The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change. As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc., 91 F.4th 59 (1st Cir. 2024) – the first reported appellate decision to cite the language of the newly-amended Federal Rule of Evidence 702 since it took effect in December 2023 – even a change to the Federal Rules of Evidence themselves might not be enough for a court to stop citing outdated but familiar precedents.
Some background is in order. In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ushered in a new paradigm for evaluating the admissibility of expert opinion evidence. Courts seized on Daubert’s comment that a court’s “focus, of course, must be solely on [an expert’s] principles and methodology, not on the conclusions that they generate.” But just four years after Daubert was decided, the Supreme Court rejected an argument that a lower court had erred by evaluating an expert’s conclusions. Because “conclusions and methodology are not entirely distinct from one another,” the lower court had not abused its discretion in evaluating whether the expert’s opinion was warranted by the data on which it was based. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
When Federal Rule of Evidence 702 was amended in 2000 – a process that required the Supreme Court’s approval – it added a new requirement in Rule 702(d): “the expert has reliably applied the principles and methods to the facts of the case.” As the Committee Note explained in contrasting Daubert and Joiner, a “trial court must scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case.”
Nevertheless, many courts continued to cite Daubert and refused to seriously question an expert’s application of a stated methodology. Last year, the Supreme Court addressed that problem by once again approving amendments to Rule 702. As the Committee Note to the 2023 Amendments explains, these amendments address an “incorrect” application of the Rule:
[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).
Thus, Rule 702(d) was amended to read: “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” As the Committee noted, this change was meant
[T]o emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.
Despite this clear call for a change in how Rule 702 is applied, some practitioners who had experienced the courts’ “incorrect application” of Rule 702 for decades following Joiner and the 2000 Amendment feared that district courts would be slow to abandon old “incorrect” precedent in favor of the true spirit of Rule 702. Meaningful change might need to wait until the appellate courts overrule some of those older – and now abrogated – precedents.
Unfortunately, it now looks like practitioners could be in for a bumpy ride even in the appellate courts. In Rodriguez v. Hospital San Cristobal, Inc., 91 F.4th 59 (1st Cir. 2024), the plaintiffs alleged that their mother passed away after the defendant surgeons perforated her colon during a surgery. In support of that allegation, the plaintiffs proffered an expert who opined summarily that the perforation – which was first observed four days after the surgery when the decedent returned to the hospital to complain of pain – had occurred during the surgery. Defendants moved to exclude that opinion as speculative under Rule 702. The district court agreed, observing that the expert had provided “no explanation” for his conclusion and that the discovery of the perforation four days after the surgery was “not enough” to conclude that it had occurred during the surgery. The defendants’ ensuing summary judgment motion was granted, and an appeal followed.
The First Circuit started by acknowledging the 2023 Amendments to Rule 702 and quoting the new language of Rule 702 as its standard. But it stumbled just two paragraphs later, citing the Committee Notes to the 2000 Amendment in discussing “the present version of Rule 702” and then quoting the pre-amendment formulation of Rule 702(d). The court’s failure to appreciate the change in the Rule became even clearer when it quoted Daubert’s comment about focusing solely on methodology, followed by a quote from a 2011 First Circuit case that held “‘[w]hen the factual underpinning of an expert’s opinion is weak, it is a matter affecting the weight and credibility of the testimony’” and thus “‘a question to be resolved by the jury.’” Thus, despite citing the new language of Rule 702, the First Circuit adhered to the same “incorrect application” of Rule 702 that the 2023 Amendment was meant to remedy. And on that basis, it took issue with the district court’s “assessment of the ‘factual underpinning’ of the [expert’s] opinion.”
The good news is that the Rodriguez panel’s misfire on Rule 702 was mere dicta. The district court had also excluded a second opinion by the same expert, and the First Circuit upheld the exclusion of that second opinion. Because that second opinion was critical to the plaintiffs’ case, the First Circuit affirmed the summary judgment. The First Circuit therefore never landed the critical blow; instead of labeling the district court’s exclusion of the first opinion “error,” it referred to “potential problems” with the analysis and said “it may be” that the first opinion “was wrongly excluded.” This, combined with the explicit language of the Committee Notes to the 2023 Amendments, will hopefully prevent Rodriguez from porting “incorrect” precedent broadly into the post-Amendment legal landscape.
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