Today
 4:15 pm: Daubert – in the Supreme Court, in patent cases
(liability issues only), on remand
 5:20 pm: UCBerkeley Transcripts: What can we learn?
 5:55 pm:
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Choosing patents, teams, roles.
Ordering file histories.
Scheduling conferences for next week.
When to get to:
Finishing instant patent law and instant civil procedure with grad
students.
Looking at the patents the grad students found.
 6:05 pm: Midterm Evaluations
 Next Week: No class, just meetings, but claim charts
(at least left hand column) due Friday (?)
Sci.Ev. 2006-rjm
Week 7
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DAUBERT
the name everyone* associates with the
phrase “scientific expert testimony”
* law universe, expert witness universe
Daubert in the Supreme Court
Questions from the class Science Experts for the class
Lawyers (from week 4)
Daubert on Remand
Your Best/Worst Facts
Daubert in Patent Cases (Liability Issues)
What you learned (from weeks 4 [law] and 6 [grad])
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Daubert in the Supreme Court
- The Petition for Cert
QUESTIONS PRESENTED
1. Whether, in light of the Federal Rules of Evidence, federal
courts may apply the rule of Frye v. United States, 293 F. 1013
(D.C. Cir. 1923), and hold expert scientific testimony
inadmissible unless it has attained general acceptance in the
relevant scientific field.
2. Whether the Frye rule (assuming its applicability) is properly
construed to make the admissibility of expert scientific testimony
depend upon prior publication in a peer-reviewed journal.
- The Interesting, Interested AMICI
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Daubert in the Supreme Court
http://www.stanford.edu/~rjmorris/sciev/PPT/04.PPT - go to slide 13
Where are they (plaintiffs’ experts) now?
Shanna Helen Swan (1999 NRC/NAS 4-year study)
Stuart A. Newman – still at NYMC
Why do Rehnquist and Stevens (not a likely pair) refuse to
join in part of the decision?
- Questions from the class Science Experts for the class
Lawyers (from week 4)
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If
Daubert in the Supreme Court
- scientific,
Rule 702. TESTIMONY BY EXPERTS
- technical, or
- other specialized
Federal Rules of Evidence
knowledge
will assist the trier of fact
may testify thereto
- to understand the evidence or
in the form of an opinion or
- to determine a fact in issue,
otherwise,
a witness qualified as an expert by
if (1) the testimony is
- knowledge,
based upon sufficient
- skill,
facts or data,
- experience,
(2) the testimony is
- training, or
the product of reliable
- education,
- principles and
- methods, and
(3) the witness has applied the
- principles and
- methods
reliably to the facts of the case.
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Daubert Decision’s Version of Rule 702 (See part C)
Faced with a proffer of expert scientific testimony, then,
the trial judge must determine at the outset,
pursuant to Rule 104(a), {n10}
whether the expert is proposing to testify to
(1) scientific knowledge that
(2) will assist the trier of fact to
understand or
determine
a fact in issue. {n11}
This entails a preliminary assessment
- of whether the reasoning or methodology underlying the testimony is
scientifically valid and
- of whether that reasoning or methodology properly can be applied to the
facts in issue.
---
Daubert in the Supreme Court
Rule 702. TESTIMONY BY EXPERTS
Federal Rules of Evidence
{n10} Rule 104(a) provides:
"Preliminary questions concerning
the qualification of a person to be a witness,
the existence of a privilege, or
the admissibility of evidence
shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional
admissions]. In making its determination it is not bound by the rules of evidence except those with respect to
privileges."
These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U.S.
171, 175-176, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
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Daubert Decision’s Version of Rule 702 (See part C)
Faced with a proffer of expert scientific testimony, then,
the trial judge must determine at the outset,
pursuant to Rule 104(a), {n10}
whether the expert is proposing to testify to
(1) scientific knowledge that
(2) will assist the trier of fact to
understand or
determine
a fact in issue. {n11}
This entails a preliminary assessment
- of whether the reasoning or methodology underlying the testimony is
scientifically valid and
- of whether that reasoning or methodology properly can be applied to the
facts in issue.
---
Daubert in the Supreme Court
Rule 702. TESTIMONY BY EXPERTS
Federal Rules of Evidence
-Has the theory or technique been TESTED
-Has it been published in a PEER REVIEWED journal
- Rates of error; standardization of technique
-GENERAL ACCEPTANCE
{n10} Rule 104(a) provides:
"Preliminary questions concerning
the qualification of a person to be a witness,
the existence of a privilege, or
the admissibility of evidence
shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional
admissions]. In making its determination it is not bound by the rules of evidence except those with respect to
privileges."
These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U.S.
171, 175-176, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
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Daubert on Remand - Your Best/Worst Facts
Preliminaries: the FINAL JUDGMENT rule
US Births (per UNICEF, for 2004): 4,134,000
1992 (per CDC): 4,065,014
1990 (per CDC, 1992 report): 4, 158,212
Birth defects: 1 out of 33 babies.
Limb reduction defects: ?? Can’t find any data.
1:1000? I know 2, have encountered 2 more. How
many people have I, a former resident of NYC,
encountered in my life of X years? Well over 4000.
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Daubert on Remand - Your Best/Worst Facts
Best & Counter – Daubert
Merrell Dow
MD answer
Daubert Answer
Henry: Multiple Theories
Fernando: Method hidden E/W
Adam: Deformed Babies
Jeremy: Multiple Causes E/W
Ann Marie: Augment Affts Option
Angela: Palmer has -0- to say E/W
Angela: Frye fried
Chrissy: FR702 E/W
Fernando: COULD Augment
Ann Marie: Could but no ‘fit’ E/L
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Initial Victory
Respect for Supremes (H/W)
FDA Approval
FDA is a given (E/?)
P Experts: no indep. res.
FDA approval is old E/L
D has no BOP
P meets BOP D/L
P Experts method unexplained
P fails “fit” E/W
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Daubert on Remand - Your Best/Worst Facts
Best & Counter – Daubert
Merrell Dow
MD answer
Daubert Answer
Jason: Frye fried
Lisa: Lousy science anyway E/W
Jeremy: Teratogenic in animals
Jason: No peer rev pub E/W
Lisa: Deformed babies
Alvin: M/Exclude photos E/W
Chrissy: Great Reputations
Adam: Legal Standard E/W
Alvin: FR702
Henry: P lacks PROOF H/W
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6th Cir rejected Palmer
That was under Frye E/L
No peer reviewed pub
Real babies E/L
BOP on P
Let P supplement affts. H/L
Gen.Acc. still lives
P’s Methods are gen.acc.E/L
FDA
Peer rev trumps FDA H/W
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Daubert on Remand – My Best Fact, but for whom?
It’s 1995. Bendectin was available from 1957 to 1982.
Where’s the data on NATIONAL limb reduction defects
(annual totals) for the years, say,1947-1956, 1957-1982,
1983-1995?
Maybe that data is neutral or ambiguous, and maybe 1983-88 or so
is affected by women who had Bendectin from a previous
pregnancy or a friend. But what if the data is DRAMATIC?
Even a 2-fold difference in annual average rate during the
Bendectin years? Why doesn’t either party gather this
information? Is it just not available? Are they BOTH scared?
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Daubert in Patent Cases (Liability Issues)
What you learned (from weeks 4 [law] and 6 [grad])
Carnegie Mellon:
- The most Daubert-like: BrownBrown
- Methodology or Substance?
Is Carnegie Mellon so dumb? Why did they bring this case,
and fight it? [Biology experts please help!]
- The experts aside from Brown
Sorkin: Why proffer such a lame declaration as Trejo’s?
Pharmastem: Ditto on Hendrix? (But the answer will be
different, I think.)
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UCBerkeley v Genentech Transcripts
Siegel – Tutorial Expert
Campbell – Genentech’s Infringement Expert
What you learn from reading these transcripts
Order of Testimony
Preparing
Objecting
Cross-Examining
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http://www.stanfo
rd.edu/~rjmorris/s
ciev/READINGS/
4363877A.pdf
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…
…
Goodman Patent (UCBerkeley v Genentech) 4,363,877, col. 33-34.
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…
to?
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Leftovers from past weeks
- Looking at other patents collected by the grad
students
- Instant Patent Law & Instant Civil Procedure
Feedback: On this set of comments and comment^2s
MEETINGS NEXT WEEK?
Evaluations
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