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is for “abuse of discretion,” the “hallmark” of which is “deference.” General Elec. Co.

  • v.

    Joiner, 118 S. Ct. 512, 517 (1997) (citing Koon v. United States, 518 U.S. 81, 98

    • (1996)


The Court in Daubert set forth a nonexhaustive list of four factors that are useful in gauging the reliability of expert testimony. First, “[o]rdinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert, 509 U.S. at 593. “Another pertinent consideration,” the Court explained, “is whether the theory or technique has been subjected to peer review and publication.” 509 U.S. at 593. A third factor is “the known or potential rate of error” and “the existence and maintenance of standards controlling the technique’s operation.” Id. at 594. And a fourth factor is the extent to which the methodology or technique employed by an expert is generally accepted in the relevant scientific community. Ibid. In evaluating the reliability of proposed expert testimony under Rule 702, district courts in this circuit

required under Rule 104(a) is “preliminary” only in the sense that it must occur before the evidence is admitted. SeeFed. R. Evid. 104(a) (governing “[p]reliminary questions concerning the quali ication of a

  • *

    * * witness, the existence of a privilege, or the admissibility of evidence”). Nor does this Circuit regard

the Daubert inquiry into admissibility as anything less than stringent, as the cases cited in Clark’s own brief amply demonstrate.

11/ Although Clark acknowledges this deferential standard of review (AOB 24),he also states that this Courtmust“undertake[]adenovoreview of whether the [district court] properly followed theDaubert framework.” Ibid. The Supreme Court in Joiner, however, squarely rejected the argument that an appellate court should apply de novo review to a district court’s application of the Daubert factors to the testimony of a particular expert. Cf. also DePaepe v. General Motors Corp., 141 F.3d 715, 719 (7th Cir. 1998) (dicta). Although prior to Joiner, several circuits applied de novo reviewto the question whether Daubert is completely inapplicable to a particular category of expert testimony, Clark has not madesuchanargumentinthisCourt, having abandoned the argument he pressed below thatDaubert and its factors of reliability have no application where an expert eschews rigorous methodology altogether and purports to rely on “experience” or “training.” (In any event, the district court correctly rejected that argument (NR 87:11-16) as contrary to the law of the Seventh Circuit.)


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