I. Motion in Limine to Exclude Testimony

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I. Motion in Limine to Exclude Testimony

Post by Mama2JML on Fri Mar 22, 2013 6:53 am

I. Motion in Limine to Exclude Testimony
Defendants have filed a motion in limine to exclude the expert testimony of Cina Wong and Gideon Epstein [68], two witnesses proffered by plaintiff as "forensic document examiners." For the reasons discussed below, the Court concludes that defendants' motion should be GRANTED as to Ms. Wong and GRANTED in part and DENIED in part as to Mr. Epstein.
A. DaubertPrinciple
Federal Rule of Evidence 702 is quite liberal in the scope of evidence it deems properly admissible. The Rule states in relevant part that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. The trial court must, however, act as a gatekeeper and determine, at the outset, whether the purported expert is qualified to express a reliable opinion based on sufficient facts or data and the application of accepted methodologies. Kumho Tire Co., Ltd. v. Carmichael,526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See also Daubert v. Merrell Dow Pharm.,509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).21
In performing this gate-keeping responsibility, the Supreme Court has articulated four factors the court may consider:
(1) Whether a theory or technique can be or has been tested;
(2) Whether it has been subjected to peer review and publication;
(3) Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and
(4) Whether the theory or technique enjoys general acceptance within a relevant scientific community.
Kumho Tire, 526 U.S. at 149-50, 119 S.Ct. 1167 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786) (internal quotations marks and alterations omitted). These various factors are not an exhaustive list of all possible ways to assess reliability, nor must all of the factors be applied in every case. Id. at 150, 119 S.Ct. 1167. Dependdent
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ing on the facts of the case and the type of testimony being challenged, it may very well be unreasonable to apply all of these factors. Id. at 151, 119 S.Ct. 1167. Accordingly, the trial judge is given discretion in determining how and in what manner to make reliability determinations pursuant to Daubert, "The burden of laying the proper foundation for the admission of expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp.,184 F.3d 1300, 1306 (11th Cir. 1999). Accord U.S. v. Gilliard,133 F.3d 809, 815 (11th Cir.1998)(stating that expert testimony is admissible only if its proponent demonstrates the underlying methodology is reliable and relevant).
B. Background on Handwriting Analysis
Defendants argue that the opinions of plaintiffs' expert should not be admitted because the field of forensic document examination is not sufficiently reliable. In their Brief in Support of the Motion in Limine, defendants argue that the "science" of handwriting analysis does not meet the reliability standards of Rule 702: as the theoretical bases underlying this science have never been tested; error rates are neither known nor measured; and the field lacks both controlling standards and meaningful peer review. (Br. In Supp. Of Mot. In Limine [68] at 2.)
In examining defendants' contention, the Court notes that both parties agree that the field of forensic document examination is premised on the assumption that no two persons' handwriting is exactly alike; instead, each person has a unique handwriting pattern that allows the person to be identified through a comparison of proper handwriting specimens.22 (SMF ¶ 209; PSMF ¶ 209.) Forensic document examination involves the subjective analysis and assessment of writing characteristics found in a persons's handwriting or handprinting style, by examination of subtle and minute qualities of movement such as pen lifts, shading, pressure and letter forms. (SMF ¶ 210; PSMF ¶ 210.) Handwriting identification is an inexact endeavor that "cannot boast absolute certainty in all cases." (SMF ¶ 212; PSMF ¶ 212.) Two or more handwriting experts can reach different conclusions of authorship, even when examining the same questioned document and handwriting exemplars. (SMF ¶ 213; PSMF It 213.)
Forensic document examiners are generally trained through a "guild-type" apprenticeship process, in which supervised trainees study methods of document examination described by the field's leading texts. (Defs.' Mot. In Limine [68] at 3; Epstein Dep. at 40-41.) The only recognized organization for accrediting forensic document examiners is the American Board of Forensic Document Examiners ("ABFDE"). (Defs.' Mot. In Limine [68]; Epstein Dep. At 36.) There are common terms used within the field. For example, the unidentified writing is generally referred to as the "questioned document." (SMF ¶ 214; PSMF ¶ 214.) Writings prepared by a person in the past in the normal course of business are referred to in the field as "historical writings" or "course-of-business" writings. (SMF ¶ 215; PSMF ¶ 215.) In contrast, writings prepared on request for the purpose of comparison are referred to as "request exemplars." (SMF ¶ 216; PSMF ¶ 216.) Ideally, a handwriting expert should consult the original unidentified writing, not a
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copy, to increase the reliability of his or her assessment. (SMF ¶¶ 218-219; PSMF ¶¶ 218-219.) The most reliable method of forensic document examination occurs when an examiner compares both historical writings and request exemplars to the questioned document. (SMF ¶ 217; PSMF ¶ 217.)
The recognized method for forensic document analysis occurs in several important steps. First, the expert determines whether a questioned document contains a sufficient amount of writing and enough individual characteristics to permit identification. After determining that the questioned document is identifiable, the expert examines the submitted handwriting specimens in the same manner. If both the questioned document and the specimens contain sufficient identifiable characteristics, then the expert compares those characteristics often through the use of a chart. (SMF ¶¶ 230-232; PSMF ¶¶ 230-232.) For example, the slant of the writing, the shapes of the letters, the letter connections, the height of the letters, the spacing between letters, the spacing between words, the "I" dots and "t" crosses are aspects of handwriting that can be used for comparison. Next, the expert weighs the evidence, considering both the similarities and the differences of handwriting, and determines whether or not there is a match. (SMF ¶ 232; PSMF ¶ 232.) Ignoring differences between characteristics is a frequent cause of error in handwriting identification. (SMF ¶ 233; PSMF ¶ 233.) Similarly, dismissing differences as merely the product of intentional disguise is another common mistake made in the analysis. (SMF ¶ 235; PSMF ¶ 235.) In addition, an examiner should not know the identity of the comparators and should consult more than one comparator to increase the reliability of his or her analysis. (SMF ¶¶ 256-57 & 268-72; PSMF ¶ 256-57 & 268-72.)
In addition to a recognized methodology, there are some accepted standards that should be employed when engaging in handwriting analysis. One standard is that the genuineness of the historical writing or request exemplar must be verified; that is, the forensic document examiner should ensure the purported author is the true and historical writing is indeed the author. (SMF ¶ 223; PSMF ¶ 223.) In addition, any differences between the questioned document and the comparison writings are generally considered to be more significant than are similarities, when attempting to determine whether someone is the author of a questioned document. (SMF ¶ 224; PSMF ¶ 224.) The reason that similarity, by itself, is not dispositive is because most people are taught handwriting as children from the same or similar "notebook styles" and, therefore, many people will share common handwriting characteristics called "class characteristics." (Defs.' Mot. In Limine [68] at 4; Albert S. Osborn, QUESTIONED DOCUMENTS 226 (2nd Ed. Patterson Smith, 1973), attach, to Defs.' Evid. In Supp., Vol. I, at Tab 16.) The existence of even one consistent fundamental difference between writings, however, has historically been viewed as a legitimate basis for concluding that two writings were not produced by the same person.23 (SMF ¶ 225; PSMF ¶ 225.) Finally, it is generally accepted that consistent characteristics present over the course of a long writing should be viewed as genuine characteristics of the author's handwriting, and not the product of an attempt to disguise. (SMF ¶ 237; PSMF ¶ 237.)
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Based on the above undisputed information, the Court concludes, as a general proposition, that forensic document examiners, who are equipped with the proper background qualification and who employ the accepted methodology in their analysis, can serve to assist the trier of fact, in some regards, through providing reliable testimony about similarities or differences, or both, between a questioned writing and comparative exemplars.24 Such a holding is consistent with the precedent established by the Eleventh Circuit in U.S. v. Paul,175 F.3d 906 (11th Cir.1999). In Paul, the Eleventh Circuit held that a forensic handwriting expert can, in some instances, assist the "jury or trier of fact to understand the evidence or to determine a fact in issue." Id. at 911. In Paul, the expert was deemed qualified to provide reliable testimony based on his thirty years of experience in the field and application of widely accepted methods of analysis. Likewise, this Court concludes that when a forensic handwriting expert possesses the proper qualifications and when he or she employs reliable methodology, the testimony can qualify as "specialized knowledge" that can be admitted pursuant to Federal Rule of Evidence 702. See also United States v. Jolivet,224 F.3d 902, 906 (8th Cir.2000) (affirming the district court's admission of forensic document expert testimony and finding such opinion reliable because the expert was well-qualified in handwriting analysis and his testimony "may be properly characterized as offering the jury knowledge beyond their own and enhancing their understanding of the evidence before them."). Accord United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir.), cert, denied 521 U.S. 1127, 117 S.Ct. 2527,138 L.Ed.2d 1027 (1997).
C. Background and Qualifications of Plaintiffs Experts
Although the Court has concluded that a proper expert may assist a jury in a comparison of handwriting between a known and an unknown piece of writing, that conclusion does not mean that a person can be deemed as an expert in forensic document examination merely by announcing himself as such. Indeed, defendants assert that plaintiffs experts, in particular Ms. Wong, lack the necessary credentials to qualify as experts. (Defs.' Br. In Supp. Of Mot. In Limine [68] at 5-7; Reply Br. In Supp. Of Mot. In Limine [90] at 2.) For the reasons discussed below, the Court agrees with defendants that Wong is not qualified to provide expert testimony. The Court, however, finds that Epstein is qualified to present certain expert testimony in this case.
Mr. Epstein is a forensic document examiner who served as the past president of the American Society of Questioned Document Examiners, is a registered member of the ABFDE, and has authored several authoritative texts in the field. (PSDMF [88] ¶ 1; Epstein Aff. ¶¶ 12-15.) He has a Bachelor of Science in Criminal Justice from the University of Nebraska, a Masters of Forensic Science from Antioch School of Law, successfully completed a two-year resident training program in the forensic science of Questioned Document Examination at the U.S. Army Crime Laboratory
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in Fort Gordon, Georgia, and has trained with the Post Office Identification Laboratory. (Id. 12.) Plaintiff notes that Mr. Epstein has "appeared in 200 cases over a thirty year period, having examined thousands of documents ... [, has] established questioned document laboratories for not only the U.S. government, but for those of Eastern Europe and the Philippines as well, while teaching hundreds of government document examiners their professions." (Pl's Br. In Opp. To Defs.' Mot. In Limine [87] at 8.) In addition, Epstein has taught Forensic Document Examination at the George Washington Graduate School of Forensic Sciences, the Federal Law Enforcement Training Center, and in programs offered to the United States Army Criminal Investigators. (Epstein Aff. ¶¶ 6-7.) The Court concludes that Mr. Epstein's background constitutes sufficient qualifications to allow him to testify in the field of forensic documents' examination. See, e.g., United States v. Paul, 175 F.3d at 911 (finding handwriting expert with fourteen years of experience should be admissible); United States v. Velasquez,64 F.3d 844, 846 (3rd Cir. 1995) (finding same); Unites States v. Gricco, 2002 WL 746037, *2 (E.D.Pa. April 26, 2002) (finding forensic document analyst with similar extensive qualifications to be qualified as an expert).
In stark contrast to Epstein, Wong has never taken a certification exam, completed an accreditation course in document examination, been an apprentice to an ABFDE certified document examiner, or worked in a crime lab. (Wong Dep. at 87-112.) She does, however, claim nearly ten years of experience in the field. (Pl's Br. In Opp. To Defs.' Mot. In Limine [87] at 9.) She, however, is not a member of the ABFDE, the sole recognized organization for accreditation of qualified forensic document examiners. Although she is the former vice president of the National Association of Document Examiners ("NADE"), (PSDMF 12), defendants note that this organization does not meet ABFDE certification requirements, has no permanent office and has no membership requirements other than the payment of a fee. (Defs.' Mot. In Limine [68] at 6.) Wong, herself, admits that NADE does not require specialized training or experience for its certification. (Wong Dep. at 87-89.) Finally, even Epstein, plaintiffs other expert, testified that Wong is not qualified to render opinions in this case. (Epstein Dep. at 32-33.) Accordingly, the Court concludes Ms. Wong is not qualified to provide reliable handwriting analysis in this case. Therefore, the Court GRANTS defendants' motion in limine to exclude the testimony of Ms. Wong and the Court does not consider Ms. Wong's testimony in its analysis of defendants' summary judgment motion.
D. The Reliability of Epstein's Proffered Testimony.
Although the Court has concluded, as a general matter, that Epstein is qualified to testify as a forensic documents examiner, it must still determine the parameters of his expertise with regard to the opinions he seeks to offer. Specifically, Epstein claims that he can state, with absolute certainty, that Mrs. Ramsey is the author of the Ransom Note. The Court, as gatekeeper, must therefore examine the methodology that he puts forward in support of such a categorical conclusion. First, Epstein states that he used the standard methodology of forensic document examiners when assessing the Ransom Note and Mrs. Ramsey's writing samples. (Epstein Aff. ¶ 25.) He initially determined that he had a sufficient amount of handwriting by Mrs. Ramsey to allow an examination. (Id. ¶ 26.) He then proceeded to examine the submitted materials for similarities and dissimilarities. (Id.) After conducting the examination, he then determined that
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the original writing and the exemplars matched to a "one hundred percent" degree of certainty. (Id. ¶¶ 26, 31.) Finally, he consulted other forensic document analysts who approved of his methodology and result. (Id. ¶ 32.)
Defendants move to exclude the testimony of Epstein because they assert that the methodology he employed does not meet the accepted standards of handwriting analysts. In particular, defendants argue that Epstein's opinions are not reliable because he did not consult the original Ransom Note, original handwriting exemplars of Mrs. Ramsey, nor original courseof-business writings of Mrs. Ramsey. (Defs.' Mot. In Limine [68] at 8.) Epstein acknowledges the importance of consulting original documents in an article he coauthored, appearing in the 1971 edition of Identification News, a publication of the International Association for Identification. (SMF ¶ 220; PSMF ¶ 220.) In this text, Epstein writes that:
All investigative agencies should be aware of the limitations that are imposed upon the Questioned Document Examiner by the submission of copies (Xerox, Photo, or Thermofax) in place of the original. By having to use the copies, the examiner is being deprived of one of the most important elements of scientific examination, the study of line quality of the writing. Those breaks, pressure areas, and even spacing, can often be attributed to the mechanical method of reproduction and not to the actual writing itself. A qualified conclusion based on examination of only copies is not rare. ATTEMPT TO OBTAIN THE ORIGINALS WHENEVER POSSIBLE.
(SMF ¶ 129; Hans M. Gideon & Gideon Epstein, "The Obtaining of Proper Handwriting Exemplars and Standards," emphasis in original, Ex. A to Jordan Aff., Tab. 23.) The parties also agree that mechanical copying may distort the writings or eliminate subtleties, such as pen lifts, hesitations, pressure or "feathering." (SMF ¶ 222; PSMF ¶ 222.) Notwithstanding his previous warnings about the use of copies, Epstein testified in this case that copies produced today are of a higher quality than those generated at the time the article was produced and, therefore, some of the concerns expressed in the article have been mitigated. He still agreed, however, that it is optimum to review the original. (PSMF ¶ 219.)
It is undisputed that a number of subtle and critical handprinting features observable on examination of the original Ransom Note cannot be observed from an examination of a machine copy of the Ransom Note. (SMF ¶ 245; PSMF ¶ 245.) Plaintiffs experts, however, were not afforded the opportunity to consult the original Ransom Note, original exemplars, or the course-of-business writings of Mrs. Ramsey. Defendants refused to provide original exemplars, despite plaintiffs discovery requests.25 (Pl's Br. In Opp. To Defs.' Mot. In Limine [87] at 20.) The Court concludes that any reliability concerns stemming from Epstein's failure to consult the originals should go to the weight of his testimony, but should not bar its admission, completely. To hold otherwise could create a perverse incentive for individuals not to allow an opponent access to original documents, in order to render those expert's opinion inadmissible.
In short, the Court is satisfied as to Epstein's ability to testify concerning perceived similarities and differences in Mrs. Ramsey's known handwriting and the Ransom Note. Any criticism of Epstein's analysis by defendants goes to the weight of
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his testimony. Of more concern to the Court, however, is the reliability of Epstein's ultimate conclusion concerning the identity of the writer of the Note. As noted, Epstein claims that he is "100 percent certain that Patsy Ramsey wrote the [R]anson [N]ote," and in his professional opinion "there is absolutely no doubt she is the author." (P)'s Stmt. Of Disp. Mat. Facts [88] ¶ 1.) (emphasis added)
Nowhere in the submissions provided by plaintiffs is there any attempt to show by what methodology Mr. Epstein reaches a conclusion of absolute certainty that a given person is, in fact, the writer of a questioned document.26 Defendants persuasively argue that Epstein was unable to identify any unique characteristics of Mrs. Ramsey's handwriting that were mimicked in the Ransom Note. (Def.'s Mtn. in Lim. [68] at 9). Instead, Epstein bases his conclusion on perceived similarities between the two. Id. Yet, as noted by defendants, Epstein never indicates how many similarities or what kind of similarities are required before he can reach absolute certainty, 50% certainty, or no certainty, at all. Further, as defendants also note, whenever encountering any differences between the known writing of Mrs. Ramsey and the Ransom Note, Epstein finds refuge in the explanation that Mrs. Ramsey must have been trying to disguise her handwriting. (See Id.) While it is, of course, possible that differences between known writing and questioned documents are the result of a known writer's efforts to disguise her handwriting, it is just as plausible that the differences can occur because the known writer is not the author of the questioned matter. On that issue, Epstein offers no hint of the methodology that he employs to distinguish between disguised writing and writing that is simply being provided by two different people.
The underlying notion behind Daubert, and all good science, is that a given premise or principle should be capable of being tested to determine whether the principle is, in fact, sound. Thus, if Epstein indicated, for example, that whenever a writer of known material has x number of similarities, there is a given probability that the writer wrote the note—and if this methodology had been tested by reliable means in the past—then Epstein would have shown reliability in the methodology that he used to reach a determination of the likelihood of his conclusion. As it is, however, Epstein's explanation for his conclusion seems to be little more than "Trust me; I'm an expert." Daubert case law has indicated that such an assertion, which seems to be based more on intuition than on scientific reasoning, is insufficient.
Accordingly, the Court concludes that while Epstein can properly assist the trier of fact by pointing out marked differences and unusual similarities between Mrs. Ramsey's writing and the Ransom Note, he has not demonstrated a methodology whereby he can draw a conclusion, to an absolute certainty, that a given writer
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wrote the Note.27 Such a holding is consistent with numerous other districts that have allowed a qualified handwriting expert to testify as to the "similarities" between a challenged document and a known exemplar, but have not allowed the expert to express his ultimate "opinion" on the matter. See, e.g., United States v. Van Wyk,83 F.Supp.2d 515, 524 (D.N.J.2000) (allowing an expert to testify about "the specific similarities and idiosyncrasies between the known writings and the questioned writings, as well as testimony regarding, for example, how frequently or infrequently in his experience, he has seen a particular idiosyncrasy."); United States v. Rutherford,104 F.Supp.2d 1190, 1194 (D.Neb.2000) (limiting a forensic document examiner's testimony to "identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents."); United States v. Hines,55 F.Supp.2d 62, 68 (D.Mass.1999) (permitting forensic examiner to testify about unique features common or absent in the writings). But see United States v. Lewis,220 F.Supp.2d 548, 552 (S.D.W.Va. 2002) (finding that proponent of forensic document expert had failed to establish testimony's reliability); United States v. Saelee,162 F.Supp.2d 1097,1106 (D.Alaska 2001) (excluding handwriting expert testimony in its entirety as inherently unreliable). Therefore, Defendants' Motion in Limine to Exclude the Testimony of Mr. Epstein is GRANTED, IN PART, AND DENIED, IN PART.

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