its position, it is naive to expect the jury to be capable of
assessing the validity of diametrically opposed testimony.").
The precise scope of cross-examination of an expert witness rests
within the broad discretion of the trial court. See, e.g., N.V.
Maatschatpij Voor Industriele Waarden v. A.O. Smith Corp., 590 F.2d at
421. ("Although cross-examination is an essential element of our system
of adversarial advocacy, the proper scope for cross-questioning is, like
the qualification of witnesses, a matter of trial court discretion which
we do not lightly disturb.")
While a trial court should prevent outside judicial decisions from
clouding jury findings, it may consider them itself in deciding whether
an expert's proposed testimony is sufficiently reliable to permit it
under Rule 702 of the Federal Rules of Evidence. Daubert v. Merrell Dow
Pharmaceuticals. Inc., 509 U.S. 579 (1993) (charging trial judges with
the responsibility of acting as gatekeepers to exclude unreliable expert
testimony); cf Blue Cross and Blue Shield of New Jersey. Inc. v. Philip
Morris Inc., No. 98 CV 3287, 2000 WL 1880283 (E.D.N.Y., Dec. 27, 2000)
(limiting scope of expert's testimony after reviewing his testimony in a
related state court trial).
Rule 104(a) permits a trial judge to consider hearsay evidence in
assessing an expert's reliability. See Fed. R. Evid. 104(a); 702
advisory committee's note. After a witness has been repeatedly rejected
by courts — as in the case of the bendectin litigation — it
is appropriate to take judicial notice of lack of credibility to reject a
witness on Daubert grounds. The courts need not repeatedly hold
preliminary hearings to determine that the testimony of a particular
witness is unacceptable. Repeated demonstration that the wheel is round
or that a witness is a charlatan is not required in a sensible system of
III. Application of Law To Facts
The proposed evidence is inadmissable. It is also unfair. When a judge
attacks a witness there is no effective defense. Peer review of such
witnesses is different; if an expert does not act properly that expert
ought to be attacked in the normal course of scientific debate — or
in the case of a trial, with the opportunity for rehabilitation and
explanation. To appropriately meet the evaluations of another judge would
require the jury to delve deeply into the case that judge was trying.
This enterprise is not appropriate under Rule 403.
The critical comments of the judge were appropriate since he was the
trier of fact in a non-jury case, but introduction of that opinion in the
present case risks jeopardizing the jury's independent assessment of the
expert's testimony. This court has found the expert's present testimony
sufficiently reliable under Daubert. Allowing another judge to disturb
evaluations of credibility specifically left to the present jury is not
contemplated by the Federal Rules and is not desirable.
In this case the cross examination of the witness was blistering and
lasted more than a full trial day. An extensive deposition and exchange
of reports provided ample fuel for the broad-based attack on the expert's
credibility. Defendants' experts will continue the attack. They do not
need another judge as an ally.
The evidence is excluded.
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