Judge Recht's Daubert Decision Is Worth A Look

Many environmental lawsuits stand or fall on complex scientific and technical issues. And folks, let me tell you,there's a lot of half-baked opinions and faulty data out there masquerading as science. Some of it's easy to disprove - we had a case involving underground storage tanks where a discoloration of the lining was deemed by one "expert" to be evidence of complete and utter degradation caused by de-polymerization of the fiberglass coating. Looking at the pictures, you might have believed it - at least until you walked up and removed the smudges with your thumb, revealing pristine fiberglass. Other times, though, you have talking heads going at it over esoteric questions that aren't so easily resolved. It takes a judge who is willing to sit down and take a good hard look at the experts' opinions and decide who can testify. Judge Recht recently performed such an analysis in Ohio County, and it's worth a read. (Thanks to Mark Hayes for passing this on to me.)

Judges are supposed to evaluate expert opinions to see if they are grounded in the scientific method before allowing experts to testify. They don't decide which opinions are correct, they just decide which experts have premised their opinions on scientific principles. The seminal decision in this regard is Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), where the Court considered what expert scientific evidence could be considered relevant under the Federal Rules of Evidence:

"The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."

This publication says it well - Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of.