Opinion
Civ. No. SA-98-CR-158-OG.
March 29, 1999.
ORDER DENYING DEFENDANT'S REQUEST FOR FURTHER PRE-TRIAL DAUBERT HEARINGS
Defendant's Motion in Limine "D" (Doc. 211) requests more Daubert hearings. One such hearing has already been held on the methodology employed to test Aaron Martinez's hair for the constituent chemicals of ipecac. The remaining topics on which defendant seeks hearings are gleaned from the government' expert witness disclosures and listed in her motion:
Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
1. The length of time it takes for brain damage to occur in a person who is anoxic;
2. Methods by which an individual may contract septicemia;
3. The process of measuring the relative acidity of blood to calculate how long an individual has been hypoxic;
4. The theory that Joseph Martinez's symptoms are consistent with emetic poisoning, and that Joseph Martinez was a victim of emetic poisoning; and
5. The theory that Mrs. Lyda caused medical factitious disorder in herself.
For the reasons that follow, the Court finds that no pre-trial Daubert hearing on these issues is required.
The trial court serves a "gatekeeper" role in determining whether to admit expert testimony; "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. Reliability and relevance do not require certainty, but must be demonstrated by evidence that the knowledge is more than speculation. Id., at 589-90, 113 S.Ct. at 2795. Daubert, however, does not automatically require a pre-trial hearing on each and every request by the defendant. The trial court still retains some discretion.
It appears that the question of whether to hold a Daubert hearing, at least in this Circuit, is particularly constrained. When "an expert's testimony is based on `scientific, technical or other specialized knowledge,' Daubert and Rule 702 demand that the district court evaluate the methods, analysis, and principles relied upon in reaching the opinion." Watkins v. Telsmith. Inc., 121 F.3d 984, 991 (5th Cir. 1997). Further, the proponent of the expert testimony is required to demonstrate by a preponderance of the evidence that the expert's findings and conclusions are based on the scientific method, and, therefore, are reliable. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc), pet. for cert. filed, 67 U.S.L.W. 3409 (Dec. 17, 1998) (No. 98-992). So the question before the Court is not whether to have aDaubert hearing, but when.
In fact, it may be that a preliminary hearing is required for all specialized knowledge short of "theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, [that] properly are subject to judicial notice . . . ."Daubert, 509 U.S. at 592 n. 11, 113 S.Ct. at 2796 n. 11.
The government argues that none of these issues require any Daubert hearing. The government argues, for example, that no test short of suffocation can be conducted to determine how long a brain must be deprived of oxygen before damage occurs. This misses the point. The opinion must rest on a proper foundation in the methods of science, whether this foundation is the expert's own training and experience with patients who have suffered from anoxia, from investigation of the relevant peer-reviewed literature, from scientific research conducted by the expert or by others, or from other means; it cannot be mere speculation. The government is required to establish the foundation before the opinion is offered to the jury, and the defendant is entitled to test its reliability. Whether a hearing on these preliminary questions must be conducted outside the presence of the jury depends on whether it is required in the interests of justice under FED. R. EVID. 104(c). United States v. McVeigh, 955 F. Supp. 1278, 1279 (D. Colo. 1997), affirmed, United States v. Nichols, No. 98-1231, 1999 WL 107021 (10th Cir. Feb. 26, 1999).
The government has disclosed that the testimony of its experts will be based on their review of medical records, their review of the professional literature available in the area of concern, and on their educations, training, and experience. In other words, they rely on the same data and methodologies used day-in and day-out by the medical community in the course of diagnosing their patients. In addition, defendant has the curricula vitae of the government's experts and has so far lodged no objection to their qualifications. In the matters the experts will testify to, it is impossible to draw a clear line between concerns of admissibility and probative value. Defendant has the right to have the jury hear evidence relevant to the weight and credibility of this opinion evidence, but because many of her challenges to the evidence will necessarily involve attacks on its foundations, the necessary foundations for admission should also be presented to the jury. For this reason, denial of a pre-trial Daubert hearing will not prejudice the defendant. In addition, if defendant's objections to the testimony are sustained, "the jury will recognize the reason for the ruling and it is difficult to see that the jury's knowledge that the court rejected evidence offered by the government would prejudice the defendant."McVeigh, 955 F. Supp. at 1280. This procedure will better serve the ends of justice by avoiding the duplication of this testimony that a pre-trial hearing would entail.
If this data and methodology are good enough for the practice of the diagnosing physician, they should be good enough for the courts as well.See Benedi v. McNeil-P.P.C. Inc., 66 F.3d 1378, 1384 (4th Cir. 1995).Accord McCullock, 61 F.3d at 1043-1044 ("[T]he physician making a diagnosis must necessarily rely on many observations and tests performed by others and recorded by them; records sufficient for diagnosis in the hospital ought to be enough for opinion testimony in the courtroom.").
This became abundantly clear in the hearing concerning the chemical analysis of Aaron's hair. The Court has found that the testing methodology provides a proper foundation for admission of the test results. Defendant, however, made it clear that she plans to attack any discrepancies she is able to find in the methodology employed by the pathologist who conducted the test. It is therefore likely that we will revisit at trial at least some of the matters already explored at excruciating length in the pre-trial hearing.
Defendant's motion for a pre-trial Daubert hearing on the topics listed above is DENIED. Instead, the Court adopts Chief Judge Matsch's procedure as set out in McVeigh, 955 F. Supp. at 1280-81. The government is instructed to offer proof of the necessary foundation for each expert's opinion, and the adequacy of that showing will then be determined before questions asking the expert's opinions and conclusions will be permitted.
If voir dire requires questioning that may be too prolonged or that may include matters inappropriate for hearing by the jury, it may be done during a recess period. If the defendant's objections to qualification of the witness and to the particular offerings of opinions and conclusions require argument, that too may be heard during a trial recess or may be presented in writing.Id. at 1281.
Having made this ruling, the Court will now qualify it. Issue number 2 raised by defendant relates to the methods by which an individual may contract septicemia. As the government points out, there are undoubtedly numerous methods by which an individual may contract septicemia. What the government's experts will testify, however, is that Joseph "most likely contracted septicemia by the introduction of more than a minute amount of fecal matter directly into his bloodstream." Therefore, the only question is this regard is whether a person can contract septicemia in this manner. Any such expert opinions, however, are subject to the trial procedure outlined above.
Finally, issue number 5 concerns the theory that defendant caused "medical factitious disorder" in herself. Factitious disorder by proxy, a sub-class of factitious disorder, was itself the subject of a lengthy Daubert hearing in this case. It was apparent at that hearing that "factitious disorder" or "Munchausen syndrome" as psychiatric diagnoses of a mental disorder do not meet the reliability criteria ofDaubert. Therefore, testimony that defendant suffered from such a disorder or that she somehow caused the disorder in herself will not be permitted. It may be that testimony that defendant feigned illnesses in herself is permissible, but the government will not be permitted to relate such instances to a mental disorder.
This disorder is also known as Munchausen syndrome by proxy.