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The Florida Bar
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The Florida Bar Journal
February, 2012 Volume 86, No. 2
The “Pure Opinion” Exception to the Florida Frye Standard

by Stephen E. Mahle

Page 41

The pure opinion exception (POE) to the Florida Frye standard allows a large and important class of purported expert testimony to be admitted into evidence without any scrutiny of whether it has any of the indicia of reliability articulated in any of the existing reliability tests. The pure opinion exception provides that if the expert’s opinion relies only on the expert’s personal experience and training, the testimony is admissible without being subject to Florida’s Frye analysis. No reliability determination is required, and pure opinion is presumptively admissible. This provides a “let it all in”1 standard for causation expert testimony that sets up a very costly battle-of-the-experts approach to expert testimony which, partly because some expert’s billing rates are breaking the $1,000 dollar an hour barrier, results in an unnecessarily expensive way to resolve expert testimony issues. This approach is not only an expensive resolution; it is a bad resolution because it forces juries to sort out matters of science that science itself has been unable to decide. Finally, not only does the POE result in a lax admissibility criteria for litigation that would naturally arise in Florida, but through forum shopping, entrepreneurial lawyers and their clients are incentivized by POE to move litigation to Florida that is based on unreliable expert testimony from jurisdictions that do not admit similar expert testimony as casually as Florida.

This discussion of the pure opinion exception to the Florida Frye standard relies upon analysis of both the Frye standard and the federal court Daubert standard. Full discussion of either standard is outside the scope of this article, but several good discussions are available.2 Only a brief summary of Daubert and Frye is needed for this article.

Chronological Summary of Frye and Daubert
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was handed down in 1923 and was largely unchallenged for generations. In 1975, the Federal Rules of Evidence became law, and in 1993, the U.S. Supreme Court said that Frye was inconsistent with the Federal Rules of Evidence and that, henceforth, admissibility of expert testimony in U.S. federal courts would be governed by the 700 Rules, primarily Rule 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). An apparent majority of states have adopted a Daubert standard, but a minority — Florida included — have rejected it.

Daubert v. Merrell Dow
The initial Daubert opinion provides a set of science-based admissibility criteria for federal court expert testimony and installs the trial judge as a “gatekeeper” charged with evaluating all proffered expert testimony and admitting only testimony that is found both relevant and reliable.

The testimony considered in Daubert was scientific, but Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), extended Daubert’s general reliability holding to govern admissibility of all expert testimony proffered in federal courts. In a passage central to the instant analysis, Kumho Tire also dismissed testimony based upon the “ipse dixit” of the witness.3 Kumho’s class of ipse dixit (which translates approximately as “because I say so”) testimony is similar to the class carved out in the POE, and the article considers POE in the context of ipse dixit after some preliminaries.

Post-Daubert Florida Frye
The Florida Supreme Court considered Daubert, found it wanting, and reaffirmed Florida’s reliance on the Frye standard. In Brim v. State, 695 So. 2d 268 (Fla. 1997), the court wrote that “despite the federal adoption of a more lenient standard in Daubert . . . , we have maintained the higher standard of reliability as dictated by Frye.4

The statement on leniency in Brim is worthy of some consideration because it seems so clear that Daubert is the stricter standard. This view of relative strictness is interesting in the context of this article because the POE makes Frye much more porous. “Lenient Daubert” is supported only by a too casual reading of Daubert. It was incorrect when it was first alleged (by lawyers with some skin in the game), and it is incorrect now. A jurisdiction can have the higher standard of reliability, or it can have Frye, but it cannot have both. In fact, under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), a jurisdiction can have a reliability standard, or it can have Frye, but it can’t have both.5

The second interesting thing about Brim is its articulation of the pure opinion exception to the Frye standard. This exception was not widely cited at the time of Brim, but recent opinions have focused analysis on the POE.

Marsh v. Valyou and the Pure Opinion Exception to the Frye Standard
In Marsh, the Florida Supreme Court confirmed the “pure opinion” exception to the Frye standard. The pure opinion exception provides that if the expert’s opinion eschews scientific method and relies only on the expert’s personal experience and training, the testimony is admissible without being subject to a Frye hearing. No reliability determination is required, and pure opinion is presumptively admissible. Although the pure opinion exception is not new in Florida, it has resurfaced and is being used to admit expert testimony that has no indicia of reliability.

The Florida Supreme Court first announced that pure opinion testimony is not subject to Frye in Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993):

[P]ure opinion testimony, such as an expert’s opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert’s personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness.6

The last sentence of this quote is perhaps the crux of the problem with POE: Expert testimony, by its very nature, cannot be analyzed by the jury as it would any other witness testimony. That is the nature of expert testimony — it is expert. It conveys to the jury information that is beyond the understanding of the jury. Federal courts refer to expert testimony as being “beyond the ken of the jury.” A jury is not competent to make determinations necessary to sort out contentious and complex disputes about medical causation where experts in the relevant scientific community have been unable to agree.

Fourteen years later, the Florida Supreme Court in Marsh held that Frye does not apply to testimony of a causal link between trauma and fibromyalgia (FM) that is based merely on an expert’s experience and training. In addition to reasserting the pure opinion exception, Marsh reiterates another exception to the Florida Frye standard: “By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” The result is that the “vast majority” of expert testimony in Florida is not subject to Frye. Therefore, we have recognized that Frye is inapplicable in the “vast majority” of cases.7 Given that the vast majority of Florida expert testimony does not undergo any analysis, much less the rigorous reliability standards detailed in Daubert, it is inconceivable that Florida Frye could be construed as a strict standard. Indeed, it is hard to imagine a standard more lax than one that admits most expert testimony without any reliability analysis.

Many trials — and many matters that never go to trial — turn on the expert testimony, and most Florida expert testimony is admissible into evidence without any review of its reliability. The Marsh dissent’s explanation, in terms of general and specific causation,8 is instructive:

The majority’s holding that an opinion about specific causation need not pass the Frye test, even where the underlying theory of general causation is not accepted, in effect renders specific causation testimony always admissible as the “pure opinion” of the expert. This constitutes a sea change in Florida law, as Florida courts have regularly applied Frye to causation testimony.


* * *

For the reasons stated, I would hold that expert testimony causally linking trauma to fibromyalgia is subject to, and fails, the Frye test. Our precedent dictates that this underlying scientific principle of causation is subject to the Frye test. Whether trauma can ever cause fibromyalgia is a subject of much debate, and therefore the view that it can has not been generally accepted. I cannot agree with the majority that the jury should be left to sort out contentious and complex disputes about medical causation where experts in the relevant scientific community have been unable to agree.9

The Florida Frye standard is increasingly a confusing reliance on an out-dated standard from the 1920s that Florida courts must apply or decline to apply to modern scientific expert testimony. The Marsh dissent would give hope for the future, except for the fact that all of the justices that joined the dissent have now left the bench.

How the Pure Opinion Exception to the Frye Standard Impacts Outcomes of Litigation
The Marsh dissent refers to a set of cases with carefully vetted analyses of expert testimony that fairly uniformly rejects the very testimony that Marsh admits without examination.10 Despite an incentive to identify causation, there appears to be a consensus in the scientific community and the courts that the cause of FM is unknown. In other words, if there is anything that is generally accepted on the cause of FM, it is that we do not know the causes of FM. Yet the pure opinion exception not only admits expert testimony on the cause of FM, but it admits it without any examination. Not every admissibility decision has gone against admissibility of causation expert testimony,11 but the pattern of exclusion of fibromyalgia causation expert testimony in federal courts is clear.

Hood v. Matrixx
The Fourth DCA’s application of Marsh in Hood v. Matrixx Initiatives, Inc., 50 So. 3d 1166 (Fla. 4th DCA 2011), is instructive because Hood notes the inconsistency of admissibility as it surrenders to applying Marsh: “While we recognize the federal courts’ uniform refusal to admit Dr. Jafek’s testimony, we are compelled to find that Dr. Jafek’s opinion is admissible in Florida under Marsh.12

In Hood, the Fourth DCA reversed the summary judgment of the trial court and found that Hood’s expert, Dr. Bruce Jafek, should be allowed to testify that use of Zicam caused the plaintiff to lose his sense of smell. Hood “is controlled by the standards set forth in the Florida Supreme Court’s decision in Marsh v. Valyou. Applying Marsh, we find that the trial court erred in refusing to allow Dr. Jafek to testify on the issue of causation.”13

At issue in Hood was whether Dr. Jafek’s expert opinion testimony that Zicam nasal gel caused the plaintiff to lose his sense of smell would be admissible. The defense argued that Jafek’s expert opinion testimony that “Zicam reached Mr. Hood’s olfactory epithelium failed to meet the standards set forth in Frye because this opinion was not generally accepted in the relevant scientific community. The defense further argued that Jafek’s opinion concerning the toxicity of zinc gluconate was new and novel and not based on scientific principles.14

The plaintiffs opposed Matrixx’s motion, arguing that Dr. Jafek’s expert testimony was a “pure opinion” that was not subject to Frye and was admissible under the Marsh pure opinion exception.15 Much as there had been an impressive list of federal court opinions that rejected testimony of the cause of fibromyalgia in Marsh, there was a similar list of federal court opinions rejecting Dr. Jafek’s opinions on causation of loss of smell from Zicam.16 Like the opinion on causation of fibromyalgia admitted in Marsh, it seems that if there is anything generally accepted about Dr. Jafek’s opinion, it is that it is unsupported and, perhaps, even outright wrong. It would seem that this should have an impact on the Frye analysis. However, under Florida law, Jafek’s opinion sidesteps Frye completely and is admissible as expert evidence under the POE without any examination because it is based only on the experience and training of the purported expert.

The final issue in Hood that requires comment is its conclusion that “Marsh presents a ‘battle-of-the-experts’ approach to the admissibility of expert testimony, designed to prevent trial judges from usurping ‘the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.’”17 This approach is not only a bad resolution that leaves juries to sort out matters of science that science itself has been unable to decide; it is also an expensive solution.

Ipse Dixit
Marsh and its progenitors confirm the “pure opinion” exception to the Frye standard, essentially saying that if the expert’s opinion eschews scientific method and relies only on the expert’s personal experience and training, the testimony is admissible without being subject to any analysis, Frye or otherwise. There is an interesting contrast in the Daubert cases, under which testimony that is supported only by the expert’s experience and training is derided as being the mere “ipse dixit” of the expert and nearly automatically excluded.18 The federal analogue to the POE presented in Kumho Tire is well settled and lays out quickly and without controversy. In a nutshell, Kumho Tire, the most important of the Daubert progeny, and the progeny of Kumho, deride and then dismiss proffered expert testimony based only upon the expert’s experience and training as the “mere ipse dixit” of the expert. In the federal system, there must be something that supports the expert’s opinion other than the expert’s opinion. More particularly, Kumho says that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence” based on only “the ipse dixit of the expert,” however well qualified he may be.19 Hundreds of subsequent federal opinions dismiss the “mere ipse dixit” of an expert, no matter how well qualified.20 The grail for the writer of a Daubert motion to exclude an expert’s testimony is to be able to clearly hang the ipse dixit tag on the testimony. So testimony that is unsupported by independent analysis is routinely excluded in Daubert jurisdictions, but is automatically admitted in Florida. The resulting incentives for forum shopping seem clear, and the resulting litigation tourism is not a kind of tourist that Florida wants.

A complete analysis of Frye and Daubert consumes volumes, but positioning the POE in the legal landscape reveals the fact that the POE constitutes a large hole in the Frye standard, which further weakens the already lax Frye test. Kumho Tire’s more compelling treatment illuminates the strong tension between these treatments of expert testimony that is based only upon the expert’s knowledge and experience. The Daubert cases dismiss it contemptuously as ipse dixit, while Florida state courts must admit it without so much as an inquiry.

One nationally known expert on expert testimony, Prof. David Bernstein21 of George Mason University School of Law writes:

In Marsh v. Valyou, the Florida Supreme Court (1) reiterated that Florida follows the Frye general acceptance test; (2) held that Frye doesn’t apply to a medical expert’s “opinion” testimony regarding causation; (3) held that even if Frye did apply, it should be applied only to the issue of whether the technique of “differential diagnosis” is generally accepted in the medical community, regardless of whether the technique was used in a generally accepted way. [It was not, as the dissent explains in some detail. . . ]; and (4) implicitly rejected the notion that Florida Rule of Evidence 702, modeled on the federal rule that led to the Daubert Supreme Court opinion, provides a “backup” reliability test for causation testimony.

In short, the Florida Supreme Court essentially held that any qualified medical expert (with qualifications always defined loosely) can testify to almost any causation theory, without any real judicial scrutiny. Florida law, then, has regressed to the pre-Daubert let-it-all-in stage, at least with regard to medical causation testimony. Florida thus joins Illinois and Kansas as states that have applied Frye so liberally as to make it virtually meaningless in cases involving causation disputes. The general argument is that only real scientific methodologies, not “pure opinion,” are subject to Frye. As I’ve written, “this peculiar outcome seems to suggest that the less objective the basis for an expert’s scientific opinion, the less judicial scrutiny it should receive!”

One might argue that if the pure opinion exception is so bad, perhaps Florida should revert to a No-POE Frye standard to fix the problem. The difficulty with this approach is that it is Frye, not POE that is the real problem. POE, as bad as it is, is merely a symptom. Frye is simply not robust enough to deal with either the depth or breadth of expert testimony in modern litigation.

The Not-new-or-novel-science Exception
Another symptom of Frye’s limitations, and running parallel to the POE exception, is the more well-known “not-new-or-novel-science” exception to Frye. This exception causes all manner of mischief to be performed on generally accepted methods because, even when otherwise sound methods are very badly abused, Florida courts are instructed to side-step the Frye analysis because the method is not new or novel. Thus, the Frye standard is not only hamstrung by the pure opinion exception, it has been similarly hijacked by the new or novel clause of Frye. Closing the POE does not fix Frye; Frye’s frailty propagates exceptions such as POE and the not-new-or-novel exception.

Conclusion
In the federal system, if there is nothing to support the expert’s opinion other than the expert’s opinion, the opinion is presumptively excluded. Under Florida Frye, such an opinion is given a pass from any evaluation and admitted for the jury’s evaluation even in cases where it is established that there is no scientific consensus on the opinion. In the language of causation, experts are permitted to offer opinion on specific causation when they have not established general causation. Florida’s Frye test specifies that expert testimony must be generally accepted before it is admitted, but then it excludes whole classes of purported expert testimony from the test altogether because it has no mechanism for considering it.

POE is the predictable progeny of an austere and rigid Frye standard that cannot address the depth or diversity of modern expert testimony. Frye must generate ad hoc solutions like the POE and the “not-new-or-novel-science” exception because it is insufficiently robust to test modern expert testimony.


1 Marsh v. Valyou, 977 So. 2d 543, 571 (Fla. 2007).

2 See generally Stephen Mahle, Daubert and Commercial Litigation in Florida, Ch. 1, Business Litigation in Florida (6th ed. Lexis/Nexis 2010); Faigman, Kaye, Saks & Sanders, Admissibility of Scientific Evidence, Ch. 1, Modern Scientific Evidence: The Law and Science of Expert Testimony (Thomson/West 2005).

3 Kumho Tire, 526 U.S. at 157.

4 Brim, 695 So. 2d at 271.

5 This article is not about the relative strictness of Frye and Daubert, but Marsh and the pure opinion exception have implications for that discussion that merit mention. Marsh cites Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (“While Allison argues that the thrust of the Rules and of the Eleventh Circuit has been for liberal admissibility of evidence, she fails to appreciate . . . that this [c]ircuit has been twice overruled on Daubert decisions in precedent setting Supreme Court decisions . . . both of which imposed stricter admissibility standards than the Eleventh Circuit had deemed appropriate.”).

McGhan seems an odd cite for the Florida Supreme Court immediately before reiterating its assertion of a stricter Frye, because McGhan stands for the proposition that Daubert is a strict standard. McGahn was the 11th Circuit’s announcement that Daubert required a strict standard, stricter than what that circuit had been applying. Also instructive on the notion of a lenient Daubert standard is Weisgram v. Marley Co., 528 U.S. 440, 442 (2000), where the Supreme Court said that, since Daubert, “parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet,” and that “[i]t is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.”

6 Flanagan, 625 So. 2d at 828.

7 Marsh, 977 So. 2d at 547.

8 The question of general causation focuses on whether a substance is capable of causing a particular disease, while the question of specific causation focuses on whether the substance did, in fact, cause the disease in a specific individual. See, e.g., Berry v. CSX Transp., Inc., 709 So. 2d 552 (Fla. 1st D.C.A. 1998). The federal courts have held that in toxic tort cases, a plaintiff must prove both general causation and specific causation. See, e.g., Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir. 2005) (“Plaintiff must first demonstrate general causation because without general causation, there can be no specific causation.”). See Hood v. Matrixx Initiatives, Inc., 50 So. 3d 1166 n.4 (Fla. 4th D.C.A. 2010).

9 Marsh, 977 So. 2d at 571 (dissenting opinion).

10 Id. at 570-71 (“Vargas v. Lee, 317 F.3d 498, 502-03 (5th Cir. 2003) (applying Daubert and excluding testimony that a car accident caused fibromyalgia); Food Lion, 171 F.3d at 314 (applying Daubert and finding testimony linking a slip-and-fall to fibromyalgia inadmissible); Maras, 393 F. Supp. 2d at 808-10 (finding testimony that motor vehicle accident caused fibromyalgia failed to meet the general acceptance factor, among other factors, of Daubert); Hultberg v. Wal-Mart Stores, Inc., No. CIV. A. 97-2858, 1999 U.S. Dist. LEXIS 6057, 1999 WL 244030 at *1 (E.D. La. Apr. 22, 1999) (applying Daubert and excluding testimony that a slip-and-fall accident caused fibromyalgia); Schofield v. Laboscam, Inc., No. CIV. A. CV-00-197, 2002 Me. Super. LEXIS 123, 2002 WL 1335867 at *3 (Me. Super. Ct. June 6, 2002) (granting motion in limine to exclude testimony that a vehicle accident caused fibromyalgia); Jones v. Conrad, No. CA2000-12-257, 2001 Ohio App. LEXIS 3897, 2001 WL 1001083 at *3-4 (Ohio Ct. App. Sept. 4, 2001) (finding testimony linking work accident to fibromyalgia [*78] inadmissible and the theory that trauma can cause fibromyalgia not generally accepted); Grant v. Boccia, 133 Wn. App. 176, 137 P.3d 20, 24 (Wash. Ct. App. 2006) (citing with approval the district court’s decision in Marsh and holding inadmissible under Frye testimony linking a car accident to fibromyalgia where ‘[n]one of the authorities presented by either party has the effect of persuasively establishing acceptance in the relevant community as to the cause of fibromyalgia or the causal role of trauma in the development of fibromyalgia’), review denied, 154 P.3d 919 (Wash. 2007); cf. Washburn v. Merck & Co., 213 F.3d 627, 2000 WL 528649 at *2 (2d Cir. May 1, 2000) (No. 99-9121) (affirming exclusion of testimony that vaccination caused fibromyalgia and other conditions under Daubert because it was based ‘on little more than temporal correlation’ between the vaccination and onset of symptoms); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1321-22 (11th Cir. 1999) (affirming exclusion of testimony that breast implants caused fibromyalgia); Wynacht v. Beckman Instruments, Inc., 113 F. Supp. 2d 1205, 1209 (E.D. Tenn. 2000) (finding testimony linking a chemical spill to fibromyalgia and other conditions inadmissible under Daubert); Gross v. King David Bistro, Inc., 83 F. Supp. 2d 597, 602 (D. Md. 2000) (granting motion in limine to preclude testimony under Daubert that shigella infection caused fibromyalgia); Bushore v. Dow Corning-Wright Corp., No. 92-344-CIV-T-26C, 1999 U.S. Dist. LEXIS 20697, 1999 WL 1116920 at *1 (M.D. Fla. Nov. 15, 1999) (applying Daubert and excluding testimony that breast implants caused fibromyalgia); Minner v. Am. Mortgage & Guar. Co., 791 A.2d 826, 855 (Del. Super. Ct. 2000) (excluding evidence that a ‘sick building’ caused fibromyalgia because ‘there appears to be a consensus that there is no known cause of FM’)”).

11 A few courts applying Daubert have admitted testimony causally linking trauma to fibromyalgia. See, e.g., Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501, 509-11 (Neb. 2006) (recognizing a “professional controversy regarding the causal relationship between physical trauma and fibromyalgia” and that “there is not a sufficient scientific consensus to say that the theory is generally accepted,” but noting that general acceptance is not determinative under Daubert and finding admissible testimony causally linking plaintiff’s car accident to fibromyalgia); Reichert v. Phipps, 2004 WY 7, 84 P.3d 353, 364-65 (Wyo. 2004) (finding causation testimony admissible because differential diagnosis is an acceptable method of diagnosing fibromyalgia and because the proffered expert opinions “were given in the overall context of a professional controversy over the link between physical trauma and FM, in which some experts take the position that there is, indeed, a causal connection”); cf. Alder v. Bayer Corp., 61 P.3d 1068, 1085 (Utah 2002) (holding admissible testimony linking chemical fumes to fibromyalgia where it was based on differential diagnosis). These decisions are in the minority, however, and they apply a different test. Other than the Second District’s recent decision in Johnson, 880 So. 2d at 721, however, I have found only one case applying a Frye-type test to testimony linking trauma to fibromyalgia that has found the testimony admissible. See Byrum v. Superior Court of Los Angeles County, No. B153001, 2002 Cal. App. Unpub. LEXIS 3809, 2002 WL 243565 at *2 (Cal. Ct. App. Feb. 20, 2002). Even that case seems to conflict with another case within the same appellate district. See Pflum v. Sears, Roebuck & Co. No. B161862, 2004 Cal. App. Unpub. LEXIS 1732, 2004 WL 348783 at *2 (Cal. Ct. App. Feb. 25, 2004) (concluding the issue was not preserved, but addressing the merits and finding a lack of “a reasonable degree of medical certainty that trauma can exacerbate fibromyalgia”).

12 Hood, 50 So. 3d at 1175.

13 Id. at 1168.

14 Id. at 1170.

15 Id.

16 Id. at 1170-71 (“Polski v. Quigley Corp., 538 F.3d 836, 841 (8th Cir. 2008) (affirming the exclusion of Dr. Jafek’s opinions on causation because they all ‘relied on his untested opinion that Cold-Eeze, when used as directed, comes into direct contact with the olfactory epithelium’); Lusch v. Matrixx Initiatives, Inc., 74 Fed. R. Evid. Serv. 880 (D. Or. 2007)(excluding Dr. Jafek’s causation opinion and finding that there is no reasonable scientific evidence supporting his opinions that Zicam actually reaches the olfactory epithelium, that Zicam is toxic to the olfactory epithelial tissue, or that Zicam is delivered in a dose sufficient to permanently damage olfactory epithelial tissue); O’Hanlon v. Matrixx Initiatives, Inc., 2007 WL 2446496 (C.D. Cal. 2007) (finding, among other faults, that Dr. Jafek merely extrapolated from an accepted premise, that zinc ions are toxic to the olfactory epithelium, to an unfounded conclusion, that zinc ions contained in a dose of Zicam are toxic to the olfactory epithelium); Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp. 2d 1316, 1332 (M.D. Ala. 2006) (excluding Dr. Jafek’s causation opinions because ‘he attempts to use animal studies without support for extrapolation to humans, cites “epidemiologic studies” that fail to follow the fundamentals of epidemiology, makes unsupported analogies between different chemical substances, performs unsound experiments, draws impermissible conclusions from other scientists’ articles and experiments, and relies on irrelevant and unreliable data’); Sutherland v. Matrixx Initiatives, Inc., 2006 WL 6617000 (N.D. Ala. 2006) (concluding that ‘the methods and procedures [Dr. Jafek] employed are not sufficiently reliable under Daubert and Rule 702 to allow him to share his opinions with a jury’); Hans v. Matrixx Initiatives, Inc., 2006 WL 5229820 (W.D. Ky. 2006)”).

17 Id. at 1175, quoting Marsh, 977 So. 2d at 549.

18 Kumho Tire, 526 U.S. at 157.

19 Id.

20 Lexis lists hundreds of hits to “mere ipse dixit,” the mocking shorthand that courts use when they not only dismiss an expert’s testimony for lack of scientific foundation but continue on to disparage the expert’s testimony as well as to exclude it.

21 Professor David Bernstein, George Mason University School of Law, The Volokh Conspiracy, http://www.volokh.com. Marsh, 977 So. 2d at 547 cites to Professor Bernstein: David E. Bernstein and Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 Jurimetrics J. 351, 352 (2004) (“Courts and commentators disagreed, however, regarding whether this ‘revolution’ in how judges were to go about deciding whether to admit scientific evidence would lead to more permissive or more restrictive admissibility rulings.”). I cite Professor Bernstein more for summary than as authority. The Volokh Conspiracy is listed in the ABA Journal’s list, the ABA Journal Blawg 100 (Dec. 1, 2011), http://www.abajournal.com/magazine/article/the_5th_annual_aba_journal_blawg_100.


Stephen Mahle is a commercial litigator and economist who concentrates his practice on Daubert and Frye motions to control admissibility of scientific and damages expert testimony. He received his J.D. from the University of Virginia School of Law and his Ph.D. in economics from The Ohio State University. He has been a finance professor at major universities, was an Olin Scholar in law and economics at the University of Virginia Law School, and is the author of DaubertExpert.com.

This column is submitted on behalf of the Business Law Section, Mindy Mora, chair, and Melanie E. Damian and Peter F. Valori, editors.

[Revised: 02-10-2012]