If only there was a Rule for judges to take the time to use their own Rules on the subject of expert testimony on forensic subjects.
This brief review of a civil plantiff’s complaint (Jones) against biophosphonase maker Novartis travels through a pre-trial Daubert hearing shows us something about judicial rigor in the face of disjointed experts’s claims of proof to their opinions. It comes with a nifty graphic.
Bitemarks have faced 10 Dauberts’ in Texas. All resulted in judicial approval going to the bitemarkers. The only recent dent in this sorry judicial review is Texas Forensic Science Commission’s stance recommending its courts ban the bitemarkers out of court.
The Jones court specifically recites the Daubert gatekeeping function as a mandate that the trial court conduct “an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.” Id. at *2 quoting United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005). In addition, as we noted in our recent Gorsuch article, the court must also include certain elements, i.e., a specific address to each Daubert objection raised, in the opinion granting a Daubert motion to ensure it will stand up on appeal. That’s a big job.
While the Jones opinion is well-supported and stands as a very helpful example of a thorough Daubert analysis, we’re curious whether courts are often not inclined to engage in this kind of detailed, documented review because it requires so much time, effort, and judicial resources.