§ 116 Memorandum in support of motion in limine to exclude expert

					§ 11:6 Memorandum in support of motion in limine to exclude expert witness

[Attorney's Name]
[Address and Phone Number]
Attorneys for Defendant
               UNITED STATES DISTRICT COURT _________ DISTRICT OF
[Plaintiff's Full Name], [Type of       CASE NO.
entity (e.g., corporation,
individual, partnership)]
                                        MEMORANDUM OF POINTS AND
                      Plaintiff,        AUTHORITIES IN SUPPORT OF
                                        DEFENDANT'S MOTION IN
                                        LIMINE TO EXCLUDE
                                        EVIDENCE OF PLAINTIFF'S
                                        EXPERT
[Defendant's Full Name] [Type of
entity],
                     Defendant.         Date:
_______________                         Time:

                    MEMORANDUM OF POINTS AND AUTHORITIES

                               I. PRELIMINARY STATEMENT

   Defendant [Name of Defendant] ("Defendant") seeks to exclude from evidence any opinion
evidence of or concerning science by Plaintiff's proposed experts: Dr. S-T-U and Dr. C-D-E.
Plaintiff claims that his proposed expert Dr. S-T-U is a nationally recognized psychiatrist.
Plaintiff claims that his proposed expert Dr. C-D-E, being a doctor of social work, is also a
nationally recognized expert. Defendant avers that these gentlemen may be nationally
recognized, but it is not because they are expert within any reasonable interpretation of our law.

   Respectfully, Defendant asks that if this Court allows testimony of any kind from these
proffered witnesses, it be restricted to fact testimony from within the personal knowledge of
these witnesses. Admittedly, the Federal Rules of Evidence do not specifically provide for
motions in limine. Nevertheless, it is well settled in our law that courts consider and rule on
motions in limine prior to any testimony in a contested subject area.
   Specifically, Defendant argues that FRE 104(a) provides:
      (a) Questions of Admissibility Generally. Preliminary questions concerning the
   qualification of a person to be a witness, the existence of a privilege, or the admissibility of
   evidence shall be determined by the court, subject to the provisions of subdivision (b). In
   making its determination it is not bound by the Rules of Evidence except those with respect to
   privileges.

   Insofar as this matter will be tried to a jury, Defendant asks this Court to rule on the issue of
Plaintiff's proposed experts and their expertise, prior to seating a jury. In this respect, Defendant
also relies upon the pertinent provision of FRE 103(c):
      (c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable,
   so as to prevent inadmissible evidence from being suggested to the jury by any means, such as
   making statements or offers of proof or asking questions in the hearing of the jury.
  Defendant argues in this motion and memorandum that Plaintiff's proposed experts are not
experts within the proper scope of FRE 702 and FRE 703 at all. FRE 702 provides:
     If scientific, technical, or other specialized knowledge will assist the trier of fact to
  understand the evidence or to determine a fact in issue, a witness qualified as an expert by
  knowledge, skill, experience, training, or education, may testify thereto in the form of an
  opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
  testimony is the product of reliable principles and methods, and (3) the witness has applied
  the principles and methods reliably to the facts of the case.

FRE 703 provides:

     The facts or data in the particular case upon which an expert bases an opinion or inference
  may be those perceived by or made known to the expert at or before the hearing. If of a type
  reasonably relied upon by experts in the particular field in forming opinions or inferences
  upon the subject, the facts or data need not be admissible in evidence in order for the opinion
  or inference to be admitted. Facts or data that are otherwise inadmissible shall not be
  disclosed to the jury by the proponent of the opinion or inference unless the court determines
  that their probative value in assisting the jury to evaluate the expert's opinion substantially
  outweights their prejudicial effect.

Finally, Defendant argues that even if the Court determines that Dr. S-T-U and Dr. C-D-E have
expertise of some kind, a fair reading of Federal Rule of Evidence 403 should still preclude these
gentlemen from offering opinions in this case.

                    II. THE PROPER DETERMINATION OF EXPERTISE

                                   PART ONE - FRYE - 1923

   In 1923, the polygraph was evaluated by the United States Supreme Court and came up short.
In Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923) (overruling recognized by, In re
Joint Eastern and Southern Dist. Asbestos Litigation, 827 F. Supp. 1014 (S.D.N.Y. 1993)) and
(overruling recognized by, State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993)) and (overruling
recognized by, U.S. v. Minnis, 26 F.3d 134 (9th Cir. 1994)) and (overruling recognized by, State
v. Klawitter, 518 N.W.2d 577 (Minn. 1994)) and (overruling recognized by, Bartell v. State,
1994 OK CR 59, 881 P.2d 92 (Okla. Crim. App. 1994)), the Court grounded admissibility of
proffered scientific evidence in a reliability analysis. The Court reasoned:
       … while courts will go a long way in admitting expert testimony deduced from a well-
   recognized scientific principle or discovery, the thing from which the deduction is made must
   be sufficiently established to have gained general acceptance in the particular field in which
   it belongs. Frye 293 F 1013, at 1014 emphasis added. [WEST Key Number 110 K 488]

   After hundreds of reported cases, the federal court added that the rationale behind the Frye
reliability analysis:
      … assures that those most qualified to assess the general validity of a scientific method
   will have the determinative voice.U. S. v. Addison, 498 F.2d 741,744 (D.C. Cir. 1974)
   (1975). [WEST Key Number 110 K 488]

                                PART TWO - DAUBERT - 1993

   In June 1993, however, the issue of scientific evidence in the courts took on a new and
important dimension. In an opinion marked as much by its brevity as by its impact, Mr. Justice
Blackmun brought the foundational requirements for science in the courts into the 21st century.
   In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469, 37 Fed. R. Evid. Serv. 1 (1993) the Court held that:
      … the trial judge must ensure that any and all scientific testimony or evidence admitted is
   not only relevant, but reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786,
   2795, 125 L. Ed. 2d 469, 480 (1993) [WEST Key Number 157 K 150].

   Because experts are permitted wide latitude in their opinions and are not required to base their
pronouncements on first-hand knowledge, the Court required that "the expert's opinion must
have a reliable basis in the knowledge and experience of his discipline." Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469, 482 (1993). In this analysis,
courts are required to excuse proposed experts who do not have a grasp of the "knowledge and
experience of [their] discipline."

   Compared to lay witnesses, experts purport to offer testimony that is scientific. Justice
Blackmun indicated that by using the term "scientific," the witness implies a "grounding in the
methods and procedures of science.‖Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct.
2786, 2795, 125 L. Ed. 2d 469, 481 (1993). The word "knowledge," the Court instructed,
"connotes more than subjective belief or unsupported speculation."Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469, 481 (1993). The Court made it
clear that:
       … in order to qualify as 'scientific knowledge,' an inference or assertion must be derived
   by the scientific method. Proposed testimony must be supported by appropriate validation -
   i.e., 'good grounds', based on what is known. Daubert v. Merrell Dow Pharmaceuticals, Inc.,
   113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469, 481 (1993). [WEST Key Number 157 K 555.1]

   Basing its rule as to admissibility on reasoning and methodology, the Court quoted from a
learned treatise and offered:
      Scientific methodology today is based on generating hypotheses and testing them to see if
   they can be falsified; indeed, this methodology is what distinguishes science from other fields
   of human inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796, 125
   L. Ed. 2d 469, 483 (1993). [WEST Key Number 157 K 508]

  The Court instructed that there is now a "Key Question" which must be answered, and that is:
     … 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 …. (Emphasis added.) Daubert v. Merrell
  Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795, 2796, 125 L. Ed. 2d 469, 482–3 (1993)
  [WEST Key Number 157 K 508].
   The Court's instruction to the trial courts was that when "expert," "scientific" testimony is
offered:
      … the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert
   is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to
   understand or determine a fact in issue. This entails a preliminary assessment of whether the
   reasoning or methodology underlying the testimony is scientifically valid and of whether that
   reasoning or methodology properly can be applied to the facts in issue. Daubert v. Merrell
   Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795, 2796, 125 L. Ed. 2d 469, 482 (1993)
   [WEST Key Number 157 K 546 & 157 555.1].

  Emphasizing that the "focus … .must be solely on principles and methodology," Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2797, 125 L. Ed. 2d 469, 484 (1993), the
Court's analysis cites to U.S. v. Smith, 869 F.2d 348, 27 Fed. R. Evid. Serv. 938 (7th Cir. 1989),
and informs that "error rate" in the predictions and techniques espoused in the opinions of the
experts must be considered. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786,
2797, 125 L. Ed. 2d 469, 483 (1993).
   Grounding its admissibility analysis in the principles and methodology of science, the Court
notes:
      … .that scientists typically distinguish between 'validity' (does the principle support what it
   purports to show?) and 'reliability' (does application of the principle produce consistent
   results?) … .our reference here is to evidentiary reliability—that is, trustworthiness … .In a
   case involving scientific evidence, evidentiary reliability will be based upon scientific
   validity.
      Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2795, 125 L. Ed. 469, 481
   (1993) (footnote 9. Emphasis in original.) [WEST Key Number 157 K 150].

KEY DAUBERT CONCEPTS

   TRIAL COURT Is the gatekeeper who must make a preliminary assessment as to whether the
reasoning and methodology proffered are scientifically valid. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469, 482, (1993).

   TRIAL COURT Must ensure that proffered testimony is relevant and reliable with a focus
solely on principles and methodology. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 2797, 125 L. Ed. 2d 469, 484 (1993).

   EVIDENTIARY ADMISSIBILITY Shall be based upon reliability determined by the degree of
scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
2795, 125 L. Ed. 2d 469, 481 (1993).

   SCIENTIFIC METHODOLOGY Means generating hypotheses and testing them to see if they
can be falsified. Has the technique been "tested" is the key question. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469, 483 (1993).

  SCIENTIFIC KNOWLEDGE Is that which is derived from the empiricism of the scientific
method. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2795,
125 L. Ed. 2d 469, 482 (1993).

  EXPERTS Must be grounded in the methods and procedures of science. Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469, 481 (1993).

   EXPERTS Must know and base their opinions reliably on the datum of their discipline.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2796, 125 L. Ed.
2d 469, 482 (1993).
   Daubert represents the thinking in the United States with respect to science, evidentiary
reliability, and admissibility. In a decision widely hailed as the tombstone for junk science in the
courtroom, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L. Ed. 2d
238 (1999), simply held:

     ―Daubert… applies to all expert testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
   137, 119 S. Ct. 1167, 1174, (1999).

   Writing for the Court, Mr. Justice Breyer relied heavily upon Justice Brennan's elegant
Daubert analysis. The key feature of Kumho is its addressing a subjective analysis by an expert
of a critical facet in the case." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct.
1167, 1177 (1999). As is so often seen with "experts" like Dr. S-T-U and Dr. C-D-E, the expert
in Kumho testified that his subjective and experience-based methodology was accurate. Piercing
this veil, Justice Breyer wrote:
      Carlson himself claimed that his method was accurate … . 'nothing in either Daubert or the
   Federal Rules of Evidence requires a district court to admit opinion evidence that is connected
   to existing data only by the ipse dixit of the expert. Kumho Tire Co., Ltd. v. Carmichael, 526
   U.S. 137, 119 S. Ct. 1167, 1179 (1999) citations omitted [WEST Key Number 157 K 555.5].

   Just as in this case, in the case underlying Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), expert Carlson testified in a discovery deposition. On
motion by the various defendants, the trial court agreed that it should act as a Daubert-type
gatekeeper. The Court made this decision even though Carlson's testimony, as Plaintiff claims
here, was characterized as technical rather than scientific. Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S. Ct. 1167, 1173, 143 L. Ed. 2d 238 (1999). In his Daubert role, the trial
judge examined the expert's methodology and the reliability-related factors that Daubert
described. The trial judge reviewed issues such as a theory's testability, peer review or
publication, and rates of error. This analysis resulted in the trial judge refusing to allow the
expert's testimony before the jury. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct.
1167, 1173, 143 L. Ed. 2d 238 (1999).
   The Kumho plaintiffs argued that the court's application of the Daubert factors was
"inflexible." The Eleventh Circuit reversed. The Supreme Court granted certiorari because of the
uncertainty among the lower courts about whether, or how, Daubert applied to expert testimony
and "technical" or "other specialized knowledge," that is not "scientific" in a laboratory sense.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1173, 143 L. Ed. 2d 238
(1999).

   The Supreme Court reiterated its position that the trial judge must undertake the "gatekeeping
obligation." The Court moreover emphasized that Federal Rules 702 and 703 grant expert
witnesses latitude unavailable to other witnesses. Quoting from Judge Learned Hand in: Hand,
Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 54
(1901), Mr. Justice Breyer explained that experts of all kinds tie observations to conclusions
through the use of "general truths derived from … specialized experience." Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238 (1999). To meet the
validity and reliability challenge, Breyer instructed:
      Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or
   in every case. Rather, the law grants a district court the same broad latitude when it decides
   how to determine reliability as it enjoys in respect to its ultimate reliability determination.
   Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238
   (1999). [WEST Key Number 157 K 546]
KEY KUMHO TIRE CONCEPTS

   TRIAL COURT Must determine both the validity of the expert's qualifications and the
reliability of the proposed testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.
Ct. 1167, 1176–1177, 143 L. Ed. 2d 238 (1999).

  EXPERTS Must demonstrate a valid connection to the pertinent facts as a precondition to
admissibility. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 1174, 143 L.
Ed. 2d 238 (1999).

   Respectfully, Defendant avers that neither Dr. S-T-U or Dr. C-D-E can meet these important
criteria for the determination of expertise.
        III. APPLICATION OF DAUBERT & KUMHO TO PROPOSED WITNESSES
   Counsel for Defendant took the pretrail deposition of both Dr. S-T-U and Dr. C-D-E. The
understanding of basic scientific concepts and the datum of their discipline in particular was
staggering.

DR. S-T-U and SCIENTIFIC KNOWLEDGE

   Concerning Dr. S-T-U's basic knowledge of science and his particular appreciation for the
datum of his discipline:

     Dr. S-T-U does not know what scientific induction is.

        [ Pretrial Deposition date pg 53 ln 24Pretrial Deposition date pg 53 ln 24]

     Dr. S-T-U does not know what logical empiricism is.

        [ Pretrial Deposition date pg 54 ln 13Pretrial Deposition date pg 54 ln 13]
    Dr. S-T-U does not know what empiricism is from a scientific perspective. [ Pretrial
  Deposition date pg 54 ln 22Pretrial Deposition date pg 54 ln 22]

     Dr. S-T-U does not know what empirical evidence validity is.

        [ Pretrial Deposition date pg 58 ln 22Pretrial Deposition date pg 58 ln 22]

     Dr. S-T-U does not know what error rates are in scientific inquiry.

        [ Pretrial Deposition date pg 59 ln 4Pretrial Deposition date pg 59 ln 4] and instead,
     objects to even being asked about basic scientific concepts.

     Dr. S-T-U does not know what theoretical error is.

        [ Pretrial Deposition date pg 60 ln 13Pretrial Deposition date pg 60 ln 13]

     Dr. S-T-U does not know what static error is.

        [ Pretrial Deposition date pg 60 ln 14Pretrial Deposition date pg 60 ln 14]

     Dr. S-T-U does not know what dynamic error is.
        [ Pretrial Deposition date pg 60 ln 16Pretrial Deposition date pg 60 ln 16]

     Dr. S-T-U does not know what internal validity is.

        [ Pretrial Deposition date pg 61 ln 17Pretrial Deposition date pg 61 ln 17]

     Dr. S-T-U does not know what statistical conclusion validity is.

        [ Pretrial Deposition date pg 62 ln 10Pretrial Deposition date pg 62 ln 10]

     Dr. S-T-U does not know what scientific reliability is.
        [ Pretrial Deposition date pg 62 ln 18Pretrial Deposition date pg 62 ln 18]

DR. C-D-E and SCIENTIFIC KNOWLEDGE
   Concerning Dr. C-D-E's basic knowledge of science and his particular appreciation for the
datum of his discipline:

      Dr. C-D-E does not know the difference between deduction and induction in scientific
   reasoning. [ Pretrial Deposition date pg 51 ln 16Pretrial Deposition date pg 51 ln 16]

      Dr. C-D-E does not know what logical empiricism is.

         [ Pretrial Deposition date pg 52 ln 17Pretrial Deposition date pg 52 ln 17]

     Dr. C-D-E does not know what internal consistency in hypothesis testing is. [ Pretrial
   Deposition date pg 54 ln 6Pretrial Deposition date pg 54 ln 6]

      Dr. C-D-E does not know what theoretical error is.

         [ Pretrial Deposition date pg 56 ln 6Pretrial Deposition date pg 56 ln 6]
      Dr. C-D-E does not know what criterion validity is.

          Pretrial Deposition date pg 59 ln 3Pretrial Deposition date pg 59 ln 3]

DR. S-T-U'S OPINION ON MEDICAL EVIDENCE

   Plaintiff's proposed expert, Dr. S-T-U, is a physician. Plaintiff is counting on that fact to lend
credence to the claim of expert qualification for this case. However, the Court must ascertain
whether the expert's particular background and training actually fits the facts in issue. Indeed, the
fact that an expert possesses a particular title or degree is not dispositive in qualifying the expert.
An expert's credentials or experience may enable the expert to meet a threshold test; but before
the expert is found qualified to offer an opinion about a particular issue, the gatekeeper must
make further inquiry. The court must also decide whether the qualifications of the expert enable
him or her to assist the trier of fact with regard to each controverted issue.

   Dr. S-T-U's opinions, given in pretrial deposition concerning the physical examinations of
Plaintiff's minor children is particularly troublesome.

   It is unfortunate that Dr. S-T-U was woefully misinformed concerning the modern research
findings on physical signs of sexual abuse. As Professor Robyn Dawes and colleagues point out,
use of subjecting (personal) experience and idiosyncratic findings to diagnose "sexual abuse"
with no qualification about the base rates of these "symptoms" among:
   children who do not report abuse, and have not been abused;
   children who do not report abuse, and have been abused;
   children who report abuse, and have not been abused; and
   children who report abuse, and have been abused;
   constitutes "Junk Science."

Why? Because it is a logical impossibility to describe the likelihood of a phenomenon increasing
or decreasing the odds of a particular syndrome or disease, without knowing the prevalence of
the phenomena among the population in general and among the population said to have the
syndrome.

   Dr. S-T-U went on for many pages of deposition transcript giving his personal subjective
sense of what he thought he saw on physical exam results without ever qualifying any of these
personal hunches. In this way, Dr. S-T-U concluded with the penultimate probability error: the
more symptoms, the more likely the syndrome. .5 plus .5 plus .5 means that we have a 150%
chance that the fourth coin flip will be heads.

   Dr. S-T-U opined that because of the "coning or funneling or triangular scars or flattening" of
the anal verge and "relaxed muscle tone" in Plaintiff's minor child R, sexual abuse of Plaintiff's
minor child R and Plaintiff's minor child Q was probable. Dr. S-T-U testified in his pretrial
deposition that during the course of an examination, he noted a description of the muscle tone
around Plaintiff's minor child R's anal opening was "slightly" diminished. [Pretrial Deposition
date pg 104 ln 22.] He reached that conclusion because the examining physician was able to
insert a cotton swab into Plaintiff's minor child R's anus and withdraw it with little resistance.
[Pretrial Deposition date pg 112 ln 12.]

   One of the confounding difficulties for Defendant is that Dr. S-T-U used idiosyncratic
terminology rather than the language of science to describe what he thought he saw. Medical
experts in the differential diagnosis of child sexual abuse simply do not use terms like ―coning or
funneling,‖ of the anal verge, or "slightly diminished muscle tone."
  An illustration will be helpful here. Essentially Dr. S-T-U was offering testimony that "given
symptom x, hypothesis y is _____% likely". That is, given this evidence, the hypothesis (sexual
abuse has happened here) is _____% likely. One last time: given this evidence, the odds are
_____% that our hypothesis (sexual abuse has happened here) is true.

   Let us examine the predictive utility of the "triangular scars" Dr. S-T-U described as
"consistent with" sexual abuse of these boys.

   In a large longitudinal study, McCann and colleagues worked very hard to screen 318
children, ages 2 months to 11 years for nonabuse. They rescreened for possible undetected abuse
and were left with 267 nonabused children. Then they carefully documented perianal findings
with a high-powered viewing machine called a colposcope. Their research documented that
flattening of the anal verge and rugae in boys screened for nonabuse occurred in 34% of their
subjects. Put another way, it is fairly reliable to say that 34% of little boys examined at any one
time, who have been screened for nonabuse, will have flattening of the anal verge and rugae.

   In a large study of children who were definitely abused sexually and then murdered, McCann
J. and colleagues report on findings during autopsy. The prevalence of flattening of the anal
verge and rugae in deceased child sexual abuse victims was 77%. These are base rate figures.
Reliable longitudinal prevalence studies of sexual abuse in prepubescent boys indicates
percentages of from zero to as high as 5% of all prepubescent boys who will be sexually abused.
For the sake of this illustration, we will use the high end figure of 5%.

   With these figures and some basic college mathematics, we can determine the probability that
a child with flattening of the anal verge and rugae has been sexually abused. Using the applicable
law of probability (the odds form of Bayes's Theorem), we can develop our estimate. The
equation for this probability estimate is:

   p (h/e) = p(e/h) p (h)
   p (-h/e)    p (e/-h) p (-h)
   Here are some definitions:
   p (h/e) = probability that the hypothesis (Plaintiff's minor child R or Plaintiff's minor child
               Q has been sexually abused) is true, given the evidence (flattening).
  p (-h/e) = probability that the hypothesis (Plaintiff's minor child R or Plaintiff's minor child
             Q has been sexually abused) is false, given the evidence (flattening).
   p (h/e)   = the odds that the hypothesis (Plaintiff's minor child R or Plaintiff's minor child Q
               has been sexually abused) is true.

   When considering the actual scientific decision making formula, we have:
   p (e/h) = the odds of finding the e vidence, given sexual abuse (here .77 or 77%);

   p (h)     = the odds that a boy drawn randomly from the population was sexually abused .05
               or 5%;

   p (e/-h) = the odds of finding the evidence (flattening) given that the child was not sexually
              abused (here .34 or 34%);
   p (-h) = the odds that a boy drawn randomly from the population was not sexually
              abused .95 or 95%

   Plugging in the data, the arithmetic is:


   p (h/e) =     (.77) (.05)
   p (-h/e)      (.34) (.95)
                 =      .119195

  This creates an odds ratio of .12, which in turn describes a probability of .12/1.12= .12 or
12%. Flipping a coin = a probability of 50%.

   The scientific reality which so thoroughly escaped Dr. S-T-U is that with his hypothesis
concerning slightly diminished muscle tone around Plaintiff's minor child R's anal opening lends
even less credibility to Dr. S-T-U's finding that these injuries were "consistent with" sexual abuse
of Plaintiff's minor child R or Plaintiff's minor child Q .

   Dr. S-T-U's serious lack of understanding stands out in bold relief when we unpack this
terminology. Dr. S-T-U used "consistent with …" terminology to avoid saying: "When you've
got blank (physical sign), you've got sexual abuse." To say that would imply a causative
relationship. Unfortunately, while he said he does not mean a causative relationship (one of
proximate causation), he in fact did mean that there is some causation operating. This is
"causism," one of the hallmarks of junk science and far more prejudicial than probative. FRE
403. Second, Dr. S-T-U simply does not understand predictive validity, predictive reliability, or
predictive utility. Testifying in his pretrial deposition as he did, without understanding predictive
validity, predictive reliability, and predictive utility is "hyper-claiming," another of the hallmarks
of junk science.

   As this demonstration of the actual medical science of child sexual abuse findings illustrates,
Dr. S-T-U's testimony is so idiosyncratic, unreliable, and wrong that it must be prohibited.

                                        IV. CONCLUSION

   Any reputable scientist will testify that these concepts, the ones listed above, are basic to a
scientific understanding of any phenomenon or methodology.

   The serious shortcomings in proposed witness S-T-U and C-D-E's grasp for scientific
methodology completely undermines their capacity to testify as scientists pursuant to FRE 403,
FRE 702, and FRE 703. They should be disallowed or severely limited in their contributions to
this case.
Dated:

[Signature Block]

				
DOCUMENT INFO