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Practice Tip: Expert Preparation ' The Ipse Dixit Problem
Until 1997, when the Supreme Court decided General Electric v. Joiner, 522 U.S. 136, (1997), I had never heard of the term ipse dixit. Now, almost every month I read a decision in which that phrase appears. Ipse, in Latin, is “he himself”; dixit, “to say.” Its dictionary meaning is “an unsupported assertion, usually by a person of standing.”
Every product liability trial lawyer must make sure when preparing his/her expert for testimony that the expert does not give an opinion that is merely ipse dixit. In Joiner, the Supreme Court affirmed a lower court's decision to exclude testimony of the plaintiff's experts who opined that the plaintiff's lung cancer was caused by exposure to the defendant's transformers containing PCBs, a prohibited compound. The plaintiff claimed that PCBs contained derivatives, PCCDS, which enhanced his cancer, initiated by his smoking. The trial judge said the evidence failed to show whether the plaintiff was ever exposed to PCBs and, for that reason, precluded the expert's testimony. On appeal, the Eleventh Circuit reversed, Joiner v. General Electric Co. 78 F3d 524 (11th Cir. 1997); it found the lower court failed to use the proper standard of review, to wit: abuse of discretion. The Supreme Court reversed the appellate court and went on to say that neither Daubert nor the Federal Rules of Evidence require a district court to admit evidence that is connected to existing data only by the “ipse dixit” of the expert. Because the plaintiff's expert was missing the link in evidence that connected the PCBs to the plaintiff, his testimony was properly precluded.
Lawyers are loath to cross-examine their own experts when they retain them or receive their reports, but this is a necessary procedure in today's ipse dixit world. Thus, when you first retain your experts, you must make sure that the opinion the expert is giving is connected to the data in evidence in the case. If the court concludes that there is simply too great an analytical gap between the data and the opinion proffered, it will prohibit the opinion. For example, in Joiner, the plaintiff admittedly had smoking-caused cancer. Both his mother and uncle died of lung cancer. Suppose the defendant's expert wanted to testify that the plaintiff's cancer was caused by some family trait. Without any analytical test data or epidemiological studies supporting such an opinion, his statement would merely be ipse dixit and probably excluded.
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