B. Has the Methodology Been Subject to Peer Review?
At the hearing, Dr. Kozubov testified that his methodology had been discussed in two peer reviewed articles and that the methodology had been presented at two international conferences. (Tr. at 1437.) Defendants do not appear to dispute the contention that the methodology has been subject to at least minimal levels of peer review. This factor will weigh in favor of the admission of the proffered testimony.
C. Were There Standards Controlling the Technique's Operation?
According to Dr. Kozubov, "there are international standard operating procedures. . . . [and there are] national standards as far as dendrometric measurements are concerned. The standards define the methods of sample preparations, sample retrievals and sample analysis." (Tr. at 1438.) Defendants express concern that despite the existence of standards, the standards might not have been properly followed. Specifically, Defendants note that Dr. Kozubov did not give Professor Shevchenko specific instructions about how to select control trees. Further, it is unknown whether the control trees were taken from the same "urban" environment as the study trees. Finally, Defendants argue that Dr. Kozubov used weather information from the Harrisburg area and applied it to the control group of trees. The control group was located over seventy miles from Harrisburg. (2/17/95 Kozubov Rpt. at 6.) Testimony was presented at the hearing that weather conditions, among other things, would effect the growing patterns of trees. (Tr. at 1448-49; see McClenahen Rpt. at 2.) Thus, Defendants contend that by applying the Harrisburg weather data to the control group, Dr. Kozubov is failing to account for growth discrepancies that may be due to differing weather patterns in the area where the control group is located.
The court is satisfied that while Dr. Kozubov might not have used every standard possible to control the operation of his technique, he did employ proper standards. Thus, although the court finds Defendants' arguments to have a degree of merit, this factor will not weigh against the admission of the proffered testimony.
D. Is the Methodology Generally Accepted
In his testimony, Dr. Kozubov was unable to characterize his methodology as generally accepted. His response to questioning on this subject was as follows:
Because the patent was received at the end of 1993, I cannot say that this method was tested worldwide. Plus, I have to say that fortunately, thank God, we didn't have enough places, locations in the world where we could test this method. There are only three or four sites worldwide where this methodology can be tested. So probably the term world acceptance, worldwide acceptance, would be the wrong one to use here. The Three Mile Island area is probably only the second location where we're trying and using this methodology.