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Re: Eminence vs. EvidenceFrom: Dean Huffman . (dean@thehuffpeople.net)Tue Feb 19 14:34:38 2008
.. A bit of medical trivia. I was in Washington DC for an ACOG meeting the day that Daubert was argued. I skipped the morning session and went to the court instead and was in the gallery when Daubert was argued. Does anybody know who argued the position for Merrrill Dow? It was a rather obscure former federal judge and former soliciter general by the name of Kenneth W. Starr. Yes, the same Starr who later became the special prosectuor against Bill Clinton. And who was it that delivered the opinion of the court? Harry Blackman, of course, the author of Roe v. Wade. - - - - From: DoctorJoe@aol.com Subject: Re: Eminence vs. Evidence Date: Feb 19, 2008 10:47 AM In a message dated 2/19/08 7:54:12 AM, evsono@pipeline.com writes: Or if ACOG and state medical societies had called out the so-called "Experts." Have faith in the System, Grasshopper. Have faith in the System! While the ACOG and the societies were sitting on their collective hands (or whatever they were doing with their hands), our COURTS have effectively come up with a solution. In the 1993 case, Daubert v. Merrill Dow (which was a suit over Bendectin®, remember that?), the U.S. Supreme Court decided UNANIMOUSLY that the trial court, under the Federal Rules of Evidence (specifically Rule 702), had to evaluate "expert testimony" to determine it's scientific validity and also its relevance to the matter at hand. Rule 702 specifies that "if scientific, technical, or other specialized knwledge will assist the trier of fact [the court and/or the jury] to understand the evidence or to determine a fact in issue, a witness [that's us] qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." The Court opined that the "adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge' connotes more than a subjective belief or unsupported speculation." So the expert witness, under Daubert and the Federal Rules, has to provide for the court his bona fides, in terms of what he says he knows, what the scientific basis of the knowledge is, where it can be found, etc. (Enough information so the other party can 'cross examine' the evidence and make sure it's fairly reliable.) You CAN'T just sit up there and say "I'm Professor Lisse from out of town and I KNOW the answer because I've been flying these broomsticks for years! So what I say is the unimpeachable truth!" You have to provide the literature on the broomstick, the manual, and your own training and practice specifics, yada, yada, yada. There must be some reliable basis for your opinion and it has to be solid (not nebulous). Also, your training/experience has to be relevant to the case at hand -- you can't testify on flying broomstick cases if you've only been flying Cessnas. It's a whole new ballgame, boys and girls (at least since 1993). And the System did it -- not ACOG. May the System be with you! Joe P. FYI, here's Rule 702 in its entirety. It is augmented by the Rules of Civil Procedure and other Rules. RUle 702. Testimony by Experts 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, sill, experience, training, or education, may testify thereto in the form of an 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 reliabily to the facts of the case.
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