April 20, 2019

Archives for February 25, 2014

Mental Health Experts and the Look of Science

Dr-JohnBy John A. Zervopoulos, Ph.D., J.D., ABPP

Do you know what science looks like?—a key Daubert/Shreck-era question for mental health experts. Statistics? Publications? A body of facts? Don’t view these badges as proofs of science. Instead, step back and view science as a mindset, a way of doing critical thinking—how one assesses which ideas are reasonable and which are not. A basic question highlights the scientific inquiry: “How do you know what you say you know?”

Too often we mistakenly accept imposters of science. Daubert caselaw, addressing this problem, stresses that courts must look past the badges of science to determine whether to trust the expert’s testimony. For example, pronouncements from experts with sterling qualifications don’t by themselves certify the testimony as trustworthy. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999). Publication—one element of peer review—is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). General acceptance does not help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology. Kumho Tire Co., 526 U.S. at 151.

The late physicist Richard Feynman told a classic tale, Cargo Cult Science, to analogize how some people use the look of science to try to emulate real science. He described a group of South Sea people who had seen airplanes deliver cargos of goods and materials to their islands during World War II. After the War, these islanders wanted the imports to continue—but the pilots had gone home. So, the islanders set out to re-create the setting: They made runways; a hut for a man, the controller, to sit in; two bamboo pieces as antennae for the man to strap to his head. Then everyone waited for airplanes to land. The islanders, from their view, did everything right. The form seemed perfect, but no airplanes landed. The islanders were missing something essential.

Feynman’s point—and Daubert’s: Mental health experts, like the islanders, sometimes highlight badges of science to prove their testimony but neglect to exercise the essential critical thinking that science and caselaw require. Ask, “How do you know what you say you know?”—repeatedly, if necessary—to expose the bases of mental health testimony. Cargo cult science or critical thinking-based science?

John A. Zervopoulos, Ph.D., J.D., ABPP is a forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service providing consultation to lawyers on psychology-related issues, materials, and testimony. His second book, How to Examine Mental Health Experts: A Family Lawyer’s Guide to Issues and Strategies, is newly published by the American Bar Assn. He is online at www.psychologylawpartners.com and can be contacted at 972-458-8007 or at jzerv@psychologylawpartners.com.


CLE Program: How to Examine Mental Health Experts: A Practical Plan

This CLE presentation will take place on March 6, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

e-Legislative Report: February 24, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative se ssion. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

Action taken at Feb. 21 LPC meeting:

  • The Committee voted to support HB 14-1073. Concerning the recording of legal documents.
  • The Committee voted to oppose HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. A bill summary is below.
  • The Committee voted to oppose HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties.

At the Capitol—Week of Feb. 17

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 17

Passed 3rd Reading:

  • SB 14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return. Vote: 37 yes, 26 no and 2 excused.
  • HB 14-1117. Concerning the creation of the Colorado premature birth commission. Vote: 50 yes, 13, no and 2 excused.
  • HB 14-1060. Concerning the authority of a municipality to compensate members of a municipal planning commission. Vote: 41 yes, 22 no, and 2 excused.
  • HB 14-1166. Concerning the renewal of concealed handgun permits by Colorado county sheriffs. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-25. Concerning grants for domestic wastewater treatment works for small communities. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1132. Concerning the ability of a local government to establish the hours during which alcohol beverages may be sold for consumption on a licensed premises. At the request of the sponsor the bill was defeated. Vote: 3 yes, 60 no, and 2 excused.
  • HB 14-1125. Concerning the circumstances under which a unit owners’ association may disclose contact information for members and residents under the “Colorado Common Interest Ownership Act.” Vote: 63 yes, 0 no, and 2 excused.

Tuesday, Feb. 18

Passed 3rd Reading:

  • HB 14-1080. Concerning a sales and use tax exemption for the Colorado Ute Indians. Vote: 63 yes, 0 no, and 1 excused.
  • HB 14-1040. Concerning criminal provisions relating to drug testing. Vote: 58 yes, 5 no, and 1 excused.
  • HB 14-1174. Concerning the sunset review of the natural areas council. Vote: 54 yes, 10 no, 1 excused.
  • HB 14-1107. Concerning the authority of the department of revenue to offer taxpayers the option to receive electronic notices. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1183. Concerning the reinstatement of the authority for active military personnel to practice professionally. Vote: 53 yes, 10 no, and 2 excused.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • HB 14-1177. Concerning requirements governing meetings of the boards of county commissioners of the larger counties. Vote: 65 yes and 0 no.
  • HB 14-1194. Concerning the recreation of the legislative digital policy advisory committee. Vote: 64 yes and 1 no.
  • HB 14-1121. Concerning notice requirements for county highway contract bid solicitations, and, in connection therewith, increasing the threshold value of a contract for which a county must advertise in a newspaper in the county or post notice in the county courthouse from five thousand dollars to the amount at which a contract requires a contractor’s bond. Vote: 40 yes and 25 no.
  • HB 14-1215. Concerning the ability of a federal home loan bank to enforce its rights with regard to collateral subject to a security agreement. Vote: 65 yes and 0 no.
  • HB 14-1126. Concerning the requirement to include notification to a patient regarding the patient’s breast tissue classification with the required mammography report. Vote: 52 yes and 13 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • HB 14-1172. Concerning exempting certain public safety departments from certain statutory requirements related to the impact of a criminal conviction on state employment opportunities. Vote: 65 yes and 0 no.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1229. Concerning authorizing sharing information between state and local government agencies related to legal marijuana. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-47. Concerning the payment of death benefits for seasonal wildland firefighters killed in the line of duty. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1224. Concerning a set aside goal in state procurement for service-disabled veteran owned small businesses. Vote: 56 yes, 7 no, and 2 excused.

In the Senate

Monday, Feb. 17

Passed on 3rd Reading:

  • SB 14-132. Concerning the repeal of the requirement that a soldier be killed while deployed to a combat zone to issue a fallen soldier license plate. Vote: 35 yes and 0 no.
  • HB 14-1081. Concerning the motor carrier safety fund, and, in connection therewith, creating the fund, transferring money from the hazardous materials safety fund to the motor carrier safety fund, and specifying that any excess uncommitted reserves in the public utilities commission motor carrier fund be transferred to the motor carrier safety fund. Vote: 35 yes and 0 no.
  • Upon a motion for reconsideration, HB 14-1031. Concerning the weight of motor vehicles that are subject to rate regulation when being towed without the owner’s consent. Vote: 29 yes and 6 no.
  • SB 14-138. Concerning civil immunity for community volunteers assisting at an emergency. Vote: 35 yes and no.
  • HB 14-1004. Concerning emergency management, and, in connection therewith, eliminating and reorganizing two entities within the division of homeland security and emergency management in the department of public safety and authorizing the governor to provide individual assistance during a disaster absent a presidential declaration of the same. Vote: 35 yes and 0 no.

Tuesday, Feb. 18

Passed on 3rd Reading:

  • SB 14-126. Concerning the reclassification of the state lottery division as a type 1 agency. Vote: 28 yes and 7 no.
  • SB 14-101. Concerning establishment of the unauthorized use of certain veterinary technician titles as a deceptive trade practice under the “Colorado Consumer Protection Act.” Vote: 18 yes and 17 no.
  • SB 14-137. Concerning certification of workers’ compensation insurance forms. Vote: 34 yes and 1 no.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • SB 14-97. Concerning the immunity of public agencies against liability arising from the wildfire mitigation activities of insurance companies. Vote: 35 yes 0 no.
  • SB 14-121. Concerning financial assistance for local governments after a declared disaster emergency. Vote: 35 yes and 0 no.
  • SB 14-103. Concerning the phase-out of the sale of certain low-efficiency plumbing fixtures. Vote: 19 yes and 16 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • SB 14-43. Concerning the inclusion of certain land areas used to grow products that originate above the ground within the classification of “all other agricultural property” for property tax purposes. Vote: 34 yes and 0 no.
  • SB 14-135. Concerning the repeal of certain provisions concerning the purchasing of firearms in states that are contiguous to Colorado. Vote: 34 yes, 0 no, and 1 excused.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1086. Concerning a requirement that a legal notice published in a newspaper is also published on a statewide web site maintained by a majority of Colorado newspapers. Vote: 30 yes and 5 no.
  • HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment. Vote: 35 yes and 0 no.

Stay tuned for 10 bills of interest.