Category: Expert Admissibility

The Rule 702 Toolbox: Proposed Amendments Seek to Reset the Application of FRE 702

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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.

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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

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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.

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The Rule 702 Toolbox: Cherry-Picking Is a Recipe for Exclusion

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Most courts (but certainly, and unfortunately, not all of them) recognize that cherry-picking is a cardinal sin under Rule 702.  Science generally requires a rigorous and conservative approach to evaluating cause-and-effect relationships.  This schema inherently clashes with litigation, an arena where parties prioritize results over neutral principles of process purity.

“Cherry-picking” involves the selective consideration of facts and data to support a desired or pre-determined result, rather than the analysis of all relevant facts and data to find a scientific truth (or determine that the truth remains elusive based on the available facts and data).  It evades the scrupulous adherence to principles of objectivity, rigor, and process validity that are the hallmark of the scientific method.  In Daubert-speak, such a methodology does not produce “scientific knowledge.”  Rather, cherry-picking represents a failure of methodology that cannot be waived off as a matter of weight rather than admissibility.

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Northern District of Illinois Excludes Engineering Expert’s Testimony and Grants Partial Summary Judgment, Fulfilling its Responsibility as Gatekeeper

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For over two decades, dating back to Daubert and the ensuing amendments to Rule 702, federal district courts have been charged to act “as gatekeepers to exclude unreliable expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. However, some courts have not embraced that role, letting jurors weigh questions about an expert’s qualifications or methodology as though they go to credibility rather than admissibility. Indeed, the Advisory Committee on Evidence Rules proposed an amendment to Rule 702 to address the “pervasive problem” of courts holding that issues of admissibility are questions “of weight for the jury.” See, Sardis v. Overhead Door Corp., 10 F.4th 268, 282-84 (4th Cir. 2021). (quoting Advisory Comm. on Evidence Rules, Agenda for Committee Meeting (Apr. 30, 2021)).

A recent decision out of the Northern District of Illinois, however, provides an excellent example of a court discharging its duty to preclude inadmissible expert opinions. The Plaintiff in Pessman v. Trek Bicycle Corporation, 2021 WL 5769530 (N.D. Ill. Dec. 6, 2021) was injured in a bicycle accident. Plaintiff’s engineering expert opined that the cause of the accident was a crack in the carbon fiber frame of Plaintiff’s Trek bicycle attributable to a design defect. The engineer claimed that carbon fiber frames are prone to cracking and that the crack was mistaken for simple paint chipping by a dealer who had inspected the bicycle several days before the accident, allegedly due to Trek’s failure to train the dealer properly.

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Seventh Circuit Holds that State Court Limit on Medical Expert Testimony Does Not Apply to FTCA Claim in Federal Court

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Although product liability actions are governed by state tort law, they frequently find their way into federal court on diversity jurisdiction. In such actions, federal law provides the procedural rules and state law provides the rule of decision. Although the distinction between procedure and substance is often clear, it can sometimes be nuanced and unintuitive; for example, statutes of limitations are typically viewed as procedural, whereas statutes of repose are viewed as substantive. In Love v. United States, — F.4th — (7th Cir. 2021), 2021 WL 5119342, the Seventh Circuit Court of Appeals provides another such illustration of this nuanced distinction and further guidance on the subject in the context of the admissibility of expert opinions.

The Plaintiff in Love brought suit under the Federal Tort Claims Act (FTCA), alleging that a nurse employed by the Veterans Administration negligently failed to order additional tests after receiving the results of a urinalysis. Plaintiff alleged that the lack of testing allowed an infection to go undiagnosed and untreated, leading to a heart attack and extended hospitalization.

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Treating Physician’s Informed Consent Process and Decision-Making in Device Selection Lead to Partial Summary Judgment for Device Manufacturer

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A series of recent rulings out of the Southern District of Texas in an inferior vena cava (IVC) filter case reflect how well-planned discovery can lead to a successful multipronged summary judgment motion and can effectively prune a plaintiff’s ambitious product defect claims. Conn v. C.R. Bard, Inc., No. 4:14-CV-298.

In 2006, plaintiff’s physicians discovered a blood clot in his inferior vena cava. An IVC filter was inserted to prevent the blood clot from causing potentially fatal further injury. Because of plaintiff’s young age, the physician chose a removable filter. Plaintiff reported abdominal pain just four days after the IVC filter was placed. The blood clot was found to have moved and extended through and above the recently placed filter, and the physicians initiated anticoagulant therapy.

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