Transcript Just Relax, This Will Only Take a Minute

“Just Relax, This Will Only
Take a Minute”
Daubert and the Doctor
Travis J. Rhoades
Samuel C. Hall
January 11, 2011
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Hiring the Doctor
The Knoxville, TN College of Faith
Healing?
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Where is Rangoon?
Every Litigator has met a Dr. Nicholas Van Helsing
– Doctor hired to play the role of the doctor for the purposes of litigation
– Little interest in conducting a scientific analysis of the case
– Little effort to buttress opinions with actual research or citations
– No demonstrated process of analysis to arrive at his conclusions
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A witness qualified as an expert by knowledge, skill, experience,
training, or education…Before February 1, 2011
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Admissibility
– “The fundamental determination of admissibility comes at the time the witness is
“qualified” as an expert. In a state such as Wisconsin, where substantially
unlimited cross-examination is permitted, the underlying theory or principle on
which admissibility is based can be attacked by cross-examination or by other
types of impeachment”. State v. Walstad, 119 Wis.2d 483, 518-19, 351 N.W.2d
469 (1984)
Exclusion of Expert on Qualifications
– The label or title of a witness is not relevant to the determination of whether a
witness is qualified to testify as an expert on a given subject. See, e.g ., Karl v.
Employers Ins., 78 Wis.2d 284, 297, 254 N.W.2d 255 (1977); Wester v.
Bruggink, 190 Wis.2d 308, 319-20, 527 N.W.2d 373 (Ct.App.1994).
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New (to Wisconsin) Statute
• Sec. 907.02. Testimony by experts
• (1) If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if the testimony is based upon sufficient
facts or data, the testimony is the product of reliable principles and
methods, and the witness has applied the principles and methods
reliably to the facts of the case.
• (2) Notwithstanding sub. (1), the testimony of an expert witness may
not be admitted if the expert witness is entitled to receive any
compensation contingent on the outcome of any claim or case with
respect to which the testimony is being offered.
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A witness qualified as an expert by knowledge, skill, experience,
training, or education…After February 1, 2011
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. . .[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient
facts or data, the testimony is the product of reliable principles and methods, and the
witness has applied the principles and methods reliably to the facts of the case.
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Qualification of Experts to render opinions now tied to
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Sufficient facts or data
Reliable principles and methodology
Applications of each reliably to the facts of the case.
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Qualifications of the Doctor
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Education
Most Doctors will have graduated from Accredited Medical School
– Any post graduate work proper line of questioning
– If the Doctor went to the Knoxville,TN College of Faith Healing you might want to
explore that a bit
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Qualifications of the Doctor
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Training
Careful Examination of Post- Medical School Experience Should Illustrate Whether
Doctor has Specific Training to Opine Regarding the Issues of the Case
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Residency
Internships
Board certifications
Consolidated Coal Co. v. Director, Office or Worker’s Compensation Programs, 294
F.3d 885 (7th Cir. 2002)
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Plaintiff offers 2 B-readers who opine that Petitioner has black lung disease after review of xrays
Petitioner offers pulmonologist who reviewed CT scan to opine no black lung disease
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7th
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Argument that CT much more precise and therefore more reliable than x-ray
Circuit Affirms ALJ decision that Plaintiff offered properly qualified B-readers, conducting
recognized tests for presence of pneumoconiosis;
Respondent failed to properly qualify pulmonologist—Court held that typical interpreters of
CT scans are Radiologists, who are sometimes B-readers:
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Respondents expert is neither a radiologist or a B-reader:
Respondent failed to establish that pulmologist had any training or experience:
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Reading CT scans for the presence of pneumoconiosis;
Reading CT scans for the purpose of diagnosis (as opposed to treatment)
ALJ held pulmonologist opinions unreliable
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Qualifications of the Doctor
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Experience
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Experience with an Subject Gained by Virtue of Position Can Qualify a Witness to Offer Opinion on Subject
not Specifically a Portion of Formal Training or Education
Walker v. SOO Line Railroad Co., 208 F.3d 581 (7th Cir. 2000)
• Plaintiff allegedly struck by lightning while working in rail yard tower
• Sued SOO under Federal Employer’s Liability Act
• Plaintiff Evaluated by the University of Chicago Electrical Trauma Research Program
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MD that headed the clinical team opined that the Plaintiff suffered Post Traumatic Stress Disorder as a
result of the lighting strike
District Court Qualified the Doctor as an Expert on Electrical Trauma BUT her Barred Her Testimony
entirety–
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Evaluation included psychologist examination, battery of tests conducted by technicians
Dr. not qualified as a psychiatrist or psychologist;
Her conclusions were founded only on limited physical examination and her review of the work of others on her
team
7th Circuit held that:
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Proper for professional in the doctor’s position to rely on work of team members to formulate opinions
“The leader of that team is chosen because of her ability to assess accurately the role that each member of the
team ought to play and to reconcile, when necessary, competing perspectives. Walker, at 589
Dr. might not be able to opine on the diagnosis of PTSD outside the arena of electrical trauma, but she was
qualified to make the diagnosis in that limited arena
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Qualifications of the Doctor
• A physician must possess some specialized knowledge
in the particular field of medicine about which she is to
testify. Everett v. Georgia-Pacific Corp., 959 F. Supp.
856, 857 (S.D. Ga. 1996).
• The lack of specialization of a physician does not affect
the admissibility of the testimony, but rather goes to its
weight. Payton v. Abbott Labs, 780 F. 2d 147, 155 (1st
Cir., 1985).
• The focus is not whether a physician is generally
qualified, but rather whether her qualifications provide a
foundation for her to answer a specific question. Gayton
v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010).
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Gayton v. McCoy, 593 F.3d 610,
(7th Cir. 2010)
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Plaintiff’s decedent dies in Jail from elevated heartbeat coupled with Congestive Heart Failure
Decedent not provided medications
Plaintiff’s expert concludes that :
– Decedent would not have died had she been administered her prescribed cardiac
medications
• Doctor offered no evidence he was specially qualified in either pharmacology or
cardiology
• No basis for opinion that drugs would have prevented death
• No special knowledge as to how the drugs function, or explanation as to how
decedent’s irregular use of the medications prior to her incarceration affected her
condition
• NOT ADMITTED
– Decedent’s untreated and uncontrolled vomiting
• Effect of vomiting on potassium levels not specialized knowledge outside the scope of
Plaintiff’s expert as treating physician
• Plaintiff’s Expert Qualified to opine that combination of diuretics and vomiting affects
potassium and electrolytes which can lead to tachycardia
• ADMITTED
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Goes without saying but record must be made for each opinion
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Methodology
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Has the theory or technique in question been tested?
Has it been been subjected to peer review and publication?
What are its known or potential error rates?
Do maintenance standards exist controlling its operation?
Has it attracted widespread acceptance within the medical
community?
Is the opinion generated independent of the litigation, or expressly
for the purposes of testifying?
Is the opinion the result of an illogical or unfounded extrapolation of
an accepted medical premise?
Are alternate explanations considered and rejected?
Is the field in which the expert practices known for generating
reliably founded opinions?
Has the expert applied the same methodology to her litigation
opinion as she does to her non-litigation work?
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Because I Said So
• Medical experts not allowed to rely on title
and training as the basis of all medical
opinion testimony
• No More Ipse Dixit Opinions
• Physicians can and should be examined
vigorously on the information that forms
the foundations of their opinions
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Zarecki v. National R.R. Passenger Corp., 914 F.Supp.
1566, (N.D.Ill. 1996)
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1. I have been retained as an expert witness with respect to the above entitled cause
on behalf of the Plaintiff, Judy Zarecki.
2. I make this Affidavit in opposition to the Defendant National Railroad Passenger
Corporation's Motion for Summary Judgment.
3. My present business address is 7600 College Dr., Palos Heights, Illinois 60463.
4. I am duly licensed to practice medicine in the State of Illinois, and I am board
certified in orthopaedic surgery in the State of Illinois.
5. I have examined the Plaintiff in this case, Judy Zarecki.
6. I have reviewed the medical records of Judy Zarecki.
7. It is my opinion based upon a reasonable degree of medical certainty that the
Bilateral Carpal Tunnel Syndrome sustained by Judy Zarecki, was caused by her
work duties as assigned by the Defendant National Railroad Passenger Corporation.
8. It is also my opinion that the nature of the work duties at the Defendant National
Railroad Passenger Corporation was such that it was reasonably foreseeable that
Judy Zarecki, could sustain Bilateral Carpal Tunnel Syndrome in her hands or wrist or
sustain some other hand/wrist injury.
9. I make this affidavit upon my personal and professional knowledge and upon my
examination of Judy Zarecki, the medical records of Judy Zarecki, and, if sworn as a
witness, I can and will testify competently to the facts hereinbefore stated.
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Zarecki v. National R.R. Passenger Corp., 914
F.Supp. 1566, 1574 (N.D.Ill. 1996)
• Opinion is not based on any discernable scientific
methodology;
• Conclusions are subjective beliefs of the expert as to the
cause of Zarecki's carpal tunnel syndrome;
• None of the Daubert factors support the notion that the
opinion constitutes scientific knowledge;
• The record is void of any studies or analyses to
substantiate conclusions;
• Affidavit does not allude to any authorities that support
views, nor demonstration that views have gained general
acceptance in the scientific community.
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Diagnosis and Cause
• Areas in which Methodology Examination is
Critical
• General and Specific Causation
• General causation--is the agent or trauma
capable of causing the disease or injury?
• Specific causation--did the agent or trauma
cause the disease or injury in this particular
individual?
• Reference on Scientific Evidence 335 (Fed.
Judicial Ctr.2000).
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General Causation
– Has it been established that the particular
trauma or exposure is a recognized cause of
the Plaintiff’s injury?
– Higher Quality
• Epidemiological Reviews
• Controlled Trials
• Cohort Studies
– Lower Quality
• Descriptive Studies
• Case Studies
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Determining Specific Medical
Causation
• Differential diagnosis methodology
– “ruling in” potential causes to develop a potential-cause checklist;
– then “ruling out” potential causes one by one based on objective data
and criteria.
– Causation is attributed to the last potential cause left on the list, or at
least the most probable one of those that remain. Glastetter v.
Novartis Pharmaceuticals Corp., 107 F.Supp.2d 1015, 1029
(E.D.Mo.2000).
– when it is used in the practice of science (as opposed to its use by
treating physicians in the practice of medicine out of necessity) it must
reliably “rule in” a potential cause. See Glastetter, 252 F.3d at 989.
– If the “ruling in” step is based on too great an analytical leap (or several
such leaps), the whole opinion is questionable. (“any step that renders
the analysis unreliable ... renders the expert's testimony inadmissible”)
See Advisory Committee Notes to 2000 Amendments to Rule 702.
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Lennon v. Norfolk and Western Railway Co., 123 F.Supp.2d 1143
(N.D.Indiana, 2000)
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Plaintiff falls at work and hits head on concrete
One year later, complains of headaches and feelings of spaciness
Referred to a Neurologist (Romain) who diagnoses him with Multiple Sclerosis, and opines that
the MS was triggered or exacerbated by the fall
Opinion supported by limited review of published materials, most of which support his contention,
a group of case reports in support of his diagnosis, as well as his experience in treating MS
patients and his attendance of conferences at which the relationship was discussed
General Causation
Court reviewed medical literature regarding trauma’s relationship to MS
– Dr. Douglas Goodin, The role of trauma in causing MS or in triggering relapses or flares is
not yet established or refuted. But preponderance of the evidence supports no association
between physical trauma and either MS onset or exacerbation.
– Dr. Charles Poser published a study in 1994 criticized the efforts in the scientific community
to study the role of Trauma in MS, but making no definitive
– Court reviews several articles dating back to the 1950s and earlier elated to the relationship
between Trauma and MS
– Concludes that “the overwhelming weight of the authority suggests the notion that there has
been no conclusive showing demonstrating a link between trauma and the onset or
exacerbation of MS.”
– Limited review is the antithesis of the scientific method
– Limited review might not be fatal to admissibility IF the expert’s opinion followed the
overwhelming weight of the evidence
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Lennon v. Norfolk and Western Railway Co., 123
F.Supp.2d 1143 (N.D.Indiana, 2000)
– Specific Causation
– Plaintiff also argues that Dr. Romain’s causation opinion is based on a clinically
supported differential diagnosis
• Differential diagnosis does not by itself prove the cause, even for the particular patient.
Nor can the technique speak to the issue of general causation.
• Differential diagnosis assumes that general causation has been proven for the list of
possible causes it eliminates:
– The process of differential diagnosis is undoubtedly important to the question of
“specific causation.” If other possible causes of an injury cannot be ruled out, or
at least the possibility of their contribution to causation minimized, then the “more
likely than not” threshold for proving causation may not be met. But, it is also
important to recognize that a fundamental assumption underlying this method is
that the final, suspected “cause” remaining after this process of elimination must
actually be capable of causing the injury. That is, the expert must “rule in” the
suspected cause as well as “rule out” other possible causes. And, of course,
expert opinion on this issue of “general causation” must be derived from
scientifically valid methodology. Hall v. Baxter Healthcare Corp., 947 F.Supp.
1387, 1413 (D.Or.1996) (quoting, Cavallo v. Star Enterprise, 892 F.Supp. 756,
771 (E.D.Va.1995) aff'd. on this ground, rev'd on other grounds 100 F.3d 1150
(4th Cir.1996)).
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Lennon v. Norfolk and Western Railway Co., 123 F.Supp.2d 1143
(N.D.Indiana, 2000)
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Plaintiff Expert Neurologist Dr. Schreiber Opines that Plaintiff suffered neurological trauma as a result of
his fall
– White Matter Lesions cause by shearing forces to the brain which caused nerve demyelinization
from Review of repeated CT scans
– Objective signs of neurological symptoms including thought disorder, memory deficits and left-sided
sensory deficits
– Dr. Schreiber relied on his own experience as a board certified neurologist
• On his review of neurological journals which support relationship between head trauma and
white matter lesions
• On Textbook DIAGNOSTIC NEUROLOGY, which clearly sets forth relationship between
severe trauma and white matter lesions
• On case study of a Dr. Nevin, with 40 participants with head injuries and varying degrees of
white matter changes
– Defense Doctor relies on a Lancet study that suggests that only major trauma can cause White
lesions
• Plaintiff's fall was minor fall
• Could not be the cause of the White Lesions
No specific definitive study correlating falls like the Plaintiff’s to White Matter Lesions
BUT
All studies submitted suggest that trauma is a recognized cause of White Matter Lesions
– Dispute is a over whether the trauma was sufficient
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Carlson,
- 2012
– Issue Ripe for Jury determination
and not
a matterS.C.
of admissibility
DECIDED PRIOR TO DAUBERT—INCLUDED FOR
COMPARISON / CONTRAST OF COURT’S INQUIRY PRE
AND POST-DAUBERT
Cella v. U.S., 998 F.2d 418 (7th Cir. 1993)
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Plaintiff alleges he suffers from Polymyositosis from trauma suffered aboard Navy vessel
Plaintiff claimed four separate incidents of physical injury during the trip:
– injured his lower back downloading of four pallets of stores from the dock onto the ship;
– burned his hand when he lifted a twenty-quart pot filled with spaghetti sauce and the
simmering sauce spilled onto his hand (because the pot's handle was coated with melted
butter);
– struck his head twice and fell when the vessel broke the mooring lines tied to the dock; and
– injured his lumbar spine while lifting approximately ninety pounds of pot roast out of the oven
after other crew members refused to help him.
Plaintiff also claimed threats for physical violence arising out of racial tensions on the ship
Dr. Romain, Neurologist with 22 years experience
– Complete medical history of the plaintiff,
– Full neurological examination,
– Conducted a series of tests to rule out various possible diagnoses,
– Directed two muscle biopsies to be taken and sent out for laboratory analysis.
– Repeated testing revealed that certain of Cella's muscle enzymes were greatly elevated.
– The biopsy results suggested that the plaintiff suffered from focal chronic interstitial myositis.
After reviewing these test results in light of his examination and history of Cella, Dr. Romain was
convinced that Cella suffered from polymyositosis
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DECIDED PRIOR TO DAUBERT—INCLUDED FOR
COMPARISON / CONTRAST OF COURT’S INQUIRY PRE
AND POST-DAUBERT
Cella v. U.S., 998 F.2d 418 (7th Cir. 1993)
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The generally-accepted medical dogma identified polymyositis as an idiopathic disorder,
Dr. Romain had heard of cases of polymyositis being secondary to trauma and believed that
Cella's polymyositis-like condition might have been brought on by the events that occurred aboard
the Hess.
From his extensive medical literature search, Dr. Romain concluded:
– that cases of polymyositis are heterogeneous in origin;
– that among the documented cases there was always a consistent but somewhat low
percentage of cases in which some type of severe emotional or physical stress seemed to
have etiological importance.
– Dr. Romain further believed that an experimental model with marathon runners which
revealed a link between physical stress and elevated enzymes supported his conclusion that
physical stress and trauma caused Cella's polymyositis condition.3
In addition to citing the occasional incidence of trauma, the medical literature considered by Dr.
Romain addressed genetic factors, viral infections, vaccinations, certain tropical diseases, and
systemic lupus erythematosus as other possible causes of polymyositis.
– Through his physical examination of the plaintiff, extensive neurological testing of the
plaintiff, and careful review of the plaintiff's medical history, Dr. Romain was able to exclude
each of these factors as the potential cause of Cella's condition.
– Through his elimination of these other possible causes and his medical literature research
revealing a causal relation between trauma and documented polymyositis cases, Dr. Romain
concluded that the plaintiff's polymyositis-like condition was caused by the trauma arising
from the events aboard the Hess.
– He prescribed prednisone treatment and physical therapy, which apparently stabilized the
plaintiff's condition.
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DECIDED PRIOR TO DAUBERT—INCLUDED FOR
COMPARISON / CONTRAST OF COURT’S INQUIRY PRE
AND POST-DAUBERT
Cella v. U.S., 998 F.2d 418 (7th Cir. 1993)
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Defendant challenges foundation of Dr. Romain’s opinion under FRCP 907.03, arguing the Court
Identifies two studies from among Dr. Romain’s reliance materials that provide “substantial
epidemiological support” for the relationship between certain elevated enzymes and
polymyositosis
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Articles acknowledge relationship between extreme stress, physical injury or combination of both stress and
injury and conditions like polymyositosis
Facts of the case suggest factors applied to experience aboard the ship
“Although the complete etiology of all polymyositis has not been definitely proven, the
plaintiff's expert medical witness has testified that, based on his examination and
testing of Cella, his review of Cella's full medical history, his research of medical
literature, and his analysis of documented case studies of polymyositis, it is his
opinion within a reasonable degree of medical certainty that trauma was the cause of
this plaintiff's polymyositis.” Cella at 429.
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Evidence-Based Medicine
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Evidence Based Medicine requires physicians to use the best evidence
available in determining treatment by placing more value on well-designed
and well executed clinical investigations and less value on expert opinion
and uncontrolled observational studies, like case reports and case studies.
Sear, John, “Effective Use of Evidence-Based Medicine to Challenge
Causation Testimony,” LJN’s Product Liability Law and Strategy, Vol. 30,
No. 2, August 2011
Of particular interest is the fact that the American Academy of Orthopedic
Surgeons has recognized Evidence Based Medicine principles, and
contains its own hierarchy of qualitative medical evidence, with Randomized
Control Trials at the top and Personal Observation of the physician at the
bottom.
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Considerations for Depositions
• Preparation – Best Practices
• Key Testimony to Obtain
• Use of Follow-up Discovery
• Common Fallacies to Exploit
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Preparation – Practices
Prepare: Have a Plan
Individual Comfort Level
Research: Resources Online and Offline
Prior Deposition or Trial Testimony and Reports
Prior Decisions Related to the Expert AND Opinion
Expert’s Websites, Social Media, Blogs, etc.
CV – Publications Legitimate?
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Key Testimony to Obtain
 Whether the opinion or theory has been subjected to
peer reviewed publication.
 The known of potential rate of error and the existence of
standards controlling in the subject area.
 The extent to which the expert’s methodology, technique
and opinions are generally accepted within the expert’s
community.
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Key Testimony to Obtain
 Keep in mind that “expert intuition” is insufficient:
“A witness who invokes ‘my expertise’ rather than analytic strategies widely
used by specialists is not an expert as Rule 702 defines that term. [The
expert] may be the world’s leading student of [the topic], but if he could not
or would not explain how his conclusions met the Rule’s requirements, he
was not entitled to give expert testimony. As we so often reiterate: ‘An
expert who supplies nothing but a bottom line supplies nothing of value to
the judicial process.’”
Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419 (7th
Cir. 2005) (citations omitted).
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Key Testimony to Obtain
CHECKLIST
Expert Report Completed?
Compensation / Amount of Time to Reach Opinions
Current CV?
List of Prior Testimony
Prior Challenges to Admissibility of Expert’s Testimony
Qualifications of Witness: Education, Training, Experience, Skill
How did Expert Reach Opinions: Reliable Methods?
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Basis for Each Opinion
What Facts or Records Relied On
Any Independent Research?
Have the Methods or the Opinions Referenced in Peer Reviewed Publication?
Alternative Explanations?
Was the Doctor as Careful as he/she Would be in Practice? (same methodology?)
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Deposition Testimony Examples
Engineer or Meteorologist?
Q:
In terms of your education, have you studied meteorology formally?
A:
Well I took it as a technical elective in college, but other than that, no.
Q:
You took one course in meteorology as an elective back when you were obtaining your
bachelor’s degree?
A:
Right.
Q:
So that would have been in the early to mid 1960’s?
A:
Right.
Q:
Besides that one course, have you had any other formal training in meteorology?
A:
No
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Engineer or Meteorologist Continued
Q:
You’re not able to testify as to what moisture content would be required in order to form
snow that would have been wet enough to stick to the side of the building, correct?
A:
Well, perhaps within these limits, a snowfall where the water equivalent is such that ten
inches of snow would constitute one inch of rainfall or more would generally be considered
a wet snow that could stick to the building.
Q:
And this theory of yours of one inch of rainfall to make ten inches of snow, where does this
theory come from?
A:
That would be an interpretation that I have used before. It’s something that I have heard
meteorologists in this area talk about. We all listen to what the weather people tell us on
television.
Q:
Are you aware of any peer-reviewed, published literature that supports your position?
A:
I’m not, but there may be some out there.
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Example Testimony - Continued
Doctors Against Obesity
Q:
Can you testify to a reasonable degree of medical probability that this incident caused the
rotator cuff tear?
A:
The way I visualize it is that, from his description, which wasn’t great: He gets hit by the
thing, by the forklift, and he falls back. And he tries to catch himself. I mean he’s got
some velocity, and he’s fat, so he tries to catch himself. Heavy. Excuse me, I shouldn’t
use the word fat. Although I am to the point where I don’t care anymore.
*
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Q:
A little bit ago you mentioned about truck drivers and said something to the effect that its
hell on their shoulders. What did you mean by that?
A:
Lets set the scenario: Truck drivers are rarely in very good physical condition. Okay?
They sit in a truck all day long. They don’t work out. They smoke. Whatever. They got to
haul themselves up into the cab; they got to haul themselves down. They actually have to
haul themselves up because they’re fat.
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Example Testimony - Continued
Medical Examiner
Q:
When you say sudden death during struggle and restraint, what is the exact mechanism of
injury that leads to a death in that situation?
A:
I don’t think it’s well known.
Q:
So the fundamental question is what…caused the cardiac arrest?
A:
Well it started with the struggle and restraint; but all of the physiological changes that
occurred between then, yes, we don’t really know.
Q:
Is that to mean independently you don’t think that any of these individually [the
physiological changes] by itself would have caused death in this case?
A;
No, I can’t separate it.
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Example Testimony - Continued
Medical Examiner, Cont.
Q:
Would the exertion that you indicated, would that alone, absent the fear and panic, absent
the position [the decedent] was in, absent the pressure on the torso, the restraint, the use
of an ECD, would that exertion alone, absent all those factors, would that have caused
death?
A:
I can’t say.
Q:
And that’s true of all of these?
A:
Yes. I don’t think we can unbundle the package. I mean I really don’t think you can. It’s
just not doable.
Q:
But you believe that the combination of all of the factors combined to cause the death?
A:
I believe that they each provided some input into the death.
(c) Crivello Carlson, S.C. - 2012
Example Testimony - Continued
Medical Examiner, Cont.
Q:
Can you say to a reasonable degree of medical certainty what happened inside of [the
decedent’s] body mechanically, to cause his death?
A;
No.
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Subsequent Discovery
 Verify New Propositions and Statements
 Follow Up with Written Discovery if Necessary
 Examples Include:
 Claim that Supporting Literature May be Available
 Supporting Documentation for Background
 Relevant Materials Not Brought to Deposition
(c) Crivello Carlson, S.C. - 2012
Common Expert Fallacies
Post Hoc Ergo Propter Hoc
Cum Hoc Ergo Propter Hoc
False Dichotomy
Falsum in Uno, Falsum in Omnibus
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Post Hoc Ergo Propter Hoc
 “after this, therefore because of this.”
 Commonly Seen in Unexplained (or Unexplainable)
Death Cases
 Also Seen in Evolving Scientific Areas:
Although the methodology upon which Dr. Rose based his diagnosis was not
articulated in much detail at his deposition, he appears to rely primarily on the
temporal relationship between the plaintiff discontinuing her use of Fosamax
and her injury healing.
In re Fosamax Products Liability Litigation, 2009 WL 4042769 (S.D.N.Y. 2009)
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Post Hoc Ergo Propter Hoc
 “Drawing…a conclusion from temporal relationships
leads to the blunder of the post hoc ergo propter hoc
fallacy. The post hoc ergo propter hoc fallacy assumes
causality from a temporal sequence.” McClain v.
Metabolife Int’l, Inc., 401 F.3d 1233, 1243 (11th Cir.
2005).
 McClain court generally recognized that expert opinions
based on post hoc ergo propter hoc do not pass muster
under Daubert. Id. at 1242-1243.
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Post Hoc Ergo Propter Hoc
 “[I]n essence, the requirement of adequate
documentation in scientific literature ensures that
decision makers will not be misled by the post hoc ergo
propter hoc fallacy…”
Ohio v. U.S. Dep’t. of the Interior, 880 F.2d 432, 472-473 (D.C. Cir. 1989); see
also Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 664 (7th Cir. 2005);
Bermundez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998).
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Cum Hoc Ergo Propter Hoc
 “with this, therefore because of this.”
 Fallacy that correlation establishes causation
 Causation cannot be established simply because certain
events occur within a temporal relationship.
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Cum Hoc Ergo Propter Hoc
REJECTED EXPERT OPINION:
“I talk about it being mercury toxicity. Again, in
terms of myocarditis, I don’t know what the
mechanism for that was. It is a finding that is
reported in ethyl mercury deaths. I see it here. One
and one equals two.”
Kolakowski v. Secretary of Health and Human Services,
2010 WL 5672753, Fed. Cl., Nov. 23, 2010.
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Cum Hoc Ergo Propter Hoc
 Courts have generally either rejected or disfavored
opinions and analysis based on cum hoc ergo
propter hoc.
Florence v. Board of Chosen Freeholders of County of Burlington,
621 F.3d 296 (3rd Cir. 2010);
Bull v. City and County of San Francisco,
595 F.3d 964 (9th Cir. 2010).
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False Dichotomy Fallacy
 Often a deliberate attempt by advocates to eliminate
middle ground.
“You either support us, or you support the terrorists.”
“It wasn’t the medicine that cured the patient, so it must
have been a miracle.”
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False Dichotomy Fallacy
 Generally, courts evaluate this fallacy as an
example of basing an opinion on false
assumptions.
 Such opinions are generally not admissible:
Elock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3rd
Cir. 2000); Bradley v. Armstrong Rubber Co., 130
F.3d 168, 177 (5th Cir. 1997).
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Falsum in Uno, Falsum in Omnibus
 “False in one thing, false in everything.”
 Began in Roman court system: provided that if a
witness was proven false in one area of
testimony, the witness should be presumed to
have provided entirely false testimony.
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QUESTIONS?
(c) Crivello Carlson, S.C. - 2012