Ouch! Judge Posner eviscerates both a damages expert and the trial judge who let him testify against FedEx

An appeals court has overturned a $66 million jury verdict against Federal Express for breach of contract. Its principal reason was that that the alleged contract, wasn’t. But the appeals court didn’t stop there: In an opinion by Judge Richard Posner, himself a renowned legal-economics scholar, the court categorically rejected the testimony of the plaintiff’s damages expert, one Lawrence D. Morriss — and, between the lines, excoriated the trial judge for allowing Morriss to testify at all. After methodically explaining why it regarded Morriss’s testimony as worthless, and why the trial judge should have caught the problems himself, the court acidly summarized:

This is not nitpicking. Morriss’s regression [analysis] had as many bloody wounds as Julius Caesar when he was stabbed 23 times by the Roman Senators led by Brutus.

We have gone on at such length about the deficiencies of the regression analysis in order to remind district judges that, painful as it may be, it is their responsibility to screen expert testimony, however technical; we have suggested aids to the discharge of that responsibility.

The re­spon­si­bil­ity is especially great in a jury trial, since jurors on average have an even lower comfort level with technical evidence than judges.

The examination and cross-examination of Morriss were perfunctory and must have struck most, maybe all, of the jurors as gibberish.

It became apparent at the oral argument of the appeal that even ATA’s lawyer did not understand Morriss’s analysis; he could not answer our questions about it but could only refer us to Morriss’s testimony.

And like ATA’s lawyer, FedEx’s lawyer, both at the trial and in his appellate briefs and at argument, could only parrot his expert. … it is no surprise that, having decided that ATA should win, the jury simply awarded the exact figure that ATA had asked for in damages.

If a party’s lawyer cannot understand the testimony of the party’s own expert, the testimony should be withheld from the jury.

Evidence unintelligible to the trier or triers of fact has no place in a trial.

ATA Airlines, Inc. v. Federal Express Corp., No. 11-1382 (7th Cir. Dec. 27, 2011) (Pos­ner, J.) (reversing denial of judgment as a matter of law and remanding with instructions to dismiss plaintiff’s case with prejudice) (extra paragraphing added).

As if that weren’t enough of a rebuke to the trial judge, the other judges on the panel were Chief Judge Frank Easterbrook, himself a noted authority on legal economics, and Judge Diane Wood, who was recently short-listed for the Supreme Court vacancy that ended up going to now-Justice Elena Kagan.

This one is going to be quoted in law-school remedies classes, and cited by defense counsel, for a long time.