I have written previously about the gap in Rule 702, which provides a multi-factorial test for the admissibility of an opinion from a properly qualified expert witness:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Noticeably absent from Rule 702 is any requirement that the facts or data upon which the expert witness relies be worth a damn. From Rule 702(b), (c), and (d) alone, an expert witness, armed with sufficient unreliable, fraudulent, imaginary, or simply incorrect facts and data, using reliable principles and methods, and applying those principles and methods reliably to the facts of the case, gets to testify at trial. Arguably, the first subsection, Rule 702(a), which limits testimony to helpful “knowledge” provides an overriding condition that helps to qualify the next three. It is difficult to imagine that knowledge is based upon unreliable facts and data.
Still, the failure to require reliable data explicitly within the scope of Rule 702 is disturbing. This unhappy state of affairs, in which courts do not exercise gatekeeping over the quality of the data themselves, is apparently the law of the Tenth Circuit, of the United States Court of Appeals.
In Pritchett v. I-Flow Corporation, the plaintiff had shoulder surgery, which required the use of a “pain pump” to inject anesthetic medication into the shoulder post-operatively. The plaintiff went on to develop “chondrolysis” in his shoulder joint, a condition that involves partial or complete loss of cartilage in the shoulder joint. Pritchett v. I-Flow Corp., Civil Action No. 09-cv-02433-WJM-KLM. (D. Colo. April 17, 2012) (Mix, J., Magistrate Judge).
The opinion is a mechanical recitation of Daubert procedure and method, with little analysis of the expert witness’s opinion, until the magistrate judge describes the requirement of Rule 702 (b) for “sufficient facts and data”:
“i. Sufficient Facts and Data
The proponent of the opinion must first show that the witness gathered “sufficient facts and data” to formulate the opinion. In the Tenth Circuit, assessment of the sufficiency of the facts and data used by the witness is a quantitative, rather than a qualitative, analysis. Fed. R. Evid. 702, Advisory Committee Notes to 2000 Amendments; see also United States v. Lauder, 409 F.3d 1254, 1264 n.5 (10th Cir. 2005). That is to say, the Court does not examine whether the facts obtained by the witness are themselves reliable; whether the facts used are qualitatively reliable is a question of the weight that should be given to the opinion by the fact-finder, not the admissibility of the opinion. Lauder, 409 F.3d at 1264. Instead, “this inquiry examines only whether the witness obtained the amount of data that the methodology itself demands.” Crabbe, 556 F. Supp. 2d at 1223.”
Pritchett v. I-Flow Corp. (emphasis added). That is to say: the whole gatekeeping enterprise is really about appearances and not about trying to ensure more accurate fact finding.
If the court’s analysis of Rule 702 should be correct, it is in any event an incomplete analysis that omits the important role of Rule 703:
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
According to Magistrate Mix, the reliability of the facts and data do not count for gatekeeping. Chalk up another loophole to the law’s requirement of reliable scientific evidence.
