In the space of a single paragraph, General Electric Co. v. Joiner softened Daubert’s comment that a court’s assessment of expert opinion admissibility should focus “solely on principles and methodology, not on the conclusions that they generate” and gave us two of the most heavily quoted snippets in this area of law: opinions are inadmissible when supported “only by the ipse dixit of the expert,” and courts may exclude opinions for which “there is simply too great an analytical gap between the data and the opinion proffered.” 522 U.S. 136 (1997). Joiner’s call to assess an expert’s factual basis and reasoning was incorporated into the text of Rule 702 itself via the 2000 amendments. Regrettably though, some courts have continued to ignore gaps in an expert’s reasoning, quoting Daubert and other pre-Joiner precedent for the proposition that a court should leave disputes over such fact-based issues for a jury to decide — the very argument that Joiner rejected.

Continue reading “Eleventh Circuit Affirms Exclusion of Expert Opinion Based on Unjustified Analogy”

Litigators! Substantive amendments have been proposed to Federal Rule of Evidence 702. The public comment period closes February 16.

Rule 702 was last amended substantively in 2000, soon after the concluding chapter in the Daubert trilogy, Kumho Tire. Those amendments were intended to reset the Rule based on the post-Daubert experience.

Lower courts had read snippets of language in Daubert through variable lenses, influenced by their level of enthusiasm or reluctance to keep flawed expert opinions from the jury. Though Daubert mandated rigorous gatekeeping, it also included Delphic comments about the “liberal thrust” of the federal rules (compared to the “rigid’ and “austere” Frye rule they replaced) and about the ability of the adversarial process to limit the impact of “shaky but admissible” evidence. Some courts misread these comments to limit the scope and depth of their gatekeeping obligation and adopted standards consistent with this vision.

Continue reading “The Rule 702 Toolbox: Proposed Amendments Seek to Reset the Application of FRE 702”

While we all rely on Google or other internet search engines to find and absorb information quickly these days, a recent decision in the Central District of Illinois highlights the problems for expert witnesses relying on internet research as a methodology. See Sherman v. BNSF Railway Co., Case No. 1:17-cv-01192, 2022 WL 138630 (C.D. Ill. Jan. 14, 2022). While Googling is likely a practice that many experts may engage in (though may be loathe to admit it), Google searching alone is a suspect methodology upon which to base expert opinions.

In Sherman, Plaintiff sued Defendant BNSF Railway Co. (BNSF) pursuant to the Federal Employers’ Liability Act, alleging that during her employment with BNSF, she was exposed to toxic substances and carcinogens, including asbestos, that caused her to develop rectal cancer.

Continue reading “Let Me Google That for You: A Recent Central District of Illinois Opinion Highlights the Limits of Googling by Expert Witnesses Under Rule 702 and Daubert”