The class is "Legal Elements of Fraud" for Forensic Accounting Major.

Assignment:Daubert Paper: Expert Witness Testimony

Overview

The preparation of an effective and efficient research paper requires a thorough analysis of the issue (i.e., the facts) and the authoritative rule (i.e., statement or regulation) to determine an appropriate conclusion. To accomplish this in this assignment, you will be producing a research paper that is structured utilizing the I.R.A.C. method (the I.R.A.C) attachment explains further). I.R.A.C. is an acronym for:

Issue(s)

Rule(s)

Analysis

Conclusion

Action Items

1.Review the case,Extending Daubert Beyond Scientific Expert Testimonyand the "Extending Daubert Beyond Scientific Expert Testimony" document (attached).. The information in this document can be used to help conduct the research necessary to effectively complete this assignment.

2.Develop a double-spaced, 12 point font, 5 to 7 page paper on the Daubert standard governing expert testimony. Structure your paper as follows:

a.Summarize the Daubert Standard as developed from the case Daubert v. Merrell Dow Pharmaceuticals.

b.Summarize the current state of the Daubert Standard (i.e., briefly describe any factors/cases/events that have either strengthened or weakened the Daubert Standard since its inception after Daubert v. Merrell Dow Pharmaceuticals).

c.Perform an I.R.A.C. analysis on two cases that utilize the Daubert Standard to determine the admissibility of an expert witness's testimony. Organize each of your analyses into the following structure:

Issue: Based on the facts of the case, identify and state the expert testimony issues and/or problems applicable to the case.

Rule: Research and briefly state the expert testimony guidelines/rules that apply to the issues and/or problems presented in the case.

Analysis: Apply the case facts to the expert testimony guidelines/rules and provide an in-depth analysis of how to resolve the issues/problems. Additionally, indicate the pros and cons of various actions that could be taken by the parties involved.

Conclusion: State your conclusion (i.e., decision) based upon the results of your analysis. Be sure to fully explain why you chose this conclusion.

d.Throughout your paper, be sure to use proper APA citation and references. Except for direct quotes, remember to put the paper in your own words and properly cite the source(s) where the information was obtained.

Daubert Test Resources I. Daubert - Consequences of failing the Daubert Test - Excellent Resource A. http://www.bucklin.org/flunk_consequences.htm II. Daubert cases that went wrong A. http://expertpages.com/content/case_hebah.htm Kevin Hebah - summary of clinical psychologist's expert testimony being excluded in sexual abuse case. (1) http://www.ck10.uscourts.gov/opinions/04/04-8092.pd Full case detail using Daubert Test (for Kevin Hebah case). B. http://www.lectlaw.com/files/exp16.htm McKendall - Daubert only for Scientific Evidence C. http://www.cit.uscourts.gov/slip_op/Slip_op01/Slip%20Op.%2001-98.pdf Custom's Classifications Case using Daubert Test D. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=971709 Kumho Tire Company Case using Daubert Test III. LEXIS - Daubert cases (to be researched by students) 1. Results Guerre-Chaley v. State, Court of Appeals No. A-8473, No. 1924 , COURT OF APPEALS OF ALASKA, 88 P.3d 539; 2004 Alas. App. LEXIS 76, April 9, 2004, Decided 2. Donihe v. Young, CIVIL ACTION NO. 4:05-CV-052-RLV , UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ROME DIVISION, 2006 U.S. Dist. LEXIS 88471, December 6, 2006, Decided , December 6, 2006, Filed 3. Arneson v. Mich. Tissue Bank, CAUSE NO. CV 05-189-M-JCL, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, MISSOULA DIVISION, 2007 U.S. Dist. LEXIS 95918, March 26, 2007, Decided, March 26, 2007, Filed IV. LEXIS - Daubert cases (forensic accounting issues to be researched by students) 1. Results BL Dev. Corp. v. Masella (In re Masella), Chapter 7, Case No. 05-24302, Adversary Proceeding No. 06-2010, UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT, 2007 Bankr. LEXIS 2719, August 7, 2007, Decided ACCT/BSFR 343 Fall 2009 Page 1 of 2 Daubert Test Resources 2. Brookshire Bros. Holding, Inc. v. Total Containment, Inc., DOCKET NO. 04-1150, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, LAKE CHARLES DIVISION, 2007 U.S. Dist. LEXIS 49318, July 6, 2007, Decided, July 9, 2007, Filed, Motion granted by, in part, Motion denied by, in part, Sanctions disallowed by Brookshire Bros. Holding v. Total Containment, Inc., 2007 U.S. Dist. LEXIS 64746 (W.D. La., Aug. 30, 2007) 3. Physicians Dialysis Ventures, Inc. v. Griffith, Civil Action No. 06-2468 (MLC), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, 2007 U.S. Dist. LEXIS 78879; 74 Fed. R. Evid. Serv. (Callaghan) 1204, October 23, 2007, Decided, October 24, 2007, Filed 4. Sigur v. Emerson Process Mgmt., CIVIL ACTION NO. 05-1323-A-M2, UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA, 2007 U.S. Dist. LEXIS 45270, April 25, 2007, Decided, April 25, 2007, Filed, Later proceeding at Sigur v. Emerson Process Mgmt., 2007 U.S. Dist. LEXIS 50320 (M.D. La., May 17, 2007)Motion granted by Sigur v. Emerson Process Mgmt., 492 F. Supp. 2d 565, 2007 U.S. Dist. LEXIS 45269 (M.D. La., June 8, 2007) ACCT/BSFR 343 Fall 2009 Page 2 of 2 http://www.apa.org/monitor/jun99/jn.html VOLUME 30 , NUMBER 6 June 1999 JUDICIAL NOTEBOOK Extending Daubert beyond scientific expert testimony Technical and other specialized knowledge must be reliable to be admissible By Richard L. Wiener, MLS, PhD Saint Louis University In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) the U.S. Supreme Court made trial judges "gatekeepers" and provided them with broad discretion to determine whether or not scientific expert testimony was reliable enough to be admissible. The Daubert court offered trial judges specific, but not exhaustive factors to consider: whether the scientific knowledge can be (and has been) tested, whether it has been subjected to peer review, the size of the known error rate for findings, and whether the knowledge enjoys widespread acceptance in the scientific community (Daubert 1994, p. 593-594). The ruling left unresolved the reach of the gatekeeping function that it so carefully described. Did the justices expect the ruling to apply to expert testimony in applied science, technology and other areas of specialized knowledge? This issue was recently decided by the U.S. Supreme Court in Kumho Tire, Inc. v. Carmichael, 119 S.Ct.1167 (1999). Background on the case In the summer of 1993, Carmichael's minivan suffered a blowout of the right rear tire as the plaintiff drove himself and several passengers to their destination. One of the passengers died of injuries sustained in the accident that followed and others were severely hurt. Carmichael and family brought suit against Kumho Tire, which manufactured the tire that caused the accident. An expert witness, provided a deposition in which he explained that a tire defect was likely responsible for the blowout. At trial, the expert would have testified about the observational methodology that he used to determine that the tire showed no signs of "overdeflection" (i.e., being driven while underinflated or overloaded with freight). Applying the Daubert factors, the trial judge excluded the tire expert's testimony because it failed to meet an adequate reliability standard (Carmichael v. Samyang Tires, Inc., Civ. Action No. 93-0860-CB-S, S.D. Ala., 1996). The Eleventh Circuit reversed holding that the Daubert standard and factors did not apply because the expert testimony did not rely upon "the application of scientific principles," Carmichael v. Samyang Tire, Inc., 131 F.3d 1435-1436 (1997). Upon appeal, the U.S. Supreme Court ruled that the trial judge was correct in applying the Daubert principles. In accordance with Federal Rule of Evidence 702, a trial judge must determine whether expert testimony that "reflects scientific, technical or other specialized knowledge" has a "reliable basis in the knowledge and experience of [the relevant] discipline" (Kumho, p. 1174). In other words, Justice Breyer's majority opinion extended the reach of Daubert to include specialized testimony that is not purely scientific. Justice Breyer went on to write that the trial judge may apply the Daubert factors if they are appropriate to the testimony under consideration but that the trial judge has "considerable leeway" to determine the reliability of expert evidence. The Supreme Court supported the trial judge who concluded that the expert's methodology failed to "satisfy either Daubert's factors or any other set of reasonable reliability criteria" (Kumho, p. 1179). Implications for psychology This holding has important implications for psychological testimony that is based upon the professional work of forensic psychologists acting as mental health practitioners. It grants trial judges who evaluate the admissibility of assessment evidence broad latitude in determining whether the evidence is reliable and what factors to consider in making that determination. For example, in a case in which an expert evaluates an alleged rape victim and could either testify about the presence (for the prosecution) or absence (for the defense) of rape-trauma stress syndrome, the trial judge appears to have discretion to decide whether to apply the Daubert factors to evaluate the reliability of the expert testimony or to use some other set of reasonable criteria (David E. Rovella, "Kumho" could affect criminal cases, Nat'L. L. J., April 12, 1999). There are other psychological state testimonies that provide the same leeway for trial judges in assessing admissibility. From a practicing psychologist's perspective, Kuhmo makes it important to defend the reliability of the testimony either with the application of the Daubert factors or with another reasonable set of criteria. It is too early too tell whether Kuhmo will increase or decrease the admissibility of psychological testimony, but it is clear that it provides the trial judge very broad discretion. From the point of view of applied researchers, the problem of understanding how factors outside the Daubert analysis can and will be used to evaluate the reliability becomes an interesting research problem with important practical significance. "Judical notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making. What is IRAC? IRAC stands for Issue, Rule, Application, Conclusion. It is one way to structure legal analysis. An effective essay (no matter the overall length) follows some form of the IRAC structure where it is organized around each of these elements for each and every issue and subissue identified as a legal problem. IRAC is an extremely useful tool in organizing any law related essay answer. It is not the only way to structure an answer, but it helps to make sure all bases are covered. So, until you achieve the level of mental and written fluency where you can weave together rule and fact in a seamless tapestry and transition between thoughts without loss of either the substance or your reader, you might choose to rely on some form of IRAC to keep focused. Use IRAC as tool for organizing your thinking and your writing. Think of it as a weaving loom that is there only to support the threads of your argument, while you weave and create an intricately beautiful piece of fabric, i.e. a complete, logical argument. Soon, the process will become automatic and you will rely less and less on the loom. Until then, you have something you can rely on to guide you through the process. How to IRAC 1. State the issue The issue is the most important element in the analysis and must be stated in a way to show what is in controversy. The legal question weaves together the rule and the facts particular to the problem you identified. Articulate the issue by creating the legal question presented by the facts. To find the issue, ask: \"what is in controversy in these facts.\" (Of course you need to know the law to find a legal question in the facts.) Use the \"whether, when\" structure to help you isolate and write an issue statement. Some professors might not want to see this particular language - \"the issue is whether.\" You achieve the same result with other words - \"Did\" or \"Can.\" Don't get fixated on language. Follow your professor's instruction, either way you achieve the same result: identification of the legal problem. You should always use the following language to guide your thought process: \"The issue is whether,\" . . . then identify and state the legal conclusion you want the court to reach . . . Don committed a battery, (or an offer was made, or the court can assert personal jurisdiction) . . . and connect to the \"relevant\" facts (the relevant facts being those facts which impact the outcome) . . . when he pushed Pam even though he knew she was in no danger of being hit by the bicyclist (or when he said, \"would you buy my watch for $500 in cash next Tuesday?\" or when the defendant conducted business in the forum state, had an office and a full-time staff, and paid state taxes). When completed, the sentence will read: \"The issue is whether Don committed a battery when he pushed Pam even though he knew she was in no danger of being hit by the bicyclist.\" 2. State the law After you have the issue, you must articulate the rule. The rule and the facts are inextricably linked. Your analysis of the facts will not make sense unless you have first identified the rule which determines the legal meaning to be attributed to those facts. Use building blocks for writing the rule of law, consider: Elements Definitions Exceptions to the general rule Limitations to the rule Defenses When writing, follow a hierarchy of concepts by: Moving from the general to the specific Defining each legal term of art Identify: The consequences of applying the rule - what will happen? What are the consequences of this rule in this situation? Which leads you to consider: What does application of the rule mean here? What will be its effect? 3. Analyze the facts in light of the law The analysis or application is the heart of the discussion and sometimes works better combined with the rule. It is where you examine the issues raised by the facts in light of the rule. Your statement of the rule will drive your organization of the analysis. You simply match up each element you have identified in the rule (in order) with a fact, using the word \"because\" to make the connection between rule and fact. \"Because\" is the single most important word to use when writing the analysis. Using the word \"because\" forces you to make the connection between rule and fact. Also make use of the words \"as\" and \"since\" they serve the same function as \"because\" and sometimes will sound less redundant when used in the same paragraph as \"because.\" 4. Conclusion Conclude each issue before drawing your final overall conclusion. There is no right or wrong answer, only logical analysis based on the rule and the facts which lead to a reasonable conclusion. Note: Repeat the process for each issue you identify each issue forms the basis for a separate IRAC analysis. Examples 1a. Don't write: In this case, while Pete the police officer was giving Dan a sobriety test, he noticed that Dan fit the description of an eyewitness to the robbery, giving the police officer probable cause to arrest Dan. 1b. Do write: In this case, Pete the police officer realized that Dan fit the description of the suspect, providing probable cause for arrest, because Dan was extremely tall at 6'4\