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Dougherty v. Haag (Cal. Ct. App. - July 28, 2008)

By Shaun Martin

I can promise you this: Paul Dougherty isn't a big fan of Justice Sills. At least after this.

Dougherty is a forensics expert in firearms who was censured by the Association of Firearm and Toolmark Examiners (AFTE) for giving allegedly absurd expert testimony in a civil case. So he brings a lawsuit against the AFTE.

And not only loses in the trial court, but gets absolutely slammed by the Court of Appeal.

It's bad enough that Justice Sills only deems Dougherty's arguments worthy of response in repeated parentheticals. For example, take a gander at the following "sentence" -- and I use that term loosely, given its seemingly intentionally run-on nature -- by Justice Sills:

"Dougherty complains that he was denied the right to have counsel of his own choosing (but only because he chose counsel who could not make a hard-to-schedule board meeting); the board went forward with the ethics committee?s ?vague and conclusory report? (which is still clear enough to give anyone who reads it a good understanding of the three major items that cast doubt on Dougherty?s double ricochet thesis); he couldn?t ?question his accuser? (the case did not turn on Haag as percipient witness); the board didn?t give him a chance to voir dire the board for conflicts of interest (AFTE is a private organization whose board was chosen independently of this disciplinary matter); the board shifted the burden of proof to him (which is not a valid inference from the fact that he was invited to defend himself, but even if so, a prima facie case had already been made); the board voted only once on all ten accusations (so?); the board failed to issue its own report substantiating each charge with ?clear and convincing evidence? (so?); the board allowed Haag to respond to the Nixon Report (the Nixon report was new, Haag?s rebuttal was new, so both were made available to the membership)."

Doesn't give you a sense that Justice Sills is really in love with the arguments that Doughtery and his counsel are making, eh?

But it gets worse. Take a look at the last paragraph of the opinion. And feel the pain:

"Stepping back from this appeal, however, there is something very heartening about this case: A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous -- roughly the equivalent of saying that a shotgun can shoot at a right angle. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn?t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they didn?t deserve a lawsuit, they deserve a medal."

Come on, Justice Sills. Don't hold back. Tell us what you really think. :-)

Full post as published by California Appellate Report on July 31, 2008 (boomark / email).