In an order dated May 12, 2009, this court denied petitioner's request to exclude the testimony of respondent's expert Dr. Reese Jones as unreliable. The court permitted petitioner to renew his motion after Dr. Jones testified. Petitioner has done so. He moves to exclude Dr. Jones' testimony as unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). He argues Dr. Jones neither based his opinions on sufficient data nor used reliable methods to reach them.
Federal Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The Supreme Court in Daubert listed "four non-exclusive factors for consideration in the reliability analysis:"
"(1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a particular technique has a known potential rate of error; and (4) whether the theory or technique is generally accepted in the relevant scientific community."
Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 841 (9th Cir. 2001) (citing Daubert, 509 U.S. at 593-94).
In the May 2009 order, this court described the role of Daubert and the preference for allowing evidence to be subject to the adversarial system rather than simply excluding it. The point is worth repeating here.
Rule 702 was amended in 2000 "in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . ." Advisory Committee Notes to 2000 Amendments to Fed. R. Evid. 702. "In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony. . . ." Id. "The amendment affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Id. The Note warns, however, that
[a] review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a seachange over federal evidence law, and the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system. United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). As the Court in Daubert stated: Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. 509 U.S. at 595.
May 12, 2009 Order at 6-7.
Petitioner argues respondent bears the burden of showing Dr. Jones' testimony is both relevant to claims that are the subject of the ...