Page 225 - Veterinary Toxicology, Basic and Clinical Principles, 3rd Edition

192 SECTION | I General

VetBooks.ir without interfering with the jury’s role as trier of fact, must Bocanegra v. Vicmar Services, Inc., 320 F.3d 581 (5th Cir.), cert. denied,
124 S. Ct. 180 (2003). A toxicologist’s testimony was excluded, but
determine whether purported scientific evidence is “reli-
the exclusion was reversed, because the toxicologist’s testimony was
able” and will “assist the trier of fact,” thereby keeping
from juries testimony that, in Pauli’s sense, isn’t even good supported by peer-reviewed literature and relied on generally
accepted principles.
enough to be wrong. This requirement extends beyond sci-
entific testimony to all forms of expert testimony. 60 The pur- Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577 (5th Cir.
2004). Testimony of a toxicologist excluded and the exclusion was
pose of Daubert’s gatekeeping requirement “is to make
affirmed because he performed no dose assessment and offered no
certain that an expert, whether basing testimony upon pro-
epidemiological studies showing a statistically significant link
fessional studies or personal experience, employs in the between thorium dioxide exposure and the type of lung and throat
courtroom the same level of intellectual rigor that charac- cancer present.
terizes the practice of an expert in the relevant field.” 61, 62 Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir. 2003). Dueling
marine biologist’s testimony was allowed and the allowance was
Examples of courts using scientific experts include
63 affirmed, because each expert performed differential diagnosis anal-
a genetic engineering patent case, silicone gel breast ysis in which they first “ruled in” six potential causes then both
64 65
implant, environmental science, “neutral science experts ruled out 4 of them. They disagreed on the remaining 2.
66
panels” , and others. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 1993. at 590 n. 9.
A number of scientific and professional organizations See also Bert Black et al., Science and the Law in the Wake of
have come forward with proposals to aid the courts in Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV.
finding skilled experts. 67 Toxicology organizations and 715 (1994); Joseph Sanders, Scientific Validity, Admissibility, and
the veterinary profession may consider such proposals. Mass Torts after Daubert, 78 MINN. L. REV. 1387 (1994).
General Electric Co v. Joiner, 522 U.S. 136 (1997).
Kelley v. American Heyer-Schulte Corp., 957 F. Supp. at 882.
ACKNOWLEDGMENT Kumho Tire Co v. Carmichael, 119 S. Ct. 1167, 1999. See also Braun v.
Lorillard Inc., 84 F.3d 230, 234 (7th Cir. 1996); Rosen v. Ciba-
My sincere appreciation to Mr. Kevin Conard, Drs. Roger Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996), and Black v. Food
McClellan, Richard Huston, Beth Thompson, Judith Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999).
Kashman, and federal employees who asked to not be Mary Sue H., et al., Reference Guide on Toxicology, II, in Reference
Manual on Scientific Evidence.
named, for reviewing an early draft of this chapter and
Rule 104, (a).
providing their valuable insight.
Rule 104, (e).
Rule 401.
Rule 901, (9).
REFERENCES Rule 402.
Rule 602.
Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256 (2d Cir.
Rule 901, (3).
2002). Testimony of a treating physician, toxicologist and industrial
Dillingham, W.O., Hagan, P.J., Salas, R.E. Blueprint for general causa-
hygienist were excluded, and the exclusion affirmed because the lit-
tion analysis in toxic tort litigation†submitted by the authors on
erature did not support a finding of general causation at the relevant
behalf of the FDCC Toxic Tort and Environmental Law Section.
exposure levels when workers were exposed to xylene and devel-
oped asymmetric polyneuropathy and other neurological symptoms.
60. Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999). FURTHER READING
61. Id. at 1176
62. Introduction--Stephen Breyer.” National Research Council. 2011. AFL-CIO v. OSHA 965 F.2d 962, 969-70 (11th Cir. 1992).
Reference Manual on Scientific Evidence: Third Edition. Washington, R.J. Allen, The Nature of Judical Proof, 13 CARDOZO L. REV. 373
DC: The National Academies Press. doi: 10.17226/13163. (1991).
63. Biogen, Inc. v. Amgen, Inc., 973 F. Supp. 39 (D. Mass. 1997). Bernstein, D.E., Jackson, J.D., 2004. The Daubert Trilogy in the States,
MediaCom Corp. v. Rates Tech., Inc., 4 F. Supp. 2d 17 app. B at 37 (D. 44 Jurimetrics J. 351.
Mass. 1998) (quoting the Affidavit of Engagement filed in Biogen, Inc. Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir. 1999) “In the
v. Amgen, Inc., 973 F. Supp. 39 (D. Mass. 1997) (No. 95-10496)). vast majority of cases, the district court first should decide whether
64. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996). the factors mentioned in Daubert are appropriate. Once it considers
65. Conservation Law Found. v. Evans, 203 F. Supp. 2d 27, 32 (D.D.C. the Daubert factors, the court then can consider whether other fac-
2002). tors, not mentioned in Daubert, are relevant to the case at hand.” see
66. Olivia Judson, Slide-Rule Justice, Nat’l J., Oct. 9, 1999, at 2882, also Goebel v. Denver and Rio Grande W. R.R. Co., 215 F.3d 1083,
2885. 1087 (10th Cir. 2000).
67. Introduction--Stephen Breyer.” National Research Council. 2011. Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001).
Reference Manual on Scientific Evidence: Third Edition. Washington, Carmichael v. Samyang Tire Inc, 923 F. Supp. 1514, 1522 (S.D. Ala.
DC: The National Academies Press. doi: 10.17226/13163. 1996 at 1520-21).