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Preparing for and providing health and safety legal testimony.
Effective management of health and safety programs: a practical guide, 3rd edition. Moser R Jr., ed. Berverly Farms, MA: OEM Press, 2008 Mar; :377-402
Occupational and environmental medicine physicians are frequently embroiled in personal injury litigation related to occupational exposures to physical or chemical environmental factors. Typically, the plaintiff alleges that the defendant negligently exposed the plaintiff to a physical or chemical agent that has proximately caused an adverse health consequence for which the plaintiff seeks monetary damages. Because the relationship between exposure to an occupational and environmental factor and an adverse health outcome is not only disputed but also beyond the purview of common knowledge, determination of causation is uniquely within the province of the occupational and environmental medicine physician - expert opinion testimony is required to resolve the medicolegal dispute. Challenges to the admissibility of "scientific" testimony are ubiquitous in litigation involving exposure to occupational and environmental factors. Ordinarily, such contests are predicated on the deposition testimony of the respective parties' expert witnesses. While not calculated to provide an exhaustive treatise on the admissibility of scientific evidence in legal proceedings, this chapter is designed to provide occupational and environmental medicine physicians and other health and safety professionals preparing testimony with a fundamental understanding of the principles governing the admissibility of scientific testimony in civil proceedings. The chapter is predicated on the Federal Rules of Evidence and the legal decisions construing the Federal Rules, since these rules have been adopted in a majority of states and are therefore generalizable. Although the described rules of law are not specifically applicable to workers' compensation claims in a majority of states, the methodologic prerequisites for credible (valid and reliable) testimony in administrative proceedings are relevant. SUMMARY: The Federal Rules of Evidence, construed by Daubert and its progeny, prescribe an evidentiary paradigm for the resolution of medicolegal disputes. Expert witness testimony must assist the jury in understanding the evidence and determining disputed medicolegal facts. An intelligent evaluation of complex or novel scientific testimony is dependent upon the testimony of witnesses with specialized knowledge. The expert's testimony must be sufficiently based on reliable facts and data; the testimony must be the product of reliable principles or methods; and the witness must have reliably applied the principles and methods to the facts of the case. Daubert articulated a two-prong test to determine whether expert scientific testimony is admissible: The testimony must relate to "scientific knowledge" and "assist the trier-of-fact to understand or determine a fact in issue. Four nonexclusive factors were enumerated to gauge reliability: (1) whether the theory or technique can be or has been tested, (2) whether the theory or technique has been the subject of peer review and publication, (3) whether the actual or potential rate of error is known, and (4) whether the theory or technique is "generally accepted" in the relevant scientific community. These four factors are "illustrative" not "exhaustive," and courts should also consider whether the proposed testimony grows "naturally and directly" from research conducted independently of litigation or, alternatively, whether there is objective evidence that the testimony is based on scientifically valid principles. Although the crux of the Daubert inquiry is directed toward the scientific methods employed and not the conclusions generated, too great an "analytical gap" may exist between the purported methodology and an expert's opinion. Unreliable conclusions, even if ostensibly premised on scientific methods, may be excluded.
Management-personnel; Occupational-health-programs; Occupational-safety-programs; Decision-making; Training; Education; Occupational-health; Environmental-health; Regulations; Legislation; Health-standards; Standards; Occupational-medicine; Environmental-medicine; Preventive-medicine; Occupational-exposure; Environmental-exposure; Work-environment; Biological-effects; Health-sciences; Physicians; Professional-workers
Effective management of health and safety programs: a practical guide, 3rd edition
University of Utah, Salt Lake City, Utah