Litigation is replete with evidentiary issues. The acquisition (discovery) and submission (evidence) are among a lawyer's greatest challenges. As I teach evidence, I find that students of the law struggle mightily with the issues of relevance and hearsay, as do many lawyers. However, a more sophisticated stumbling point is the expression and foundations of expert opinions. Expertise and science persist in litigation.
In November 2021, the British Broadcasting Corporation (BBC) and others published news from Alabama of Curtis Means. As Harry Chapin sang, "He came to the world in the usual way." Cat's in the Cradle (1974). Though the timing of that entry is usual, it might also be said that young Mr. Means was in a rush. His birth is now in the record books as the "world's most premature baby to survive." His gestation a mere 21 weeks, just over half of the normal 40 weeks expected.
The story reported that Mr. Means weighed just 14.8 ounces at birth in 2020. Having survived and then "thriving at 16 months old, (he) set the new record." The experts afforded young Mr. Means "less than one percent chance of survival," and yet, he defied those odds. He required months of hospitalization and medical care, a ventilator, and the dedication of multiple experts, therapists, and more. But, in the end, he defied all odds.
As a human interest story, this is inspiring. It is frankly refreshing to see something in the news that celebrates survival and life. The story suggests that Mr. Means' challenges may persist and that further care will be required, but somehow the human spirit and medical technology combined to achieve a miraculous result.
There is a long history in America regarding the involvement of expert testimony in legal proceedings. The law is persistently dependent upon science and scientists, research, debate, and opinions. See Daubert's New Day (May 2019). Experts bring explanation, analysis, and opinion to our proceedings, and help the finder of fact to understand topics that are in their personal wheelhouse and largely outside of our own. And, from time to time they disagree with each other and we have to have "finders of fact" to strive to sort out what is real. As Billy Joel noted once "sometimes a fantasy is all you need." Sometimes a Fantasy (Legacy 1980).
The Federal Rules of Evidence are reasonably strict regarding opinions. Rule 701 limits the scope of opinions by non-expert witnesses. Rule 702 allows the expert to express opinions, and expertise is constrained by "knowledge, skill, experience, training, or education." We thus legally define who has expertise, and we afford it deference in the expression of opinion. And, Rule 704 says that such opinions may even embrace the "ultimate issue."
And, we rely upon those expert opinions. Often, cases involve differering opinions. One doctor says a proposed surgery will help symptoms and another disagrees. One doctor says the cause of injury was the accident and another disagrees. There are challenges for the finder of fact in deciding which expert should be believed. Credibility is among the most frequent topics physicians want to discuss with me at conferences. Among the evidentiary challenges is the persistent fact that so many experts are articulate, prepared, analytical, patient, and confident. How does one choose? Science is hard. Determining a scientist's credibility or persuasiveness is perhaps even harder. See Magic Words (February 2021).
The BBC article regarding young Mr. Means quotes the "neonatologist who oversaw the delivery." He noted that in 20 years of practice he had "never seen a baby this young be as strong as he was." The entire story is amazing. As amazing, Mr. Means' record is only "24 hours off the previous record," another 2020 birth. Notably, before that, "the record had remained unbroken for 34 years," about 1986. That "record was 21 weeks and five days." Progress, you see, may not always be as rapid as we might hope.
One might wonder, or conjecture, what the expert testimony might be if a patient found herself confronted with questions of viability at 20 weeks (beyond the end of the first semester, at essentially the mid-point of the second trimester). The question may one day arise, essentially, "will the fetus be viable" or "will the baby survive" at 20 weeks? What would a physician answer? The odds may seem to suggest the improbability of survival. The safe, scientific, answer seems to be no.
But what opinion might the expert offer? What grounds and foundation might he or she provide for such an opinion? What science might he or she explain in that testimony? What is certain, is that many might have doubts, but Mr. Means has demonstrated that even the improbable or even the perceived-to-be-impossible, sometimes remains both possible and non-fantasy nonetheless. That illustrates that opinions, expert or not, remain opinions. And opinions can be hard to reconcile, hard to prove, and challenging to even fully explain.
With the best analysis, and the best process, and vast expertise, there is perhaps always some consideration due to the potential that the ways justify the Means? Or, is it that the Means justify the ways? Perhaps one day young Mr. Means will happen upon this small note and be pleased to know that his birth and fame have caused introspection and thought.
