CLPEX Chat Board

Posted: **Tue Jun 19, 2007 7:42 pm**

Lately I have been reading a number of articles and purchasing some books on Court Room Testimony. In doing so I have come across the case of General Electric v. Joiner (1997). Now I do not remember it being mentioned on this site and I do not remember it being mentioned in the several Daubert presentations over the years. That does not mean it was not mentioned, just that I do not remember it.

Several months ago I had mentioned that McKassons book was a good one for the Latent Library. The current book I am reading, I would also recommend at this time even though I am only half finished it is “Effective Expert Witnessing” 4th edition by Jack V.Matson, Suha F. Daou and Jeffrey G. Soper.

They have a nice piece in the book on Joiner that goes along very well with several articles off of the web. Here is a piece from the book that is talking about Joiner.

“Moreover, in upholding the trial court’s decision, the Court examined not only the scientific methodology employed by the expert, but also the conclusions drawn by the expert to establish causation. The plaintiffs had argued that an examination of the conclusions violated the precept in Daubert that the trial’s court’s “focus, of course, must be solely on the principles and methodology, not on the conclusions they generate.” Nonetheless, in Joiner, the Court stated that where the expert’s conclusions and the basis for those conclusions do not flow rationally from the purported methodology, the expert’s testimony may be properly excluded. The Rules of Evidence and Daubert, the Joiner court held, do not require the admission of testimony solely because the expert says the conclusion follows the methodology. Rather experts are obligated to lay out carefully how the methodology and principles logically lead to their conclusions by, for example, providing a detailed expert report. This obligation, and the ability of the expert to meet it, helps parties on both sides of litigation identify experts who can rationally support, explain, and defend their conclusions.”

My emphasis added.

Now did I it miss this somewhere or living in a cave? If I read this right it adds to Daubert that a look at the expert's ability to communicate methodology is just as important as the Daubert Criteria. Does anyone have any other insights or thoughts on General Electric v. Joiner?

Posted: **Wed Jun 20, 2007 7:58 am**

I took Ashbaugh's Forensic Ridgeology class back in February of this year and he touched on Joiner. I looked back over my notes and, if I remember correctly, his interpretation of the significance of Joiner was roughly as follows:

Under Daubert, the emphasis was placed on determining the reliability of principles and methods but not conclusions.

In Joiner, the courts said that "Conclusions and methodology are not entirely distinct from one another." (Quote from notes provided by Ashbaugh)

This, apparently, helped lead to Rule 702, which states in part that the Court can ascertain if "the witness has applied the principles and methods reliably."

This, I am given to understand, is part of what went into the Langill decision.

So, I guess we could say that Joiner led directly to Langill.

Don't know if that helps or not, but it's what I've got.

Posted: **Mon Jul 02, 2007 5:38 am**

I hope that my attempt at a response is not an over simplification of this court case, as I admit to not being an expert in law decisions but have found that often explaining a topic in practical application helps to understand its possible ramifications.

A good friend, who also happens to be a recently retired Senior District Court Judge expressed that the "Joiner" case allows the court to better comply with "Daubert/Gatekeeper Criteria" type situations by allowing the courts' utilization of an outside (3rd party) unbiased "scientific expert". This expert evaluates and then offers a direct opinion to the judge on the merits of the scientific methodology alleged to have been utilized by the prosecutor or defense witness and their subsequent testified conclusion. Thus providing or maybe a better term...Educating the court (the judge) on matters which it may or may not have have personal knowledge or expertise.

If I did not misinterpret this practical explainantion of "Joiner" then it seems like just the tool necessary to assist the courts with the demands placed on them to comply with the "Gatekeeper Criteria". We have had many discussions about the "criteria" and how in theory it appeared they would bring consistency, but how they were implementated without providing the courts (the judges) with any type of technical/scientific training to properly evaluate the varied types of testimony submitted as evidence. It seems this decision may provide some enlightenment.

Posted: **Mon Jul 02, 2007 4:00 pm**

Bill, now that is interesting. One side interprets it as assisting the "Gatekeeper" while the book I read really pumps it up for having the examiner to explain the methodology.

Perhaps your source is correct in this state's interpretation of Joiner and why we do not hear much about it.

I find that interesting in that before DuPont vs Robinson in the Texas Kelly-Frye one of the criteria was how easy the methodology could be explained yet when they adopted Federal Daubert in DuPont vs Robinson that criteria was left out.

Interesting Bill---Thanks.

Posted: **Wed Jul 04, 2007 8:42 am**

Charles, it gets even more then interesting. To verify my word of mouth source to those that were sited from book(s) and lecture(s) I did a little more research and ran across an issue of "National Policy Analysis" #216 OCT 1998. Contained within, an article titled "Expert Testimony and the U.S. Supreme Court" and found the following:

"In Joiner, the court also endorsed the practice of trial judges using independent experts to help them determine the soundness of the theories of trial lawyers' scientific witnesses. In his opinion concurring with the majority, Justice Stephen Breyer quoted approvingly from an amices brief filed in the case by the New England Journal of Medicine:
[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority... to appoint experts... Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science."

The entire article can be found online at www.nationalcenter.org/npa216.html

I agree that in the above provided context by this U.S. Supreme Court Justice that this is probably why at our level we do not hear Joiner mentioned that often, unlike Daubert and Kumho Tire.

Posted: **Fri Sep 07, 2007 5:27 am**

Mr. Andre Moenssens has shared with me some information on Joiner which was very helpful to me in determining more about that case beyond what I have read in the earlier quoted textbook. Here is Mr. Moenssen's information.

Thank-You Andre Moenssens for sharing your knowledge.

Charles:

I haven't done one of these Daubert lectures for a while, but Joiner is of limited relevance to the whole Daubert/Kumho Tire Issue as it affects expert witnesses directly. Joiner only interpreted, and supplemented, what the Supreme Court decided in the Daubert and Kumho Tire cases. Joiner was, in turn, supplemented by another Supreme Court case, Weisgram v. Marley, in 2000.

The main Joiner issue is legally interesting, but not especially so for forensic scientists. In essence, it's a "standard of review on appeal" issue. Joiner answers the question as to what standard of review an appeals court should use when an appeal is taken from a Daubert-hearing decision. The Supreme Court stated that the intermediate appeals court should reverse the trial judge's decision on Daubert issues ONLY if the judge abused his/her discretion. In other words, Daubert teaches us that the trial judge is allowed a lot of discretion in making a Daubert decision, and as long as the judge's decision finds support in the record, the appeals should should affirm the judge's decision to admit or exclude evidence under Daubert. It is only if the trial judge's decision is wholly unspported by the record (what in law is called an "abuse of discretion") that the reviewing court should reverse. (WHY this issue even made it to the Supreme Court is another interesting legal issue, but not to forensic scientists!) The opinion raises the possibility that, on identical evidence, with the same expert, in a similar case, courts in different districts might reach conflicting decisions on admissibility. Yet, each one of these decisions might have to be affirmed if the appeals court decides the judge didn't abuse his/her discretion! CRAZY! There is one other aspect of Joiner, but let's talk about Weisgram first.

Joiner was supplemented in 2000 by Weisgram V. Marley, another decision that has more legal-procedural relevance than it would interest experts. Here is the issue! If a party appeals the Daubert-issue decision of a trial judge, we already know from Joiner that if the judge's decision was reasonably supported by the record, that decision should be affirmed as being within his discretion. But what if the appeals court finds that the decision was "an abuse of discretion"? Must the appeals court now reverse the Daubert decision of the judge and send the case back to the judge for a new Daubert hearing? (This is what would typically be the case if a judgment of conviction were reversed and remanded for a new trial.) Or, if the appeals court feels the record is sufficiently complete, can the appeals court summarily reverse without sending it back for a new hearing. The Weisgram Court said the appeals court had that power, and therefore could summarily dispose of the case on appeal. Both of these cases are mentioned in a brief article on my website, titled "Plaintiff's Expert 'Flunks' Daubert Test But Is Permitted to Testify -- What Can The Reviewing Court Do?", see: http://www.forensic-evidence.com/site/E ... sgram.html . It's in the first section of my website, under Evidenced Law News.

There WAS an issue in Joiner that experts ought to know about, and it's a concept that Daubert lecturers may mention in their general discussion on methodological vs practitioner error, or when they discuss proof of reliability, or even the issue of objective vs. subjective opinions, and when they do they may not actually mention the Joiner casename. And that issue deals with the Court's mention of "ipse dixit" testimony. It relates to what happens when an expert says, essentially: "This technique is reliable, and it is so because I say it is so! After all, I am the expoert!" That type of testimony will NOT satisfy the need to prove "reliability" under Daubert/Kumho Tire as these cases interpreted Federal Rule 702. The Ipse Dixit passage is in the part of the Joiner opinion where the Court discusses the difference between methodological error in proving reliability vs subjective error in the drawing of conclusions from data by a practitioner. The Court said, "But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert of the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. [Internal citations omitted.]" And then the Court concludes immediately thereafter with its main issue, "We hold, therefore, that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientic evidence. . . ." (General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 at 518-519 [1997].)

The mention by one of the other persons who responded to your inquiry about courts appointing independent experts actually came in the concurring opinion of Justice Breyer, and not in the Court's opinion of Chief Justice Rehnquist speaking for the unanimous Court.

As a side comment, it is interesting to note that all four of these Supreme Court cases (Daubert, Kumho Tire, Joiner, and Weisgram), were CIVIL cases, yet the impact of them is felt primarily, if not almost exclusively, in criminal cases.

This is probably a whole lot more than you wanted to know about why Joiner isn't as well known in our field. I thoroughly enjoy your comments. Indeed this discussion on "opinions" ties in somewhat with the recent posts on "objective v. subjective again!" by you and Pat Wertheim.

Take care,

Andre

Andre A. Moenssens (O)
Douglas Stripp Professor of Law Emeritus University of Missouri at Kansas City) Permanent Address:
At Shriner Lake
1760 E. Poplar Rd
Columbia City, IN 46725
260-691-2562

Thank-You Andre for the information.