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Some time ago we posted critically about an ALI Restatement proposal (since tentatively adopted over our, or at least, Bexis,’ vocal objections) that would abolish the requirement that expert witnesses hold their opinions to a reasonable degree of professional certainty. Not long after that we became aware that the folks over at Blog 702 thought we were full of it.

Maybe we are. After all, we’re used to being told we’re full of it by our opponents, which occasionally include the folks at Berger & Montague – a top-tier plaintiffs’ class action firm in Philly – whose Peter Norberg hosts Blog 702. However, such rebukes usually come with a bit more explanation than the “we’re right and you’re not” quality of the initial Blog 702 comment.

Anyway, we made a request that they kindly tell us why we’re full of it a little more fulsomely. Lo and behold, a post doing just that (scroll down) appeared June 22. We would have liked to respond sooner, but then the West Virginia Supreme Court dissed the learned intermediary rule, and we spent more time last week than was probably healthy dealing with that.

Anyway, better late than never we say.

Before turning to the Blog 702 post, let’s review the bidding.

Our original post stated that we didn’t (and still don’t) like the ALI’s proposal because it “dumbed down” expert testimony, removing any link to the “professional” standards of such witnesses’ professions and replacing it with little more than a coin flip – that being the same “more likely than not” standard that juries apply in civil cases.

The ALI gave three justifications for proposing a change: (1) “Reasonable degree of professional certainty” isn’t how the relevant professions express professional opinions. (2) It’s “inconsistent” to impose a “higher threshold” on experts than the standard by which juries decide the cases in which such witnesses testify. (3) Requiring a “reasonable degree of professional certainty” doesn’t assure the “quality” of any aspect of expert testimony.

As to the first of the ALI’s excuses, we didn’t disagree – but we pointed out that “more likely than not” is not how professionals express their opinions either. Then we undertook to prove that (in the medical field, anyway) with a slew of citations to medical literature demonstrating that doctors make diagnostic decisions through thought processes that are about as far removed from flipping a coin as it’s philosophically possible to get.

As to the second of these excuses, we pointed out that the ALI is merely exchanging one kind of inconsistency for another – that experts offer opinions in cases decided under other burdens of proof, such as “beyond a reasonable doubt” and “clear and convincing evidence,” in addition to the minimal civil standard of “more likely than not.” We doubted that, in anywhere other than in a courtroom, would witnesses purporting to offer “professional” opinions change their spots as dramatically as these differing proof burdens require.

Finally, we argued that, even accepting the proposition that the “reasonable degree of professional certainty” standard for expert testimony didn’t assure the “quality” of the testimony – something that we don’t believe is true, especially in non-Daubert jurisdictions – lowering the standard for reaching an opinion would undeniably reduce the “quality” of such testimony, thereby leading to a result diametrically opposed to the thrust of the original criticism.

Anyway, with that prologue, let’s examine what Blog 702 has to say in defense of letting experts testify to opinions that are only “more likely than not” true.

The first part of the Blog 702 response is more of a history lesson than anything else. It takes issue with our statement that the “reasonable degree of professional certainty” standard has been around “for generations.” Based on a law review article, Blog 702 says the standard dates from the “1960s.” To us that seems like an irrelevant quibble. A “generation” can be a lot of things, we suppose, but we think of it as about 20 years – after all, isn’t the Baby Boom Generation generally considered to be those kids (like us) born between 1946 and 1966? So even assuming a 1960s provenance amounts to two generations.

In any event, “reasonable degree of professional certainty” long predates either of us practicing law, or even graduating from high school – and that’s old (at least by our standards).

We do this in our spare time, so we don’t have the wherewithal to refute a whole law review article. But we do have computers and fixed fee contracts with the online services. So we threw “reasonable degree” within five words of “certainty” into Westlaw and looked at pre-1960s results.

Whoa! 1292 cases – all from before the earliest time that Blog 702 says “reasonable degree of professional certainty” had gained wide acceptance. I guess we’re going to have to limit it to “medical certainty” even though that will probably cause us to miss some relevant cases (it appears that the standard first became widespread to deal with damages experts, rather than medicine).

That did cut it down all right, to forty cases.

So what states do we have? In addition to the Illinois cases that Blog 702 mentions, we’ve found Missouri, Ohio, Wisconsin, New York, Oklahoma, North Carolina, Indiana, and Texas (we don’t think providing cites for all these old cases is worth the bother, so you’ll just have to run your own search if you don’t believe us). All before 1960. To be fair, all fifteen of the pre-1948 cases were in Illinois. Not only that, a lot of these cases simply quote opinion questions that lawyers had asked their experts. That suggests to us that the standard was probably considerably more widespread than our quickie research limited to published appellate opinions indicates – since the lawyers of the time had evidently already incorporated the “professional certainty” standard into their witness examination habits. They had to learn it from somewhere.

All and all, we’d have to say that Blog 702’s first shot out of the box is at best of questionable import. If you dig down into their origins, most rules of law probably originated, if not by chance, then in response to this or that local peculiarity (for example, the earliest product liability case involving a drug we think is a New York case from 1852, and the first application of the learned intermediary rule case is another New York case from 1948). It’s the reason for their spread that’s important.

To use a Darwinian perspective, a peculiar standard arising from local conditions is not going to become a nationally (or nearly so) adopted rule unless it meets (or can be converted to) some generally felt need. That’s survival of the fittest in practice. Otherwise, it would remain just a local rule of limited import. The judicial requirement that an expert member of a profession should express opinions in accordance with professional standards of certainty plainly met such a need – and we think still does.

The next argument Blog 702 makes is that the “reasonable degree of professional certainty” standard is less necessary nowadays due to the widespread adoption of Daubert-related tests for expert testimony. Daubert, however, is a rule of procedure, while the requirement of professional certainty is a matter of substantive state law. That’s why ALI saw fit to address the latter in a Restatement in the first place. That also means that Daubert and the professional certainty standard are directed at two different things. Here’s a pretty good discussion of the difference:

[W]e must decide whether experts were required to testify with a reasonable degree of medical certainty. We conclude that they were. Although if it were purely a rule of admissibility Pennsylvania’s standard would not apply in federal court, Pennsylvania’s rule also constitutes part of the plaintiff’s burden of proof. As a rule of admissibility, Pennsylvania’s standard is in conflict with Rules 702 and 703 which require a reliable methodology and reliable data but nowhere require a reasonable degree of medical certainty.If Pennsylvania’s rule were only a standard of admissibility in conflict with Federal Rules of Evidence Pennsylvania’s rule would be rationally capable of classification as procedural and the Federal Rules of Evidence would govern. However, we think that Pennsylvania’s rule is more than a requirement of admissibility, but rather it is an element of plaintiff’’ burden of proof. In Cohen [v. Albert Einstein Medical Center], the Pennsylvania Superior Court stated that:“When a party must prove causation through expert testimony the expert must testify with reasonable certainty that in his professional opinion, the result in question did come from the cause alleged … [I]f the plaintiff’s … expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment.”592 A.2d [720,] 723 [(Pa. Super. 1991)]. Thus, the Cohen court strongly implied that, even if admissible, testimony with less than a reasonable degree of medical certainty was insufficient to prove causation.As part of the burden of proof, then, Pennsylvania’s rule is a substantive one, not in conflict with Federal Rules of Evidence, and thus governs in federal court.

In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 751-52 (3d Cir. 1994) (Becker, J.).

So we think it’s wrong to say that now, with Daubert, it’s not necessary to have any other constraints on expert testimony. Now, “Daubert” means a lot of things to a lot of people, so it’s possible that in some states, there might be an expansive variant of Daubert that overlaps or incorporates “reasonable degree of professional certainty.” But most of them don’t, and not every state has even adopted Daubert (Bexis says Pennsylvania has not).

To us, Daubert, deals primarily with methodology and scientific validity, while the “reasonable degree of professional certainty” requirement gets at something that’s more fundamental to the role that experts play in modern litigation. The reason we have experts at all is because they know something that lay witnesses (and lay jurors) do not. For the most part, they have specialized training – and all doctors certainly do. They’re allowed to give opinions from the stand, and not limited to testifying to personally known facts. In short, they’re permitted to testify because they’re members of a learned profession. If that’s what they are, then we think that, in fairness, they should be required to bring to bear the same standards of professional conduct in the courtroom that they are required by their own professional standards to exercise in their other professional activities. That’s what linking expert testimony to a “professional” standard does.

Moreover, we come at the whole Daubert argument from the opposite direction. To us, the trend that the “Daubert” name now personifies (poor guy, Mr. Daubert, since his name is now indelibly attached to a concept that threw him out of court) is a judicial attitude that the system could no longer tolerate an “anything goes” approach to expert testimony. The “reasonable degree of professional certainty” standard is another, independent means of enforcing the same attitude. In short, Daubert reinforces the same salutary judicial philosophy as the professional certainty rule – we don’t want, and won’t permit speculative expert testimony.

Because of our view that a “professional” standard for expert opinion is inextricably linked to the “professional” status of the expert him or herself, we can’t subscribe to the fundamental assumption of Blog 702’s next argument – that the standard is a rule “to limit civil liability for certain specific kinds of claim.” To us, anyone with the pretense of being an “expert” is in some sort of “profession,” whether legislatively sanctioned or not. Thus, a doctor opines to reasonable medical certainty, an economist to reasonable economic certainty, and an accident reconstructionist to reasonable scientific/physical certainty. If a professional standard cannot be articulated, then the witness is likely not an expert at all.

So we don’t view the professional opinion standard as unique to any particular type of claim. There should be no “favored classes” of cases with regard to whether experts should testify in accordance with professional standards. Other substantive rules of law might require expert testimony to prove a certain type of case – medical malpractice being a prime example – but it is those rules, not the professional opinion standard, that reflect liability-limiting jurisprudential policies.

That is not to deny that the effect of the “reasonable degree of professional certainty” standard often operates to preclude liability – or that we, as defense lawyers, applaud that effect. The Blog 702 argument draws a distinction between the “admissibility” of expert testimony and its “sufficiency” to sustain a verdict. It’s a legitimate distinction, but we don’t think it can be discussed adequately without considering the burden of proof. In most situations plaintiffs bear the burden of proving their claims. That’s as it should be, because it’s the plaintiffs that are trying to change the status quo, usually by asking the judicial system to transfer some of the defendant’s money to them.

To a party bearing the burden of proof, the distinction between “admissibility” and “sufficiency” is almost always academic. What’s the probative value of evidence that can’t get somebody to the jury in the first place? Particularly with experts – with their jury-swaying aura of infallibility recognized by case after case (in Daubert arguments and elsewhere) – admitting legally insufficient opinions would be an engraved invite to jury confusion and legally insufficient verdicts. Courts wisely won’t do that. Thus, for those bearing the burden of proof, admissibility and sufficiency typically collapse into the same thing.

Defendants, on the other hand, rarely bear the burden of proof. Thus, defense experts are often allowed to offer opinions that, while admissible, would not be sufficient to establish a jury question. E.g., Neal v. Lu, 530 A.2d 103, 110 (Pa. Super. 1987) (“the ‘certainty’ standard. . .applies only to expert medical testimony that a litigant offers as proof of a necessary fact in support of recovery”). So to that extent, there is a difference between admissibility and sufficiency – defense evidence can be admissible without being sufficient to prove anything, precisely because defendants are not required to prove anything. The risk defendants run is that jurors won’t believe a less certain expert, so defendants typically have their experts conform to the professional certainty standard even if that’s not legally required.

As to Blog 703’s next argument…. Hold on, there isn’t any next argument. There’s a footnote dissecting certain Ohio and Pennsylvania case law that’s more tendentious than anything else. The point is, why isn’t the “reasonable degree of professional certainty” standard as good an idea as we’ve said it is? For that matter, where’s the defense of any of the ALI’s three justifications for a contrary rule?

There’s nothing.

We’re disappointed, because this is the kind of stuff we like to do.

In our original post, we quoted from a bunch of medical literature (we have even more to the same effect that we didn’t include) demonstrating that doctors don’t reach professional opinions based on a “more likely than not” standard. Rather they strive for as much “certainty” (there’s that dirty word again) as is professionally possible. We’ve searched through Blog 702’s post for any contrary evidence demonstrating a different, lower professional standard – or even for any argument for such a position. Not a word. We’d really like to see a defense of the proposition that “more likely than not” is closer to the standard that doctors really use in diagnosing their patients than “reasonable degree of medical certainty.” If there is such a doctor, s/he’s probably happy to live in a jurisdiction that holds medical malpractice experts to a higher standard than that.

Nor is the effect of inconsistent standards of proof addressed. Come on guys, do you think that experts in criminal cases ought to testify that they hold their opinions “beyond a reasonable doubt?” Or is the whole argument just another loophole to let plaintiffs’ experts in civil cases get away with murder by offering opinions that, if ever proven to rigorous professional standards, would win those guys bushels of Nobel Prizes?

Finally, how does lowering the standard for expert opinions from “professional certainty” to “more likely than not” do anything to improve the “quality” – as opposed to the quantity – of expert testimony? Please tell us how Ramirez or any other case has managed to repeal Gresham’s law with respect to expert testimony. Until anybody can prove otherwise, we’ll continue to believe that, if the standard for expert testimony is reduced to little more than a coin flip, then that’s all we’ll ever see in courtrooms across America.

And we think that’s wrong. Experts should be professionals, not just professional witnesses.