosed cancer based on the slides.

The prosecution's expert statistician selected a random sample of the dermatologist's slides and passed them along to the government's health experts, who testified to various opinions based on them. The statistician also testified at trial, without objection, about how he generated the random sample. The dermatologist was convicted.

On appeal, the dermatologist's lawyers argued on various grounds that the trial court should have excluded the statistician's expert testimony sua sponte. In response, the government argued, among other things, that the statistician's testimony wasn't expert evidence in the first place, because he did not offer an "opinion." In an unpublished per curiam opinion, the 11th Circuit affirmed the admission of the testimony but made short work of the government's "opinion" argument:

In its brief, the Government inexplicably contends [the statistician] was not an expert because he did not render any expert opinion. Although an expert is permitted to render an opinion, Fed. R. Evid. 703, 704, he is not required to do so, and failure to offer an opinion does not negate an expert's status, see Fed. R. Evid. 702. During the Government's proffer and during his testimony, [the statistician] discussed his specialized training, as well as the methodology he employs in selecting random samples. His specialized knowledge lay outside the province of the jury and rendered him an expert.

See United States v. Rosin, No. 06-15538 (11th Cir. Jan. 16, 2008) (Black, Hull, & Fay, JJ.).

Witness Tampering Watch (British Edition)

If the RSPCA's experts don't initially say what the RSPCA wants, they may be told to say something different.

The British are shocked. K9 Magazine has the story.

Expert Testimony on False Confessions Too Abstract, Says 5th Circuit

In an unpublished per curiam opinion, the Fifth Circuit has upheld a trial court's decision excluding a criminal defendant's proffered expert evidence on false confessions. The expert's testimony, the panel said, consisted only of generic propositions; the expert failed to apply them adequately to the facts of the case. From the opinion:

Pursuant to Rule 702, testimony from a qualified expert witness is permitted if the opinion will assist the trier of fact, "the testimony is based upon sufficient facts or data, [] the testimony is the product of reliable principles and methods, and [] the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702 (emphasis added). Here, the district court determined that [the expert] added nothing more than abstract scientific nostrums. [The expert's] proffered testimony did not apply recognized or accepted principles to [the defendant's] particular circumstances. Instead, it offered only the general proposition that false confessions can occur. See United States v. Alexander, 816 F.2d 164, 169 (5th Cir. 1987) (stressing that trial court's are not required to admit generic expert testimony). Accordingly, even if the district court could have properly admitted the evidence, it was not "manifestly erroneous" to exclude it.

See United States v. Dixon, No. 06-31234 (5th Cir. Jan. 16, 2008) (King, Barksdale, & Dennis, JJ.).

More on Babies in the Microwave

Defense expert: Babies are not pancake batter.

Judge Posner on the Static 99

In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy."* In a Seventh Circuit opinion issued yesterday, Judge Posner devotes substantial discussion to the Static 99, its uses, and its limitations. See United States v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (Posner, Wood, & Williams, JJ.).
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* See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a fact important to a sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

On Babies in the Microwave

At the murder trial, do you need a microwave expert, or a baby expert?

Sadly, the question is not hypothetical.

California Supreme Court Hears Argument on Recoverability of Expert Fees Under Cal. Civ. Code 1021.5

California's high court heard argument Wednesday on whether expert fees are recoverable by the prevailing party in actions brought under the state's private attorney general statute. Law.com has the story.

9th Circuit Upholds Fingerprint Evidence

In an unpublished opinion, a Ninth Circuit panel has upheld the trial court's decision to admit fingerprint testimony without a Daubert hearing. The reliability of fingerprint evidence may properly be taken for granted, the opinion holds -- at least in the absence of evidence from the objecting party calling its reliability into question. See United States v. Calderon-Segura, No. 05-50820 (9th Cir. Jan. 9, 2008) (Kozinski, Reinhardt, & Brunetti, JJ.).