attacking opposing expert testimony

8/9/2019 Attacking Opposing Expert Testimony

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Attacking Opposing ExpertTestimony

Step I. Win the Daubert/Foote hearing

Step II. What if you lose at the Dauberthearing?


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Ammunition Deposition of their expert

Testimony of another expert


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Burden is on proponent of evidence

A proponent who has free reign canusually say what he wants to, with a

few exceptions: Some disciplines are simply not

accepted.

graphology for personality assessment.

State v. Anderson, 379 N.W.2d 70, 75 (Minn.1985).

Daniels v Cummins, 66 Misc 2d 575 (N.Y. S.Ct.1971).


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Otherwise, you probably need Deposition or report of opposing

expert.

Some scientific ammunition to attackopposing expert.

Opinion of other experts

Scientific books or treatises

Peer reviewed periodicals


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Scientist v. Scientist Frequently, the battle is between

scientists

The small problem is, that you canget a law degree, a law license, andfind yourself trying lawsuits withoutmuch background in science.

The big problem is, that you can getelected or appointed to the benchwith the same limited background.


6/19

Kitzmiller v. Dovercross-examination of Michael Behe

Author ofDarwins Black Box Q. Let's turn back to Darwin's Black Box and continue discussing the

immune system. If you could turn to page 138? What you say is,"We can look high or we can look low in books or in journals, but theresult is the same. The scientific literature has no answers tothe question of the origin of the immune system." That's whatyou wrote, correct?

A. And in the context that means that the scientific literature hasno detailed testable answers to the question of how theimmune system could have arisen by random mutation andnatural selection.

Q. Now, you were here when Professor Miller testified? A. Yes. Q. And he discussed a number of articles on the immune system,

correct? A. Yes, he did.


7/19

Cross-examination: Behe Q. I'm just going to quickly identify what these articles are.

Exhibit P-256, "Transposition of HAT elements, links transposableelements, and VDJ recombination," that's an article in Nature by Zau, etal. P-279, an article in Science, "Similarities between initiation of VDJrecombination and retroviral integration," Gent, et al.

"VDJ recombination and RAG mediated transposition in yeast," P-280,that's in Molecular Cell by Platworthy, et al. P-281 in the EMBO Journal,

"En vivo transposition mediated VDJ recombinates in human Tlymphocytes," Messier, et al, spelled like the hockey player. P-283, it saysPLOS Biology, do you recognize that journal title?

A. Yes. It stands for Public Library of Science.

Q. And that's an article by Kapitnov and Gerka, RAG 1-4 and VDJrecombination, signal sequences were derived from transposons." P-747,an article in Nature, "Implications of transposition mediated by VDJrecombination proteins, RAG 1 and RAG 2, for origins of antigen specificimmunities," Eglewall, et al. P-748 in The Proceedings of the NationalAcademy of Science, "Molecular evolution of vertebrate immune system,"Bartle, et al., and now finally Exhibit P-755 in Blood , "VDJ recombinatesmediated transposition with the BCL 2 gene to the IGH locus and follicularlymphoma." Those were the articles in peer reviewed scientific journalsthat were discussed by Mr. Miller which you listened in on, correct?

A. I recognize most of them. Some of them I don't recall,but that's fine.

Specific articles

We cant gothrough thesenow.


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Behe Q. Professor Behe, what I have given you has been marked Plaintiff's Exhibit 743. It

actually has a title, "Behe immune system articles," but I think we can agree you didn'twrite these?

A. I'll have to look through. No, I did not. Q. And there are fifty-eight articles in here on the evolution of the immune

system? A. Yes. That's what it seems to say.

Q. So in addition to the, some of these I believe overlap with the eight that I previouslyidentified that Dr. Miller had talked about, so at a minimum fifty new articles?

A. Not all of them look to be new. This one here is from 1991 that I opened to, I thinkit's under tab number 3, it's entitled "Evidence suggesting an evolutionary relationshipbetween transposable elements and immune system recombination sequences." Ihaven't seen this article, but I assume that it's similar to the ones I presented anddiscussed in my testimony yesterday.

Q. And when I say new, I just meant different from the eight that I identified with Dr.Miller.

A. Yes, that's right.

Q. A minimum of fifty, and you're right they're not all new. Some go back asearly as 1971, and they go right through 2005, and in fact there's a few thatare dated 2006, which I guess would indicate a forthcoming publication.

A. I assume so. Q. Okay. So there's at least fifty more articles discussing the evolution of the immune

system?


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Behe Q. I'm just going to read these titles, it sounds like you

don't even need to look at them? A. Please do go ahead and read them.

Q. You've got Immune System Accessory Cells, Fornusek andVetvicka, and that's got a chapter called "Evolution of Immune

Sensory Functions." You've got a book called The Natural History ofthe Major Histocompatability Complex, that's part of the immunesystem, correct?

A. Yes.

Q. And here we've got chapter called "Evolution." Then we've gotFundamental Immunology, a chapter on the evolution of theimmune system.

A lot of writing, huh? A. Well, these books do seem to have the titles that you said, and

I'm sure they have the chapters in them that you mentioned aswell, but again I am quite skeptical, although I haven't read them,that in fact they present detailed rigorous models for the evolutionof the immune system by random mutation and natural selection.

Q. You haven't read those chapters? A. No, I haven't.


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Behe Q. You haven't read the books that I gave you? A. No, I haven't. I have read those papers that I presented though

yesterday on the immune system. Q. And the fifty-eight articles, some yes, some no? A. Well, the nice thing about science is that often times when you read the

latest articles, or a sampling of the latest articles, they certainly include

earlier results. So you get up to speed pretty quickly. You don't have to goback and read every article on a particular topic for the last fifty years orso.

Q. And all of these materials I gave you and, you know, those, includingthose you've read, none of them in your view meet the standard you set forliterature on the evolution of the immune system? No scientific literaturehas no answers to the question of the origin of the immune system?

A. Again in the context of that chapter, I meant no answers, nodetailed rigorous answers to the question of how the immune

system could arise by random mutation and natural selection, andyes, in my, in the reading I have done I have not found any suchstudies.


11/19

I tried to pick out something I think this trial has some of the best

expert witness battles Ive ever seen.

http://www.talkorigins.org/faqs/dover/kitzmiller_v_dover.html


12/19

Experts background and

qualifications Read the curriculum vitae.

Read relevant articles if possible

before the deposition. Read previous expert reports if you

can get them.

Read previous depositions if you canget them.


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On What Did the Expert Base the

Opinion What did the lawyer send him/her?

What was the experts initial

assignment? Did the expert do any research or

experiments?

Is the expert expecting any additionalinformation?


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Find out about relationship

between expert and lawyer "PLEASE HAVE RETYPED ON YOUR

OWN STATIONARY [sic]. THANK

YOU."] Consultation with other experts


15/19

Got anything for me? Their expert will have to admit some

things you like.


16/19

Authoritative Texts I recently had a case in which the question

was whether the standard of care requireda physician to start with a bolus of 20 cc/kg

of saline solution to rehydrate a dehydratedchild.

I had several texts that had that formula.

One goal, get the other sides expert to

acknowledge that the texts were reliable.


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Identify all opinions Harder than it seems:

Please state all the opinions you have

about this case.


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Is the expert out of his/r field? Can anyone but an M.D. or D.O.

testify about causation?

Can an M.D. testify as to the standardof care for an R.N.?

If so, does it require special training orexperience?


19/19

Methodology Marijuana and cerebral palsy case

from materials

attacking opposing expert testimony

Documents