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Focus on science, not checklists; lawyers must avoid efforts to force science to conform to the Daubert admissibility formula. Instead, they should focus on how scientists actually do their work.

The Supreme Court's Daubert trilogy--Daubert v. Merrell Dow Pharmaceuticals, Inc., (1) General Electric Co. v. Joiner, (2) and Kumho Tire Co., Ltd. v. Carmichael (3)--has forever changed the way lawyers fight battles over expert testimony. Before, experts often could testify based mostly on their credentials and demeanor; (4) now, a plaintiff must establish the scientific merit of the expert's opinions (or the merit based on the expert's field if he or she is not a scientist). As Justice Stephen Breyer made clear in Kumho, the objective of Daubert gatekeeping "is to make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (5)

This standard makes the expert evidence terrain steeper and more treacherous for plaintiffs, but not impassable for those who scale the heights by learning the science in their cases and presenting it clearly to both the judge and the jury. As in any battle, seizing the high ground is the key to victory, even though getting there may be tough.

The lawyer who masters the science in a case will not only get past Daubert, but also will be better prepared to present expert testimony to the jury and to attack the other side's experts. Perhaps most important, a plaintiffs' win at a Daubert hearing can change the dynamics of a case and push defendants toward a reasonable settlement.

Although science defies simple definition, most scientists would agree that a conclusion is neither valid nor reliable if it is not based on an empirically supported, rational explanation within the bounds of normal scientific discourse. In addition to reflecting the actual practice of science, this test fully accords with Daubert, especially as clarified in Kumho.

Despite the Daubert Court's clear admonition that its now-famous list of factors should not be considered exhaustive, (6) too many lawyers and too many courts have taken exactly that approach. The Fifth Circuit, lot example, has held that in "the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate. Once it considers the Daubert factors, the court then can consider whether other factors, not mentioned in Daubert, are relevant to the case at hand." (7) Other courts similarly start with the factors, and most of them often go no further.

Judges, however, are neither alone nor unabetted in their penchant for "factorology." Too often, their rulings merely reflect the way lawyers have argued the expert admissibility issue. Lawyers either refuse to or simply cannot learn the science well enough to "tell the scientific story." Instead they fall hack on what lawyers do best: They search for legal precedents and try to capture science in just the right checklist of factors.

For example, lawyers might argue that if the expert's work has been peer-reviewed, it must be admissible, because peer review is one of the famous Daubert factors. Or they maintain that lack of peer review requires exclusion. Both arguments are wrong. (8)

Taken together, the trilogy cases require an expert to provide an empirically supported, rational explanation, (9) but the testimony does not have to he absolutely certain to be admitted. Plaintiffs need not establish that experts are correct; as the Third Circuit stated, "They only have to demonstrate by a preponderance of the evidence that [the experts'] opinions are reliable." (10)

In his introduction to the Federal Judicial Center's Reference Manual on Scientific Evidence, Breyer explained the appropriate scope of judges' gatekeeping function by giving the example of a famous physicist who was asked if a certain scientific paper was wrong. The physicist replied, "That paper isn't even good enough to be wrong!" (11) It is only this kind of "science," Breyer explained, that the law should exclude from the courtroom. (12)

Thus, proving medical causation should not require an expert to clear a series of factor-by-factor hurdles. Zuchowicz v. United States provides an excellent example of the proper analysis. (13) The plaintiff claimed that an overdose of a drug used to treat endometriosis had caused his wife to develop primary pulmonary hypertension (PPH), which ultimately killed her. The court stated that "the rarity of PPH, combined with the fact that so few human beings have ever received such a high dose of [the drug], obviously impacted on the manner in which the plaintiff could prove causation." (14)

Although there was no epidemiological or even anecdotal evidence that the drug could cause PPH, the Second Circuit held in Zuchowicz that one expert's testimony was properly admitted became he explained how "the progression and timing of Mrs. Zuchowicz's disease in relation to her overdose supported a finding of drug-induced PPH." (15) The expert also "described the similarities between the course of Mrs. Zuchowicz's illness and that of accepted cases of drug-induced PHI.... He noted that the onset of [certain pulmonary] diseases, which are recognized to be caused by the particular drugs, was very similar in tinting and course to the development of Mrs. Zuchowicz's illness." (16)

The expert explained his reasoning, cited empirical support, and left no questions begged. By contrast, Libas, Ltd. v. United States, a customs and tariff case, shows the risk of leaving obvious questions unaddressed. (17) The issue on appeal was whether fabric imported from India had been made with a power loom or woven by hand. If made with a machine, it was subject to a higher tariff. The U.S. Customs Service used laboratory tests that it claimed were widely accepted to determine that the fabric was power-loomed. But the court held there was room for doubt because "the reliability of the test had not been established by the obvious and natural method of double-blind testing." (18) In other words, if the tests were run on various fabric samples, would they really be able to distinguish one kind of fabric from another? Such testing would have been easy to conduct, and without it the government's experts had no empirical support for their conclusions.

Not all courts have done as well as the courts in Zuchowicz and Libas, and far too many stick with the factors and nothing else, perhaps because too many lawyers fail to base their arguments on the actual practice of science. In DePaepe v. General Motors Corp., (19) the Seventh Circuit admonished that the defendant's objections to expert engineering testimony did not address the real issues: The GM lawyers' "cri de coeur is not backed up by references to any body of scientific knowledge. What tests do engineers use to resolve questions of the kind [the expert] addressed [here]? What tests should he have performed? What data did he overlook?" (20)

The court went on to chastise counsel for asking
 appellate judges to make a priori judgments
 about how scientific inquiry should
 be conducted. That way quackery lies.... A
 litigant that wants a court of appeals to set
 aside a district judge's decision to admit
 expert testimony has to do more than
 appeal to a lawyer's sense of how science
 should be done. (21)

At its worst, the factor-by-factor approach has led some courts to impose standards far stricter than scientists themselves would require, which is completely antithetical to Daubert. As Margaret Berger, a professor at Brooklyn Law School in New York and highly regarded evidence scholar, has cautioned, an "oversimplified view of science has increased the ability, of federal trial judges to exclude the plaintiffs' experts by ignoring the differing objectives of science and the law and by failing to examine the premises on which some scientific conclusions rest." (22) She further notes that "some courts have moved beyond science by creating new rules in the name of science that do not exist in the scientific community." (23)

Navigating science in court

In lieu of "factorology," several guideposts can help lawyers traverse the terrain of science and Daubert. They constitute neither a definition of science nor the outline for a rigorous analysis of scientific admissibility. Rather, they are an attempt to help lawyers focus the "scientific story" in their cases and present it clearly to the court. (24)

* Guidepost 1: Learn the science (engineering, medicine, perfume testing, or whatever field is at issue). Perhaps the most remarkable part of Breyer's Kumho opinion was its detailed discussion of tire-failure analysis and why the expert had not performed a proper one. The opinion even included a cutaway picture to show how a radial tire is constructed, and it cited numerous technical publications about tire design and testing. The lesson for lawyers should be clear: We have to learn this stuff if we are going to convince anyone (especially a judge) that an expert's testimony should or should not be admitted. It is time to go to the science library, not just the law library.

Judges need to learn this stuff, too. The Supreme Court's thinking has evolved significantly since Chief Justice William Rehnquist's Daubert concurrence expressed concern about district judges' becoming "amateur scientists." (25) In Kumho, three justices wrote separately to admonish trial courts that the discretion to determine admissibility did not constitute discretion to ignore their gatekeeping responsibilities. (26) Though their concurrence favors defendants, plaintiff lawyers should argue that this admonition means evidence cannot be excluded based on a cursory analysis, and that according to Kumho and Breyer's example in the Reference Manual, courts should not exclude testimony if it falls within the bounds of normal scientific discourse and if the expert has provided an empirically supported, rational explanation.

* Guidepost 2: Rely on explanation, not just precedent. Before the Daubert trilogy, lawyers confronted with a new kind of expert may have relied on precedents from judicial decisions; now, they most be prepared to explain the substance of expert issues, not just how other courts have handled them. For scientists, perhaps the most confusing part of the law is its reliance on precedent even in the absence of empirical sup port. They cannot understand why something stupid can be "right" just because it is approved in a court ruling somewhere.

Lawyers and judges now may have to adopt a similar attitude, especially regarding pre-Daubert decisions that contain little explanation for their rulings on admissibility. Moreover; relying solely on precedent ignores the kind of dynamic developments that occur not just in science, but also in many other fields.

Plaintiff lawyers should be especially mindful of this guidepost in cases where courts generally have tended to reject a certain kind of evidence. Also, plaintiffs should argue that even if early cases about a product resulted in summary judgments, subsequent cases should not be foreclosed. Often, it takes lawyers time and several cases to master the science, and it would be wrong to terminate a whole category of litigation just because of early bad results: It took several years for plaintiff lawyers to start winning asbestos cases with regularity, and the defense won some of the first cases simply because the scientific evidence had not yet been adequately developed.

* Guidepost 3: Focus on the specifics of an expert's opinion, not just the field of expertise. While legal precedents may address an expert's profession generally, they may not apply to what is really at issue in a subsequent case. Until Kumho, litigants and judges typically addressed the applicability of Daubert based on the general area of expertise at issue. All engineering was treated alike, all toxicology was treated alike, and so on. Indeed, it was this kind of thinking that led some courts to draw sharp distinctions between science and nonscience in deciding whether to apply Daubert at all.

Kumho makes clear that what matters is not merely the field of expertise, but rather the expert's specific proposition. The trial judge is to assess reliability based on "the nature of the issue, the expert's particular expertise, and the subject of the testimony." (27) Plaintiff lawyers faced with categorical arguments about an expert's testimony must take special care to have the expert explain what he or she did, and to emphasize the expert's reasoning and empirical support rather than only his or her qualifications.

* Guidepost 4: Avoid substituting legalistic jargon for scientific explanation. Experts often use terms like "substantial factor" and "reasonable medical certainty," but when pressed they often can't explain what such terms mean, or they give definitions that are clearly deficient as a matter of law.

Aldridge v. Goodyear Tire & Rubber Co., a toxic tort case, provides an excellent example. (28) An expert explained that what he meant by "causation" was that each chemical "substantially increased the risk of causing cancer." (29) Further probing at his deposition revealed that to him, "causation" meant only that the risk was greater (perhaps only marginally greater) with exposure to the chemical than without exposure. The expert had no idea what concentrations of the chemical were necessary to cause harm, and did not know the concentrations to which the plaintiffs had been exposed. (30)

Having an expert mouth conclusory legalistic jargon may no longer work. Again, the emphasis should be on explanation and how the expert's conclusions are supported by empirical evidence.

* Guidepost 5: Focus on why your expert is different from the opponent's expert. Lawyers must not only understand expert issues, but also help the court and the jury understand, as well. We must learn how to use our own experts effectively to demonstrate that an opponent's expert has departed from the rigors of his or her profession. We must work with our experts to explain to the court, by affidavit or otherwise, how a test could be performed to verify or refute the hypothesis at issue in the ease (see Guidepost 3).

* Guidepost 6: Do not drive round conceptual pegs through square "legal factor" holes. Pre-Kumho decisions that emphasized the Daubert factors for all cases are no longer good precedent, for good reason: They simply made no sense.

One of the more extreme examples, although not from a federal court, is still worth relating. Franks v. Lopez involved wrongful death claims stemming from the drowning of two people in a car that rolled down an embankment. The plaintiffs sued the local government responsible for the road--on the theory that given the slope of the embankment there should have been a guardrail at the top. Incredibly, the degree of the slope--easily determined by reference to an elementary surveying book--became a contested issue, with contending expert testimony. The trial court had excluded the plaintiff expert based on the four Daubert factors. The appellate court properly held this was art abuse of discretion. (31)

* Guidepost 7: Use the Daubert factors to describe scientific methodology, not to evaluate it. One of the problems created by the Daubert factors is the misconception that they are criteria for evaluating an expert's methodology or conclusions. They are best understood, however, as a description of how scientists go about their work.

For example, when James Watson and Francis Crick did their Nobel Prize-winning work on the structure of DNA, their seminal article in Nature announced their discovery, not the development of a new methodology. It was the reasoning behind their conclusion, not the methods they used, that was subject to peer review.

* Guidepost 8: Remember Joiner's "how and why" requirement and Daubert's focus on methodology. One of the greatest sources of confusion in Daubert was the Court's admonition that in determining the admissibility of scientific evidence, the "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." (32) This language led some commentators to argue that conclusions made no difference whatsoever. (33)

The real focus, however, is broaden and encompasses both reasoning and methodology. Conclusions have to make sense no matter what an expert's methodology. Any doubts on this issue were resolved in Joiner. (34) Joiner further made clear that it is important for experts to explain their conclusions. The plaintiffs were criticized for their failure to explain "how and why the experts could have extrapolated their opinions from ... seemingly far-removed animal studies." (35)

Interpreted in this way to include "reasoned explanation," the methodology/ conclusion distinction still applied, how ever, and it is indeed central to a proper Daubert analysis. Thus, plaintiffs may want to consider retaining "methodology, experts," chosen to address methodology and reasoning at a general level. Taking a cue straight from Joiner, such experts should explain how and why experts in the field at issue go about their day-to-day work. In some cases, someone versed in the history and philosophy of science also may be useful.

* Guidepost 9: Do not concentrate just on one part of an expert's reasoning at the expense of the rest. Like used-car salesmen who focus on a car's shiny good looks to avoid questions about its worn-out parts, lawyers trying to "sell" shaky expertise in the courtroom sometimes harp on the few good things their expert might have done. In toxic tort cases, for example, one often hears that scientists consider animal studies in determining whether a substance can cause disease in humans, and that because the plaintiff experts looked at animal studies, their testimony should be admissible. What this argument misses, of course, is the fact that scientists considering causation outside the courtroom generally (though not always) require more than animal studies, and it all has to fit together in a logical and coherent way.

Recall Kumho's statement that the proper locus is whether the expert's opinions in the courtroom were formulated with "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (36)

Plaintiff lawyers need to be particularly aware of this guidepost when dealing with apparently adverse precedents that are not really on point. For example, the fact that courts have generally rejected causation testimony based only on animal studies should not mean that reliance on animal studies is always proscribed. In some circumstances, animal studies may indeed suffice. Fox example, if the biochemical pathway for the metabolism of a toxic substance is the same in an animal as in humans, the same organ is affected, and the adverse health effect is the same, an animal study may be more than adequate, especially for an acute as opposed to a latent disease.

* Guidepost 10: If an expert witness relies on experience, explain how that experience relates to the expert's opinions. In Kumho, the Supreme Court flatly rejected the Eleventh Circuit's holding that a trial court may consider the Daubert factors "only where an expert 'relies on the application of scientific principles,' but not where an expert relies 'on skill- or experience-based observation.'" (37)

The Court noted that, contrary to the Eleventh Circuit's view, it might well be proper for the court to ask "how often an engineering expert's experience-based methodology has produced erroneous results" or whether the expert's method "is generally accepted in the relevant engineering community." (38) Even a perfume-tester is subject to Daubert and at least some of the Daubert factors. Thus, if a plaintiff expert relies primarily on experience for his or her opinions, it is especially important to explain precisely what that expert's experience is and the connection between the expert's personal experience and the proposition being advanced in court.

* Guidepost 11: Do not forget qualifications. The Daubert/Kumho admissibility standards presuppose that the expert at issue is qualified. In Daubert, the Supreme Court acknowledged that the experts were highly qualified. (39) In exercising their gatekeeping function under Rule 702, however, many courts have increased the vigilance with which they scrutinize the qualifications of experts. (40)

In the wake of Kumho, the question of qualifications takes on even greater importance. Even though the expert's qualifications were not challenged, the court's emphasis on the case-specific nature of the admissibility determination suggests that when experts attempt to justify conclusions on the basis of personal experience rather than on the established methodology of their profession, it is critical to determine what specific experience and what qualifications the expert has that are directly related to the proposition being advanced in the courtroom.

The further removed the expert's experience and qualifications are from the specific point at issue, and the more difficult it is to verify or refute the expert's proposition through the scientific method or other objective standards, the more likely it is that one will be accused of a dreaded ipse dixit. Plaintiff lawyers trying to avoid such a fate should make sure to have an expert explain his or her profession and how it relates to the case at hand.

* Guidepost 12: Remember that otherwise is wise. Sometimes an expert, through experience, has observed a pattern, and a party wants him or her to testify about it. Consider, for example, a physician witness in a toxic tort case who has made a series of clinical observations of patients with a certain disease, but has no other basis for opining that the substance in question is capable of causing the disease. How should the court assess the reliability and relevance of testimony from such a witness?

Some courts have held that it is proper to apply the Daubert criteria in such a situation because a doctor testifying to medical causation is offering scientific testimony subject to Daubert. (41) Rule 702, however, permits a distinction between the witness's clinical observations and his or her opinions about the cause of the observed "pattern." The former may he admissible even if the latter is not. (42)

The rule provides that an expert who is qualified "may testify in the form of an opinion or otherwise." (Emphasis added.) The last two words ought to give courts discretion to decide that in such a situation the expert may testify to the clinical observations, and perhaps the pattern of clinical observations, even if an opinion on causation is unwarranted. Leave that to other experts.

The Daubert trilogy requires judges to base decisions about the admissibility of expert evidence on what experts actually do in their work out of court. Too often, however, judges shortcut this inquiry by trying to reduce science and other fields of technical expertise to a checklist of factors. They never address the reasoning and explanation that underlie the expert's conclusions, perhaps because lawyers, too, tend to focus on "factorology."

To reverse this unfortunate trend, plaintiff lawyers should emphasize what the trilogy really requires of scientific experts--nothing more, and nothing less, than an empirically supported, rational explanation within the bounds of normal scientific discourse. If a plaintiff expert were in a room with other scientists in the field at issue, would they take seriously the explanation of how his or her conclusions were reached? Or would they consider the testimony so far removed from science as not to merit discussion? Only the latter should lead to exclusion of the testimony,

The plaintiff bar must show courts that the distorted factor-by-factor approach they typically take is contrary to both science and the Supreme Court's message in the Daubert trilogy.


(1.) 509 U.S. 579 (1993).

(2.) 522 U.S. 136 (1997).

(3.) 526 U.S. 137 (1999).

(4.) See, e.g., Wells v. Ortho Pharm. Corp., 788 F.2d 741, 745, and n.8 (11th Cir. 1986); Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1534 (D.C. Cir. 1984). But see In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1223, 1231 (E.D.N.Y. 1985).

(5.) 526 U.S. 137, 152.

(6.) The Daubert factors are: (1) "whether a theory or technique can be (and has been) tested" (testing); (2) "whether the theory or technique has been subjected to peer review and publication" (peer review); (3) "in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation" (error rate and standards); and (4) general acceptance. 509 U.S. 579, 593-94. At least one court has recognized that error rate does not apply to medical causation. Sorensen v. Shaklee Corp., 31 F.3d 638, 649 (8th Cir. 1994). See also Bert Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 785 (1994) (error rate relates for the most part to well-defined techniques and instruments, and "less to the determination of validity than do the other factors the Court considered [in Daubert].").

(7.) Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir. 1999).

(8.) Bert Black, Learn the Science in Your Cases, TRIAL, Sept. 2093, at 18.

(9.) As a recent law review article explains, "most of the Daubert factors ... ale calculable by applying 'general canons' of rational and empirical thinking." Alani Golanski, Why Legal Scholars Get Daubert Wrong: A Contextualist Explanation of Law's Epistemology, 22 WHITTIER L. REV. 653, 670-71 (2001).

(10.) In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).

(11.) Stephen Breyer, Introduction, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1, 4 (2d ed. 2000).

(12.) Id. The opinion in Kumho, written by Breyer, held that the district court had not abused its discretion in excluding expert testimony on the reason why a tire had failed because the testimony "fell outside the range where experts might reasonably differ, and where the jury must decide among the conflicting views of different experts, even though the evidence is 'shaky.'" 526 U.S. 137, 153.

(13.) 140 F.3d 381 (2d Cir. 1998).

(14.) Id. at 385.

(15.) Id.

(16.) Id. at 385-86; see also Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262, 265 (4th Cir. 1999); Kennedy v. Collagen Corp., 161 F.3d 1226, 1229 (9th Cir. 1998) ; Benedi v. McNeil P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995).

(17.) 193 F.3d 1361 (Fed. Cir. 1999).

(18.) Id. at 1368.

(19.) 141 F.3d 715 (7th Cir. 1998).

(20.) Id. at 720.

(21.) Id.

(22.) Margaret A. Berger, Upsetting the Balance Between Adverse Interests: The Impact of the Supreme Court's Trilogy on Expert Testimony in Toxic Tort Litigation, 64 LAW & CONTEMP. PROBS. 289, 302 (2001).

(23.) Id.

(24.) This section of this paper is based on Jonathan M. Hoffman & Bert Black, Old Tires and New Limits: The Affect of Kumho Tire on Expert Testimony, 13 TOXICS LAW REP. 1360, 1365-68 (1999). Though written from a defense perspective, the guideposts in this article in fact provide a "Daubert trilogy roadmap" for plaintiff lawyers as well. They have been modified here to emphasize the plaintiff's perspective.

(25.) Daubert. 509 U.S. 579, 602 (Rehnquist, C.J., concurring).

(26.) 526 U.S. 137, 158-59 (Scalia, O'Connor, and Thomas, JJ., concurring).

(27.) Id. at 150.

(28.) 34 F. Supp. 2d 1010 (D. Md. 1999), vacated on other grounds, 223 F.3d 263 (4th Cir. 2000).

(29.) Id. at 1018.

(30.) Id. For further discussion of how to deal with this kind of issue, see Bert Black et al., Unraveling Causation: Back to the Basics, 7 TOXICS L. REP. 1061 (1993); Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 MD. L. REV. 380 (1998).

(31.) 700 N.E.2d 385 (Ohio Ct. App. (1997).

(32.) 509 U.S. 579, 595.

(33.) See, e.g., Kenneth J. Chesebro, Taking Daubert's "Focus" Seriously: The Methodology Conclusion Distinction, " 15 CARDOZO L. REV. 1745, 1746 (1994) ("An expert's principles and methodology alone are the focus of Rule 702.").

(34.) 522 U.S. 136, 146 ("[C]onclusions and methodology are not entirely distinct from one another.").

(35.) Id. at 144.

(36.) Kumho, 526 U.S. 137, 152.

(37.) Id. at 151 (quoting Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435 (11th Cir. 1997)). The Court also rejected the earlier holding in Compton v. Subaru of America, 82 F.3d 1513 (10th Cir. 1996).

(38.) Id.

(39.) Daubert, 509 U.S. 579, 583 n.2. See also Kumho, 526 U.S. 137, 153 ("The district court did not doubt Carlson's qualifications....').

(40.) See, e.g., Surace v. Caterpillar, Inc., 111 F.3d 1039, 1055-56 (3d Cir. 1997); Smelser v. Norfolk So. Ry. Co., 105 F.3d 299, 305 (6th Cir. 1997); O'Connor v. Commonwealth Edison Co., 13 F.3d 1090, 1107 (7th Cir. 1994).

(41.) Compare Moore v. Ashland Chem., 151 F.3d 269, 275-79 (5th Cir. 1998) (en bane) (applying Daubert criteria in rejecting a respiratory specialist's testimony that plaintiff's reactive airways dysfunction syndrome was caused by exposure to vapors from a chemical spill), and Mitchell v. Gencorp, Inc., 165 F.3d 778 (10th Cir. 1999) (applying Daubert criteria in rejecting medical testimony that benzene exposure caused plaintiff's leukemia), with Kennedy v. Collagen Corp., 161 F.3d 1226, 1227, and n.1 (9th Cir. 1998) (applying Daubert criteria in allowing clinical medical testimony in a case involving injection of a substance by a medical doctor even though the Ninth Circuit had previously held after Daubert that causation testimony may be based only on experience and review of medical records).

(42.) See Heller v. Shaw Indus., Inc., 167 F.3d 146, 159 n.8 (3d Cir. 1999).

BERT BLACK practices law with Diamond McCarthy Taylor Finley Bryant & Lee in Dallas.
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