When can science go to court?

The Federal Judicial Center's Reference Manual on Scientific Evidence, now in its second edition, lays out the rules on admissibility.

On every federal judge's shelf sits a reference book applicable to any case involving scientific evidence. Judges rely on it when faced with difficult admissibility issues. Defense attorneys commonly quote it. It has been cited in more than 120 cases in the last six years by both federal and state courts. It is the Federal Judicial Center's (FJC) Reference Manual on Scientific Evidence, first published in 1994, with the recent second edition released on September 24, 2000.(1)

The Federal Judicial Center is the research and education agency of the federal judicial system. Established by Congress in 1967, the center has a variety of duties, including conducting and promoting education for federal judges and other court personnel.

The manual, the product of a cooperative effort by the FJC and the Carnegie Commission of New York, was part of a plan for judicial education. The center estimates that more than 100,000 copies of the first edition have been distributed and used in a variety of educational programs for federal and state judges, attorneys, and law students.

A goal of the second edition is to assist federal judges "in recognizing the characteristics and reasoning of `science' as it is relevant in litigation."(2)

While the first page claims that the "views expressed are those of the authors,"(3) the introduction by U.S. Supreme Court Justice Stephen Breyer provides the manual with instant prestige and a heightened aura of authority.

Breyer's introduction recognizes that "scientific issues permeate the law."(4) It articulates a widely accepted rationale for dealing with scientific evidence:

   The importance of scientific accuracy ... reaches well beyond the case
   itself. A decision wrongly denying compensation in a toxic substance case,
   for example, cannot only deprive the plaintiff of warranted compensation
   but also discourage other similarly situated individuals from even trying
   to obtain compensation and encourage the continued use of a dangerous
   substance. On the other hand, a decision wrongly granting compensation ...
   can improperly force abandonment of the substance. Thus, if the decision is
   wrong, it will improperly deprive the public of what can be far more
   important benefits--those surrounding a drug that cures many while
   subjecting a few to less serious risk.(5)

Nonetheless, Breyer recognizes that "the search is not a search for scientific precision. We cannot hope to investigate all the subtleties that characterize good scientific work."(6) He emphasizes:

   A court proceeding, such as a trial, is not simply a search for
   dispassionate truth. The law must be fair. In our country, it must always
   seek to protect basic human liberties. One important procedural safeguard,
   guaranteed by our Constitution's Seventh Amendment, is the right to trial
   by jury.... Any effort to bring better science into the courtroom must
   respect the jury's constitutionally specified role--even if doing so means
   that, from a scientific perspective, an incorrect result is sometimes
   produced.(7)

Breyer's comment echoes an underlying and unspoken premise from the first edition: the belief that judges and juries cannot deal with scientific issues because they are not coming to "correct decisions."

This discomfort with the jury system is reflected in several statements. For example, the first edition states, "[W]hen the adversary process yields conflicting testimony on complicated and unfamiliar issues and the participants cannot fully understand the nature of the dispute, courts may not be competent to make reasoned and principled decisions."(8)

"No longer can judges and jurors rely on their common sense and experience in evaluating the testimony of many experts," the introduction continues.(9) Implicit throughout the manual is the belief that verdicts with which tortfeasors disagree are not "reasoned and principled" but rather are unfair and wrong.

This undercurrent is not surprising considering the first edition was developed in cooperation with the Carnegie Commission. The commission had already concluded:

   The courts' ability to handle complex science-rich cases has recently been
   called into question.... Critics have objected that judges cannot make
   appropriate decisions because they lack the technical training, that jurors
   do not comprehend the complexity of the evidence they are supposed to
   analyze, and that the expert witnesses on whom the system relies are
   mercenaries whose biased testimony frequently produces erroneous and
   inconsistent determinations.(10)

Not surprisingly, much of the first edition's emphasis is on the exclusion of evidence.

The second edition cautions judges about the "proper use" of its contents, noting it is "not intended to instruct judges concerning what evidence should be admissible or to establish minimum standards for acceptable scientific testimony."(11) That has not always been the way the manual has been used by courts, however. In the six years since its publication, the manual has become more than a quick reference for information about dealing with disputes among experts. Intended or not, justified or not, in some cases the manual has become the law.

Since it has been so widely cited, knowing the manual's contents is critical for lawyers practicing products liability law. It can help fight an admissibility challenge or can eliminate a case. Either way, the manual cannot be ignored.

Empirical data reveal that tort lawyers use experts more often than lawyers in other areas of practice. The FJC recently released preliminary survey results comparing the experience of federal judges in civil cases before and after Daubert v. Merrell Dow Pharmaceuticals, Inc., an important 1993 Supreme Court ruling on expert evidence.(12) The findings reveal that experts testify most often, 45 percent of the time, in tort cases. Medical and mental health experts were the most common category of experts, offered in about 43 percent of the cases. They were followed by engineers and other safety experts, who testified in about 24 percent of the cases.(13)

The findings also showed that after Daubert judges were more likely to scrutinize expert testimony before trial and less likely to allow such testimony.(14) The survey does not address the frequency of admissibility disputes or the number of cases where all experts were excluded. Other data, however, reveal that defendants win about 70 percent of all expert challenges.(15)

The first edition

The manual's first edition is divided into three parts. The initial section concerns management and admissibility of expert evidence. Written by respected Brooklyn Law School professor Margaret Berger, this section presents a framework for judges considering challenges to expert evidence.

The analysis is structured around four questions:

* Is the expert qualified?

* Is the expert's opinion supported by scientific reasoning or methodology?

* Is the opinion supported by reliable data?

* Should the opinion be excluded pursuant to Rule 403?(16)

This section provides a potential outline for a response to a Daubert challenge. Counsel will do well to use its four-question analysis as the general outline for their responses.

The second section of the first edition consists of reference guides for seven areas of expert testimony: epidemiology, toxicology, survey research, forensic analysis of DNA, statistical inference, multiple regression analysis, and estimation of economic loss. The guides are intended to "present a primer on the methods and reasoning of selected areas of scientific evidence...."(17) To that end, the guides include glossaries, provide citations to selected cases in which judges have faced similar issues, and give a list of references. The cited cases often excluded the plaintiffs evidence, but plaintiff lawyers can learn from the mistakes made in those cases.

While the comment on the use of the reference guides states that they "are not intended to instruct judges concerning what scientific evidence should be admissible,"(18) statements in the guides are often quoted by courts--almost as gospel. As a result, counsel must be aware of the guides and use them when appropriate. Counsel must also be prepared to counter portions of the guides with references to scientific articles, expert affidavits, testimony, and citations to other cases with contrary holdings.

The final section of the first edition concerns the use of court-appointed experts and special masters, which the manual considers "two extraordinary procedures to assist in problems of expert evidence."(19) As two commentators noted, the "overriding message" is "that special masters should be reserved only for the most extraordinary circumstances, and that the mere presence of complex scientific issues is not enough to justify this exotic departure from ordinary practice."(20)

The second edition

Gone from the second edition is Berger's four-question framework for considering challenges to expert testimony. The book's sections on management and admissibility of expert evidence are replaced by three chapters. The first, by Berger, reviews the Supreme Court's trilogy of cases concerning the admissibility of expert testimony: Daubert, General Electric Co. v. Joiner,(21) and Kumho Tire Co. v. Carmichael.(22)

An excellent summary, Berger's analysis should be read by every lawyer facing a Daubert challenge.

Berger also discusses the causation controversy in toxic tort cases.

   [T]he proof of causation may differ from that offered in the traditional
   tort case in which the plaintiff details and explains the chain of events
   that produced the injury in question. In toxic tort cases in which the
   causal mechanism is unknown, establishing causation means providing
   scientific evidence from which an inference of cause and effect may be
   drawn. There are, however, numerous unresolved issues about the relevancy
   and reliability of the underlying hypothesis that link the evidence to the
   inference of causation.(23)

For those unfamiliar with the special issues of proving causation in toxic tort cases, Berger's analysis provides insight. She notes that the court "does not have a doctrinaire view on the risk-assessment-versus-causation debate." Rather, "[it] is more interested in focusing on `how and why' causation could be inferred from the particular evidence being proffered than in formulating per se rules about the admissibility or inadmissibility of categories of evidence to prove causation."(24)

The second chapter of the new edition provides a discussion of the management of expert evidence throughout the lawsuit, beginning with the Rule 16 conference. Cowritten by FJC Director William Schwarzer, who is a senior U.S. district court judge, and by the FJC's Scientific Evidence Project director, Joe Cecil, this chapter will, undoubtedly, have a significant effect on how judges manage cases involving science and technology issues.

Another of the major changes in the second edition concerns the use of court-appointed experts and special masters. The third of the three new chapters on management and admissibility of expert evidence, "Management of Expert Evidence," devotes substantial discussion to several recent high-profile cases involving appointed experts. While the chapter notes that use of court-appointed experts is expected to be "hen's-teeth rare," a "last" or"near-to-last resort,"(25) it also reminds us of the words of the Advisory Committee on the Rules of Evidence: "The inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned."(26)

Breyer's introduction also devotes substantial discussion to the subject. The impression from reading the two sections together is that court-appointed experts will play an ever-increasing role in tort litigation.

The second edition includes revised versions of the seven original reference guides. The guide to DNA evidence has been rewritten to reflect the rapidly evolving science in this area. The manual also includes guides to two new areas--medical testimony and engineering practice and methods.

Role of epidemiology

Parts of the epidemiology guide demonstrate the manual's importance. In the second edition, this guide addresses the role epidemiology plays in proving specific causation. One of the most important, and controversial, sections is its discussion of the doubling of risk.

The second edition continues a theme from the 1994 publication. The authors have equated the civil burden of proof--described most often as "requiring the fact finder to `believe that what is sought to be proved ... is more likely true than not true'"(27)-- with a belief that the relative risk from epidemiologic studies "can be adapted to the 50-percent-plus standard to yield a probability or likelihood that an agent caused an individual's disease."(28)

The authors cite no scientific support for this controversial assertion. The manual even acknowledges that many epidemiologists and toxicologists resist this premise.(29) The guide claims:

   The threshold for concluding that an agent was more likely than not the
   cause of an individual's disease is a relative risk of greater than 2.0....
   Recall that a relative risk of 1.0 means that the agent has no effect on
   the incidence of disease. When the relative risk reaches 2.0, the agent is
   responsible for an equal number of cases of disease as all other background
   causes. Thus, a relative risk of 2.0 ... implies a 50 percent likelihood
   that an exposed individual's disease was caused by the agent. A relative
   risk greater than 2.0 would permit an inference that an individual
   plaintiff's disease was more likely than not caused by the implicated
   agent.(30)

Similar assertions in the first edition led a number of courts to accept the manual's reasoning, many citing the manual as their authority.(31) There is, however, much scientific and legal disagreement about this premise.(32)

The manual's impact can be appreciated by examining the Eleventh Circuit's opinion in Allison v. McGhan Medical Corp.:

   The threshold for concluding that an agent more likely than not caused a
   disease is 2.0. A relative risk of 1.0 means that the agent has no
   causative effect on incidence. A relative risk of 2.0 thus implies a 50
   percent likelihood that the agent caused the disease. Risks greater than
   2.0 permit an inference that the plaintiffs disease was more likely than
   not caused by the agent.(33)

In Allison, the plaintiff offered a board-certified rheumatologist and chair of the department of rheumatology at the University of California at Davis Medical School. The district court acknowledged the witness's "impeccable qualifications."(34) The expert's opinion was that silicone from breast implants caused the plaintiff's autoimmune disease, based, in part, on his review of four epidemiological studies. One study showed a significant statistical correlation of silicone implants and increased ANA (antinuclear antibodies). The relative risk, however, was only 1.24. That finding was "so significantly close to 1.0 that the court thought the study was not worth serious consideration for proving causation."(35)

The appellate court, relying on the manual, determined that the expert's 4 studies were in direct contrast to the more than 20 other epidemiological studies that found no statistical correlation--"strong evidence that a consensus exists in the general scientific community that no correlation exists."(36) The court, therefore, upheld the exclusion of the expert's opinions.

Other epidemiological principles

The court apparently failed to consider several epidemiological principles not addressed by the reference guide. Epidemiological studies that do not show a statistical correlation between cause and effect do not prove that there is no association. "[Human] epidemiologic studies are useful in generating hypotheses and providing supporting data but can rarely be used to make a causal inference. [E]pidemiologic studies are inherently capable of detecting only comparatively large increases in the relative risk.... Negative results from such studies cannot prove the absence of [risk]."(37)

For example, early epidemiological studies did not identify the drug thalidomide as toxic. Yet, the FDA kept the drug out of this country because of animal study results and early case reports of birth defects--side effects insufficiently numerous to register in epidemiologic studies.(38)

Moreover, relying on the manual, the court made the mistake discussed by Kenneth Rothman and fellow epidemiologists in their amicus brief in Daubert. They explained: "The notion that only when data demonstrate `statistical significance' do epidemiologists draw inferences about observed associations between suspected risk factors and medical conditions is mistaken."(39) "Testing for significance, however, is often mistaken for a sine qua non of scientific inference."(40)

At the time, Rothman was the editor of the journal Epidemiology and a member of the editorial board of The New England Journal of Medicine. He also served as professor of public health (epidemiology and biostatistics) at Boston University School of Medicine and Public Health and was an adjunct professor of epidemiology at the Harvard School of Public Health.

Concerning the role of significance testing, Rothman and his colleagues wrote in their brief:

   [U]ndue reliance is often placed on its role in epidemiologic data
   analysis.... [I]t should not be allowed to assume an importance or role in
   law beyond its use as an epidemiologic tool.... When used to evaluate the
   association between exposure and disease, the concept of statistical
   significance is often misleading and never descriptive of the magnitude of
   effect or the precision of measurement.(41)

The guide's authors and the courts that rely on the manual for the doubling theory fail to recognize that proof to a scientific certainty generally amounts to something like 95 percent certainty that a presumed cause-effect correlation is not due to mere chance. However, epidemiological evidence can be informative, even when it doesn't rise to this level. If people are getting sick to a 90 percent statistically significant level, it means that exposed people are becoming ill in overwhelmingly higher numbers than people who were not exposed. Scientists recognize that as a high correlation.

One problem with the guide's approach is that it essentially requires the plaintiff to prove causation by more than a preponderance of the evidence. A preponderance of the evidence is generally considered to be a more than 50 percent likelihood--not a more than 95 percent likelihood--that the connection is not due to chance.

The Allison court and the authors of the epidemiology reference guide have it backward. The burden the law imposes on plaintiffs in tort cases--to prove that the defendant's product "more likely than not" caused the plaintiff's injury--is less of a burden than science places on itself. The manual ratchets up the standard of proof in civil litigation.

As Judge Mark Bernstein of the Philadelphia Court of Common Pleas stated:

   In some fields it has been proposed it has to be established to a 95
   percent of confidence interval. This fundamentally changes the burden of
   proof! The standard should be that the expert needs to testify to only a
   reasonable degree of scientific certainty.... Are we grafting onto that
   definition concepts of scientific conformity, scientific uniformity, or
   scientific certainty? And, if so, are we not then letting the gods of
   science determine what is legitimate and illegitimate for presentation in
   the courts?(42)

Moreover, while epidemiology is important, it is only one type of evidence considered by physicians. The scientific community has never exclusively relied on it as the accepted method of evaluating cause-effect relationships in making medical decisions. When a person is run over by a car and dies, the death can be attributed to the trauma of being struck by the vehicle. An epidemiological study is not necessary to determine if the trauma caused the death.

In a recent Daubert hearing involving the drug Parlodel, Judge James Rosenbaum of the District of Minnesota asked defense counsel if there were "any controlled clinical studies that show that a bullet shot into the temple of a person caused their death?"(43) Rosenbaum concluded: "It is undoubtedly true that in some scientific context, the proponents of evidence are properly required to present prospective, double-blind, randomized, extensive, longterm epidemiological studies.... But this court does not determine ... that it must create such a requirement in all cases involving scientific evidence."(44)

Differential diagnosis 

Another area of concern for plaintiff counsel is the second edition's treatment of what physicians call "differential diagnosis." Berger's section discusses whether treating physicians can testify based on a differential diagnosis, a technique the first edition said was reliable and met Daubert criteria.(45)

In the second edition, Berger highlights two Fifth Circuit decisions in single-plaintiff toxic tort cases holding that a medical expert could testify about causation using this technique only if sufficient proof existed that the medical establishment knew how and at what exposures the substance in question could cause plaintiffs' injuries.(46)

Less space is devoted to decisions "at the opposite end of the spectrum," which allow expert testimony based on differential diagnosis.(47) For people offering expert testimony based on differential diagnosis, the discussion is a must, as is one on differential diagnosis included in the second edition's new guide on medical testimony.(48)

When asked about "differential diagnosis," physicians usually use the definition from Dorland's Illustrated Medical Dictionary: "the determination of which one of two or more diseases or conditions a patient is suffering from, by systematically comparing and contrasting their clinical findings."(49) Physicians explain that, in coming to a differential diagnosis, the possible conditions are listed from most likely to least likely--with the first being the most probable. Physicians also apply the same systematic approach in coming to a conclusion about the causes of the patient's condition.

The new guide on medical testimony has a somewhat different view. Without citation to supporting authority, it claims that courts have "come to use certain medical terms, such as differential diagnosis ... in ways that differ from their common usage in the medical profession."(50) Contrary to Dorland's simple definition, the authors claim that most physicians "use the term to describe the process of determining which of several diseases is causing a patient's symptoms."(51) Missing is the fact that physicians use the process to decide which one disease is the most probable cause.

The authors also take issue with experts who have applied this same systematic process to identify external causes of a patient's condition. Nonetheless, they recognize courts have allowed expert evidence based on supported differential diagnosis and have even excluded physician experts for failing to perform differential diagnosis.(52)

Many personal injury cases will be affected if the manual is used to exclude differential diagnosis as a standard scientific tool in court. Yet, what do physicians do? The treating physician is faced daily with dilemmas involving differential diagnosis. Harvard Law Professor Charles Nesson described the following scenario:

   A patient has symptoms that will be fatal unless immediately treated. The
   symptoms are caused either by toxin X or by something else. If toxin X is
   the cause, drug A must be prescribed or the patient will die. If something
   else is the cause, drug B must be prescribed or the patient will die. The
   doctor cannot prescribe both drugs, because in combination they are always
   lethal.(53)

The physician will probably not reason that since toxin X has not been proven to be the cause to the high standards demanded by pure science, he or she should automatically prescribe drug B. Recognizing that causation is not knowable to a scientific certainty, the doctor will ask which of the two causes is the more likely. Nesson has written about this process:

   This standard of the treating doctor is the typical juridical standard of
   proof necessary for the doctor's opinion to serve as the basis for a jury's
   conclusion about what happened. To be sure, the doctor is not saying he is
   absolutely or scientifically certain of the diagnosis, but to expect him to
   be so would discourage treatment in most medical situations.... A qualified
   medical diagnostician is familiar with the scientific and medical
   literature. He assesses the significance of experiments and studies, not in
   the technical scientific sense of the statistician, but in an intuitive
   way. He anticipates what the scientist would be able to prove if he could
   structure the perfect study, the perfect experiment. Lacking complete
   information, the diagnostician gives his best judgment. By its nature this
   judgment is not, of itself, scientific proof, but may nonetheless
   constitute legal proof.(54)

If courts insist on proof to a legal certainty--the lab scientist's standard of proof of causation, proof to a high degree of statistical certainty--they have unfairly weighted the rules against recoveries in tort cases. As Nesson explains, imposing that standard as the threshold for finding causation "is tantamount to institutionalizing an objectively determinable probability greater than .5 for cases in which proof of causation involves a disputed supposition about the working of nature."(55) This point has been widely made by other legal scholars and scientists.(56)

These examples point out the importance of carefully reading the new edition of the manual. Counsel will, undoubtedly, find other portions with which they disagree. Sections will remain controversial. After all, there is no such thing as immutable scientific truth.

Nonetheless, the manual is here to stay. Everyone in litigation practice must have a working knowledge of it. Counsel should cite to helpful sections and be prepared to counter those that are contrary to law or science. Judges should be reminded that the manual is "not intended to instruct judges concerning what scientific evidence should be admissible."(57) But, however one views it, the manual is an authority with which to be reckoned.

Notes

(1.) FEDERAL JUDICIAL CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (2d ed. 2000) [hereafter SECOND EDITION]. The 1994 edition is available online through the Federal Judicial Center's home page: http://www.fjc.gov. An electronic version of the more than 600-page second edition can be downloaded from http://air.fjc.gov/public/fjcweb. nsf/pages/16.

(2.) Id. at v.

(3.) Id. at title page.

(4.) Id. at 3.

(5.) Id. at 3-4.

(6.) Id. at 4.

(7.) Id. at 4-5 (emphasis added).

(8.) FEDERAL JUDICIAL CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1 (1st ed. 1994) [hereafter FIRST EDITION].

(9.) Id.

(10.) Id. at 2 (citing CARNEGIE COMM'N ON SCIENCE, TECH. & GOV'T, SCIENCE AND TECHNOLOGY IN JUDICIAL DECISION MAKING: CREATING OPPORTUNITIES AND MEETING CHALLENGES 11 (1993)).

(11.) SECOND EDITION, supra note 1, at vi.

(12.) 509 U.S. 579 (1993).

(13.) MOLLY T. JOHNSON, ET AL., FEDERAL JUDICIAL CTR., EXPERT TESTIMONY IN FEDERAL CIVIL TRIALS: A PRELIMINARY ANALYSIS 1 (2000).

(14.) Id.

(15.) Gregory A. Weimer, Expert Evidence: What You Don't Know About Daubert Can Hurt You, 24 VT. B. J. & L. DIG. 51, 53 (1998).

(16.) FIRST EDITION, supra note 8, at 45.

(17.) Id. at 3.

(18.) Id. at vi.

(19.) Id. at 4.

(20.) John M. Conley & David W. Peterson, The Science of Gatekeeping: The Federal Judicial Center's New Reference Manual on Scientific Evidence, 74 N.C. L. REV. 1183, 1191 (1996).

(21.) 522 U.S. 136 (1997).

(22.) 526 U.S. 137 (1999).

(23.) SECOND EDITION, supra note 1, at 32.

(24.) Id. at 34.

(25.) Id. at 60 (citing Reilly v. United States, 863 F.2d 149, 157 (1st Cir. 1988)).

(26.) Id. at 59 n.48 (citing United States v. Green, 544 F.2d 138, 145 (3d Cir. 1976), cert. denied, 430 U.S. 910 (1977)).

(27.) Id. at 383 (citing 2 EDWARD J. DEVITT & CHARLES B. BLACKMAR, FEDERAL JURY PRACTICE AND INSTRUCTIONS [sections] 71.13 (3d ed. 1977)).

(28.) Id. at 384.

(29.) Id. at 383, n.136.

(30.) Id. at 384.

(31.) See id. and cases collected at n.140.

(32.) See, e.g., Mark Parascandola, What Is Wrong with the Probability of Causation? 39 JURIMETRICS J. 29 (1998).

(33.) 184 F.3d 1300, 1315 n.16 (11th Cir. 1999).

(34.) Id. at 1309.

(35.) Id. at 1315.

(36.) Id.

(37.) Final Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33,992, 33,995-96 (Sept. 24, 1986). Accord Chemical Carcinogens: A Review of the Science and Its Associated Principles, 50 Fed. Reg. 10,372, 10,378 (Mar. 14, 1985). For general discussions of why epidemiology rarely provides reliable answers, see Howard Latin, Good Science, Bad Regulation, and Toxic Risk Assessment, 5 YALE J. ON REG. 89, 103 (1988).

(38.) See Cindy Pearson, Doctor Who Stopped Thalidomide Celebrates 80th Birthday, NETWORK NEWS, Sept. 1, 1994, available at 1994 WL 13449243 at 1; Centennial Journal: Thalidomide Tragedy Spurs New Drug Laws, WALL ST. J., Sept. 6, 1989, at B1; Amy Linn, Researchers Meticulous Manner Halted Thalidomide, DALLAS MORNING NEWS, May 29, 1988, at 12A.

(39.) Brief of Amici Curiae Professors Kenneth Rothman et al., in Support of Petitioners, at 3. Daubert, 509 U.S. 579.

(40.) Id.

(41.) Id. at 4.

(42.) REPORT OF THE FORUM FOR STATE COURT JUDGES, ROSCOE POUND FOUND., SCIENTIFIC EVIDENCE IN THE COURTS: CONCEPTS AND CONTROVERSIES 32 (1997) (emphasis added).

(43.) Transcript of the Proceedings Before the Honorable James M. Rosenbaum at 3, Kittleson v. Sandoz Pharms. Corp., Inc., No. 98-2277 (D. Minn., Mar. 3, 2000).

(44.) Id. at 29-30.

(45.) FIRST EDITION, supra note 8, at 78-82. The first edition quotes at length from In re Paoli R. R. Yard PCB Litig., 35 F.3d 758-59 (3d Cir. 1994), in which the court approved the admission of testimony by plaintiffs' experts, specialists in internal medicine, who employed differential diagnosis.

(46.) SECOND EDITION, supra note 1, at 35-37.

(47.) Id. at 37.

(48.) Id. at 443-45.

(49.) DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 461 (1988) (emphasis added).

(50.) SECOND EDITION, supra note 1, at 443.

(51.) Id. at 443 (emphasis in original).

(52.) Id. at 444.

(53.) Charles Nesson, Agent Orange Meets the Blue Bus: Factfinding at the Frontier of Knowledge, 66 B.U.L. REV. 521, 529-30 (1986).

(54.) Id. at 528-29 (emphasis added).

(55.) Id. at 538-39

(56.) See, e.g., Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 NW. U. L. REV. 643, 667-68, 682-94, 697 (1992); Vincent M. Brannigan et al., Risk, Statistical Inference, and the Law of Evidence: The Use of Epidemiological Data in Toxic Torts Cases, 12 RISK ANALYSIS 343 (1991); D.H. Kaye, Is Proof of Statistical Significance Relevant? 61 WASH. L. REV. 1333 (1986).

(57.) SECOND EDITION, supra note 1, at vi.

NCA offers `Expert Evidence' seminar

ATLA's National College of Advocacy (NCA) is sponsoring a weekend seminar titled "Expert Evidence: Daubert and Its Progeny." The program, cosponsored by the Nevada Trial Lawyers Association, will be held March 9-10 at the Crowne Plaza Hotel Las Vegas.

Tentative topics include tips on how to counter defense arguments in a Daubert challenge, strategies for keeping plaintiff experts in and defense experts out, and an analysis of the Daubert, Joiner, Kumho, and Weisgram cases. Attendees can earn about 12.25 hours of CLE and NCA credits.

The NCA will offer the entire seminar on audiocassette and compact disc. The recordings and reference materials will be available for $325 to $420 and may be accepted in some states for MCLE credits. The audio portion and materials can also be ordered separately. To place an order, call Playback Now at [phone] and refer to ad code 4316.

Martha K. Wivell is a partner in the Minneapolis office of Robins, Kaplan, Miller & Ciresi.