Wes Elsberry has uncovered this article by Patrick Malone about things to avoid when choosing an expert witness pursuant to Daubert and Federal Rule of Evidence 702. Daubert is the controlling Supreme Court precedent that governs when courts should accept or reject expert scientific testimony. Malone’s advice includes the following:
Before Daubert, an adversary’s discovery that your expert had formed an opinion, then read the relevant literature, would amount to, at worst, a credibility point for cross-examination. Now, that kind of discovery can get an expert tossed off the case.
Beware the expert who claims that he or she doesn’t need to read the literature on the subject because no amount of literature could change his or her mind. That is exactly what happened in Cooper. The expert rationalized his behavior, stating, “[A]after I read those two articles years ago, they didn’t affect my prior judgment—and they still haven’t—that smoking doesn’t have anything to do with healing in spinal fusion. So even if there were 10 more articles, I’m not going to change my mind about it.” The court was not impressed.
In fact, you can go to the actual court ruling in Cooper, the case cited by Malone, and see it in even more detail. Here is what the court said about a particular expert’s testimony in upholding a lower court’s decision to disallow his testimony:
In the face of the medical literature and Cooper’s own records, Dr. Mitchell categorically dismissed any suggestion that Cooper’s smok- ing was the cause of the nonunion. Dr. Mitchell stated that he rejected the medical articles as unpersuasive after he read just two of them…Simply asserting that he read two articles on smoking and rejected them as unpersuasive is insufficient.
Sounds a lot like Michael Behe’s testimony in Kitzmiller, doesn’t it? Now, I’m sure Behe would object and argue that he isn’t saying, as the expert in Cooper did, that no amount of reading could change his mind, that he would change his mind if shown a mutation by mutation reconstruction of the entire history of the development of the immune system, along with all of the side information that he demands as well. But there is no functional difference between demanding a level of proof that he knows can’t possibly be met (thus insuring that there is no evidence that actually could be shown that he would accept) and saying that nothing could change his mind. At the very least, nothing that could actually be shown in the real world could change his mind. Here is what Behe demands before accepting that the immune system developed via evolution:
Well, yes, of course that’s exactly what I ask of Darwinian claims — a mutation-by-mutation account of critical steps (which will likely be very, very many), at the amino acid level…And not only a list of mutations, but also a detailed account of the selective pressures that would be operating, the difficulties such changes would cause for the organism, the expected time scale over which the changes would be expected to occur, the likely population sizes available in the relevant ancestral species at each step, other potential ways to solve the problem which might interfere, and much more. Alternatively, Darwinists could present a series of experiments showing that RM/NS is capable of building a system of the complexity of the adaptive immune system.
Bearing in mind that the immune system first developed several hundred million years ago, Behe knows that this standard could not possibly be met. He is essentially demanding that we present a videotape showing every single change over the course of hundreds of millions of years before he will accept that the immune system evolved, plus showing every possible variable that might influence its evolvability. It makes his assertion impenetrable. No matter how much detail is shown, he can always question it by asking, for example, how we can know that those population estimates are correct 350 million years after a species died off when all we have is fossil specimens of a few of them? How can we know what exact selection pressures an organism was under without completely rebuilding the entire ecosystem in which they lived? The answer is, we can’t know for sure. We can draw logical inferences from the evidence we have, but we can’t rewind the clock and go back and take measurements, nor can we know for certain precisely what amino acids were changed at what precise time. It simply isn’t possible, and he knows that. Demanding an impossible level of proof before one will accept an explanation is, thus, precisely the same as saying that no amount of evidence could change one’s mind. There is no difference between saying “There is nothing you can do to prove your love for me” and “I’ll only accept that you love me if you drive your car to the moon and bring me back a moon rock.”