No serious observer or scholar of the law of evidence can deny that the lower federal courts have applied Daubert and its progeny, and the revised Federal Rule of Evidence 702, inconstantly and inconsistently, in their decisions to admit or exclude proffered expert witness opinion testimony. Opponents of trial court “gatekeeping” of expert witnesses applaud the lapses in hopes that the gates have been unhinged and that there will be “open admissions” for expert witness testimony. These opponents latch on to the suggestion that the Rules favor “liberal” admissibility with a libertine; they lose sight of the meaning of “liberal” that conveys enlightened, with an openness to progress and salutary change, and the claims of knowledge over blind faith. Supporters of gatekeeping lament the courts’ inability or unwillingness to apply a clear statutory mandate that is designed to improve and ensure the correctness of fact finding in the federal courts. A few have decried the lawlessness of the courts’ evasions and refusals to apply Rule 702’s requirements.
Given the clear body of Supreme Court precedent, and the statutory revision to Rule 702, which was clearly designed to embrace, embody, enhance, and clarify the high Court precedent, I did not think that an amendment to Rule 702 was needed to improve the sorry state of lower court decisions. Professor David Bernstein and lawyer Eric Lasker, however, have made a powerful case for amendment as a way of awakening and galvanizing federal judges to their responsibilities under the law. David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1 (2015) [cited below as Bernstein & Lasker].
Bernstein and Lasker remind us that Rule 702 is a statute[1] that superseded inconsistent prior judicial pronouncements. The authors review many of the more egregious cases that ignore the actual text of Rule 702, while adverting to judicial gloss on the superseded rule, and even to judicial precedent and dicta pre-dating the Daubert case itself. Like the Papa Bear in the Berenstain Bear family, the authors show us how not to interpret a statute properly, through examples from federal court decisions.
The Dodgers’ Dodges
Questions about whether expert witnesses properly applied a methodology to the facts of a case are for the jury, and not the proper subject of gatekeeping.
As Bernstein and Lasker document, this thought- and Rule-avoidance dodge is particularly shocking given that the Supreme Court clearly directed close and careful analysis of the specific application of general principles to the facts of a case.[2] Shortly after the Supreme Court decided Daubert, the Third Circuit decided a highly influential decision in which it articulated the need for courts to review every step in expert witnesses’ reasoning for reliability. In re Paoli RR Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994). The Paoli case thus represents the antithesis of a judicial approach that asks only the 10,000 foot level question whether the right methodology was used; Paoli calls for a close, careful analysis of the application of a proper methodology to every step in the case. Id. (“any step that renders the analysis unreliable … renders the expert’s testimony inadmissible … whether the step completely changes a reliable methodology or merely misapplies that methodology”).
While the Paoli approach is unpopular with some judges who might prefer not to work so hard, the Advisory Committee heartily endorsed Paoli’s “any step” approach in its Note to the 2000 amendment. Bernstein & Lasker at 32. Bernstein and Lasker further point out that the Committee’s Report, Professor Dan Capra, acknowledged, shortly after the amendment went into effect, that the Paoli “any step” approach had a “profound impact” on the drafting of amended Rule 702. Bernstein & Lasker at 28.[3]
Having demonstrated the reasons, the process, and the substance of the judicial and legislative history of the revised Rule 702, Bernstein and Lasker are understandably incensed at the lawlessness of circuit and trial courts that have eschewed the statute, have ignored Supreme Court precedent, and have retreated to vague judicial pronouncements that trace back to before some or any of the important changes occurred in Rule 702.[4]
Let’s Cherry Pick and Weigh of the Evidence; Forget the Scale
Along with some courts’ insistence that trial judges may not examine the application of methods to the facts of a case, other courts, perhaps mindful of their citation practices, have endorsed “cherry picking” as a satisfactory methodology for partial expert witnesses to support their opinions. Id. at 35-36. Our law review authors also trace the influence of plaintiffs’ counsel, through their “walking around money” from the breast implant litigation, in sponsoring anti-Daubert, anti-gatekeeping conferences, at which prominent plaintiffs’ advocates and expert witnesses, such as Carl Cranor presented in favor of a vague “weight of the evidence” (WOE) approach to decision making. Id. at 39. Following these conferences, some courts have managed to embrace WOE, which is usually packaged as an abandonment of scientific standards of validity and sufficiency, in favor of selective review and subjective decisions. To do this, however, courts have had to ignore both Supreme Court precedent and the clear language of Rule 702. In Joiner, the high Court rejected WOE, over the dissent of a single justice,[5] but some of the inferior federal courts have embraced the dissent to the exclusion of the majority’s clear holding, as well as the incorporation of that holding into the revised Rule 702.[6] An interesting case of judicial disregard.
Other Dodges
The law review authors did not purport to provide an exhaustive catalogue of avoidance and evasion techniques. Here is one that is not discussed: shifting the burden of proof on admissibility to the opponent of the expert witness’s opinion:
“Testimony from an expert is presumed to be helpful unless it concerns matters within the everyday knowledge and experience of a lay juror.”
Earp v. Novartis Pharms., No. 5:11–CV–680–D, 2013 WL 4854488, at *3 (Sept. 11, 2013). See also Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.1993); accord Koger v. Norfolk S. Ry. Co., No. 1:08–0909, 2010 WL 692842, at *1 (S.D.W.Va. Feb. 23, 2010) (unpublished).
Whence comes this presumption? Perhaps it is no more than a requirement for the opponent to object and articulate the flaws before the trial court will act. But the “presumption” sure looks like a covert shifting of the burden of proof for the requisite reliability of an expert witness’s opinion, which burden clearly falls on the proponent of the testimony.
The Proposed Amended Rule 702
There are several possible responses to the problem of the judiciary’s infidelity to basic principles, precedent, and legislative directive. Bernstein and Lasker advance amendments to the current Rule 702, as a blunt reminder that the times and the law have changed, really. Here is their proposed revision, with new language italicized, and deleted language shown to be struck:
“Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the testimony satisfies each of the following requirements:
(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 that reliably support the expert’s opinion;
(c) the testimony is the product of reliable and objectively reasonable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case and reached his conclusions without resort to unsupported speculation.
Appeals of district court decisions under this Rule are considered under the abuse-of-discretion standard. Such decisions are evaluated with the same level of rigor regardless of whether the district court admitted or excluded the testimony in question. This Rule supersedes any preexisting precedent that conflicts with any or all sections of this Rule.”
Bernstein & Lasker at 44-45.
Before discussing and debating the changes, we should ask, “why change a fairly good statute just because lower courts evade its terms?” The corrupt efforts of SKAPP[7] to influence public and judicial policy, as well as the wildly one-sided Milward symposium,[8] which the authors discuss, should serve as a potent reminder that there would be many voices in the review and revision process, both from within plaintiffs’ bar, and from those sympathetic to the litigation industry’s goals and desires. Opening up the language of Rule 702 to revision could result in reactionary change, driven by the tort bar’s and allies’ lobbying. The result could be the evisceration of Rule 702, as it now stands. This danger requires a further exploration of alternatives to the proposed amendment.
Rule 702 has had the benefit of evolutionary change and development, which have made it better and also possibly burdened with vestigial language. To be sure, the rule is a difficult statute to draft, and while the authors give us a helpful start, there is many problems to be subdued before a truly workable working draft can be put be forward.
The first sentence’s new language, “the testimony satisfies each of the following requirements,” is probably already satisfied the use of “and” between the following numbered paragraphs. Given the judicial resistance to Rule 702, the additional verbiage could be helpful; it should be unnecessary. The conditionality of “if,” however, leaves the meaning of the Rule unclear when that condition is not satisfied. The Rule clearly signifies that “if” in the introductory sentence means “only if,” and the law and litigants would be better off if the Rule said what it means.
Proposed Subsection (b)
(b) the testimony is based on sufficient facts or data that reliably support the expert’s opinion;
The authors do not make much of a case for striking “sufficient.” There will be times when there are perfectly good facts and data supporting an expert witness’s opinion, in a completely reliable opinion, but the supporting facts and data do not support an epistemic claim of “knowledge,” because the support is indeterminate between the claim and many other competing hypotheses that might explain the outcome at issue. The reliably supporting facts and data may amount to little more than a scientific peppercorn, and really be too much of too little to support the claim. Deleting “sufficient” from subsection b could be a serious retrograde move, which will confuse the judiciary more than instruct it.
The revised subsection also fails to address the integrity of the facts and data, and the validity of how the data were generated. To be sure, Rule 703 could pick up some of the slack, but Rule 703 is often ignored, and even when invoked, that rule has its own drafting and interpretation problems. See “Giving Rule 703 the Cold Shoulder” (May 12, 2012); “RULE OF EVIDENCE 703 — Problem Child of Article VII” (Sept. 19, 2011). Also missing is an acknowledgment that the facts or data must often be analyzed in some way, whether by statistical tests or some other means. And finally, there is the problem in that reliable does not necessarily connote valid or accurate. Subsection (b) thus seems to cry out for additional qualification, such as:
“the testimony is based on sufficient facts or data, reliably, accurately, and validly ascertained, and analyzed, which facts or data reliably and validly support the expert’s opinion”
Proposed Subsection (c)
Bernstein and Lasker propose modifying this subsection to inject “and objectively reasonable” before “principles and methods.” The authors do not explain what objectively reasonable principles and methods encompass, and they qualification does seem self-explanatory. Perhaps they are calling for principles and methods that are “generally accepted,” and otherwise justified as warranted to produce accurate, true results? Is so, that might be a helpful addition.
Proposed Subsection (d)
Here the authors bolster the language of the subsection with a prohibition against using unsupported speculation. OK; but would supported or inspired or ingenious speculation be any better? Subsection (a) speaks of knowledge, and it should be obvious that the expert witness’s opinion has an epistemic warrant to be something more than a mere subjective opinion.
Whether Bernstein and Lasker have opened a can or a Concordat of Worms remains to be seen.
[1] The authors provide a great resource on the legislative history of attempts to revise 702, up to and including the 2000 revision. The 2000 revision began with a proposed amendment from the Advisory Committee in April 1999. The Standing Committee on Rules of Practice and Procedure approved the proposal, and forwarded the proposed amendment to the Judicial Conference, which approved the amendment without change in September 1999. The Supreme Court ordered the amendment in April 2000, and submitted the revised rule to Congress. Order Amending the Federal Rules of Evidence, 529 U.S. 1189, 1195 (2000). The revised Rule 702 became effective on December 1, 2000. See also Bernstein & Lasker at 19 n. 99 (citing Edward J. Imwinkelried, “Response, Whether the Federal Rules of Evidence Should Be Conceived as a Perpetual Index Code: Blindness Is Worse than Myopia,” 40 Wm. & Mary L. Rev. 1595, 1595-98 (1999) (noting and supporting the Supreme Court’s interpretation and application of the Federal Rules of Evidence as a statute, and subject to the judicial constraints on statutory construction). For a strident student’s pro-plaintiff view of the same legislative history, see Nancy S. Farrell, “Congressional Action to Amend Federal Rule of Evidence 702: A Mischievous Attempt to Codify Daubert v. Merrell Dow Pharmaceuticals, Inc.”, 13 J. Contemp. Health L. & Pol’y 523 (1997).
[2] General Electric Co. v. Joiner, 522 U.S. 136 (1997) (reviewing and analyzing individual studies’ internal and external validity, and rejecting plaintiffs’ argument that only the appropriateness of the methodology in the abstract was subject of gatekeeping); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156-57 (1999) (“stressing that district courts must scrutinize whether the principles and methods employed by an expert have been properly applied to the facts of the case”) (quoting what was then the proposed advisory committee’s note to Rule 702, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Evidence: Request for Comment, 181 F.R.D. 18, 148 (1998)).
[3] citing Stephen A. Saltzburg, Edwin J. Imwinkelried, & Daniel J. Capra, “Keeping the Reformist Spirit Alive in Evidence Law,” 149 U. Pa. L. Rev. 1277, 1289-90 (2001). The authors note that other circuits have embraced the Paoli “any steps” approach. Bernstein & Lasker at 28 at n. 152 (citing Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387-91 (5th Cir. 2009); McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1245 (11th Cir. 2005); Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003); Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002) (quoting In re Paoli, 35 F.3d at 746).
[4] See, e.g., City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1047 (9th Cir. 2014) (rejecting the Paoli any step approach without careful analysis of the statute, the advisory committee note, or Supreme Court decisions); Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 808 (7th Cir. 2013) (“[t]he reliability of data and assumptions used in applying a methodology is tested by the adversarial process and determined by the jury; the court’s role is generally limited to assessing the reliability of the methodology – the framework – of the expert’s analysis”); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (“the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination”).
[5] General Electric Co. v. Joiner, 522 U.S. 136, 146-47 (1997) (holding that district court had the “discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusions that Joiner’s exposure to PCB’s contributed to his cancer”). Other federal and state courts have followed Joiner. See Allen v. Pa. Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996) (“We are also unpersuaded that the ‘weight of the evidence’ methodology these experts use is scientifically acceptable for demonstrating a medical link between Allen’s EtO exposure and brain cancer.”). For similar rejections of vague claims that weak evidence add up to more than the sum of its parts, see Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1216 n.21 (10th Cir. 2002); Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 608 (D.N.J. 2002); Caraker v. Sandoz Pharm. Corp., 188 F. Supp. 2d 1026, 1040 (S.D. Ill. 2001); Siharath v. Sandoz Pharm. Corp., 131 F. Supp. 2d 1347, 1371 (N.D. Ga. 2001), aff’d sub nom. Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002); Merck & Co. v. Garza, 347 S.W.3d 256, 268 (Tex. 2011); Estate of George v. Vt. League of Cities & Towns, 993 A.2d 367, 379-80 (Vt. 2010).
[6] Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 17-18 (1st Cir. 2011) (reversing the exclusion of expert witnesses who embraced WOE). Milward has garnered some limited support in a few courts, as noted by Bernstein and Lasker; see In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., Nos. 11-5304, 08-08, 2013 WL 1558690, at *4 (D.N.J. Apr. 10, 2013); Harris v. CSX Transp., Inc., 753 S.E.2d 275, 287-89, 301-02 (W. Va. 2013).
[7] “SKAPP A LOT” (April 30, 2010).
[8] “Milward Symposium Organized by Plaintiffs’ Counsel and Witnesses” (Feb. 13, 2013); [http://perma.cc/PW2V-X7TK].
