UNDERSTANDING DAUBERT

1. UNDERSTANDING DAUBERT Mary A. Wells Wells, Anderson & Race, LLC 1700 Broadway, Suite 1020 Denver, CO 80290

2. Preliminary questions concerning the qualification of a person to be a witness�.or the admissibility of evidence shall be determined by the court.

3. �Relevant evidence� means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

5. � certain circumstances call for the exclusion of evidence which is of unquestioned relevance�.Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from it�s admission. - Advisory Committee Notes ADVISORY COMMITTEE NOTESADVISORY COMMITTEE NOTES

6. If the expert�s scientific testimony is not reliable, it is not evidence. Expert Testimony is not admissible evidence unless it will �assist the jury in deciding a fact in issue� - Merrill Dow Pharm. Inc. v. Havner, 953 S.W. 2d at 706,713, (Texas 1997)

7. Experts are perceived as �unbridled authority figure[s].� �Ostensibly scientific testimony may sway a jury even when as science it is palpably wrong.� - E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 558 (Texas 1995)

8. Not even Nobel laureates are permitted to base a scientific conclusion on an educated guess�.These stringent standards serve a purpose. In science as in all walks of life, it�s not easy to know when you have leapt to an unjustified conclusion or simply made a mistake. Sometimes very successful scientists, perhaps even more so than novices, come to believe they are more or less infallible. - Angell, M. , Science on Trial (1997), p94

9. A Court�s emphasis on the qualifications of expert witnesses is very different from standards of science, in which ad hominem considerations are minimized. Scientists are trained to look at the strength of the data, not the credentials of the research. - Amici Brief of New England Journal of Medicine and Marcia Angell, Gen. Elec.v. Joiner, 522 US 136 (1997)

10. A person with a degree should not be allowed to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system. - E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 558 (Texas 1995)

12. �The plaintiff with the burden of proof on causation will lose permanently if he or she cannot produce adequate proof of causation by the time the court is ready to rule on a Daubert Motion.� - Margaret Berger, Upsetting the Balance Between Adverse Interest (2001) �[T]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.� - Rosen v. Ciba Geigy Corp., (7th Cir. 1996) 78 F.3d 316, 319

13. It is often said that because science progresses slowly and tentatively and a lawsuit must be settled relatively quickly and definitively, we are justified in rushing the answer somewhat in the courtroom. �.In science, the burden of proof is on those who assert a link between an exposures and a disease. The burden is the same in the courtroom: the plaintiff must show that the exposure was more likely than not the cause of the harm. (In epidemiology, that translates to a relative risk of more than 2.0) - Amici Brief of New England Journal of Medicine and Marcia Angell, Gen. Elec. v. Joiner, S22 US 136 (1997)

14. 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 an opinion or otherwise, if�.

15. 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

16. The most important feature of scientific research is its dependence on objective evidence. No scientific conclusion can be accepted without evidence. This is perhaps the only feature of science that is absolute. - Amici Brief of New England Journal of Medicine and Marcia Angell, Gen. Elec.v. Joiner, 522 US 136 (1997)

17. Courts should focus on determining whether the expert engaged in recognized forms of scientific practice in reaching his or her conclusion. Of central importance is whether the expert adhered to generally recognized forms of scientific inquiry. - Amicus Brief � Carnegie Commission on Science, Technology and Government, in Daubert

18. Perhaps the most important hallmark of science is its complete reliance on objectively verifiable evidence. That usually means that something must be counted or measured. The reliance on concrete evidence distinguishes science from all other human endeavors. Medical conclusions are not different from other scientific matters, because the human body is a part of nature. - Amici Brief of New England Journal of Medicine and Marcia Angell, Gen. Elec.v. Joiner, 522 US 136 (1997)

19. Rule 702: �.if (1) the testimony is based upon sufficient facts or data

22. If data have been cooked and the results plausible, there is no way Peer Review can catch the fraud Arnold Relman, M.D., editor � New England Journal of Medicine May 16, 1989 June 9, 1983

23. Scientists proceed by formulating hypotheses that they then test. Rigor in the testing of hypotheses is the heart of science. - Amicus Brief � Carnegie Commission on Science, Technology and Government, in Daubert

24. An opinion that purports to answer a scientific question without having engaged in an appropriate scientific inquiry is incapable of providing a systematic explanation that satisfies our demand for rational proof. - Amicus Brief � Carnegie Commission on Science, Technology and Government, in Daubert

25. Admission of reliable evidence only Exclusion of testimony based upon ipse dixit of the expert