Amicus Curiae Brief — 3M Company, et al., Petitioners v. George Amador

Supreme Court briefMar 11, 2022

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No. 21-1100

In the Supreme Court of the United States

3M COMPANY & ARIZANT HEALTHCARE, INC.

Petitioners,

GEORGE AMADOR,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

THE AMERICAN TORT REFORM ASSOCIATION,

PHARMACEUTICAL RESEARCH AND

MANUFACTURERS OF AMERICA, AND THE

RETAIL LITIGATION CENTER, INC. AS AMICI

CURIAE SUPPORTING PETITIONER

JENNIFER B. DICKEY

TYLER S. BADGLEY

U.S. Chamber

Litigation Center

1615 H Street NW

Washington, DC 20062

(202) 463-5337

PAUL W. HUGHES

Counsel of Record

ANDREW A. LYONS-BERG

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

Counsel for the Chamber of phughes@mwe.com

Commerce of the United Counsel for Amici Curiae

States of America

[Additional counsel listed on inside cover]

DEBORAH WHITE

Retail Litigation Center, Inc.

99 M St. SE

Suite 700

Washington, DC 20003

Counsel for the Retail Litigation Center, Inc.

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Introduction and Interest of the Amici Curiae ..........1

Summary of Argument................................................3

Argument .....................................................................4

The Court should resolve the standard

governing admissibility of expert evidence

and confirm the vitality of Daubert’s core

holding. ...................................................................4

A. Consistent nationwide standards for

expert evidence are essential, particularly

in the mass tort context presented here. .........5

B. The Eighth Circuit’s approach to Daubert

departs from this Court’s precedents and

further undermines national uniformity. ........9

Conclusion ................................................................. 16

TABLE OF AUTHORITIES

Cases

Amorgianos v. National R.R. Passenger Corp.,

303 F.3d 256 (2d Cir. 2002) ................................. 13

Buland v. NCL (Bahamas) Ltd.,

992 F.3d 1143 (11th Cir. 2021) ............................ 13

City of Pomona v. SQM N. Am. Corp.,

750 F.3d 1046 (9th Cir. 2014) .............................. 13

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) ...................................... passim

Dodge v. Cotter Corp.,

328 F.3d 1212 (10th Cir. 2012) ........................ 5, 13

Elosu v. Middlefork Ranch Inc.,

2022 WL 534345 (9th Cir. Feb. 23, 2022) ........... 14

General Elec. Co. v. Joiner,

522 U.S. 136 (1997) .......................................... 5, 10

Johnson v. Mead Johnson & Co.,

754 F.3d 557 (8th Cir. 2014) ................................ 11

Knight v. Kirby Inland Marine Inc.,

482 F.3d 347 (5th Cir. 2007) ................................ 13

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) .......................................... 6, 10

Loudermill v. Dow Chem. Co.,

863 F.2d 566 (8th Cir. 1988) ................................ 11

Milward v. Acuity Specialty Prods. Grp., Inc.,

639 F.3d 11 (1st Cir. 2011) .................................. 13

Nease v. Ford Motor Co.,

848 F.3d 219 (4th Cir. 2017) ................................ 12

iii

Cases—continued

In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717 (3d Cir. 1994) ................................... 13

In re Roundup Prods. Liab. Litig.,

358 F. Supp. 3d 956 (N.D. Cal. 2019) .................. 14

Sardis v. Overhead Door Corp.,

10 F.4th 268 (4th Cir. 2021) ............................ 7, 13

Synergetics, Inc. v. Hurst,

477 F.3d 949 (8th Cir. 2007) ................................ 11

United States v. Frazier,

387 F.3d 1244 (11th Cir. 2004) .............................. 5

West Plains, L.L.C. v. Retzlaff Grain Co.,

870 F.3d 774 (8th Cir. 2017) ................................ 11

Statutes and Rules

28 U.S.C. § 1407(a) .................................................. 8, 9

Fed. R. Evid. 401 ....................................................... 10

Fed. R. Evid. 702 ............................................... passim

Fed. R. Evid. 704(a) ..................................................... 6

Other authorities

Margaret A. Berger, The Admissibility of

Expert Testimony, in Federal Judicial Center, Reference Manual on Scientific Evidence (3d ed. 2011) ................................................. 6

Hon. Stephen Breyer, Introduction,

in Federal Judicial Center, Reference

Manual on Scientific Evidence (3d ed.

2011) ....................................................................... 5

Other authorities—continued

Robert Klonoff, The Judicial Panel on

Multidistrict Litigation: The Virtues

of Unfettered Discretion, 89 UMKC

L. Rev. 1003 (2021) ................................................ 8

Christopher R.J. Pace, Admitting and Excluding

General Expert Testimony: The Eleventh

Circuit Construct, 37 Am. J. Trial Advoc. 47

(2013) ...................................................................... 7

Hon. Jed S. Rakoff, Science and the

Law: Uncomfortable Bedfellows, 38

Seton Hall L. Rev. 1379 (2008) .............................. 5

Hon. Thomas D. Schroeder, Toward a More

Apparent Approach to Considering the

Admission of Expert Testimony, 95 Notre

Dame L. Rev. 2039 (2020).................................... 14

U.S. Chamber Institute for Legal Reform,

Fact or Fiction: Ensuring the Integrity of

Expert Testimony (Feb. 2021) ................................ 9

INTRODUCTION AND INTEREST OF THE

AMICI CURIAE 1

This Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that, in performing its gatekeeping function over expert evidence,

“the trial judge must ensure that any and all scientific

testimony or evidence admitted is not only relevant,

but reliable” as well. Id. at 589. This principle is now

embedded in Rule 702. See Fed. R. Evid. 702(b)-(d);

id., advisory committee note to 2000 amendments.

The court of appeals below, however, applied an

approach to the admissibility of expert testimony that

effectively relieves courts of their responsibility to

meaningfully evaluate the reliability of expert evidence, holding that the plaintiff’s experts’ testimony

had to be admitted because it was not “so fundamentally unsupported by its factual basis that it can offer

no assistance to the jury.” Pet. App. 12 (quotation

marks omitted); see also id. at 33-34. That test—

whether expert evidence is “so fundamentally unsupported” as to be literally useless to the jury—adds

nothing to the baseline requirement of relevance applicable to all evidence, expert and lay alike.

The Eighth Circuit’s decision below thus deepens

the already profound discord among the lower courts

as to the proper application of the reliability criteria

introduced by Daubert and now set forth in Rule 702.

What is more, the tremendous liability at issue in

All parties received timely notice of amici’s intent to file this

brief pursuant to Rule 37.2(a), and have consented to the filing

of this brief. Pursuant to Supreme Court Rule 37.6, amici curiae

state that no counsel for any party authored this brief in whole

or in part and no entity or person, aside from amici curiae, their

members, or their counsel, made any monetary contribution intended to fund the preparation or submission of this brief.

modern national tort and product-liability cases like

this one frequently turns on the admissibility of competing expert evidence, making nationwide uniformity in this area especially critical. Without this

Court’s intervention, the divergent approaches to

Daubert among the circuits will continue to provide

opportunities for abusive forum shopping by plaintiff’s

attorneys. Amici urge the Court to grant certiorari to

ensure scientific evidence is assessed consistently, no

matter where in the country a case is tried.

The Chamber of Commerce of the United States of

America (the Chamber) is the world’s largest business

federation. It represents approximately 300,000 direct

members and indirectly represents the interests of

more than three million companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the Executive Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases, like

this one, that raise issues of concern to the nation’s

business community.

The American Tort Reform Association (ATRA) is

a broad-based coalition of businesses, corporations,

municipalities, associations, and professional firms

that have pooled their resources to promote reform of

the civil justice system with the goal of ensuring fairness, balance, and predictability in civil litigation. For

more than three decades, ATRA has filed amicus

briefs in cases involving important liability issues.

The Pharmaceutical Research and Manufacturers

of America (PhRMA) is a voluntary, non-profit association that represents the nation’s leading biopharmaceutical and biotechnology companies. PhRMA’s mission is to advocate for public policies that encourage

the discovery of life-saving and life-enhancing medicines. PhRMA’s members invest billions of dollars

each year to research and develop new drugs, more

than 500 of which have been approved since 2000. The

members of PhRMA closely monitor legal issues that

affect the entire industry, and PhRMA often offers its

perspective in cases raising such issues.

The Retail Litigation Center, Inc. (RLC) is the

only trade organization solely dedicated to representing the retail industry in judicial proceedings. The

RLC’s members collectively employ millions of workers across the United States, provide goods and services to tens of millions of consumers, and account for

tens of billions of dollars in annual sales. The RLC

seeks to provide courts and regulatory agencies with

retail-industry perspectives on important legal issues

impacting its members, and to highlight the potential

industry-wide consequences of significant pending

cases.

Amici thus have a strong interest in ensuring

that federal evidentiary standards, particularly those

dealing with expert scientific evidence, are enforced

rigorously and evenhandedly across the nation.

SUMMARY OF ARGUMENT

Amici urge the Court to grant review to resolve

the standard governing the admissibility of expert evidence. This question is of enormous practical importance for litigation across the country. There is

widespread divergence as to the judicial role in policing the admission of expert evidence. And the court of

appeals’ decision here flatly contravenes Daubert’s essential holding. Further review is warranted.

First, expert evidence—and therefore the standards for determining its admissibility—has taken on

an outsized role in modern litigation, particularly in

the mass tort and product-liability arena. More and

more, the ultimate question of liability is driven by the

admissibility of competing expert witnesses; indeed,

the admission of an adverse expert report can bring

crushing pressure on a defendant to settle what might

otherwise be a meritless case. In this context, the district court’s gatekeeping function under Daubert takes

on critical importance, and circuit-by-circuit disparities in the standards guiding that function cannot be

tolerated.

Second, the court of appeals here has departed

from the core holding of Daubert: that in order to be

admissible, expert testimony must be “not only relevant, but reliable” as well. Daubert, 509 U.S. at 589.

By applying a standard that eliminates meaningful

review of reliability, the decision below deepens substantial divergences apparent across the circuits. The

Court should grant certiorari to restore uniformity to

this vitally important inquiry.

ARGUMENT

The Court should resolve the standard

governing admissibility of expert evidence and

confirm the vitality of Daubert’s core holding.

Certiorari is warranted to ensure uniform, nationwide application of the rules governing the admission

of scientific and other expert evidence. The Eighth

Circuit’s decision below adds to an already confused

state of affairs in the lower courts by departing from

the key insight of Daubert itself. Amici urge the Court

to grant certiorari to address this inconsistent application of its precedents in a critically important area

of federal procedure.

A. Consistent nationwide standards for expert

evidence are essential, particularly in the

mass tort context presented here.

The gatekeeping function of the district courts in

screening out unreliable scientific and other expert

evidence, as prescribed by Rule 702 and Daubert, is a

matter of critical significance to the proper functioning of the federal judicial system. Indeed, “[t]he importance of Daubert’s gatekeeping requirement cannot be overstated.” United States v. Frazier, 387 F.3d

1244, 1260 (11th Cir. 2004); accord, e.g., Dodge v. Cotter Corp., 328 F.3d 1212, 1226 (10th Cir. 2012) (noting

“the fundamental importance of properly performing

the gatekeeper function.”).

1. The importance of Daubert and its assurance of

reliable expert testimony only continues to grow as

modern trials become increasingly reliant on expert

witnesses. “[S]cience in all its forms—hard science,

soft science, even so-called ‘junk’ science—has in recent years invaded the courtroom to an unparalleled

extent.” Hon. Jed S. Rakoff, Science and the Law: Uncomfortable Bedfellows, 38 Seton Hall L. Rev. 1379,

1379 (2008). Indeed, “[s]cientific issues” now “permeate the law.” Hon. Stephen Breyer, Introduction, in

Federal Judicial Center, Reference Manual on Scientific Evidence 3 (3d ed. 2011); see also General Elec.

Co. v. Joiner, 522 U.S. 136, 148-149 (1997) (Breyer, J.,

concurring) (Because “modern life * * * depends upon

the use of artificial or manufactured substances, such

as chemicals,” it is “particularly important to see that

judges fulfill their Daubert gatekeeping function, so

that they help assure that the powerful engine of tort

liability * * * points toward the right substances and

does not destroy the wrong ones.”). The failure of

courts to take their gatekeeping responsibility

seriously, and to welcome only reliable expert testimony into the judicial process, undermines the judicial system and injures the parties, who depend on

that system for fair and accurate determinations of legal liability.

As this case demonstrates, unreliable expert testimony sometimes is the only evidence on which a

plaintiff’s case—or thousands of related cases—rests.

And even when other evidence is available, expert evidence often has an oversized impact on the jury. The

Federal Rules “grant expert witnesses testimonial latitude unavailable to other witnesses” (Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 148 (1999)), allowing

them to offer “opinions * * * that are not based on

firsthand knowledge or observation” (ibid.), including

opinions on the “ultimate issue” in a case (Fed. R.

Evid. 704(a)). Experts are granted this authority even

though their “testimony often will rest upon an experience confessedly foreign in kind to [the jury’s] own.”

Kumho, 526 U.S. at 149 (quotation marks omitted). As

a result, “[e]xpert evidence can be both powerful and

quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595. Misleading testimony can thus lead to incorrect and ultimately unjust

judgments.

Moreover, because expert testimony can have

such a disproportionate influence on juries, the admission of unreliable expert testimony frequently imposes hydraulic pressure on the rest of the litigation.

Defendants that confront adverse expert rulings often

feel compelled to settle, rather than take their chances

with a jury, even when there are real doubts about the

science supporting particular testimony. See Margaret A. Berger, The Admissibility of Expert Testimony,

in Federal Judicial Center, Reference Manual on Scientific Evidence 19 (3d ed. 2011) (“[A]n inability by the

defendant to exclude plaintiffs’ experts undoubtedly

affects the willingness of the defendant to negotiate a

settlement.”); Rakoff, supra, at 1391 (recounting that,

in a mass pharmaceutical products liability action,

“shortly after my [Daubert] decision came down, most

of the 800 cases settled, for amounts that seemingly

reflected the mid-point nature of what I allowed in the

way of expert testimony.”).

In multi-plaintiff toxic tort and product liability

cases in particular, if the plaintiffs’ expert testimony

is admitted, “a defendant often feels irresistible pressure to settle the action rather than risk a battle of

the experts at trial that, if the defendant loses, can

cost exponentially more than the settlement cost of

the action.” Christopher R.J. Pace, Admitting and Excluding General Expert Testimony: The Eleventh Circuit Construct, 37 Am. J. Trial Advoc. 47, 48 (2013).

Indeed, such “plaintiffs’ likelihood of success is commonly driven by the admissibility of their experts’

general causation testimony under Rule 702 of the

Federal Rules of Evidence and Daubert.” Ibid.

In other words, as one court of appeals recently

explained, the “risk” of “exposing jurors to ‘dubious

scientific testimony’ that can ultimately ‘sway[]’ their

verdict * * * is notably amplified in products liability

cases, for ‘expert witnesses necessarily must play a

significant part’ in establishing or refuting liability.”

Sardis v. Overhead Door Corp., 10 F.4th 268, 275 (4th

Cir. 2021) (first quoting Nease v. Ford Motor Co., 848

F.3d 219, 231 (4th Cir. 2017), then quoting Chace v.

General Motors Corp., 856 F.2d 17, 20 (4th Cir. 1988)).

This case thus presents an excellent vehicle to reach

an issue that—while undoubtedly important—in

many instances is not fully litigated through verdict

or appeal due to settlement.

2. Not only are the stakes of the Daubert decision

generally higher in the mass tort and product liability

contexts than elsewhere, but the consequences of disuniformity in the governing standards is felt more

acutely in this area as well. Plaintiffs’ attorneys may

often steer putative nationwide classes to courts in

circuits with an unusually lenient standard for admitting expert evidence, thereby frustrating the uniform

administration of justice. Or, if cases are consolidated

and assigned using the multi-district litigation (MDL)

mechanism, the governing evidentiary standard—

which can frequently be dispositive of liability (see

Pace, supra)—will be left up to the vagaries of that

procedural device.

Indeed, cases consolidated using the MDL procedure make up a huge portion of federal civil litigation—traditionally around half of the civil caseload

each year, and growing ever higher. See, e.g., Robert

Klonoff, The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, 89 UMKC

L. Rev. 1003, 1003 & n.10 (2021) (“MDL cases constituted 51.9 percent of the civil caseload in the federal

district courts” as of 2018); Pet. 35 (citing statistics

showing that number at 62.7% as of 2020). Yet there

are no firm standards governing the venue in which

the MDL cases will be consolidated; what is more, the

venue decision made by the multi-district litigation

panel is effectively unreviewable, as it can be challenged only by mandamus. 28 U.S.C. § 1407(a), (e); see

Klonoff, supra, at 1009 (“[T]he [Judicial Panel on Multidistrict Litigation] has articulated no formula or

standard for selecting the district court.”); id. at 1014

(noting that “the author has found only one case since

the adoption of the MDL statute in 1968 granting

mandamus to overturn” an MDL consolidation order).

While MDL cases are consolidated only for “pretrial proceedings” (28 U.S.C. § 1407(a)), as just explained, the pretrial Daubert decision is often decisive

in either requiring dismissal of an entire MDL if the

expert is excluded, or forcing a settlement if he or she

is qualified. See pages 6-7, supra; U.S. Chamber Institute for Legal Reform, Fact or Fiction: Ensuring the

Integrity of Expert Testimony 4 (Feb. 2021) (“As a

practical matter, whether or not expert testimony is

admissible often makes or breaks mass tort litigation.

If a plaintiff’s expert testimony on general causation

* * * is found unreliable and inadmissible, the case

must fail.”), https://perma.cc/9WF2-73PU. Thus,

when the standards for admitting expert evidence differ among the circuits—as exemplified by the Eighth

Circuit’s opinion below—the critical determination

that will make or break thousands of individual tort

actions can come down to a discretionary and effectively unreviewable decision from the multi-district

litigation panel.

That is no way to run a legal system whose ultimate end is justice and predictability. The Court

should take this opportunity to restore nationwide

uniformity in the application of Daubert and Rule 702.

B. The Eighth Circuit’s approach to Daubert

departs from this Court’s precedents and

further undermines national uniformity.

As the petition demonstrates, the decision of the

Eighth Circuit here perpetuates an admissibility

standard irreconcilable with Daubert itself. And it is

symptomatic of discordant approaches to expert evidence apparent among the lower courts. The Court

should grant review to ensure uniform nationwide

treatment of scientific and other expert evidence.

1. The Court held in Daubert that, under Rule 702,

“the trial judge must ensure that any and all scientific

testimony or evidence admitted is not only relevant,

but reliable” as well. Daubert, 509 U.S. at 589; see also

Joiner, 522 U.S. at 142 (reiterating this requirement).

Indeed, the focus on reliability—on top of the baseline

standard of relevance applicable to all evidence—is

what distinguishes the Rules’ treatment of expert evidence from lay testimony. Daubert, 509 U.S. at 592;

see also Kumho, 526 U.S. at 152 (“The objective” of

“Daubert’s gatekeeping requirement” is “to ensure the

reliability and relevancy of expert testimony”); Fed. R.

Evid. 702, advisory committee note to 2000 amendments (“Rule 702 has been amended in response to

[Daubert],” which “charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony. * * * The amendment requires

that the testimony must be the product of reliable

principles and methods that are reliably applied to the

facts of the case.”).

But the Eighth Circuit’s law—exemplified and

further entrenched by the decision below—undermines this bedrock principle. See Pet. 19-26. By holding that expert evidence must be admitted unless it is

“‘so fundamentally unsupported’ by its factual basis

‘that it can offer no assistance to the jury’” (Pet. App.

12 (quoting Loudermill v. Dow Chem. Co., 863 F.2d

566, 570 (8th Cir. 1988)); see Pet. App. 33-34), the

court of appeals has essentially rendered Rule 702’s

reliability inquiry meaningless. Indeed, if evidence is

so unsupported that it provides “no assistance to the

jury,” then it is not even relevant, never mind reliable.

Cf. Fed. R. Evid. 401 (“Evidence is relevant if (a) it has

any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact

is of consequence in determining the action.”). The

Eighth Circuit’s approach thus does no independent

work distinct from the relevance inquiry, despite this

Court’s instruction that the two inquiries are independent. Daubert, 509 U.S. at 589.

To be sure, there is nothing wrong with the proposition that expert testimony should be excluded if it

is fundamentally unsupported; of course such testimony should not be allowed to go before the jury. The

problem is that, at some point, the Eighth Circuit

transformed this test from functioning as a necessary

condition for the admission of expert testimony, and

started viewing it as a sufficient condition. Compare

Loudermill, 863 F.2d at 570 (“[I]f an expert opinion is

so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be

admitted.”), with, e.g., Johnson v. Mead Johnson &

Co., 754 F.3d 557, 562 (8th Cir. 2014) (“[E]xclusion of

[an] expert’s opinion is proper ‘only if it is so fundamentally unsupported that it can offer no assistance

to the jury.’”) (emphasis added) (quoting Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir.

1997)). 2

It is that rule—that expert testimony may be excluded “only if it is so fundamentally unsupported that

it can offer no assistance to the jury” (Johnson, 754

F.3d at 562 (emphasis added))—that reads the

Accord, e.g., West Plains, L.L.C. v. Retzlaff Grain Co., 870 F.3d

774, 789 (8th Cir. 2017) (“Only if an expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury

must such testimony be excluded.”) (emphasis added) (quoting

Katzenmeier v. Blackpowder Prod., Inc., 628 F.3d 948, 952 (8th

Cir. 2010)); Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir.

2007) (“An expert’s opinion should be excluded only if that ‘opinion is so fundamentally unsupported that it can offer no assistance to the jury.’”) (emphasis added) (quoting Bonner v. ISP

Tech., Inc., 259 F.3d 924, 929 (8th Cir. 2001)).

reliability factors first enunciated by this Court in

Daubert out of Rule 702. Compare Fed. R. Evid. 702(a)

(requiring only that “the expert’s specialized * * *

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue”), with Fed. R.

Evid. 702(b)-(d) (additionally requiring “sufficient

facts or data”; “reliable principles and methods”; and

that “the expert has reliably applied the principles

and methods to the facts of the case”). And it is that

inappropriate rule that the court of appeals has applied here. See Pet. App. 33-34 (agreeing with “the

MDL court’s determination that there are weaknesses

in the factual basis for Plaintiffs’ medical experts’ general causation opinions,” and that those experts

“failed to grapple adequately with the shortcomings of

[the underlying evidence],” but nonetheless reversing

the district court’s exclusion of the experts because

their opinions were not “so fundamentally unsupported that they had to be excluded”). The Court

should grant certiorari to address this departure from

Rule 702’s implementation of Daubert’s core holding.

2. The Eighth Circuit’s rule only adds to existing

nationwide confusion over the proper application of

the Daubert and Rule 702 reliability factors.

As the petition demonstrates, there is considerable divergence among the circuits in their application

of the criteria for reliability under Rule 702. The

Fourth Circuit, for example, strictly polices the requirement that the district court ensure the reliability

of a proffered expert’s testimony, rather than treating

such challenges as going solely to the weight of testimony as the Eight Circuit did here. Compare, e.g.,

Nease, 848 F.3d at 230 (“For the district court to conclude that Ford’s reliability arguments simply ‘go to

the weight the jury should afford [the expert’s] testimony’ is to delegate the court’s gatekeeping

responsibility to the jury,” thus “abus[ing] its discretion.”) and Sardis, 10 F.4th at 282-283 (similar), with

Pet. App. 33 (“Certainly, there are weaknesses in the

dirty-machine theory,” but “redress for such weaknesses lies in cross-examination and contrary evidence rather than exclusion.”). The First Circuit, on

the other hand, appears to side with the court of appeals below. See, e.g., Milward v. Acuity Specialty

Prods. Grp., Inc., 639 F.3d 11, 22-23 (1st Cir. 2011)

(reversing a district court for “challeng[ing] the factual underpinnings” of a an expert’s opinion, which

the court characterized as “flaws [that] * * * go to the

weight of [the] opinion, not its admissibility”).

Relatedly, a group of circuits hold that “any [analytical] step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony

inadmissible” (In re Paoli R.R. Yard PCB Litig., 35

F.3d 717, 745 (3d Cir. 1994)), 3 analysis that is incompatible with the Eighth Circuit’s holding here and expressly rejected by the Ninth Circuit (see City of Pomona v. SQM N. Am. Corp., 750 F.3d 1046, 1047-1048

See also, e.g., Knight v. Kirby Inland Marine Inc., 482 F.3d

347, 355 (5th Cir. 2007) (“[T]he expert’s testimony must be reliable at each and every step or else it is inadmissible. The reliability analysis applies to all aspects of an expert’s testimony: the

methodology, the facts underlying the expert’s opinion, the link

between the facts and the conclusion, et alia.”) (quotation marks

omitted); Amorgianos v. National R.R. Passenger Corp., 303 F.3d

256, 267 (2d Cir. 2002) (“To warrant admissibility [under Daubert], it is critical that an expert’s analysis be reliable at every

step.”); Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir.

2003) (“Under Daubert, any step that renders the analysis unreliable renders the expert’s testimony inadmissible. This is true

whether the step completely changes a reliable methodology or

merely misapplies that methodology.”) (quotation marks omitted); Buland v. NCL (Bahamas) Ltd., 992 F.3d 1143, 1151 (11th

Cir. 2021) (similar).

(9th Cir. 2014) (rejecting the “any step” approach in

favor of analysis under which “a minor flaw in an expert’s reasoning or a slight modification of an otherwise reliable method does not render expert testimony

inadmissible.”)).

Indeed, the Ninth Circuit has been described generally as employing an approach to Rule 702 “that

set[s] it apart from most other[]” circuits, based on its

“interpret[ation] of Daubert as liberalizing the admission of expert testimony.” Hon. Thomas D. Schroeder,

Toward a More Apparent Approach to Considering the

Admission of Expert Testimony, 95 Notre Dame L.

Rev. 2039, 2050-2052 (2020) (collecting cases); see also

In re Roundup Prods. Liab. Litig., 358 F. Supp. 3d

956, 960 (N.D. Cal. 2019) (“[D]istrict judges * * * must

account for the fact that a wider range of expert opinions (arguably much wider) will be admissible in this

circuit.”); cf., e.g., Elosu v. Middlefork Ranch Inc., __

F.4th ___, 2022 WL 534345, at *5 (9th Cir. Feb. 23,

2022) (“[T]he judge is supposed to screen the jury from

unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.”) (quotation marks omitted).

The Court should grant review to resolve this substantial lack of uniformity pervading the lower courts’

evaluation of expert evidence. Review is imperative to

avoid incentivizing forum shopping and to ensure that

the happenstance of an MDL result does not itself impose undue settlement pressure on litigants. See

pages 6-9, supra. Those harmful effects on our system

could all be avoided by this Court simply reinforcing

Daubert’s key admonition: “[A]ny and all scientific

testimony or evidence admitted [must be] not only relevant, but reliable,” too. Daubert, 509 U.S. at 589.

3. Finally, the importance of the individual ruling

in this MDL case further supports review. Cf. pages 8-

9, supra (noting how the MDL procedure aggravates

inter-circuit disparities in the application of Daubert

and Rule 702).

Here, the Eighth Circuit’s application of an inappropriately lax standard meant the difference between the grant of summary judgment, on the one

hand, and over 5,200 individual product-liability

cases moving forward against a gold-standard FDAapproved medical device used in 50,000 surgeries

daily, entirely on the basis of made-for-litigation expert reports that even the court of appeals admitted

are problematic. See Pet. 7, 34; Pet. App. 33. The costs

associated with such litigation will not be isolated to

the defendant company; instead, they will ultimately

be passed along to the broader economy. The confused

state of Daubert case law throughout the circuits—

along with the Eighth Circuit’s departure from the

fundamental teaching of Daubert itself—is reason

enough for this Court’s review. But the intense importance of reaching the correct result in the sprawling multi-district litigation at issue here further warrants this Court’s scrutiny.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.