In looking at other stuff online related to expert witness rules, I came across a page by Patrick Malone that offers advice to lawyers on the selection and retention of an expert witness coming under Daubert scrutiny. Daubert v. Merrell Dow resulted in a set of rules for courts to act as “gatekeepers” to expert testimony, excluding those experts who don’t produce reliable testimony by established methods. Daubert rules for experts have been adopted by many states across the country. Where Daubert isn’t used, the earlier Frye rules are the usual standard.
Something that I need to look at is that apparently the Discovery Institute’s book, Traipsing Into Evolution, tries to argue that Judge Jones did things wrong because of Daubert considerations. It sounds like a ludicrous argument on its face, but I’ll need to have a look at the specifics before I can confirm or reject that impression.
But in any case, there was a particular passage in Malone’s article that made me think of Michael Behe, defense expert witness last year in the Kitzmiller v. DASD trial.
Keeping an open mind Before Daubert, an adversary’s discovery that your expert had formed an opinion, then read the relevant literature, would amount to, at worst, a credibility point for cross-examination. Now, that kind of discovery can get an expert tossed off the case.12 Beware the expert who claims that he or she doesn’t need to read the literature on the subject because no amount of literature could change his or her mind. That is exactly what happened in Cooper. The expert rationalized his behavior, stating, “[A]after I read those two articles years ago, they didn’t affect my prior judgment—and they still haven’t—that smoking doesn’t have anything to do with healing in spinal fusion. So even if there were 10 more articles, I’m not going to change my mind about it.”13 The court was not impressed.
12. See, e.g., Mitchell, 165 F.3d 778, 783.
13. Cooper, 259 F.3d 194, 202.
Remember Behe being confronted with 58 peer-reviewed articles and several textbooks discussing the evolution of the immune system? Remember Behe admitting he hadn’t read a lot of those? And remember Behe saying that he was confident that the material just wasn’t good enough, sight unseen? It seems obvious that the Thomas More Law Center could have benefited from reading Patrick Malone’s 2003 article on expert witnesses. They could have avoided a costly mistake.
In the face of the medical literature and Cooper’s own records, Dr. Mitchell categorically dismissed any suggestion that Cooper’s smok- ing was the cause of the nonunion. Dr. Mitchell stated that he rejected the medical articles as unpersuasive after he read just two of them. When asked if he should have considered more of the articles, Dr. Mitchell replied:
No, for the simple reason, after I read those two articles years ago, they didn’t affect my prior judgment, and they still haven’t, that smoking doesn’t have anything to do with healing in spinal fusion. So even if there were ten more arti- cles, I’m not going to change my mind about it. In this case, Dr. Mitchell did not identify specifically how he ruled out smoking and other potential causes of the nonunion. Simply asserting that he read two articles on smoking and rejected them as unpersuasive is insufficient. Such a practice offers no solid grounds for rejecting smoking as a cause of the nonunion, and renders his opinion that the Rogozinski System was the actual culprit little more than speculation. As the Supreme Court has repeatedly held, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at 157 (quoting Joiner, 522 U.S. at 146).
Fast forward to Behe on the stand in the Kitzmiller case:
Q. You haven’t read the books that I gave you?
A. No, I haven’t. I have read those papers that I presented though yesterday on the immune system.
Q. And the fifty-eight articles, some yes, some no?
A. Well, the nice thing about science is that often times when you read the latest articles, or a sampling of the latest articles, they certainly include earlier results. So you get up to speed pretty quickly. You don’t have to go back and read every article on a particular topic for the last fifty years or so.
Q. And all of these materials I gave you and, you know, those, including those you’ve read, none of them in your view meet the standard you set for literature on the evolution of the immune system? No scientific literature has no answers to the question of the origin of the immune system?
A. Again in the context of that chapter, I meant no answers, no detailed rigorous answers to the question of how the immune system could arise by random mutation and natural selection, and yes, in my, in the reading I have done I have not found any such studies.
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