"Yes, reliability should have been dealt with by the judge already. But if two experts appear in front of the jury, and only one uses this phrase, the concern is that the jury takes the statement as proof that that expert's testimony should hold more weight."

Practically speaking, the conditional assumption that one expert would use this statement to stand behind and would never be challenged. In that case, someone was not doing their job. What does it say when an expert does not acknowledge this statement? How does an expert provide a reliable explanation to the question from the judge or opposing attorney as to if their determination is being held to a "reasonable degree of scientific certainty?" Would the answer be "I hold no scientific certainty to my analysis and determinations because there is no such thing?"

"The phrase shouldn't be a requirement because it has no legal definition, nor has a method been developed or defined to determine how to determine the level of certainty or what is acceptable or reasonable. It should not be taken as proof that an expert has used the scientific method just because they said so or because they used this phrase. The expert's report and testimony should demonstrate how they followed the scientific method and arrived at their conclusions given the available data."

There is no quantitative measure of the level of certainty, but there can be a qualitative measure of the level of certainty. A "reasonable degree" is the qualitative measure.

This is issue is really speaking to Daubert and the application of a reliable methodology, so there is a process to assess the level of certainty based on reliability.

Use it, don't use it, but either way, one may have to address this issue. Again, what will be the answer to the question of "do you hold your opinions to a reasonable degree of scientific certainty?" "Yes," please explain ... "No, ...?

I disagree with the current position that there is no meaning and no value to this statement. It either tells the judge you are a professional and have used a reliable methodology to reach reliable determinations. If the judge understands this, then the judge can adequately challenge your methodology. For those judges who are ignorant, you are providing them with the standard of care for challenging all experts in the case.

Douglas J. Carpenter, MScFPE, CFEI, PE, FSFPE
Vice President & Principal Engineer
Combustion Science & Engineering, Inc.
8940 Old Annapolis Road, Suite L
Columbia, MD 21045
(410) 884-3266
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