Commercial Litigation and Arbitration

Experts, Daubert & Junk

From McGovern v. Brigham & Women’s Hosp., 2008 U.S. Dist. LEXIS 94403 (D. Mass. Nov. 5, 2008) (Young, J.):

[A] district judge performing the "gatekeeper" function required by Rule 702 of the Federal Rules of Evidence asks three preliminary questions:

First, is this junk science? The Daubert analysis ought resolve this question.

Second, is this a junk scientist? As a routine matter, this Court asks whether the opinion the proffered expert seeks to give in the case at bar is one that society — outside the litigation process — seeks from this individual as it goes about its daily living. If the science itself is reliable and society seeks comparable opinions from this individual, the Court asks,

Third, is this a junk opinion? In other words, as Justice Breyer expressed it in Kumho Tire, is the proffered opinion "adequate to the task at hand." Kumho Tire, 526 U.S. at 157. See also Joiner, 522 U.S. at 146.

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