In re: Amendments to the Florida Small Claims Rules

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Jill Marsh v. Robert Ear Valyou, Jr.

SC06-118

OUR NEXT CASE, ON THE
CALENDAR IS MARSH v. VALYOU.
>> MAY IT PLEASE THE COURT.
MY NAME IS JOHN STIM BERGER
AND I'M WITH MY COCOUNSEL.
TODAY WE REPRESENT THE
PLAINTIFF APPELLATE IN THIS
CASE, JILL MARSH.
YOUR HONOR, AS THE CURRENT
LEGAL AUTHORITY AS SET BY
THIS COURT IN THE WELL
RECENT FREY CASES IN THIS
DECADE SHOULD RETURN THE
OUTCOME OF THIS CASE IN
FAVOR OF THE PLAINTIFF.
SPECIFICALLY WE WOULD CITE
THIS COURT TO THE TWO MOST
RECENT FRYE DECISIONS.
U.S. SUGAR v. DuPONT AND WE
WOULD MAKE TWO ARGUMENTS
THIS MORNING.
THE FIRST SURMENT IS THAT
FRYE DOES NOT APPLY IN THIS
CASE BECAUSE THE EXPERTS
RENDERED PRU OPINION
TESTIMONY BABASED ON THEIR
TRAINER, AND EXPERIENCE.
>> LET'S GET TO THE REAL
ISSUE ON THAT.
THE ISSUE ON THAT IS THAT, I
THINK THE DEFENDANT DOESN'T
CONTEST THAT WHETHER YOUR
CLIENT HAS FIBROMYALGIA IS
PURE OPINION TESTIMONY THAT
IS NOT SUBJECT TO FRYE.
THE QUESTION IS WHETHER, THE
ISSUE OF WHETHER TRAUMA CAN
EVER CAUSE FIBROMYALGIA IS
ONE OF THE PRINCIPLES ON
WHICH THAT PURE OPINION
TESTIMONY IS BASED AND THAT
IS SUBJECT TO FRYE AND THAT
THERE IS NO CONSENSUSES IN
THE MEDICAL COMMUNITY.
IT IS NOT CLEARLY
ESTABLISHED THAT THAT IS THE
CASE AND THEREFORE THAT'S
WHY YOUR EXPERT TESTIMONY IS
NOT ADMISSIBLE.
SO WHY IS, WHY UNDER OUR
CASES AND ALL THE OTHER
CASES, WHY ISN'T THE CASE
THAT THAT PRINCIPAL, THAT
TRAUMA CAN CAUSE
FIBROMYALGIA IS NOT SUBJECT
TO FRYE?
>> WELL, FIRST OF ALL, YOUR
HONOR, WE WOULD SUBMIT THIS
IS PURE OPINION TESTIMONY.
FRYE IS INVOKED WHEN THERE
IS NEW AND NOVEL SCIENTIFIC
METHODOLOGIES, TESTS,
PROCEDURES, PROFILES,
STATISTICAL PARADIGMS, SOME
GADGET IF YOU WILL.
>> AND PRINCIPLE.
>> WELL, THAT'S CORRECT,
YOUR HONOR, BUT THIS COURT
IS NOT BEING CLEAR EXACTLY
ON WHAT PRINCIPLES IS
WHETHER TRAUMA CAUSES
FIBROMYALGIA,INATE ISN'T
THAT AN UNDERLYING
PRINCIPLE?
>> YOUR HONOR, THAT COULD BE,
IF THIS COURT DETERMINES
THAT THAT'S THE CASE, THEN
THAT'S THE CASE.
THE WORD PRINCIPLE HAS NOT
BEEN SPECIFICALLY DELINEATED
BY THIS COURT.
>> WELL, PERHAPS WE HAVE NOT
BEEN CLEAR ON WHAT PURE
OPINION TESTIMONY IS.
THE, THE FACTS WERE THAT WE
WERE ATTEMPTING TO
DIFFERENTIATE THERE BETWEEN
SOMETHING THAT AN OPINION
WHICH IS DEVELOPED BY A
PSYCHOLOGIST -- IN A
CLINICAL PRACTICE, AND, AN
OPINION WHICH IS DEVELOPED
BY A FACT THAT IS NOT SEEN
THROUGH SYMPTOMS AND
PRESENTATION IN THE OFFICE.
BUT RATHER IS SEEN THROUGH
STUDY OF TREATISES AND AND
OTHER MATTERS.
I MEAN, THAT'S WHAT WE SAID,
CORRECT?
>> WELL, YOUR HONOR, IN THIS
CASE, YOU HAVE THAT.
YOU HAVE THE OBJECTIVE
OBSERVATION SYMPTOMOLOGY
BASED UPON THE --
>> YOU GOT THE SYMPTOMOLOGY
THAT HE'S GOT THE DISEASE,
THE QUESTION IS, THOUGH,
WHAT IS THE LENGTH THAT --
WHAT IS THE LINK THAT CAUSED
-- WHATS THE ETIOLOGY OF THE
FIBROMYALGIA AND WHAT I AM
CONCERNED ABOUT IS THAT IT
SEEMS TO ME THAT IN NEITHER
FLANIGAN NOR IN HADDEN, DID
WE REACH THE CONCLUSION THAT
SOMETHING THAT IS, THAT HAS
TO BE ONLY DEALT WITH BY
SOMETHING THAT IS NOT WITHIN
THE CLINICIANS PRACTICE BUT
RATHER WITHIN STUDIES
OUTSIDE THE CLINICIAN'S
PRACTICE DOESN'T FIT WITHIN
PURE OPINION TESTIMONY.
-- PURE OPINION.
AS WE WERE TRYING TO DEFINE
T..
>> JUSTICE WELLS, THERE ARE
DOZENS OF CLINICAL REPORTS
SHOWING THAT PATIENTS REPORT
A TRAUMA, REPORT TRAUMA
PRECEDING FIBROMYAL
ADJUSTMENT IN FACT IT'S 25%
OF RHEUMTOLOGISTS AND
PODIATRISTS WHO --
>> BUT THAT BRINGS IT WITHIN
FRYE.
RATHER THAN BEING SOMETHING
THAT WE WERE TRYING TO REACH
AND HADDEN AS BEING
SOMETHING THAT DOESN'T GO
UNDER FRYE.
WOULDN'T YOUGRY WITH THAT?
>> NOT EXACTLY, YOUR HONOR.
IN THE HINSON CASE, AND
AGAIN, WE BELIEVE THAT
HINSON AND CUSTILLO ARE
CONTROLLING IN THIS CASE, TO
OUR FACTS, THIS COURT STATED
THAT THE, THAT THE FACT THAT
AS CAUSE AND EFFECT
RELATIONSHIP THAT HAS NOT
BEEN CONCLUSIVELY
ESTABLISHED DOES NOT RENDER
THE TIME ADMISSIBLE AND IN
FACT IN CASTILLO THERE WAS A
SCIENTIFIC PROPOSITION
REJECTED FLATLY AND THIS
COURT STILL ALLOWED THAT
PROPOSITION TO GO TO THE
JURY.
HERE WE HAVE AT LEAST THREE
CONSENSUS REPORTS, TWO OF
WHICH SHOW IT A ROBUST
REPEATED CORRELATION BETWEEN
TRAUMA AND FIBROMYALGIA.
WE HAVE THREE
EPIDEMIOLOGICAL STUDIES TWO
OF WHICH SHOW THE ROBUST
CORRELATION BETWEEN
FIBROMYALGIA AND WE HAVE
DOZENS OF CLINICAL REPORTS
THAT SHOW THE SAME.
>> [INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> CERTAINLY.
YES, SIR.
[INAUDIBLE]
>> CERTAINLY, AND THAT
REALLY BRINGS TO MY SECOND
POINT, AND THE ANSWER TO MY
QUESTION IS IF FRYE DOES
APPLY, IF THIS COURT DOES
APPLY TO THE FACTS IN THIS
CASE THEN WE BELIEVE THE
PLAINTIFF STILL PREVAILS
BECAUSE THE EXPERTS MERELY
USED A DIFFERENTIAL
DIAGNOSIS AS A PROCESS OF
EXCLUDING OTHER DIAGNOSIS
THEY LOOKED A HISTORY,
RECORDS, BLOODWORK, MRIes,
X-RAYS, ALL GENERALLY
ACCEPTED FORMS OF DIAGNOSIS
AND ACCEPTED BY THIS
COMMUNITY AND CAME TO THE
CONCLUSION THAT JILL HAD
FIBROMYALGIA.
>> SO ESSENTIALLY WHAT THEY
DID -- THEY RULED OUT, IT
CAN'T BE THIS, IT CAN'T BE
THIS, IT CAN'T BE THIS
TCAN'T BE THIS.
THEREFORE IT MUST BE
FIBROMYALGIA, RIGHT?
>> THAT IS CORRECT.
>> [INAUDIBLE]
[INAUDIBLE]
>> I BELIEVE THAT'S CORRECT,
YOUR HONOR, YES.
SNAUBL
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> DIFFERENTIAL DIAGNOSIS.
THEY ALSO RULED OUT THE
POSSIBILITIES THAT THE
CONDITION, THIS CONDITION IS
ALSO CAUSED BY HERED TEAR
AND GENETIC FACTORS, IT'S
CAUSED BY PATHOLOGICAL AND
DISEASE PROCESSES WHICH IS
RULED OUT IT COULD BE CAUSED
BY OTHER TRAUMA, RAPE, WAR,
PHYSICAL ASSAULTS.
[INAUDIBLE]
>> WELL, THAT'S EXACTLY THE
POINT, YOUR HONOR.
AND WE DID NOT HAVE THE
CHANCE TO HAVE THAT BUT THE
VIGGEROUS CROSS EXAMINATION
BETWEEN THE EXPERTS
SHOULD'VE HAPPENED AT TRIAL
AND LET THE JURY DECIDE.
>> CAN WE GO BACK TO THAT
FOR A MOMENT.
AS I AM GOING THROUGH ALL OF
THE MATERIAL, TISHULAR STUDY,
CONSENSUS DOCUMENTS LOF THE
OTHER STUDIES TSEEMS THAT WE
ARE NOT FINDING A CLEAR
CONSENSUS THAT TRAUMA CANNOT
PRODUCE THIS CONDITION.
IT SEEMS AS THOUGH I AM
READING MOST OF THIS THAT
THE ETIOLOGY, THE PATH
PHYSIOLOGY REMAIN UNCLEAR.
THE, THE SYNDROME OF UNKNOWN
ORIGIN, WE CAN'T NECESSARILY
CONNECT IT.
SO IS THAT, AM I READING
THIS CORRECTLY OR, OR, OR,
IS THE MAJORITY SAYING NO,
IT CAN NEVER BE CAUSED BY,
BY TRAUMA?
>> YOU ARE CORRECT.
>> SO THIS IS THE NATURE OF
THE UNDERLYING DATA SO
REALLY WHAT THE OTHER SIDE
IS SAYING IS THAT UNLESS YOU
HAVE A CLEAR CONSENSUS OF
CAUSATION, YOU CAN NEVER
GETGY KIND OF TESTIMONY IN,
IS THAT WHERE WE ARE IN THIS
CASE?
>> WELL, THAT'S NOT, YOUR
HONOR, BECAUSE AGAIN IN
HENSON TSAID A CAUSE AND
EFFECT RELATIONSHIP DOESN'T
HAVE TO BE EXCLUSIVELY
ESTABLISHEDF THIS IS A
LEGITIMATE MEDICAL DISBUTTE
BY SOME OF THE WORLD'S
FINEST EXPERTS THAT BASE
THEIR --
>> THAT'S WHAT I'M ASKING.
THAT'S WHAT IT SEEMS TO BE
YOU SAID IT ISN'T I DON'T
KNOW.
FRYE ISN'T IMPLEMENT UNLESS
IT A GADGET, SOME DEVICE.
THAT BRINGS THE CREDIBILITY
INTO THE COURTROOM.
THE EXPERT, IF IT'S JUST HIS
OPINION HE HAS THE OATH OF
OFFICE HE TAS HAS TO TAKE,
THE QUALIFICATIONS OF AS AN
EXPERT.
OTHER EXPERTS CAN SUMMARY
JUDGET, DIRECTED VERDICT.
THERE IS ALWAYS TO SCREEN
THAT EXPERT PURE OPINION
TESTIMONY.
OR THERE'S JUST TESTIMONY AT
TRIAL.
HOWEVER, THIS FRYE KPPLGS IS
NOT TRIGGERED UNLESS THERE
IS THIS THING FROM WHICH THE
DEDUCTION IS MADE TO REACH
THE CONCLUSION THAT CAN'T BE
CROSS-EXAMINED THAT
BRINGINIZE TO THE COURT THIS
RESPECT IN AND OF ITSELF.
>> SO THERE IS NO, IN YOUR
POSITION, THERE HAS TO BE NO
GENERAL ACCEPTANCE OF THE
UNDERLYING THEORY?
IN THE SCIENTIFIC COMMUNITY.
>> THAT'S CORRECT.
THIS COURT HAS STATED
SEVERAL TIMES THAT THE
CONCLUSION THAT TRAUMA CAUSES
FIBROMYALGIA.
IT IS THE METHODOLOGY, THE
ASSUMPTION, THE DEDUCTION
THAT BRINGSTUSE FRYE.
IF THIS COURT HOLDS THE
PRINCIPLE HOLDS THE
SCIENTIFIC THEORY AND
CONCLUSION.
>> SO THE ETYMOLOGY DOESN'T
HAVE TO BE ESTABLISHED BY
ANYWAY STUSTATISTICAL OR
STUDY SO HOW BROAD IS THIS?
JUST GET OUT OF OIFY
FIBROMYALGIA, AUTISM, THERE
IS A BIG QUESTION, IS IT
CAUSED BY VACCINES.
THAT CHILDREN GET.
SO THERE ARE SOME PEOPLE WHO
THINK THAT FACT SO THAT
EXPOSE POSED EVEN THOUGH
THERE IS NO NERL GENERAL
ACCEPTANCE OR UNDERSTANDING,
THE CAUSATION, THAT THAT
COULD BE A BASIS OF
LIABILITY.
IF YOU COULD FIND A DOCTOR
AND SAY WELL I THINK IT'S
THE VACCINES THAT THE KIDS
IT IS JUST A MATTER FOR THE
JURY TO DEBATE AND THE JURY
MAKE A DECISION ON A BASIS
WITHOUT GENERAL ACCEPTANCE
THAT THERE IS A LINK BETWEEN
THE LINK AND OUGHT SNOM WELL,
THAT IS CORRECT PROVIDING
THAT THERE IS NO NEWER NOVEL
SCIENTIFIC METHODOLOGY
PROFILE EVIDENCE, SOME
GADGET, SOME DEVICE WHICH
CAN'T BE CROSS EXAMINATION.
AS LONG AS IT IS PURE
OPINION TESTIMONY THAT
EXPERT IS RENDERING OPINIONS
THAT ARE COMPLETELY FUSEGSES
AND DON'T HAVE NO BASIS IN
MEDICINE IT WILL BE RIPPED
APART IN CROSS EXAMINATION.
>> SO WHAT IS THE BASE IN
MEDICINE OTHER THAN THE
DEFERENTIAL DIAGNOSIS.
>> IN THIS CASE.
>> IN YOUR CASE.
>> WELL THERE ARE PLAUSIBLE
BIOLOGICAL MODELS.
WE KNOW, I THINK I CAN SAY
THAT THERE IS A CONSENSUS
THAT DEFENSE COUNSEL MAY
DISAGREE, THERE IS A
CONSENSUS NOW IN MEDICINE
THAT THIS CONDITION INVOLVES
A DISRUPTION OF THE CENTRAL
NERVOUS SYSTEM.
WE KNOW SOMETHING ABOUT THAT
THAT THAN THAK LIKELY THIS
CONDITION OCCURS WHEN THERE
IS INJURIES TO THE UPPER
CERVICAL REGION TRAUMA COULD
CAUSE THIS DISRUPTION.
>> BUT ISN'T THE PROBLEM
HERE THAT THE DIFFERENT
BETWEEN FRYE IS THAT FRYE
STILL DOES REQUIRE THAT
PROPONENT OF A THEORY TO PUT
ON EVIDENCE WHICH
ESTABLISHES THAT THE THEORY
HAS BEEN DEVELOPED ON THE
BASIS OF GENERALLY ACCEPTED
SCIENTIFIC PRACTICE.
AND, AND PRINCIPLES.
AND THAT IF, AND UNTIL THERE
IS, A CONSENSUS, THAT WE
HAVE A WAY TO CONCLUDE THAT
TRAUMA CAUSES THIS DISEASE,
THAT FRYE WOULD NOT ALLOW
THAT TO BE CONSIDERED BY THE
JURY.
I MEAN, ISN'T THAT THAT, I
MEAN, IT SEEMS TO ME THE
SENSE WOULD BE GRIFFIN
SAYING.
>> THE CASE LAW PUT TOGETHER
BY THIS COURT HAS NOT RULED
SCIENTIFIC PRINCIPLES MEANS
THE UNDERLYING THEORY AND
CONCLUSION OF THE CASE.
IN FARCT, IT'S JUST THE
OPPOSITE.
>> WELL WOSHGS BEAWFULLY
MUCH INVOLVED IN
TERMINOLOGY.
WE, WE DO THAT BECAUSE WHEN
WE SAY THAT BECAUSE IT SEEMS
TO ME, WHAT, WHAT DOES FRYE
THEN STAND FOR?
WHAT DOES FRYE -- I MEAN,
WHY DO YOU SAY THAT, THAT
WHAT IS THE DIFFERENCE
BETWEEN FRYE AND DOGGERT
WHAT YOU ARE ARGUING.
>> WELL THE DIFFERENCE
BETWEEN FRYE AND DOGGERT IS
THAT FRYE REQUIRES THE
GENERAL ACCEPTANCE OF THE
METHODOLOGY WHEN THERE IS A
NEWER NOVEL, METHODOLOGY,
TEST, TECHNIQUE, WHAT HAVE
YOU.
UNDER DAUBERT YOU HAVE
SEVERAL FACTORS THEN WEIGHED
TOGETHER IN SOME PLACES.
INTERPRETED DIFFERENTLY IN
EACH STATE BUT IN DAUBERT
YOU HAVE A NUMBER OF FACTORS
AND ONE OF THEM IS THE FRYE
TEST.
SOME TIMES IT'S NOT GENERAL
ACCEPTANCE BUT SOMETHING
ELSE AND VARIOUS OTHER
FACTORS WEIGHED IN WITH IT.
THERE IS A DISPUTE ABOUT
WHETHER DAUBERT IS MORE
STRICT OR MORE LIBERAL.
SOME MORE KEEN OBSERVERS OF
THIS SAY THE DAUBERT TEST
APPLIED IS MORE STRICT THAN
FRYE ITSELF.
BUT, YOUR HONOR, I THINK TO
GO TO THE TEPER PART OF YOUR
QUESTION IS THAT FRYE IS NOT
IMPLICATED UNLESS THERE IS
METHODOLOGY WHICH IS NEW AND
NOVEL.
THERE IS NOTHING NEW ABOUT
THE THEORY THAT TRAUMA
CAUSES FIBROMYALGIA.
THE DEFENSE IS ON EXPERT,
JOHN RUSSELL RICE, DUKE
UNIVERSITY, AUTHORED A
CHAPTER IN A BOOK COMPLEX
MEDICAL PATIENT.
HE HAS A CHART IN THERE AND,
AND IT'S, RECORD PAGE 418 TO
422 AND HE LISTS TRAUMA IN
1987 DWENT YEARS AGO AS ONE
OF THE THINGS SECONDARY TO A
POSSIBLE CAUSE YOU HAVE TO
RULE OUT WHEN, WHEN
DIAGNOSING THIS CONDITION SO
THERE IS NOTHING NEW ABOUT
IT.
THERE'S CERTAINLY NOTHING
NOVEL ABOUT THE WAY AND THE
MAPPER IN WHICH THE
TESTIMONY WOULD'VE BEEN
ELICITED.
IT WOULD'VE BEEN JUST THE
SAME WAY THAT TRAUMA CAUSES
CARPAL TUNNEL SYNDROME THERE
IS A DISPUTE ON BUT IT GOES
TO THE JURY ALL THE TIME.
>> YOU ARE WELL INTO YOUR
REBUTTAL.
>>IUM SORRY.
>> USE YOUR TIME AS YOU
WISH.
IT'S JUST AN ALERT.
>> MAY IT PLEASE THE CORT
COURT.
I'M ELIZABETH.
I REPRESENT THE BURKES IN
THIS.
MR. BROCK REPRESENTS THE
VALUES, MR. MIXEN
REPRESENTSAVES AND HE
REPRESENTS THE VALUE --
VALYOUS AND I WILL BE
SPLITLING OUR TIME.
>> COULD YOU GO BACK TO THE
QUESTION THAT I POSED TO
OPPOSING COUNSEL IN GOING
THROUGH ALL OF THE MATERIAL
IT LOOKS LIKE ALL THE
UNDERLYING, IF WE EVEN SAY
THIS IS SUBJECT OF FRYE
ANALYSIS THAT WE START
LOOKING AT THE UNDERLYING
MATERIALS AND THE SCIENTIFIC
THING IS SAYING THAT THE
ETIOLOGY, THE PATH
OPHYSIOLOGY WERE JUST
UNCLEAR, WE ARE NOT CERTAIN.
IS THAT THE STATUS OF IT?
>> THAT'S EXACTLY WHAT IT
IS.
>> SO IT'S NOT ANY, THERE'S
NOT ANYTHING THERE THAT SAYS
ABSOLUTELY THIS CANNOT BE
CAUSED BY TRAUMA?
>> THERE'S NOTHING THAT SAYS
ABSOLUTELY IT CANNOT BE
CAUSED BY TRAUMA BUT BY THE
SAME TOKEN THERE IS NO CLEAR
CONSENSUS THAT IT CAN BE
CAUSED BY --
>> WELL, THAT'S WHERE YOU
GET THERE TO THE OPINION AND
IS IT NOT THE BASIS OF FRYE
YOU LOOK AT IT.
FOR EXAMPLE, IF THIS
DIAGNOSIS WERE COMING THAT
THEY WERE USE AGTELESCOPE TO
BOUNCE OFF THE MOON SOME
TYPE OF RAYS AND THAT'S HOW
THEY WERE MAKING THE
DIAGNOSIS THEN CERTAINLY
THAT'S THE METHODOLOGY THAT
MY BE SUBJECT TO, TO
CRITICISM.
BUT IF YOU GO THROUGH ONE --
BECAUSE IF WE GO BACK
FURTHER, WHAT YOU ARE GOING
TO BE SAYING THEN IS THAT
YOU HAVE TO HAVE ABSOLUTE
GENERAL CONSENSUS ON
CAUSATION ON ANYTHING BEFORE
YOU EVER CAN HAVE TESTIMONY
ON IT.
>> NO, YOUR HONOR.
>> THAT'S THE BOTTOM LINE.
>> WE ARE NOT SAYING THAT.
WITH ALL RESPECT, YOUR HONOR,
I THINK THIS COURT HAS SAID
THAT SEVERAL TIMES, AND --
>> WELL, I WOULD
RESPECTFULLY DISAGREE THAT
IT IS THAT.
SO.
IF THAT WHAT YOU ARE SAYING
BECAUSE YOU THINK THAT'S
WHAT WE HAVE SAID THEN WE
NEED TO KNOW THAT.
THAT'S WHAT YOUR POSITION IN
THIS CASE.
>> NO, YOUR HONOR.
OUR POSITION IS NOT THAT
THERE HAS BEEN ABSOLUTE
CERTAINTY BUT UNDER FRYE
THERE HAS BEEN GENERAL
ACCEPTANCE WITHIN THE
RELEVANT SCIENTIFIC
COMMUNITY.
>> [INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> YOUR HONOR, IF I'M -- I'M
NOT FAMILIAR WITH NOSECLASES.
I DON'T HAVE NOT READ THEM
BUT IF YOU COULD TATTOOIOIN
TERMS OF CASTULLO CASE AND
DIAZ CASE.
>> [INAUDIBLE]
>> TO CHALLENGE --
>> CAUSATION WAS SOMETHING
THAT HAS TO BE -- FRYE AND
THAT'S WHY --
[INAUDIBLE]
>> PERHAPS --
>>
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> AND I THINK YOU ARE RIGHT,
YOUR HONOR, BUT BOTH HINSON
AND CASTILLO WERE CAUSATION
CASES AND BECAUSE THEY
SPIFBLGLY ADDRESSED FRYE, I
THINK THEY'RE INSTRUCTIVE ON
THIS ISSUE, AND MR. STEMBERER
WANTS TO SAY FRYE ONLY
APPLIES TO METHODOLOGY BUT
THIS COURT HAS REPEATEDLY
SAID AND IN FACT IN THE
STOKES CASE WHICH IS ONE OF
THE EARLIER CASES WHERE THE
COURT REAFFIRMED FRY, THEY
SAID THAT THE SCIENTIFIC
PRINCIPLES UNDERGUARDING THE
OPINION BUT ME GENERALLY
ACCEPTED IN THE RELEVANT
SCIENTIFIC COMMUNITY WANT
THAT HAS SUBSEQUENTLY
DEVELOPED INTO I THINK MAYBE
THE RAMIREZ CASE, MIGHT'VE'VE
BEEN ONE OF THE FIRST ONES
TO SAY THE UNDERLYING
SCIENTIFIC PRINCIPLES AND
THE METHODOLOGY HAVE TO BE
GENERALLY ACCEPTED IN THE
RELEVANT SCIENTIFIC
COMMUNITY.
>> [INAUDIBLE]
>> YES, CORRECT.
>> [INAUDIBLE]
>> WELL, I SURE WOULD.
YES.
>> [INAUDIBLE]
[INAUDIBLE]
>> WELL, YOUR HONOR, I AGAIN,
I GO BACK TO HINSON AND
CASTILLO.
IN HINSON, THE ISSUE WAS
WHETHER, THAT WAS THE CASE
WHERE I BELIEVE THE WORKING
HAD FRENIC NERVE PARALYSIS
THAT HE TRIED TO TIE INTO
EXPOSURE AT HIS WORKPLACE,
AND IN THAT CASE, IT WAS
GENERALLY ACCEPTED AND IT
STATED IN THE OPINION AND
BOTH, BOTH THIS COURT AND IN
THE FIRST DCA IT STATED IT
WAS GENERALLY ACCEPTED IN
THE RELEVANT SCIENTIFIC
COMMUNITY THAT ORGANNO
PHOSPHATES ARE NEURTOXIC.
SO FROM THAT, THE COURT THEN
LOOKED TO THE METHODOLOGY
THAT WE WAS USED BY THE
EXPERTS TO EXTRAPOLATE FROM
THAT GENERAL UNDERLYING
SCIENTIFIC PRINCIPLE TO THE
ISSUE OF WHETHER THE ORGANO
PHOSPHATES WERE NEUROTOXIC
IN THIS INDIVIDUAL.
>> [INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> AND YOUR HONOR --
>>
[INAUDIBLE]
>> YOUR HONOR, IF THERE WAS
NO CONSENSUS IN THE
SCIENTIFIC COMMUNITY, THAT
IS THE STANDARD AS I
UNDERSTAND IT, UNDER FRYE.
THERE HAS TO BE GENERAL
ACCEPTANCE.
AND IF THERE ARE SOME THAT
SAY THIS AND SOME THAT SAY
THAT, THERE IS NO GENERAL
CONSENSUS.
THERE IS NO GENERAL
ACCEPTANCE.
WITHIN THE SCIENTIFIC
COMMUNITY.
AND SO THEREFORE, UNDER FRYE,
IT'S NOT ADMISSIBLE.
>> WELL, WHAT IS THIS
SPECIAL REPORT THAT IS A
PART OF THE INFORMATION THAT
WE HAVE IN THIS CASE?
THIS IS A SPECIAL REPORT,
THE FIBROMYALGIA SYNDROME
ACONSENSUS REPORT ON
FIBROMYALGIA AND DISABILITY
AND UNDER THE SECTION IN
THAT REPORT THAT TALKS ABOUT
THE CAUSES, IT SAYS THE
CAUSES OF FIBROMYALGIA ARE
INCOMPLETELY UNDERSTOOD.
THERE MAY BE EVENTS
DESCRIBED BY THE PHYSICAL
TRAUMA, EMOTIONAL TRAUMA,
ET CETERA.
SO WHAT ARE WE TO DO WITH
THAT?
IT SEEMS TO ME THAT THIS
REPORT, AND A LATER
CONSENSES REPORT SEEMS TO
ACCEPT THAT THERE ARE MANY
WAYS THAT FIBROMYALGIA IS
CAUSED INCLUDING PHYSICAL
TRAUMA.
SO WHY, WHY CAN'T WE WHY
CAN'T A MEDDERAL EXPERT MAKE
A DIAGNOSIS BASED ON THIS?
>> I DON'T THINK THAT'S WHAT
THOSE CASES SAY.
WHAT THEY ARE SAYING --
>> I AM TALKING ABOUT THIS
REPORT.
>> YES, THAT REPORT.
I'M SORRY.
THAT'S NOT WHAT THAT REPORT
SAYS.
THAT REPORT SAYS WE DON'T
KNOW WHAT CAUSES -- WE'RE
NOT SAYING THAT TRAUMA CAN'T
CAUSE IT.
WE ARE NOT SAYING THAT
TRAUMA CAN CAUSE IT.
WE ARE JUST SAYING WE DON'T
KNOW AND THAT FURTHER
STUDIES ARE REQUIRED.
>> WELL, THEY REALLY SAY YOU
LOOK AT THE PATIENT, IT GO
ONS TO TALK ABOUT AND
DETERMINING AND DETERMINING,
YOU TAKE THE PATIENT HISTORY,
YOU LOOK AT, THE, THE REVIEW
OF THE EVENTS THAT HAVE
TAKEN PLACE AND THE
PATIENT'S LIFE, AND ALL OF
THOSE KINDS OF THINGS AND SO,
IT SEEMS TO ME THAT WHERE WE
ARE HERE IS THAT THERE SEEMS
TO BE SOME ACCEPTANCE THAT
IT COULD BE.
>> THERE IS.
>> A CAUSE OF FIBROMYALGIA.
>> THERE, THERE ARE
STATEMENTS IN THE REPORTS
THAT IT, IF POSSIBLE, THAT
IT COULD, BUT THERE, THERE
HAS NOT BEEN ANY SCIENTIFIC
EVIDENCE AT THIS POINT TO
LINK IT.
AND THE REASON WHY -- THEY
ARE NOT EVEN SAYING THERE IS
A CAUSAL LINK.
THEY ARE SAYING THAT THERE
IS AN ASSOCIATION AND IF YOU
READ THROUGH ALL THOSE
REPORTS, THAT ASSOCIATION IS
SIMP LE A TEMPORAL ONE.
THAT BEING THAT PEOPLE ARE
ASKED WELL, DO YOU REMEMBER
WHETHER THERE WAS ANY KIND
OF TRAUMA BEFORE YOU STARTED
HAVING THESE PROBLEMS?
AND, AND THEY SAY, WELL, YES,
I WAS IN AN ACCIDENT OR THIS
OR THAT OR THE OTHER THING.
WHICH ARE THE ONLY --
>> WOULD YOU AGREE THAT
REALLY WE GET, INTO THIS
FRYE ARGUMENT.
ON THE BASE OF THE FACT THAT
SOMEONE OF PROPOSING TO PUT
ON AN OPINION TESTIMONY AND
THAT FRYE THEN IS A
PREDICATE THAT HAS TO BE
LAID IN ORDER TO ALLOW THAT
TESTIMONY TO COME IN?
>> YES, I DO, YOUR HONOR,
AND THE REASON FOR THAT IS
THAT THIS COURT HAS SAID,
AND AGAIN THIS IS IN THE
HINSON CASE, THAT THE
PURPOSE OF FRYE IS TO ENSURE
RELIABILITY OF DECISIONS AND
RESULTS.
AND AGAIN, RELIABILITY IS
FUNDAMENTAL TO ISSUES AND
INVOLVING MISABILITIES OF
EVIDENCE.
AND MANY, MANY YEARS AGO,
THIS COURT DECIDED THE CASE
OF ARKEN v. SIMPCON SAYING
THAT THE, THE AN EXPERT'S
OPINION CAN'T FURNISH THE
BASIS FOR THE OPINION
ITSELF.
>> GOING TO JUSTICE LEWIS'S
QUESTION, IF A WITNESS GOT
UP AND SAID I BELIEVE, I
HAVE COME TO THE CONCLUSION
BASED UPON MY STUDIES THAT
THE MOON IS MADE OF GREEN
CHEESE.
AND I HAVE COME TO THAT
CONCLUSION BY REASON OF THE
FACT THAT I HAVE LOOKED
THROUGH THE MICROSCOPE AND I
HAVE DETERMINED THAT THESE
PARTICLES OUT THERE ARE,
HAVE THE SAME SUBSTANCE AS
CHEESE.
THAT THAT IS THE TYPE OF, OF
OPINION TESTIMONY THAT YOU
WERE TRYING TO GET ASKED IN
NOT, IN BEING NEW AND NOVEL.
>> EXACTLY.
BUT CERTAINLY TRAUMA IS NOT
NEW AND NOVEL IN FIBROMYAL
JUBECAUSE IT IS KNOWN TO
CAUSE IT.
>> I WOULD REMIND YOU THAT
IN THE REPORTS THAT YOU HAVE
PROBABLY READ AD NAUSEAM
THERE WASN'T EVE AN
CLASSIFICATION CRITERIA FOR
FIBROMYALGIA SYNDROME UNTILL
1990.
THIS IS A RECENT.
>> GOING BACK TO JUSTICE
WELL'S QUESTION IT IS THAT
YOUR POSITION FRYE TEST
EVERY OPINION THAT COMES IN
BECAUSE IT'S BASED ON
SCIENTIFICAL ANALYSIS AND
CAUSATION.
>> NO YOUR HONOR.
I THINK YOU HAVE TO FRYE
TEST IT WHEN THERE IS AN
OBJECTION.
>> EVERY TIME THERE IS A
OBJECTION THERE YOU HAVE TO
FRYE TEST IT WHEN TRAUMA CAN
CAUSE A FRACTURE TO A LEG,
WE HAVE TO FRYE TEST IT.
>> NO, AND I DON'T THINK
MANY ATTORNEYS WOULD ATTEMPT
TO BRING A FRYE ISSUE ON
THAT KIND OF A, OF AN INJURY
BUT THIS IS, THERE IS
OBVIOUSLY CONTROVERSY IN THE,
IN THE MEDICAL LITERATURE AS
TO WHETHER TRAUMA CAN CAUSE
FIBROMYALGIA AND SO UNDER
THOSE SUSHGS SUSHGSS, IN THE
HADDEN CASE THIS COURT SAID
NOVEL SCIENTIFIC EVIDENCE
MUST BE SHOWN TO BE RELIABLE
ON SOME BASIS OTHER THAN IT
IS SIMPLY THE OPINION OF THE
WITNESS WHO IS GIVING THE
OPINION.
AND THAT'S WHAT THE ISSUE
HERE, THE ISSUE HERE IS RELY!!!!!!!!
RELIABILITY AND IT IS AN
ISSUE FOR DETERMINATION BY
THE COURT A TO WHETHER THAT
OPINION IS ADMISSIBLE AT
ALL.
IT'S A, IT'S A PREDICATE OF,
OF RELIABILITY THAT THE FRYE
TEST PROVIDES, AND THAT
PREDICATE AT LEAST AT THIS
POINT IN THIS STATE IS THAT
THERE HAS TO BE GENERAL
ACCEPTANCE.
>> YOU'RE WELL OVER YOUR
TIME.
>> I UNDERSTAND.
THANK YOU.
>> THANK YOU.
YES, SIR?
>> I WOULD LIKE TO EMPHASIZE
THAT THE FRYE TEST ONLY
APPLIES TO NEW OR NOVEL
SCIENTIFIC THEORIES.
IT DOESN'T APPLY TO -- I
MEAN, FOR EXAMPLE, THE ISSUE
OF WHETHER AN AUTOMOBILE
ACCIDENT CAN CAUSE SOFT
TISSUE INJURIES, THAT'S
SOMETHING THAT'S JUST
CLEARLY UNDERSTOOD.
FRYE OBVIOUSLY WOULDN'T
APPLY TO THAT.
NOW WHEN YOU TALK ABOUT NEW
AND NOVEL SCIENTIFIC
PRINCIPLES, IN THE CONTEXT
OF MEDICAL CAUSATION, YOU
ARE TALKING ABOUT THE
UNDERLYING THEORY THAT SOME,
THAT SOME GENERAL THING CAN
CAUSE SOME GENERAL INJURY.
OKAY?
AND IN THE TOXIC CASES, ALL
OF THOSE CASES INVOLVE
GENERALLY ACCEPTED BASIC
UNDERLYING SCIENTIFIC
PRINCIPLES.
IN THE CASTILLO CASE, IT WAS
GENERALLY -- OR CERTAINLY
WAS NOT DISPUTED BY DuPONT.
IT WAS BASED ON ITS OWN
STUDIES THAT IT WAS A
TURATGEN CAPEAL ONLYF CAUSES
THESE BIRTH DEFECTS.
THEY HAD RAT STUDIES THERE
IS A GENERAL STUDY THAT
MUMALIAN STUDIES WERE
TRANSFERRABLE TO OTHER
SPECIES AND THEN EXPERTS
COULD THEN EXTRAPOLATE, MAKE
INFERENCES AND ASSUMPTIONS.
THOSE ASSUMPTIONS WOULD NOT
BE FRYE TESTED BECAUSE YOU
COULD REACH CONFLICTING SORT
OF SUBSIDIARY INFERENCES.
BASED UPON THAT GENERALLY
ACCEPTED UNDERLYING
SCIENTIFIC CAUSAL THEORY.
WHEN YOU GET TO FIBROMYALGIA,
YOU START FROM THE IDEA WELL
DID THESE ACCIDENTS CAUSE
THE FIBROMYALGIA, BUT THAT
TAKE USE BACK TO THE
UNDERLYING THEORY, CAN AUTO
ACCIDENTS CAUSE
FIBROMYALGIA.
>>
[INAUDIBLE]
>> NO.
THERE IS NO SHOWING OF THAT.
YOU HAVE TO UNDERSTAND THIS
PAIN IS NOT LOCALIZED WHERE
THE INJURIES WERE.
AND THERE IS NO, THERE IS NO
PHYSIOLOGICAL UNDERSTANDING
AS TO HOW THIS PAIN ARISES.
AND MEDICAL SCIENCE, AND I
WANT TO EMPHASIZE THAT THE
VANCOUVER CONSENSUS REPORT
CONCLUDED, THEY CONCLUDED
THAT MEDICAL SCIENCE DOES
NOT KNOW WHAT CAUSES
FIBROMYALGIA.
>> WELL THEN THAT, ISN'T
THAT WHAT REALLY COMES BACK
THEN BECAUSE IF YOU ACCEPT
THAT AS THE BASELINE THEN
YOU MUST HAVE GENERALLY
ACCEPTED VIEWS ON, ON
CAUSATION BEFORE YOU CAN
EVER HAVE AN OPINION ON
CAUSATION.
>> NO.
YOU HAVE TO HAVE A GENERALLY
ACCEPTED UNDERLYING
PRINCIPLE OF GENERAL
CAUSATION WHERE IT'S NEW AND
NOVEL SCIENCE.
AND THE --
>> NOT NEW AND NOVEL
SCIENCE.
THE DIFFERENTIAL DIAGNOSIS
AND DO DOING ALL OF THE
STUDIES.
EVERYTHING THAT'S DONE
MEDICALLY ON THIS PATIENT AS
I UNDERSTAND IT, HAS BEEN,
BEEN DONE FOR 50 YEARS
ANYWAY.
>> IF YOU HAVE -- A
DIFFERENTIAL DIAGNOSIS --
>> IS THAT CORRECT?
I MEAN, MEDICAL PROCEDURES
THAT WERE WERE APPLIED WERE
NOT?
THESE WEREN'T THE STANDARD
PROCEDURES, BLOOD TISTS AND
X-RAYS?
AND THE DIAGNOSIS PROCESS?
THAT HAD BEEN ENGAGED IN BY
THE MEDICAL PROFESSION FOR
AT LEAST 20, 30 YEARS AND
PROBABLY MUCH LONGER.
AND YOUR ANSWER IS NO?
>> THE, THE ISSUE OF WHETHER
TRAUMA CAN CAUSE
FIBROMYALGIA.
>> YOU DID WANT ANSWER MY
QUESTION.
MY QUESTION WAS DID THEY USE
THE METHODOLOGY, THE BLOOD
TESTS, THE X-RAYS, THE
OFFICE VISITS, THE, WHATEVER
IT IS THAT HAVE BEEN
RECOGNIZED FOR THE LAST 20
YEARS?
THEY DID NOT?
>> WELL, THE ACR CRITERIA
WERE PROMULGATED IN 1990.
THAT'S THE FIRST TIME THAT
THERE WAS ANY KIND OF
UNIFORM STANDARD FOR, FOR
DIAGNOSING FIBROMYALGIA.
THIS DOESN'T HAVE TO DO WITH
CAUSE.
THIS HAS TO DO WITH WHETHER
YOU HAVE IT.
>> COULD I AGAIN -- IS IT
POSSIBLE TO GET AN ANSWER TO
MY QUESTION?
DID THEY USE SOMETHING
DIFFERENT IN THIS CASE TO
REACH THIS CONCLUSION THAN
OTHER DOCTORS HAVE BEEN
USING FOR 20, 30 YEARS.
IT IS A VERY SIMPLE QUESTION
AND IF IT WAS, WHAT WAS
DIFFERENT.
>> THERE WAS, WE'RE NOT
CONTESTING WHETHER THE
DIAGNOSIS OF FIBROMYALGIA SO
I DON'T SEE THAT HAS
RELEVANT AS TO HOW --
>> WELL, I HAVE THE INQUIRY
SO I GUESS IF YOU DON'T CARE
WHAT THE COURT IS CONCERNED
WITH --
>> YOUR HONOR, LET ME JUST
SAY, HE HAS MADE NO SHOWING
AS TO WHAT THE DOCTORS DID
AT ALL.
WE HAVE NO RECORD CITATIONS.
IN FACT, WHAT WE FIND IS
THAT HE HAS AN OSHTHPEDIST
WHO BASICALLY SAID THAT HE,
HIS IDEA OF FIBROMYALGIA WAS
WHAT HE RAED READ IN THE
LITERATURE.
WE HAD A RHEUMTOLOGIST WHEN
HE SAID SHE WASN'T AWARE OF
THE RECENT -- OF THE
CONSENSUS REPORT, THE
VANCOUVER REPORT AND SHE
ALSO SAID THE FIRST TIME SHE
THOUGHT ABOUT WHAT CAUSED
FIBROMIALGIA WAS WHEN SHE
TALKED TO PLAINTIFF'S DEPO.
>> [INAUDIBLE]
>> RIGHT.
>> [INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
[INAUDIBLE]
>> YES, YOUR HONOR, AND I
WAS TRYING TODRIES THE
JUSTICE'S QUESTION WHICH I
DON'T THINK IS THE ISSUE IN
THIS CASE.
THE ISSUE IS WHETHER THESE
EXPERTS CAN TESTIFY ABOUT A
CAUSAL RELATIONSHIP BETWEEN
THE ACCIDENTS AND
FIBROMYALGIA, WHICH IS
NECESSARILY BASED ON THE
UNDERLYING SCIENTIFIC THEORY
THAT TRAUMA CAN CAUSE
FIBROMYALGIA, AND THAT IS
NOT GENERALLY ACCEPTED.
AND I WOULD POINT OUT THAT
THIS RECENT NEBRASKA CASE
WHICH HE CITES IN HIS REPLY
BRIEF IN HIS LENGTHY QUOTE
HE'S EDITED OUT SEVERAL
POINTS.
NEBRASKA IS A DAUBERT STATE,
AND DAUBERT IS A MORE
FLEXIBLE LIBERAL STANDARD
AND THE POINT THAT THE COURT
MADE IS IF WE WERE FRYE
TESTING IN NEBRASKA, THE
PLAINTIFF THIS WOULD BE
INADMISSIBLE.
AND THEY START OUT AND THEY
POINT, THESE ARE ACTUAL
TEXTS THAT'S TAKEN OUT FROM
HIS QUOTE.
THE RELY!!IABLE -- RELIABILITY
ASSESSMENT DOES NOT THE
PARTICULAR DEGREE OF
ACCEPTANCE WITHIN THE
SCIENTIFIC COMMUNITY --
>>
[INAUDIBLE]
>> YES.
>> [INAUDIBLE]
>> WELL, THE --
>>
[INAUDIBLE]
>> WELL DAUBERT IS --
>>
[INAUDIBLE]
>> WHITS RAR NEWER, NOVEL
SCIENTIFIC PRINCIPLE,
ABSOLUTELY.
THE FRYE TEST ONLY APPLIES
TO NEWER, NOVEL SCIENCE.
DAUBERT APPLIES TO ALL
EXPERT TESTIMONY.
THE TWO DON'T ADDRESS THE
SAME ISSUE BUT I WOULD POINT
OUT THAT THIS NEBRASKA CASE
SAYS THE THEORY THAT TRAUMA
CAN CAUSE FIBROMYALGIA.
THERE IS NOT A SCIENTIFIC
CONSENSUS THAT.
IN OTHER WORDS WHAT THEY ARE
SAYING IS IF WE FOLLOWED THE
FRYE TEST IN NEBRASKA, THIS
WOULDN'T BE ADMISSIBLE AND
IN FACT THE GRANT CASE FROM
--
>> TO ANSWER JUSTICES
PARIENTE'S QUESTION.
>> YOUR HONOR?
>> THE THEORY BEHIND FRYE IS
THAT COURTROOMS ARE NOT
MEDICAL LABORATORIES AND
THEY'RE NOT THE PLACE TO
DEBATE SCIENTIFIC
PRINCIPLES.
THOSE HAVE TO BE ESTABLISHED
ELSEWHERE.
THE COURTROOM IS, IS THERE
TO DEBATE WHETHER THE
PLAINTIFF SUFFERED INJURY IN
THE CASE.
>> LOOK WHAT YOU ARE DOING
TO THE JURY.
YOU ARE PUTTING THEM IN A
POSITION WHERE THEY HAVE TO
DECIDE WHAT'S VALID SCIENCE.
ON SOMETHING NEW OR NAUVL
AND THAT'S WHAT THE --
>> WITH OUR HELP YOU HAVE
USED UP ALL OF YOUR TIME.
>> [INAUDIBLE]
>> SURE, YOU DID NOT RESERVE
THE TIME.
AND SO WE'RE MOVING FORWARD.
MOVING FORWARD.
THANK YOU.
YOU WANT TO FINISH UP, YOU
GOT SHORT TIME LEFT.
>> YOUR HONOR, A COUPLE
OPOINTS IN THE WAY OF
REBUTTAL.
FIRST OF ALL, PLAINTIFF'S
EXPERTS ARE SOME OF THE
FINEST IN THE WORLD.
JOHN RAMANO, WILLING WEST
VIRGINIA WAS ON THE ACR
CRITERIA THAT DEVELOPED THE
DIAGNOSIS FOR FIBROMYALGIA.
HE'S THE AUTHOR OF TWO OF
THE THREE CONSENSUS REPORTS
AND IS TRULY AN EXPERT IN
THE FIELD.
DR. PELGREENO, OUR EXPERT IN
CANTON OHIO, HAS ONE OF THE
LARGEST FIBROMYALGIA -- HE'S
AUTHORED MANY BOOKS --
>> CAN YOU RESPOND TO THE
NEBRASKA CASE PORTION OF THE
-- WHEN HE SAYS THE COURT'S
POSITION --
>>
[INAUDIBLE]
ESSENTIALLY THIS EVIDENCE
WOULD NOT BE ADMISSIBLE
UNDER A FRYE STATEMENT.
AS FAR AS THAT ELEMENT, FOR,
COMPLEX, COMPLICATION.
[INAUDIBLE]
SPECIFIC PART THERE SUPPORT
HIS POSITION.
YOU HAVE, YOU'VE GIVEN US
THE NEBRASKA.
IT APPEARS THAT WE ARE JUST
APPLY AGFRYE STANDARD TO
THAT CASE.
>> YES.
>> THAT EVIDENCE WOULD NOT
BE ADMISSIBLE.
>> YES, JUSTIN ANSTEAD.
EACH STATE DETERMINES HOW
FRYE IS APPLICABLE.
IT'S NOT A STATIC STANDARD.
AND THIS COURT IS DETERMINED
THAT FRYE APPLIES TO NEW AND
NOVEL SCIENTIFIC
METHODOLOGIES, TESTS, THERE
HAS TO BE THAT SCIENTIFIC
DEVICE IN THE COURTROOM THAT
CAN'T BE CROSS-EXAMINED TO
EVEN TRIGGER FRYE TO BEGIN
WITH.
>> TELL US WHAT THE NEBRASKA
COURT HAD FOR IT?
WHAT, THE ANALYSIS WAS.
WHAT WOEGD LOOK TO IN THAT
ANALYSIS THAT YOU HAVE CITE
FOR HELP HERE DETERMINING
WHAT THE OUTCOME OF OUR
EXAMINATION.
>> YES.
>> WHETHER WE SHOULD APPLY
FRYE.
LIKE THE CHICKEN AND THE EGG
THE WAY YOU ALL HAVE BEEN
ARGUING.
BUT I AM ASKING YOU TO CITE
THAT SOMETHING YOUR OPPONENT
HAS REFERRED TO TO SUPPORT
YOUR POSITION.
CAN YOU HELP ME WITH THAT.
>> WE SUBMITTED THE CASE NOT
AS EXPOSITIVE AUTHORITY.
WE HAD TO CITE IT TO BRING
THE COURT'S ATTENTION.
>> DOES IT SKA WHAT YOUR
APONEABOUT SAYS IT SAYS THAT
IF THEY APPLIED FRYE TO IN
NEBRASKA THAT IT WOULD NOT
BE ADMISSIBLE, DOES IT SAY
THAT.
>> THAT IS THE QUOTE HE
READ.
THAT IS CORRECT CORRECT.
BUT THE LAW IN THIS STATE IS
NOT THE LAW IN NEBRASKA.
THEY ARE DIFFERENT.
>> I AM CONCERNED WITH YOUR
RELIANCE THOUGH ON THE, ON
THE CREDIBILITY OF YOUR
EXPERTS.
BECAUSE THAT'S REALLY NOT
THE ISSUE.
THE ISSUE IS THE UNDERLYING
ISSUE IS THAT WE MUST TEST.
WHAT IS IT THAT MUST BE
TEST?
AND YOU COULD HAVE THE
EXPERT THAT HAS ALL THE
CREDENTIALS IN THE WORLD.
THAT DOESN'T OVERCOME THE
FUNDAMENTAL REQUIREMENT.
THAT'S, I DON'T UNDERSTAND
WHY YOU'RE SAYING YOUR
EXPERTS ARE SO MUCH MORE
CREDIBLE.
IS THAT IN SOME RESPONSE TO
THE UNDERLYING TEST?
>> ONLY BECAUSE THE DEFENSE
COUNCIL INDICATED THAT OUR
EXPERTS WERE NOT VERY
CREDIBLE.
>> WITH YOUR HELP, YOU HAVE
USED UP ALL OF YOUR TIME.
WE'LL TAKE A UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS
MORNING RECESS.
>> THANK YOU, YOUR HONOR.
>> ALL RISE,