Amicus Curiae Brief — 3M Company, et al., Petitioners v. George Amador
Supreme Court briefMar 9, 2022
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No. 21-1100
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------3M COMPANY; ARIZANT HEALTHCARE, INC.,
Petitioners,
v.
GEORGE AMADOR,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
---------------------------------♦--------------------------------BRIEF OF LAWYERS FOR CIVIL JUSTICE AS
AMICUS CURIAE IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------MARY MASSARON
Counsel of Record
PLUNKETT COONEY
38505 Woodward Ave., Suite 100
Bloomfield Hills, MI 48304
(313) 983-4801
mmassaron@plunkettcooney.com
ALEXANDER DAHL
General Counsel
LAWYERS FOR CIVIL JUSTICE
1530 Wilson Blvd., Suite 1030
Arlington, VA 22209
(202) 429-0045
alex@strategicpolicycounsel.com
LEE MICKUS
EVANS FEARS &
SCHUTTERT LLP
3200 Cherry Creek Dr.
South, Suite 380
Denver, CO 80209
(303) 656-2199
lmickus@efstriallaw.com
Counsel for Amicus Curiae
March 9, 2022
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF THE AMICUS CURIAE .............
1
SUMMARY OF ARGUMENT ..............................
3
ARGUMENT ........................................................
6
I.
REVIEW IS NEEDED BECAUSE THE
EIGHTH CIRCUIT’S LAX STANDARD
FOR DECIDING WHETHER EXPERT
TESTIMONY SHOULD BE ADMITTED
CONFLICTS WITH RULE 702’S EXPLICIT RELIABILITY REQUIREMENTS
AND EXEMPLIFIES A WIDESPREAD
PROBLEM ...................................................
6
A. The Eighth Circuit’s “so fundamentally unsupported as to be unhelpful”
standard for exclusion applies a less
rigorous gatekeeping analysis than
Rule 702 directs ...................................
6
B. The Eighth Circuit’s standard permitting opinion testimony unless it is “so
fundamentally unsupported as to be
unhelpful” actively influences courts
within and outside the Eighth Circuit
to disregard Rule 702 and the applicable preponderance of proof test ........... 11
C. The Eighth Circuit’s overly permissive standard has parallels in the lax
assessments used in some other Circuits ..................................................... 13
ii
TABLE OF CONTENTS – Continued
Page
II.
DISREGARDING RULE 702 IN FAVOR OF
SUBSTANTIVELY DIFFERENT STANDARDS IS A RECOGNIZED PROBLEM,
ESPECIALLY IN THE MDL CONTEXT,
THAT CRIES OUT FOR THE COURT’S
ATTENTION ............................................... 17
A. Erroneous deviations from Rule 702
and the preponderance of proof standard have become a concern .................. 17
B. Court guidance would complement the
proposed amendment by focusing on
the rule as the source of authority, rather than legacy case rulings that depart from its directives ........................ 22
C. The MDL context of the Eighth Circuit’s decision presents particularly
compelling circumstances for ensuring
that courts apply Rule 702 and not a
local deviation ..................................... 23
CONCLUSION..................................................... 26
iii
TABLE OF AUTHORITIES
Page
CASES
Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc.,
125 F.3d 1176 (8th Cir. 1997) ................................ 8, 9
Beebe v. Colorado,
No. 18-cv-01357-CMA-KMT,
2019 WL 6044742 (D. Colo. Nov. 15, 2019) .............12
Bourjaily v. United States,
483 U.S. 171 (1987) ...................................................7
Campbell v. City of New York,
No. 16-cv-8719 (AJN), 2021 WL 826899
(S.D.N.Y. Mar. 4, 2021) ............................................15
Cates v. Trustees of Columbia Univ.,
16 Civ. 6524 (GBD)(SDA), 2020 WL 1528124
(S.D.N.Y. Mar. 30, 2020) ..........................................15
City of Pomona v. SQM N. Am. Corp.,
750 F.3d 1036 (9th Cir. 2014) ..................................17
Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993) ......................................... passim
Electra v. 59 Murray Enterp., Inc.,
987 F.3d 233 (2d Cir. 2021) .....................................15
First Union Nat. Bank v. Benham,
423 F.3d 855 (8th Cir. 2005) ....................................12
Gen. Elec. Co v. Joiner,
522 U.S. 136 (1997) .................................................12
Hardeman v. Monsanto Co.,
997 F.3d 941 (9th Cir. 2021) .............................. 14, 25
iv
TABLE OF AUTHORITIES – Continued
Page
Hose v. Chicago Nw. Trans. Co.,
70 F.3d 968 (8th Cir. 1995) .................................. 9, 10
In re Bair Hugger Forced Air Warming Devices
Prods. Liab. Litig.,
9 F.4th 768 (8th Cir. 2021) ................................ 19, 20
In re C.R. Bard, Inc., Pelvic Repair Sys.
Prods. Liab. Litig.,
MDL No. 2187, 2018 WL 513975
(S.D.W.Va. Jan. 23, 2018) ........................................12
In re E. I. du Pont de Nemours & Co. C-8 Pers.
Inj. Litig., No. 2:18-CV-00136, 2019 WL
6894069 (S.D. Ohio Dec. 18, 2019) ..........................14
In re Roundup Prod. Liab. Litig.,
358 F. Supp. 3d 956 (N.D. Cal. 2019) ................ 14, 25
In re SemCrude L.P.,
648 F. App’x 205 (3d Cir. 2016) ...............................13
In re Whirlpool Corp. Front-Loading Washer
Prod. Liab. Litig.,
45 F. Supp. 3d 724 (N.D. Ohio 2014) .......................15
In re Mirena IUS Levonorgestrel-Related Prods.
Liab. Litig.,
982 F.3d 113 (2d Cir. 2020) .....................................17
Jahn v. Equine Services, PSC,
233 F.3d 382 (6th Cir. 2000) ....................................15
Jaunich v. State Farm Life Ins. Co.,
___ F. Supp. 3d ___, No. CV 20-1567
(PAM/JFD), 2021 WL 5054461
(D. Minn. Nov. 1, 2021) ............................................11
v
TABLE OF AUTHORITIES – Continued
Page
Kenney v. Watts Regulator Co.,
517 F. Supp. 3d 565 (E.D. Pa. 2021)........................13
Knecht v. Jakks Pac., Inc.,
No. 4:17-CV-2267, 2021 WL 3722854
(M.D. Pa. Aug. 23, 2021) ..........................................13
Leus v. C.R. Bard, Inc.,
No. 4:13-cv-00585-NKL, 2021 WL 4313607
(W.D. Mo. Sept. 22, 2021) ........................................12
Loudermill v. Dow Chem. Co.,
863 F.2d 566 (8th Cir. 1988) ...................... 8, 9, 10, 12
Matzkow v. United N.Y. Sandy Hook Pilots Assoc.,
18-CV-2200 (RER), 2022 WL 79725
(S.D.N.Y. Jan. 7, 2022) .............................................11
Messick v. Novartis Pharms. Corp.,
747 F.3d 1193 (9th Cir. 2014) ..................................14
MPAY Inc. v. Erie Custom Computer Apps., Inc.,
No. 19-704 (PAM/BRT), 2021 WL 3661507
(D. Minn. Aug. 18, 2021).................................... 19, 20
Pineda v. Ford Motor Co.,
520 F.3d 237 (3d Cir. 2008) ............................... 13, 14
S&H Farm Supply, Inc. v. Bad Boy, Inc.,
25 F.4th 541 (8th Cir. 2022) ....................................20
Senior Hous. Managers, LLC v. Highway 2
Dev., LLC,
No. 4:18-CV-3167, 2021 WL 2652454
(D. Neb. June 28, 2021) ...........................................11
Torkie-Tork v. Wyeth,
739 F. Supp. 2d 895 (E.D.Va. 2010) ........................24
vi
TABLE OF AUTHORITIES – Continued
Page
United States v. Coutentos,
651 F.3d 809 (8th Cir. 2011) ....................................10
United States v. Finch,
630 F.3d 1057 (8th Cir. 2011) .......................... 8, 9, 12
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ...............................................3
STATUTES
28 U.S.C. § 2072(a) ........................................................6
28 U.S.C. § 2072(b) .................................................. 6, 10
OTHER AUTHORITIES
Abbe R. Gluck, Unorthodox Civil Procedure:
Modern Multidistrict Litigation’s Place in
the Textbook Understandings of Procedure,
165 U. PENN. L. REV. 1669 (2017) ...........................24
Jonathan J. Koehler, et al., Science, Technology,
or the Expert Witness: What Influences Juror’s
Judgments About Forensic Science Testimony?,
Psychology, Public Policy, and Law, Vol. 22, No.
4 (2016) ....................................................................16
Thomas D. Schroeder, Toward a More Apparent
Approach to Considering the Admission of Expert Testimony, 95 NOTRE DAME L. REV. 2039
(2020) ......................................................... 7, 8, 14, 16
vii
TABLE OF AUTHORITIES – Continued
Page
REGULATIONS AND RULES
86 Fed. Reg. 41087 ......................................................21
Federal Rule of Evidence 104(a) ...................... 7, 21, 22
Federal Rule of Evidence 702 ............................. passim
Federal Rule of Evidence 702(b) .................. 4, 9, 12, 19
Federal Rule of Evidence 703 .....................................10
Supreme Court Rule 37.2(a).........................................1
1
INTEREST OF THE AMICUS CURIAE
Lawyers for Civil Justice (LCJ)1 is a national coalition of defense trial lawyer organizations, law firms,
and corporations2 that promotes excellence and fairness in the civil justice system to secure the just,
speedy, and inexpensive determination of civil cases.
For over 30 years, LCJ has advocated for procedural
reforms that (1) promote balance in the civil justice
system; (2) reduce the costs and burdens associated
with litigation; and (3) advance predictability and efficiency in litigation. Working through the Rules Enabling Act process, LCJ often urges proposals to reform
aspects of the Federal Rules of Civil Procedure and
Federal Rules of Evidence.
LCJ has specific expertise on the meaning, history,
and application of Federal Rule of Evidence 702, drawing on its own efforts during the rulemaking process
and the collective experience of its members who are
1
Petitioners’ and Respondent’s counsel of record were provided timely notice in accordance with Supreme Court Rule
37.2(a), and have consented to the filing of this brief. Under Supreme Court Rule 37.6, amicus curiae LCJ certifies that no counsel for a party authored this brief in whole or in part and that no
person or entity, other than amicus, its members, or its counsel,
has made a monetary contribution to the preparation or submission of this brief. LCJ further certifies that neither Petitioners 3M
Company and Arizant Healthcare, Inc., nor their counsel participated in writing or submitting this brief. Further, Petitioners and
their counsel did not submit any monetary contribution to the
preparation or submission of this brief.
2
LCJ’s membership is listed in its Annual Report, available
at https://www.lfcj.com/uploads/1/1/2/0/112061707/final_lcj_annual_
report_2020_-_july_13_2021.pdf.
2
involved in litigation in the federal courts. LCJ has
submitted several extensive comments including
original research to the Judicial Conference Advisory
Committee on Evidence Rules.3 LCJ’s analysis reveals
widespread misunderstanding of Rule 702’s requirements and purposeful shifting of the expert admissibility standard away from the test set forth in Rule
702. LCJ has also filed an amicus brief with the Court
in support of the petitioner in Monsanto Co. v. Hardeman, Case No. 21-241. In that case, LCJ also addressed
deviations from Rule 702 in the lower courts and inconsistencies that have arisen when courts admit expert testimony based on court-created policy rather
than following the language of Rule 702.
LCJ and its members have an interest in ensuring
that the Federal Rules of Evidence be correctly and
consistently interpreted, particularly Rule 702’s preponderance of evidence test and enumerated admissibility
criteria. That standard, not variations that modify or
3
E.g., Lawyers for Civil Justice, Clarity and Emphasis: The
Committee’s Proposed Rule 702 Amendment Would Provide
Much-Needed Guidance About the Proper Standards for Admissibility of Expert Evidence and the Reliable Application of an Expert’s Basis and Methodology, Comment to Advisory Committee
on Evidence Rules (Sept. 1, 2021); https://www.regulations.gov/
comment/USC-RULES-EV-2021-0005-0007; Why Loudermill Speaks
Louder than the Rule: A “DNA” Analysis of Rule 702 Case Law
Shows that Courts Continue to Rely on Pre-Daubert Standards
Without Understanding that the 2000 Amendment Changed the
Law, Comment to the Advisory Committee of Rules of Evidence
and Rule 702 Subcommittee (Oct. 20, 2020); https://www.
uscourts.gov/sites/default/files/20-ev-y_suggestion_from_lawyers_
for_civil_justice_-_rule_702_0.pdf.
3
remove elements or alter the explicit admissibility requirements, reflects the result of the Rules Enabling
Act’s rulemaking process and is the governing law.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The Court should grant certiorari to address the
Eighth Circuit’s application of a gatekeeping standard
that differs from Federal Rule of Evidence 702. This
rule, and not any other source of law, provides the
test that district courts must use to assess whether a
proffered expert’s opinions are admissible. See Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 231617 (2016) (identifying Rule 702 as establishing the criteria under which “an expert may testify”). Review is
needed because the Eighth Circuit has set aside Rule
702’s requirements in favor of a less rigorous assessment that allows admission of opinion testimony without need to prove that the evidence satisfies Rule 702
by a preponderance of evidence. In this case, application of the excessively permissive Eighth Circuit standard caused unjustified reversal of the district court’s
ruling excluding improper expert testimony.
Review is also justified because the Eighth Circuit’s erroneous departure from Rule 702 has influenced lower courts across the country. Additionally,
some courts in other Circuits have taken a parallel
approach to what the Eighth Circuit has done and developed alternative standards that explicitly prefer admission of opinion testimony as an outcome rather
4
than conducting an unbiased assessment of whether
the preponderance of the evidence criteria has been
satisfied. Despite Rule 702’s overarching authority,
courts often apply gatekeeping approaches that are
less demanding than the “preponderance of the evidence” test and even overlook substantive admissibility considerations required by Rule 702.
Gatekeeping practices that conflict with Rule 702,
as were applied here, have become a widespread, recognized problem. The Judicial Conference Advisory
Committee on Evidence Rules reported that it “has determined that in a fair number of cases, the courts
have found expert testimony admissible even though
the proponent has not satisfied the Rule 702 (b) and (d)
requirements by a preponderance of the evidence.”4 On
the strength of this finding, it has proposed an amendment that would add the preponderance of the evidence test into the rule’s text to clarify that courts
must apply this test to each of Rule 702’s considerations. The Court’s guidance on the correct interpretation and application of Rule 702 would buttress these
ongoing rulemaking efforts by giving much-needed
definition to the highly variable gatekeeping analysis
now seen in the lower courts.
Granting 3M’s petition would allow the Court to resolve the lower courts’ misunderstanding and reaffirm
4
Hon. Patrick J. Schiltz, Report of the Advisory Committee
on Evidence Rules (May 15, 2021) at 6, in COMMITTEE ON RULES
OF PRACTICE & PROCEDURE JUNE 2021 AGENDA BOOK 818 (2021),
https://www.uscourts.gov/sites/default/files/2021-06_standing_
agenda_book.pdf.
5
Rule 702 as the primary authority that governs gatekeeping. The rulemaking process will not affect the
widespread reliance on prior decisions in preference to
Rule 702 itself occurring now across the district courts.
This practice produces inconsistent and often inadequate scrutiny of expert testimony. The Eighth Circuit’s use of a unique local standard as the basis for
overturning an exclusion of opinion testimony in the
context of a multidistrict litigation proceeding underscores the need for a national standard that yields
uniform results across circuit boundaries. The Court
should grant certiorari to clarify that courts err when
they elevate caselaw-derived alternative approaches
above the requirements established by Rule 702 when
evaluating whether expert testimony qualifies for admission.
---------------------------------♦---------------------------------
6
ARGUMENT
I.
REVIEW IS NEEDED BECAUSE THE
EIGHTH CIRCUIT’S LAX STANDARD FOR
DECIDING WHETHER EXPERT TESTIMONY SHOULD BE ADMITTED CONFLICTS WITH RULE 702’S EXPLICIT
RELIABILITY REQUIREMENTS AND EXEMPLIFIES A WIDESPREAD PROBLEM
A. The Eighth Circuit’s “so fundamentally
unsupported as to be unhelpful” standard for exclusion applies a less rigorous gatekeeping analysis than Rule 702
directs
The bedrock authority “governing expert testimony” and establishing criteria for its admissibility is
Federal Rule of Evidence 702. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 588-589 (1993). The Rules
Enabling Act empowers the Court to prescribe “rules
of evidence for cases in the United States district
courts (including proceedings before magistrate judges
thereof ) and courts of appeals.” 28 U.S.C. § 2072(a).
Rule 702 took its present form in 2000 when the Court,
under the Rules Enabling Act, adopted an amendment
developed through the specified rulemaking procedures and transmitted it to Congress. See Order
Amending the Federal Rules of Evidence, 529 U.S.
1189, 1195 (2000). As a rule of evidence adopted under
the Rules Enabling Act, Rule 702 supersedes any other
law: “All laws in conflict with such rules shall be of no
further force or effect after such rules have taken effect.” 28 U.S.C. § 2072(b). Thus, “the elements of Rule
7
702, not the caselaw, are the starting point for the requirements of admissibility.”5
Rule 702 enumerates several requirements that
courts must find established before admitting expert
opinions into evidence: helpfulness to the trier of fact,
sufficient factual basis, use of reliable principles and
methods, and reliable application of the methodology
to the facts of the case. Whether an expert’s testimony
meets Rule 702’s admission criteria is a question for
the court to determine in accordance with Rule 104(a).
See Daubert, 509 U.S. at 592 (“Faced with a proffer of
expert scientific testimony, then, the trial judge must
determine [compliance with Rule 702] at the outset,
pursuant to Rule 104(a)”). In doing so, the court must
apply the preponderance of proof standard to each
Rule 702 element.6 Thus, the rules of evidence establish both the inquiries courts must make and the
standard courts must apply to evaluate whether opinion testimony meets the conditions for admission.
5
Thomas D. Schroeder, Toward a More Apparent Approach
to Considering the Admission of Expert Testimony, 95 NOTRE
DAME L. REV. 2039, 2060 (2020).
6
Daubert, 509 U.S. at 592 n.10 (“These matters should be
established by a preponderance of proof.”) (citing Bourjaily v.
United States, 483 U.S. 171, 175-176 (1987)). See also Advisory
Committee Note to Fed.R.Evid. 702, 2000 Amendments (“the admissibility of all expert testimony is governed by the principles of
Rule 104(a). Under that Rule, the proponent has the burden of
establishing that the pertinent admissibility requirements are
met by a preponderance of the evidence.”) (citing Bourjaily, 483
U.S. 171).
8
When courts take their gatekeeping guidance
from prior cases, rather than Rule 702, they often act
on misdirection because “some trial and appellate
courts misstate and muddle the admissibility standard[.]”7 The Eighth Circuit’s ruling fell into this trap:
the court applied a highly permissive admissibility test
taken from Eighth Circuit decisions pre-dating current
Rule 702 that excludes opinion testimony only “if it is
‘so fundamentally unsupported’ by its factual basis
‘that it can offer no assistance to the jury.’ ” Pet. App.
12.8 This incorrect formulation became the linchpin,
7
Schroeder, supra n.5, at 2039 (emphasis original). Information received by the Advisory Committee on Evidence Rules
shows that courts’ misunderstanding of their gatekeeping role
has become widespread:
The Reporter’s research – as well as research provided
by a number of parties who had submitted comments
to the Committee – reveals a number of federal cases
in which judges did not apply the preponderance standard of admissibility to the requirements of sufficiency
of basis and reliable application of principles and
methods, instead holding that such issues were ones
of weight for the jury.
Minutes – Advisory Committee on Evidence Rules (Nov. 13, 2020)
at 3, in ADVISORY COMMITTEE ON EVIDENCE RULES APRIL 2021
AGENDA BOOK 15 (2021), https://www.uscourts.gov/sites/default/
files/advisory_committee_on_evidence_rules_-_agenda_book_
spring_2021_0.pdf.
8
This passage of the Eighth Circuit’s opinion identifies
United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) and
Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)
as sources for its admissibility test. Pet. App. 12. The Finch ruling
presents the standard as a quotation from Arkwright Mut. Ins.
Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1183 (8th Cir. 1997):
“Only if an expert’s opinion is so fundamentally unsupported that
it can offer no assistance to the jury must such testimony be
9
because the court relied on this outdated caselaw, rather than Rule 702, as the basis for reversing the district court’s exclusion of the opinion testimony. Pet.
App. 33-34.
With its focus on the expert’s factual foundation,
the Eighth Circuit’s “so fundamentally unsupported”
standard also undermines Rule 702’s substantive considerations by allowing admission even when the court
has not found all the rule’s requirements satisfied. Rather than applying Rule 702(b)’s mandate that courts
determine whether opinion testimony “is based on sufficient facts or data,” the Eighth Circuit’s approach
places this assessment outside the scope of gatekeeping unless an extreme foundational deficiency exists:
excluding an expert’s opinion for being fundamentally unsupported is an exception to the
general rule that gaps in an expert witness’s
knowledge go to weight, not admissibility.
excluded.” Finch, 630 F.3d at 1062. The Arkwright opinion, however, quoted that same language from an even earlier decision,
Hose v. Chicago Nw. Trans. Co., 70 F.3d 968, 974 (8th Cir. 1995).
Arkwright Mut. Ins., 125 F.3d at 1183. The Hose opinion adds the
word “only” to a phrase that had appeared in the pre-Daubert
Loudermill decision to describe a reason for excluding the expert
testimony, thereby completely shifting its meaning to articulate
a highly permissive test for deciding admissibility. Hose, 70 F.3d
at 974. Thus, when the Eighth Circuit references Finch and
Loudermill as authority for its permissive “so fundamentally unsupported” test, Pet. App. 12, it embraces a pre-Rule 702 conception of expert admissibility that has stretched through several
generations of decisions, but overlooks the fact that between those
decisions the formulation flipped in perspective.
10
Pet. App. 13 (quotation omitted). This “general rule” exempting the expert’s factual basis from the admissibility analysis carries forward this misconception of
gatekeeping stemming from pre-Rule 702 caselaw.9
The Advisory Committee on Evidence Rules intended the amendment of Rule 702 adopted in 2000 to
put in place “a more rigorous and structured approach
than some courts are currently employing.”10 Under
the Rules Enabling Act, once Rule 702 became effective
it displaced conflicting authority. 28 U.S.C. § 2072(b).
Yet the Eighth Circuit’s gatekeeping analysis follows
outdated caselaw rather than Rule 702. 3M’s petition
therefore presents a compelling opportunity to clarify
the gatekeeping framework courts must apply and
9
Compare United States v. Coutentos, 651 F.3d 809, 820 (8th
Cir. 2011) (cited by Eighth Circuit decision, Pet. App. 12) (“As a
general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility. . . . Only if the
expert’s opinion is so fundamentally unsupported that it can offer
no assistance to the jury must such testimony be excluded.”) (quotation omitted) with Hose, 70 F.3d at 974 (“ ‘As a general rule, 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.’
Only if an expert’s opinion is ‘so fundamentally unsupported that
it can offer no assistance to the jury’ must such testimony be
excluded.”) (quoting Loudermill, 863 F.2d at 570) (citation to
Fed.R.Evid. 703 omitted).
10
Hon. Fern M. Smith, Report of the Advisory Committee
on Evidence Rules (May 1, 1999) at 7, in ADVISORY COMMITTEE ON
EVIDENCE RULES OCTOBER 1999 AGENDA BOOK 52 (1999),
https://www.uscourts.gov/rules-policies/archives/agenda-books/
advisory-committee-rules-evidence-october-1999.
11
identify formulations inconsistent with Rule 702 and
that amount to error.
B. The Eighth Circuit’s standard permitting opinion testimony unless it is “so
fundamentally unsupported as to be
unhelpful” influences courts within
and outside the Eighth Circuit to disregard Rule 702 and the applicable preponderance of proof test
The permissive “so fundamentally unsupported”
test has substantially affected district court gatekeeping practices. Within the Eighth Circuit, district courts
routinely decide whether to admit opinion testimony
using this gauge.11 Although no other Circuit has
adopted the “so fundamentally unsupported” standard,
district courts outside the Eighth Circuit often use
this test, rather than the preponderance of proof assessment, to decide admissibility.12 Further, while the
11
See, e.g., Jaunich v. State Farm Life Ins. Co., ___ F. Supp.
3d ___, ___, No. CV 20-1567 (PAM/JFD), 2021 WL 5054461, at *3*4 (D. Minn. Nov. 1, 2021) (denying motion to exclude after declaring “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility,” and describing the
gatekeeping standard as “[t]he Court should exclude an expert
witness only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury.”) (quotation omitted); Senior Hous. Managers, LLC v. Highway 2 Dev., LLC, No.
4:18-CV-3167, 2021 WL 2652454, at *2 (D. Neb. June 28, 2021)
(similar statement).
12
See, e.g., Matzkow v. United N.Y. Sandy Hook Pilots Assoc.,
18-CV-2200 (RER), 2022 WL 79725, at *9-*10 (S.D.N.Y. Jan. 7,
2022) (“Martucci’s testimony is not so fundamentally unsupported
12
Eighth Circuit’s opinion suggests the “so fundamentally unsupported” test can be seen as a re-articulation
of the “analytical gap” basis for excluding opinion testimony described in Gen. Elec. Co v. Joiner, 522 U.S.
136, 146 (1997),13 in practice district courts apply it to
replace both Rule 702(b) and the preponderance of evidence standard in determining admissibility. See Leus
v. C.R. Bard, Inc., No. 4:13-cv-00585-NKL, 2021 WL
4313607, at *5 (W.D. Mo. Sept. 22, 2021) (“[T]he concessions Leus highlights . . . do not render his opinion so
fundamentally unsupported that it could provide no
assistance to the jury.”); In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2018 WL
that it offers no possible assistance to the jury.”); Beebe v. Colorado, No. 18-cv-01357-CMA-KMT, 2019 WL 6044742, at *7 (D.
Colo. Nov. 15, 2019) (“A review of the facts and data subject to
Plaintiff ’s latter challenges does not reveal that Mr. Page’s opinions are ‘so fundamentally unsupported’ that his opinions would
be unhelpful.”) (quoting First Union Nat. Bank v. Benham, 423
F.3d 855, 862 (8th Cir. 2005)); In re C.R. Bard, Inc., Pelvic Repair
Sys. Prods. Liab. Litig., MDL No. 2187, 2018 WL 513975, at *3
(S.D.W.Va. Jan. 23, 2018) (“nothing in the record permits the inference that Dr. Reitman’s opinions are so fundamentally unsupported that they cannot assist the fact-finder.”).
13
Pet. App. 12:
a district court may exclude expert testimony if it finds
“that there is simply too great an analytical gap between the data and the opinion proffered,” Joiner, 522
U.S. at 146, 118 S.Ct. 512. Or, to put it in the language
we have frequently used both before and after Daubert
and Joiner, a district court may exclude an expert’s
opinion if it is “so fundamentally unsupported” by its
factual basis “that it can offer no assistance to the
jury.” (citing Loudermill, 863 F.2d at 570; Finch, 630
F.3d at 1062.
13
513975, at *4 (S.D.W.Va. Jan. 23, 2018) (“the plaintiffs
have failed to demonstrate that Dr. Reitman’s opinions
are so fundamentally unsupported that they cannot
assist the fact-finder.”).
C. The Eighth Circuit’s overly permissive
standard has parallels in the lax assessments used in some other Circuits
In addition to the “so fundamentally unsupported”
test, courts employ other admissibility standards that
depart from the analysis directed by Rule 702 and its
preponderance of proof assessment. Based on a belief
that the rule holds an unstated policy preference for
admission over exclusion of opinion testimony, some
courts bend the gatekeeping assessment to achieve
that result. The Third Circuit has declared that the
“Rules of Evidence embody a strong preference for admitting any evidence that may assist the trier of fact,”
and that Rule 702 in particular “has a liberal policy of
admissibility.” In re SemCrude L.P., 648 F. App’x 205,
213 (3d Cir. 2016). District courts have acted on this
direction to evaluate admissibility with a focus on the
result, rather than the Rule 702 criteria. See Kenney v.
Watts Regulator Co., 517 F. Supp. 3d 565, 581 (E.D. Pa.
2021) (“Cognizant of our Court of Appeals’ ‘strong preference for admitting any evidence that may assist the
trier of fact’ and Rule 702’s ‘liberal policy of admissibility,’ we find the testimony of Engineer Clauser admissible.”) (quoting Pineda v. Ford Motor Co., 520 F.3d 237,
243 (3d Cir. 2008)); Knecht v. Jakks Pac., Inc., No. 4:17CV-2267, 2021 WL 3722854, at *6 (M.D. Pa. Aug. 23,
14
2021) (“given Rule 702’s ‘liberal policy of admissibility,’
we will admit Dr. Pope’s testimony as fit for this case.”)
(quoting Pineda, 520 F.3d at 244).
Similarly, the Ninth Circuit applies its own unique
standard derived from a policy preference it attributes
to the Daubert holding: “Rule 702 should be applied
with a ‘liberal thrust’ favoring admission[.]” Messick v.
Novartis Pharms. Corp., 747 F.3d 1193, 1196 (9th Cir.
2014) (quoting Daubert, 509 U.S. at 588).14 Elevating
this characterization over the content of Rule 702, the
Ninth Circuit re-casts the admissibility standard to
give a “slight deference to experts” with “borderline
opinions[.]” Hardeman v. Monsanto Co., 997 F.3d 941,
962 (9th Cir. 2021) (quotation omitted). District courts
understand that this approach tilts the standard to favor admission and leads to rulings “more tolerant of
borderline expert opinions” such that “a wider range of
expert opinions (arguably much wider) will be admissible in this circuit.” In re Roundup Prod. Liab. Litig.,
358 F. Supp. 3d 956, 959-960 (N.D. Cal. 2019).
As in the Ninth Circuit, some district courts in the
Sixth Circuit use the “liberal thrust” notion to guide
their gatekeeping. See, e.g., In re E. I. du Pont de
Nemours & Co. C-8 Pers. Inj. Litig., No. 2:18-CV-00136,
2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019)
14
Judge Schroeder warns against overreliance on Daubert’s
“liberal thrust” statement given Rule 702’s status as the governing authority: “statements as to the ‘liberal thrust’ of Rule 702
and ‘flexible’ standard trial judges should apply must be contextualized. Expansion of the gatekeeper inquiry is necessarily cabined by the elements of Rule 702.” Schroeder, supra n.5, at 2060.
15
(observing Sixth Circuit’s emphasis on “liberal thrust”
statement in Jahn v. Equine Services, PSC, 233 F.3d
382, 388 (6th Cir. 2000) and evaluating objections with
the overlay that “[a]ny doubts regarding the admissibility of an expert’s testimony should be resolved in favor of admissibility.”); In re Whirlpool Corp. FrontLoading Washer Prod. Liab. Litig., 45 F. Supp. 3d 724,
757 (N.D. Ohio 2014) (“Given Rule 702’s liberal policy
of admissibility, Bresnahan provides sufficient grounds
for the majority of his assumptions.”).
Even within the Second Circuit, which directs that
gatekeeping involve a “rigorous examination” of the
Rule 702 elements,15 some district courts instead apply
“a presumption that expert testimony is admissible[.]”
Campbell v. City of New York, No. 16-cv-8719 (AJN),
2021 WL 826899, at *2 (S.D.N.Y. Mar. 4, 2021) (quotation omitted); Cates v. Trustees of Columbia Univ., 16
Civ. 6524 (GBD)(SDA), 2020 WL 1528124, at *6 (S.D.N.Y.
Mar. 30, 2020) (same).
The widespread use of watered-down admissibility standards favoring admission warrants this Court’s
attention. There is no provision in Rule 702 specifying
an outcome preference, and there is no room for a
presumption of admissibility in application of the
15
See Electra v. 59 Murray Enterp., Inc., 987 F.3d 233, 254
(2d Cir. 2021) (“To decide whether a step in an expert’s analysis
is unreliable, the district court should undertake a rigorous examination of the facts on which the expert relies, the method by
which the expert draws an opinion from those facts, and how the
expert applies the facts and methods to the case at hand.”) (quotation omitted).
16
preponderance of the evidence standard. When courts
rely on presumptions or depleted standards, they leave
unanswered the actual question posed by Rule 702:
were the experts’ factual bases, methods employed,
and methodological applications all demonstrated to
be sufficient and reliable by a preponderance of the evidence?16
Opinion testimony is likely to mislead the jury
when presented with the patina of scientific expertise,
but without an adequate factual basis or a reliable
methodology reliably applied to the facts of the case.
Rule 702 seeks to prevent that deception from occurring. Psychologists agree that when jurors are presented with complex information beyond their ability
to understand, “they rely more on external cues such
as the expert’s credentials” to evaluate the testimony.
Jonathan J. Koehler, et al., Science, Technology, or the
Expert Witness: What Influences Juror’s Judgments
About Forensic Science Testimony?, Psychology, Public
Policy, and Law, Vol. 22, No. 4, 401-413 (2016). Thus,
when confronted with complex technical information
that they cannot understand, jurors will look to an expert’s credentials or other peripheral cues – such as the
expert’s “likeability” – as the basis for evaluating their
testimony. Accordingly, placing credentialed, but still
unreliable expert testimony before a jury, particularly
in cases involving complex scientific or statistical principles, undermines the jury system and the inherent
fairness that the rules are intended to guarantee.
16
See Schroeder, supra n.5, at 2050 n.90, 2060.
17
The Eighth Circuit’s standard exacerbates this
problem by ignoring the critical requirement that expert testimony be based on reliable methodology reliably applied to the facts. Gatekeeping that departs from
the Rule 702 preponderance of proof test to employ instead an outcome-oriented standard, as the Eighth Circuit did in this case, results in admission of expert
testimony incapable of meeting Rule 702’s requirements. 3M’s petition addresses the systemic need for
clarifying the analytical framework courts should apply and identifying formulations that are inconsistent
with Rule 702 and therefore amount to error.
II.
DISREGARDING RULE 702 IN FAVOR OF
SUBSTANTIVELY DIFFERENT STANDARDS
IS A RECOGNIZED PROBLEM, ESPECIALLY IN THE MDL CONTEXT, THAT
CRIES OUT FOR THE COURT’S ATTENTION
A. Erroneous deviations from Rule 702 and
the preponderance of proof standard
have become a concern
A wide gap has developed between the courts that
disregard Rule 702’s requirements to favor admission
and those that neutrally apply the preponderance of
evidence standard. Compare, e.g., In re Mirena IUS
Levonorgestrel-Related Prods. Liab. Litig., 982 F.3d
113, 123 (2d Cir. 2020) (under Rule 702, courts are “required” to “take a hard look” at experts’ methodology
to ensure reliability) with City of Pomona v. SQM N.
Am. Corp., 750 F.3d 1036, 1048 (9th Cir. 2014) (reversing
18
expert’s exclusion under Rule 702, declaring a “more
measured approach to an expert’s adherence to methodological protocol is consistent with the spirit of
Daubert and the Federal Rules of Evidence: there is a
strong emphasis on the role of the fact finder in assessing and weighing the evidence.”). The Advisory
Committee on Evidence Rules has noted the ongoing
disregard for Rule 702’s burden of production and recently observed that “federal judges are not uniformly
finding and following the preponderance standard[.]”17
The pervasiveness of decisions that incorrectly articulate and apply Rule 702’s admissibility test has convinced the Advisory Committee on Evidence Rules that
a serious problem exists:
It is clear that a judge should not allow expert
testimony without determining that all requirements of Rule 702 are met by a preponderance
of the evidence. . . . It is not appropriate for
these determinations to be punted to the jury,
but judges often do so.18
Misunderstanding of Rule 702 has led to “a fair number
of cases” in which opinion testimony was improperly
17
Minutes – Advisory Committee on Evidence Rules (Nov.
13, 2020) at 3-4, in ADVISORY COMMITTEE ON EVIDENCE RULES
APRIL 2021 AGENDA BOOK 15 (2021), https://www.uscourts.gov/
sites/default/files/advisory_committee_on_evidence_rules_-_agenda_
book_spring_2021_0.pdf.
18
Minutes – Committee on Rules of Practice & Procedure,
Report of the Advisory Committee on Evidence Rules (Jan. 5,
2021) at 25, in ADVISORY COMMITTEE ON EVIDENCE RULES APRIL
2021 AGENDA BOOK 36 (2021); https://www.uscourts.gov/sites/
default/files/advisory_committee_on_evidence_rules_-_agenda_
book_spring_2021_0.pdf.
19
allowed into evidence because courts “found expert testimony admissible even though the proponent has not
satisfied the Rule 702(b) and (d) requirements by a preponderance of the evidence.”19
At the root of the problem lie opinions like the
Eighth Circuit’s decision at issue here, which declare that admissibility should be determined using
caselaw-derived standards that are inconsistent with
Rule 702. Lower courts then perpetuate that error
when they rely on it.20 In fact, district courts have already issued rulings following the Eighth Circuit’s
opinion and deciding admissibility based on its approval of the “so fundamentally unsupported” standard. See, e.g., MPAY Inc. v. Erie Custom Computer
Apps., Inc., No. 19-704 (PAM/BRT), 2021 WL 3661507,
at *1, *4 (D. Minn. Aug. 18, 2021) (quoting In re Bair
Hugger Forced Air Warming Devices Prods. Liab. Litig.,
9 F.4th 768, 777 (8th Cir. 2021), as authority for the
“fundamentally unsupported” test, noting “cases are
legion that, correctly, under Daubert, call for the liberal
19
Hon. Patrick J. Schiltz, Report of the Advisory Committee
on Evidence Rules (May 15, 2021) at 6, supra n.4.
20
See Hon. John D. Bates, Report of the Judicial Conference
Committee on Rules of Practice and Procedure (Sept. 2021) at 31,
in ADVISORY COMMITTEE ON EVIDENCE RULES NOVEMBER 5, 2021
AGENDA BOOK (2021) 71; https://www.uscourts.gov/sites/default/files/
advisory_committee_on_evidence_rules_agenda_book_november_
202110-19_0.pdf:
The problem is that many judges have not been correctly applying Rule 702 and there is a lot of confusing
or misleading language in court decisions, including
appellate decisions.
20
admission of expert testimony” and concluding that
“Defendants have not established that MPAY’s expert
witnesses should be precluded from testifying.”). The
Eighth Circuit itself recently reiterated its “general
rule,” incompatible with Rule 702, that “the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility.” S&H Farm Supply,
Inc. v. Bad Boy, Inc., 25 F.4th 541 (8th Cir. 2022) (quoting In re Bair Hugger, 9 F.4th at 778).
Departures from Rule 702 have become so prevalent and created such entrenched inconsistency21 that
the Advisory Committee on Evidence Rules unanimously recommended an amendment “that would clarify that expert testimony should not be permitted
unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.”22 The
Committee on Practice and Procedure on July 30, 2021,
announced and requested public comment on this proposed amendment. 86 Fed. Reg. 41087, 41088 (July 30,
2021).
21
See Minutes – Advisory Committee on Evidence Rules
(Nov. 13, 2020) at 3-4, in ADVISORY COMMITTEE ON EVIDENCE RULES
APRIL 2021 AGENDA BOOK 15 (2021); https://www.uscourts.gov/
sites/default/files/advisory_committee_on_evidence_rules_-_agenda_
book_spring_2021_0.pdf:
Twenty years later [after adoption of current Rule 702]
– when it is clear that federal judges are not uniformly
finding and following the preponderance standard –
the justification for a clarifying amendment exists.
22
Minutes – Committee on Rules of Practice & Procedure,
Report of the Advisory Committee on Evidence Rules (Jan. 5,
2021) at 25, supra n.20.
21
The proposed change would place the preponderance of the evidence standard into the text of Rule
702.23 This step would signal that application of the
even-handed preponderance of proof test, and not an
outcome-focused preference for allowing opinion testimony, is how judges must determine admissibility. The
accompanying Draft Committee Note explains that the
amendment seeks to “emphasize that the admissibility
requirements set forth in the Rule must be established
to the court by a preponderance of the evidence.”24 Also,
the amendment would direct judges that they must
find all the Rule 702 elements established before admitting a challenged expert’s testimony. The Draft
Committee Note explicitly rejects prior opinions declaring an expert’s factual foundation to be an issue of
credibility and not admissibility:
many courts have held that the critical questions of the sufficiency of an expert’s basis,
and the application of the expert’s methodology, are generally questions of weight and not
admissibility. These rulings are an incorrect
application of Rules 702 and 104(a)[.]25
The Eighth Circuit’s analysis matches the Advisory
Committee’s description of a case that reflects “an
23
Appendix to Report of the Advisory Committee on Evidence Rules (May 15, 2021), in COMMITTEE ON RULES OF PRACTICE
AND PROCEDURE AGENDA BOOK JUNE 22, 2021 AGENDA BOOK 836
(2021); https://www.uscourts.gov/sites/default/files/2021-06_standing_
agenda_book_final_6-23_0.pdf.
24
Id.
25
Id.
22
incorrect application of Rules 702 and 104(a).” See Pet.
App. 29 (“this was an instance in which our ‘general
rule’ that deficiencies in an expert’s factual basis go to
weight and not admissibility should have been followed.”).
B. Court guidance would complement the
proposed amendment by focusing on
the rule as the source of authority, rather than legacy case rulings that depart from its directives
The Advisory Committee on Evidence Rules published its proposed amendment to change the practice
of those courts that incorrectly look to judicial pronouncements, and not Rule 702 itself, as their primary
authority on the gatekeeping function.26 The Eighth
Circuit’s decision follows the pattern that sparked the
Advisory Committee to act: the opinion mentioned but
did not apply Rule 702, it employed an admissibility
standard recycled from pre-Rule 702 caselaw precedent rather than the preponderance of proof test, and
revealed that the “liberal thrust” statement from
Daubert shaped its approach to gatekeeping more than
the requirements of the rule. Pet. App. 10-13, 34.
Review of the Eighth Circuit’s gatekeeping approach would inform the consideration of the proposed
26
See Hon. Patrick J. Schiltz, Report of the Advisory Committee on Evidence Rules (May 15, 2021) at 6, supra n.4 (“emphasizing the preponderance standard in Rule 702 specifically was
made necessary by the decisions that have failed to apply it to the
reliability requirements of Rule 702.”).
23
amendment in an important way: reinforcing to the
lower courts that Rule 702 establishes the burden of
production and substantive considerations that they
must use. For the proposal to have the intended effect,
the lower courts must understand the error of taking
guidance from outdated but familiar precedent and the
need to rely instead of the text of Rule 702 and its explanatory Advisory Committee Note. Because the proposed amendment has been described as “clarifying”
the admissibility standard rather than changing Rule
702’s substance,27 courts entrenched in their practice
of applying incorrect standards and resolving admissibility challenges based on perceived outcome preferences may not recognize the need to change how they
conduct gatekeeping. By granting the petition, the
Court could ensure the lower courts understand that
they must follow Rule 702 as the governing authority.
C. The MDL context of the Eighth Circuit’s decision presents particularly
compelling circumstances for ensuring
that courts apply Rule 702 and not a local deviation
Cases consolidated into multidistrict litigation
proceedings represent the lion’s share of civil suits
within the federal courts. LCJ’s analysis of data released by the U.S. Judicial Panel on Multidistrict
27
See Hon. John D. Bates, Report of the Judicial Conference
Committee on Rules of Practice and Procedure (Sept. 2021) at 31,
supra n.22 (“The amendment would not change the law but would
clarify the rule so that it is not misapplied.”).
24
Litigation for fiscal year 2020 found that MDL cases
now comprise 62.7% of the entire federal civil docket.28
Representing this share of the federal civil caseload,
the core goal of achieving uniform treatment of the
many lawsuits involving parallel allegations brought
together in a multidistrict litigation has become increasingly important.29
Although an MDL proceeding collects cases from
across the country into a single court for pretrial matters, the individual suits are expected to be returned to
the transferor courts for trial.30 The MDL procedure
therefore creates a risk of inconsistency when the MDL
court does not apply the preponderance of evidence
test to determine whether Rule 702’s requirements
have been met when deciding the admissibility of
opinion testimony. If, instead, the court employs a local
misconception, such as the Eighth Circuit’s “so fundamentally unsupported” standard, a conflict will arise
between the MDL court’s gatekeeping approach and
the standard to be applied on remand by a transferor
28
MDLs Reach 1 Million Case Milestone (March 18, 2021);
https://www.rules4mdls.com/mdls-reach-1-million-case-milestone.
29
See Abbe R. Gluck, Unorthodox Civil Procedure: Modern
Multidistrict Litigation’s Place in the Textbook Understandings of
Procedure, 165 U. PENN. L. REV. 1669, 1682 (2017) (“One of the
main problems MDLs aim to solve is therefore horizontal federal
duplication and disuniformity.”).
30
See, e.g., Torkie-Tork v. Wyeth, 739 F. Supp. 2d 895, 898899 (E.D.Va. 2010) (case had been included in MDL proceeding in
the Eastern District of Arkansas, and at the conclusion of the
MDL proceedings returned to the Eastern District of Virginia for
all further proceedings, including trial.).
25
court in a different circuit. That disparity in the admissibility analysis may regularly produce divergent rulings for the same expert offering the same opinions in
two different federal courts.31
Rule 702 should receive uniform application. The
Eighth Circuit insisted in this MDL case that its unique
“so fundamentally unsupported” standard must govern the admissibility determination, and even used its
local test as the basis for reversal. Pet. App. 34. A national evidentiary rule should only allow a single admissibility standard, and this case warrants review to
confirm that point.
---------------------------------♦---------------------------------
31
See, e.g., In re Roundup Prods. Liab. Litig., 390 F. Supp.
3d 1102, 1112-1113 (N.D. Cal. 2018), aff ’d sub. nom. Hardeman
v. Monsanto Co., 997 F.3d 941 (9th Cir. 2021) (gatekeeping conducted “with a liberal thrust favoring admission,” as directed by
the Ninth Circuit, “has resulted in slightly more room for deference to experts in close cases than might be appropriate in some
other Circuits. This is a difference that could matter in close
cases.”) (quotation and citations omitted).
26
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
MARY MASSARON
Counsel of Record
PLUNKETT COONEY
38505 Woodward Ave., Suite 100
Bloomfield Hills, MI 48304
(313) 983-4801
mmassaron@plunkettcooney.com
ALEXANDER DAHL
General Counsel
LAWYERS FOR CIVIL JUSTICE
1530 Wilson Blvd., Suite 1030
Arlington, VA 22209
(202) 429-0045
alex@strategicpolicycounsel.com
LEE MICKUS
EVANS FEARS &
SCHUTTERT LLP
3200 Cherry Creek Dr.
South, Suite 380
Denver, CO 80209
(303) 656-2199
lmickus@efstriallaw.com
Counsel for Amicus Curiae
March 9, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.