Interestingly, a non-MR/ID court decision came to my attention almost simultaneously. The case is Millward & Millward v Acuity Speciality Products Group.
I am no lawyer and am not qualified to comment on the relevance of this court decision to Atkins MR/ID cases. However, a couple of trusted and respected colleagues of mine, who have extensive experience in law or psychology and law sent me comments and their permission to share their reactions and comments. They are reproduced below (with minor editing for format and readability) without comment.
Commentator # 1
The federal appeals court in Boston decided a case this week dealing with causation and stated that, “In this mode of reasoning [used by the expert], the use of scientific judgment is necessary.” And that, “No matter what methodology is used, ‘an evaluation of data and scientific evidence to determine whether an inference of causation is appropriate requires judgment and interpretation.’" Pgs 12-13.
There was no discussion whatsoever about “error rate.”
While disease causation and ID/MR assessment are far apart in the world of expert testimony, the court’s discussion is relevant in either situation, IMHO. With the ID/MR cases, since courts must decide whether the person is ID/MR, and can only do so with the use of expert testimony, experts have to be allowed to give their opinions. There are just some situations where the calculation of an accurate error rate is just not practical. But, my argument is there still needs to be some sort of definitive guidance in the areas, both legal-wise and psychology-wise. It shouldn't be like the Wild West.
Commentator # 2
That is a great opinion regarding admissibility. I read it and found many places that are great teaching points on admissibility, especially for those of us testifying in an area often referred to as "soft science." I cut and pasted some of the more interesting passages below. The entire opinion is really well written and the court clearly took time to reason through cases like Kumho, Joiner, and Daubert and examine he total picture rather than focusing on the narrow findings that came from Daubert (or at least the way many courts interpret the findings in Daubert).
These factors "do not constitute a 'definitive checklist or test.'"
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (emphasis
omitted) (quoting Daubert, 509 U.S. at 593). Given that "there are
many different kinds of experts, and many different kinds of
expertise," these factors "may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert's
particular expertise, and the subject of his testimony." Id.
Exactly what is involved in "reliability" was not and could not have been filled out by Daubert. Rather, the answers must come from developing case law in adjudicating individualcontroversies. "[T]he question of admissibility 'must be tied to the facts of a particular case.'" Beaudette v. Louisville Ladder,Inc., 462 F.3d 22, 25-26 (1st Cir. 2006) (quoting Kumho Tire, 526U.S. at 150).
Although Daubert stated that trial courts should focus "on principles and methodology, not on the conclusions that they generate," Daubert, 509 U.S. at 595, the Court subsequently clarified that this focus "need not completely pretermit judicial consideration of an expert's conclusions," Ruiz-Troche, 161 F.3d at 81 (citing Joiner, 522 U.S. at 146). In Joiner, the Court explained that "conclusions and methodology are not entirely distinct from one another" and "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." Joiner, 522 U.S. at 146. Expert
testimony may be excluded if there is "too great an analytical gap
between the data and the opinion proffered." Id. "[T]rial judges
may evaluate the data offered to support an expert's bottom-line
opinions to determine if that data provides adequate support to
mark the expert's testimony as reliable." Ruiz-Troche, 161 F.3d at
This does not mean that trial courts are empowered "to determine which of several competing scientific theories has the best provenance." Id. at 85. "Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct." Id. The proponent of the evidence must show only that "the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion." Id.; see also United States v. Vargas, 471 F.3d 255, 265 (1st Cir. 2006). The object of Daubert is "to make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."Kumho Tire, 526 U.S. at 152.
So long as an expert's scientific testimony rests upon "'good grounds,' based on what is known," Daubert, 509 U.S. at 590,
it should be tested by the adversarial process, rather than
excluded for fear that jurors will not be able to handle the
scientific complexities, id. at 596. "Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence."
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