Posner: Expert’s Testimony had More Bloody Wounds than Julius Caesar

Julius Caesar

Expert's testimony had more holes in it than this guy.

In December 2011, the U.S. Seventh Circuit Court of Appeals, per Judge Richard Posner, reversed a jury verdict in favor of an airline against Fed Ex for $65,998,411, the precise amount the airline had requested in damages.

One issue was the admissibility of complex testimony regarding the damages calculations by the airline’s expert witness, a forensic accountant named Morriss. Posner was not impressed by the expert’s regression analysis testimony:

Morriss’s regression had as many bloody wounds as Julius Caesar when he was stabbed 23 times by the Roman Senators led by Brutus. We have gone on at such length about the deficiencies of the regression analysis in order to remind district judges that, painful as it may be, it is their responsibility to screen expert testimony, however technical; we have suggested aids to the discharge of that responsibility. The responsibility is especially great in a jury trial, since jurors on average have an even lower comfort level with technical evidence than judges. The examination and cross-examination of Morriss were perfunctory and must have struck most, maybe all, of the jurors as gibberish. It became apparent at the oral argument of the appeal that even ATA’s lawyer did not understand Morriss’s analysis; he could not answer our questions about it but could only refer us to Morriss’s testimony.

Posner continued, saying: “If a party’s lawyer cannot understand the testimony of the party’s own expert, the testimony should be withheld from the jury. Evidence unintelligible to the trier or triers of fact has no place in a trial.” Posner suggested the reason the jurors returned a verdict for the exact amount, to the penny, that the airline sought was because they had no clue how to compute the damages.

That all makes perfect sense, but I feel for both the trial judge and the airline’s lawyer–and, of course, the jurors.

Trial judges are required to prescreen expert testimony for reliability, but that’s often practically impossible in highly technical areas such as engineering, medicine, and, in this case, regression analyses. The lawyers aren’t in much better of a position.

Judges and lawyers are smart and have well-developed critical-thinking skills, but those qualities don’t enable them to magically master bodies of technical knowledge in which they have no training. Many scholars have proposed enlisting expert judges and juries in technical, complex cases.

Of course, in the end, Posner was right. If an expert can’t explain how he how arrived at his conclusions in a way that laypersons–including judges and lawyers–can understand, the testimony should be excluded.

ATA Airlines, Inc. v. Federal Express Corp., Case Nos. 11-1382, 11-1492, 7th Cir., Dec. 27, 2011. Thanks to Larry Buser.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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