Verdict - Summer 2017 - 17

Experience didn't even make the Daubert list,
and it's probably the best indicator of reliability.
Intimacies of Crazy Cat Ladies is about

experience. Look for non-judicial uses of the

"crazy cat ladies."11

expert's opinions (NASA and the FAA, for

(c) The Conceptual Penis as a Social Construct

example, require human-factors analysis.) But

argues that the penis is better under-

don't let the court ignore what should be obvi-

stood not as an anatomical organ but as

ous at justice's expense: "It is better to light

a "social construct."12

one candle than to curse the darkness."18 ●

(d) "Out Here a Man Settles His Own
Problems": Learning from John Wayne is

ABOUT THE AUTHOR:

about the author watching westerns.

Andre T. Tennille III is an attorney

13

The hoax is (c). That article - delib-

at Ken Hodges Law LLC, specializ-

erately designed nonsense - was peer

ing in constitutional law, business

reviewed, published, and accepted in the

litigation and appellate practice. The opinions

relevant community.

in this article are his, not the firm's.

In short, argue the factors as necessary,
but be sure to get into the real stuff of reliability: knowledge and experience.

3

EMPHASIZE KNOWLEDGE
AND EXPERIENCE
Experience didn't even make the Daubert list,
and it's probably the best indicator of reliability. Some courts have finally embraced
it. In Adams v. Laboratory Corp. of America,
for example, the Eleventh Circuit reasoned
that a court may determine reliability "based
primarily upon an expert's experience and
general knowledge in the field."14
Of course, like a plague, there is the

ubiquitous ipse dixit argument. (For the
BY ANDRE T. TENNILLE III

uninfected, ipse dixit roughly means "don't
take this rube's word for it.") The answer,
even if not binding, is in the Eleventh

What's more, the Daubert factors are poor

Circuit's Adams15 decision and the Middle

indicators of reliability. Take peer review and

District's Bullock v. Volkswagen Group of

publication. 8 A court can easily determine

America, Inc.16

whether a theory or approach has been pub-

In Bullock, one expert was a mechanic with

lished and peer reviewed. Yet for more than a

40 years' experience. He didn't have advanced

century, scientists have lamented that the peer-

degrees or an up-to-the-minute résumé. But

review process is rife with intractable bias.9

he had extensive experience with cars and

Consider these gems - one a hoax, and all

with the problem at issue. He also examined

published and peer reviewed:

the evidence, and that was enough. "[O]ld-

(a) Zoology: Here Be Dragons concludes that

fashioned ... experience," the court reasoned,

anthropogenic climate change may cause
a resurgence of mythical beasts.10

"can be a powerful thing."17
In summary, remind the court that Daubert

(b) Queer Ecologies of Home: Heteronor-

was meant to loosen an already liberal pol-

mativity, Speciesism, and the Strange

icy of admissibility. Drum up knowledge and

ENDNOTES

1 James C. Cooper, Timing and Disposition of Daubert
Motions in Federal District Courts: An Empirical
Examination, Searle Civ. Just. Inst., Oct. 2015, at 9,
available at http://masonlec.org/site/rte_uploads/
files/Daubert%20Report%5B1%5D.pdf; Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993).
2 Cook v. Rockwell Int' l Corp., 580 F. Supp. 2d 1071,
1082 (D. Colo. 2006) (citation omitted).
3 Pineda v. Ford Motor Co., 520 F.3d 237, 24 3 (3d Cir.
2008) (quoting Kannankeril v. Terminix Int' l, Inc.,
128 F.3d 802, 806 (3d Cir. 1997)). See also H.B. 24,
151st Gen. Assemb., Reg. Sess. (Ga. 2011) (adopting
"the Federal Rules of Evidence as interpreted by the
Supreme Court of the United States and the United
States circuit courts of appeal").
4 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 153 n.6 (1997).
5 See, e.g., Susan Haack, Trial and Error: The Supreme
Court's Philosophy of Science, 95 Am. J. Pub. Health
(Supplement 1) S66 (2005).
6 Exacto Spring Corp. v. Comm'r of Internal Revenue,
196 F.3d 833, 835 (7th Cir. 1999) (Posner, J.) (quoting
Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.
1986)) (internal quotation marks omitted).
7 See, e.g. , Daubert , 5 0 9 U.S. at 5 9 4; Susan
Haack, Irreconcilable Differences? The Troubled
Marriage of Science and Law, 72 Law & Contemp.
Probs. 1, 6 (2009).
8 Haack, supra note viii, at 19 -20.
9 Alex Csiszar, Troubled From the Start, 532 Nature
306, 306 (2016).
10 Andrew J. Hamilton, Rober t M. May, & Edward
K. Waters, Zoology: Here Be Dragons, 520 Nature
42 (2015).
11 W ill McKeithen, Queer Ecologies of Home:
Heteronormativity, Speciesism, and the Strange
Intimacies of Crazy Cat Ladies, 24 Gender, Place &
Culture 122 (2017).
12 Jamie Lindsay & Peter Boyle, The Conceptual Penis
as a Social Construct, Cogent Social Sciences (2017),
available at ht tp://www.skeptic.com/downloads/
conceptual-penis/23311886.2017.13304 39.pdf.
13 Jonathan Wyatt, "Out Here a Man Settles His Own
Problems" Learning from John Wayne, 8 Int'l Rev. of
Qualitative Res. 280 (2015).
14 Adams v. Lab. Corp. of Am., 760 F.3d 1322, 13 30
(11th Cir. 2014) (per curiam).
15 See generally id.
16 107 F. Supp. 3d 1305 (M.D. Ga. 2015).
17 Id. at 1308.
18 Chinese Proverb.

Summer 2017 17



Table of Contents for the Digital Edition of Verdict - Summer 2017

President’s Message
Don’t Stop Fighting: Overcoming Obstacles Leads to Record Verdict in Camden County
Amazing Things Happen When Women Get Involved!
AAJ Addresses Top Concerns with Congress
Pro Bono Representation: A Bond Forged between a Naval Officer and Trial Lawyer
3 Tips for Defeating Daubert Motions
Common Issues to Stay on Guard in Cases Involving Tortious Security Officers
The Confusing Question of Causation in Criminal Attack Premises Liability Cases
Technology: Notetaking for the Digital Lawyer
New Lawyers’ Corner: 6 Questions for Verdict
Pope Langdale: Community Investments for a Cause
Case Updates: Federal Employees Health Benefits Act of 1959
Workers’ Comp: Standard of Review — “Any Evidence” Rule
Thank You, Civil Justice PAC Contributors!
GTLA Champion Members
Welcome New GTLA Members!
Index to Advertisers/Advertiser.com
Verdict - Summer 2017 - Intro
Verdict - Summer 2017 - cover1
Verdict - Summer 2017 - cover2
Verdict - Summer 2017 - 3
Verdict - Summer 2017 - 4
Verdict - Summer 2017 - 5
Verdict - Summer 2017 - 6
Verdict - Summer 2017 - 7
Verdict - Summer 2017 - 8
Verdict - Summer 2017 - President’s Message
Verdict - Summer 2017 - Don’t Stop Fighting: Overcoming Obstacles Leads to Record Verdict in Camden County
Verdict - Summer 2017 - 11
Verdict - Summer 2017 - Amazing Things Happen When Women Get Involved!
Verdict - Summer 2017 - AAJ Addresses Top Concerns with Congress
Verdict - Summer 2017 - Pro Bono Representation: A Bond Forged between a Naval Officer and Trial Lawyer
Verdict - Summer 2017 - 15
Verdict - Summer 2017 - 3 Tips for Defeating Daubert Motions
Verdict - Summer 2017 - 17
Verdict - Summer 2017 - Common Issues to Stay on Guard in Cases Involving Tortious Security Officers
Verdict - Summer 2017 - 19
Verdict - Summer 2017 - 20
Verdict - Summer 2017 - 21
Verdict - Summer 2017 - 22
Verdict - Summer 2017 - 23
Verdict - Summer 2017 - The Confusing Question of Causation in Criminal Attack Premises Liability Cases
Verdict - Summer 2017 - 25
Verdict - Summer 2017 - 26
Verdict - Summer 2017 - 27
Verdict - Summer 2017 - Technology: Notetaking for the Digital Lawyer
Verdict - Summer 2017 - 29
Verdict - Summer 2017 - 30
Verdict - Summer 2017 - New Lawyers’ Corner: 6 Questions for Verdict
Verdict - Summer 2017 - 32
Verdict - Summer 2017 - 33
Verdict - Summer 2017 - Pope Langdale: Community Investments for a Cause
Verdict - Summer 2017 - 35
Verdict - Summer 2017 - Case Updates: Federal Employees Health Benefits Act of 1959
Verdict - Summer 2017 - 37
Verdict - Summer 2017 - Workers’ Comp: Standard of Review — “Any Evidence” Rule
Verdict - Summer 2017 - 39
Verdict - Summer 2017 - Thank You, Civil Justice PAC Contributors!
Verdict - Summer 2017 - Welcome New GTLA Members!
Verdict - Summer 2017 - Index to Advertisers/Advertiser.com
Verdict - Summer 2017 - cover3
Verdict - Summer 2017 - cover4
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