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

No. 21-1100

In the Supreme Court of the United States

3M COMPANY, ARIZANT HEALTHCARE, INC.,

Petitioners,

v.

GEORGE AMADOR,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals for the

Eighth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

NEIL K. SAWHNEY

GUPTA WESSLER PLLC

100 Pine Street, Suite 1250

San Francisco, CA 94111

(415) 573-0336

DEEPAK GUPTA

Counsel of Record

GUPTA WESSLER PLLC

2001 K Street, NW

North Tower, Suite 850

Washington, DC 20006

(202) 888-1741

deepak@guptawessler.com

Counsel for Respondent

(additional counsel listed on inside cover)

April 11, 2022

GENEVIEVE ZIMMERMAN

MESHBESHER & SPENCE,

LTD

1616 Park Avenue South

Minneapolis, MN 55404

(612) 339-9121

GABRIEL ASSAAD

MCDONALD WORLEY

1770 St. James Place,

Suite 100

Houston, TX 77056

(281) 623-1906

MICHAEL SACCHET

LESLIE O’LEARY

CIRESI CONLIN, LLP

225 South 6th Street,

Suite 4600

Minneapolis, MN 55402

(612) 361-8200

KYLE FARRAR

FARRAR & BALL, LLP

117 Herkimer Street

Houston, TX 77008

(713) 221-8300

-iQUESTIONS PRESENTED

The plaintiffs’ general-causation experts opined that

3M’s Bair Hugger device was capable of causing

periprosthetic joint infections. After initially admitting

this evidence, the district court reversed course and

excluded their opinions because it found that “analytical

gaps” existed between them and the scientific evidence.

The Eighth Circuit reviewed the record evidence—

including epidemiological and medical studies that the

district court had found reliable—and concluded that the

district court had overlooked “substantial empirical

support” for the experts’ opinions. It therefore partially

reversed the district court’s exclusion decision.

The questions presented are:

1. Did the Eighth Circuit err in applying Rule 702 and

this Court’s precedents in Daubert and Joiner to the facts

of this case?

2. Was the Eighth Circuit’s application of the abuseof-discretion standard in this case insufficiently

deferential to the district court?

-iiTABLE OF CONTENTS

Questions presented .............................................................. i

Table of authorities ............................................................. iii

Introduction .......................................................................... 1

Statement .............................................................................. 3

Reasons for denying the writ ............................................ 13

I.

The Eighth Circuit’s factbound

application of Daubert and Joiner does

not warrant review. ............................................. 13

II. The Eighth Circuit, like all other circuits,

reviews district-court decisions to exclude

expert evidence for abuse of discretion. ........... 21

III. 3M’s overblown policy arguments about

“junk” science are not presented by this

case and best directed to the advisory

committee currently considering possible

changes to Rule 702............................................. 24

Conclusion ........................................................................... 30

-iiiTABLE OF AUTHORITIES

Cases

Barrett v. Rhodia, Inc.,

606 F.3d 975 (8th Cir. 2010) .................................16, 24

Bland v. Verizon Wireless, (VAW) L.L.C.,

538 F.3d 893 (8th Cir. 2008) .................................16, 24

Bonner v. ISP Technologies, Inc.,

259 F.3d 924 (8th Cir. 2001) ........................................23

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) .......................................................22

Daubert v. Merrell Dow Pharmaceauticals, Inc.,

43 F.3d 1311 (9th Cir. 1995) ........................................26

Daubert v. Merrell Dow Pharmaceuticals., Inc.,

509 U.S. 579 (1993) .............................................1, 18, 20

First Union National Bank v. Benham,

423 F.3d 855 (8th Cir. 2005) .......................................23

General Electric Co. v. Joiner,

522 U.S. 136 (1997) .............................................. passim

Glastetter v. Novartis Pharmaceuticals Corp.,

252 F.3d 986 (8th Cir. 2001) ..................................16, 23

In re Paoli Railroad Yard PCB Litigation,

35 F.3d 717 (3d Cir. 1994) ...........................................20

In re TMI Litigation,

193 F.3d 613 (3d Cir. 1999) .........................................20

In re Wholesale Grocery Products Antitrust

Litigation,

946 F.3d 995 (8th Cir. 2019) ..................................16, 24

J.B. Hunt Transport, Inc. v. General Motors

Corp.,

243 F.3d 441 (8th Cir. 2001) ..................................16, 23

-ivJohnson v. Mead Johnson & Co., LLC,

754 F.3d 557 (8th Cir. 2014) .......................................23

Karlo v. Pittsburgh Glass Works, LLC,

849 F.3d 61 (3d Cir. 2017) ...........................................20

Klingenberg v. Vulcan Ladder USA, LLC,

936 F.3d 824 (8th Cir. 2019) ........................................23

Knight v. Kirby Inland Marine Inc.,

482 F.3d 347 (5th Cir. 2007) ..........................................6

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999) .......................................................26

Marmo v. Tyson Fresh Meats, Inc.,

457 F.3d 748 (8th Cir. 2006) ............................15, 16, 24

McKnight By & Through Ludwig v. Johnson

Controls, Inc.,

36 F.3d 1396 (8th Cir. 1994) .......................................23

Menz v. New Holland North America, Inc.,

507 F.3d 1107 (8th Cir. 2007) ................................16, 24

Pereida v. Wilkinson,

141 S. Ct. 754 (2021).....................................................28

Polski v. Quigley Corp.,

538 F.3d 836 (8th Cir. 2008) .................................16, 24

Pro Service Automotive, LLC, v. Lenan Corp.,

469 F.3d 1210 (8th Cir. 2006) ...............................16, 24

Ruiz-Troche v. Pepsi Cola,

161 F.3d 77 (1st Cir. 1998) ..........................................27

Smith v. BMW North America, Inc.,

308 F.3d 913 (8th Cir. 2002) ........................................23

Smith v. Cangieter,

462 F.3d 920 (8th Cir. 2006) ..................................16, 24

-vUnited States v. Finch,

630 F.3d 1057 (8th Cir. 2011) ......................................23

United States v. Schiff,

602 F.3d 152 (3d Cir. 2010) ........................................20

Weisgram v. Marley Co.,

169 F.3d 514 (8th Cir. 1999) ..................................16, 23

Rules

Federal Rule of Evidence 702 ............................................27

Supreme Court Rule 10 ........................................................1

Other Authorities

86 Fed. Reg. 41087 (July 30, 2021) .................................... 28

86 Fed. Reg. 8039 (Feb. 11, 2022) ...................................... 28

Advisory Committee on Evidence Rules, Agenda

for May 6, 2022 Committee Meeting, U.S.

Courts, (May 6, 2022), https://perma.cc/5VVB8275 ................................................................................28

John G. Brock-Utne, Justin T. Ward & Richard A.

Jaffe, Potential Sources of Operating Room

Air Contamination: A Preliminary Study, J.

Hosp. Infection (2021), https://perma.cc/SZ9XCP9C..............................................................................26

Carnegie Commission on Science, Technology, and

Government, Science and Technology in

Judicial Decision Making (1993) ..............................27

Gary Edmond & David Mercer, Trashing “Junk

Science”, 1998 Stan. Tech. L. Rev. 3 (1998) ..............28

X. He et al., Effect of Heated-Air Blanket on the

Dispersion of Squames in an Operating

Room, 34 International Journal Numerical

Methods Biomedical Engineering, May 2018 ............8

-viNational Resource Council of the National

Academies, Reference Manual on Scientific

Evidence (3d ed. 2011) ...................................................4

Sean Ryan, Backfire: Abandoning the Abuse of

Discretion Standard of Review for Daubert

Rulings Shoots Trial Courts in the Foot, 47 U.

Tol. L. Rev. 349 (2016) .................................................27

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013).................................................................1

Brie D. Sherwin, Anatomy of A Conspiracy

Theory: Law, Politics, and Science Denialism

in the Era of Covid-19, 8 Tex. A&M L. Rev.

537 (2021) ......................................................................27

Michael Vlessides, Warming Devices May Be

Source of Airborne Microbial Contamination,

but Fix Is Possible, Anesthesiology News

(March 11, 2021), https://perma.cc/5BQNSL2A ..............................................................................26

-1INTRODUCTION

It is well established that “error correction” is outside

“the mainstream of the Court’s functions and . . . not

among the ‘compelling reasons’ . . . that govern the grant

of certiorari.” Stephen M. Shapiro et al., Supreme Court

Practice § 5.12(c)(3), p. 352 (10th ed. 2013). Certiorari,

under this Court’s rules, is thus “rarely” warranted when

“the asserted error” is “the misapplication of a properly

stated rule of law.” S. Ct. R. 10.

Yet error correction is precisely what 3M seeks here.

In a thorough 35-page opinion, the Eighth Circuit applied

Federal Rule of Evidence 702 and this Court’s settled

precedents in Daubert v. Merrell Dow Pharmaceuticals.,

Inc., 509 U.S. 579 (1993), and General Electric Co. v.

Joiner, 522 U.S. 136 (1997), to the facts and concluded that

the district court erroneously excluded the generalcausation opinions of the plaintiffs’ medical and

engineering experts. Before arriving at this admittedly

“narrow” conclusion, App. 35, the Eighth Circuit

painstakingly reviewed the epidemiological literature,

peer-reviewed medical studies, deposition and trial

testimony, and the results of a computational-fluiddynamics model. The Eighth Circuit credited part of the

district court’s analysis, even “limit[ing]” the engineering

expert’s testimony. App. 23–24. But, because the district

court had overlooked significant “empirical support

bridging the analytical gap” between the scientific

evidence and the experts’ opinions, it partially reversed

the district court’s exclusion decision. App. 27.

Nothing about that case-specific, factbound holding

cries out for this Court’s review. So 3M reimagines the

Eighth Circuit’s opinion. It plucks language from the

opinion to claim that the Eighth Circuit invented a new

-2“fundamentally unsupported” standard of admissibility—

even though the Eighth Circuit explicitly noted that such

language is shorthand for the settled rule that “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.’” App. 12 (quoting Joiner, 522 U.S.

at 146). 3M also baldly asserts (at 20) that the Eighth

Circuit reduced Rule 702’s reliability requirement into a

“standard for mere relevance”—ignoring that the decision

below carefully considered whether the experts’ opinions

were reliably connected to the scientific literature and

even affirmed the partial exclusion of one of the plaintiffs’

engineering expert’s opinions precisely because it was

deemed unreliable. And while 3M claims that the Eighth

Circuit’s “lax” standard is different from those in other

circuits, it does not (and cannot) contend that any other

circuit would reach a different conclusion on these facts.

3M’s second question fares no better. 3M doesn’t

argue that there is any conflict in the lower courts over the

proper standard of appellate review for district-court

decisions to exclude expert testimony. And 3M cannot

dispute that the decision below identified and applied the

correct standard: abuse of discretion. See App. 10, 22, 24,

35. All 3M points to is the Eighth Circuit’s observation

that there is an “intriguing juxtaposition” between that

standard and Rule 702. App. 10. Yet this observation

played no role at all in the Eighth Circuit’s actual analysis

of the district court’s exclusion decision—and 3M does not

even try to show otherwise.

In the end, a sophisticated plea for error correction—

even one prepared by eminent counsel and supported by

multiple amici—is still a plea for error correction. This

Court should deny the petition.

-3STATEMENT

1. 3M’s Bair Hugger is a “a forced-air device used to

keep patients warm during surgery.” App. 3. It works by

drawing in air from the unsterile operating room floor,

heating it, and blowing it through a hose into a perforated

blanket placed directly over the patient. App. 3. The unit

that draws in the air has a filter, but not a high-efficiency

particulate air (“HEPA”) filter. CA8 App. A268–A271.1

And the hose that blows air into the blanket and near the

wound site has no air filter at all. App. 48. 3M admits that

Bair Hugger is “not sterile,” and does not dispute that the

device harbors and grows bacteria. CA8 App. A569.

Periprosthetic joint infections (“PJIs”) are caused by

bacteria that is introduced at the time of surgery, typically

through airborne (or “aerosolized”) particles. “Bacterial

contamination is a particularly significant threat in

orthopedic-implant surgeries because a PJI can be caused

by very few microbes, possibly even a single bacterium.”

App. 4. Periprosthetic joint infections are enormously

consequential: They can lead to additional surgeries,

amputation, and even death. CA8 App. A878–A881.

Over the last decade, evidence has steadily emerged

showing that the use of Bair Hugger may increase the risk

of periprosthetic joint infections. In 2011, for example, an

epidemiological study (McGovern 2011, CA8 App. A1172–

A1180) reviewed infection data from approximately 1,500

hip- and knee-replacement surgeries performed at a

hospital that shifted from using Bair Hugger to

“conductive patient-warming devices,” which do not use

forced air. App. 14. That peer-reviewed and published

1

“CA8 App.” refers to the plaintiffs’ appendix in the Court of

Appeals.

-4study found nearly a 400% increased risk of infection

among those patients who were warmed by Bair

Hugger—a large and statistically significant association.

App. 14–15. Consistent with ordinary epidemiological

practice, the authors explained that the study did “not

establish a causal basis for this association.” App. 15; see

Nat’l Res. Council of the Nat’l Academies, Reference

Manual on Scientific Evidence 598 (3d ed. 2011)

(“Epidemiology cannot prove causation; rather, causation

is a judgment for epidemiologists and others.”). Since

McGovern 2011, there have been no epidemiological

studies disproving this statistically significant association

between Bair Hugger and periprosthetic joint infection.

In addition, dozens of non-epidemiological studies and

reports dating back to 1997 have reached similar

conclusions. See App. 25–27, 31–33.2 These studies identify

two distinct mechanisms by which forced-air-warming

devices like Bair Hugger could cause periprosthetic joint

infections. First, the devices are internally contaminated

with bacteria, “which are blown through the blanket into

the operating room, where they become ambient and

eventually reach the surgical site.” App. 5. The parties and

courts in this case have dubbed this mechanism the “dirty

machine” theory. Second, the heat generated by the

device produces “convection currents that carry ambient

bacteria from nonsterile areas of the operating room to

the surgical site”—what is known in this case as the

“airflow disruption theory.” App. 5. Because

“[d]ocumented complications from [Bair Hugger] use

2

These studies and reports, all of which were in the appendix

below, are listed chronologically in the plaintiffs’ Eighth Circuit reply

brief. See Pls. Reply Br. 3–6, In re Blair Hugger Forced Air Warming

Devices Prods. Liab. Litig., No. 19-2899 (8th Cir. Sept. 25, 2020).

-5include an increased incidence of surgical site infections,”

CA8 App. A3428, independent scientists and health

experts have determined that Bair Hugger is a

“reservoir[] of infection,” CA8 App. A3392, A662. And

even some scientists within 3M agree. See, e.g. CA8 App.

A217 (sealed).

As the potential risk of infection has been increasingly

recognized, some scientists have called for surgeons to

discontinue the use of forced-air warming devices like Bair

Hugger, or to take additional precautions to prevent

infection. See, e.g., CA8 App. A3048 (referencing

recommendation not to use forced-air warming “‘because

of its high risk for patients to develop a surgical site

infection’”).3 These conclusions and recommendations are

consistent with the CDC’s more general recommendation

that “[n]othing that blows air should be in an operating

theater.” CA8 App. A883. And even organizations that 3M

tries to portray as having concluded that Bair Hugger is

safe—including the International Consensus that 3M

repeatedly mentions in its petition—agree that the

“literature is conflicting” and that forced-air warming

poses a “theoretical risk” of infection. App. 36–37.

The increasingly understood links between Bair

Hugger and periprosthetic joint infections also led to

3

See also, e.g., Baker 2002 (CA8 App. A1133) (“[T]here seems

insufficient evidence to justify the routine use of forced air warming

units … during ultraclean orthop[]edic surgery”); ECRI 2017 (CA8

App. A3401) (“A warming unit should have HEPA-grade or better air

filters to reduce the risk that airborne dust, bacteria, and mold will be

blown onto the patient or into wounds”); Tsai 2017 (CA8 App. A3428)

(“Documented complications from [forced-air warming] use include

an increased incidence of surgical site infections”); Wood 2014 (CA8

App. A1214) (“We conclude that [forced-air warming] does contaminate ultra-clean air ventilation.”).

-6lawsuits against 3M and its defunct subsidiary Arizant

Health by individuals who developed infections from the

use of Bair Hugger during their orthopedic-implant

surgeries. App. 2. In late 2015, the Joint Panel on

Multidistrict Litigation centralized these lawsuits, which

now number nearly 6,000, in the District of Minnesota for

consolidated pretrial proceedings. App. 4.

2. The plaintiffs in the multidistrict litigation sought

to introduce expert testimony on the issue of general

causation—that is, “whether the Bair Hugger can cause a

PJI,” not whether it in fact did so for any particular

plaintiff. App. 35 (emphasis added); see, e.g., Knight v.

Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.

2007) (“General causation is whether a substance is

capable of causing a particular injury or condition in the

general population, while specific causation is whether a

substance caused a particular individual’s injury.”). As

relevant here, the plaintiffs offered testimony from four

general-causation experts: three medical experts (Dr.

Jonathan M. Samet, a world-renowned epidemiologist;

Dr. William Jarvis, an infectious-disease specialist who

“formerly worked at the Center for Disease Control with

a focus on infectious diseases associated with healthcare,”

App. 70; and Dr. Michael J. Stonnington, an orthopedic

surgeon); and an internationally acclaimed engineering

professor (Dr. Said Elghobashi).

Dr. Elghobashi, “a recognized expert in the field of

computational fluid dynamics,” App. 54, developed a

model that used “large eddy simulation”—a sophisticated

type of computational fluid dynamics (“CFD”) used to

study turbulence—“to simulate the Bair Hugger’s effect

on airflow and dispersion of squames,” which are “skin

flakes capable of carrying bacteria that are present in

-7operating rooms.” App. 19–20. The “model replicated an

orthopedic operating room, including details such as

laminar airflow, an operating table, surgical drapes, a

patient underneath the drapes prepared for knee surgery,

four surgeons (two with hands extended over the patient,

two with hands down), two side tables, two surgical lamps,

the Bair Hugger blanket applied to the patient’s torso

under the drapes, and the Bair Hugger central unit sitting

on the floor near the head of the operating table.” App. 20.

It also “accounted for the heat generated by the Bair

Hugger as well as heat emanating from other sources,

including the surgeons, patient, surgical lamps, and even

the exposed surface of the patient’s knee.” App. 20. “After

inputting a number of airflow-related details, Dr.

Elghobashi simulated whether the Bair Hugger could lift

these 10-μm-sized squames—particles undisputedly large

enough to carry bacteria and thus be ‘dangerous’—up to

four ‘regions of interest’ in the operating room, such as

where the surgical tools are kept and the surgical site

itself.” App. 20–21.

The simulation showed that, with the Bair Hugger

turned off, the operating room’s “ventilation air

circulation alone cannot disperse the squames to the

surgical site.” App. 21. But with the Bair Hugger on, the

model showed a statistically significant number of

squames dispersed to the “dangerous” regions of interest.

App. 20–21. Dr. Elghobashi thus concluded that “the hot

air from the blower and resultant thermal plumes are

capable of lifting [squames] and transporting them to the

side tables, above the operating table, and the surgical

site.” App. 21. He further opined that “if other variables

were introduced into the model, such as movement of

medical staff, ‘then the probability of dispersing the

squames to the surgical site will be increased even

-8further.’” App. 21. Dr. Elghobashi “published his model

with several coauthors in a peer-reviewed journal.” App.

20; see X. He et al., Effect of Heated-Air Blanket on the

Dispersion of Squames in an Operating Room, 34 Int’l J.

Numerical Methods Biomedical Eng’g, May 2018.

The three medical experts offered testimony that the

“use of the Bair Hugger device increases the risk of PJI

compared to the risk of infection when the device is not

used.” App. 48–49. They based their opinion in part on the

McGovern 2011 epidemiological study finding “a

statistically significant association between the Bair

Hugger and infection,” as well as a “number of nonepidemiological studies and Dr. Elghobashi’s CFD model,

which together describe the mechanism[s] by which the

Bair Hugger transmits contaminated airborne particles

into the sterile surgical site.” App. 70. Together, these two

lines of scientific evidence—epidemiologic and

mechanistic studies—provided a solid foundation for the

plaintiffs’ medical experts’ general-causation opinions:

Bair Hugger can cause periprosthetic joint infections.

3M moved to exclude the above experts’ testimony, as

well as other experts not at issue in this appeal. It also

moved for summary judgment contingent on the exclusion

of this evidence. App. 6–7. 3M did not challenge the

experts’ qualifications or experience; it disputed only their

conclusions. App. 54, 70.

3. The district court initially denied 3M’s motion to

exclude these experts, concluding that their testimony

was reliable, relevant, and ultimately admissible. As to Dr.

Elghobashi’s testimony, the court found that (1) the

“physics” of Dr. Elghobashi’s CFD model was “reliable”;

(2) the CFD model relied on 3M’s own “representations”;

and (3) 3M could “contradict Elghobashi’s inputs by

-9presenting their own fluids expert Abraham.” App. 104–

06. The district court also admitted the medical experts’

opinion that, “compared to warming devices that warm

patients through modes other than forced air, the Bair

Hugger increases the risk of deep-joint infection from

orthopedic-implant surgery.” App. 109.4 This opinion was

reliable, the court found, in part because it was based on

the McGovern 2011 study and “Elghobashi’s testimony

[about the results of the CFD model], buttressed by

scientific publications.” App. 109–12. The district court

then held the first bellwether trial in this multi-district

litigation, at which some but not all of the experts testified.

The jury in that first trial returned a verdict for 3M. App.

7.

After the bellwether trial, 3M moved for

reconsideration of the district court’s exclusion order.

Reversing course, the district court this time granted 3M’s

motion. Although it conceded that Dr. Elghobashi’s model

was generally reliable, the court excluded his testimony

because it rested on an “unproven and untested premise”

and he failed to account for “other sources of heat and air

movement” that might occur in an operating room. App.

22, 61–62. Under Joiner, it thus concluded that there was

too great “an analytical gap between the CFD results and

Dr. Elghobashi’s conclusion.” App. 63. Dismissing the fact

that his model had been peer-reviewed and published, the

court also found Dr. Elghobashi’s testimony unreliable

because it was developed for litigation. App. 68–70.

Next, the district court deemed the medical experts’

opinions unreliable because there was supposedly “too

4

The district court and the Eighth Circuit “generally treated the

medical experts as a collective set,” as “their opinions were essentially

the same and were founded on much of the same evidence.” App. 8.

-10great an analytical gap between the literature and the

experts’ general causation opinions.” App. 71. It

acknowledged that the scientific literature, including the

McGovern 2011 study, reliably supported an association

between forced-air warming and infection, but faulted the

medical experts for drawing causal links where the

individual studies had not and for ignoring alternative

explanations for the association. App. 74–93. It also found

that the medical experts’ opinions were inadmissible,

because they were not “generally accepted” by the

medical and scientific community. App. 94–96.

Having excluded the plaintiffs’ general-causation

evidence, the district court granted 3M summary

judgment on all claims and entered an MDL-wide final

judgment. App. 7, 97.

4. The Eighth Circuit affirmed in part and reversed

in part the district court’s exclusion decision. The court

“first recite[d] the principles that govern our analysis.”

App. 9. It then cited this Court’s Daubert standard:

“Federal Rule of Evidence 702 governs the admissibility

of expert testimony, and under this rule the district court

is vested with a gatekeeping function, ensuring that any

and all scientific testimony or evidence admitted is not

only relevant, but reliable.” App. 10.5 After recounting

various reliability factors that Daubert identified, it

turned to this Court’s decision in Joiner, which “clarified

that ‘conclusions and methodology are not entirely distinct

from one another.’” App. 11 (quoting Joiner, 522 U.S. at

146). Under Joiner, the court explained, “a district court

may exclude expert testimony if it finds ‘that there is

5

Unless otherwise indicated, all internal citations, quotation

marks, and alterations are omitted.

-11simply too great an analytical gap between the data and

the opinion proffered.’” App. 12 (quoting 522 U.S. at 146).

It continued: “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.’” App. 11.

As to the standard of appellate review, the Eighth

Circuit explained that “the district court has broad

discretion, and on appeal we will not disturb a decision

concerning the exclusion of expert testimony absent an

abuse of that discretion.” App. 10.

The Eighth Circuit then considered whether the

district court had abused its discretion here. After

thoroughly reviewing the district court’s analysis in light

of the scientific evidence in the record, the Eighth Circuit

concluded that the district court had erred in excluding

the testimony of the three medical experts and had

partially erred by categorically excluding Dr.

Elghobashi’s testimony instead of limiting it.

As to the medical experts: First, the Eighth Circuit

determined that “it was not necessarily unreliable for the

experts to rely on McGovern 2011 to draw an inference of

causation just because the study itself recognized,

consistent with [general epidemiological] principles, that

the association did not establish causation.” App. 14–16.

Second, it held that even if the medical experts “did not

adequately address McGovern 2011’s limitations,” they

had other evidentiary support for their opinions—

including “studies and reports ostensibly showing

plausible mechanisms by which forced-air warming can

cause PJIs.” App. 17–19. Third, it held that the district

court overlooked “significant support for the proposition

-12that the Bair Hugger independently is capable of

disrupting airflow so as to transmit bacteria to the surgical

site when other airflow-disruptive variables are controlled

for,” as well as additional “empirical support for the

proposition that those other variables can facilitate the

Bair Hugger’s airflow-disruptive effect in a real-world

operating room.” App. 25–29. Fourth, the Eighth Circuit

determined that the “published studies and reports” in the

record sufficiently supported the experts “dirty machine”

theory, even if they had some “weaknesses.” App. 29–34.

Fifth, it held that “the lack of general acceptance does not

independently justify exclusion of [the plaintiffs’] generalcausation medical experts,” particularly given that some

of 3M’s own evidence “acknowledge[d] that ‘concerns

exist’ about a link between forced-air warming and

surgical-site infections.” App. 35–38.

Turning to Dr. Elghobashi, the Eighth Circuit agreed

with the district court’s exclusion of one aspect of his

testimony—namely, that “if additional real-world

conditions (such as personnel movement) that have a

significant impact on airflow disruption were introduced

into his model, then the Bair Hugger’s effect on the

dispersion of squames would be exaggerated in a realworld operating room.” App. 22. This opinion was

unreliable, the Eighth Circuit held, because it found no

support in Dr. Elghobashi’s published study or his report.

And as the court recognized: “‘[N]othing in either Daubert

or the Federal Rules of Evidence requires a district court

to admit opinion evidence that is connected to existing

data only by the ipse dixit of the expert.’” App. 22 (quoting

Joiner, 522 U.S. at 146). Nevertheless, the Eighth Circuit

disagreed with the district court’s “categorical exclusion

of Dr. Elghobashi and his model.” App. 22–23. Properly

limited to the conclusion “that forced-air warming does

-13play a role, at least in certain operating-room conditions”

in transporting squames to the surgical site, his opinion

“was tested and supported by the CFD model, and the

problematic analytical gap found by the MDL court is

gone.” App. 23.

The Eighth Circuit cautioned that its “conclusion

[wa]s a narrow one” that “turn[ed] greatly on the fact that

the opinions at issue here address general causation

(whether the Bair Hugger can cause a PJI) rather than

specific causation (whether the Bair Hugger did cause a

particular plaintiff’s PJI).” App. 35. It noted that the

plaintiffs still could face “significant hurdles for the

specific-causation showing [they] must make to prevail.”

App. 35. All it held was “that the MDL court abused its

discretion in excluding these experts’ general-causation

opinions on the basis of excessive analytical gaps.” App.

35. Given its reversal of the district court’s exclusion

decision, the Eighth Circuit also reversed the grant of

summary judgment to 3M. App. 38.

REASONS FOR DENYING THE WRIT

I.

The Eighth Circuit’s factbound application of

Daubert and Joiner does not warrant review.

3M repeatedly asserts (at 2, 17, 33) that this Court’s

review is needed to correct the Eighth Circuit’s

“erroneously lax” and “lenient” standard of admissibility

for expert testimony. But 3M’s argument on the first

question presented suffers from a fundamental problem:

That purported “lax” standard cannot be found anywhere

in the decision below. Instead, the Eighth Circuit

meticulously applied Rule 702’s reliability inquiry to the

facts of this case, guided by this Court’s settled precedents

in Daubert and Joiner. While it agreed with the district

court’s analysis in some respects, it ultimately concluded

-14that the district court had ignored key “empirical support”

in the record that “bridged” the alleged analytical gaps

that drove the exclusion decision on reconsideration. App.

27, 29. This conclusion is consistent with the approaches of

all other circuits—and 3M doesn’t even try to argue

otherwise. There is simply no need for this Court to step

in.

A. In a verbal sleight of hand, 3M attributes to the

Eighth Circuit a rule that it neither endorsed nor applied.

According to 3M, the decision below applied a mandatory

circuit-specific rule that “expert testimony must be

admitted, unless it is so ‘fundamentally unsupported’ as to

be useless to the jury.” Pet. 17; see also id. at 21.

But this rule does not appear even once in the opinion.

Instead, the Eighth Circuit correctly stated only that “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.” App. 12 (emphasis added).

Even 3M admits (at 22) that this discretionary standard is

an “uncontroversial statement” that properly reflects this

Court’s precedent. See also Pet. 23 n.6. The “sofundamentally-unsupported” rule, in other words, is a rule

of 3M’s own making. So the entire premise of 3M’s first

question presented is unfounded.

3M nonetheless contends (at 20–21) that the

“standard of initial admissibility” that the decision below

applied “looks nothing like the one described in Daubert,

Joiner, and amended Rule 702.” That is also incorrect. The

Eighth Circuit explained that the “fundamentally

unsupported” language derived from its case law is

synonymous with Joiner’s “analytical gap” standard. See

App. 12. Indeed, it expressly equated the two:

-15[T]he question the MDL court ultimately had to

answer was whether these shortcomings left ‘too

great an analytical gap’ between the factual bases

for the experts’ opinions and the generalcausation opinions themselves, see Joiner, 522

U.S. at 146; or, in other words, whether the

opinions were “so fundamentally unsupported”

that they should be excluded rather than

admitted and left to be impeached through crossexamination at trial . . . .

App. 34 (emphasis added).

The Eighth Circuit’s actual analysis also reflected the

framework that this Court developed for assessing the

admissibility of expert testimony in Daubert and Joiner,

as reflected in the 2000 amendments to Rule 702. The

decision below repeatedly (and expressly) applied this

framework to determine whether the district court abused

its discretion in finding “too great an analytical gap”

between each of the general-causation experts’ opinions

and the data they relied upon. See, e.g., App. 12, 13, 15, 22,

23, 24, 25, 27, 34, 35, 38. In other words, no matter how

3M tries to describe the Eighth Circuit’s standard, it

cannot change the fact that the Eighth Circuit simply

applied this Court’s precedents to the facts of this case.

Moreover, contrary to 3M’s assertions (at 23, 25–26),

the Eighth Circuit has consistently applied this

framework to evaluate the reliability of expert testimony.

In a previous case upholding the exclusion of expert

testimony, for instance, the Eighth Circuit explained that

while Rule 702 favors admissibility over exclusion, its

precedent did not “provide[] a blanket rule” of

admissibility. Marmo v. Tyson Fresh Meats, Inc., 457

F.3d 748, 758 (8th Cir. 2006). Instead, the question

-16whether expert evidence is unreliable turns on “the

circumstances of each case” and whether “the analytical

gap between the data and proffered opinion is too great.”

Id. The Eighth Circuit’s faithful application of the Joiner

framework on numerous occasions to uphold the exclusion

of expert testimony undermines 3M’s claim that the

Eighth Circuit improperly reads Rule 702 as an

admissibility mandate.6

In sum, this Court’s standards in Daubert and

Joiner—not 3M’s wayward reformulation—are what

guided the Eighth Circuit’s analysis at every step. The

petition’s first question is therefore not even presented by

this case.

B. Nevertheless, 3M asserts—citing nothing—that

the decision below “turned entirely on [the Eighth

Circuit’s] application” of 3M’s invented standard. Pet. 18.

Yet 3M’s petition spends curiously little time supporting

this assertion with any discussion of the Eighth Circuit’s

actual analysis of the expert testimony and underlying

record. That’s because, on a fair reading of the opinion, the

decision below faithfully and carefully applied this Court’s

6

This list is not exhaustive. See, e.g., Weisgram v. Marley Co.,

169 F.3d 514, 521 (8th Cir. 1999); J.B. Hunt Transport, Inc. v. Gen.

Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001); Glastetter v. Novartis

Pharms. Corp., 252 F.3d 986, 990 (8th Cir. 2001); Smith v. Cangieter,

462 F.3d 920, 924–25 (8th Cir. 2006); Marmo v. Tyson Fresh Meats,

457 F.3d 748, 758 (8th Cir. 2006); Pro Service Auto., LLC, v. Lenan

Corp., 469 F.3d 1210, 1216 (8th Cir. 2006); Menz v. New Holland N.

Am., Inc., 507 F.3d 1107, 1114–15 (8th Cir. 2007); Bland v. Verizon

Wireless, (VAW) L.L.C., 538 F.3d 893, 897 (8th Cir. 2008); Polski v.

Quigley Corp., 538 F.3d 836, 840–41 (8th Cir. 2008); Barrett v. Rhodia,

Inc., 606 F.3d 975, 981 (8th Cir. 2010); In re Wholesale Grocery Prods.

Antitrust Litig., 946 F.3d 995, 1002 (8th Cir. 2019).

-17settled precedent in Joiner to hold that the district court

abused its discretion in excluding the plaintiffs’ experts.

The district court here based its exclusion of the

plaintiffs’ general-causation medical experts on two

grounds—that there was, in its view, (1) “too great an

analytical gap between the literature and the experts’

general causation opinions” under Joiner; and (2) that

“the causal inferences made by the experts have not been

generally accepted by the scientific community” under

Daubert. App. 8–9. The Eighth Circuit methodically

examined both conclusions and found them lacking—not

because of any disagreement on the applicable law but

based instead on the district court’s erroneous application

of the Joiner and Daubert standards to the facts.

The Eighth Circuit held, for instance, that the district

court erroneously faulted the medical experts for relying

on an epidemiological study finding that “forced-air

warming was associated with an increased rate of

[periprosthetic joint infections].” App. 14–19. Although

that study did not itself conclude a causal link, the Eighth

Circuit correctly recognized that it is not “per se

unreliable for an expert to draw an inference of causation”

from a published and peer-reviewed epidemiologic study.

App. 15–16. The Eighth Circuit further concluded that the

district court overlooked other evidence in the record—

including “a number of published studies”—that plausibly

supported the medical experts’ opinions. App. 25; see

generally App. 25–33 (discussing studies and reports).

Though these studies had “limitations,” the Eighth Circuit

still determined that “findings in these studies provide

empirical support bridging the analytical gap from

simulated operating-room conditions to real-world

operating-room conditions”—thus making the gap that

-18the district court identified “at least partially illusory.”

App. 27.

This garden-variety application of Rule 702’s

reliability standard to the facts of this case warrants no

further review. And the same is true with respect to the

plaintiffs’ engineering expert, Dr. Elghobashi. The

district court excluded Dr. Elghobashi’s opinion about

effects his model did not measure “because (1) his

conclusion about the Bair Hugger’s effects in real-world

operating rooms relied on an unproven and untested

premise, (2) there was too great an analytical gap between

the results of his CFD and his conclusion about the Bair

Hugger’s effects in real-world operating rooms, and (3)

the CFD model was developed for litigation.” App. 9.

Critically, the Eighth Circuit agreed with the district court

about the first problem, holding that Dr. Elghobashi did

not provide “support for [his] assertion” that introducing

“additional real-world conditions” into his model would

“exaggerate[]” “Bair Hugger’s effect on the dispersion of

squames” in the operating room. App. 22. The Eighth

Circuit therefore affirmed this aspect of the district

court’s exclusion decision and limited the scope of Dr.

Elghobashi’s opinion.7

7

Having limited his opinion, the Eighth Circuit reversed the

“categorical exclusion of Dr. Elghobashi and his model,” finding that

the results of the CFD model supported his remaining conclusions,

eliminating the “problematic analytical gap” identified by the district

court. App. 22–23. It also properly rejected the district court’s emphasis on the fact that Dr. Elghobashi’s testimony and model was “developed for litigation.” App. 23. That Dr. Elghobashi’s report was published in a peer-reviewed journal, the Eighth Circuit held, made any

“lingering questions of reliability and objectivity go to weight rather

than admissibility.” App. 23; see also Daubert, 509 U.S. at 593

-19This partial affirmance, standing alone, undermines

3M’s repeated claims that the Eighth Circuit has

“reduce[d] evidentiary reliability to mere relevance.”

Pet. 2. Dr. Elghobashi’s opinion about real-world

operating rooms was indisputably relevant to the

plaintiffs’ claims. Still, the Eighth Circuit excluded it

solely because it was unreliable; this aspect of his opinion

was “based on [his] knowledge,” not on any scientific

evidence. App. 22. And it did so by expressly citing

Joiner—only highlighting that the decision below merely

applied this Court’s settled reliability standard to the

record evidence. See id.

For reasons of its own, 3M is understandably

dissatisfied with the Eighth Circuit’s conclusions and

would prefer a do-over. But that does not justify this

Court stepping in to reassess the scientific evidence in this

particular case.

C. Review is further unwarranted because there is no

conflict in the lower courts over the standard of

admissibility for expert evidence. 3M selectively quotes

from other circuits’ decisions to suggest that some circuits

employ a more demanding reliability standard than

others. Pet. 26–28. But these varying linguistic

formulations of the Daubert/Rule 702 standard does not

mean that different circuits are actually using different

standards—let alone that the differing formulations are

somehow outcome determinative.

Perhaps recognizing this, 3M never even attempts to

argue that any other court would have reached a different

conclusion in this case—the sine qua non of a circuit split.

(explaining that the reliability inquiry considers “whether the theory

or technique has been subjected to peer review and publication”).

-20And for good reason. To take just a single example: 3M

identifies the Third Circuit as a court that applies a

“demanding reliability standard.” Pet. 26, 28. But 3M fails

to mention that the Third Circuit has also repeatedly held

that “[t]he standard for [determining] reliability is not

that high.” Karlo v. Pittsburgh Glass Works, LLC, 849

F.3d 61, 81 (3d Cir. 2017); United States v. Schiff, 602 F.3d

152, 173–74 (3d Cir. 2010); In re TMI Litig., 193 F.3d 613,

665 (3d Cir. 1999). Indeed, in one of the very cases that

3M cites, the Third Circuit suggested that the “ultimate

touchstone” of Rule 702’s “reliability requirement” is

mere “helpfulness to the trier of fact.” In re Paoli R.R.

Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).8

All this goes to show that, under Daubert, the

reliability inquiry is a “flexible one,” on which “[m]any

factors will bear.” 509 U.S. at 593–94. It is therefore

unsurprising that different courts evaluating different

expert evidence will reach different outcomes based on the

specific facts before them. That does not mean there is a

conflict over the proper standard—let alone a certworthy

conflict. This Court should deny 3M’s petition.

8

Applying these precedents, the Third Circuit has held, for example, that a district court erred in applying a “merits standard of

correctness” and a “bright-line exclusionary rule” in excluding an expert’s testimony due to statistical flaws, without evaluating whether

the expert’s opinion and explanations otherwise rested on good

grounds. See Karlo, 849 F.3d at 83. As the Third Circuit emphasized,

“[t]he question of whether a study’s results were properly calculated

or interpreted ordinarily goes to the weight of the evidence, not its

admissibility.” Id (emphasis added).

-21II. The Eighth Circuit, like all other circuits, reviews

district-court decisions to exclude expert evidence

for abuse of discretion.

This Court should also deny review of 3M’s second

question presented, which it tacks on near the end of its

petition. Initially, 3M is simply wrong when it claims that

the Eighth Circuit has adopted an “insufficiently

deferential standard of appellate review” for decisions

excluding expert evidence. Pet. 28. The decision below

expressly identified and applied the abuse-of-discretion

standard that this Court held was required in Joiner.

Regardless, because the second question presented fails

to satisfy any of the traditional criteria for certiorari,

review is unwarranted.

A. 3M’s entire argument on the second question

presented turns on two stray passages in the Eighth

Circuit’s 35-page opinion below. First, the Eighth Circuit

“recognized that the ‘liberal thrust’ of Rule 702 regarding

the admissibility of expert testimony creates ‘an

intriguing juxtaposition with our oft-repeated abuse-ofdiscretion standard of review.’” App. 10. Then, a couple

paragraphs later, the Eighth Circuit identified another

“intriguing juxtaposition”—specifically, the tension

between the “significant deference” owed to district-court

exclusion decisions and the “general rule” that “the factual

basis of an expert opinion goes to the credibility of the

testimony, not the admissibility.” App. 12.

Based solely on these two remarks, 3M contends (at

28) that the Eighth Circuit has adopted a novel and

“insufficiently deferential standard of appellate review.”

Quite the opposite: In reviewing the expert testimony and

record evidence, not once did the Eighth Circuit mention

the “intriguing juxtaposition[s]” it had observed earlier.

-22Instead, as 3M admits, the decision below expressly

recognized the district court’s “gatekeeping function” and

identified the governing abuse-of-discretion standard.

App. 10. And that is the only standard of review that the

Eighth Circuit applied throughout its analysis of the

district court’s exclusion decision.

Specifically, the Eighth Circuit held that the district

court “abused its discretion in excluding [the medical]

experts’ general-causation opinions on the basis of

excessive analytical gaps” because the district court had

overlooked or improperly discounted substantial

empirical support in the record for those opinions. App.

35. Likewise, it held that the “court abused its discretion

insofar as it excluded all of Dr. Elghobashi’s testimony,”

because, “properly limited,” his testimony was

“admissible.” App. 24 (emphasis added); see also App. 22.

The Eighth Circuit’s application of the abuse-ofdiscretion standard was entirely consistent with this

Court’s precedent. See, e.g., Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990) (explaining that “[a] district

court would necessarily abuse its discretion if it based its

ruling on . . . a clearly erroneous assessment of the

evidence”). Indeed, in Joiner itself, this Court reviewed in

detail the underlying studies in the record to determine

whether they reliably supported the experts’ opinions and

whether the court abused its discretion in excluding their

testimony. See 522 U.S. at 144–46. The Eighth Circuit

here did the same. No review of its application of settled

law to the facts of this case is necessary.

B. In any event, the second question presented is

plainly unworthy of certiorari. 3M never even tries to

suggest that there is any conflict in the lower courts over

the appropriate standard of appellate review of district-

-23court decisions to exclude expert evidence. And rightly

so—because there is none. This Court was crystal clear in

Joiner: “[T]he question of admissibility of expert

testimony . . . is reviewable under the abuse-of-discretion

standard,” and that same standard applies whether the

district court admits or excludes the testimony. 522 U.S.

at 142–43.

Nor does 3M make any effort to show that this Court’s

review is necessary to resolve an “important question of

federal law.” S. Ct. R. 10 (emphasis added). Even if it were

true that the Eighth Circuit applied the incorrect

standard of review (and it is not), 3M identifies only one

other decision in which the Eighth Circuit—or any other

court—has remarked on the “juxtaposition” between the

abuse-of-discretion standard and Rule 702’s “liberal

thrust.” Pet. 29 (discussing Johnson v. Mead Johnson &

Co., LLC, 754 F.3d 557 (8th Cir. 2014)). Indeed, the various

Eighth Circuit decisions that 3M critiques in its argument

on the first question presented (at 24–26) expressly

applied only an abuse-of-discretion standard.9 And

numerous Eighth Circuit decisions upholding the

exclusion of expert testimony (see supra, n.4) did so based

9

See, e.g., Klingenberg v. Vulcan Ladder USA, LLC, 936 F.3d

824, 828 (8th Cir. 2019); United States v. Finch, 630 F.3d 1057, 1062

(8th Cir. 2011); First Union Nat. Bank v. Benham, 423 F.3d 855, 861

(8th Cir. 2005); Smith v. BMW N. Am., Inc., 308 F.3d 913, 918 (8th

Cir. 2002); Bonner v. ISP Techs., Inc., 259 F.3d 924, 928 (8th Cir.

2001); McKnight By & Through Ludwig v. Johnson Controls, Inc., 36

F.3d 1396, 1401 (8th Cir. 1994).

-24on a determination that the district court abused its

discretion.10

So, even accepting 3M’s characterization of the

decision below, this Court’s review of the second question

presented would possibly affect only rare “outlier”

decisions in a single circuit—decisions that no one, not

even 3M, contend implicate a conflict in the lower courts.

This Court should thus deny review of the second

question.

III. 3M’s overblown policy arguments about “junk”

science are not presented by this case and best

directed to the advisory committee currently

considering possible changes to Rule 702.

Central to 3M’s and its amici’s strident pleas for

review is their purported concern that an insufficiently

demanding admissibility standard will allow “dubious”

expert evidence and so-called “junk” science to

proliferate. Pet. 2, 17, 31–32; see, e.g., Atlantic Legal

Foundation et al. Amicus Br. 3–4 (critiquing “purveyors of

pseudo-science” and “professional expert witnesses who,

for a price, peddle junk science testimony”).

But this policy concern, which has little empirical

support, actually demonstrates why 3M’s petition should

be denied. First, the expert testimony in this case was not

based on “dubious” or “junk” science—the experts are

well-renowned in their fields and relied on reams of

10

See, e.g., Weisgram, 169 F.3d at 521; J.B. Hunt Transport,

Inc., 243 F.3d at 444; Glastetter, 252 F.3d at 991–92; Pro Service

Auto., LLC, 469 F.3d at 1214; Smith, 462 F.3d at 925; Marmo, 457

F.3d at 758; Menz, 507 F.3d at 1114–15; Bland, 538 F.3d at 899; Polski, 538 F.3d at 840–41; Barrett, 606 F.3d at 980–81; In re Wholesale

Grocery Prods. Antitrust Litig., 946 F.3d at 1002.

-25published and peer-reviewed materials. So 3M’s concern

is not even presented here. Second, the rulemaking

process, not this Court, is the proper forum for these

policy arguments. In fact, industry groups—including

some of 3M’s amici here—have raised these very concerns

with the advisory committee currently considering

amendments to Rule 702. It would make no sense for this

Court to grant review only for the advisory committee to

change (and perhaps even moot) the questions presented.

A. To start, there is considerable basis to question the

validity of 3M’s (obviously self-interested) concern about

so-called “junk” science. But, to the extent that 3M

presents this concern in good faith, it is a reason to deny

this petition, not grant it—because the expert evidence

here was decidedly not “junk” science.

As the Eighth Circuit detailed, the experts here relied

on peer-reviewed and published epidemiological and

experimental studies that investigated the relationship

between Bair Hugger and PJI, as well as Bair Hugger’s

effect on contamination and spread of bacteria-laden

particles in operating rooms. App. 14–19, 25–32. Dr.

Elghobashi’s own study—which 3M and the district court

denigrated as being “developed for litigation”—was

published in a peer-reviewed biomedical-engineering

journal. App. 20. And 3M itself conceded that Dr.

Elghobashi is a world-renowned expert in computational

fluid dynamics and that his CFD model was reliable. See

App. 48, 54.

In fact, although 3M asserts (at 36) that the plaintiffs’

expert evidence “complete[ly] deviat[es] from consensus

medical opinion,” several of 3M’s own key pieces of

evidence—for example, the 2018 International Consensus

Meeting on Periprosthetic Joint Infection—recognize the

-26“theoretical risk” posed by forced-air warming. App. 36;

see also App. 37 (observing that even the “authorities 3M

calls to our attention as showing a lack of general

acceptance acknowledge that ‘concerns exist’ about a link

between forced-air warming and surgical-site infections”).

And the scientific evidence supporting the plaintiffs’

claims continues to accumulate. Just last year,

experimental research presented to the American Society

of Anesthesiologists found that forced-air warming

devices, including Bair Hugger, “could be significant

sources of . . . air contamination” of operating-room air.

John G. Brock-Utne, Justin T. Ward & Richard A. Jaffe,

Potential

Sources

of

Operating

Room

Air

Contamination: A Preliminary Study, J. Hosp. Infection

(2021), available at https://perma.cc/SZ9X-CP9C (study

collecting air samples from Bair Hugger and other forcedair warming devices and identifying bacterial colony

counts in each sample). One of the lead researchers and

chief resident at Stanford University’s Department of

Anesthesiology concluded “with certainty that the Bair

Hugger is contributing airborne microbes into the air.”

Michael Vlessides, Warming Devices May Be Source of

Airborne Microbial Contamination, but Fix Is Possible,

Anesthesiology

News

(March

11,

2021),

https://perma.cc/5BQN-SL2A.

Even if the plaintiffs’ expert opinions in this case may

not be generally accepted, that does not mean that they

are “junk” or “dubious” science. See, e.g., Daubert v.

Merrell Dow Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir.

1995) (Daubert II) (explaining that “methods accepted by

a minority in the scientific community may well be

sufficient” to demonstrate reliability); Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 153 (1999) (defining

parameters of reliable testimony as “the range where

-27experts might reasonably differ, and where the jury must

decide among the conflicting views of different experts,

even though the evidence is ‘shaky’”). It is clear that

“Daubert neither requires nor empowers trial courts to

determine which of several competing scientific theories

has the best provenance.” Ruiz-Troche v. Pepsi Cola, 161

F.3d 77, 85 (1st Cir. 1998); see Fed. R. Evid. 702, advisory

committee note (explaining that the amended rule “is

broad enough to permit testimony that is the product of

competing principles or methods in the same field of

expertise”). Indeed, “[t]he rejection of a simple dichotomy

between ‘good’ and ‘bad’ science facilitates discussion in a

number of areas otherwise precluded.” Edmond &

Mercer, supra, at 14.

This case illustrates why the often-invoked “junk

science” slogan does not reflect reality. The only

independent scientific commission tasked with studying

the role of science in litigation concluded three decades

ago that, as for the “alleg[ations] that ‘junk science’ is

flooding the courtroom,” “many of the concerns are

greatly exaggerated” and “it does not appear that federal

courts are being inundated with fringe science.” Carnegie

Commission on Science, Technology, and Government,

Science and Technology in Judicial Decision Making 13

(1993); see also, e.g., Brie D. Sherwin, Anatomy of A

Conspiracy Theory: Law, Politics, and Science

Denialism in the Era of Covid-19, 8 Tex. A&M L. Rev.

537, 575 (2021). Others have also found that “there is no

evidence that at any point in time the federal court system

has been flooded with charlatan experts.” Sean Ryan,

Backfire: Abandoning the Abuse of Discretion Standard

of Review for Daubert Rulings Shoots Trial Courts in the

Foot, 47 U. Tol. L. Rev. 349, 357 (2016) (arguing that “the

junk science problem was largely manufactured on

-28anecdotal information and inflated rhetoric, made at the

insistence of defendant-friendly think tanks”). Instead,

the label of “[j]unk science is a convenient scapegoat for

deeper law-science conflicts because it plays on public

fears of science and technology being out of control, while

providing a rallying point for legal reform.” Gary Edmond

& David Mercer, Trashing “Junk Science”, 1998 Stan.

Tech. L. Rev. 3, 4 (1998).

B. In the end, 3M and its amici are pressing a policy

argument based on a faulty premise: Rule 702, as applied

by the lower courts, does not sufficiently keep out

allegedly unreliable expert evidence. But “[i]t is hardly

this Court’s place to pick and choose among competing

policy arguments.” Pereida v. Wilkinson, 141 S. Ct. 754,

766 (2021). Rather, such arguments should be directed to

the institution that is responsible for addressing such

policy-based concerns—here, the Judicial Conference

Committee on Rules of Practice and Procedure.

All the more so here because the Advisory Committee

on Evidence Rules is currently considering amendments

to Rule 702—changes that might obviate 3M’s and its

amici’s concerns. Last summer, the advisory committee

announced its proposed amendments to Rule 702 and

requested public comment. See 86 Fed. Reg. 41087, 41088

(July 30, 2021). And in a few weeks, the advisory

committee will hold a meeting to determine “whether to

give final approval to the amendment[s].” Advisory

Committee on Evidence Rules, Agenda for May 6, 2022

Committee Meeting, U.S. Courts, (May 6, 2022) at 2,

https://perma.cc/5VVB-8275; see also 86 Fed. Reg. 8039,

8039 (Feb. 11, 2022).

Notably, numerous industry groups—including many

amici in this case—recently filed public comments

-29supporting the proposed amendments. These comments

make clear that the advisory committee is best positioned

to effectively address the broader concerns about Rule

702. For example, one of the amici here told the committee

that the proposed amendments “will help to exclude junk

science” by “reinforc[ing] federal district judges’

gatekeeper role and further clarify[ing] that admissibility

of expert testimony must be based on proper methodology

and valid factual bases.” Atlantic Legal Foundation

Comment to Advisory Committee on Evidence Rules at 2–

3 (Feb. 11, 2022), https://perma.cc/NS3Q-HQPN . Another

argued that “Rule 702, as applied by many courts, is

broken” and pointed explicitly to the Eighth Circuit’s

decision below; the best way to “fix it,” the amicus

continued, was by “[a]n amendment and a strong

accompanying note.” Product Liability Advisory Council

Comment to Advisory Committee on Evidence Rules at

14, 16, 32, 47–48 (Feb. 3, 2022), https://perma.cc/B7PB6WVW; see also, e.g., Washington Legal Foundation

Comment to Advisory Committee on Evidence Rules at 3

(Dec.

14,

2021),

https://perma.cc/GS7R-XH6Y

(acknowledging that Rule 702 is “ambiguous”); Lawyers

for Civil Justice Comment to Advisory Committee on

Evidence Rules (Sept. 1, 2021), https://perma.cc/9FV7EEKR.

These public comments only highlight why it would be

unwise for this Court to step in to attempt to address

issues that are currently under consideration by the

relevant committee. The reliability inquiry that courts use

to assess expert evidence might change if the proposed

amendments to Rule 702 are ultimately adopted. Or it

might not. But this Court should not short-circuit the

rulemaking process by granting the petition now—only

for its eventual decision to be possibly rendered moot by

-30the advisory committee’s final decision.

As of now, what Daubert and Rule 702 require is that

an expert’s opinion be grounded on reliable scientific

methods and that such inquiry be undertaken in light of

the facts and evidence in a particular case. Because the

Eighth Circuit applied that well-established standard to

the facts here, this Court’s review is unwarranted.

CONCLUSION

This Court should deny 3M’s petition for a writ of certiorari.

Respectfully submitted,

DEEPAK GUPTA

Counsel of Record

GUPTA WESSLER PLLC

2001 K Street, NW

North Tower, Suite 850

Washington, DC 20006

(202) 888-1741

deepak@guptawessler.com

NEIL K. SAWHNEY

GUPTA WESSLER PLLC

100 Pine Street, Suite 1250

San Francisco, CA 94111

(415) 573-0336

MICHAEL SACCHET

LESLIE O’LEARY

CIRESI CONLIN, LLP

-31225 South 6th Street,

Suite 4600

Minneapolis, MN 55402

(612) 361-8200

GENEVIEVE ZIMMERMAN

MESHBESHER & SPENCE,

LTD

1616 Park Avenue South

Minneapolis, MN 55404

(612) 339-9121

KYLE FARRAR

FARRAR & BALL, LLP

117 Herkimer Street

Houston, TX 77008

(713) 221-8300

GABRIEL ASSAAD

MCDONALD WORLEY

1770 St. James Place, Suite

100

Houston, TX 77056

(281) 623-1906

April 11, 2022

Counsel for Respondent