For The Defense, November 2012 - DRI Today

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