Daubert V Merrell Dow

[EricHughes]

This is a power point presentation summarizing my research into the use of expert witnesses in VA claims.

[EricHughes]

If VA already knocked down the IMO-

the IMO doc might have to rebutt them with a new IMO.

Don't forget-when VA weighs the evidence , the VA also owns the scale they use.

Wrong. The US Supreme Court sets the specifications of the scale, not the VA. Yes, I know that the VA likes to think they own the scale. But the case law is very clear. I've found BVA decisions that clearly support my position when the question of weight is raised. But I did not cite them, as they are not binding.

[carlie]

Wrong. The US Supreme Court sets the specifications of the scale, not the VA. Yes, I know that the VA likes to think they own the scale. But the case law is very clear. I've found BVA decisions that clearly support my position when the question of weight is raised. But I did not cite them, as they are not binding.

Oh - I can see this taking 10 years or more to get thru CAVC :-)

[EricHughes]

Oh - I can see this taking 10 years or more to get thru CAVC :-)

Oh you are generous. I was expecting it to take longer.... :-) I am serious when I say that. What I have seen reviewing the BVA decisions is that when a question of weight is brought up in this context is that VA does everything in its power to keep the issue out of the courts. If you review the case law that I cite, the VLJ or DRO reweighs the evidence according to Daubert. That does not always work out in the veteran's favor. But it does serve to temporarily fix the VA's broken scale. Even if the weight of the evidence does not work out in the veteran's favor, a remand for further development will usually result. I see this as a way to wrestle control of the "tread mill" from the VA and put it back in the hands of the claimant. Mind you it won't stop the treadmill, but it will get it to change directions.

[carlie]

Oh you are generous. I was expecting it to take longer.... :-) I am serious when I say that. What I have seen reviewing the BVA decisions is that when a question of weight is brought up in this context is that VA does everything in its power to keep the issue out of the courts. If you review the case law that I cite, the VLJ or DRO reweighs the evidence according to Daubert. That does not always work out in the veteran's favor. But it does serve to temporarily fix the VA's broken scale. Even if the weight of the evidence does not work out in the veteran's favor, a remand for further development will usually result. I see this as a way to wrestle control of the "tread mill" from the VA and put it back in the hands of the claimant. Mind you it won't stop the treadmill, but it will get it to change directions.

Eric,

I'm really not that generous, that's why I posted 10 years or more

I don't have much confidence in getting Daubert applied to VA.

A remand is always better than a denial : -)

JMHO

[EricHughes]

Eric,

I'm really not that generous, that's why I posted 10 years or more

I don't have much confidence in getting Daubert applied to VA.

A remand is always better than a denial : -)

JMHO

I agree a remand is better than a denial.