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Meeting the Burden for Admissibility of Environmental Forensic Testimony

Vol. 8, No. 1, Environmental Forensics, 2007

Posted: 31 May 2015  

Allan Kanner

Kanner & Whiteley, LLC

Date Written: March 1, 2007

Abstract

In a perfect world, the best expert witness would be the individual most respected, published, and esteemed in her field. Jurors would be given the opportunity to hear both sides providing a credible story, so that they can make an educated decision. At the end of the day, justice prevails, and the party who is right prevails on the merits of the case.

Surprise: the world of civil litigation isn’t perfect.

As a law professor of mine once stated, any fool can win on the merits – the test of a great lawyer is to win on technical grounds. At the time he thought he was joking, but the law is moving more and more toward that cynical conclusion.

Credible experts are often blocked from testifying due to bewildering exclusionary rules that yes, even lawyers struggle to comprehend. Jurors are routinely denied the opportunity to hear expert testimony because a judge with absolutely no experience in the expert’s field can decide that he doesn’t approve of the expert’s methodology.

Expert testimony is especially crucial in toxic tort litigation. Toxic torts are a subset of products liability in which cases “are won or lost on the strength of the scientific evidence presented to prove causation.” While the rules of admissibility apply equally to plaintiff and defense experts, they have a greater impact on a plaintiff’s case as the barring of a plaintiff’s expert often sounds the end of the case.

In the field of science, being right usually carries the day. Not so in the legal profession. Sure, the expert must be correct in his conclusions, but that is only half the battle. The other half is framing your presentation in such a way that it survives the opponents attempt to delay and discredit you: the Daubert challenge. Thus, it is crucial for environmental forensics experts to not only be right, but to know how to support their conclusions in a way that is tailored to the unique demands of a litigation setting.

Being the better player means nothing if you don’t know the rules of the game.

In essence, judges have been endowed with gatekeeping powers by the United States Supreme Court. Their job is to essentially prevent “junk science” from ever being heard by a jury. Since most judges possess only a lay person’s understanding of science, they must be persuaded not only that the studies involved are valid but that the underlying methodologies are sound.

Environmental forensic experts need to familiarize themselves with the standards by which judges evaluate scientific testimony. It is these standards which will determine whether or not such testimony is ever allowed to reach the jury. The standards were laid down by the U.S. Supreme Court in a landmark case entitled Daubert v. Merrell Dow Pharmaceuticals, Inc. As an expert witness, it’s important to frame your data and conclusions to conform to the requirements of Daubert.

Suggested Citation

Kanner, Allan, Meeting the Burden for Admissibility of Environmental Forensic Testimony (March 1, 2007). Vol. 8, No. 1, Environmental Forensics, 2007. Available at SSRN: https://ssrn.com/abstract=2611264

Allan Kanner (Contact Author)

Kanner & Whiteley, LLC ( email )

701 Camp Street
New Orleans, LA 70130
United States
504-524-5777 (Phone)
504-524-5763 (Fax)

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