ExpertServices periodically sends me e-mails that highlight recent key court cases that can significantly affect
the effectiveness of expert testimony, both for the plaintiff and for the defendant. This article by Bob Ambrogi
reports on a 7th U.S. Circuit Court of Appeals judge spanking legal entities for not exercising due
diligence when vetting matters of science and simply accepting the testimony of 'experts' because of a
willful ignorance of science. "This
lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort
among lawyers and judges confronted by a scientific or other technological issue," Circuit Judge Richard
A. Posner wrote." We are used to hearing people - professionals included - dismiss their lack of science
and mathematics prowess with a chuckle and a wave of the hand, as though that excuses it. I have known
many people over the years who are not in technical jobs or even high skill jobs who have an impressive
understanding of various aspects of science, medicine, psychology, etc. When I am confronted by someone
with a topic on which I have little knowledge, rather than beg pardon of my ignorance I invite the
person to teach me what he/she knows. Sometimes, though, doing so leads to a realization that the person
Reprinted with permission.
7th Circuit Excoriates Lawyers, Judges for 'Fear of Science'
Robert Ambrogi on 2013/11/19
seemingly exasperated panel of the 7th U.S. Circuit Court of Appeals has issued an opinion that is remarkable for
its lengthy dictum devoted to excoriating lawyers and judges for their "fear and loathing" of science and technology.
Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the
intersection of law, media and technology. A news media veteran, he is the only person
ever to hold the top editorial positions at the two leading national U.S. legal
newspapers, the National Law Journal and Lawyers Weekly USA. He is also internationally
known for his writing and blogging about the Internet and technology.
Disturbed that the plaintiff's lawyer, the defense lawyer, the magistrate judge and the district judge all
accepted as medical fact something that could not have been true, the panel devoted the bulk of its opinion to chastising
not only the lawyers and judges in the case before them, but the legal profession generally.
is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers
and judges confronted by a scientific or other technological issue," Circuit Judge Richard A. Posner wrote in the
opinion, in which Circuit Judge Frank H. Easterbrook joined. Circuit Judge William J. Bauer filed a separate opinion
concurring in the result but not the critique.
The opinion was particularly critical of the magistrate judge
and district judge in the case, suggesting that they should have made "some investment in learning about the condition."
They could have used their authority under Federal Rule of Evidence 706 to appoint a neutral expert witness, required
the plaintiff to present expert evidence, or just consulted a reputable medical treatise, Posner said.
stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper," Judge Posner wrote,
noting that procedural wrangling and protracted discovery had caused this "plainly meritless suit" to drag on for
more than four years.
Civil Rights Claim
The underlying lawsuit involved a claim by an inmate of an
Illinois prison that his civil rights had been violated when he did not receive hypertension medication for a period
of about three weeks. He sued a nurse practitioner and a correctional counselor, alleging that they had been deliberately
indifferent to his serious medical condition and therefore had subjected him to cruel and unusual punishment.
The district judge granted summary judgment in favor of the defendants and dismissed the suit. The judge found
that neither defendant was deliberately indifferent to the plaintiff's condition.
Within the first paragraph
of its opinion, the 7th Circuit panel affirmed the district judge's ruling, saying that it was "so clearly correct
as to not require elaboration by us." While the opinion could have stopped there, Judge Posner instead chose to
continue, writing eight pages of dictum criticizing the lawyers and judges for their scientific lapse.
lapse involves the plaintiff's claim that his three weeks without hypertension medication caused him to suffer loss
of vision, nose bleeds, headaches and lightheadedness, and exposed him to the possibility of a stroke or even death.
Fear and Loathing
Noting that the plaintiff was an otherwise healthy 22-year-old man and that the single
reading of his blood pressure during the three-week period showed it to be only slightly elevated above normal range,
Judge Posner said that the lack of medication could not have produced the complained-of symptoms. "The proposition
… has no support in the record or the medical literature," he said.
Despite this, the magistrate judge found
that, if the case went to trial, the plaintiff could have established that his period without medication was "objectively
serious." Likewise, the district judge concluded that the plaintiff "suffered from an objectively serious medical
The lower-court judges could have decided the case without ruling on any medical questions, relying
entirely on the lack of evidence of deliberate indifference by either defendant, Judge Posner wrote. "But if they
were going to venture an opinion on the ‘objective seriousness' of the plaintiff's ‘medical condition,' they had
to get the condition right—which was not hypertension but the medical consequences, in fact negligible, of a three-week
deprivation of medicine for mild, early-stage hypertension."
"The discomfort of the legal profession, including
the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that
they picked law over a technical field because they have a ‘math block,'" Judge Posner wrote. "But it's increasingly
concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly
"The legal profession," Judge Posner concluded, "must get over its fear and loathing of science."
In his concurring opinion, Circuit Judge Bauer confessed that he is one of those lawyers who chose law over
medicine because of a lack of interest in the clinical aspects of medicine. However, he would have concluded the
opinion after the first paragraph, without discussing lawyers' fear of science.
"I think that the opinion
made the necessary legal point when it said that the record shows that summary judgment was clearly the right decision,"
Judge Bauer wrote. "That's where I would stop."
The opinion is
v. Pollion, No. 12-2682 (7th Cir., Oct. 28, 2013).
was originally published in
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Posted December 11, 2013