I was very interested in the part about expert witnesses - I was asking about this a couple of days ago. The judge was very careful to not dismiss out of hand the contestors' expert witnesses but used the established judgements to qualify their level of expertise and their credibility.
Indeed, this is a well-written, concise application of the
Dauber standard, as shaped by additional decisions. Pp. 24-25 are especially instructive. But pp. 12-14 show what a judge would be looking for were these same witnesses the subject of motions
in limine to exclude them as experts.
In the cases of witnesses Baselice and Kamzol, the judge notes that their conclusions were drawn from data of essentially unknown provenance. Experts must show that any data they've collected to inform their opinions and conclusions must follow good practices of data management. We pile all that together as "methodology." You have to be able to demonstrate to a legal standard of credence that your method is reliable. Unlike the
Frye standard, that method doesn't have to be "generally accepted." But it has to refer to known good principles of observation and analysis.
Witness Gessler is non-credible in the judge's opinion because he did not verify information he collected that he had not personally observed. As the judge notes, affidavits are generally non-evidentiary because they do not subject the affidant to cross-examination. Mr Gessler's evidence is an affidavit summarizing other affidavits. As the judge explains later, first-hand knowledge is a critical element of expertise as the law recognizes it.
In contrast, defendants' experts testified in deposition, so that the contestants' counsel could examine them on the record. This is automatically stronger evidence than mere affidavits. And Judge Russell uses formulaic language to express why he qualifies them as witnesses: they have relevant experience, are not overtly biased, and speak from first-hand knowledge. The key is that these factors were available for
voir dire in the deposition. Questions and answers, for example, intended to expose bias become part of the deposition and part of the record. This allows a trier of fact to weigh the evidence more appropriately.
In Dr. Herron's case, the judge goes on to note that other courts have examined him in the capacity of an expert witness and have found no reason to dismiss him. This can cut two ways, as in other cases witnesses can acquire the reputation of always being on one side of issues raised at law. This sets up the battle of commonly-called experts from case to case.
As you note, the judge says he could have disqualified the contestants' witnesses on grounds either of hearsay or of failure to qualify under
Daubert. But as Loss Leader pointed out in a thread from last year, judges are reluctant to set themselves up as authorities on what constitutes expertise in some field. So while there are criteria a judge is meant to apply, the decisions are often on the side of allowing the testimony and deferring the credibility issue to the trier of fact.
Here, in a bench trial, the judge is both the gatekeeper for admissibility of expert opinion, but also the trier of fact. So he can accept (reluctantly) the proffered expertise of the constants' witnesses, but then in a different capacity he can give them little or no weight. This makes the decision far less likely to be challenged on appeal. A disqualification of a witness is appealable as an abuse of discretion.
