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1
Just Relax, This Will Only Take a Minute

Daubert and the Doctor
Travis J. Rhoades
Samuel C. Hall
January 11, 2011

2
Hiring the Doctor
3
The Knoxville, TN College of Faith Healing?

Where is Rangoon?
Every Litigator has met a Dr. Nicholas Van
Helsing
Doctor hired to play the role of the doctor for
the purposes of litigation
Little interest in conducting a scientific
analysis of the case
Little effort to buttress opinions with actual
research or citations
No demonstrated process of analysis to arrive at
his conclusions

4
A witness qualified as an expert by knowledge,
skill, experience, training, or educationBefore
February 1, 2011

Admissibility
The fundamental determination of admissibility
comes at the time the witness is qualified as
an expert. In a state such as Wisconsin, where
substantially unlimited cross-examination is
permitted, the underlying theory or principle on
which admissibility is based can be attacked by
cross-examination or by other types of
impeachment. State v. Walstad, 119 Wis.2d 483,
518-19, 351 N.W.2d 469 (1984)
Exclusion of Expert on Qualifications
The label or title of a witness is not relevant
to the determination of whether a witness is
qualified to testify as an expert on a given
subject. See, e.g ., Karl v. Employers Ins., 78
Wis.2d 284, 297, 254 N.W.2d 255 (1977) Wester v.
Bruggink, 190 Wis.2d 308, 319-20, 527 N.W.2d 373
(Ct.App.1994).

5
New (to Wisconsin) Statute

Sec. 907.02. Testimony by experts
(1) 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 the testimony is based
upon sufficient facts or data, the testimony is
the product of reliable principles and methods,
and the witness has applied the principles and
methods reliably to the facts of the case.
(2) Notwithstanding sub. (1), the testimony of an
expert witness may not be admitted if the expert
witness is entitled to receive any compensation
contingent on the outcome of any claim or case
with respect to which the testimony is being
offered.

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A witness qualified as an expert by knowledge,
skill, experience, training, or educationAfter
February 1, 2011

. . .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 the testimony is based
upon sufficient facts or data, the testimony is
the product of reliable principles and methods,
and the witness has applied the principles and
methods reliably to the facts of the case.
Qualification of Experts to render opinions now
tied to
Sufficient facts or data
Reliable principles and methodology
Applications of each reliably to the facts of the
case.

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Qualifications of the Doctor

Education
Most Doctors will have graduated from Accredited
Medical School
Any post graduate work proper line of questioning
If the Doctor went to the Knoxville,TN College of
Faith Healing you might want to explore that a
bit

8
Qualifications of the Doctor

Training
Careful Examination of Post- Medical School
Experience Should Illustrate Whether Doctor has
Specific Training to Opine Regarding the Issues
of the Case
Residency
Internships
Board certifications
Consolidated Coal Co. v. Director, Office or
Workers Compensation Programs, 294 F.3d 885 (7th
Cir. 2002)
Plaintiff offers 2 B-readers who opine that
Petitioner has black lung disease after review of
x-rays
Petitioner offers pulmonologist who reviewed CT
scan to opine no black lung disease
Argument that CT much more precise and therefore
more reliable than x-ray
7th Circuit Affirms ALJ decision that Plaintiff
offered properly qualified B-readers, conducting
recognized tests for presence of pneumoconiosis
Respondent failed to properly qualify
pulmonologistCourt held that typical
interpreters of CT scans are Radiologists, who
are sometimes B-readers
Respondents expert is neither a radiologist or a
B-reader
Respondent failed to establish that pulmologist
had any training or experience
Reading CT scans for the presence of
pneumoconiosis
Reading CT scans for the purpose of diagnosis (as
opposed to treatment)
ALJ held pulmonologist opinions unreliable

9
Qualifications of the Doctor

Experience
Experience with an Subject Gained by Virtue of
Position Can Qualify a Witness to Offer Opinion
on Subject not Specifically a Portion of Formal
Training or Education
Walker v. SOO Line Railroad Co., 208 F.3d 581
(7th Cir. 2000)
Plaintiff allegedly struck by lightning while
working in rail yard tower
Sued SOO under Federal Employers Liability Act
Plaintiff Evaluated by the University of Chicago
Electrical Trauma Research Program
Evaluation included psychologist examination,
battery of tests conducted by technicians
MD that headed the clinical team opined that the
Plaintiff suffered Post Traumatic Stress Disorder
as a result of the lighting strike
District Court Qualified the Doctor as an Expert
on Electrical Trauma BUT her Barred Her Testimony
entirety-
Dr. not qualified as a psychiatrist or
psychologist
Her conclusions were founded only on limited
physical examination and her review of the work
of others on her team
7th Circuit held that
Proper for professional in the doctors position
to rely on work of team members to formulate
opinions
The leader of that team is chosen because of her
ability to assess accurately the role that each
member of the team ought to play and to
reconcile, when necessary, competing
perspectives. Walker, at 589
Dr. might not be able to opine on the diagnosis
of PTSD outside the arena of electrical trauma,
but she was qualified to make the diagnosis in
that limited arena

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Qualifications of the Doctor

A physician must possess some specialized
knowledge in the particular field of medicine
about which she is to testify. Everett v.
Georgia-Pacific Corp., 959 F. Supp. 856, 857
(S.D. Ga. 1996).
The lack of specialization of a physician does
not affect the admissibility of the testimony,
but rather goes to its weight. Payton v. Abbott
Labs, 780 F. 2d 147, 155 (1st Cir., 1985).
The focus is not whether a physician is generally
qualified, but rather whether her qualifications
provide a foundation for her to answer a specific
question. Gayton v. McCoy, 593 F.3d 610, 617
(7th Cir. 2010).

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Gayton v. McCoy, 593 F.3d 610, (7th Cir. 2010)

Plaintiffs decedent dies in Jail from elevated
heartbeat coupled with Congestive Heart Failure
Decedent not provided medications
Plaintiffs expert concludes that
Decedent would not have died had she been
administered her prescribed cardiac medications
Doctor offered no evidence he was specially
qualified in either pharmacology or cardiology
No basis for opinion that drugs would have
prevented death
No special knowledge as to how the drugs
function, or explanation as to how decedents
irregular use of the medications prior to her
incarceration affected her condition
NOT ADMITTED
Decedents untreated and uncontrolled vomiting
Effect of vomiting on potassium levels not
specialized knowledge outside the scope of
Plaintiffs expert as treating physician
Plaintiffs Expert Qualified to opine that
combination of diuretics and vomiting affects
potassium and electrolytes which can lead to
tachycardia
ADMITTED
Goes without saying but record must be made for
each opinion

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Methodology

Has the theory or technique in question been
tested?
Has it been been subjected to peer review and
publication?
What are its known or potential error rates?
Do maintenance standards exist controlling its
operation?
Has it attracted widespread acceptance within the
medical community?
Is the opinion generated independent of the
litigation, or expressly for the purposes of
testifying?
Is the opinion the result of an illogical or
unfounded extrapolation of an accepted medical
premise?
Are alternate explanations considered and
rejected?
Is the field in which the expert practices known
for generating reliably founded opinions?
Has the expert applied the same methodology to
her litigation opinion as she does to her
non-litigation work?

13
Because I Said So

Medical experts not allowed to rely on title and
training as the basis of all medical opinion
testimony
No More Ipse Dixit Opinions
Physicians can and should be examined vigorously
on the information that forms the foundations of
their opinions

14
Zarecki v. National R.R. Passenger Corp., 914
F.Supp. 1566, (N.D.Ill. 1996)

1. I have been retained as an expert witness with
respect to the above entitled cause on behalf of
the Plaintiff, Judy Zarecki.
2. I make this Affidavit in opposition to the
Defendant National Railroad Passenger
Corporation's Motion for Summary Judgment.
3. My present business address is 7600 College
Dr., Palos Heights, Illinois 60463.
4. I am duly licensed to practice medicine in the
State of Illinois, and I am board certified in
orthopaedic surgery in the State of Illinois.
5. I have examined the Plaintiff in this case,
Judy Zarecki.
6. I have reviewed the medical records of Judy
Zarecki.
7. It is my opinion based upon a reasonable
degree of medical certainty that the Bilateral
Carpal Tunnel Syndrome sustained by Judy Zarecki,
was caused by her work duties as assigned by the
Defendant National Railroad Passenger
Corporation.
8. It is also my opinion that the nature of the
work duties at the Defendant National Railroad
Passenger Corporation was such that it was
reasonably foreseeable that Judy Zarecki, could
sustain Bilateral Carpal Tunnel Syndrome in her
hands or wrist or sustain some other hand/wrist
injury.
9. I make this affidavit upon my personal and
professional knowledge and upon my examination of
Judy Zarecki, the medical records of Judy
Zarecki, and, if sworn as a witness, I can and
will testify competently to the facts
hereinbefore stated.

15
Zarecki v. National R.R. Passenger Corp., 914
F.Supp. 1566, 1574 (N.D.Ill. 1996)

Opinion is not based on any discernable
scientific methodology
Conclusions are subjective beliefs of the expert
as to the cause of Zarecki's carpal tunnel
syndrome
None of the Daubert factors support the notion
that the opinion constitutes scientific
knowledge
The record is void of any studies or analyses to
substantiate conclusions
Affidavit does not allude to any authorities that
support views, nor demonstration that views have
gained general acceptance in the scientific
community.

16
Diagnosis and Cause

Areas in which Methodology Examination is
Critical
General and Specific Causation
General causation--is the agent or trauma capable
of causing the disease or injury?
Specific causation--did the agent or trauma cause
the disease or injury in this particular
individual?
Reference on Scientific Evidence 335 (Fed.
Judicial Ctr.2000).

17
General Causation

Has it been established that the particular
trauma or exposure is a recognized cause of the
Plaintiffs injury?
Higher Quality
Epidemiological Reviews
Controlled Trials
Cohort Studies
Lower Quality
Descriptive Studies
Case Studies

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Determining Specific Medical Causation

Differential diagnosis methodology
ruling in potential causes to develop a
potential-cause checklist
then ruling out potential causes one by one
based on objective data and criteria.
Causation is attributed to the last potential
cause left on the list, or at least the most
probable one of those that remain. Glastetter v.
Novartis Pharmaceuticals Corp., 107 F.Supp.2d
1015, 1029 (E.D.Mo.2000).
when it is used in the practice of science (as
opposed to its use by treating physicians in the
practice of medicine out of necessity) it must
reliably rule in a potential cause. See
Glastetter, 252 F.3d at 989.
If the ruling in step is based on too great an
analytical leap (or several such leaps), the
whole opinion is questionable. (any step that
renders the analysis unreliable ... renders the
expert's testimony inadmissible) See Advisory
Committee Notes to 2000 Amendments to Rule 702.

19
Lennon v. Norfolk and Western Railway Co., 123
F.Supp.2d 1143 (N.D.Indiana, 2000)

Plaintiff falls at work and hits head on concrete
One year later, complains of headaches and
feelings of spaciness
Referred to a Neurologist (Romain) who diagnoses
him with Multiple Sclerosis, and opines that the
MS was triggered or exacerbated by the fall
Opinion supported by limited review of published
materials, most of which support his contention,
a group of case reports in support of his
diagnosis, as well as his experience in treating
MS patients and his attendance of conferences at
which the relationship was discussed
General Causation
Court reviewed medical literature regarding
traumas relationship to MS
Dr. Douglas Goodin, The role of trauma in causing
MS or in triggering relapses or flares is not yet
established or refuted. But preponderance of the
evidence supports no association between physical
trauma and either MS onset or exacerbation.
Dr. Charles Poser published a study in 1994
criticized the efforts in the scientific
community to study the role of Trauma in MS, but
making no definitive
Court reviews several articles dating back to the
1950s and earlier elated to the relationship
between Trauma and MS
Concludes that the overwhelming weight of the
authority suggests the notion that there has been
no conclusive showing demonstrating a link
between trauma and the onset or exacerbation of
MS.
Limited review is the antithesis of the
scientific method
Limited review might not be fatal to
admissibility IF the experts opinion followed
the overwhelming weight of the evidence

20
Lennon v. Norfolk and Western Railway Co., 123
F.Supp.2d 1143 (N.D.Indiana, 2000)

Specific Causation
Plaintiff also argues that Dr. Romains causation
opinion is based on a clinically supported
differential diagnosis
Differential diagnosis does not by itself prove
the cause, even for the particular patient. Nor
can the technique speak to the issue of general
causation.
Differential diagnosis assumes that general
causation has been proven for the list of
possible causes it eliminates
The process of differential diagnosis is
undoubtedly important to the question of
specific causation. If other possible causes of
an injury cannot be ruled out, or at least the
possibility of their contribution to causation
minimized, then the more likely than not
threshold for proving causation may not be met.
But, it is also important to recognize that a
fundamental assumption underlying this method is
that the final, suspected cause remaining after
this process of elimination must actually be
capable of causing the injury. That is, the
expert must rule in the suspected cause as well
as rule out other possible causes. And, of
course, expert opinion on this issue of general
causation must be derived from scientifically
valid methodology. Hall v. Baxter Healthcare
Corp., 947 F.Supp. 1387, 1413 (D.Or.1996)
(quoting, Cavallo v. Star Enterprise, 892 F.Supp.
756, 771 (E.D.Va.1995) aff'd. on this ground,
rev'd on other grounds 100 F.3d 1150 (4th
Cir.1996)).

21
Lennon v. Norfolk and Western Railway Co., 123
F.Supp.2d 1143 (N.D.Indiana, 2000)

Plaintiff Expert Neurologist Dr. Schreiber Opines
that Plaintiff suffered neurological trauma as a
result of his fall
White Matter Lesions cause by shearing forces to
the brain which caused nerve demyelinization from
Review of repeated CT scans
Objective signs of neurological symptoms
including thought disorder, memory deficits and
left-sided sensory deficits
Dr. Schreiber relied on his own experience as a
board certified neurologist
On his review of neurological journals which
support relationship between head trauma and
white matter lesions
On Textbook DIAGNOSTIC NEUROLOGY, which clearly
sets forth relationship between severe trauma and
white matter lesions
On case study of a Dr. Nevin, with 40
participants with head injuries and varying
degrees of white matter changes
Defense Doctor relies on a Lancet study that
suggests that only major trauma can cause White
lesions
Plaintiff's fall was minor fall
Could not be the cause of the White Lesions
No specific definitive study correlating falls
like the Plaintiffs to White Matter Lesions
BUT
All studies submitted suggest that trauma is a
recognized cause of White Matter Lesions
Dispute is a over whether the trauma was
sufficient
Issue Ripe for Jury determination and not a
matter of admissibility

22
DECIDED PRIOR TO DAUBERTINCLUDED FOR COMPARISON
/ CONTRAST OF COURTS INQUIRY PRE AND
POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th
Cir. 1993)

Plaintiff alleges he suffers from Polymyositosis
from trauma suffered aboard Navy vessel
Plaintiff claimed four separate incidents of
physical injury during the trip
injured his lower back downloading of four
pallets of stores from the dock onto the ship
burned his hand when he lifted a twenty-quart pot
filled with spaghetti sauce and the simmering
sauce spilled onto his hand (because the pot's
handle was coated with melted butter)
struck his head twice and fell when the vessel
broke the mooring lines tied to the dock and
injured his lumbar spine while lifting
approximately ninety pounds of pot roast out of
the oven after other crew members refused to help
him.
Plaintiff also claimed threats for physical
violence arising out of racial tensions on the
ship
Dr. Romain, Neurologist with 22 years experience
Complete medical history of the plaintiff,
Full neurological examination,
Conducted a series of tests to rule out various
possible diagnoses,
Directed two muscle biopsies to be taken and sent
out for laboratory analysis.
Repeated testing revealed that certain of Cella's
muscle enzymes were greatly elevated.
The biopsy results suggested that the plaintiff
suffered from focal chronic interstitial
myositis.
After reviewing these test results in light of
his examination and history of Cella, Dr. Romain
was convinced that Cella suffered from
polymyositosis

23
DECIDED PRIOR TO DAUBERTINCLUDED FOR COMPARISON
/ CONTRAST OF COURTS INQUIRY PRE AND
POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th
Cir. 1993)

The generally-accepted medical dogma identified
polymyositis as an idiopathic disorder,
Dr. Romain had heard of cases of polymyositis
being secondary to trauma and believed that
Cella's polymyositis-like condition might have
been brought on by the events that occurred
aboard the Hess.
From his extensive medical literature search, Dr.
Romain concluded
that cases of polymyositis are heterogeneous in
origin
that among the documented cases there was always
a consistent but somewhat low percentage of cases
in which some type of severe emotional or
physical stress seemed to have etiological
importance.
Dr. Romain further believed that an experimental
model with marathon runners which revealed a link
between physical stress and elevated enzymes
supported his conclusion that physical stress and
trauma caused Cella's polymyositis condition.3
In addition to citing the occasional incidence of
trauma, the medical literature considered by Dr.
Romain addressed genetic factors, viral
infections, vaccinations, certain tropical
diseases, and systemic lupus erythematosus as
other possible causes of polymyositis.
Through his physical examination of the
plaintiff, extensive neurological testing of the
plaintiff, and careful review of the plaintiff's
medical history, Dr. Romain was able to exclude
each of these factors as the potential cause of
Cella's condition.
Through his elimination of these other possible
causes and his medical literature research
revealing a causal relation between trauma and
documented polymyositis cases, Dr. Romain
concluded that the plaintiff's polymyositis-like
condition was caused by the trauma arising from
the events aboard the Hess.
He prescribed prednisone treatment and physical
therapy, which apparently stabilized the
plaintiff's condition.

24
DECIDED PRIOR TO DAUBERTINCLUDED FOR COMPARISON
/ CONTRAST OF COURTS INQUIRY PRE AND
POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th
Cir. 1993)

Defendant challenges foundation of Dr. Romains
opinion under FRCP 907.03, arguing the Court
Identifies two studies from among Dr. Romains
reliance materials that provide substantial
epidemiological support for the relationship
between certain elevated enzymes and
polymyositosis
Articles acknowledge relationship between extreme
stress, physical injury or combination of both
stress and injury and conditions like
polymyositosis
Facts of the case suggest factors applied to
experience aboard the ship
Although the complete etiology of all
polymyositis has not been definitely proven, the
plaintiff's expert medical witness has testified
that, based on his examination and testing of
Cella, his review of Cella's full medical
history, his research of medical literature, and
his analysis of documented case studies of
polymyositis, it is his opinion within a
reasonable degree of medical certainty that
trauma was the cause of this plaintiff's
polymyositis. Cella at 429.

25
Evidence-Based Medicine

Evidence Based Medicine requires physicians to
use the best evidence available in determining
treatment by placing more value on well-designed
and well executed clinical investigations and
less value on expert opinion and uncontrolled
observational studies, like case reports and case
studies.
Sear, John, Effective Use of Evidence-Based
Medicine to Challenge Causation Testimony, LJNs
Product Liability Law and Strategy, Vol. 30, No.
2, August 2011
Of particular interest is the fact that the
American Academy of Orthopedic Surgeons has
recognized Evidence Based Medicine principles,
and contains its own hierarchy of qualitative
medical evidence, with Randomized Control Trials
at the top and Personal Observation of the
physician at the bottom.

26
Considerations for Depositions

Preparation Best Practices
Key Testimony to Obtain
Use of Follow-up Discovery
Common Fallacies to Exploit

Prepare Have a Plan
Individual Comfort Level
Research Resources Online and Offline
Prior Deposition or Trial Testimony and Reports
Prior Decisions Related to the Expert AND Opinion
Experts Websites, Social Media, Blogs, etc.
CV Publications Legitimate?

Whether the opinion or theory has been subjected
to peer reviewed publication.
The known of potential rate of error and the
existence of standards controlling in the subject
area.
The extent to which the experts methodology,
technique and opinions are generally accepted
within the experts community.

Keep in mind that expert intuition is
insufficient
A witness who invokes my expertise rather than
analytic strategies widely used by specialists is
not an expert as Rule 702 defines that term.
The expert may be the worlds leading student
of the topic, but if he could not or would not
explain how his conclusions met the Rules
requirements, he was not entitled to give expert
testimony. As we so often reiterate An expert
who supplies nothing but a bottom line supplies
nothing of value to the judicial process.
Zenith Electronics Corp. v. WH-TV Broadcasting
Corp., 395 F.3d 416, 419 (7th Cir. 2005)
(citations omitted).

CHECKLIST
Expert Report Completed?
Compensation / Amount of Time to Reach Opinions
Current CV?
List of Prior Testimony
Prior Challenges to Admissibility of Experts
Testimony
Qualifications of Witness Education, Training,
Experience, Skill
How did Expert Reach Opinions Reliable Methods?
Basis for Each Opinion
What Facts or Records Relied On
Any Independent Research?
Have the Methods or the Opinions Referenced in
Peer Reviewed Publication?
Alternative Explanations?
Was the Doctor as Careful as he/she Would be in
Practice? (same methodology?)

Engineer or Meteorologist?
Q In terms of your education, have you studied
meteorology formally?
A Well I took it as a technical elective in
college, but other than that, no.
Q You took one course in meteorology as an
elective back when you were obtaining your
bachelors degree?
A Right.
Q So that would have been in the early to mid
1960s?
A Right.
Q Besides that one course, have you had any
other formal training in meteorology?
A No

Q Youre not able to testify as to what moisture
content would be required in order to form snow
that would have been wet enough to stick to the
side of the building, correct?
A Well, perhaps within these limits, a snowfall
where the water equivalent is such that ten
inches of snow would constitute one inch of
rainfall or more would generally be considered a
wet snow that could stick to the building.
Q And this theory of yours of one inch of
rainfall to make ten inches of snow, where does
this theory come from?
A That would be an interpretation that I have
used before. Its something that I have heard
meteorologists in this area talk about. We all
listen to what the weather people tell us on
television.
Q Are you aware of any peer-reviewed, published
literature that supports your position?
A Im not, but there may be some out there.

Doctors Against Obesity
Q Can you testify to a reasonable degree of
medical probability that this incident caused the
rotator cuff tear?
A The way I visualize it is that, from his
description, which wasnt great He gets hit by
the thing, by the forklift, and he falls back.
And he tries to catch himself. I mean hes got
some velocity, and hes fat, so he tries to
catch himself. Heavy. Excuse me, I shouldnt
use the word fat. Although I am to the point
where I dont care anymore.
Q A little bit ago you mentioned about truck
drivers and said something to the effect that its
hell on their shoulders. What did you mean by
that?
A Lets set the scenario Truck drivers are
rarely in very good physical condition. Okay?
They sit in a truck all day long. They dont
work out. They smoke. Whatever. They got to
haul themselves up into the cab they got to
haul themselves down. They actually have to
haul themselves up because theyre fat.

Medical Examiner
Q When you say sudden death during struggle and
restraint, what is the exact mechanism of injury
that leads to a death in that situation?
A I dont think its well known.
Q So the fundamental question is whatcaused the
cardiac arrest?
A Well it started with the struggle and
restraint but all of the physiological changes
that occurred between then, yes, we dont really
know.
Q Is that to mean independently you dont think
that any of these individually the
physiological changes by itself would have
caused death in this case?
A No, I cant separate it.

Medical Examiner, Cont.
Q Would the exertion that you indicated, would
that alone, absent the fear and panic, absent
the position the decedent was in, absent the
pressure on the torso, the restraint, the use of
an ECD, would that exertion alone, absent all
those factors, would that have caused death?
A I cant say.
Q And thats true of all of these?
A Yes. I dont think we can unbundle the
package. I mean I really dont think you can.
Its just not doable.
Q But you believe that the combination of all of
the factors combined to cause the death?
A I believe that they each provided some input
into the death.

Medical Examiner, Cont.
Q Can you say to a reasonable degree of medical
certainty what happened inside of the
decedents body mechanically, to cause his
death?
A No.

Verify New Propositions and Statements
Follow Up with Written Discovery if Necessary
Examples Include
Claim that Supporting Literature May be Available
Supporting Documentation for Background
Relevant Materials Not Brought to Deposition

Post Hoc Ergo Propter Hoc
Cum Hoc Ergo Propter Hoc
False Dichotomy
Falsum in Uno, Falsum in Omnibus

after this, therefore because of this.
Commonly Seen in Unexplained (or Unexplainable)
Death Cases
Also Seen in Evolving Scientific Areas
Although the methodology upon which Dr. Rose
based his diagnosis was not articulated in much
detail at his deposition, he appears to rely
primarily on the temporal relationship between
the plaintiff discontinuing her use of Fosamax
and her injury healing.
In re Fosamax Products Liability Litigation, 2009
WL 4042769 (S.D.N.Y. 2009)

Drawinga conclusion from temporal relationships
leads to the blunder of the post hoc ergo propter
hoc fallacy. The post hoc ergo propter hoc
fallacy assumes causality from a temporal
sequence. McClain v. Metabolife Intl, Inc.,
401 F.3d 1233, 1243 (11th Cir. 2005).
McClain court generally recognized that expert
opinions based on post hoc ergo propter hoc do
not pass muster under Daubert. Id. at 1242-1243.

In essence, the requirement of adequate
documentation in scientific literature ensures
that decision makers will not be misled by the
post hoc ergo propter hoc fallacy
Ohio v. U.S. Dept. of the Interior, 880 F.2d
432, 472-473 (D.C. Cir. 1989) see also Shafer v.
Kal Kan Foods, Inc., 417 F.3d 663, 664 (7th Cir.
2005) Bermundez v. TRC Holdings, Inc., 138 F.3d
1176, 1179 (7th Cir. 1998).

with this, therefore because of this.
Fallacy that correlation establishes causation
Causation cannot be established simply because
certain events occur within a temporal
relationship.

REJECTED EXPERT OPINION
I talk about it being mercury toxicity. Again,
in terms of myocarditis, I dont know what the
mechanism for that was. It is a finding that is
reported in ethyl mercury deaths. I see it here.
One and one equals two.
Kolakowski v. Secretary of Health and Human
Services,
2010 WL 5672753, Fed. Cl., Nov. 23, 2010.

Courts have generally either rejected or
disfavored opinions and analysis based on cum hoc
ergo propter hoc.
Florence v. Board of Chosen Freeholders of County
of Burlington,
621 F.3d 296 (3rd Cir. 2010)
Bull v. City and County of San Francisco,
595 F.3d 964 (9th Cir. 2010).

Often a deliberate attempt by advocates to
eliminate middle ground.
You either support us, or you support the
terrorists.
It wasnt the medicine that cured the patient,
so it must have been a miracle.

Generally, courts evaluate this fallacy as an
example of basing an opinion on false
assumptions.
Such opinions are generally not admissible
Elock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3rd
Cir. 2000) Bradley v. Armstrong Rubber Co., 130
F.3d 168, 177 (5th Cir. 1997).

False in one thing, false in everything.
Began in Roman court system provided that if a
witness was proven false in one area of
testimony, the witness should be presumed to have
provided entirely false testimony.

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