Unanswered Questions About Plain Error And Expert Testimony

Tenth Circuit considers plain error review of expert testimony; in trial for unlawfully prescribing controlled substances resulting in death, there was no trial objection to the toxicologist expert testimony on the cause of victim's death; whether the defendant's "burden" here was to demonstrate plain error, or only to "provide us the facts on which we could find plain error," the trial record failed to show the toxicologist "lacked necessary training and experience to provide testimony on relationship between drugs ... and [the] patient's death," in United States v. MacKay, __ F.3d __ (10th Cir. April 30, 2013) (No. 12–4001)

Recent cases have noted the need to create a trial record to preserve appellate review of a challenge to expert testimony. See, e.g., Failing To Preserve Challenge To Lost Profits Expert Testimony On Appeal.

The failure to raise a contemporaneous objection may result in plain error review. The plain error rule, FRE 103(e), is straightforward and is replicated by Fed. R. Crim. P. 52(b). At least for criminal cases, the rule directs that regardless of whether an error was preserved, the circuit has the discretion to review an evidentiary decision for "plain error" - one that "affects substantial rights,” even if that error was “not brought” to the district court's “attention.” Fed. R. Crim. P. 52(b). As recently noted by the Supreme Court, the plain error doctrine allows an appellate court, in its discretion, to correct an error even if it was not raised at trial, provided the appellant shows that (1) there is an error; (2) the error is clear or obvious; (3) the error affected the appellant's substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Marcus, 560 U.S. 258 (2010) (finding that Second Circuit's application of plain error rule was inconsistent with the third and fourth preconditions). The Tenth Circuit considered a case last month that referred to some complications that can arise in applying the doctrine of plain error here.

In the case, defendant MacKay was a doctor who, after shifting his practice to pain management, "prescribed [for] his patients opioids, such as oxycodone and hydrocodone" which "are regulated by the Controlled Substances Act." 21 U.S.C. § 841(a)(1). He was charged with violating the act in a multi-count indictment, which including at least one victim who "died of drug toxicity because of the presence of various controlled substances" the defendant had prescribed for him. One of the government witnesses on this count (Dr. Hail) testified as an toxicologist expert witness. He had "reviewed the [victim's] autopsy report and testified that [the victim] died of drug toxicity because of the presence of hydrocodone, oxycodone, and Valium [which the defendant had prescribed]. Dr. Hall excluded pneumonia as an immediate cause of death," providing testimony directly contradicting that of the defense expert, who opined that the victim had "died from a severe case of undiagnosed pneumonia" and not from the drugs prescribed by the defendant. MacKay, __ F.3d at __.

At trial, the defendant failed to challenge the qualifications of the toxicologist as an expert witness. The government's cross-examination of the toxicologist also did not implicate the witness's qualifications, methodology, or reliability to opine on the cause of death. While the defendant's questions were generally critical of the witness's opinions and their derivation, the defendant did not challenge the witness's expertise, but seemed to focus on the witness's conclusions. The circuit concluded from this and from the trial record that the defendant "did not object to [toxicologic expert] Hail's testimony" -- at least not "for the reasons he articulates on appeal." The circuit therefore concluded that the defendant had forfeited any claims he might have that plain error occurred, including any objection to the expert witness's qualifications. But even had it not been forfeited, the circuit noted that application of the plain error rule could be problematic and that it could lead the parties to a "quagmire." According to the circut:

Our case law routinely reviews these forfeited claims for plain error. But we also know that we do not craft plain error arguments for appellants on appeal. We easily identify the quagmire [for the defendant]: What is the extent of an appellant's [defendant's] burden to demonstrate plain error? Need he only provide us the facts on which we could find plain error or does he need to provide us an argument incorporating the correct legal standard? These are certainly interesting questions, but this case is not the proper vehicle to decide the issue. For in this case, the district court's decision to qualify Hail as an expert and allow the jury to consider her testimony does not rise to plain error.

Furthermore, because Defendant did not object to Hail's methodology or qualifications, the district court was not required to make explicit findings. “So we are left to look only for some obvious error in the court's implicit finding that [Hail's] methods were reliable” and Hail was qualified to testify as an expert. The district court heard Hail testify she is board certified in toxicology, a lecturer to residents, medical students, and pharmacologists doing a rotation in medical toxicology, and an author of articles in textbooks. Hail testified toxicology is the study of poisons and that as a toxicologist, she treats overdoses and directs other doctors on how to manage overdoses. Hail admitted she was not a pathologist, which is why she did not review the autopsy slides. Instead, she offered an opinion on the drugs in [victim] Wirick's system. Nothing in the record indicated Hail lacked the necessary training and experience to provide testimony on the relationship between drugs or poisons and Wirick's death. The district court did not plainly err in its implicit determination that Hail's testimony was based on “reliable principles and methods” that were “reliably applied.”
MacKay, __ F.3d at __ (citing United States v. Avitia–Guillen, 680 F.3d 1253, 1256 (10th Cir. 2012); United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012)).

The circuit's note of the "quagmire" that could involve application of the plain error standard may seem a bit cryptic. But its context becomes a bit clearer when considered with a discussion the circuit placed in a footnote, commenting on application of the plain error standard to another issue the defendant failed to successfully address. This involved the trial judge's admission of the autopsy report on the victim by the medical examiner. The circuit concluded that while a possible Crawford violation might have occurred, it none the less was harmless error as even without the autopsy report the jury would find the defendant guilty -- that is any error was harmless:

But at what point on appeal must an appellant argue for plain error and its application? Fortunately we need not decide that issue today. This is because, even if we assume that error in fact occurred, Defendant cannot demonstrate that the error affected his substantial rights. [United States v.] Cooper, 654 F.3d [1104,] 1117 [(10th Cir. 2011)] (explaining the burden is on the appellant to demonstrate an error, that is plain, affects his substantial rights, and justice requires the error to be corrected). Without the admission of the autopsy report, the jury still had sufficient evidence to find Defendant guilty on both counts 1 and 2 because of Hail's testimony.
MacKay, __ F.3d at __

The circuit footnoted this observation with the following explanation:

Because the Government forcefully asserts so many of Defendant's claims cannot be heard on appeal, we note that Lamirand and Richison do not appear to be inconsistent with our lengthy history of reviewing forfeited claims for plain error. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Rather than creating a new procedural rule, these cases reenforced the principle that an appellant carries the heavy burden of satisfying plain error. United States v. LaHue, 261 F.3d 993, 1009 (10th Cir. 2001). And if an appellant fails to satisfy that burden, we do not develop a plain error argument for the appellant. United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012). This is entirely consistent with our case precedent and Federal Rule of Criminal Procedure 52(b), which allows us to consider a plain error even though it was not brought to the district court's attention. But is the adversely affected party heard and the adversarial process served when we allow a plain error argument for the first time in the reply brief? That the appellee has the opportunity to provide why the appellant's alleged error is not plain in its response brief may suffice. The appellant may then argue in his reply brief why the error is in fact plain. An appellant certainly would benefit from a more developed argument if he acknowledged forfeiture in his opening brief, but we do not discount the possibility that we may consider a plain error argument made for the first time in an appellant's reply brief.
MacKay, __ F.3d at __

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