Commercial Litigation and Arbitration

Tentative Experts

Three cases:

• From Nomo Agroindustrial SA de CV v. Enza Zaden N. Am., Inc., 2009 U.S. Dist. LEXIS 8657 (D. Ariz. Jan. 29, 2009):

See U.S. v. Rahm, 993 F.2d 1405, 1410, 1412 (9th Cir. 1993)(emphasizing that "[c]ertainty is an unreasonable expectation in the realm of expert opinion. [An expert's] use of the conditional 'could' in expressing her conclusion is neither unusual nor disqualifying as to her testimony. In any area of science . . . expecting an expert to reach a conclusion without the slightest doubt as to its accuracy is exceedingly unrealistic. Experts ordinarily deal in probabilities, in 'coulds' and 'mights'. . . It is the rare expert who is willing to opine conclusively about a past occurrence.")

• From Newman v. State Farm Fire & Cas. Co., 290 Fed. Appx. 106, 113-114 (10th Cir. 2008):

Neither Rule 702 nor Daubert "require a finding that an expert's proffered testimony reach absolute certainty with regard to the likely truth of a conclusion." Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236 n.2 (10th Cir. 2004). "Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements." Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003).

• Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1227 (9th Cir. 2007):

[C]ase law clarifies that certainty is not required for an expert's findings to have probative value. See Price Waterhouse, 490 U.S. at 235-36 (allowing social psychologist's testimony that the defendant was "likely influenced by sex stereotyping," even though the expert "admitted that she could not say with certainty whether any particular comment was the result of stereotyping"); Daubert v. Merrell Dow Pharm., Inc. ("Daubert II"), 43 F.3d 1311, 1316 (9th Cir. 1995) (noting that scientific knowledge "does not mean absolute certainty" and that expert testimony should be admitted when "the proffered testimony is based on scientifically valid principles" (internal quotations omitted)).

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