Daubert opinion requires judges to screen scientific evidence

Pediatrics

Volumn 118, Issue 5, 2006, Pages 2192-2194

  Sartore, John T ^a   Van Doren, Rebecca ^a,b  

^a Paul Frank + Collins PC   (United States)

^b Box 1307 ^*  (United States)

Author keywords

Legal issues

Indexed keywords

EVIDENCE BASED MEDICINE; EXPERT WITNESS; HEALTH CARE PERSONNEL; HUMAN; MALPRACTICE; PRIORITY JOURNAL; RISK ASSESSMENT; SCREENING; SHORT SURVEY; ARTICLE; LEGAL ASPECT; PEDIATRICS; RISK; UNITED STATES;

EXPERT TESTIMONY; MALPRACTICE; PEDIATRICS; RISK; UNITED STATES;

EID: 33750954220     PISSN: 00314005     EISSN: 02105721     Source Type: Journal    
DOI: 10.1542/peds.2006-0052     Document Type: Short Survey

References (43)

1. Frye v. United States, 293 F. 1013 (D.C. Cir.1923).
2. Many states have evidence rules patterned after the Federal Rules of Evidence, and are accordingly guided by the Daubert analysis as well. See, e.g., State v. Alberico, 861 P.2d 192, 203-04 (N.M. 1993);
3. Cecil v. Commonwealth, 888 S.W.2d 669, 674-75 (Ky. 1994);
4. State v. Foret, 628 So.2d 1116, 1121, 1123 (La. 1993);
5. Commonwealth v. Lanigan, 641 N.E.2d 1342, 1348-49 (Mass. 1994);
6. State v. Brooks, 643 A.2d 226, 229 (Vt. 1993);
7. Mayhorn v. Logan Med. Found., 454 S.E.2d 87, 90-93 (W.Va. 1994);
8. Farm Bureau Mutual Insurance Co. v. Foote, 14 S.W.3d 512 (Ark. 2000);
9. State v. Porter, 698 A.2d 739 (Conn. 1997);
10. M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999);
11. State Department of Transp. v. Hoffman, 721 N.E.2d 356, 359 (Ind. App. 1999);
12. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 532 (Iowa 1999);
13. People v. Shreck, 22 P.3d 68, 77 (Colo. 2001).
14. Although the leading Daubert cases involve products liability and toxic torts, courts have consistently applied the Daubert analysis in medical malpractice cases, particularly where the expert opinion at issue incorporates scientific fact, as opposed to a standard of care. See, e.g., Sullivan v. U.S. Department of Navy, 365 F.3d 827, 833 (9th Cir. 2004) (applying Daubert analysis to expert testimony offered by the plaintiff);
15. Berk v. St. Vincent's Hosp. & Med. Ctr, 380 F.Supp.2d 334, 353 (S.D.N.Y. 2005) (holding that there was "simply too great an analytical gap between the data and the opinion proffered" by the plaintiff's expert to support the conclusion that the defendant committed medical malpractice);
16. Palandjian v. Foster, 842 N.E.2d 916, 923 (Mass. 2006) ("[W]hen the proponent of expert testimony incorporates scientific fact into a statement concerning the standard of care, that science may be the subject of a [Daubert] inquiry. Because expert opinion about increased risk, like diagnosis and causation, involves the application of science to patient care, [Daubert] would be applied to that portion of an expert's testimony, requiring the proponent of such evidence, if challenged, to demonstrate its relevance and reliability.").
17. The Federal Rules of Evidence govern the admission of evidence in both civil and criminal trials.
18. Valentine v. Conrad, 850 N.E.2d 683, 686 (Ohio 2006) (applying the Daubert standard and affirming the exclusion of testimony by the plaintiff's expert witnesses, who had concluded that the decedent's exposure to chemicals in his workplace caused his glioblastoma multiforme, because there was no evidence that any of the chemicals in the workplace were known to cause that condition).
19. Daubert, 509 U.S. at 589-590.
20. Id. at 590.
21. Id. at 591.
22. Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 315 (D. Vt. 2002) (quoting Fed. R. Evid. 401).
23. Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (hereinafter "Daubert II")
24. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994).
25. Daubert, 509 at 592-93.
26. Daubert at 593-94.
27. Id. at 594-95.
28. In Ellis v. Appleton Papers, Inc., 2006 WL 346417, *4 (N.D.N.Y. Feb. 14, 2006), for example, the plaintiff's expert asserted at his deposition that his theory of causation should be accepted simply because he is an expert. His testimony was ultimately rejected by the court.
29. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). The term "ipse dixit" is a legal term meaning "something asserted but not proved." It is literally translated "he himself said it." Black's Law Dictionary 833 (7th ed. 1999).
30. Id. See also Ellis v. Appleton Papers, Inc., 2006 WL 346417 at *7 (excluding the plaintiff's expert witness, finding no "scientifically valid support for his opinion");
31. Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) ("Thus, when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.");
32. Daubert II, 43 F.3d at 1319 (excluding testimony of expert where "'[p]ersonal opinion, not science, is testifying here'") (quoting Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1249, 1360 (6th Cir. 1992)).
33. Joiner, 522 U.S. at 146.
34. See, e.g., Daubert II, 43 F.3d at 1321 ("For an epidemiological study to show causation under a preponderance standard . . . the study must show that children whose mothers took Bendectin are more than twice as likely to develop limb reduction birth defects as children whose mothers did not.");
35. Manko v. U.S., 636 F.Supp. 1419, 1434 (W.D.Mo. 1986) ("A relative risk greater than '2' means that the disease more likely than not was caused by the event.");
36. Marder v. G.D. Searle & Co., 630 F.Supp. 1087, 1092 (D.Md. 1986) ("In epidemiological terms, a two-fold increased risk is an important showing for plaintiffs to make because it is the equivalent of the required legal burden of proof - a showing of causation by the preponderance of the evidence or, in other words, a probability of greater than 50%.").
37. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1315 n.16 (11th Cir. 1999) (citing Federal Judicial Center, Reference Manual on Scientific Evidence 168-69 (1994)).
38. See, e.g., in re Breast Implant Litigation, 11 F.Supp.2d 1217, 1226 (D. Colo. 1998).
39. Theofanis v. Sarrafi, 791 N.E.2d 38 (Ill. App. 2003).
40. Id. at 43.
41. Id. at 46.
42. Id. at 48 (emphasis added).
43. Id. at 49.