Regulation College responds to the stress of the season with pie
One thing I know about 2020 is that you need to be in a good mood to survive. And it looks like Dean Stephen Mazza of the University of Kansas School of Law would agree with me.
He wrote an ironic article about a delicious vacation treat, pecan pie. It addresses the burning (pun intended) question of the extra crispy crusts and filling mud that plague bakers and poke fun at jurisprudence. Seriously, if you’re a legal nerd with a cute tooth, this is a must read.
It was published in the “first – and perhaps only – issue of the Kansas Journal of Confections & Winter Pastries”. Which, if it were real, I would definitely subscribe to.
The article deals with the topic of baking – who hasn’t fought the precarious struggle to cook the filling all the way through and avoid burned crusts? And the article is filled with legal definitions and quotes to keep the blue booker in us all going.
To get a feel for what we are talking about, see footnote 2:
No assurance is made that the recipe described in this piece is superior to any other pecan pie recipe. The piece instead focuses on procedural issues related to making the cake. Even so, there is evidence to support the conclusion that the cake ranks at least a very high rank when compared to pecan tarts that have been advocated by others. A recent example is illustrative. The author prepared a pecan pie according to the instructions in this article and gave it to Dr. Barbara A. Bichelmeyer, currently Provost at the University of Kansas and former employee of Tippin’s Pies. The Provost replied with a thank you card: “This is one of the best cakes I’ve ever had.” Letter from Barbara Bichelmeyer to Stephen Mazza (December 1, 2020) (deposited with the author). Shortly afterwards, the Provost’s colleague, Linda Luckey, emailed the author with the words: “[the Provost] said it was the best cake she’s ever had – more than once, so know she really, really liked it. “Email from Linda Luckey to Stephen Mazza (Nov 19, 2020 4:01 am CST) (on file with the author) (emphasis added).
The Provost is considered an expert on cakes. See FED. R. EVID. 702
(Set standard for expert statements). In fact, it easily passes the screening under the well-known Daubert five-factor weighing test. See Daubert v Merrell Dow Pharms., Inc., 509, US 579, 592-94 (1993) (Establishing a 5-Factor Test for Qualified Persons). The applicability of the individual factors listed depends on the nature of the problem, the particular expertise of the witness and the subject matter of the certificate offered. See Kumho Tire Co. v Carmichael, 526, US 137, 151 (1999). As the Daubert Court itself noted, the ultimate reliability test is “flexible”. Daubert, 509 US at 594. Therefore, not all five factors need to be present in every case to aid in the witness admission.
See Kumho Tire, 526 US, 151. Finally, as the Kumho Tire Court found, a court’s basic “gatekeeping responsibility” applies to the admissibility of expert opinions based on “technical” and “other expertise” such as: not just scientific expertise. I would. at 147.
This is where the Provost’s report shows her qualifications as a cake expert. See FED. R. CIV. P. 26 (a) (2) (B) (iv) (An expert’s report must contain “the qualifications of the witness, including a list of all publications written in the past 10 years”). The Provost worked for some time at Tippin’s Pies, one of the world’s leading providers of cakes. See About Us, TIPPIN’S PIES, https://tippinspies.com/about-us (regarding Tippin’s history as a leading cake company in Kansas City)
Tippin’s is “passionate about making world-class cakes” (last visited December 13, 2020). As the North Carolina Supreme Court noted, “A witness with a PhD in organic chemistry could possibly detail how flour, eggs, and sugar react at the molecular level when heated to 350 degrees, but would likely be less qualified to to testify about the proper way to bake a cake as a … baker with no formal education. “State v McGrady, 787 SE2d 1, 13 (NC 2016) (using North Carolina version of rule 702). Qualified for the same reasons she has the practical experience of the Provost as an expert in cakes. Linda Luckey’s testimony supports this expert testimony. Ms. Luckey’s email is of course permitted under the double hearsay rule. See FED. R. EVID. 805 (“Hearsay within hearsay become the rule against hearsay not excluded if any part of the combined statements meet an exception to the rule. “) According to the Federal Rule of Evidence 805 The email is acceptable if both the Provost’s testimony and Ms. Luckey’s email fall under an exception to the hearsay rule, even though it is an extrajudicial explanation offered for the veracity of the alleged matter.
Here the Provost’s statement is obviously a “present sensation” which is an exception to the general rule that excludes hearsay. See FED. R. EVID. 803 (1) (“A statement describing or explaining an event or condition made during or immediately after being observed by the applicant.”). Ms. Luckey’s email also falls neatly under the recorded reminder exception from hearsay. See FED. R. EVID. 803 (5) (“A record that: (A) concerns a matter which the witness once knew but now cannot remember well enough to testify fully and accurately; (B) was made by the witness, or assumed, when the matter was not yet closed, the memory of the witness; and (C) accurately reflects the knowledge of the witness. ”); see also EEOC v. Staffmark Inv. LLC, 67 F. Supp. 3d 885 (ND Ill. 2014) (Allowing e-mails under Fed. R. Evid. 803 (5)).
Try to provide definitive evidence of the recipe’s dominance, if
Testing on human objects would likely require testing compared to other efforts in the pecan pie area. Such tests must meet a variety of governmental requirements, including those set out in the Public Health Act. Pub. L. No. 93-348, §§ 201-215, 88 Stat. 342 (1974); 45 CFR §§ 46.101 – .409 (2020). No attempt was made to obtain the necessary permits.
If you get a kick out of it you’ll enjoy the whole article.
Kathryn Rubino is Senior Editor at Above the Law and host of The Jabot podcast. AtL tipsters are the best so please connect with her. Feel free to email her tips, questions, or comments and follow her on Twitter (@ Kathryn1).