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Sci.Ev. 2006-rjm Week 7 1
Today 4:15 pm: Daubert – in the Supreme Court, in patent cases
(liability issues only), on remand
5:20 pm: UCBerkeley Transcripts: What can we learn?
5:55 pm: Choosing patents, teams, roles. Ordering file histories. Scheduling conferences for next week. When to get to:
Finishing instant patent law and instant civil procedure with grad students.Looking at the patents the grad students found.
6:05 pm: Midterm Evaluations
Next Week: No class, just meetings, but claim charts (at least left hand column) due Friday (?)
Sci.Ev. 2006-rjm Week 7 2
DAUBERT the name everyone* associates with the phrase “scientific expert testimony”
* law universe, expert witness universe
Daubert in the Supreme Court
Questions from the class Science Experts for the class Lawyers (from week 4)
Daubert on Remand
Your Best/Worst Facts
Daubert in Patent Cases (Liability Issues)
What you learned (from weeks 4 [law] and 6 [grad])
Sci.Ev. 2006-rjm Week 7 3
Daubert in the Supreme Court
- The Petition for Cert
QUESTIONS PRESENTED
1. Whether, in light of the Federal Rules of Evidence, federal courts may apply the rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and hold expert scientific testimony inadmissible unless it has attained general acceptance in the relevant scientific field.
2. Whether the Frye rule (assuming its applicability) is properly construed to make the admissibility of expert scientific testimony depend upon prior publication in a peer-reviewed journal.
- The Interesting, Interested AMICI
Sci.Ev. 2006-rjm Week 7 4
Daubert in the Supreme Court
http://www.stanford.edu/~rjmorris/sciev/PPT/04.PPT - go to slide 13
Where are they (plaintiffs’ experts) now?
Shanna Helen Swan (1999 NRC/NAS 4-year study)
Stuart A. Newman – still at NYMC
Why do Rehnquist and Stevens (not a likely pair) refuse to join in part of the decision?
- Questions from the class Science Experts for the class Lawyers (from week 4)
Sci.Ev. 2006-rjm Week 7 5
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,
Daubert in the Supreme CourtRule 702. TESTIMONY BY EXPERTS Federal Rules of Evidence
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
reliably to the facts of the case.
Sci.Ev. 2006-rjm Week 7 6
Daubert Decision’s Version of Rule 702 (See part C)Faced with a proffer of expert scientific testimony, then,
the trial judge must determine at the outset,
pursuant to Rule 104(a), {n10}
whether the expert is proposing to testify to
(1) scientific knowledge that
(2) will assist the trier of fact to
understand or determine
a fact in issue. {n11}
This entails 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.
---{n10} Rule 104(a) provides:
"Preliminary questions concerning
the qualification of a person to be a witness,
the existence of a privilege, or
the admissibility of evidence
shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges."
These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U.S. 171, 175‑176, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
Daubert in the Supreme CourtRule 702. TESTIMONY BY EXPERTS Federal Rules of Evidence
Sci.Ev. 2006-rjm Week 7 7
Daubert Decision’s Version of Rule 702 (See part C)Faced with a proffer of expert scientific testimony, then,
the trial judge must determine at the outset,
pursuant to Rule 104(a), {n10}
whether the expert is proposing to testify to
(1) scientific knowledge that
(2) will assist the trier of fact to
understand or determine
a fact in issue. {n11}
This entails 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.
---{n10} Rule 104(a) provides:
"Preliminary questions concerning
the qualification of a person to be a witness,
the existence of a privilege, or
the admissibility of evidence
shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges."
These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U.S. 171, 175‑176, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
Daubert in the Supreme CourtRule 702. TESTIMONY BY EXPERTS Federal Rules of Evidence
-Has the theory or technique been TESTED-Has it been published in a PEER REVIEWED journal- Rates of error; standardization of technique-GENERAL ACCEPTANCE
Sci.Ev. 2006-rjm Week 7 8
Daubert on Remand - Your Best/Worst Facts
Preliminaries: the FINAL JUDGMENT rule
US Births (per UNICEF, for 2004): 4,134,000
1992 (per CDC): 4,065,014
1990 (per CDC, 1992 report): 4, 158,212
Birth defects: 1 out of 33 babies.
Limb reduction defects: ?? Can’t find any data.
1:1000? I know 2, have encountered 2 more. How many people have I, a former resident of NYC, encountered in my life of X years? Well over 4000.
Sci.Ev. 2006-rjm Week 7 9
Daubert on Remand - Your Best/Worst FactsBest & Counter – Daubert Merrell Dow
MD answer Daubert AnswerHenry: Multiple Theories Initial Victory
Fernando: Method hidden E/W Respect for Supremes (H/W)
Adam: Deformed Babies FDA Approval
Jeremy: Multiple Causes E/W FDA is a given (E/?)
Ann Marie: Augment Affts Option P Experts: no indep. res.
Angela: Palmer has -0- to say E/W FDA approval is old E/L
Angela: Frye fried D has no BOP
Chrissy: FR702 E/W P meets BOP D/L
Fernando: COULD Augment P Experts method unexplained
Ann Marie: Could but no ‘fit’ E/L P fails “fit” E/W
Sci.Ev. 2006-rjm Week 7 10
Daubert on Remand - Your Best/Worst FactsBest & Counter – Daubert Merrell Dow
MD answer Daubert AnswerJason: Frye fried 6th Cir rejected Palmer
Lisa: Lousy science anyway E/W That was under Frye E/L
Jeremy: Teratogenic in animals No peer reviewed pub
Jason: No peer rev pub E/W Real babies E/L
Lisa: Deformed babies BOP on P
Alvin: M/Exclude photos E/W Let P supplement affts. H/L
Chrissy: Great Reputations Gen.Acc. still lives
Adam: Legal Standard E/W P’s Methods are gen.acc.E/L
Alvin: FR702 FDA
Henry: P lacks PROOF H/W Peer rev trumps FDA H/W
Sci.Ev. 2006-rjm Week 7 11
Daubert on Remand – My Best Fact, but for whom?
It’s 1995. Bendectin was available from 1957 to 1982. Where’s the data on NATIONAL limb reduction defects (annual totals) for the years, say,1947-1956, 1957-1982, 1983-1995?
Maybe that data is neutral or ambiguous, and maybe 1983-88 or so is affected by women who had Bendectin from a previous pregnancy or a friend. But what if the data is DRAMATIC? Even a 2-fold difference in annual average rate during the Bendectin years? Why doesn’t either party gather this information? Is it just not available? Are they BOTH scared?
Sci.Ev. 2006-rjm Week 7 12
Daubert in Patent Cases (Liability Issues)
What you learned (from weeks 4 [law] and 6 [grad])
Carnegie Mellon:
- The most Daubert-like: BrownBrown
- Methodology or Substance?
Is Carnegie Mellon so dumb? Why did they bring this case, and fight it? [Biology experts please help!]
- The experts aside from Brown
Sorkin: Why proffer such a lame declaration as Trejo’s?
Pharmastem: Ditto on Hendrix? (But the answer will be different, I think.)
Sci.Ev. 2006-rjm Week 7 13
UCBerkeley v Genentech Transcripts
Siegel – Tutorial Expert
Campbell – Genentech’s Infringement Expert
What you learn from reading these transcripts
Order of Testimony
Preparing
Objecting
Cross-Examining
Sci.Ev. 2006-rjm Week 7 15
http://www.stanford.edu/~rjmorris/sciev/READINGS/4363877A.pdf