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If It Walks Like a Duck, and Talks Like a Duck,
It’s Probably a ...
Dealing With the Carrier’s Experts on Judicial Review
Who Am I and Why Am I Here?
I am John
Lubbock
I Used To Practice Here
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$150/hr
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Most of my practice is here
Austin
Pretrial Issues in Judicial Review
Pretrial Issues
Jurisdiction
Venue
Discovery
Motions to Compel
Motions for Summary Judgment
Important Issues
EXPERT WITNESS
TEX.R.EVID. 702Scientific
TEX.R.EVID. 702Technical
TEX.R.EVID. 702Specialized Knowledge
TEX.R.EVID. 702Understand the Evidence
TEX.R.EVID. 702Determine a Fact in Issue
TEX.R.EVID. 702Witness
TEX.R.EVID. 702Qualified
TEX.R.EVID. 702Knowledge
TEX.R.EVID. 702Skill
TEX.R.EVID. 702Experience
TEX.R.EVID. 702Training
TEX.R.EVID. 702Education
TEX.R.EVID. 702May Testify
Daubert
Robinson
RobinsonCore Holding
Gatekeeper
Qualified
Relevant
Reliable
Relevant
“A jury more readily accepts the opinion of an
expert witness as true simply because of his or her
designation as an expert”
Robinson
Reliable
Six Factor Test
Robinson
•The extent to which the theory has been or can be tested
Robinson•The extent to
which the technique relies upon the subjective interpretation of the expert
Robinson
•Whether the theory has been subjected to peer review and/or publication
Robinson
•The technique’s potential rate of error
Robinson•Whether the
underlying theory or technique has been generally accepted as valid by the relevant scientific
Robinson
•The non-judicial uses which have been made of the theory or technique
•“Trial courts may consider other factors which are helpful to determining the reliability of scientific evidence”
Robinson
Burden
Relevant
Reliable
Proponent
Question?
EXPERT WITNESS
scientific evidence
Answer
Gammill
Reliable
Relevant
EXPERT WITNESS
Six Factor Test
Six Factor Test
Gammill
Nothing requires a court to admit evidence which is
connected to existing data only by the ipse dixit of the
expert
Gammill
Analytical Gap
Practical Advice
Excluding Experts
Wrong Specialty•Broders v. Heise
“Given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.”
Missing Key Facts
•Borg-Warner v. Flores“the record reveals nothing about how much asbestos [plaintiff] might have inhaled.”
Unsupported Jump
“If skill and experience were all Rule 702 required,
merely establishing the witness’s qualifications
would show the relevance and reliability of the
testimony every time.” Gammill at 722
Using Post-Hoc Reasoning
•Havner
Using Wrong Facts
•Havner
Fails to Rule Out Alternative Causes
•Robinson
Besides Robinson Challenges
Reports
Reports
“Elicited by an outside interested source”
Freeman v. American Motorist
Reports
“Elicited by an outside interested source”
Freeman v. American Motorist
Where to Find Dirt
Websites•American Academy of Orthopaedic
Surgeons
•American Academy of Pain Medicine
•American Board of Internal Medicine
•American Board of Psychiatry and Neurology
you may not know...
radiologists
should not wear white coats
when reading films
Doctor, I notice..
white coat
Do you ALWAYS
white coat
Websites•American Academy of Orthopaedic
Surgeons
•American Academy of Pain Medicine
•American Board of Internal Medicine
•American Board of Psychiatry and Neurology
Websites
•Trialsmith
Websites
•Trialsmith
Websites
“Herniations are Degenerative”
If you want to practice here
EXPERT WITNESS
EXPERT WITNESS
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