facts that i'd like to focus the court's attention upon one the infant child and i refer to him as and k was exposed to high doses of depakote throughout the gestational period to is a known to ravage and a substance that causes birth defects three and very important general corps as causation is not disputed that is that causes many of the birth effects suffered by n k and for all genetic tests that were performed were negative for a genetic cause of birth defects now the policy your honour's behind seven o two is to exclude unreliable expert witness testimony that is based upon junk science here we have two highly qualified specific causation witnesses employing an accepted methodology first dr lois dr lois was and kay's treating pediatrician a diagnostician from day twelve of life to the present day and since dr lois his opinions on specific causation were formed during her treatment of and k there is built in haret reliability child most of his life was over she got there through a methodology that is accepted by pediatricians with regard to diagnosing causation and that's what the role of a pediatrician is but on top of that is the differential diagnosis that yes your honor yes your honor that is a differential diagnosis and she employed the very same type of diagnosis the differential diagnosis that pediatricians employ every day in this state and throughout this nation and that is the accepted methodology and the part of the methodology is to try this in the context of this case is understand for me if i'm wrong to rule out genetic causes absolutely and what she did so in her deposition she is asked a question are you able to rule out a genetic underlying cause and then kay's cognitive and physical disability her answer the answer is no well there was a lot of exact lot of questions before before and after that just let me let me answer that reckless question now the way she ruled out genetic causes was that she received the documents from the columbia presbyterian genetic team that's the team she didn't rule out but she did you're on what she said and she was pressed on that question and it's the first time that she ever gave testimony by deposition or maybe the second time and when she was pressed what she was saying in essence was she she's not a geneticists so she doesn't know if there's some unknown test that hat  unknown unknown cause but what she did no reason to have her to undertake a differential diagnosis the purpose of the differential diagnosis is to rule out what's obvious the obvious causes here your honor the obvious causes were either genetics or depakote exposure of high doses for long duration she spoke with a geneticist she received the documents from the geneticist every single test that genetics ran were negative and she used that now does that make it one hundred percent only by a preponderance of the evidence judge was must we come forward and show that her testimony would be reliable and you counsel  honor we requested adalbert hearing and we were denied the opportunity to have a daubert hearing to bring the doctors in to testify which we we thought would be appropriate so the doctors could explain what you had to downward on the papers we there was a motion made we requested of the magistrate judge for a daubert hearing to bring in dr lois so that questions could be asked of her and answer could be given so that she could explain why what her differential diagnosis was and what the basis of it was and we were denied that what she employed or first we say that she's really not subject to seven o two she's subject to seven no one as a treating doctor because there's inherent reliability been built into that but if your honour's believe that seven o two applies she is qualified because number one she's a diagnostician which is a pediatrician she's harvard educated she's the she was the chief resident at columbia presbyterian she's board certified and assistant professor of pediatrics but more important than that her differential diagnosis depakote versus genetics the methodology that she employed is not disputed by the defendant and therefore your hono screwed up the diagnosis and had failed wittingly or not to rule out genetic causes and admitted that that would go to the ability of months of the week so she could be cross examined on that if she's employing an accepted and proper methodology then i believe the testimony is admissible and vigorous cross examination can flush out any yes of course if they were not familiar with the methodology but here she uses the methodology of differential diagnosis every day in her professional life and she's used it before encase birth for encaged diagnosis of causation and the with her life but treat patients she's not an expert out there she doesn't she doesn't testify she is a diagnostician she's devoted her entire life to diagnosing children and treating children after the diagnosis and as long as the methodology that's employed is an accepted methodology which it is and there's no dispute that the methodology employed is a proper and accept the methodology then the jury should make that determination and that's why we have vigorous cross examination if there's some holes  and finished the sentence that i have if there are some holes your honor if there are some holes those holes could be brought out during crossings nation and then it's up to the jury to make that determination but if there are qualifications as a diagnostician and if the methodology employed is appropriate and proper methodology we have met our burden by a preponderance of the evidence by fifty one percent that there is credibility to this particular doctor and you think that on that basis you are entitled to have he testify on the rule seven o two as an expert yes your honor and if i could your honor let me back up because you had invoked also section seven zero one and i want to make sure i have a clear notion of what your argument is did you put before technical or other specialized knowledge within the scope of yes your honor so what what exactly would be her the bretheren testimony in the seven the one the basis of her testimony is factual driven because what she did is she reviewed the dose and duration this is how she arrived there a differential diagnosis she rooted dose interation of the in your exposure which was high doses for the entire just ation she were viewed all of the columbia presbyterian medical records to establish what the constellation of birth defects were are she reviewed the genetic testing records which all were negative she reviewed th and k with regard to his brain damage she conducted she conducted her differential diagnosis by ruling all of those items out you're on a she then she ruled out genetics two ways initially the first month of life and k when he was born obviously was deformed the team at columbia presbyterian i did a battery of genetic tests on him they chose the tests not dr lois not anybody else the team at columbia chose them as included genetic all of the genetic test correct and every single genetic test that was performed came back negative recommend additional genetic judge i was going to get to that and i thank you for asking that question the additional there's only a single genetic condition that was suggested and that was nine years after his birth and nine years after the diagnosis and what d lewis did as a good doctor and that was a condition called an f one and what she did was she said well maybe and if one has something to do with you some cafe au lait spots on him now let me send him out to an ophthalmologist because if he had an f one a marker for an f one would be an optimal logical problem with your eye so she sent him to an ophthalmologist the ophthalmologist performed an examination of an f k determination by the ophthalmologist was that there was no marker for an f one and therefore further genetic testing was not warranted not only would it be putting this poor child through something that is not warranted it but would be a waste of resources time and energy and he was not a candidate for it so that was ruled out and once again it is our position but i also thought that there was another issue which is that there were advances in genetic testing let me address that judge and also another issue ok it's an issue raised by the defense they have not identified a single genetic test or a single genetic condition or a single place that would perform this this fan full genetic test so what is what is a plaintiff's litigant supposed to do run out for every possible genetic test for any possible condition if there was a genetic test that the defense were not well we're not necessarily holding you to parental standards or medical standards not a question of what you would do but what the record shows as we discussed a moment ago in two thousand and five the first round of genetic tests came back negative correct geneticists recommended that n k be revaluated in six months is not right there was a note with regard to a six month yes caretakers and doctors did this and whether any other additional genetic tests no because it was dr louis his opinion after she performed her differential diagnosis and reviewed the existing genetic tests that the cause of his condition was depakote and once again judge hold on i just want to get through to questions before you and answer your rants to them so far as n k received any genetic testing since seven since two thousand and five no judge no and not a single test specific test has ever been really recommended let me ask you an uncomplicated layman's question yes or can one rule out genetic defects as the cause of encase abnormalities given the fact that there have been no there's been no genetic testing since two thousand and far the question judge then really is what is the standard that is n k supposed to go out every year and have a new genetic test performed or find out all the new genetic tests that just came out that he should run to the geneticist once the doctor employs a proper methodology at that time walk to the geneticist it would be difficult for him but yes judge you could walk to the geneticist but it's difficult that would be imposing he's under the care of dr louis right yes you're on others why doesn't somebody follow up on the suggestion of further genetic testing there was no specific type of genetic testing and dr lois already made her determination so if let's assume let's assume your honor there was there were other genetic tests once again the methodology was father goes to the weight and that's good cross examination i mean one of the argument is that all of these questions are irrelevant to the of the report and so her testimony she could be cross examined on the issue of what she did she did or didn't do with respect to further genetic no your honor i think once you are that's not your fundamental it's not my fundamental absolutely not i think once  by part of the evidence the obligation under seven o two if we're looking at seventy two has been fulfilled and yes then then at that point your honor once you meet that threshold then it goes to the jury and it goes to credibility clients for of the genetic testing judge i'm not no i have not thought and i don't think would be turning right and i don't they go to be appropriate to recommend further genetic testing nor do i think to meet the standard on the seven be i'd start up by saying far from an abuse of discretion it's it's clear that magistrate judge reyes did a thorough and painstaking job so so so set aside this is a big set aside that i'm going to one way or at least in the context of differential diagnosis before a doctor or anybody else can even be qualified minimally as the next they've got a ship that person who's purporting to rule out the genetic causes needs to rule out the ones that are apparent and identified and obvious and there were there were several noted by dr hugh bello the only geneticist in won't belabor it she already testified that she would have to say she did not rule out genetic causes but more specifically at age thirteen sixty two in the appendix which is her deposition she was asked whether the tests the doctor you boa did in two thousand and five ruled out the specific very specific syndromes that he was looking for their words they were they had names to them fanconi did george opiates and there was another one called piero been and when she was asked at her deposition whether she knew whether those tests had in fact ruled out those syndromes that had been identified by the geneticist she conceded that she did not and she said in a in a very candid way this is quoting you would have to ask the geneticist this is on page seventy eight  deposition she was not able to do that and that's why we have a situation here not where one expert is coming in and saying judge i believe these tests conclusively rule out those syndromes and we have another expert saying judge those those tests do not rule out those syndromes and then you have a battle of the experts and then you have all of those important cross examination right and as you saw in the record your honor opiates is remarkably similar to the constellation of sin syndromes that this child had so and then we have your honor in addition to those facts the fact  that's already been though did the doctor your boa asked to see him back in six months and that multiple doctors including three neurologists who saw the child mindful of the testing knowing of the testing that doctor you a but you both had done suggested that coming back to have another look in light of advances in the science would be a good idea that was never done dr lewis certainly didn't do it the thing that she's not an expert in this is obviously she in the context of the deposition in the report has some significant familiarity with the differential diagnosis resent me that she could be successfully cross examined by the likes of you on what she failed to do well successful cross examination can be an exception that swallows the whole rule of dogbert at the trial has the obligation to to make sure that the evidence is reliable that the dog the kumo tires puts that squarely on the trial judge's plate to make sure there's an indication of reliability yes cross examination and those tools the trial lawyers bring to bear are important considerations but that's why there's this and i know you didn't want me to go to this deferential standard but that's why you have that deferential standard that's for the trial judge to figure out to achieve that balance  between is this reliable or should i let it go to trial and cross examination this is this is not something with all wrist due respect that this is the appellate court should be second guessing except in egregious cases where there's as the standard says a manifestly erroneous decision here i think the judge is far from that so so your honor we look at what dr what magistrate judge reyes was confronted with and he had a geneticist who admitted that she understood that she had to rule out genetics admitted that she had not ruled out genetics admitted that she did not know whether the tests that had been prescribed by dr you boa ruled out genetics or ruled out the specific syndromes never followed up on the doctor yobo is request for follow up in six months and and so your honor we have a situation where it's it's clear that there was an insufficient scientific basis you seem to  have some attention to the fact that doctor words had assumed the role of a paid litigation expert for the plaintiff least you bring that to our attention clearing the amount of when she was retained as an expert she crossed from the rule twenty six eight to status of a non retained treating doctor expert who can testifies as your honor pointed out to factual issues into a full blown expert that certainly is is subject to seven o two and dogbert analysis so if i could this may not be terribly relevant in the last analysis but i'm discouraged about where your position is i take it it's your view that if she had not assume the role of a paid litigation expert for the plaintiff that the possibility that the the judge would have admitted her testimony would have been enhanced she would have been better off being simply presented as a fact witness well i'd i'd i don't think that would have helped in this case for her because she's going beyond what a was amended in two thousand just to to cover this purpose witness testimony that's factual in nature a percipient treating doctor a fact witness can offer to fact opinion or a lay opinion as they call it as long as it's not based on scientific technical or other specialized knowledge that's the that's the problem here plainly this is if what the best is she's got to she's got to survive seven o two and that's in the david's case which came out of the southern district and also in the a more geodes case which this court decided where they struck and affirmed the striking of the treating doctor and said and apply the seven o two standard there's no there's not a two tiered rule for expert evidence you've got to pass muster under seven o two if you're offering what's scientific expert opinion certainly doctors can say guy came in with a broken leg who had been in a car accident so i treated his broken leg secondary to the car accident teach is i think is that it is appropriate for the trial judge to consider that in his evaluation of whether and had experience with you as opposed  which would you have had a real basis to object and one of your main arguments is that he's never treated human beings he's really focused on animals well that's that's  one of a number of factors that weight weighed in judge ray's decision that he was on qualified but it was it was more than that with dr stahl jaw it was plain that he was relying on doctor dr lewis to do the rule out in fact the plaintiffs this is what this is what the plaintiffs told judge reyes below this is at page eighty two in the record your honor in this is an excerpt from their opposition and i know i'm out of time but i want to the time to answer the court's question in in their opposition papers to our motion to exclude dr stacho they said as follows more fundamentally whereas the toxic implored that's the case we were just talking about claim to have ruled out all of the competing causes of the plaintiff's symptoms dr stodge will was not charged with ruling out any potential causes for any case physical conditions the rule out process in any case case was performed by in case treating pediatrician dr louis they go on to say dr stacia his role was to confirm the rule in not the rule out the rule out he was there to identify the general cause rulin of what's what what were the symptoms and syndromes that he could rule in with respect to velcro it exposure and that's what he did he didn't do any rule out and to the extent he did or says he did it was in reliance on whatever dr louis did and he assumed it had been ruled out i don't want to leave the court with any open questions so a few questions all right treated somebody with a broken leg and could testify as to what course of the broken leg how is this different from well your honor this is different because there is no evidence in fact if you look at dr lewis is deposition she said that the etiology this is why it wasn't that important to him this was by way of her explaining why nowhere in twelve years in her records did she say this child had  embry op with the or that she had ruled out genetics she said the etiology of his condition was immaterial to my treatment of the child and that makes perfect sense you don't treat a child with a cleft palate any differently because it was it was a function of depakote exposure versus a genetic syndrome and you don't treat high postpaid e s any differently and you certainly don't treat developmental delay any differently so it was  immaterial to her treatment so this is this is not one of those situations where a doctor says i did this because of that i know i i did this because i i had to figure out where this was coming from and i and i undertaken to do these two other tests opiates and franconia it was like coney and those are the two only other identified tests that had not been i don't know if that's a promotion or demotion but i suppose i don't believe that magistrate judge reyes was incorrect in finding that neither of these experts as as sterling as their credentials are in their own particular fields was unqualified to do what they were being asked to do in this case we have dr lewis saying she doesn't really know what tests you would do and she doesn't do those tests herself so your hypothetical assumes a lot it it essentially is assuming you're into the role of someone who's an expert in genetics which is not if she were an expert in genetics if you would become an expert if  you did those the remaining tests well i would say well i'm well i would say that that would be a closer call obviously then so the question then would be given the fact th didn't that's that is that is a good question for someone who is an expert in genetics there was one available in this case dr you boa and nobody asked them she said you have to ask the geneticists that's what she is the person because he's an expert in this case i think i think i think i wouldn't put it so hard and fast as you do but i think a geneticist would have gotten them much further to the goal line of having a credible reliable expert opinion for a jury to consider but when used talk about putting the pediatrician up who's been caring for the child for twelve years that pediatrician has an end i think an extra level of credibility with the jury i think if anything you have to be extra careful with pediatricians jurors who know and love their pediatricians and they trust them and so if somebody is going to get on the stand and offer a scientific opinion i think pediatricians have to be have to be subject to the same rules as anyone else thank you very much  two minutes to read of your honor's you don't have to rule out one hundred percent of genetic causes is long as you are relying upon the test results which dr lewis did of the battery of tests selected by the geneticist team at columbia presbyterian she has fulfilled her obligation and her differential but just part of the genetic rule out is that she knew that depakote was a potent perked to ravage and that causes the birth defects that n k had and k went through a battery of genetic tests that ruled out every genetic cause that the geneticist decided to test him for this is not some left field causation issue she certainly was qualified if i can turn just for a moment to dr stachel we believe that dr stanton independently  life and he studied animals to see because the animal's a good model of the human and you can determine well based on the animal study what how what do i look for in the human or human is the room exclusively on the floor and correct in correct he did not made his determination but in addition to his animal study experience with depakote he did a world literature search and what he did is he looked at and he put together one hundred eighteen scientific journals and what he did is he said will what conditions the world's scientists say haw are caused by depakote what are the conditions that n k has and do we have a match and he found after that there was a match and he cited to the magi strate below or in his report one hundred eighteen specific articles on each and every phenotype or medical condition or birth defect that and kay had this is the furthest thing from junk science and he's the f