When the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals in 1993, creating a new “reliability” test for the admissibility of expert testimony in federal court, interested parties vigorously debated whether Daubert was a lax rule that would favor the admissibility of expert testimony, or a strict rule that would lead to the exclusion of a great deal of previously admissible expert evidence.  I thought the latter (and said so in the Wall Street Journal a few days after the opinion came out), but acknowledged that there was language in the opinion that could support the “lax rule” side.

And indeed, federal courts quickly divided on this issue, sometimes within the same circuit.  Courts adopting the lax view of Daubert held (1) that Daubert allowed in any testimony purporting to rely on a valid methodology, regardless of whether the methodology was used correctly or even coherently in the case at bar, because how the methodology is used is left for cross-examination; (2) that appellate review should be stricter when a plaintiffs’ evidence is excluded than when it is admitted; and (3) that Daubert only applied to expert scientific testimony, and not to non-scientific testimony.

The Supreme Court shot down each of those arguments in Joiner v. General Electric Co. and Kumho Tire v. Carmichael.  To the extent those opinions left some wiggle room by suggesting that stringent scrutiny of expert testimony by district courts was merely allowed rather than mandated,that wiggle room was eliminated by the 2000 amendments to Rule 702 of the Federal Rules of Evidence, which now provides:

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:

(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;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 702 should have settled the debate over Daubert, as this rule for the admissibility of expert testimony is far stricter than any rule that existed  in any jurisdiction in the United States before Daubert came out.  Nevertheless, as I’ve documented previously on this blog, and in more detail in a recent Notre Dame Law Review article, the stringent scrutiny required by Rule 702 has been consistently evaded by various federal courts that simply ignore the language of Rule 702, and often ignore Joiner and Kumho Tire.  These courts instead tend to cite Daubert itself, as if that was the last word on the subject, and circuit precedents suggesting liberal review of expert testimony, sometimes going so far as to rely on precedents from before Daubert, much less amended Rule 702.

Two recent examples stand out.  First, consider Johnson v. Mead Johnson, decided by the Eighth Circuit in June.  You know you’re in trouble when a court begins its admissibility discussion by claiming that “Daubert and Rule 702 thus greatly liberalized what had been the strict Frye standards  for admission of expert scientific testimony.” The court , indeed, uses variations of the word liberal to describe admissibility standards four different times. You then search in vain for any acknowledgement that Rule 702 was amended seven years after Daubert, or any citation to the language of the rule, which, after all, is the governing statute.  You can’t even find a citation to Joiner, which made it clear as day that Daubert is not a “liberal” opinion. The court then proceeds to make a mockery of the standard of review it’s supposed to be applying to the district court’s exclusion of the evidence in question, “abuse of discretion,” by paying it lip service and then suggesting, as courts did right after Daubert but before Joiner shot it down, that opinions that exclude plaintiffs’ evidence get  less deference because they conflict with Daubert’s “liberal thrust.” The court writes, “Interestingly, the liberalization of the standard for admission of expert testimony creates an intriguing juxtaposition with our oft-repeated abuse-of-discretion standard of review. While we adhere to this discretionary standard for review of the district court’s Rule 702 gatekeeping decision, cases are legion that, correctly, under Daubert, call for the liberal admission of expert testimony.” 

In May 2014, meanwhile, the Ninth Circuit decided City of Pomona v. SQM North America Corporation. This case states the law more accurately, and even quotes the language of Rule 702. But the court never actually addresses Rule 702’s language in its admissibility analysis, seems to apply something more akin to de novo than to abuse of discretion review of the district court’s decision to exclude the plaintiff’s evidence, and, here’s the kicker, claims to be applying “Daubert’s liberal standard.” Repeat after me, Ninth Circuit: Amended Rule 702, not “Daubert,” governs the admissibility of expert testimony, and Rule 702 inaugurated the strictest admissibility standard for expert testimony ever known to American jurisprudence, and cannot by any sensible measure be deemed a “liberal” standard.

It’s natural to be curious about whether these decisions reflect some partisan or ideological bias, but three of the judges involved are Republicans (one appointed by President Clinton as part of a legislative deal), and three are Democrats. As the title of this post suggests, my main reaction when reading these cases, especially Johnson, was to feel like I had fallen into a time warp and landed in the mid-1990s, when a court could still claim with a straight face that “Daubert” dictated forgiving standards for the admissibility of expert testimony.

And how about the briefs? The defense brief  may have been a problem in City of Pomona. Not only did the defendants fail to cite the language of amended Rule 702, much less rely on it, they asserted that “the applicable legal rule for deciding a Daubert motion is found in the eponymous Supreme Court decision which construes FRE 702.” If the defendants were even aware that Rule 702 had been amended in the interim, and therefore Daubert could not possibly be construing the current, binding rule, it’s not apparent from the brief.  (I take it that the lawyers were following the lead of the district court, which ruled in their favor.)

A quick perusal of Mead Johnson’s brief, however, shows that not only did its lawyers quote the language of Rule 702, the brief specifically analyzed admissibility through the language of the rule, step by step.  So while the Ninth Circuit’s opinion may be attributable to the defendants’ themselves pushing an incorrect legal standard, the Eighth Circuit’s opinion therefore seems like a willful refusal to be governed by the relevant statute, Rule 702.