Avoiding ipse dixit mislabeling: post-Daubert approaches to expert clinical opinions

Recent Supreme Court decisions emphasize the need to regulate the admissibility of expert testimony by means of standards that require opinions to go beyond ipse dixit--that is, that are based on more than the fact that the expert said it. The authors discuss subtextual themes underlying this issue and suggest approaches to attaining expert clinical opinions that reduce the likelihood of being mislabeled as ipse dixit contributions. The approach involves providing substantiation of testimony by offering a reliable methodologic basis for communicating the relevant opinion in a thoughtful and intellectually rigorous manner. A model is offered, emphasizing a process approach to opinion formulation and reformulation prior to deposition and trial. This approach addresses not only the Supreme Court's current focus on moving expert opinion beyond ipse dixit, but also such concerns as possible distortions of an expert opinion in the adversarial process. Since judicial determinations may vary depending on many factors, however, even the most careful process of opinion formulation cannot guarantee admissibility. The article assumes a general familiarity among forensic readers with the Federal Rules of Evidence and the recent series of Supreme Court decisions in this area.