MON: Kessler on Bazerman/Daubert

May 10, 2005 12:44 pm by Gene Borio

At the end of the morning session (Dr. Jonathan Gruber testified on youth smoking rate penalties), Judge Kessler explained her reasons for admitting Dr. Bazerman’s testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc

She began by saying she relied on the Daubert decision itself, as well as many cases in this circuit, none of which she found inconsistent with her ruling.

She especially cited several sections from the Court of Appeals ruling in Ambrosini v. LaBarraque. That ruling stated that

“The Daubert standard involves a two-prong analysis that centers on evidentiary reliability and relevancy:”

Since Judge Kessler is acting as a gatekeeper for herself, the trier of fact, she said in a bench trial, if the judge is to err at all, she should err on the side of admitting testimony, with the presumption that she would be able to apply rigorous standards in weighing the merits of the testimony.

She made it clear that relevancy was not an issue–the testimony was extremely relevant. She emphasized also that the legalities of Dr. Bazerman’s recommendations were a completely separate question from whether the testimony can be admitted.

She also made it clear that the issue is one of principles and methodology, and does not address conclusions. She said Ambrosini warned against combining the two issues in a Daubert decision:

By attempting to evaluate the credibility of opposing experts and the persuasiveness of competing scientific studies, the district court conflated the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a fact finder.

This sort of conflation, she said, is what the Defendants’ argument would lead to.

She detailed her reasons for finding that Dr. Bazerman was eminently qualified to testify as an expert in “behavioral decision research,” emphasizing his detailed methodology, his experience, and his scientific body of work. She said he has tested his theories, they have been subjected to peer review, and they are accepted in the scientific community.

Since there was an absence of evidence to the contrary, she said it would be a “clear error to preclude or strike the testimony in its entirety.”

Then Mr. Bernick arose to address the court . . .

[More later.]

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RESOURCES:

Daubert v. Merrell Dow Pharmaceuticals, Inc:

http://supct.law.cornell.edu:8080/supct/html/92-102.ZS.html

Ambrosini v. LaBarraque:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=dc&navby=case&no=957270a

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