Legal Issues in Occupational Ergonomics - Fundamentals and Assessment Tools for Occupational Ergonomics - page 36

There is always the possibility of having a double translation; that is, to first convince the judge, in his
language, of the “reliability” of the proferred testimony and, then, convince a jury in the “everyday
language” that they understand. There is always the question of inequality, that different judges in the
same courthouse may have different standards as to the acceptability of evidence.
However, in most courts, the ultimate question is whether the expert witness testimony will help the
trier of fact (judge or jury) understand the evidence or to determine a fact. Qualifications of the expert
generally go to the weight of the evidence presented, not to its admissibility (Campbell, 2001; Goodstein,
2000).
The issue for the expert witness is to determine whether the judge favors information helpful to the
jury or whether the judge may be excessively strict and politically motivated. The lawyer who retains
the expert should be able to indicate, from past rulings, whether the judge will be zealous in applying
Daubert or its progeny. Daubert applies to all federal courts and is of considerable interest in many
state courts.
Daubert is considered a failure, by many scientists and engineers, because it has erected barriers to
what they believe is valid and relevant information that may not be familiar to the evidentiary gatekeeper.
They may believe that efficient judicial administration may conflict with facilitating the delivery of per-
tinent or illuminating information to the jury. If just one key expert has his testimony curtailed or
excluded, it may torpedo or signal the end of the plaintiff 's or defense's case. In fact, it may be quick
judicial resolution of a case based on what seems to be a legal technicality unrelated to the merit of
the claim or defense.
3.3.4 Junk Science
The expert witness should expect, during deposition or trial, to receive some incisive questioning about
key research or testing that was performed by the expert or that the expert relied upon in formulating an
opinion or conclusion. The purpose is to undercut the justification so that the opinion falls, becomes
somewhat questionable, or uncertain to some degree. The inevitable opposing lawyer's interpretation
will be that the conclusions are not supported by the data, there are serious questions about flawed meth-
odology, and that it appears to be junk science. The expert witness should respond in a civil manner,
citing other supporting data and peer investigators, also indicating that the findings are not unexpected
given the logic of contemporary science or engineering, and should give the reasons why the findings are
to be considered truthful and accurate in comparison with other studies. The junk science allegation may
provoke an uncalm defensive personal reaction, just as inferences regarding possible violations of pro-
fessional ethics may upset the witness, but this may be the intent of the opposing advocate. While truthful
statements should be admitted and not argued, the expert is an expert and should hold firm and strong
where justified.
3.3.5 Differential Diagnosis
Under Daubert, proffered scientific testimony must be relevant and reliable. It is reliable if the principles
and methodology are grounded in the methods of science. The factors to be considered are whether the
theory or technique can be tested, have been subjected to peer review and publication, whether there is an
error rate, and whether the theory or technique is generally accepted in the scientific community. The issue
might be whether the expert opinion was developed for purposes of testimony or was developed from
research conducted independent of litigation. The research may not have been published because it is
too recent, too specific, or of too limited interest. One universally accepted “scientific” method of estab-
lishing root cause is differential diagnosis or differential etiology. It is the systematic elimination of likely
causes until the most probable cause remains isolated and cannot be excluded or ruled out. For example,
a comprehensive list of hypotheses that might explain a finding is compiled, then a process of elimination
occurs with an explanation why each alternative cause was ruled-in or ruled-out. Precise information
may not be available or necessary to provide a basis for an expert's opinion (Clausen, 2003).