For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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eliability, whether a cause and effect relationship<br />
exists between an exposure and an<br />
alleged injury, generally accepted scientific<br />
thresholds established by epidemiological<br />
studies that can meet the preponderance<br />
of the evidence standard required to establish<br />
causation and from which an expert<br />
can reliably infer a relationship between<br />
the dose that a plaintiff experienced and an<br />
alleged injury, insufficiently alleged causal<br />
connections, and how defense counsel and<br />
courts should use these concepts for evidence<br />
and expert testimony admissibility<br />
purposes.<br />
In Through the Out Door<br />
Federal Rule of Evidence 702, which governs<br />
the admission of expert testimony in<br />
the federal courts, states:<br />
If scientific, technical or other specialized<br />
knowledge will assist the trier of<br />
fact to understand the evidence or to<br />
determine a fact in issue, a witness qualified<br />
as an expert by knowledge, skill,<br />
experience, training, or education, may<br />
testify thereto in the form of opinion or<br />
otherwise, if (1) the testimony is based<br />
upon sufficient facts or data, (2) the testimony<br />
is the product of reliable principles<br />
and methods, and (3) the witness<br />
has applied the principles and methods<br />
reliably to the facts of the case.<br />
Fed. R. Evid. 702.<br />
A rule 702 determination is a question<br />
of law for a court. Thus, when a party seeks<br />
to admit expert testimony, a court should<br />
make an initial determination during a<br />
preliminary hearing under Federal Rule<br />
of Evidence 104(a) that the requirements<br />
of rule 702 have been met. In Daubert, the<br />
Supreme Court held that Federal Rule of<br />
Evidence 702 imposes a special obligation<br />
on a trial judge to “ensure that any and all<br />
scientific testimony or evidence admitted<br />
is not only relevant, but reliable.” Daubert<br />
v. Merrell Dow Pharmaceuticals, 509 U.S.<br />
579, 589 (1993).<br />
In Daubert, the Supreme Court offered<br />
judges some guidelines regarding the<br />
admissibility of scientific evidence and<br />
then commented and expounded on that<br />
framework and those guidelines in General<br />
Electric Co. v. Joiner, 522 U.S. 136 (1997). As<br />
others have mentioned elsewhere numerous<br />
times, the Daubert factors are not an<br />
exhaustive list of criteria that courts must<br />
strictly apply to all evidence to determine<br />
admissibility, but rather the Court articulated<br />
a flexible standard for determining<br />
the admissibility of scientific opinions to<br />
ensure that expert scientific opinions are<br />
grounded in a reliable methodology before<br />
courts admit the opinions. This “flexible<br />
Daubert inquiry gives the [trial judge] the<br />
discretion needed to ensure that the courtroom<br />
door remains closed to junk science<br />
while admitting reliable expert testimony<br />
that will assist the trier of fact.” Amorgianos<br />
v. National Railroad Passenger Corp.,<br />
303 F.3d 256, 267 (2d Cir. 2002). Daubert<br />
and its progeny have acquired a reputation<br />
as a cure for the erroneous admission<br />
of junk science, or at least as a shield<br />
against it, and these cases impose a high<br />
standard on plaintiffs seeking to admit<br />
such opinions, one of the cornerstones<br />
of which is reliability. A judge acting as a<br />
gatekeeper should apply Daubert and other<br />
evidentiary standards that require indicia<br />
of reliability before admitting an opinion<br />
to ensure that a jury hears only opinion<br />
testimony that actually constitutes “scientific<br />
evidence.” And in presiding over<br />
the reliability inquiry, a judge needs “to<br />
make certain that an expert… employs in<br />
the courtroom the same level of intellectual<br />
rigor that characterizes the practice<br />
of an expert in the relevant field.” Kumho<br />
Tire Co. v. Carmichael, 526 U.S. 137, 149–<br />
50 (1999).<br />
Daubert held that a trial judge is<br />
required to conduct a “preliminary assessment<br />
of whether the reasoning or methodology<br />
underlying the [expert] testimony<br />
is scientifically valid and of whether that<br />
reasoning or methodology properly can<br />
be applied to the facts in issue.” Furthermore,<br />
“[b]y holding that the admissibility<br />
of scientific testimony is governed by Rule<br />
104(a), Daubert clearly holds that the party<br />
seeking admissibility must make out more<br />
than a prima facie case of reliability.” In re<br />
Paoli R.R. Yard PCB Litigation, 35 F.3d 717,<br />
744, n.9 (3d Cir. 1994). And the party proffering<br />
the expert testimony has the burden<br />
of demonstrating “that the expert’s<br />
findings and conclusions are based on the<br />
scientific method, and, therefore, are reliable.”<br />
Moore v. Ashland Chem., Inc., 151<br />
F.3d 269, 276 (5th Cir. 1998) (en banc).<br />
Daubert requires a reliable expert opinion<br />
but not necessarily a correct opinion. This<br />
Courts have broadly<br />
recognized epidemiology as<br />
invaluable to determining<br />
that a cause and effect<br />
relationship existed and<br />
specifically caused a<br />
disease experienced by<br />
a particular plaintiff.<br />
reliability inquiry “requires some objective,<br />
independent validation of the expert’s<br />
methodology. <strong>The</strong> expert’s assurances that<br />
he has utilized generally accepted scientific<br />
methodology is insufficient.” Id. (citing<br />
Daubert v. Merrell Dow Pharmaceuticals,<br />
Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (on<br />
remand)). And in undertaking the reliability<br />
inquiry, it is the district court’s responsibility<br />
“to make certain that an expert…<br />
employs in the courtroom the same level<br />
of intellectual rigor that characterizes the<br />
practice of an expert in the relevant field.”<br />
Kumho Tire Co. v. Carmichael, 526 U.S. 137,<br />
149–50 (1999).<br />
As the Supreme Court wrote in Daubert,<br />
“to qualify as ‘scientific knowledge,’ an<br />
inference or assertion must be derived by<br />
the scientific method. Proposed testimony<br />
must be supported by appropriate validation—i.e.,<br />
‘good grounds,’ based on what<br />
is known. In short, the requirement that<br />
an expert’s testimony pertain to ‘scientific<br />
knowledge’ establishes a standard of evidentiary<br />
reliability.” Daubert, 509 U.S. at<br />
590. This means that a court must make<br />
“a preliminary assessment of whether the<br />
reasoning or methodology underlying<br />
the testimony is scientifically valid and<br />
of whether that reasoning or methodology<br />
properly can be applied to the facts in<br />
issue.” Id. at 592–93. In re Paoli noted that<br />
(1) the “proffered” witness must be a qualified<br />
expert; (2) the expert must testify<br />
about matters requiring scientific, technical,<br />
or specialized knowledge; and (3) the<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 67