The Supreme Court took up Dr. Harkonen’s petition for certiorari on Friday, December 13, 2013. The SCOTUS Blog made the petition its “Petition of the Day.”
Unfortunately, the blog’s attention did not carry over to the Court’s conference. The Court release its orders this morning, which included a denial of certiorari in Harkonen v. United States.
Although there was a good deal of noise about Dr. Harkonen’s intent, that issue is uniquely case specific. The real issue going forward would seem to be the reach of the government’s position, and now the Ninth Circuit’s position, that failure to disclose multiple testing or deviation from a protocol is demonstrably false or misleading. In Dr. Harkonen’s case, the causal inference was reasonably supported despite the non-protocol analysis. The use of the verb “demonstrate,” however, is often used carelessly, and the Harkonen decision may well breathe life into Rule 702 gatekeeping.
