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"Two Strikes and You're Out!": How to Prevail in Daubert Challenges

August 2002

Citation: 32 ELR 10980

Issue: 8

Author: Ned Miltenberg and Anthony Z. Roisman

In 1992, Drs. Arnold Schecter and Daniel Teitelbaum, two highly qualified scientists, testified that polychlorinated biphenyls (PCBs), together with certain dioxins and furans that were PCB derivatives, could have accelerated cancer in a 37-year-old electrician who, as part of his job, had bathed daily for many years in a "PCB-dielectric soup." Although Drs. Schechter and Teitelbaum had carefully described their data, methodologies, and scientific reasoning, in 1997, the U.S. Supreme Court, in General Electric Co. v. Joiner,1 ruled that their detailed explanations of how they had reached their conclusions were not detailed enough and therefore inadmissible. Strangely, an explanation that would easily satisfy the editors of a peer review journal or the organizers of an academic conference as being scientifically valid may not be legally "reliable" and "admissible."

The decision in Joiner, like the more famous decision four years earlier in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 has led to increasingly frequent and successful challenges to the testimony of expert witnesses in "toxic tort" cases.3 Although, the campaign against "junk science" is ostensibly aimed at "rogue," "out-of-the-mainstream," "eccentric," and otherwise disreputable phony scientists, corporate lawyers are using the standards of legal admissibility developed in Daubert and Joiner not only to exclude the testimony of inexperienced or unqualified experts but to target anyone who dares testify against corporate practices that endanger human health and life.

Ned Miltenberg is the Senior Counsel and Associate Director of Legal Affairs for Constitutional Litigation at the Association of Trial Lawyers of America. Anthony Roisman is Of Counsel to Hershenson, Carter, Scott & McGee in Norwich, Vermont, where he specializes in toxic tort and environmental litigation.

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