THE SCIENTIFIC METHODTHE SCIENTIFIC METHOD

JAMES TREFILJAMES TREFILClarence J Robinson Professor of Clarence J Robinson Professor of

PhysicsPhysicsGeorge Mason UniversityGeorge Mason University

BUTBUT

WHAT IF WE FIND 11?WHAT IF WE FIND 11?

14?14?

25?25?

HYPOTHETICAL APPROACHHYPOTHETICAL APPROACH

WHAT IF WE TOOK 100 GROUPS OF A WHAT IF WE TOOK 100 GROUPS OF A MILLION PEOPLE EACH, NONE OF MILLION PEOPLE EACH, NONE OF WHOM HAVE BEEN EXPOSED TO WHOM HAVE BEEN EXPOSED TO SUBSTANCE X?SUBSTANCE X?

IN EACH GROUP, SOME PEOPLE IN EACH GROUP, SOME PEOPLE WOULD HAVE THE DISEASE.WOULD HAVE THE DISEASE.

IN THE HYPOTHETICAL EXPERIMENT, MAKE IN THE HYPOTHETICAL EXPERIMENT, MAKE A PLOT AS FOLLOWS:A PLOT AS FOLLOWS:

HORIZONTAL AXIS: NUMBER OF PEOPLE IN HORIZONTAL AXIS: NUMBER OF PEOPLE IN EACH GROUP WHO GET THE DISEASEEACH GROUP WHO GET THE DISEASE

VERTICAL AXIS: NUMBER OF GROUPS IN VERTICAL AXIS: NUMBER OF GROUPS IN WHICH A SPECIFIC NUMBER OF CASES WHICH A SPECIFIC NUMBER OF CASES APPEARAPPEAR

RIGHT NOW, FEDERAL STANDARD RIGHT NOW, FEDERAL STANDARD SEEMS TO BE EVOLVING TOWARD SEEMS TO BE EVOLVING TOWARD FINDING SIGNIFICANCE WHEN FINDING SIGNIFICANCE WHEN EFFECT IS TWICE THAT OF CHANCEEFFECT IS TWICE THAT OF CHANCE

SEVEN WARNING SIGNS OF SEVEN WARNING SIGNS OF BOGUS SCIENCEBOGUS SCIENCE

1.1. DISCOVERY PITCHED TO MEDIADISCOVERY PITCHED TO MEDIA2.2. CLAIM THAT THE ESTABLISHMENT IS CLAIM THAT THE ESTABLISHMENT IS

SUPPRESSING WORKSUPPRESSING WORK3.3. EFFECT AT LIMIT OF DETECTIONEFFECT AT LIMIT OF DETECTION4.4. ANECDOTAL EVIDENCEANECDOTAL EVIDENCE5.5. CLAIM THAT BELIEF IS VERY OLDCLAIM THAT BELIEF IS VERY OLD6.6. DISCOVERER ISOLATEDDISCOVERER ISOLATED7.7. NEW LAWS OF NATURE PROPOSEDNEW LAWS OF NATURE PROPOSED

ROBERT PARKSROBERT PARKS

DAUBERT CRITERIADAUBERT CRITERIA

TESTABILITY (LIKE FALSIFIABILITY)TESTABILITY (LIKE FALSIFIABILITY)PEER REVIEWPEER REVIEWERROR RATEERROR RATESTANDARDIZATIONSTANDARDIZATIONGENERAL ACCEPTANCEGENERAL ACCEPTANCE

NONNON--EXCLUSIVEEXCLUSIVE

SCIENTIFIC COMMENTARY SCIENTIFIC COMMENTARY ON SELECTED CASESON SELECTED CASES

JAMES TREFILJAMES TREFILClarence J Robinson Professor of Clarence J Robinson Professor of

PhysicsPhysicsGeorge Mason UniversityGeorge Mason University

CHADD v. FOLKESCHADD v. FOLKES

17821782

Foundational case for expert witnessesFoundational case for expert witnesses

TIMELINETIMELINE

1780 1780 –– Grand jury in Norfolk finds 1758Grand jury in Norfolk finds 1758embankment a public nuisance. embankment a public nuisance. Commissioners hire men to remove itCommissioners hire men to remove it

1781 1781 –– Martin Martin FolkesFolkes, landowner, gets, landowner, getsinjunction in Chancery Court, sues injunction in Chancery Court, sues ChaddChadd (Commissioner) in Norfolk (Commissioner) in Norfolk Assizes to prevent removalAssizes to prevent removal

THE SEA IS EMBANKING, OF THE SEA IS EMBANKING, OF ITSELF, THE WHOLE COAST, AND ITSELF, THE WHOLE COAST, AND THE TIME WILL PROBABLY COME THE TIME WILL PROBABLY COME WHEN THIS HARBOR WILL WHEN THIS HARBOR WILL DIMINISHDIMINISH……..TO DRY LAND..TO DRY LAND

ROBERT MYLNE, FRSROBERT MYLNE, FRS

IN MATTERS OF SCIENCE, THE IN MATTERS OF SCIENCE, THE REASONING OF MEN OF SCIENCE REASONING OF MEN OF SCIENCE CAN ONLY BE ANSWERED BY CAN ONLY BE ANSWERED BY MEN OF SCIENCEMEN OF SCIENCE

CHIEF JUSTICE MANSFIELDCHIEF JUSTICE MANSFIELD

I FIND MYSELF FORCED BY FAIR I FIND MYSELF FORCED BY FAIR INDUCTION TO INFER THAT THE INDUCTION TO INFER THAT THE EMBANKMENTEMBANKMENT……IN 1758 COULD NOT IN 1758 COULD NOT HAVE CONTRIBUTED TO THE LANDING HAVE CONTRIBUTED TO THE LANDING UP (OF THE HARBOR)UP (OF THE HARBOR)

JOHN SMEATON, FRSJOHN SMEATON, FRS

TIMELINE (CONT.)TIMELINE (CONT.)

17821782–– NEW TRIAL WITH EXPERTS ON NEW TRIAL WITH EXPERTS ON BOTH SIDES. TRIAL JUDGE REFUSES BOTH SIDES. TRIAL JUDGE REFUSES TO ADMIT TESTIMONY OF JOHN TO ADMIT TESTIMONY OF JOHN SMEATON, FRS, ON GROUNDS THAT SMEATON, FRS, ON GROUNDS THAT IT IS HEARSAYIT IS HEARSAY

I CANNOT BELIEVE THAT WHEN THE I CANNOT BELIEVE THAT WHEN THE QUESTION IS, WHETHER A DEFECT QUESTION IS, WHETHER A DEFECT ARISES FROM A NATURAL OR ARISES FROM A NATURAL OR ARTIFICIAL CAUSE, THE OPINIONS OF ARTIFICIAL CAUSE, THE OPINIONS OF MEN OF SCIENCE ARE NOT TO BE MEN OF SCIENCE ARE NOT TO BE RECEIVEDRECEIVED

CHIEF JUSTICE MANSFIELDCHIEF JUSTICE MANSFIELD

OUTCOMES OF THIRD TRIALOUTCOMES OF THIRD TRIAL(1783)(1783)

THE JURY IGNORED ALL EXPERTS THE JURY IGNORED ALL EXPERTS AND FOUND FOR THE AND FOUND FOR THE COMMISSIONERSCOMMISSIONERSTHE EMBANKMENT WAS REMOVEDTHE EMBANKMENT WAS REMOVEDTHE HARBOR SILTED UPTHE HARBOR SILTED UPTHE TOWN IS NOW CALLED THE TOWN IS NOW CALLED ““WELLSWELLS--NEXTNEXT--THETHE--SEASEA””

SEVERN, KING, AND COMPANY SEVERN, KING, AND COMPANY v. IMPERIAL INSURANCEv. IMPERIAL INSURANCE

18201820

First example of dueling expertsFirst example of dueling experts

BACKGROUND FACTSBACKGROUND FACTS

IN 1816IN 1816--1819, HENRY WILSON 1819, HENRY WILSON PATENTS NEW SYSTEM USING PATENTS NEW SYSTEM USING HEATED WHALE OILHEATED WHALE OILIN 1819, SEVERN, KING INSTALL THE IN 1819, SEVERN, KING INSTALL THE SYSTEMSYSTEMIN APRIL, 1820, THE FACTORY BURNS IN APRIL, 1820, THE FACTORY BURNS DOWN. IMPERIAL INSURANCE DOWN. IMPERIAL INSURANCE REFUSES TO PAYREFUSES TO PAY

SCIENTIFIC ISSUESCIENTIFIC ISSUE

THEY KNEW THATTHEY KNEW THAT

NEW WHALE OIL PRODUCES NEW WHALE OIL PRODUCES FLAMMABLE GASSES AT 600FFLAMMABLE GASSES AT 600F

SUGAR PRODUCES FLAMMABLE SUGAR PRODUCES FLAMMABLE GASSES AT 350 FGASSES AT 350 F

BUTBUT

IN WILSONIN WILSON’’S APPARATUS, THE WHALE S APPARATUS, THE WHALE OIL WAS ONLY HEATED TO 350FOIL WAS ONLY HEATED TO 350F

COULD REPEATED HEATING AND COULD REPEATED HEATING AND COOLING CHANGE ITS PROPERTIES?COOLING CHANGE ITS PROPERTIES?

PLAINTIFFPLAINTIFF’’S EXPERT ROSTERS EXPERT ROSTERFIRST TRIALFIRST TRIAL

WILLIAM ALLEN, FRS, Chemistry, Guys WILLIAM ALLEN, FRS, Chemistry, Guys HospitalHospital

CHARLES SYLVESTOR, wrote chemistry CHARLES SYLVESTOR, wrote chemistry section of section of ReesRees’’ CyclopediaCyclopedia

THOMAS BERRY, Industrial ChemistTHOMAS BERRY, Industrial ChemistFREIDRICH ACCUM, Chief Engineer, FREIDRICH ACCUM, Chief Engineer,

Chartered Gas and Coal Co.Chartered Gas and Coal Co.SAMUEL PARKS, author, SAMUEL PARKS, author, Chemical Chemical

CatechismCatechism

DEFENDANT EXPERT ROSTERDEFENDANT EXPERT ROSTERFIRST TRIALFIRST TRIAL

ARTHURARTHUR AIKEN, Author, DAIKEN, Author, Dictionary of ictionary of ChemistryChemistry

RICHARD PHILLIPS, Chemistry Professor, RICHARD PHILLIPS, Chemistry Professor, Royal Military AcademyRoyal Military Academy

MICHAEL FARADAYMICHAEL FARADAY, Royal Institute, Royal InstituteJOHN BOSTOK, FRS, Chemist, Guys JOHN BOSTOK, FRS, Chemist, Guys

HospitalHospitalJOHN TAYLOR, JOHN MARTINEAU, JOHN TAYLOR, JOHN MARTINEAU,

Engineers, owners of refineryEngineers, owners of refinery

IT MUST BE A MATTER OF GENERAL IT MUST BE A MATTER OF GENERAL REGRET TO FIND THE RESPECTABLE REGRET TO FIND THE RESPECTABLE WITNESSESWITNESSES……DRAWN UP, NOT ON DRAWN UP, NOT ON ONE SIDE, AND FOR THE ONE SIDE, AND FOR THE MAINTENANCE OF THE SAME TRUTHS, MAINTENANCE OF THE SAME TRUTHS, BUTBUT……IN MARTIAL AND HOSTILE IN MARTIAL AND HOSTILE ARRAYARRAY

CHIEF JUSTICE LORD DALLASCHIEF JUSTICE LORD DALLAS

SECOND ROUND DRAFT PICKSSECOND ROUND DRAFT PICKS

PLAINTIFFSPLAINTIFFSTHOMAS THOMSON, Professor of Chemistry, THOMAS THOMSON, Professor of Chemistry,

Glasgow, author Glasgow, author System of ChemistrySystem of ChemistryJOHN DAVYJOHN DAVY, FRS, Chemist, FRS, ChemistJOHN DALTONJOHN DALTON, President, Manchester , President, Manchester

Philosophical SocietyPhilosophical SocietyDEFENDANTSDEFENDANTS

ALEXANDER TILLICH, Editor, ALEXANDER TILLICH, Editor, Philosophical Philosophical MagazineMagazine

FINAL WORDFINAL WORD

THEY LEFT THE COURT IN A STATE OF THEY LEFT THE COURT IN A STATE OF UTTER UNCERTAINTY, AND THE TWO UTTER UNCERTAINTY, AND THE TWO DAYS (OF TESTIMONY) WERE DAYS, DAYS (OF TESTIMONY) WERE DAYS, NOT OF TRIUMPH, BUT OF NOT OF TRIUMPH, BUT OF HUMILIATION FOR SCIENCEHUMILIATION FOR SCIENCE

CHIEF JUSTICE LORD DALLASCHIEF JUSTICE LORD DALLAS

SCIENTIFIC KNOWLEDGE AT SCIENTIFIC KNOWLEDGE AT THE TIMETHE TIME

1808 JOHN DALTON PUBLISHES 1808 JOHN DALTON PUBLISHES A NEW A NEW SYSTEM OF CHEMICAL PHILOSOPHYSYSTEM OF CHEMICAL PHILOSOPHY, , INTRODUCES MODERN ATOMINTRODUCES MODERN ATOM

1828 FRIEDRICH WOHLER MAKES UREA 1828 FRIEDRICH WOHLER MAKES UREA IN LABORATORY (FIRST ORGANIC IN LABORATORY (FIRST ORGANIC SYNTHESIS)SYNTHESIS)

EXAMPLES OF THINGS THAT EXAMPLES OF THINGS THAT COULD HAVE GONE WRONGCOULD HAVE GONE WRONG

OIL COULD HAVE HAD DIFFERENT OIL COULD HAVE HAD DIFFERENT TEMPERATURES IN DIFFERENT PARTS TEMPERATURES IN DIFFERENT PARTS OF THE VATOF THE VAT

THERMOMETER COULD AFFECT OIL THERMOMETER COULD AFFECT OIL TEMPERATURE IN SMALL EXPERIMENTS TEMPERATURE IN SMALL EXPERIMENTS BUT NOT IN FACTORYBUT NOT IN FACTORY

PEOPLE v. FRYEPEOPLE v. FRYE19231923

Established traditional standards of Established traditional standards of admissibilityadmissibility

BACKGROUNDBACKGROUND

In 1921, James Frye was arrested on In 1921, James Frye was arrested on robbery chargesrobbery chargesWhile in custody he confessed to the While in custody he confessed to the murder of a prominent physicianmurder of a prominent physicianHe later withdrew the confession, claiming He later withdrew the confession, claiming that the detective had offered him half of that the detective had offered him half of the reward moneythe reward moneyHis attorney tried to get evidence from a His attorney tried to get evidence from a ‘‘deception machinedeception machine’’ admittedadmitted

(DECEPTION TESTS) ARE (DECEPTION TESTS) ARE INADMISSIBLE UNTIL THERE IS AN INADMISSIBLE UNTIL THERE IS AN INFALLIBLE INSTRUMENT FOR INFALLIBLE INSTRUMENT FOR ASCERTAINING WHETHER A ASCERTAINING WHETHER A PERSON IS SPEAKING THE TRUTH PERSON IS SPEAKING THE TRUTH OR NOTOR NOT………………

……..I SHALL BE DEAD BY THAT I SHALL BE DEAD BY THAT TIME, PROBABLY, AND IT WILL TIME, PROBABLY, AND IT WILL BOTHER SOME OTHER JUDGE, BOTHER SOME OTHER JUDGE, NOT MENOT ME

JUDGE WALTER JUDGE WALTER McCOYMcCOY

FRYEFRYE

THE THING FROM WHICH THE THE THING FROM WHICH THE DEDUCTION IS MADE MUST BE DEDUCTION IS MADE MUST BE SUFFICIENTLY ESTABLISHED TO SUFFICIENTLY ESTABLISHED TO HAVE GAINED GENERAL HAVE GAINED GENERAL ACCEPTANCE IN THE ACCEPTANCE IN THE PARTICULAR FIELD IN WHICH IT PARTICULAR FIELD IN WHICH IT BELONGSBELONGS

FRYE (1923)FRYE (1923)

SCIENTIFIC KNOWLEDGE AT SCIENTIFIC KNOWLEDGE AT THE TIMETHE TIME

18971897–– FIRST PSYCHOLOGY DEPARTMENT FIRST PSYCHOLOGY DEPARTMENT ANYWHERE (LEIPZIG)ANYWHERE (LEIPZIG)

19071907-- FIRST ATTEMPT TO USE FIRST ATTEMPT TO USE ‘‘LIE LIE DETECTORDETECTOR’’ IN A POLICE INVESTIGATIONIN A POLICE INVESTIGATION

1918 1918 –– ARMY TRIES (UNSUCCESSFULLY) ARMY TRIES (UNSUCCESSFULLY) TO DEVELOP LIE DETECTORTO DEVELOP LIE DETECTOR

DAUBERT v. MERRILL DOW DAUBERT v. MERRILL DOW PHARMACEUTICALSPHARMACEUTICALS

19931993

Established judge as Established judge as ‘‘gatekeepergatekeeper’’ of of scientific testimonyscientific testimony

HOW IS IT PRONOUNCED?HOW IS IT PRONOUNCED?

IS ITIS IT

DoughDough-- BEAR?BEAR?

DAWDAW-- bertbert??

DOWDOW-- bertbert??

BACKGROUNDBACKGROUND

Jason Jason DaubertDaubert and Eric Schiller, minors, and Eric Schiller, minors, were born with serious birth defects after were born with serious birth defects after their mother took their mother took BendectinBendectinThere were 30 published studies (130,000 There were 30 published studies (130,000 patients) with no evidence for harmpatients) with no evidence for harmDaubertDaubert wanted to introduce unpublished wanted to introduce unpublished work. Trail court ruled the evidence didnwork. Trail court ruled the evidence didn’’t t meet Frye, meet Frye, appelateappelate court affirmedcourt affirmed

RULE 702RULE 702

IF SCIENTIFIC, TECHNICAL, OR OTHER IF SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL SPECIALIZED KNOWLEDGE WILL ASSIST THE TRIER OF FACT TO ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCEUNDERSTAND THE EVIDENCE……. A . A WITNESS QUALIFIED AS AN EXPERT WITNESS QUALIFIED AS AN EXPERT BY KNOWLEDGE, SKILL, EXPERIENCE, BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION MAY TRAINING, OR EDUCATION MAY TESTIFYTESTIFY……..

GATEKEEPERGATEKEEPER

THE TRIAL JUDGE MUST ENSURE THE TRIAL JUDGE MUST ENSURE THAT ANY AND ALL SCIENTIFIC THAT ANY AND ALL SCIENTIFIC TESTIMONY OR EVIDENCE TESTIMONY OR EVIDENCE ADMITTED IS NOT ONLY ADMITTED IS NOT ONLY RELEVANT, BUT RELIABLERELEVANT, BUT RELIABLE

JUSTICE BLACKMUNJUSTICE BLACKMUN

DAUBERT CRITERIADAUBERT CRITERIA

TESTABILITY (LIKE FALSIFIABILITY)TESTABILITY (LIKE FALSIFIABILITY)PEER REVIEWPEER REVIEWERROR RATEERROR RATESTANDARDIZATIONSTANDARDIZATIONGENERAL ACCEPTANCEGENERAL ACCEPTANCE

NONNON--EXCLUSIVEEXCLUSIVE

THE PART NOBODY TALKS THE PART NOBODY TALKS ABOUTABOUT

IF IF ‘‘ANYTHING GOESANYTHING GOES’’, WILL GULLIBLE , WILL GULLIBLE JURIES BE HOODWINKED BY JURIES BE HOODWINKED BY CHARLATANS?CHARLATANS?IF THE PROCESS IS DOMINATED BY IF THE PROCESS IS DOMINATED BY ORTHODOXY, WILL IT BE TOO ORTHODOXY, WILL IT BE TOO RESTRICTIVE?RESTRICTIVE?I COME DOWN ON THE I COME DOWN ON THE ‘‘GULLIBLEGULLIBLE’’SIDESIDE

COMPLAINT (MAINLY FROM COMPLAINT (MAINLY FROM PLAINTIFFPLAINTIFF’’S BAR)S BAR)

THIS ALLOWS DEFENDANT TO THIS ALLOWS DEFENDANT TO ‘‘CHERRY PICKCHERRY PICK’’ EVIDENCEEVIDENCE–– THE SUM THE SUM TOTAL OF THE EVIDENCE MAY HAVE TOTAL OF THE EVIDENCE MAY HAVE WEIGHT, EVEN THOUGH EACH PIECE WEIGHT, EVEN THOUGH EACH PIECE CAN BE CRITICIZEDCAN BE CRITICIZED

THE PLURAL OF ANECDOTE IS THE PLURAL OF ANECDOTE IS NOT EVIDENCENOT EVIDENCE

ANONYMOUSANONYMOUS

TREFILTREFIL’’S LAWS LAW

IF YOU PUT A LOT OF GARBAGE IF YOU PUT A LOT OF GARBAGE IN A PILE, WHAT YOU HAVE AT IN A PILE, WHAT YOU HAVE AT

THE END ISTHE END IS…………..

A PILE OF GARBAGEA PILE OF GARBAGE

GENERAL ELECTRIC GENERAL ELECTRIC v. JOINERv. JOINER

19971997

The standard for trial judges is The standard for trial judges is ““Abuse of DiscretionAbuse of Discretion””

BACKGROUNDBACKGROUND

Robert Joiner worked for utility company in Robert Joiner worked for utility company in Georgia, was exposed to PCBs in transformersGeorgia, was exposed to PCBs in transformersA lifelong smoker with a family history of lung A lifelong smoker with a family history of lung cancer, he contracted small cell lung cancercancer, he contracted small cell lung cancerJoiner claimed the PCBs had Joiner claimed the PCBs had ‘‘promotedpromoted’’ his his diseasediseaseTrial judge excluded evidence, Trial judge excluded evidence, applelateapplelate court court reversed reversed

TESTIMONY OFFEREDTESTIMONY OFFERED

•• ANIMAL STUDIESANIMAL STUDIES

•• DOSE CALCULATIONSDOSE CALCULATIONS

•• RERE--EVALUATION OF EPIDEMIOLOGICAL EVALUATION OF EPIDEMIOLOGICAL STUDIESSTUDIES

ANIMAL STUDIESANIMAL STUDIES

SPECIES DONSPECIES DON’’T ALWAYS REACT THE SAME T ALWAYS REACT THE SAME WAYWAYFOUND PCB CAUSED CANCER (BUT NOT FOUND PCB CAUSED CANCER (BUT NOT LUNG CANCER) IN YOUNG MICE, BUT NOT LUNG CANCER) IN YOUNG MICE, BUT NOT IN ADULT MICE OR IN OTHER SPECIESIN ADULT MICE OR IN OTHER SPECIES

TESTS HAVE TO BE MADE AT HIGH DOSE TESTS HAVE TO BE MADE AT HIGH DOSE TO GET A MEASURABLE RESULTTO GET A MEASURABLE RESULT

BUTBUT

WE REALLY NEED ANIMAL STUDIESWE REALLY NEED ANIMAL STUDIES

EXAMPLE: MULTIDOSE CHEMOTHERAPYEXAMPLE: MULTIDOSE CHEMOTHERAPY

KUMHO TIRE v. CARMICHAELKUMHO TIRE v. CARMICHAEL

19991999

DaubertDaubert criteria apply to technology criteria apply to technology as well as scienceas well as science

BACKGROUND FACTSBACKGROUND FACTS

IN JULY, 1993, PATRICK CARMICHAEL IN JULY, 1993, PATRICK CARMICHAEL BUYS USED MINIVANBUYS USED MINIVANDRIVES 7000 MILES UNTIL TIRE HAS DRIVES 7000 MILES UNTIL TIRE HAS BALD PATCHES AND 3/32BALD PATCHES AND 3/32”” OF TREADOF TREADTIRE BLOWS OUT AND HE SUES TIRE BLOWS OUT AND HE SUES KUMHO TIRES FOR MANUFACTURING KUMHO TIRES FOR MANUFACTURING DEFECTDEFECT

BACKGROUND (CONT.)BACKGROUND (CONT.)

CARMICHAELCARMICHAEL’’S EXPERT, DENNIS S EXPERT, DENNIS CARLSON, WORKED AT MICHELIN FOR CARLSON, WORKED AT MICHELIN FOR 10 YEARS10 YEARSTRIAL JUDGE EXCLUDED TESTIMONY TRIAL JUDGE EXCLUDED TESTIMONY BECAUSE IT FAILED DAUBERT. BECAUSE IT FAILED DAUBERT. APPELATE COURT REVERSEDAPPELATE COURT REVERSED

SCIENTIFIC ISSUESCIENTIFIC ISSUE

WAS IT WAS IT ‘‘OVERDEFLECTIONOVERDEFLECTION’’(UNDERINFLATION) OR DEFECT?(UNDERINFLATION) OR DEFECT?

PLAINTIFFPLAINTIFF’’S EXPERT STATED FOUR S EXPERT STATED FOUR CRITERIA FOR OVERDEFLECTION, CRITERIA FOR OVERDEFLECTION, FOUND TWO, AND CONCLUDED THE FOUND TWO, AND CONCLUDED THE CAUSE HAD TO BE A MANUFACTURING CAUSE HAD TO BE A MANUFACTURING DEFECTDEFECT

(THE COURT) FOUND THAT (THE COURT) FOUND THAT NONENONE OF OF THE THE DAUBERTDAUBERT FACTORS, INCLUDING FACTORS, INCLUDING THAT OF THAT OF ““GENERAL ACCEPTANCEGENERAL ACCEPTANCE””…….INDICATED THAT CARLSON.INDICATED THAT CARLSON’’S S TESTIMONY WAS RELIABLETESTIMONY WAS RELIABLE

JUSTICE BREYER IN JUSTICE BREYER IN KUMHOKUMHO

IN SUM, RULE 702 GRANTS THE IN SUM, RULE 702 GRANTS THE DISTRICT JUDGE THE DISTRICT JUDGE THE DISCRETIONARY AUTHORITYDISCRETIONARY AUTHORITY…… TO TO DETERMINE RELIABILITY IN LIGHT OF DETERMINE RELIABILITY IN LIGHT OF THE PARTICULAR FACTS AND THE PARTICULAR FACTS AND CICUMSTANCES OF THE PARTICULAR CICUMSTANCES OF THE PARTICULAR CASECASE

JUSTIC BREYER, IN JUSTIC BREYER, IN KUMHOKUMHO

SIDE ISSUESSIDE ISSUES

CARLSON ACTUALLY FOUND ALL CARLSON ACTUALLY FOUND ALL FOUR CRITERIA FOUR CRITERIA ‘‘TO A LIMITED TO A LIMITED DEGREEDEGREE’’HE DIDNHE DIDN’’T ACTUALLY SEE THE TIRE T ACTUALLY SEE THE TIRE UNTIL THE DAY OF HIS DEPOSITIONUNTIL THE DAY OF HIS DEPOSITION

EVALUATIONEVALUATION

FROM A SCIENTIFIC POINT OF VIEW, FROM A SCIENTIFIC POINT OF VIEW, THIS SET OF RULUNGS SEEMS THIS SET OF RULUNGS SEEMS PRETTY REASONABLEPRETTY REASONABLE

What Killed the Dinosaurs?What Killed the Dinosaurs?

A Scientific Detective StoryA Scientific Detective StoryJames TrefilJames Trefil

Clarence Robinson Professor of PhysicsClarence Robinson Professor of PhysicsGeorge Mason UniversityGeorge Mason University

INTERESTING FACTSINTERESTING FACTS

ONLY ABOUT 1 SPECIES IN A ONLY ABOUT 1 SPECIES IN A THOUSAND APPEARS IN THE FOSSIL THOUSAND APPEARS IN THE FOSSIL RECORDRECORD

THE AVERAGE LIFETIME OF SPECIES THE AVERAGE LIFETIME OF SPECIES IS ABOUT 3 MILLION YEARSIS ABOUT 3 MILLION YEARS

99% OF ALL SPECIES THAT EVER 99% OF ALL SPECIES THAT EVER EXISTED ARE EXTINCTEXISTED ARE EXTINCT

ALVAREZ HYPOTHESISALVAREZ HYPOTHESIS

THE EXTINCTION WAS CAUSED BY A THE EXTINCTION WAS CAUSED BY A DUST CLOUD RAISED BY THE IMPACT DUST CLOUD RAISED BY THE IMPACT OF A METEORITE ABOUT 8 MILES OF A METEORITE ABOUT 8 MILES ACROSSACROSS

OBJECTIONOBJECTION

COULDNCOULDN’’T IT JUST BE THAT FOR T IT JUST BE THAT FOR SOME REASON THERE WAS A SOME REASON THERE WAS A SPECIES OF PLANKTON THAT SPECIES OF PLANKTON THAT METABOLIZED IRIDIUM?METABOLIZED IRIDIUM?