Page 218 - Veterinary Toxicology, Basic and Clinical Principles, 3rd Edition

Toxicology and the Law Chapter | 11 185

VetBooks.ir judge in determining whether a theory or technique has ough review of the scientific literature and treatises dis-
The basis of a toxicologist’s opinion is often a thor-
Four factors were presented in Daubert to assist the
Daubert at 593-94
closing the adverse effects of exposure to a particular
been derived by the scientific method.
These four factors are used to determine the theory’s chemical. Reference Guide on toxicology, p. 415.
Carmichael at 1522
testability, because “[w]hether [a theory or
technique] can be (and has been) tested” is the “methodol- HAS THE PERSON BEEN TRAINED
ogy [that] distinguishes science from other fields of AND EDUCATED IN THE DISCIPLINE
human inquiry.” Daubert at 593 In short, the four factors are OF TOXICOLOGY?
testability, peer review or publication, the existence of
known or potential error rates, and standards controlling An advanced degree in toxicology presumptively supports
the techniques’ operation. Ibid the argument that the person has been trained and edu-
In summary, the trial judge decides whether or not cated in the discipline of toxicology. One may go to the
expert testimony is allowed. The means by which the credentialing and other means portions of the analysis if
judge makes this decision is flexible, but the judge often the person possesses an advanced degree in toxicology.
tests both the credentials of the expert and the opinion Not all toxicologists possess such a degree, however.
that expert offers. The expert’s opinion must meet “the Many well qualified toxicologists do not have an
same standard of intellectual rigor” inside the court room advanced degree in toxicology, but do have an advanced
as outside of it. Kumho at 1176 This showing of intellectual degree in related disciplines such as pharmacology,
rigor requires that the expert demonstrate both “how and biochemistry, environmental health, industrial hygiene, or
why” the opinion was reached. This may be done by satis- other similar fields. Reference Guide on Toxicology at 415
fying four factors, namely (1) whether the theory or tech- However, not all individuals in possession of these related
nique can be tested, (2) whether it is published or peer degrees are toxicologists. So further evidence of training
reviewed, (3) whether it has known or potential error and education is often required of those who do not have
rates, and (4) what the control standards are. an advanced degree in toxicology but do have an
These factors may be applied to both the analytical advanced degree in a related discipline.
and interpretive portions of a toxicology case. Both This training and education is often in the form of col-
Daubert and General Electric were toxic tort cases. This lege level course work or continuing education programs.
may be one reason that a chapter devoted to toxicology The number of required courses in toxicology cannot be
appears in the Reference Manual for Scientific Evidence. stated, but one such course is not enough. Specifically,
This Manual offers some questions to be asked of pur- “a single course in toxicology is unlikely to provide suffi-
ported toxicology experts. cient background for developing expertise in the field.”
Three questions may be asked in the evaluation of a Reference Guide on Toxicology, p. 415. “A physician without par-
toxicology expert to determine whether the expert’s testi- ticular training or experience in toxicology is unlikely to
mony is reliable—and therefore admissible. These ques- have sufficient background to evaluate the strengths and
tions may be reduced to (1) is the expert qualified?, (2) weaknesses of toxicological research.” See Mary Sue Henifin
has general causation been established?, and (3) has spe- “[M]ost physicians have little training in chemical toxi-
cific causation been established? cology and lack an understanding of exposure assessment
and dose-response relationships.” Ibid. The same is true for
veterinarians, and many other health care professionals.
Is the Expert Qualified? 39 So, while the number of college courses, continuing edu-
cation, or other training programs required to support an
The individual wanting to be allowed to testify as an argument that one is a toxicologist is not established, one
expert must be “qualified as an expert by knowledge, such course is most likely too few. Consequently, an MD
skill, experience, training, or education, ...” Rule 702 or DVM without an advanced degree in toxicology may
Toxicologists are often argued to be experts based on edu- well be found to not be a toxicologist based on training
cation, board certification, and other means. Although and education if they have only a course in professional
“... no single academic degree, research specialty, or school to support the claim. Certification is another way
career path qualifies an individual as an expert in toxicol- to support the argument that one is a toxicologist.
ogy. ... A number of indicia of expertise can be explored,
Reference Guide on Toxicology at p. 415.
... “
HAS THE PERSON BEEN CERTIFIED
AS A TOXICOLOGIST?
39. See also III. Applying Daubert in The Admissibility of Expert
Testimony--Margaret A. Berger. National Research Council. 2011. Some professions have a subspecialty in toxicology with
Reference Manual on Scientific Evidence: Third Edition. a board certification. Physicians may be certified by the