Wesley R. Elsberry posted Entry 1258 on July 28, 2005 12:56 AM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/1256

The Foundation for Thought and Ethics entered a motion to intervene in the Kitzmiller et al. v. Dover Area School District case in Dover, Pennsylvania. On July 27th, Judge John E. Jones denied their motion to intervene. Interestingly, I don’t seem to see any place within this decision where Judge Jones agreed that any of FTE’s arguments for intervention had merit.

I found this footnote from page 9 particularly illuminating in light of previous discussions here and elsewhere in the blogosphere:

It is clear to the Court that FTE improperly assumed that its rights would be protected so long as Dembski remained an expert for the Defendants. As such, we believe that the real motivation or underlying reason that FTE filed the instant Motion was because Defendants terminated Dembski as an expert in this case, which led FTE to conclude that its rights were no longer being protected. Notably however, Dembski was involved in this litigation only as a disclosed witness, and never as an agent or representative of FTE. It was only after Dembski apparently subjected The Design of Life to a premature release by including it in his March 30, 2005 expert report, as previously noted, that the various machinations which led to his termination commenced.

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Comment #39971

Posted by Ed Darrell on July 28, 2005 4:13 AM (e)

Wow! Judge John E. Jones III certainly saw through the claims made by “FTE,” didn’t he? On page 7 of the decision we see the writing on the wall about FTE’s claims:

FTE’s arguments in this regard are both unavailing and disingenuous.

There’s another thread which was not argued, I gather, which I was curious about. I wondered if FTE was claiming “intelligent design” as its own invention, claiming an intellectual property right in the concepts and explication of the ideas. It would have been a rather bizarre claim to make, but I couldn’t see much other reason for FTE to intervene (nor could the judge, as he carefully explains).

I wonder whether the Dover school district now might have action for expert witness malpractice. This case seems destined to make no other new law (I predict a ruling against the board’s action, incidentally) – the defendants may as well try to make hash from the leftovers they’ve got.

One other observation: Judge Jones doesn’t like people or lawyers dissembling in his courtroom, and Judge Jones can tell when dissembling occurs. Both parties should work hard to make certain everything they put into the trial is the certifiable truth.

(That’s another indicator of how the case will end.)

Comment #39988

Posted by bill on July 28, 2005 8:28 AM (e)

In reading the ruling states:

Notably however, Dembski was involved in this litigation only as a
disclosed witness, and never as an agent or representative of FTE. It was only after Dembski
apparently subjected The Design of Life to a premature release by including it in his March 30,
2005 expert report, as previously noted, that the various machinations which led to his
termination commenced.

Does it appear that Dembski, on his own, without being asked or required, submitted the manuscript of “Design of Life” to support his expert witness testimony?

Somehow I got the impression (and I can’t find the reference) that Buell was ticked off because the manuscript had been taken by the court, not given by Dembski. If the latter is the case then it would appear that Buell and Dembski aren’t exactly on the same page.

Comment #39989

Posted by Wesley R. Elsberry on July 28, 2005 8:43 AM (e)

Syntax Error: mismatched tag 'url'

Comment #40003

Posted by Ed Darrell on July 28, 2005 9:47 AM (e)

All of this textbook resource material should be public domain, except for the actual combination of words and pictures, which is copyright protected.

There is no reason for FTE not to share their work-in-progress. In fact, that is the procedure required for all other textbook publishers, by Texas’ textbook approval procedures.

Reviewing the issues and the decision, harsh as the judge was, stopping just short of saying “Liar! Liar!” he was still gentle with Dembski and the Foundation for Thought and Ethics.

This may be a clue that the group does not plan to offer their textbook for use in any Texas school, ever. It is one more way that ID advocates plead for special privileges instead of doing real science.

One more point: It appears so far that this textbook is the only source which comes close to being an actual publication supporting intelligent design. It may well be that if the book is not in evidence, summary judgment against the Dover school board would be required. Is Sandefur still watching this stuff? Any other lawyers want to weigh in?

Comment #40004

Posted by Lurker on July 28, 2005 9:50 AM (e)

Another Waterloo for Dembski?

Comment #40011

Posted by bill on July 28, 2005 10:22 AM (e)

Not again!

Dembski’s had more Waterloos than Jason’s had Halloweens!

Comment #40018

Posted by Aagcobb on July 28, 2005 10:53 AM (e)

“One more point: It appears so far that this textbook is the only source which comes close to being an actual publication supporting intelligent design. It may well be that if the book is not in evidence, summary judgment against the Dover school board would be required. Is Sandefur still watching this stuff? Any other lawyers want to weigh in?”

Whether a textbook exists or not is not dispositive of the issue of whether the 1st Amendment has been violated; besides the book that Dover directed its students to is “Of Pandas and People”, so its the contents of that book which should primarily be at issue, rather than an unpublished work in progress.

Comment #40023

Posted by Albion on July 28, 2005 11:15 AM (e)

I thought this unpublished work in progress was basically a major updating of Of Pandas And People. If they say that the current edition was offered to the school because the new edition wasn’t ready yet, would that start to make this new book relevant?

Comment #40024

Posted by Moses on July 28, 2005 11:20 AM (e)

Not again!

Dembski’s had more Waterloos than Jason’s had Halloweens!

That is funny…

Comment #40025

Posted by Jason on July 28, 2005 11:21 AM (e)

There is no such thing as “expert witness malpractice”.

Comment #40041

Posted by Andrea Bottaro on July 28, 2005 12:17 PM (e)

I don’t think that TDoL is central to the issue - after all, the case started only with P&P. As I understand the quote above from Judge Jones’ opinion, however, TDoL became fair game because Dembski cited it in his expert testimony, which of course allowed the plaintiffs to request access to it.

I honestly don’t see why O’Leary finds this so outrageous - I think it is pretty obvious that both parties in a suit should have access to all and any material used by the other in their argument, while of course respecting copyright and confidentiality. If one party doesn’t want to disclose some piece of information or its source, they are free to do so but of course they cannot use it to bolster their case. I am no lawyer, but I would be surprised to learn there’s no legal precedent for this (I am thinking for instance of all the raw, unpublished industry research data and reports that were obtained by the plaintiffs in the various tobacco suits).

Anyway, this was just a snafu by Dembski, who likes to “prepublish” his stuff and previously boasted of using the strategy to get effort-free review by his opponents (I guess this time it came back to bite him). Of course FTE freaked out as soon as they realized this allowed the plaintiffs to take a look at the TDoL manuscript, but by then it was too late (indeed, as it often happens they did even more damage to their case with their clumsy attempts at damage control, from withdrawing Dembski to this silly motion and Buell’s utterly shameful testimony).

Finally, I am not sure this was “expert witness malpractice” as “expert witness cluelessness” (.

Comment #40055

Posted by bill on July 28, 2005 12:50 PM (e)

It appears to be a case of Expert Waterloo in which Dembski pretends to be Napoleon, again.

Hey, you don’t suppose he actually believes…nah!

Comment #40064

Posted by Ed Darrell on July 28, 2005 1:23 PM (e)

There is no such thing as “expert witness malpractice”.

You know that, and I know that. But I’m at a loss for a better term to describe what’s going on in this little side drama.

Comment #40080

Posted by Aagcobb on July 28, 2005 2:09 PM (e)

“I thought this unpublished work in progress was basically a major updating of Of Pandas And People. If they say that the current edition was offered to the school because the new edition wasn’t ready yet, would that start to make this new book relevant?”

It may be relevant anyway, but I don’t think its dispositive.

Comment #40083

Posted by Wesley R. Elsberry on July 28, 2005 2:17 PM (e)

Syntax Error: mismatched tag 'url'

Comment #40097

Posted by Aagcobb on July 28, 2005 2:58 PM (e)

The rules of discovery are very broad; typically information sought only has to be “reasonably calculated” to lead to the discovery of admissable evidence, so TDoL is certainly discoverable, and may even be admissible as evidence. My only point is that this one unpublished textbook will not, by itself, conclusively establish whether or not the Dover School Board violated the 1st Amendment.

Comment #40170

Posted by PvM on July 28, 2005 5:46 PM (e)

Various comments led me to search the internet about expert witnesses and their liabilities

An interesting article When are Expert Witnesses Liable for their Malpractice?

and Louisiana allows malpractice claim against expert witness for negligent preparation for trial - Marrogi v. Howard, 805 So.2d 1118 (La. 2002)

Judicial notebook: Suing your own expert witness: competing policies, uncertain law

My question is: To what extent (if any) are expert witnesses liable for their testimony?

Comment #40279

Posted by Ed Darrell on July 29, 2005 4:34 AM (e)

Pim,

A reasonably competent attorney does not rely on the word of the expert witness, but instead checks out the references and often works hard to become very familiar with the science (or other art or displine) involved. Consequently, when an expert’s contribution to a trial goes south, the attorney generally bears the burden of the error.

There are cases of witnesses misrepresenting their credentials or failing to do the necessary work to get the conclusions they were expected to be able to testify to, as your search demonstrates.

I offered witness malpractice with some hope at humor. It appears to me that the defendant’s attorneys first recognized a problem and acted to cut their losses; and from the decision of Judge Jones in this motion, it’s quite clear he recognized problems in veracity in various claims. The issue would be whether the defendant’s attorney recognized the problems in time to cut losses or mitigate damage before trial, and it appears in this case that occurred (to the extent Dembski’s testimony can be said to have missed the mark).

We may never know exactly what produced the split between the defendants and their experts in this case. There were signs of conflicts of interest from the start – I think several people commented on that elsewhere on PT.

Expert witnesses are not often held accountable for trial failures, unless their conduct is really egregious. Here in Texas we’ve had a small handful of county coroners and psychiatrists whose testimony in several cases turned out to be based on examinations not done, or done incorrectly, or science that simply was not there. In these cases the testimony was critical to convictions, and the misfeasance or malfeasance was criminal – a couple of these cases have produced jail sentences.

The bigger picture remains, however. Dr. Dembski makes public appearances and writes articles claiming that science exists in “intelligent design.” The Discovery Institute has a couple of lawyers on a leash who will write papers saying that it’s legal for public schools to teach intelligent design in biology classes, or legal to short-shrift evolution. They will cite papers published in law reviews by philosopher Francis Beckwith in support of the general claim that school boards may order intelligent design into the biology curriculum.

All of these claims beg the question (I’m using that phrase in its correct meaning) of whether there is science in intelligent design. When some hapless school board acts in reliance upon the statements of the Dembskis, Wests, Nelsons, Behes, Wolfes and Beckwiths, they get sued, and they lose. When the lawyers get into the fray, it turns out there is not science in intelligent design, and religious bias is the only remaining justification for putting it into the classroom. Of course, religious bias is an impermissable justification.

The Thomas More legal folk have run into a pretty steep learning curve. They had assumed they could rely on the statements of the Discovery Institute. Whose fault is that assumption?

Expert witnesses need to be honest and need to be prepared for reasonably expected questions. If they can be honest and prepared, they generally are not held liable for unpleasant outcomes.

Thanks for the references.

Comment #40280

Posted by Jaime Headden on July 29, 2005 4:36 AM (e)

BTW, Mike Meyers has Halloween, Freddy has his Nightmares, and Jason just has Hell (okay, okay, Friday the 13th). But Dembski has insanity….

Comment #40286

Posted by ts on July 29, 2005 6:37 AM (e)

I love this snarky footnote:

The Court was struck by the fact that upon our questioning, FTE’s President, Buell,
could not tell us how many attorneys had entered their appearances for Defendants, nor could he
articulate why their work was in any way deficient. For the record, a total of five (5) attorneys
have now entered their appearances for Defendants in this case.

Comment #40327

Posted by PvM on July 29, 2005 11:05 AM (e)

Thanks Ed.

Comment #40378

Posted by Ed Darrell on July 29, 2005 3:11 PM (e)

I anticipate there will be grousing about the “liberal bias” from the judge in this case.

Note for the record that Judge John E. Jones III is a Republican, a former co-chair of former Gov. Tom Ridge’s transition team (Ridge, a good friend of current President Bush, was the first Secretary of Homeland Security, you may recall). He was appointed to the federal bench by Bush, and next month marks his third year of service as a federal judge.

Comment #40451

Posted by Gary Hurd on July 29, 2005 10:46 PM (e)

A reasonably competent attorney does not rely on the word of the expert witness, but instead checks out the references and often works hard to become very familiar with the science (or other art or displine) involved.

Howdy Ed,

I have also been envolved in cases where an incompetent attorney sent his client’s ass to jail because he was too lame to use expert testimony competently. Oh well, I still got paid.

In the Dover case, I smell the combustion of conflicting egos.

Comment #40584

Posted by 'Rev Dr' Lenny Flank on July 30, 2005 10:21 PM (e)

In the Dover case, I smell the combustion of conflicting egos.

Indeed.

How many minutes after the trial is over do you think it will be before the Isaac Newton of Information Theory starts crowing “gee, they’d have won if they’d only let ME testify !!!!!!” ?

Comment #40608

Posted by Ed Darrell on July 31, 2005 4:03 AM (e)

It is interesting that Dembski is so quiet about this decision in this oh-so-important case. For that matter, I haven’t seen any comments about the decision from any ID advocate.

Do they not know?

Comment #40618

Posted by 'Rev Dr' Lenny Flank on July 31, 2005 6:54 AM (e)

It is interesting that Dembski is so quiet about this decision in this oh-so-important case. For that matter, I haven’t seen any comments about the decision from any ID advocate.

Do they not know?

No point in enlarging the holes in the Big Tent, is there ….