Saturday, September 27, 2008

Differential Diagnosis as Causation Permissible

This ruling was based on a law review article, "Navigating Uncertainty: Gatekeeping in the Absence of Hard Science, 113 Harv L Rev 1467, 1474 (2000) (courts generally allow admission of differential diagnosis even when technique has not eliminated all alternative causes)." That means, the plaintiff expert could attribute the damage to the chemical used, with medical certainty and scientific evidence. The appellate court permitted the testimony of a differential diagnosis, with some chance the chemical was a cause, among others.

That makes the law review article private law making.

The decision.

If opposing experts testify in good faith, that is a scientific dispute. It is outside the subject matter jurisdiction of the court. Only additional scientifically valid data can resolve a scientific dispute, and not rhetoric. Such resolution lies outside the competence of the court.

If a case has opposing experts, it should be dismissed. Or else, one of the experts is not testifying in good faith, and should be punished.

Only cases that are within the knowledge of the jury or that have only one, unopposed expert should go forward. An example of a case within jury knowledge is a case of wrong site surgery.

The Supreme Court, in a case about punitive damages, held that civil defendants have a procedural due process right to a fair notice and hearing. It also holds, "The answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. Although States have some flexibility in determining what kind of procedures to implement to protect against that risk, federal constitutional law obli-gates them to provide some form of protection where the risk of mis-understanding is a significant one."

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