Expert Testimony in Insurance Cases–Some Legal History

EXPERT TESTIMONY IN VARIOU STYPES OF  INSURANCE CASES: SOMEHISTORY

*This essay was written, delivered as a CLE lecture, and then rewritten several years ago. It’s purpose was to link the then new expert witness law of the late Twentieth Century and the early Twenty-First to the use of expert witnesses in insurance cases. Property insurance is taken as the paradigm. Some of the material on the expert witness law is original, rigorous, critical, and simple, all at once. relevant additions are to be added as time goes along, but it will remain a history.
There’s even a little “how to” stuff in here for lawyers thinking about deposition-taking.

A very early version was distributed at an ABA Tort Trial and Insurance Practice Section Meeting in 2005 under the title “Experts and Ethics: Are the Rules Changing.” The law of evidence regarding experts has not changed much, if at all, substantively speaking, at least as to general themes. For an example of this, see McMahon v. Zimmerman, 433 S.W.3d 680 (Houston Court of Appeals (1st District), March 27, 2014). Case Number 01-12-01090. Review was not sought in the Supreme Court of Texas. This case pertains to expert witnessing in a divorce case, and it depends on Robinson a Texas case, discussed below, that fits into the Daubert-Kumho Tire pattern. There are spacing errors which I cannot seem to eliminate. Some single spacing is computer-storage caused error. Some single spacing is for long quotes. (As the language of the street goes these days, “Get used to it.”

Here is a Table of Contents. It matches titled sectional divisions found in the text.

I. Background: Rules of Evidence
II. Doctrinal Introduction: Pre-Daubert
III. Daubert: The United States Supreme Court and Scientific Experts.
IV. Daubert Again: Ninth Circuit Decision on Remand
V. The Kumho Tire Case
VI. Some Reactions to Kumho Tire
VII. Some Practical Observations Regarding Expert Witnessing in Insurance Cases
VIII. The Windt Argument
A. Windt’s Brilliant Thesis and Some Problems
B. Windt’s Mistake and Some Solutions
C. A Solution to the Mistake
IX. Conclusion

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Various kinds of expertise, expert knowledge,
and the quasi-knowledge of experts (if not their testimony) have been important
in the American legal system for a long time.[1] Tensions
between sciences–whether actual or self-proclaimed–and the law have not been
restricted to the history of the United States; they run back a long
way.[2]  There have been huge controversies about the
use of medical testimony in legal proceedings for quite a long time–virtually
as long as the tort system has been alive.[3]  Even in the late last decades, there have
been huge clashes between science and the law—or at least between the sciences
and how lawyers try to manipulate the law.[4]  There have also been enormous controversies
about science and the law in the area of environmental litigation.[5]  In recent years, as the so-called high-tech
aspects of American life have become more important, expertise on computers,
computer-related products, and computer services have become even more
important.[6]
As
society becomes ever more professionalized in a great many ways, and therefore
more subject to principles, rules, technicalities, and the like,[7]  we can expect expert testimony to become more
and more significant.  This is true even
in the fine arts.  Imagine a lawsuit
arising out of whether some one was sold fraudulent art.  This has actually happened; there is, for
example, a(n) (in)famous and disgraceful transaction involving the sale of a
phony sculpture to a significant museum.[8]  How experts think in this area of study and
that is also very important.[9]
Now imagine insurance coverage being an
issue.  This kind of litigation would
almost certainly require an expert witness.
Certificate-of-insurance catastrophes, which involve what a policy
actually would have said had it been issued rather than just sold, are no
exception.  The Exxon Valdez insurance case in Houston proved this. Consider
also how complex it has been to try to figure out just exactly why the World Trade
Center buildings
collapsed after being hit by airplanes at high levels.[10]  Consider how complex it was to compare and
contrast what happened at the World Trade Center
to what happened years before 9/11 at the Empire State
building when it was also hit by a then good-sized airplane.[11]
One topic of this paper will be to
summarize some of the important laws which currently control the use of expert
testimony, especially as they apply to insurance cases.  In recent years, a lot more has been written by
lawyers and law professors on expert testimony than on the testimony of fact
witnesses.[12]  Generally speaking, insurance adjustment is
the most important area. Interestingly enough, in contrast, some philosophers
interested in epistemology, have engaged in the study of testimony in general,
but these studies have not yet delved very far into the study of expert
testimony.[13]  The major recently influential cases will be
the focus here.  Thus, this paper will
concentrate upon the Daubert case[14] from
the United States Supreme Court and the major follow-up case from the same
court, Kumho Tire.[15]
The
topic of expert witnessing is not exactly a new topic, as already indicated.  The logic of expert opinions has been
important as long as there has been any kind of theoretical thinking about
logic and the role authoritative opinion based on knowledge (i.e., something
which looks like expertise) may play
in reasoning, rhetoric, logical argumentation, and fallacious persuasion.[16]  As already indicated, the may is now a must, given the technical complexity of the world given computers and
their wider and wider use.
Both
significant decisions mentioned above are decisions having to do with the
introduction of what most of us would regard as actual, out-and-out scientific
testimony at trial—or, at least, testimony highly related to and immediately
based upon science, such as sophisticated engineering testimony.  Sometimes, what is now often called the “Daubert Doctrine” has been applied to ALL expert testimony including nonscientific
testimony.  Obviously, decision errors in
any sort of complex situations, requiring expert testimony, are always a matter
of substantial interest in litigation.[17]  Nevertheless, as we shall see, from Kumho Tire, the universal application of
Daubert was and is a bad idea, so a
variation has replaced it—more or less.
Often, the relevant rules regarding expert witnesses is called “the Daubert Doctrine” or “the Daubert Rule.”  This is a bad idea.  That rule has no place dealing with expertise
regarding insurance adjustment practices, just as it has no place in dealing
with perfume snuffing, marijuana seeding, chicken sexing, cow “moo”
differentiation, or psychiatric diagnosis, although not always for the same
reasons.[18]  In insurance cases, the  applicable rule or principle should be called
“the Kumho Tire rule,” or just “the Kumho Doctrine.”
Another topic of this paper is the
recent argument of Allan Windt regarding the use of expert witnesses in
insurance bad faith cases.  The Windt
argument is the most interesting proposition asserted about expert witnessing
in the area of insurance in a long time.
It appeared first the Fifth Edition of his book Insurance Claims and
Disputes (2007);  it was recently
excerpted in the 2007 Insurance
Litigation Reporter.[19]  Windt’s observations on this topic are
terribly important for legal argument, so they should be studied and utilized
by all lawyers dealing with insurance bad faith cases.  This observation is correct, whether Windt is
ultimately correct or not. This claim here is true, even  Windt’s view may contain flaws; this is true
even if Windt is ultimately wrong. This shall be argued in § VIII below.  Some of the emphasis of this paper will be on
property insurance—often a favorite topic of the lawyer who truly loves
essential legal problems of insurance.[20]
I.  Background: Rules of Evidence
Before focusing upon the precise
terms of  the Daubert and Kumho Tire cases
and their doctrines, one has to begin with and keep in mind the rules of
evidence that structure the debate.  Rules
702-04 of the Federal Rules of Evidence are the basic rules. Many states—including
Texas―have adopted these, or similar, rules of evidence.  Often these adoptions—as in Texas—use exactly the same numbering system
or one closely resembling one used in the Federal Rules. Here is what Rule 702
was for quite awhile—a quarter of a century—after its original promulgation in
1975:
If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

In 2000, an
addition was made to the rule.  The
existing text of the rule stayed the same, but language was added after the
word “otherwise.”  The second half of the
rule now reads:
“A qualified expert may testify thereto in the
form of an opinion or otherwise,] if (1) the testimony is based on sufficient
facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts in the case.”  [Emphases
added.]

As we shall see
more clearly presently, the addition to Rule 702 is a product of Daubert and does not particularly change
the rule except to explicitly embrace the doctrine of that case, which is found
in the word reliable.
One
of the most important things to notice about Rules 702, whether state or
federal, is that experts are permitted to testify if their testimony will help
the trier of fact understand the evidence.
At least in theory, this principle should allow expert witness at least sometimes
to testify about contracts, about what is contained in contracts, and about the
structures of contractual documents.  Consider
testimony about insurance bad faith in the area of adjustment.  The general point to such testimony is
establish that the adjuster and hence the insurer was unreasonable.  In many cases it is virtually necessary to
say that the adjusters conception of what his job was bout was misconceived or
misunderstood.  Often it is not possible
to do this without saying that the adjuster misconceived his company’s
obligations under the contract at issue.
Of course, exactly this testimony is as to a matter of fact.  At the same time it is necessary to talk
about the insurance policy and its meaning. Thus, sometimes the two types of
matters are mixed.  Here counsel should
try to suggest that the expert testimony as to facts is crucial, and the part
that has to do with legal matters is small anyway, since it is not really in
controversy.  A summary judgment from the
court can help as well.  Now we turn to
the harder part.
In
any case testimony about whatever will help  is permitted by the rules if the trier of fact
needs to understand the evidence and will have difficulty doing so based upon
common sense.   What is not necessarily permitted
is for an expert to testify purely and only  as to a matter of law which is to be decided
by the court.  This is true even if the
expert has the knowledge, the data, the reliability, and is not
speculating.  Of course, a court could
hear such testimony if it wanted to do so, feels a need, or thinks it might be
helped.  Interestingly, Texas and Federal Rule of Evidence 702 both
support this view, since the range of permissions they set up are for the trier
of fact.
So,
why would experts be permitted to testify about insurance contracts, when it is
the judges―who has the authority to interpret them?  And they interpret them as matters of law,
not matters of fact.  Another reason—this
one pertaining to purely legal testimony–is this.  If the insurance contract is difficult to
understand or follow, then an expert witness should be permitted to explain
sufficient features of it so that the jury can read and understand the contract.  We have seen trial lawyers try to explain the
policies themselves projecting print up onto a screen and then reading various
sections.  This is not very effective.
Having an articulate witness do the job will usually—indeed, almost always―be
better!  Lawyers who want to do this
should be ready to make this argument well before trial, if possible.  (Possibilities here rest on diverse
considerations.  Here are five: (1) the
date of the required expert report, if one is required, (2) the quality of the
report, (3) The cooperativeness of the two or more parties, (4) the willingness
of the judge, and (5) the reactions of the judge to the report if s/he has read
it.)
According to the Rule 703, a
testifying expert may rely upon some inadmissible evidence (e.g., certain kinds
of reasonable hearsay) if that evidence is the sort of data upon which members
of the relevant community of expertise normally rely.  According to the Rule 704, an expert may
testify upon an ultimate issue to be decided by the trier of fact.[21]  This makes it possible for an expert witness
to testify, for example, that the defendant was negligent, that the defendant’s
statements were fraudulent, that the insurer’s conduct regarding the claim was
not prompt, that the defendant insurance company’s adjustment conduct was
performed in bad faith, or that the insurer defendant’s conduct was an instance
of bad faith.  One wonders whether an
expert should be able to testify that the insurer adjustment conduct was unfair or that it constituted inequitable treatment of the
plaintiff-insured.
II. Doctrinal Introduction: Pre-Daubert
For many years before Daubert, the admissibility of scientific
evidence was structured by the Frye
case.[22]  The rule in that case has come to be known as
the “general acceptance” test. According to it, a court should not receive into
evidence scientific evidence unless the law, principle, or generalization at
issue is generally accepted by the relevant community of experts.[23] At
the same time the Frye test was
subject to discussion and criticism for many years.  In general, there have been two controversial
issues.
The
first issue is that general acceptance may not be an appropriate criterion for
governing the admissibility of all types of scientific evidence.  This rule, if taken literally, would seem to prohibit
new and not yet completely established—that is, cutting-edge–evidence.  This position would cover both general rules
and particular applications. Thus total agreement is not a necessary condition
of admissibility.  Further, if universal
agreement amongst the established, were a sufficient condition for
admissibility, then disastrous mistakes might be admissible, including at some
times the shape of the earth or the origin of species. The second issue in Frye is that scholars and courts alike
wondered whether the Frye test
survived the adoption of the Federal Rules of Evidence.  After all, the language of the Frye case is not language of those
rules.[24]
III. Daubert:
The United States
Supreme Court and Scientific Experts
Technically, the Daubert case appears to pertain to the
second question only.  In reality, it
also deals with the first question.  In
short, the Supreme Court of the United
States held that the Frye test did not survive the adoption of the Federal Rules of
Evidence, but the court went on to indicate that these Federal Rules placed
definite “limits on the admissibility of purportedly scientific evidence.”[25]  Thus, by its own terms, Daubert restricts itself to (i) testimony based upon the physical
natural sciences or to (ii) testimony the propositions of which constitute
scientific statements.  Thus, at least in
some sense, every other statement regarding evidence and admissibility is
dicta.[26] This
would include expert testimony purporting to be empirically based and
objective, but not scientific.
The presenting issue in Daubert was whether Bendectin caused
birth defects when taken by pregnant women as an anti-morning-sickness
drug.  The manufacturer moved for summary
judgment on the basis of the affidavit of a physician and epidemiologist who
stated that he had reviewed the entire literature on Bendectin and human birth
defects, that this body of literature included more than thirty published studies
involving over one hundred and thirty thousand patients, that none of these
studies had found Bendectin to be a substance capable of causing malformation
in a human fetus, and hence, that the use of Bendectin by women during the
first trimester of pregnancy has not been shown to be a potentially causative
factor for birth defects.  The plaintiffs
opposed summary judgment on the basis of a series of their own affidavits from
eight experts, “each of whom also possessed impressive credentials.”[27]  The conclusions of these experts were based
upon test tube experiments, animal studies, studies of the chemical structure
of Bendectin which arguably showed similarities between that substance and
substances which were known to cause birth defects, and re-analyses of the
published studies upon which the manufacturer’s expert relied.[28]
The district court had granted
summary judgment to the manufacturer, and the Ninth Circuit had affirmed on the
basis of Frye.  The district court and the court of appeals
were both concerned about the re-analyses, in effect, advocated by the plaintiff’s
witnesses.  The district court found that
these conclusions were inadmissible because they had been neither published nor
subjected to “peer-review.”  The court of
appeals emphasized this point and noted that the original studies had been submitted
to review by the scientific community.
The court of appeals acknowledged that re-analyses are accepted by the
scientific community, but noted that this is true only when they are themselves
made fully available for scientific discussion and critique.[29]
The Supreme Court held that the general
acceptance test of Frye was
inconsistent with the spirit of the Federal Rules of Evidence, which were
designed to eliminate rigid barriers to the introduction of opinion
evidence.  Nevertheless, according to
Justice Blackmun, who wrote for the majority, Rule 702 contains principles
for regulating the introduction of evidence which is purportedly scientific
testimony.  First, the rule appears to
presuppose that only knowledge may be
introduced in the form of opinion testimony.
Second, the type of knowledge which is at issue in Daubert is scientific
knowledge.  According to Justice
Blackmun, these last two words together imply the principles for regulating the
admission of purportedly scientific testimony.
First, the testimony must
constitute, or at least rest upon, actual, real, genuine empirical knowledge.  Of course, acknowledges Justice Blackmun,
science is not an encyclopedic body of universally (or even widely) known
truths about the universe.  Science
changes its mind, whereas actual truth always remains the same.  Science is a process of proposing, rejecting
and refining and establishing hypotheses and theories, not simply a list of
truths.[30]  Thus, a proposition can be part of scientific
knowledge at a given time, even if it is not—by itself–ultimately true.  Thus, according to Justice Blackmun, there
are received methods for judging what belongs within the realm of the
scientific and what does not.  Even
though something may constitute scientific “knowledge” for now, and later be
rejected, a proposition can count as scientific “knowledge” for now, only if it
has been justified, “evidenced.” and perhaps recognized or accepted in certain
established ways.  These canons are called
“the scientific method.”  Hence, a
proposition (whether ultimately true or false) can count as part of scientific
knowledge if, but only if, it has been subjected to the processes known as the “scientific
method.”
Second, a proposition can count as scientific
knowledge, as opposed to technical knowledge, specialized knowledge, or some
other kind of knowledge, only if it has been tested by scientific means.  “Proposed testimony must be supported by
appropriate validation—i.e., ‘good grounds’ based on what is known.  In short, the requirement that an expert’s
testimony pertain to ‘scientific knowledge’ establishes a standard of
evidentiary reliability.”[31]
Rule 702 contains an additional
requirement.  Rule 702 states that if a
witness is presented to testify based upon scientific knowledge, if that
scientific knowledge will assist the trier of fact either to understand the
evidence or to determine facts at issue, and if the witness is actually
acquainted with the scientific knowledge about which he intends to testify,
then the witness may testify.  Thus,
proffered evidence must also assist the trier of fact in certain ways.  Obviously, proffered expert testimony must be
relevant.  There must be a “fit” between
the testimony being offered and the issues before the trier of fact.  Issues of fitness are not always
obvious.  A scientific theory, law, or
conclusion may be relevant to one inquiry and not to another one.  But there is more.  “Rule 702’s ‘helpfulness’ standard requires a
valid scientific connection to the pertinent inquiry as a precondition to
admissibility.”[32]  Thus, Rule 702 involves a higher standard
than does Rule 402, which merely sets minimum conditions upon
relevance.  For the purposes of
Rule 702, the connection between the testimony and the issues at stake
must be scientifically valid and not just minimally relevant.
According to Justice Blackmun, when
faced with an offer of expert scientific testimony, a judge must engage in a
preliminary determination as to whether the proffered testimony is (or, at
least, is rationally based upon) scientific knowledge, whether the application
of that knowledge to the facts of the case is scientific, and hence, whether the
testimony is through-and-through within the canons of the scientific
method.  Only then, according to Justice
Blackmun, should the judge permit a purported scientific witness the wider
latitude given him under Rule 702 to express opinions, including opinions
not based upon first hand knowledge.
This approach mandates that trial
judges shall review proffered scientific testimony for “scientific-ness” before
sending it to the jury.  The Supreme
Court does not think that there are any definitive checklists or litmus tests
for determining scientific-ness, but it lists a number of significant questions:
Is the purportedly scientific theory testable?  (If not, then it is not scientific, even
in principle.)
Is the purportedly scientific theory falsifiable?  (The idea that falsifiability is a
necessary condition of scientific theory is associated with one of the
great philosophers—or, at least one of the great philosophers of science—of
the Twentieth Century, Sir Karl Popper (1902-94), a philosopher of German
origin who ended up as a British subject, a distinguished writer, and
ultimately a person knighted.  The
court also relies upon the work of Carl Hempel (1905-97), also a German
speaking philosopher, who ended up in the United States.[33]  Hempel’s conception of testing was more
general than that of Popper.[34])
Is a depended-upon
proposition falsifiable?  (If
not, and if it is not part of mathematics, it is not science.)
Has the applied theory been tested (e.g., in terms of
falsifiability)?  (If not, although
it may be scientific in principle, it is not yet actually established
scientifically, although it might later be.  It should not be used now.)
Has the theory been scrutinized by other scientists? (If not, it should not be
admitted.)
If it has been, what
do the other scientists say about it?
(If they universally condemn it, then the theory should not be
admitted.)
Has the material been published?  If so, where?  (Publication, of course, is a good way
to move towards public scrutiny of a scientific theory, but it is not the
only way.)
Has the theory established for itself a rate of error?  (If not, why not?  If so, what is it?)
The
bullet-pointed principles just set forth are raised repeatedly in many Daubert-based opinions in both federal
and state court.[35]
Perhaps it would be useful if these
various near-rules had the following “titles”:
1.         Empirically testable basis
a.         Falsifiability—two
meanings
i. empirically tied and
specific enough to be tested, or
ii. subject to (or
having been subjected to) tests for falsification
b.         Various
Approaches
2.         Tested
a.         Basis, or
b.         Actual Opinion, or
c.         both (depending)
3.         Substantial agreement amongst many recognized authorities as
to basis
4.         Scrutinized by appropriate others
5.         Recognized credentials scrutinizers
6.         Scrutinizers have developed opinion[36] →
7.         On the same or very similar topics →
8.         Found in the proposed expert’s opinion
9.         Plausible statements by others
10.       Publication in appropriate places
11.       Low probability of error.[37]
In some ways, in
litigation, the last two of these “Eleven Titles” are the most interesting.  Where was the opinion of the expert
published?  What kind of reputation does
the publication have?  Is publication
determined by qualified experts on that subject?  How is the probability of error
measured?  (For example, is it measured
rigorously by established statistical methods recognized in the relevant
sciences?)  If the probability of error
is not measured, how is it estimated?
The requirement of peer-review
shades off into the discarded requirement of general acceptance.  If the theory has been subjected to peer-review
and it is roundly, i.e., uniformly or generally, rejected, then, presumably, it
will not be admitted in evidence.  (The
“bet” is that “round rejection” in the modern scientific world equals sound rejection.)  In contrast, if a theory has been subjected
to peer-review and it is generally accepted, then it will be admitted in
evidence.  Thus, at least under some
circumstances, the rigorous Frye test
remains usable and respectable. The Daubert
court does not discuss what should be done with controversial theories which
are recognized by some and rejected by others, however.
Justice Blackmun did not see the
rule in Daubert as creating a
free-for-all in which “befuddled juries are confounded by absurd and irrational
pseudoscientific assertions.”[38]  He was of the opinion that vigorous
cross-examination will further help separate the scientific wheat from the
pseudo-scientific chaff, at least well enough for the purposes of the civil
justice system.  This observation suggests
that if a theory has not achieved general acceptance, but many of the indicia
are scientific, it should be admitted and subjected to wide-open cross-examination.  Obviously, admissibility falls within the
sound discretion of the trial judge; exercises of that discretion will vary
from case to case, at least to some degree.  (It is worth remembering that–in theory, at
least–these questions are also raised by Rule 403, which calls for the
exclusion of evidence where its inflammatory potential outweighs its probative
value.[39])
IV.
Daubert Again:  Ninth Circuit Decision on Remand
The
Ninth Circuit took up Daubert again
in 1995.[40]  The lawyers appearing before the court were
an all-star cast.  For example, Charles
Fried–a Harvard law professor, star conservative jurisprudential thinker,
former Solicitor General of the United
States, later justice on the Supreme Court
of Massachusetts, and now returned to Harvard–appeared for Merrill Dow.  Alex Kozinski, a well-respected,
breathtakingly intelligent, and fiercely independent now Chief Circuit Judge
since 2007, wrote for the  court.  He employed a brilliant strategy in applying Daubert.
Judge Kozinski indicated several
times in his opinion that he was unsure that federal judges should be judging
the quality of science.  He said that the
task was “complex and daunting.”[41]  He said that part of the necessary
decision-making under Daubert “puts
federal judges in an uncomfortable position.”[42]  Judge Kozinski approached his task of judging
the quality of science with a good deal of, humility, self-skepticism, and
apprehension:
Our
responsibility, then, unless we badly misread the Supreme Court’s opinion, is
to resolve disputes among respected, well-credentialed scientists about matters
squarely within their expertise, in areas where there is no scientific
consensus as to what is and what is not “good science,” and occasionally to
reject such expert testimony because it was not “derived by the scientific
method.”  Mindful of our position in the
hierarchy of the federal judiciary, we take a deep breath and proceed with this
heady task.[43]

Consistent with
his appropriate and praise-worthy—some might say, uncharacteristic—attitudes, Judge
Kozinski devised a brilliant “maneuver” in his decision.  He created a way for judges to evaluate
science without getting into scientific technicalities.  He provides a way for judges to rely upon
themes in the sociology of science, rather than on science itself, to judge
admissibility.  Of course, that is
exactly what the Frye test did.  Naturally, Judge Kozinski does not suggest
that we return to Frye.  That test conditioned admissibility upon
general acceptance in the right scientific community.  Judge Kozinski suggests different
sociological principles, but he keeps the general approach.  He does not lay down principles which will be
necessary and sufficient for admissibility.
Rather, he indicates that appropriate principles will vary from case to
case.
Under the first prong of the Supreme
Court’s test:  Is the scientific
methodology employed minimally acceptable?
Judge Kozinski suggests that under the circumstances of the Bendectin
cases, there are two sociological indicators of reliability which were not
satisfied.
First,
none of the experts appearing for the plaintiffs had undertaken their research
in a context independent of litigation.
Academic and similar scientific research implies, at least prima facie,
certain indicators of reliability.  The
concern is that a semi-scientist doing research for a lawyer in litigation is
more likely to try and make his result come our in favor of what the lawyer
wants, whereas a truth seeker does not ultimately care.  He just wants to know what is true.  In addition, the people doing the research are
scientists.  If they undertake research
in their professional lives, it is likely to be scientific.  Moreover, their research proposals will have
to be reviewed by institutions which support their research, and frequently,
the scientists will be proposing research grants to others who will review
their proposals, their methodology, their performance, and their results.  None of the Bendectin research relied upon by
the plaintiffs was done independently of litigation. A lesson implied here is
this: do not trust work done for money in the litigation before the court, if
that is the only work done in the area.
Second, one of the key factors of
the scientific world is an open and free-wheeling debate.  Under the circumstances of the twentieth century,
this is generally done by means of publication.
Publishing scientific articles involves a semi-guarantee of objectivity
all its own.  Scientific journals are
peer-reviewed.  They are not published
unless scientists functioning as journal referees pass on the minimal adequacy
of the scientific methodology.  Judge
Kozinski regards it as significant that, although the experts for the
plaintiffs had formulated and put their views forth for nearly a decade, none of
them had published their observations and conclusions in any scientific
journals. (Questions: Does the coming and spread of the Internet and its new
modes of communication change this? How? To what extent?)
Even more significantly, no expert
whose testimony was admissible was willing to testify that it was more probable
than not that Bendectin caused birth defects in human beings.  In the absence of such testimony, the
plaintiff’s case would fail as a matter of law.
Allegedly, the form of birth defect caused by Bendectin was limb
reduction.  But in every one thousand
births, there will be a limb reduction.
Therefore, at a minimum, in order for statistical evidence to be
probative of the proposition Bendectin causes limb reductions to a probability
which is more likely than not, scientific, epidemiological research must
establish that in the population of women who took Bendectin there were two
limb reduction birth defects out of every one thousand births.  As stated, no expert whose testimony was
admissible was willing to say this.
Consequently, the testimony was irrelevant because it did not “fit” and
was not “helpful.”
One of the odd features of this
opinion is that the decisive factor which led the Ninth Circuit to affirm the
trial court’s grant of summary judgment was the fact that the testimony was
unhelpful because it was not probative of the issue of causation.  That would have been true even under the Frye test.  Had the district court, years before, made
this point clear and had the district court rejected the expert testimony on
this basis, the last two appellate decisions could have been avoided. One of
these has been historic, in some senses, and often misused.
Another feature of this opinion
which seems important for the resolution of the case, as well as to the future
of science-based litigation, is the following remark:
The opinions
proffered by plaintiffs’ experts do not, to understate the point, reflect the
consensus within the scientific community.
The FDA—an agency not known for its promiscuity in approving
drugs—continues to approve Bendectin for use by pregnant women because
“available data do not demonstrate an association between birth defects and
Bendectin.”  Every published study here
and abroad—and there have been many—concludes that Bendectin is not a teratogen
[i.e., a substance which causes birth defects].
In fact, apart from the small but determined group of scientists
testifying on behalf of the Bendectin plaintiffs in this and many other cases,
there doesn’t appear to be a single scientist who has concluded that Bendectin
causes limb reduction defects.[44]

In other words,
the scientists employed by the plaintiff constitute a tiny minority; they at
least appear to have voices crying out of the wilderness.  Many millions of dollars should not change
hands based upon views of a tiny minority of the scientific community—none of
whom is highly religious.  The judiciary
should sanction transfers of huge wealth only if the key testimony has at least
a modicum of respectability. Doesn’t this sound like the sociology used in Frye?
The actual Daubert Rule does not apply to the usual type of insurance
adjustment case, say,  where the
principal issues are whether the adjustment was done correctly and whether the
insurer is guilty of bad faith adjustment.
Informal logic of various types and practical epistemology certainly
apply.  Advanced physical and
mathematical science does not.  This is
true even if an adjuster needs a physical scientist to explain to him what
happened in a possibly insured event, and even if a similar scientist is needed
to help determine whether there were errors and/or bad faith in the adjustment
process.
V. The Kumho
Tire Case
The
Kumho Tire Company[45]
case is at least as important as Daubert;
it is more subtle: and it may be more subject to a kind of epistemological relativism.  To some degree, Kumho Tire extends the scope
or the spread of the applicability of
something like the rules formulated in Daubert,
although it probably does not deepen
the “Daubert Doctrine.”  Nevertheless, in some ways, it has made the
doctrine more important than it might have been otherwise.  The purpose of Kumho Tire is to extend certain crucial parts of Daubert to the testimony of expert
witnesses other than scientists.
The
facts in Kumho Tire pertain to
engineering problems and testimony from engineers.  According to Justice Bryer, who is writing
for the majority, the intent of the opinion in Kumho Tire is to extend the general holding in Daubert from “not only testimony based on ‘scientific’ knowledge,
but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”[46]  In other words, Kumho Tire conceptualized district judges during trials as
“gatekeepers” having “general ‘gatekeeping’ obligation[s].”  As gatekeepers, the Federal and state rules
based on them, e.g., the Texas Rules of Evidence assigned to trial judges the
task of making sure that the testimony of experts was both relevant to the
issues before the court and jury and rested upon reliable foundations.  Since these cases were decided, the word
“gatekeeper” has become widely used in a variety of legal circles.[47]
This presents an extremely
interesting jurisprudential question about Kumho
Tire.  In general, court holdings do
not extend at all—or, at least much—beyond the range of facts considered in the
case.  The court describes the rule it
has articulated, adopted, and imposed upon lower courts as much broader than
that.  The facts in Kumho Tire pertain to engineering closely based upon science.  Justice Breyer, however, in a portion of the
opinion adopted by all of the justices, says that the rule applies to all expert
testimony which is either based upon some  kind of “technical” knowledge or any other
kind of “specialized” knowledge.  The
latter would include—depending on the needs of a case―the knowledge of poetry,
knowledge of  relevant portions of
American intellectual  history (and/or that
of others), knowledge of what counts as sound legal reasoning, knowledge of
what constitutes the acceptable practice of law (including the reasonable and
reliable prediction of judicial reasoning), the knowledge as to what constitutes
acceptable insurance adjustment, knowledge as to what counts as an accepted
system of values, knowledge about how such a system is usually applied,
knowledge as to how such a system may logically applied, and so forth.[48]  The list is endless, from a practical point
of view.
This
is why the phrase other specialized
knowledge was previously emphasized in the previous paragraph, and various
of its topics will be discussed again presently.  As already indicated, at least some
adjustment practices count as “specialized knowledge,” and perhaps many of them
do.  Notice that virtually all adjustment
practices involve and nearly begin with knowledge of the controlling insurance
contract, and even more fundamentally, whether there is one.  There may also be specialized terms involved,
for example, in oil operations insurance policies, in policies covering
computers, in legal malpractice policies, or insurance policies covering loans,
default, and sometimes mortgages.  Of
course, as a human activity involving human interaction, insurance adjustment
involves systems of values. Systems of values pertain to human action imply
systems of norms. The ideas of good faith, fair dealing, and uberima fides all have moral
presuppositions, contents, and  to a
considerable extent, the basic ideas of common law insurance bad faith involves
the idea of deviating to a significant degree from established and accepted
adjustment norms.  What they are and how
they interact is a matter available to expert knowledge. Under the circumstances
just described one wonders whether it matches up better with experienced
adjusters or moral philosophers.
According to Kumho Tire, when expert testimony is other than knowledge based
upon genuine science, the gates of relevance and reliability should still be guarded—kept–carefully
and rationally, although the testing factors might be at least somewhat
different.  At the same time,
a trial court
may consider one or more of the same
specific factors that Daubert
mentioned and doing so will help determine that testimony’s reliability.  But, as the Court stated in Daubert, the test of reliability is
“flexible,” and Daubert’s list of
specific factors neither necessarily nor exclusively applies to all experts in
every case.  Rather, the law grants a
district court the same broad latitude when it determines how to determine reliability as it enjoys in respects to its
ultimate reliability determination.[49]

Thus
the gatekeeping function of the trial judge is discretionary.  It is reviewed in appellate courts for
whether there was an abuse of discretion.[50]  The most important thing to notice here is
that all expert opinions based on any kind of specialized knowledge ought to be
reviewed by the trial court at the gate which precedes the admission of new evidence.  It is not the case, however, that standard or
scientific inquiry applies in every type of case.  Under many circumstances, there are the
following questions:
1.
How should a specialized area be described and marked
off from other areas?
2.
What constitutes genuine knowledge in a given
specialized area?
3.
How are claims to knowledge rationally considered and
reviewed in a given specialized area?
Obviously, Q-1 is influenced, if not out-and-out determined, by the
following factors, whether in isolation or together:
1.-a.     How does a
relatively sophisticated and objective society describe and distinguish a
relatively specialized area?
1.-b.    How does a
proposed expert witness describe his or her own specialized area and what sorts
of reasons does s/he utilize in deploying and defending that description?
1.-c.     How do 1.-a.
and 1.-b. fit together consistently and/or conflict, when viewed from a
rational point of view?
These sorts of questions can come up in a variety of areas.  How are psychiatry and psychology to be
distinguished, viewed as somehow the same, or viewed as similar but somewhat
different?  How is the appraisal of
property damage to be performed and considered?
What is it to be an expert upon the cause-and-origin of property damage?
In the context just mentioned, what is origin?
How does it differ from cause? How
should business interruption be measured? What constitutes sound adjustment in
a complex situation?[51]  How do genuine experts objectively determine
recoverable value of pain? Suffering? And so forth.
As previously noted, the
actual decision and “concrete-ish” reasoning in Kumho Tire pertain mostly to engineering.  The case announces itself, however, as having
a much broader implication.  It says that
it is focusing not only upon “testimony based on ‘scientific’ knowledge, but
also the testimony based on ‘technical’ or ‘other’ specialized knowledge.”[52]  The focus here will be on the general
principles of the case.  The most
fundamental principle is that all expert
testimony must be both relevant and reliable, that judges have a basic and
rationality based “gatekeeping obligation” when any expert testimony is
offered, and that Rule 702 “applies to all expert testimony.”[53]  This is true because all expert testimony
involves conclusions tied to observations through the use of “‘general truths
derived from . . . specialized experience.’”[54]  The Breyer opinion continues as follows:
whether the
expert testimony focuses on specialized observations, the specialized
translation of those observations into theory, a specialized theory itself, or
the application of such a theory with a particular case, the expert’s testimony
often will rest “upon an experience confessedly foreign in kind to the [jury’s]
own.”[55]

(Obviously, this includes how fires start and spread, why elevators fall,
and how pieces of art can be phonied or faked, among other things.  Many aspects upon which commercial property insurance
decision-making as to claims is based will be foreign to the experience of jurors.  To a substantial degree, this even includes the
process of adjustment itself.)  In any
case, based upon the immediately preceding quote, and in consequence thereof,
Justice Breyer, on behalf of the entire court, including those who concurred
and those who dissented in part, concluded that “Daubert’s general principles apply to the expert matters described
in Rule 702.”  This evidentiary
rule,
In respect to
all such matters, “establishes a standard of evidentiary reliability.” It “requires
a valid . . . connection to the pertinent inquiry as a
precondition to admissibility.”  And
where such testimony’s factual basis, data, principles, methods, or their
application are called sufficiently into question . . . ,
the trial judge must determine whether the testimony has ‘a reliable basis in
the knowledge and experience of [the relevant] discipline.’[56]

According to the court,
“[e]ngineering testimony rests upon scientific foundations, [and] the reliability
of [those scientific foundations] will be at issue in some cases.”  Not all expert testimony outside the sciences
is engineering testimony, of course.  In
such cases, “the relevant reliability concerns may focus upon personal
knowledge or experience. . . .
[T]here are many different kinds of experts, and many different kinds of
expertise.”[57]  Thus, testimony from an art historian or
testimony regarding whether art is genuine or a forgery may very well not be
based upon science.  The same may be true
in a variety of areas of legal life.[58]  The same may be true with regard to a variety
of areas of life in the insurance industry.
Some areas may be mixed bags.  In
some areas of judging reasonable performance, matters will not just pertain to
physicalistic, impressionistic, and/or mathematical observations.   Indeed, the study of expertise is a growing
academic discipline, and the comprehensive bibliography of writings about it is
becoming enormous.  Books are not longer
entitled things like An Inquiry into the
Nature of Expertness; instead they bear titles like Rethinking Expertise.[59]
Sometimes,
it will be necessary for experts to testify about—and perhaps criticize–received
value systems.  This is especially true
in the area of professional and/or nearly-professional services, e.g.,
insurance adjustment.  It is important,
for example, that insurance adjusters be objective.  Obviously, objectivity is a complex concept
with a value component.[60]   Similarly, it is important that the process
of insurance adjustment and that reasoning of insurance adjusters be dedicated
to fairness. The concept of fairness
is itself a concept shot filled with ethical values, some of which are
received, some of which are not.[61]  Consider how all of these may come up in
depositions, and even trial testimony.
There is an extremely interesting and lively literature among professors
of philosophy on virtues and vices.
Academics in other areas are following suit.  One of the most significant recent studies is
the already mentioned Rethinking
Expertise.[62]  Another is the enormous anthology entitled The Cambridge Handbook of Expertise and Expert Performance (2006).[63]
Consider how received values might
affect depositions concerning the nature of sound adjustments. It is frequently
a good idea to induce opposing experts to agree to many of the principles that
adjusters, property analysts, cause-and-origin experts, and so forth have
utilized.  One of the most important in
the area of adjustment itself is the principle Look for coverage!  Another
important principle for analyzing adjustment is this one:  Adjusters
should always treat claimants fairly, justly, and rationally.  (Then again, that may be three
principles, and it might be wise to separate them. Notice how two of them
involve specific reference to values and therefore business ethics.)
Thus, the specific principles
for gatekeeping stated in Daubert are
not and could not be absolute and are not and could not be used in every
case.  The precise principles applicable
to at least some assertions about science or scientific assertions are not a
“‘definitive checklist or test,’” as Justice Breyer puts it.[64]  The court asserted that “‘the factors
identified in Daubert may or may not
be pertinent in assessing reliability, depending on the nature of the issue,
the expert’s particular expertise, and the subject of his testimony.’”[65]  Justice Breyer continues and states that the
court
can neither
rule out, nor rule in, for all cases and for all time, the applicability of the
factors mentioned in Daubert, nor [can
the court] now do so for subsets of cases categorized by category of expert or
by kind of evidence.  Too much depends
upon the particular situations of the particular case at issue.  [¶]  Daubert itself is not to the
contrary.  It makes clear that its list
of factors was meant to be helpful, not definitive.  Indeed, those factors do not all necessarily
apply even in every case in which the reliability of scientific testimony is
challenged.[66]

The
gatekeeper requirement in Daubert is
what is crucial.  When expert testimony
is provided, judges have a responsibility.
They must look at testimony carefully to determine whether it is both
relevant and reliable.  The function of
gatekeeping is to “make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the
relevant field.”[67]  In performing the gatekeeping function, “the
trial judge must have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony comes in or is
excluded.”[68]
The precise standard “concretely” utilized
and applied by the court in Kumho Tire
cannot, for example, be relevant in insurance cases involving tires—say, property
insurance cases―since those cases would involve whether tires blew out, how,
and the connection between tires being used and the trucks they were being used
upon.  However, the more fundamental,
underlying principles are relevant.  Here
are some of the points Justice Breyer impliedly makes, i.e, some of the
principles the court implied deploys and/or suggests for use.
First, the gatekeeping judge should consider
the reasonableness in general of an expert’s use of empirical observations, for
example, whether observations are based upon vision or touch.  Although it is not an issue in the Kumho Tire case, a gatekeeper should ask
which kinds of empirical observations are at all relevant, including
observations based upon sound, smell, and so forth.  It should also ask which types are most
likely to be most relevant and reliable.
Consider an example from property
insurance.  Obviously, in the analyses of
fires, there is hardly any sensory evidence which is not, at least to some
degree relevant.  Sight and smell are
always important.  Touch may be important
in determining how long the fire has been out.
Smell may be important in determining components of causation.  Even sound may be significant in several
ways. Consider tone of voice in face-to-face contacts. Consider recorded
messages. And so forth.
Second, the judge will be expected to
view whether an expert was reasonable and expert-like in analyzing empirical
data.  Obviously, the judge needs to
consider reliable analytical principles.
The relevance criteria imply that the more general data fit with the
facts of the case and that the experts actually examine, analyze, and reason
about the facts of the case before the court.
Testimony as to general data only is not admissible, since it is not provably
relevant.[69]

Third, a judge, while engaging in “admissibility
analysis” of proposed expert testimony, should ask whether the expert drew
reliable inferences.  This kind of
analysis is the application of textbook deductive and inductive logic we were
all supposed to study carefully (somehow or other), for example, in college
“Baby Logic” courses.  (All such courses
study the informal fallacies of logic, as well as formal problems in
reasoning—such as affirming consequences as opposed to affirming antecedents in
if-then statements.  Justice Breyer
doesn’t mention the analysis of fallacies, but it is obviously part of the type
of reasoning he is considering.[70])
Fourth, in performing a gatekeeper
function, a judge should ask whether the evidence‑gathering reasoning of the
expert is directly relevant to the conclusions with respect to which the expert
has been asked to testify.  Thus, if an
expert is testifying about whether a defect in a tire caused its tread to
separate, the testimony of the expert must be relevant to that very tire and
the separation which occurred in that first tire.
By analogy, if an expert is
testifying with respect to why a building collapsed or why it burned down, the
testimony must be relevant to the causes of failure or destruction of that very
building.  Perhaps what is really being
talked about here is not the exact time or the very building, but exactly the
same type of time or building, where the requirements build into exactness is quite strong and narrowing.
Fifth, under some circumstances, a
gatekeeping trial judge can (and perhaps should) permit testimony, if it is
based on a general theory prevailing among genuine experts, to the effect that in
the absence of evidence to the contrary, a particular event or course of events
will (or should) normally be regarded as having caused some other event which
constitutes or unarguably produces a loss.
In other words, if those with genuine expertise use a presumption, an
expert witness should be permitted by a judicial “gatekeeper” to do the same
thing.
Sixth, when a judge is acting as a
gatekeeper, s/he should not permit an expert witness to testify on the basis of
principles which no other expert of a similar kind accepts and for which there
is no independent authority.[71]
Seventh, a trial judge functioning as
a gatekeeper is perfectly justified in rejecting testimony where there is
“considerable doubt upon the reliability of both the explicit theory” utilized
by the expert and “the implicit proposition” or propositions utilized by the
expert.[72]  Of course, in depositions, and elsewhere, it
is a good idea to try to induce witnesses to assert the identities of all the
“explicit propositions” and at least many conceptually nearby the “implicit
propositions” upon which they are relying, or upon which they believe that the
opposing expert is relying, like the following, which at least some would say
are leading questions, or based thereon. One strategy is use leading questions.
Did you rely on p? What about q? Why not? Do you subscribe to p? Why? Why not? Anything “nearby” you
accept?
Eighth, a trial judge functioning as
a gatekeeper is justified in rejecting testimony from an expert where the
expert’s report and his testimony are inconsistent.  If an expert asserts one thing material in a
report but a contradictory proposition in testimony, and there is no
satisfactory explanation, the trial judge is justified in rejecting at least
that the testimony, and maybe the witness as a whole.
One of the most important things for
lawyers to do in litigating property insurance cases is to consider the extent
to which the claimants have presented claims which are consistently consistent
and, if not, how inconsistent they have been and how have then been
inconsistent.  This can be a jurisprudential
goldfield.  It is extremely difficult to
believe that an insurer could be guilty of bad faith if a claim or set of
related claims are inconsistently supported.
It is always rational to question and doubt inconsistent
assertions.  Trivial mistakes by
claimants, of course, should not be treated in the same way.  What counts as triviality can vary from case
to case; in this regard both temporal assessments, locational observations, and
subtlety all have a role to play.
Precisely what that role is varies from case to case.
Ninth, if an expert substantially denies
the logical and/or rational sufficiency of his own methodology, then a trial
judge is justified in rejecting the testimony and refusing to let the jury hear
the expert’s opinions and his arguments for them.  Property loss evaluation experts may have
problems here. Business interruption calculations in property loss cases are
ever more problematic. Accountant “experts” often say, “There are several
reasonable ways to calculate BI losses. I used method, and that is the one to
be used here.” In response to the “Why” question, they seldom have a coherent,
much less convincing, answer.
Tenth, and finally, if a gatekeeping
court looks for defenses of the expert’s methodology as applied in the case
before him, and finds none, but instead finds that none of the Daubert factors, including the   “‘general
acceptance’ in the relevant expert community” of the expert’s opinions or
methodology, it is appropriate for the court to disqualify the expert.  This point is especially true when the
gatekeeping court, through its own analysis, finds no “‘countervailing factors
operating in favor of admissibility which could outweigh those identified in Daubert,’” and where neither the party
advocating the use of the expert or the opposing party has “‘identified no such
factors in their briefs’ or pleadings.’”[73]  Thus, if no principle from Daubert is met, the gatekeeping court
can find nothing else favoring the reliability of the expert testimony, and the
parties have given no such arguments, then the gatekeeping judge is justified
in disqualifying the expert.  Obviously,
it is important for counsel in property insurance cases to set up ways to
either meet or avoid these principles.
VI. Some Reactions to Kumho Tire
There are general agreements among
scholars and critics that Daubert
“precipitated a revolution in the law of expert evidence.  The end point and exact contours of which are
not yet fully worked out.”[74]  This revolution, however, has raised a number
of issues with a lot of dimensions.
These have been said to include the following:
(1) the role of
the judge versus the role of the jury in jury trials; (2) the ideal of a
uniform standard for establishing the preconditions of evidence admissibility
versus the impact of such low standards on the broader promises represented by
the case standard of proof as a whole; (3) the tenability of the claim
that judicial evaluation of evidentiary sufficiency adequately resolves
questions of low standards of admissibility when applied to claimed expertise;
(4) judicial competency to evaluate claims of expertise versus judicial
deference to expert communities on the validity of such claims; (5) the
ideal of faith in juries to handle and evaluate mixed information more satisfactorily
than any other institutional arrangement for dispute resolution versus profound
suspicion that there are broad categories of information (claimed expertise
among them), that juries cannot be expected to evaluate well; (6) loose
standards for the scope of an expert’s claimed expertise versus tight standards
for scope of expertise; (7) concern that like cases be treated alike
versus normal notions of appellate deference to trial courts on rulings of
evidentiary admissibility; (8) concern that different cases be treated
differently versus a systemic interest of all judges in disposing of
foundational issues regarding expertise on broad grounds so as to be spared by
precedent from having to repeatedly consider the asserted reliability of
various sub- and sub-sub-expertises in a potentially very great number of
cases.[75]

Interestingly,
the authors just quoted have some doubt about the emphasis both Daubert and Kumho Tire place upon the “reliability” of the expertise to be
admitted:  “what’s so wrong with unreliable
expertise anyhow?”[76]  After all, fact witnesses can testify even if
they are unreliable and nothing else excludes them.  Their unreliability is subject to
explorations and cross-examination.
Thus, the authors appear to be saying that reliability is not part of
the definition of “expertise” and not part of the concept of being an expert.  Consequently, they appear to be implying that
it should be explored by the trier of fact and not necessarily by a gatekeeper.
What should we think about this? Part
of the purpose of Kumho Tire is to
protect clients from being poorly represented. Another part is to prevent
unnecessary legal expenses and litigation cases. Interestingly, Justice Breyer,
who wrote the Kumho Tire opinion, has
taken a substantial interest in the relationship between current science and
current law.  “The legal disputes before
us increasingly involve the principles and tools of science,” he remarked in
one place.[77]  Significantly, Justice Breyer has been
described as the leading thinker of the court regarding relationship between
science and law.
Another
scholar discussing the relationship amongst science, the law, and courts, has
been rather critical of the Supreme Court.
According to him, the court is dominated by an implicit distinction
between how scientific evidence influences constitutional decisions, by shaping
how the court thinks about constitutional facts, and how it thinks about the
relationship between expert evidence and fact in cases of civil litigation.[78]
One of the most interesting critiques
of recent evolution of scientific testimony and litigation is that of Cass R
Sunstein, one of the leading and the most extensively published legal scholars
working today. Sunstein, who recently went
from the the University of Chicago Law School to the Harvard Law School,
even more recently became a senior official at the Obama White House as is
mentioned from time to time as a possible Supreme Court nominee. In one recent
paper, he and a co-author suggest that everyone, including scientific experts,
are prone to certain kinds of biases, which make them unreliable witnesses, at
least to some extent.  Upon this basis,
they suggest that courts should be much more open to statistics based upon empirical
evidence, as opposed to expert opinions.[79]

VII. Some Practical
Observations

Expert
opinions play a significant role in insurance litigation in several ways.  These
include:
the existence of a
relevant insurance policy,
what policy applies,
from among the x number of
policies,
how a reasonable and
informed person would normally ting about the meaning of a given or given
type of policy
whether there is or is not
coverage under the policy, sometimes depending on the loss, sometimes
depending on the policy itself,[80]
propriety and customs in
the area of reservation of rights letters,
standard uses and/or
definitions of terms in the insurance industry,
standard uses and/or
definitions of terms in the domains of the insured,
outline of needed
investigations and inquiries,
the causes of at least
the start of the loss (or injury),
how adjustment
procedures proceeded,
·
the causal process in the spread or completion
of the loss or injury  (once started),
·
the identity and nature of that which is injured
or damaged,
·
the prices of the various injuries and/or damages,
including a total price,
·
business interruption where appropriate,
o
period of loss,
o
amount of loss,
o
causes of loss,
o
measurement of loss
·
the identity of who is likely liable,
·
the blameworthiness of the insured, if relevant,
·
performance of insured in the claims process,
and
·
insurer performance, including
o
speed and promptness,
o
methods of investigation,
o
internal adjustment policies,
o
objectivity in adjustment,
o
attention paid,
o
focus of adjusters,
o
qualities of capable adjusters, including
education and training,
o
quality and nature of adjustment communications,
o
customary and proper negotiations, which are not
always the same,
o
rational reactions to settlement demands,
offers, etc.,
o
insurer understanding of the policy, and
o
availability of insurance personnel.
Obviously, the
last topic black-bulleted topic is for adjusters, scholars of adjustment (to
the extent that there are such things), and those with a high knowledge of the
adjustment process. Some of the others are as well. The economists and/or
accountants will be brought in for an assessment of damages.[81]

When it is a complex business which has been injured, MBA-types can be
utilized.  Consider property
insurance.   To some extent, the preceding elements on the
list are for scientists, engineers, quasi-scientists, and “mere”-engineers that
specialize in certain kinds of losses, and so forth. Property losses include:  fire, wind, storms of various sorts, volcanic
actions, the earth shaking for some reason or another, and one thing smashing
into another.  It is often said that whenever
a witness is presented with respect to the cause-and-origin of a lot of
property damage, the attorney presenting the experts and the attorney deposing
the expert need to be familiar with and need to be able to formulate important
propositions about four separate matters:

The type of expert usually utilized in practical
terms to diagnose a physical problem (or an economic problem) inherent in
a non-human physical object or cause thereby;
The types of observations and principles utilized
extensively and recognized as authoritative by experts in the appropriate
field(s);
The educational, and technical history of the
proposed expert, plus the extent to which that expert utilized recognized
fact-finding procedures and recognized more general procedures (or their
opposites); and
·
In some areas of insurance expert testimony, the
experts tend to deploy and utilize apparently objective principles which are
common-sensical or at least sound or look like that, which are not terribly
mathematical, but which can be tested against common sense.[82]

Often, these
principles are not actually objectively established by scientific
experimentation, and they are often not consistent with scientific studies of
the causes and origins of (for example) fires.
This is a matter which needs to be studied very carefully.  Lawyers on both sides would be advised to
develop substantial notebooks of objective study material—including texts and
scientific studies—containing and defending the principles upon which the
expert witness relies.  This is very
seldom done.  It should be done in
virtually every case.  If a lawyer has a
case which hinges on how welding was handled, she needs to know a bit about
welding.  It may even be a good idea to
learn how to weld, if the case has enough money in it, or she has lots of them.
I myself loved learning how to weld, some years ago.
Here is something else which isn’t
usually done, at least not very well.
Lawyers should ask both expert witnesses in depositions some of the
following questions:
“Upon what scientific principles did you rely in
coming to your conclusions?
“Upon what technical principles did you rely in
coming to your conclusions?
“How would you describe your expertise?
“What are the principal current textbooks which
constitute an exposition of the fundamental principles upon which you
rely?”  (It is amazing how
frequently expert witness cannot answer this question.)
“What are the most important mathematical equations
which are central to your field?
(In one case several years ago, the “expert” got the right one, but
mis-formulated it and then said that he used it as formulated.  We had him write his equation down, and we
put it in as Exhibit 4, attached to his deposition. He got it wrong, as he
had to admit—much to his embarrassment—on the stand. The judge tossed him out.)
“What are the most important mathematical equations
which you deployed and utilized in this case? (Often the answer is, “None.”)
Of course in the
area of economics and accounting, the questions will be slightly
different.  They will look much more like
this:
“Upon what fundamental principles did you rely?”
“What are the principal textbooks or treatises discussing
the principles in question, or sources setting forth and defending the use
of that very principle?”
“Are there opposing books or articles which are
respectable and established?”
“Are there different principles which are inconsistent
with this one?”
“Where are they expounded and/or defended?”
“Does this principle you used have any limitations,
and if there are any, what are they and how do they work?”
“Who are the most significant scholars, professors,
and prestige practitioners who are the most significant when it comes to
formulating and defending the principles upon which you rely?” (This is
really a whole series of questions, and it can be asked as to historical
times as well as current times, depending on the discipline.)
Among accountants,
almost none of them who have been out of college very long will be able to
answer these questions.  If they are
still “in” college in the sense they are teaching in a college (or something of
the sort), they may be able to come up with better stuff.  If nothing else, the inability of a proposed
witness to be able to answer these questions is—at least to some
degree—inconsistent with the proposition that the proposed expert is in fact an
expert.
Naturally, with respect to all sorts
of experts—whether engineering, scientific, accounting, or insurance—one wants
to ask about their history as an expert.
This would include questions about publication and speaking.  In addition, it should include questions
about the reactions that other people have had to the ideas of the expert.  Inquiries should be made about reviews to
which the study at issue in a given case have been subjected, and if there is
any way to measure any probabilities of errors in that study or set of
opinions.
I am often asked whether I have ever
been disqualified. Often I am not asked whether my testimony has even been
limited in some way or another. I now often try to help examining counsel by
answering the first question, “Not completely so far.” This leads them to ask
the second question, if they are not idiots. I answer that one, “Now and then,
as to some matters of law. Of course, this raises real conceptual problems in
the area of insurer bad faith. Where questions which look like questions of law
are inextricably mixed with questions of fact.” Bright and able examining
counsel have the second sentence alone.
Let us now turn to peer review.  It is universal in mathematics, the hard
sciences, in the social sciences, often in some academic areas, such a
philosophy, history, and literary scholarship.
Almost no one in the area of commercial accounting publications, law, or
insurance (at least outside the university) actually subjects their speeches or
published writings to anything like peer review, as that term is standardly understood.  Generally speaking, peer review means that an
essay is sent to a journal.  The editor
of the journal sends it—usually with promised anonymity–to reviewers, and the
reviewers both write out critiques and make suggestions as to whether the
journal in question should accept the article.[83]  Of course, there are variations across
different fields, but the same principle applies.  Law reviews seldom do this.  When they do it, it is not very formal, and
most significantly, application decisions are made by students, not real
experts.
Insurance journals are roughly the
same.  This is true for both insurance
journals published in universities, and those published on the outside.  There may be some peer review for some of the
insurance journals, but not much. Some of the journals for lawyers have a kind
of peer review, to wit: they have attentive and knowledgeable editors who
review submissions carefully. Sometimes at least law school law reviews have
faculty members review articles submitted. So far as I know, this is not true
with respect to “Comments” and “Notes.”
Probably, for the lawyer opposing an
expert, the absence of at least some sort of peer review in connection with a
proposed expert’s publications is one of the easiest and most dramatic forms of
aggressive attack upon expertise.
Attorneys advocating that proposed witnesses are experts should be
attentive to this matter and prepare witnesses to construct new explanations for
what was heretofore and now constitutes peer review or its equivalent.  Testifying experts would be well advised to
complete their reports early and pass them around various technically-oriented
people in their practice field.  This is
seldom done.
The idea of “professional expert
witnessess” raises some serious questions. I have testified a number of times
in insurance cases.  The usual question eventually
put to me after several boneheaded tries has always been “Have you ever been
employed full-time by an insurance company as an adjuster?”  The reason why this question is asked is
because I am often testifying about bad faith.
There are several answers to this question.  They all begin with a single answer:  “No and Yes.
It depends upon what you mean by employ
and what you mean by adjuster.”  Lawyers invariably ask me at that point to
explain what I mean by “Yes and No,” and that question leads me to a carefully
formulated and truthfully, speech which has heretofore always led to—or, at
least, preceded–the conclusion that I am an expert on adjustment.  I am not, however, exactly a “vocational
adjuster,” even though I have all the recognized diplomas, certificates and state
licenses. I have spent much more time studying adjusting claims, the way
insurance companies function, the way in which insurance intermediaries function,
and so forth.  Strange as it may seem, much
this arises indirectly from my history as a university scholar; a little of it
arises thusly directly; and some comes from CPCU-type courses.  (I have ended up licenses in both adjustment
and agents-and-brokers.)
Counsel using an expert such as I
might focus on the applicable rule, viz., Rule 702.  It does not require any sort of
employment.  What it requires is
knowledge which will help.  The rules go
on to say that this knowledge can be acquired in a variety of ways:
knowledge itself,
skill,
experience,
training, or
education.
This list is
somewhat puzzling.  Its first component
sets up relevant knowledge coming from more general and abstract knowledge. The
second element authorizes knowledge which comes from skill alone; this would probably be “how-to” knowledge. Obviously,
these are different concepts, but they obviously exist and they are both
important.
The third element on the list is experience.  Fairly obviously, one does not have to have
experienced actually doing something, if observing it being done can be a
source of knowledge.  Further, one can do something—say, as part of
a team—without actually being employed to do what he has done s part of the
team.  Thus, lawyers work as part of
adjustment teams, so they have the requisite experience, though they were never
actually employed as adjusters. Also performing some types of legal services
for businesses or profession my provide relevant knowledge.  I will return to the matter of experience
presently.
Probably the witness does not have
to have the skill at the moment of
testifying if there is a history of having the skill. Then again, I have an
adjuster’s license and that of an intermediary. What does this (at least) imply
about the possession of skills? Imagine whether person who lost his hands could
testify as to surgical technique.  In my
view, any insurance lawyer who has observed the adjustment process hundreds of
time and discussed it with adjusters might well have sufficient experience.  Many of the same and similar arguments apply
to the practices of insurance brokers and those of insurance underwriters.
The next component of the list is training.  If someone has been trained to do something,
and he has this training in mind, the trainee may be in good enough shape to
testify as an expert.  Imagine a lawyer
who was earlier trained as a hair dresser and who functioned as such to work
her way through college.  (This was
actually true of an associate of mine several years ago, who had previously
been a student of mine in law school.)
Surely, this lawyer might qualify as an expert on an appropriate
hair-cutting-coloring-and-related-beautician-type topics, e.g., what chemicals
are unreliably dangerous to use beautifying hair.
Finally, consider education.  If an expert is trained on insurance matters,
shouldn’t he be permitted to testify about the behavior of an insurance company
in the context of claim processing, particularly if that training is mostly in
the kind of courses which adjuster take? Or her courses focus of what adjusters
properly do?  Imagine a graduate degree
in insurance biz ethics.  Some lawyers
miss the fact that some people have “received” self-education.  Of am
insurance  lawyer has read hundreds of
depositions regarding adjustment practices and/or hundred of cases regarding
this subject, there is a good chance the attorney has received satisfactory self-education.
Let
us return to the idea of and the importance surrounding the idea, often used by
lawyers in litigation, that a person cannot be
an expert witness on something unless he has had exactly the experience
about which he is called to testify.  Sometimes, the phrase  “exactly the experience” is intended to imply
such propositions as: these. (1).  If you
have not adjusted claims (or handled cases) involving buildings which are 50
stories call, the fact that you have done buildings which are 45 stories tall
and buildings which are 75 floors toll does not render you  competent to adjust claims involving
buildings of this precise size.  (2) The
fact that you are a hand surgeon but have done only right hands on people this
size entails that you cannot do surgery on a left handed person of this
size.  (3) The fact that you are a
leading authority of civil advocacy and procedure does not qualify to express
opinions on the performances of a lawyer trying a family case before a
jury.  You have to have been a family law
specialist.  It does not matter that the
complaints about this lawyer have to do with how the trial was conducted; you
should be disqualified.  Of these three arguments are wrong.  Here is another. (4) If a man wants to
testify as the business practices in the business practices of prostitution,
the psychological impact of being a prostitute,  or as to the administration of brothels, he
cannot be qualified to testify because he has never actually be a whore.  This is dead wrong if the proposed witness
has studied these matters in the right sort of way.
There are many who present
themselves “professional experts” in the area of insurance. They are members,
employees of, or contractors for the firms which sell claims services (whether
to insurers or claimants), report preparation, and testimonial services.  Often these people are more advocates than dispensers
of truth.  This latter characteristic—being
a dispenser of the truth―makes somebody a really principled expert witness,
while the former characteristic does not. Actually appearing to be an advocate
for anything but truth undermines effectiveness. However, genuine expertise on
the fundamental principles of insurance and of adjustment practice may be
sufficient to qualify a person to testify about adjustment in connection with
types of insurance with respect to which the nominated experience have limited
experience. There is considerable truth to the idea that insurance adjustment
is roughly the same across the board.  Of
course, that is not necessarily true with respect to vocabulary and
mathematical calculations.
Here is an example. In recent years,
taken from the area of property insurance claims, some of the following
mistakes have been particularly obvious and painful to observe:
The witness didn’t understand how the business
interruption loss policy worked.
The witness didn’t read how the business interruption
loss policy worked.
The witness utilized erroneous economics and
accounting techniques to figure out what business interruption losses
would have been during a given period.
In business interruption testimony, significant
expenses are ignored.
The witness did not know how business interruption
type coverage worked in builders risk policies.
“Professional advocate adjusters,” who are more
advocates than tellers-of-truth, often miscalculate costs.  For example, often, when a building is
partially destroyed, the so-called expert will figure out how much it will
cost to build a new building, as opposed to how much it would cost to
build the old building, and add code upgrades.  The new buildings are seldom even
remotely similar to the old ones.
Expensive components of the to-be-rebuilt building
(or, the new building) do not resemble the old one.
Sometimes, when a new building after a loss has to
accommodate the handicapped, the wrong numbers are used.
Recently, there was a case in which a hotel which
burned had rotten railings.
Completely different ones were substituted in a new plan.  They were not required by the code, and
they were much more expensive than the old ones.
Often, the “professional expert” who was advocating
new costs for a building uses the National Building Code, as a opposed to
the local code.  Often they are not
the same.
Frequently, when a commercial building has been
damaged, advocating experts substantially increase the price of personal
property to be purchased for the new building.
The advocacy-adjuster may not really understand how
“soft costs” work in builders risk
policies, and—of course—they may work differently in different such
policies.
More that a few times advocacy expert insurance
witnesses do not really understand the problems  surrounding repair versus replacement.,
or how these things can be dealt with.
The advocacy witness may not realize that the  “value” requirements for many property
policies may not apply to builders risk policies.
Sometimes so called expert witnesses have not
determined how the litigation-host state
Thinks about the
relationship between the concepts of ensuing
loss and the concept of
faulty workmanship. Or she may not know that there are many uses of the word “collapse”: total collapse, partial collapse, and imminent
collapse.  Perhaps there are even more.
And this list
could go on and on.  Analogous lists for
liability adjustment are not hard to imagine, not to mention all other types of
first party insurance.
There
appears to be a virtually irresistible temptation when someone has sustained a
substantial loss to make the claim as high as possible.  Based on a number of meetings I have attended
with those representing policyholders, I believe it is safe to say that there
is a firm belief amongst insured and those working for them in the adjustment
and the legal process that high numbers must be used by claimants in order to
prevent the insurer from reducing the claim too much. Not long ago I saw an
insured and its lawyer argue in litigation that it was okay to lie to the
insurer as a way to deal with the insurer’s tendency to reduce claims offers. Of
course, claim devaluing by insurers just to save money for the company is
unlawful and actionable. The same general point applies to liability insurance
adjustment.
There is a sensible, rational, and
deeply moral alternative for insureds to follow in making claims.  Estimate them properly; formulate them
correctly; work them out in understandable detail; and decline to reduce the
claim.  It is amazing how often such
claims are not even not threatened, but paid at a nearly reasonable pace.  On the other hand, it is often true that
insurers delay payment for reasons which are difficult to figure out.
VIII. The Windt Argument
There is another key feature of
expert witnessing in a good many insurance cases.  Here is an officially, widely-accepted
rule.  To the extent experts are trying
to testify about the meaning of the language in an  insurance policy, that is not a factual
matter; it is a matter of law to be determined by the judge and not the  jury, as if it were the trier of fact.  Under this rule, judges are regarded as able
to make such decisions alone; they are regarded as able to read insurance
policies; the language of the policies matter, not external evidence (unless
there is an otherwise internally irresolvable ambiguity or a special term only
understood by specialists in some complex industry, e.g. petroleum.  Besides, judges are supposed to know the
applicable law.  Such expert testimony is
therefore technically inadmissible; although often in judge tried cases, it is
admitted anyway.   Trial judges sometimes reject, ignore, or
disavow this rule. Of course, as already suggested earlier in this paper, this
rule could only apply (at least in theory) if the policy in control needed to
be interpreted, or if the bad versus good faith case is about something else,
to wit: how adjustment proceeded.
“True enough!” says Windt, about
expert testimony, partly about policy meaning, “but something important is
being left out.”  An expert about
insurance bad faith case involving policy meaning in the context of testifying
about whether an adjustment practice was reasonable.  This  can
be testifying about whether the insurer’s interpretation of its policy was
reasonable.  This requires discussing the
“distance” between the insurer’s actual interpretation of its policy what the
policy actually or really  means.  Of course, this question does not even arise
if the insurer’s interpretation of the insurance contract is correct—especially
if there is no coverage.  This
proposition is true, even if the insurer arrived at its interpretation by
flipping a coin, asking a frog, or discussing it with a partridge sitting in a
pear tree.  Those methodologies are
unsound, of course, but the insurer got the answer right, by hypothesis, so how
it got there does not matter, even though a judge absolutely cannot—ever!―use any
of those methods. But what about insurer bad faith arising out of an erroneous
and unreasonable interpretation of the policy?
This issue, Windt says, is essentially a matter of fact, and not at all
a matter of law
A. Windt’s Brilliant Thesis and Some
Problems
Windt argues that the question of
whether an erroneous interpretation by an insurer of an insurance policy is
reasonable is a question or issue of fact and not at all an issue of law.  After all, it goes to the jury; and it has
always gone to the jury, so it cannot be a matter of law. But the
unreasonableness so far as interpretation is concerned hinges upon the conceptual
or meaning-distance between the defendant insurer’s mistaken interpretation and
the correct one. Thus, in testifying about the reasonableness of an insurer’s
interpretation, the expert is not testifying as to how the judge should
interpret the policy, or even as to the very best way to interpret the
policy, but rather to whether the insurer’s earlier interpretation was
reasonable.  In other words, “the experts
would be addressing solely whether the insurer could reasonably have believed
that the law supported its position.”
This is a fact issue, says Windt.[84]
One of the sources of the expert’s
testimony, says Windt, probably will include what courts have previously said
about
the term(s) in question,
similar terms,
related terms,
similar clauses using different terms—assuming the
clauses have the same goal or function,
similar policies,
similar insurance problems,
the meaning of the terms of policies, and
so forth.
Court decisions will
not be the only source, of course, there may also be reference to
textbooks,
training manuals,
ISO statements, where relevant,
entries in relevant encyclopedias, and
dictionaries, of course.
Keep in mind!
The final goal here is not to get an interpretation right.  That goal is to show that the interpretation
of the language of the insurance used by the insurer was reasonable, or the
opposite. This essentially involves the measurement of conceptual distance.  Any other goal is irrelevant.  Thus, the type of expert witness being used
here is not to be used for the purpose of convincing the judge what
interpretation of the relevant language of the policy  should adopt.
In line with this reasoning, Windt
points out that nothing outside the data of that
which makes an interpretation of an
insurance policy reasonable should—or need–be admitted into evidence or
used by the expert witness. Windt states,
“If there is nothing in the policy language that creates a legal duty to
do what the plaintiff’s expert witnesses say the insurer was obligated to do,
what then is the source of the legal duty?
Industry practice?  Of course not.
The source of duties is the law and the insurance  contract.”[85]  Industry adjustment practice does not by
itself establish the existence of an insurer’s duty.  However, legal duties—including recognized
and accepted duties–regarding adjustment derive, at least in part, from
insurance law and insurance contract.
As brilliant as these observations
are—or, at least, seem to be to me–there are problems with this view.  Four of them will be discussed here.
First, Windt’s view of the expert
testimony in bad faith cases requires that the judge have announced his
decision as to the meaning of controversial terms in the conflict before the
expert testifies.  That is one of  the only ways the type of expert under
discussion could not be testifying, at least in part, as to the meaning of the
language of the insurance contract, and hence  a matter of law. The other way, of course, if
for the witness to avoid saying what the contract means but just testify
conditionally about meaning:  “If the
policy means this, then here is what is true about the quality of the insurer’s
adjustment.  If the policy means that,
then here is what is true about the insurer’s adjustment process. Let us look
at the two opposing expert witnesses.
Let’s start with the witness for the insurer. I will call him Irving or
her Isabelle, take you pick.
Remember, this witness—like the opposing
witness—will be testifying as to the quality of the insurer’s adjustment of a
claim, or group of claims, if the insurer was wrong when it denied coverage. The
expert Irving is going to testify, in effect, that the insurer’s interpretation
of its policy is wrong, given the properly understood existing law, but still
reasonable.  In other words, it’s not outrageously,
absurdly, or even dumbbell wrong; it’s not very wrong; indeed, it’s not
substantially wrong.  It’s wrong but only
reasonably wrong; the error is the
kind of error a reasonable, experienced, and informed person—that is, an able
and rational, fair, and objective insurance adjuster―could made while reading
and reflecting upon this policy, while functioning as an insurance
adjuster.   Hence, this phrase probably means, among other
things, not very wrong.  The part
of this testimony that pertains to how wrong the insurer was—given the
specified meaning of the policy–may actually be some sort of matter of fact,
difficult as that it to understand.  This expert testimony cannot be given,
without any inclusion of testimony as to the law, unless the judge has explicitly
ruled.  But often—indeed, usually—this
does not happen. This ruling would take partial summary judgment, or something
of the sort, or the coverage case would have to be tried before the bad faith
case is tried.
Now let’s look at what the testimony
of the policyholder’s expert witness on bad faith will look like.  It may not be exactly the opposite, but it
will be close.  Remember not all bad
faith grows out of policy interpretation; some of it grows out of situations
contrary to what can be counted as reasonable adjustment practice—say, because
the insurer took way too long to adjust the claim―or out of other situations
where the interpretations of the policy is not an issue.  In discussing Windt, I am interested
only  in situations where the policy is
said to have been misinterpreted.  This expert
witness, call him Ivan or her Ivana (take your pick), will say that the insurer
was unreasonable in its
interpretation of the policy, so that they adjustment was consequently
something unacceptable.  The witness
might even say that the mistake was substantially wrong (at least), very wrong,
outrageous, dependent upon absurdity, and perhaps even dumbbell wrong.  The testimony will have to depend upon
language, at least to some degree, but it may well turn to factual matters,
such as how informed and reasonable adjuster and adjustment managers understand
claims like this.[86]  Almost certainly the adjuster and his
department will be classified as failing to look for coverage, being without
objectivity, and of being biases.  (After
all that adjuster is paid by the insurer or by an independent agent that is
paid by the insurer.)
Of course, the witness for the
policyholder will enthusiastically assert that the insurers interpretation was
wrong. (For example, s/he will enthusiastically say that the ensuing loss exception
to the faulty workmanship exclusion does not require an intervening independent
cause of some sort.   S/he will say that all one has to do is look
at the language to see this.  Of course
this will not go over well in all states.
Just the ones that have gotten the law right.)
Second, another problem grows out of
the first. In order to obtain the kind of reliability and the kind of lack of
speculation required for expert testimony, the witness would have to have, know,
and accept the standard for measuring differences in meaning between two
interpretations of the same word.  The
witness would have to be  able to explain
why the insurer’s interpretation is wrong but reasonable. I know few people who
know with—self-consciousness―about insurance adjusting and who also know they
that have knowledge as to this kind of semantic or linguistic measuring rod.  Those who intuitively grasp this kind of
sociology of language often do not understand what they know. They cannot
present it as if it were scientific knowledge—which it probably isn’t anyway.   They probably would not be inclined to assert
that their measuring device is objective—even though it may well be.
Fairly clearly, this testimony
cannot be given without reliance upon the meaning of the language in the
contract of insurance.  Usually this
language is not in the same speciality classes that of mathematics,
engineering, physics, musicology, computer science, or petroleum drilling and
the like, where it is common to have people with years of experience bout
precisely whatever is being named and discussed to testify as to meaning.  Even trying to depend on how other objective
insurers understand the standardized policy will be an indirect reliance upon
the language of the contract, since there have to be an endorsement of that
view as the correct view of the language itself.
Third, the correct answers to a
question about whether an interpretation of a term or phrase is reasonable
may well depend upon how that term is actually used in the appropriate sector
of life, to wit: the insurance adjustment sector.  Meaning and use are closely related, if not
identical.[87] Suppose
an insured plaintiff wants to say that the words “investigate” and  “investigation” to be found in a property, and
even a liability, policy has a certain meaning.
Proving that the word is used in a certain way in the adjustment sector
of the insurance industry would be a good start, at least.  Moreover, empirical support for the witness’s
claims about how the term is used would include reference to the kinds of
adjustment activities that are usually performed, as a general custom or
practice, and called or classified by the term under discussion.   If so, then adjustment practice does have
some relationship to what is usually done, although it is not a necessary or
automatic connection. Still, it is undeniably a matter of fact.  Nevertheless, conceptual distance is
involved; consequently, so is the correct interpretation of the policy.
Fourth, if an expert is going to
testify that a term, phrase, or sentence in a policy may reasonably be understood
in the way the insurer did, even though that interpretation was and is wrong,
how could the witness testify that it was not unreasonably wrong?  Are there no known measuring rods which are
objective? Expert testimony must be grounded, reliable, actually expert, and
non-speculative.  Hence, the expert would
have (1) to testify based on his own well-grounded expert knowledge of the
language, or he would have (2) to be testifying about how others in the
insurance industry use that language when speaking objectively and not in the
context of advocacy, or (3) he would have to be making reference to actual
practice in the industry, or (4) he would have to base his testimony on
explicit passages in actual dictionaries.
This
last alternative, and perhaps some others, contain a problem. If the meaning of
the word in a standardized insurance policy—or a word which is often used in a
variety of policies—has its correct meaning and its reasonable
misinterpretations based on contents of the empirical world, then there will be
adjustment activities under that policy which are always obligatory.  But the
closer we get to Kumho Tire,
the more problematic the problems generated by the factuality of the testimony
become. The fact at issue cannot be genuinely established without scientifically
or at least empirically investigating what is actually being done in adjustment
and not done. Unfortunately, if the language of even standard policies as
regards adjustment practices  depends—or
mostly depends—upon common English using quite general terms, then there are
likely not going to be perfectly uniform practices. Still, with form polici0es,
thee are likely to be relatively uniform practices, even with respect to
interpretation. If so why would systematic deviations of this or that
interpretation ever be reasonable?
B. Windt’s Mistake & Some Solution
Windt argues that expert witness
testimony in bad faith cases arising out of unreasonable interpretation is
entirely a question of fact.  This claim
cannot be true.  The testimony of the
expert witness which is under discussion is a comparison and a contrast between
the correct interpretation of the actual meaning language of the policy and the
interpretation generated and used by the insurer.  One thing is sure, the type of testimony
under discussion is not testimony s to a matter of fact simply because bad
faith cases have “always” gone to the jury.
First, the word “always” here is way to strong.  There haven’t been insurance bad faith cases
for long enough.  Second, it may well be,
that the judges simply haven’t figured how to handle the paradox yet, but they
have to get the cases over with on a relatively short. Third, they may be in
the process of creating an exception of the “Very little—almost no―witness
testimony as to matters of law” rule, because times have changed and it needs
to be done.  So, let’s see what other
alternatives there are.
Conceptual distance between meaning
as deployed by an insurer and true-plus-actual legal meaning involve at least
two questions, at least; one of them is legal (the one regarding the actual
legal meaning of the policy), and one of them is factual the one regarding (the
distance between insurer’s interpretation from the legal meaning).  It could be described as “hybrid
testimony.”  If this is the actual
structure  of the problem, then the judge
should answer the first one, and the expert should answer the second one.  This approach would require the judge to rule
on meaning first.  The trouble is that it
is not really a hybrid.  The two points
are really logically distinct.  They are
not bread together like golden retriever and a poodle to form a golden doodle,
or—to give a better known case–a horse and a donkey to get a mule.
Or maybe not!  Here is a second variation.  The judge could let the expert say whatever
s/he wishes regarding actual legal meaning, and then explicitly correct it or
adopt the expert’s view later.  This
second approach is a bad idea.  It would
ruin reasonable expert testimony if it contained a mistake regarding actual
legal meaning, even if that mistake were relatively trivial. The trouble is
that the first approach is not standard practice today, and it may be quite
difficult to get trial judges to adopt it.
This is true even if cross motions for summary judgment are used.
Here is a third variation which
might work in some cases  The expert
begins by indicating that s/he is not going to state what the true legal
meaning of the policy is.  S/he states
that s/he will begin with a simply principle of rational adjustment, and then
will state the principle.  Here it
is.  If
a reasonable number of courts have fairly recently stated and authoritatively  utilized a meaning for the relevant section of
the insurance contract, then it is not—or is only rarely–bad faith for an
insurer to deploy that meaning, so long as that view has not been rejected by
the court of final authority in the jurisdiction whose law applies and so long
as this deployment is consistent with the insurer’s practices, its manual, its
guideline, or its internal, substantive teachings ( if any, some, or all  of the last four exist).  The witness would then testify as to what the
various cases say and to how many there are and to how much disagreement there
has been.  This last component of the
testimony is not testimony as to law but as to history.  The testimony does not concern what cases are
right or which ones should be adopted as the law.  It concerns only what the insurer had to take
into account.  Either that, or the court
would be creating a narrow—but useful and needed—exception to the long
established rule.
Are any of these solutions certain
to work?  Obviously, the opposite is
true.  Could counsel set forth all three
of them?  The answer again is “Yes,” but
still that does not guarantee anything.
Of course, in the absence of an agreement with opposing counsel, there
will be opposition on every front.    The
virtue of an approach like this is that it avoids the idea that the expert is
testifying as to actual meaning.
Nevertheless, it should be kept in mind that this strategy will be
expensive.  Here is another route.C. Solution
Here
is another way to go.  The expert
testifies that s/he can specify X number
of possible legal meanings, although there may be others.  The expert says that s/he is not going to try
and testify which one is the correct statement of the legal meaning of the
policy.  Instead the expert will specify
what the insurer used as the meaning of the policy.  S/he will then testify that the explication
the insurer used is not conceptually distinct from any one of those,
and—indeed, if true—that is twin-ishly identical to, sibling of, or cousin of
this one, that one, and/or the other one, of the X number of interpretations.
If the expert is appearing for the
plaintiff, it would testify to exactly the opposite at one or more steps.  Now, it’s particular beautiful of the
insurer’s witness includes the actual legal meaning—a matter which will be
decided by the judge at the end of the trial—on the X list.  And, of course, the
opposite is true, if the expert is testifying for the plaintiff and against the
insurer.
IX. Conclusion
So that is the summary of some of this?   First and most significant:  the Daubert-Kumho
Tire standards do not work for expert testimony in cases, or parts of
cases, where insurance adjustment is the central issue.  The same is true, of course, for most forms
of malpractice except where science is central to the profession. Second and
most recent: the brilliant theory proposed by Windt will not work as a coherent
theory, although it may sometimes work in practice.  The pattern of cases he cites in his article
and book certainly needs explaining.  Third,
the applicable rules of evidence are often ignored, in part.  Most of the rules state and/or make clear
that learnedness is a sound source of expertise and that employment histories
re not a necessary condition for an expert’s being qualified.  Fourth, there are many sources of objectivity
and epistemological trustworthiness other than science.  Fifth, the first summary point can be more
generally put: science does not work very well as criteria for expertise in
nuanced and complex human practical activities, as opposed—say—to the impacts
of physical objects.
Here is another possibility.  Insurance policies are so little understood,
that it makes sense to create an exception to the “No expert testimony as to
matters of law”—Rule.  Basing this call
for change on the observation that insurance policies are not widely understood
won’t get us very far.  The idea contains
too many problems.  Maybe we should
ignore the problems and accept Windt’s view as the right rule, even if it is
not correct in the end.  We haven’t
figured out as way to revise the established and mostly accepted rule yet.  So whatever problems the “Windt Revision” may
have, it is an effective rhetorical position, so we should go with it.
[1]
David L. Faigman, Laboratory of Justice:  The Supreme Court’s 200-Year Struggle to
Integrate Science and the Law (2004).
See John Henry Schlegel, American
Legal Realism & Empirical Social Science (1995) for a more
theoretical discussion and for discussion of social “scientific” experiments performed
by law professors and legal theorists.  Under
today’s rules, these fellows probably would not qualify as social scientific
experts.)

[2] See
David L. Faigman, Legal Alchemy: The Use
and Misuse of Science and the Law (1999).

[3] Tom
Baker, The Medical Malpractice Myth (University
of Chicago 2005); Thomas Rogers Forbes, Surgeons
At the Bailey:  English Forensic Medicine
to 1878 (1985); James C. Mohr, Doctors
& The Law:  Medical Jurisprudence in
the Nineteenth-Century America (1993), Regina Morantz-Sanchez, Conduct Unbecoming a Woman:  Medicine on Trial in Turn of the Century
Brooklyn (1999);  Joel Peter
Eigen, Witnessing  Insanity:
Madness and Mad-Doctors in the English Court (1995);  the last one runs back into the Eighteenth
Century, long before psychiatry was a recognized medical specialty.)   For a contemporary and more practical
discussion of doctors as expert witnesses, see Hon. Hiller B. Zober &
Stephen M. Rous, M.D., Doctors and the
Law:  Defendants and Expert Witnesses,  131-195 (1993).  (At the time of writing, Zober was a district
judge in Massachusetts, while Rous was a
professor of urological surgery at Dartmouth.

[4]
Marcia Angell, M.D., Science and the
Law:  The Clash of Medical Evidence and
the Law in the Breast Implant Case (1996).
For an earlier controversy see, Peter L. Schuck, Agent Orange and the Trial:  Mass Toxic Disasters in the Courts
(1986).

[5]  See, for example, Sheila Jasanoff, The Science and the Bar:  Law, Science, and Technology in America (1995), Stephen Goldberg, Culture Clash Law and Science in America
(1994) and Kenneth R. Foster, David E. Bernstein, and Peter W. Huber, Phantom Risk: Scientific Inference and the Law
(1993).

[6] For
an account of interesting trends in this area of the economy, see Martin
Campbell-Kelly and Dniel D. Garcia-Schwartz, From Products to Services: The Software Industry in the Internet Era, 81
Business History Rev. 735 Winter
2007).  See also the second volume
of  James W. Cortada, The Digital Hand: How Computers Changed the
Work of American financial Telecommuniations, Media, and Entertainment
Industries (Oxford 2006).

[7] Lee
Taylor, Occupational Sociology (1968).

[8]Edward
Dolnick, The Rescue Artist (2005) (about
Charley Hill ane his searches for stolen art, including some discussing of
insurance), see Thomas Hoven, False
Impressions:  The Hunt for Big Time Art
Fakes (1996). See also Simon Houpt, Museum of the Missing (Sterling Publishing, 2006),  Michael P. Thompson and David N. Stone,
Insider Theft Biggest Risk for Art
Insurers, 11 National Underwriter 15
(April 9, 2007), and Steve Tuckey, Stolen Art Is Sold Online: Expert, 11 National Underwriter:
Property & Casualty 26 (May 7, 2007).

[9]See
also Malcolm Gladwell, Blink:  The Power of Thinking Without Thinking
3-8, 255 (2004).  What is extremely
interesting about the book Blink is that the author emphasizes
the role of intuition and coming to the right conclusion.  That is obviously quite different than the
way in which a conclusion is justified.
Thus, discovery, the formation of hypothesis, and to some extent expert
reasoning in the original part of discovery, are different from reasoning when
one is trying to justify one’s already formulated ideas as justified
conclusions.  This is a fact widely known
among observers of the sciences, including philosophers of science, but it is
not widely recognized explicitly by courts—at least not yet.  It is also not clear what role it should play
in jurisprudence, although it is obviously involved in how lawyers and judged
think.  As of  the spring of
2009, Blink had been on the
Nonfiction section of the New York Times paperback bestseller list
for 75+ weeks.  Before that, of course,
the book was on other components of its best seller lists.  Galdwell is an extraordinarily popular
business author.  His book The Tipping Point, which is  study of fads and their impact on business
(and other) thinking, has been on the list for 230+ weeks, as of the same rough
date.  And his newest book, Outliers, has been on and at or near the
top of the general, hardback Nonfiction
bestseller list for nearly 20 week as of
May  2009.  Pretty much he same things are true with
respect these books and  the Business Bestseller List in the Wall Street Journal   One wonders whether someone can be an expert
on business administration without having familiarity with the writings of this
author.   The production of  creative ideas by Malcolm Glandwell does not
seem to stop.  His latest is How Davie Beats Goliath, The  New
Yorker 40 (May 11, 2009) (containing discussions on how underdogs can
defeat favored opponents).

[10] Why the Towers Fell: The Collapse: An Engineer’s Perspective, Nova On Line, www.pbs.org/wgbh/nove/wt/collapse.html
(March 8, 2005).

[11]
Matthys Levy and Mario Salvadori, Why
Buildings Fall Down:  How Structures Fail
25-30 (New edition 1987).  The just cited
book is a companion to another, related
book by one of the same authors.
Mario Salvandori, Why Buildings
Stand Up:  The Strength of Architecture  (1980).
For cases involving architectural collapse, whether total or partial,
these two books are extremely helpful for the lawyer not already learned in
technical matters.  See Mitchell Pacelle,
Empire: A Tale of Obsession, Betrayal, and the Battle
for an American Icon 44-45 (2001) for a short summary of the first of
the two events.

[12] See
Stephen D. Easton, Attacking Adverse
Experts (2009).  Consider Cynthia
H. Cwik & Clifton T. Hutchinson, Admissibility and Use of Expert Evidence in the
Courtroom, Monograph  Number 8 (ABA Section of Science and
Technology, 2009).   This “Eighth Monograph” is 652 pages
long.  See also Graig S. Neckers &
Todd W. Millar, The Opponent’s Expert:
Preparing for the Most Important Deposition in the Case, FDCC Quarterly 145 (Winter 2009).  There is a website on the topic: Expert
Communications.  Attorney David Tirella
wrote a short paper for the website entitled Expert Witness Qualifications (
December 2, 2008).  He said there
were four of them, at least one of which was necessary to qualify:
Practitioner, Published, Professor, and Presenter.  See also Robert Ambrogi, When Your Own Experts Disagree, www.ims-expertservices.com/newsletters
May 2009).  And there is material in
the law reviews.   See David Bernstein, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the
Daubert Revolution, 93 Iowa L. Rev. 451 (2008) (advocating a new
“connoisseur theory’ of admissible expert testimony, e.g., 480-81).  See also Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Houston L. Rev.
742  (1999) (an immensely
popular and widely cited essay written by an experienced Houston trial judge)(Here are the 8:  helpfulness, qualifications, relevancy,
methodological reliability, connective reliability, foundational reliability,
reliance upon inadmissible evidence used by others, and Rule 403.)  Expert witnessing now even pays a role in
some movies.   See David S Caudill, Idealized Images of Science in Law: The
Expert Witness in Trial Movies, 82 St. John’s L. Rev.
921 (Summer 2008).

[13]
The principles of this focus in the literature are significant volume published
by the Clarendon Press of Oxford Publishing.
C.A.J. Coady, Testimony: A Philosophical Study
(1992).  It is amazing how much academic
philosophers have written on this topic since 1994, or so.  As a separate focal point, this was a new
application of epistemology, and very old philosophical topic.

[14] See
generally Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[15] Kumho Tire Company, Ltd. v. Carmichael,
526 U.S. 137 (1999).   Some evidence scholars wondered whether Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) will have an impact on Daubert
and Kumho Tire, when it is decided will have an impact on these two cases and if, so, what it would be. The answer is “No,” at least as applied in situations like this one. In fact, it’s simple “No. No.”  (Edward, J. Imwinkelried, Questioning Forensic Evidence, 31  The National Law Jounral  11 (May 4, 2009).  Professor Imwinkelried taught evidence at
Cal-Davis when his 2009 article was published. His worry was not really a rational one, I think.)

[16] For a
history of various kinds of theories, see Douglas Walton,  Appeal
to Expert Opinion:  Arguments from
Authority (1997).

[17]
See Dietrich Dörner, Logic of
Failure:  Recognizing and Avoiding Error
in Complex Situations (1996).  The
original German edition entitled Die Logik des Misslingens  (1989).  (The German edition was translated to English
by Rita and Robert Rinber.)  (“When we
fail to solve a problem, we fail because we tend to make a small mistake here,
a small mistake there, and these mistakes add up.  Here we have forgotten to make our goal
specific enough.  There we have over
generalized.  Here we have planned to
elaborately, thereto sketchily.”  Id. at 7.  Obviously, under at least some circumstances,
this is the kind of thing experts are talking about.  “In complex situations it is almost always
essential to avoid focusing on just one element and pursuing only one course
and instead to produce several courses at once.
In a system complicated by interrelationships, however, partial goals
often stand in contradictory relation to one another.”  Id.
at 64.  Think of the kinds of mistakes
experts can make in these kinds of contexts.
“Contradictory goals are the rule, not the exception, in complex
situations.”  Id. at 65.

[18] See
Bernstain, n. 12, supra.

[19] See Volume
29.19 (December 2007). Cited hereafter as “Windt.” There is no substantial substantive distinction between Windt then and Windt now on this point.
See §VIII  later
herein.

[20] See
Leonard E. Murphy, Andrew B. Downs and Jay M. Levin, Property Insurance Litigator’s Handbook (2007).   Part of this book is devoted to the use of
expert witnesses in property insurance cases—see its Chapter VII.
Herein after cited as “Murphy.”

[21] Given Rule 704, it is difficult to see
how otherwise valid expert testimony can “invade” the province of the jury. But see Crow v. United Benefit Life Ins.
Co., 2001 WL 285231 (N.D. Tex 2001)(Fish, J.)  There has been authority for this proposition
for a long time. See Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361 (Tex. 1987), which
held—among other things—that it is permissible for an expert to express in
testimony the opinion that the defendant’s conduct was negligent, grossly
negligent, or reckless. Id. at
365.
[22] Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). See Jon A. Hommerbeck, Frye
Jurisdictions:  New Limitations on Expert
Testimony?  For the Defense 10 (Nov. 2004).

[23] Id. at 1014.  “Just when a scientific principle or discovery
crosses the line between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way in admitting
expert testimony deducted from a well-recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which
it belongs.”  Id.

[24]
For an interesting elaboration upon the logical structure of expert testimony
see Edward J. Imwinkelried, the “Bases”
of Expert Testimony:  The Syllogistic
Structure of Scientific Testimony,
67 North Carolina
L. Rev.  1 (1988).
(The so-called “Major Premise” of any expert argument would be the
principle to which the experts subscribed, such as a scientific law, an
engineering principle, or something of the sort.  The “Minor Premise” would be a description of
facts upon which the expert is relying.
The idea of major premises and minor premises comes from ancient logic
running back to Aristotle and even before.)

[25] Daubert, 509 U.S. at 589.  Justice Blackmun, who delivered the opinion
of the Court, described Daubert as a
case in which the court was “called upon to determine the standard for
admitting expert scientific testimony
in a federal trial.”  Id. at 582.

[26] Michael
Sean Quinn, Argument and Authority in
Common Law Advocacy and Adjudication, and Irreducible Plurality of Principles,
74 Chi.-Kemp L. Rev. 655 (1999).

[27]
Daubert, 509 U.S.
at  583.

[28] For a
discussion of this evidence see Michael D. Green, Bendectin and Birth Defects (1996).

[29] Daubert v. Merrell Dow Pharmaceuticals,
Inc., 951 F.2d 1128, 1131 (9th Cir. 1991), rev’d 509 U.S. 579 (1993).
[30] See Roland Omnès, Quantum Philosophy:  Understanding and Interpreting Contemporary
Science (1999).

[31] Daubert, 509 U.S. at 590.

[32] Id. at 591-92.
[33] Id. at 593.

[34] For a
short and understandable exposition of
“Popperianism,” see Bryan
MacGee, Philosophy and the Real World: An
Introduction to Karl Popper (Open
Court 1985).

[35] See, for example, E. I. duPont deNemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). See,
Merrell Dow Pharmaceuticals v. Havner,  953 S.W.2d 706 (Tex. 1997).
A witness having credentials and an opinion does not make his testimony
admissible. Id. at 712.  Admissibility
requires data, objectivity, argument, and reliability.  See also Coastal Transportation
Co., Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004)(Conclusions
and speculations are not evidence since, by themselves, they do not make
propositions of material fact more or less probable. Id. at 231.  One wonders if this is true.) Finally see Gammill v. Jack Williams Chevrolet, 972
S.W.2d 713 (Tex.
1998); it holds that all admissible expert testimony must be both relevant and
reliable, and the testimony must have with it bases offered to show its
reliability. Id. at 726.

[36] Put 6,
7, & 8 together as a group.  Each is
a distinct unit of an important group.

[37] Keep in
mind: these titled conjoined together are not a sufficient condition for being
true, or even scientific.  They are
helpful evidence, however, and even more helpful rhetoric.
[38] Id. at 595-96.

[39]
Justice Rehnquist, with whom Justice Stevens joined, concurred in part and
dissented in part.  He thought that the
rule in Frye did not survive the
adoption of the Federal Rules of Evidence.
On the other hand, Justice Rehnquist was concerned that the opinion of
the majority required trial judges to become “amateur scientists” in order to
perform their gatekeeper function.

[40] Daubert v. Merrell Dow Pharmaceuticals, Inc.,
43 F.3d 1311 (9th Cir. 1995).

[41] Id. at 1315. It this not a version of
Justice Rehnquist’s concern in his partial dissent?

[42] Id.

[43] Id. at 1316.

[44] Id. at 1314 (internal citations
omitted).

[45] Kumho Tire Company, Ltd. v. Carmichael,
526 U.S. 137 (1999).

[46] Id. at 141. (Emphasis added.)

[47] John C.
Coffee, Jr., Gatekeepers:  The Professions and Corporate Governance (2006).  Coffee is the Adolf A. Berle Professor of Law
at Columbia University Law
School and Director of
its Center on Corporate Governance.
[48] See Quinn, supra n. 26.  So what is the
restriction in Justice Breyer’s Rule?
Maybe it’s this:  the broad rule
of Kumho Tire is linked to knowledge,
i.e. propositions.  It is not linked to
expertise derived from skill, e.g., how to balance on a rope 300’ in the
air.  Obviously, that too is an expertise.   Then again, the distinction is not always
firm.
See Maxine D. Goodman, Slipping Through the Gate: Trusting Dauber
and Trial Procedures to Reveal the “Pseudo-Historian” Expert Witness and to
Enable the Reliable Historian Expert Witness—Troubling Lessons from Holocaust-Related
Trials,  60 Baylor L. Rev. 824  (Fall
2008)

[49] Id. at 141-42.  (The italics are in the opinion.)

[50] General Electric Co. v. Joiner, 522 U.S.
136 (1997).  The Joiner case along with Daubert
and Kumho Tire are sometimes
described as the “Daubert Trilogy.”
Lewis H. LaRoue and David S. Caudill, 35 Seton
Hall L. Rev. 1 (2004). The Joiner
case was about whether polychlorinated biphenyls (PCBs) caused small cell lung
cancer in Robert Joiner.  The district
court had applied Daubert
straightforwardly and had eliminated one of the plaintiffs experts on
causation.  Upon appeal, the Eleventh
Circuit held that it did not use the usual abuse of discretion standard in
reviewing the courts decision.  Because
of the technicality of Daubert it
reasoned that a different and stricter standard applied.  The Supreme Court reversed, holding that
“abuse of discretion is the proper standard by which to review a district
court’s decision to admit or exclude scientific evidence.”  The court also reviewed the court’s discussion
of the scientific sources the plaintiff’s expert utilized and observed that its
reasoning was correct.  The expert had
relied on four cancer studies from around the world, but none of them had
explicitly related an increase in cancer to PCB presence.  Chief Justice Rhenquist wrote for a unanimous
court.  He observed that the Daubert decision had held that “the
‘austere’ Frye standard of ‘general
acceptance’ had not been carried over into the Federal Rules of Evidence.”  However, “while the Federal Rules of Evidence
allow district courts to admit a somewhat broader range of scientific testimony
than would have been acceptable under Frye,
they leave in place the ‘gatekeeper’ role of the trial judge in screening such
evidence.  A court of appeals applying
‘abuse of discretion’ reviewed to such rulings may not categorically
distinguish between rulings allowing expert testimony and rulings which
disallow it.”  522 U.S. 139-40.

[51]
Consider the complexities in the work of Dörner, some of which have already
been quoted.
See supra n. 14.
Consider what kinds of problems this raises for experts:  “Anyone who has a lot of information, thinks
a lot, and by thinking increases his understanding of a situation will have not
less but more trouble coming to a clear decision.  To the ignorant, the world looks simple.  You can pretty much dispense with gathering
information, it is easy for us to form a clear picture of reality and come to
clear decisions based on that picture.  [¶]  Sometimes
there is probably even positive feedback between the amount of information we
have in our uncertainty.  If we know
nothing at all about something, we can form a simple picture of it and function
on that basis.  Once we gather a little
information, however, we run into trouble.
We realize how much we still don’t know, and we feel a strong desire to
learn more.  And so we gather more
information only to become more acutely aware of how little we
know. . . .”  (The four
periods at the end of the quoted sentence are in the original.)  “The more we know, the more clearly we
realize what we don’t know.  This
probably explains why we find so few scientists and scholars among politicians.
It
probably also explains why organizations can be institutionalized the
separation of their information-gathering and decision-making branches.”  Id.
at 99.  “The new information [always]
muddies [every] picture.”  Id. at 100.

[52] Id. at 141.

[53] Id. at 147.

[54]
Justice Breyer, who is writing for the majority, which is joined by all of the
judges, is quoting Learned Hand, Historical
and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901).  It is difficult not to associate Learned Hand
with Legal Realism.  Neil Duxbury, Patterns of American Jurisprudence 228
(Oxford University Press 1995). Thus, is there some chance that Justice Breyer
is trying to resurrect Realism in the output of a  Formalistic Supreme Court?

[55]Id. at 149.  Justice Breyer is again quoting the law
review article written by Judge Hand.  To
some degree, the writings of Hand, like the writings of Holmes, are nearly as
significant sources of authority as their opinions.  See Gerald Gunther, Learned Hand:  The Man and the Judge  (1994).
What does this tell us, if anything, about the resurgence of “Legal
Realism.”?  See Wouter de Been, Legal Realism Regained: Saving Realism from
Critical Acclaim (2008)

[56] Id.  Justice Breyer is here quoting not from
Leonard Hand but from the Daubert
opinion itself.

[57] Id. at 150.

[58] Thomas
L. Haskell, The  Authority of Experts: Studies in History and
Theory (1984).

[59] The
bibliography in the book mentioned and cited three footnotes below is 6 pages
long, in small print, without comments.

[60]
Nicholas Rescher, Objectivity:  The Obligations of Impersonal Reason
(1997). Nicholas  Rescher is Emeritus
Professor of Philosophy at the University
of Pittsburgh.

[61]
Nicholas Rescher, Fairness:  Theory & Practice of Distributive Justice
(2002).  The personality characteristic of being fair is obviously a virtue in
connection with adjustment processes.

[62] Harry
Collins and Robert Evans, Rethinking
Expertise (University of Chicago Press, 2007).   The first author is a Distinguished Research
Professor of Sociology and director of the Centre for the Study of Knowledge,
Expertise, and Science at Cardiff
University.  The second author is a Senior Lecturer on the
same subject and the same university.

[63]
This book was edited by K. Anders Ericsson, Neil Charness, Paul J. Feltovich,
and Robert R. Hoffman.  It contains 42
essays, and its table of contents is Ex. 3, attached hereto.  It is not about expert witnessing per so, but
it provides fascinating readings on various standards of expertise.

[64] Kumho Tire at 150.  Here, the court is again citing Daubert itself.

[65] Here,
Justice Breyer is quoting from an amicus
brief submitted by the United States Solicitor General.

[66] Id. at 150-51.  Somewhat later, Justice Breyer makes the same
point with slightly different language.
In some cases, “some of Daubert’s questions
can help evaluate the reliability even of experience-based testimony.”  In addition, “[w]e do not believe that
Rule 702 creates a schematism that segregates expertise by type when
mapping certain kinds of questions to certain kinds of experts.  Life and legal cases that it generates are
too complex to warrant so definitive a match.”
Id. at 151.

[67] Id. at 152.

[68] Id.

[69] Exxon Pipeline Co. v. Zwahr, 88 S.E.3d
623 (Tex. 2002).

[70]
D.Q. McInery, Being Logical:  A Guide
to Good Thinking (2004).
See Douglas W. Walton, Informal
Logic:  A Handbook for Critical
Argumentation (2004).  For a great
book on the subject, see Michael Scrivner, Reasoning
(1976).

[71]
In Kumho Tire, the expert wanted to
base an opinion on the proposition that in the absence of at least two out of
four signs of abuse of a tire, one could not draw the conclusion that there had
been an abuse of a tire.  Further, “his
analysis depended upon acceptance of a further implicit proposition, mainly
that his visual and tactile impressions should determine that the tire before
him had not been abused despite some evidence of the presence of the very signs
for which he looked (and two punctures).”
Id. at 154.

[72] Id.

[73] Id. at 156 (citing Daubert itself).

[74]
Mock P. Denbeaux and D. Michael Risinger, Kumho
Tire and Expert Reliability:  How the
Question You Ask Gives the Answer You Get, 34 Seton Hall Rev. L. Rev. 15, 16 (2003).  (“[I]t is becoming increasingly clear that
this revolution is changing the practical realities and results of trial in
many cases or classes or cases in which various sorts of expertise play a
central role.  Id.  The authors go on to say that the revolution
is “most obvious in regard to toxic tort and product liability claims, but
potentially the effects of the revolution will almost certainly be felt in a
much broader range of cases[.]”  Id.

[75] Id. at note 4.

[76] Id. at 24.
[77] Justice Stephen Breyer, introduction, in Reference
Manual on Scientific Evidence 2 (Federal Judicial Center 2000).

[78]
Faigman, Laboratory of Justice, supra n. 2, at 357-58, 363.  (“Constitutional
facts are integrally related to constitutional values.  Ignorance of facts leads inevitably to
disregard of constitutional values.
[¶]  Still, there is reason to be
hopeful.  Science and technology today
are so pervasive that the Court cannot continue its slap-ways.  The constitution’s framers were products of
the Enlightenment.  They expressly sought
to bring the science of their time into the document that would govern the
times to come.  Subsequent generations of
lawyers and judges have failed to carry forth this mandate.  This state of affairs may change with the
next generation of lawyers.  It’s not
that lawyers and judges will suddenly volunteer to join a new
enlightenment.  They will be forced to do
so.  The scientific revolution is
everywhere.  It cannot be ignored with
impunity.  If the Constitution is to
‘endure forever,’ its guardians will have to read it in the light of the
science of today and be prepared to incorporate the discoveries of
tomorrow.”  Id. at 364.  Faigman also
describes the courts fact-finding processes, especially in connection with
constitutional law, as “surprisingly lackadaisical[.]”  Id.
at 358.  What is interesting about
Faigman’s book is the extent to which he traces influence of the social
sciences and psychology, whether conceived as sciences or not, through Supreme
Court reasoning over two centuries.

[79] William
Meadow and Cass R. Sunstein, Statistics,
Not Experts, 51 Duke L. Rev. 629
(2001).  The ideas in this paper are
based substantially upon the more general theoretical approach of “behavioral
law and economics.”  See Cass R.
Sunstein, Ed., Behavioral Law &
Economics (2000).

[80]
Remember! It is reality being outlined here, not legal theory.

[81]
Analogues of many of these sub-considerations apply to insureds as well as
insurers.

[82]
Michael Sean Quinn, Closing Arguments in
Insurance Fraud Cases, 744, 794-96 (1988) (discussing expertise in the area
of arson testimony).

[83]
Question. Are judges likely to treat this as a type of—or analogous to—a legal
privilege.

[84] Windt,
note 15, at 745.

[85] Id at
747. I know of no difference between the edition of his book cited herein and its more current editions

[86] Why
this is not a discussion, in disguise,
of language in the policy is not clear.

[87]
Ludwig Wittgenstein, Philosophical
Investigations (1953).  It is
universally acknowledged that Wittgenstein was one of the leading of western
philosophers in the Twentieth Century and one of the all time premiere leaders
of the philosophy of language and hence semantics.  The Investigations
was published posthumously, but it was decades in the making and earlier
version were used in classes for many years, mostly in England.