Amicus Curiae Brief — General Electric Co. v. Joiner

- Washington, DC 2004-1790

IN THE

Supreme Court of the United

OCTOBER TERM, 1996

Y 30 1997

OFFICE OF THE CLERK

GENERAL ELECTRIC COMPANY,

WESTINGHOUSE ELECTRIC CORPORATION,

and MONSANTO COMPANY,

* Petitioners,

ROBERT K. JOINER and KAREN P. JOINER,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE,

THE PRODUCT LIABILITY ADVISORY COUNCIL, INC.

THE NATIONAL ASSOCIATION OF MANUFACTURERS,

AND MEDMARC,

IN SUPPORT OF PETITIONERS

HUGH F. YOUNG, IR.“ MARY A. WELLS

PRODUCT LIABILITY ADVISORY Counsel of Record

COUNCIL, INC. SUANNE M. DELL

1850 Centennial Park Drive GREGORY E. SOPKIN

Suite 510 WELLS, ANDERSON & RACE LLC

Reston, VA 22091 1700 Broadway, Suite 1850

(703) 264-5300 Denver, CO 80290

JAN S. AMUNDSON * (308) 80-1212

General Counsel KEVIN QUINLEY *

QUENTIN RIEGEL General Counsel

Deputy General Counsel MEDMARC

NATIONAL ASSOCIATION OF 4000 Legato Road, Suite 800

MANUFACTURERS Fairfax, VA 22033

1331 Pennsylvania Ave., N.W. (703) 273-1995

Suite 1500—North Lobby

(202) 637-3000

Of Counsel *

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

I. THE ABUSE OF DISCRETION STANDARD

OF REVIEW SHOULD BE CONSISTENTLY

APPLIED WHETHER THE TRIAL COURT

ADMITS OR EXCLUDES EXPERT EVI-

DENCE, OR WHETHER A DECISION TO

EXCLUDE RESULTS IN SUMMARY JUDG-

MENT OR DIRECTED VERDICT

. The Same Standards Should Be Applied Re-

gardless of Department Motions: Summary

Judgment or Directed Verdict Are Not Dis-

r

. No Reason to Distinguish Rule 702 From

Other Evidence Rules

. The Abuse of Discretion Standard Makes

Sense As Applied to Trial Court Rulings on

. The Proposed “Particularly Stringent” Stan-

dard Has No Meaning

. Multiple Standards Applied to Different Ad-

missibility Factors Unnecessarily Compli-

. THE HISTORICAL UNDERPINNINGS FOR

DEFERENTIAL ABUSE OF DISCRETION

STANDARD REMAIN VITAL TODAY

ii

TABLE OF CONTENTS—Continued

A. Over 100 Years of Precedent For Abuse of

Discretion Standard

B. The Rationale For Abuse of Discretion Stan-

dard In Evidentiary Matters

CONCLUSION

—

6e %% %% „% % % 9 SSSI OOOO SSS

Page

111

TABLE OF AUTHORITIES

Cases Page

Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194

r è— ²ʃ“ ̃ rA 14

Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir.

e x

American & Foreign Ins. Co. v. General Electric

Co., 46 F.3d 135 (6th Cir. 1995) — 11,14

Anderson v. Bessemer City, 470 U.S. 564 (1985) 286, 27

Arcoren v. United States, 929 F.2d 1235 (8th Cir.

e . 8, 19

Arrendondo v. Uniroyal Goodrich Tire Co., 1995

U.S. Dist. LEXIS 19943 (D. Ariz. Aug. 14,

17 — — 14

Barrett v. Atlantic Richfield Co., 95 F.3d 375 (5th

a 8, 13, 14

Bauman v. Center, 611 F.2d 1115 (5th Cir. 1980) 9,19

Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th

CT ,.. —˙0%k q.... 11, 18

Brown v. Miska, 1995 U.S. Dist. LEXIS 17197

(S.D. Tex. July 19, 1995), aff'd without op., 96

F.3d 1445 (5th Cir. 199) 14

Buckner v. Sam's Club, Inc., 75 F.3d 290 (7th Cir.

D eee 8,13

Busby v. City of Orlando, 931 F.2d 764 (11th Cir.

EE 17

Compton v. Subaru of Am., Inc., 82 F.3d 1513

(10th Cir. 1996) cert. denied —— U.S. ——

e è⅛ʃ'uAX 10

Cook v. American S. S. Co., 53 F.3d 733 (6th Cir.

r ... 21, 22

Cooter & Gell v. Hartmarz Corp., 496 U.S. 384

A 23, 24, 25, 26, 27

Cummins v. Lyle Indus., 93 F.3d 362 (7th Cir.

e LL cc cr 14

Daubert v. Merrell Dow Pharms., 509 U.S. 579

EN 3, 9, 10, 20

Deimer v. Cincinnati Sub-Zero Prods., Inc., 58

r 11

Duffee by and Through Thornton v. Murray Ohio

Mfg. Co., 91 F.3d 1410 (10th Cir. 1996) 12

iv

TABLE OF AUTHORITIES—Continued

Page

Earnshaw v. United States, 146 U.S. 60 (1892) 23

Filand v. Westinghouse Elec. Corp., 58 F.3d 176

(5th Cir. 1995) 16

Fuller v. CBT Corp., 905 F.2d 1055 (7th Cir.

ES 24

Gagne v. Northwestern National Ins. Co., 881 F. 2d

809 (6th Cir. 1989) 16

Goewey v. U.S., 1997 U.S. App. LEXIS 1528 (4th

. ꝙ—x— — — 13, 14

Government of the Virgin Islands v. Sanes, 57 F.3d

Se CT — — — 11

Hall v. Baxter Healthcare Corp., 947 F. Supp.

1387 (D. Or. 1996) —— ne ee 14

Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992) 17

Hawkins v. Hennepin Technical Center, 900 F.2d

1 16

Hopkins v. NCR Corp., 1994 U.S. Dist. LEXIS

17278 (M.D. La. Nov. 17, 1994) ............................ 14

Hose v. Chicago Northwestern Transp. Co., 70

Pi GG (0H Oy ————— SE 13

In re “Agent Orange” Prod. Liab. Litig., 611 F.

A(R. 1!ñ„ç„„7r?«' 19

In re Air Crash Disaster at New Orleans, 195 F.2d

ET 7

In re Joint Eastern & Southern Dist. Asbestos Lit-

igation, 52 F.3d 1124 (2d Cir. 19959) 10

In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717

. — 7,8

In re Swine Flue Immunization Prods. Liab. Litig.,

533 F. Supp. 567 (D. Colo. 1980) ........................ 19

In re Swine Flue Immunization Prods. Liab. Litig.,

508 F. Supp. 897 (D. Colo. 1981) aff’d Lima v.

United States, 708 F.2d 502 (10th Cir. 1983) 19

Isaacs v. United States, 159 U.S. 487 (1898) 24

Joiner v. General Electric, 78 F.3d 524 (11th Cir.

170000 3, 6, 8

Joy v. Bell Helicopter Textron, Inc., 999 F. 2d 549

(D.C. Cir. 1993) 11

Kieffer v. Weston Land, Ine., | 90 F.3d 1496 (10th

Cir. 1996) 18

*

TABLE OF AUTHORITIES—Continued

Page

Koon v. United States, —— U.S. ——, 116 S. Ct.

EEE Sa 23, 24

Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir.

EE LE n 8,19

Lindy Bros. Builders, Inc. v. American Radiator

& Standard Sanitary Corp., 540 F.2d 102 (3d

r ˙— . -r 24

Lucas v. Bechtel Corp., 800 F.2d 839 (9th Cir.

ee Ie ARS 15

Lust by & Through Lust v. Merrell Dow Pharms.,

Inc., 89 F.3d 594 (9th Cir. 1996) 0... 10, 12

Markman v. Westview Instruments, Inc., 52 F.3d

e ͥ 2. 13

McCullock v. H. B. Fuller Co., 61 F.3d 1088 (2d

r 11, 13

Means v. Bank of Randall, 146 U.S. 620 (1892) 23

Merit Motors, Inc. v. Chrysler Corp., 569 F. 2d 666

AE AE XX 9,19

Miller v. Fenton, 474 U.S. 104 (198) 26

Old Chief v. United States, —— U.S. ——, 117

SS a 15, 24, 25

Ornelas v. United States, —— U.S. ——, 116 S. Ct.

. T 26

Pandit v. American Honda Motor Co., 82 F.3d 376

CS ˙ a — 16

Pedraza v. Jones, 71 F.3d 194 (5th Cir. 1995) 11

Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293

EN w 14

Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th Cir.

e 11

Petruzzi’s IGA Supermarkets, Inc. v. Darling

Delaware Co., 998 F.2d 1224 (3d Cir. 1993) 16, 22, 25

Pierce v. Underwood, 487 U.S. 552 (1988) 26, 27

Purnell v. Lord, 952 F.2d 679 (2d Cir. 1992) 16

Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir.

rr 8, 13

Salem v. United States Lines Co., 370 U.S. 31

a 9, 24, 25

vi

TABLE OF AUTHORITIES—Continued

Page

Salve Regina College v. Russell, 499 U.S. 225 1

RE

ecu Volkswagenwerk A.G., 648 F.2d 833 (3d

r 9, 19

Shat kin v. McDonnell Douglas Corp., 727 F. 2d 202

(2d Cir. 1984 — 19

Soden v. Freightliner Corp., 714 F.2d 498 (5th Cir.

—— 3 ee ON ee 8, 18, 19

Spring Co. v. Edgar, 99 U.S. 645 (1878) 9, 25

Stanczyk v. Black & Decker, Inc., 836 F. Supp. 565

BO Ue 14

State ex rel. Carroll v. Junker, 482 P.2d 775

dE RT et ae 24

United States v. Abel, 469 U.S. 45 (1984) 1 15, 24, 25

United States v. Addison, 498 F.2d 741 (D.C. Cir. :

999. — —nʃ— ee

United States v. Boyd, 58 F.3d 631 (4th Cir. 1995) 16

United States v. Downing, 753 F.2d 1224 (3d Cir.

Ses ee ee 18, 19

United States v. Fortenberry, 971 F.2d 717 (11th

ER ST RE ae 16

United States v. Guerrero-Cortez, 110 F.3d 647

KK» A 16

United States v. Jones, 107 F.3d 1147 (6th Cir.

ee ee ̃ T————— —ęA . 22

United States v. Karterman, 60 F.3d 576 (9th Cir

1 16

United States v. Kizeart, 102 F.3d 320 (7th Cir

—..——ů ů — — . — 16

United States v. Leo, 941 F.2d 181 (3d Cir. 1991) 17

United States v. McGlory, 968 F.2d 309 (3d Cir.

— aS ae ee 17

United States v. Peters, 15 F.3d 540 (6th Cir

RT ee ee eee 16

United States v. Quinn, 18 F.3d 1461 (9th Cir

rere 13

United States v. Rose, 104 F.3d 1408 (ist Cir.

— SS I ES A es Ee 16

United States v. Shay, 57 F.3d 126 (ist Cir.

ee 11

vii

TABLE OF AUTHORITIES—Continued

Page

Virgin Island v. Penn, 888 F. Supp. 1054 (D. V. I.

11 AES a ad a ne 13

Wayte v. United States, 470 U.S. 598 (19885) 27

Wintz by & Through Wintz v. Northrop Corp., 110

2 1 C 13

Statutes and Rules:

r EES 8, 14

r IE TRE Aa 5, 16

r RN RR ES 5, 16

r . passim

r EE ER eee 5, 16

EE Se passim

LA NE ETT 5, 8, 15, 18, 19

NTT . 8

r es 8

ee ee ee ee 24

EE ee 8

Miscellaneous

1 Steven Alan Childress & Martha S. Davis, Fed-

eral Standards of Review (2d ed. Supp. 1996) 10

9A Charles A. Wright & Arthur Miller, Federal

Practice and Procedure (2d ed. 1994) 25

G. Michael Fenner, The Daubert Handbook: The

Case, Its Essential Dilemma, and Its Progeny,

29 Creighton L. Rev. 989 (1996) .... 10

4 Jack B. Weinstein & Margaret A. Berger, Wein-

stein’s Federal Evidence (Ist ed. 1975) 19

4 Jack B. Weinstein & Margaret A. Berger, Wein-

stein’s Federal Evidence (2d ed. 1997) 5, 6, 8, 9, 14

Rosenberg, Judicial Discretion of the Trial Court,

Viewed from Above, 22 Syracuse L. Rev. 635

EL SL a aT ee ae 21, 27

K. Kunsch, Standard of Review (State and Fed-

eral): A Primer, 18 Puget Sound L. Rev. 11

— EE — — 25, 27

IN THE

Supreme Court of the United States

OcTOBER TERM, 1996

No. 96-188

GENERAL ELECTRIC COMPANY,

WESTINGHOUSE ELECTRIC CORPORATION,

and MONSANTO COMPANY,

0 Petitioners,

RoBERT K. JOINER and KAREN P. JoINER,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE,

THE PRODUCT LIABILITY ADVISORY COUNCIL, INC.,

THE NATIONAL ASSOCIATION OF MANUFACTURERS,

AND MEDMARC,

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CH]

The Product Liability Advisory Council, Inc. (“PLAC”)

is a nonprofit corporation with 114 corporate members

from a broad cross-section of American industry, and the

* Pursuant to S. Ct. R. 37.6, counsel for amici curiae state that

this brief was not authored in whole or in part by a party and

that no person or entity, other than the amici curiae, its members

and its counsel, made a monetary contribution to the proportion or

submission of this brief.

2

product liability lawyers who represent them. Its corporate

members include manufacturers and sellers in industries

ranging from electronics to automobiles to pharmaceutical

products and medical devices. PLAC’s purpose is to file

amicus briefs or behalf of its members on issues that affect

the law of product liability. PLAC has submitted many

amicus briefs in state and federal courts, including this

Court.

The National Association of Manufacturers (the “NAM”)

is the nation’s oldest and largest broad-based industrial

trade association. Its more than 14,000 member com-

panies and subsidiaries, including 10,000 small manu-

facturers, employ approximately eighty-five percent of all

manufacturing workers and produce over eighty percent

of the nation’s manufactured goods. More than 158,000

additional businesses are affiliated with the NAM through

its Associations Council and National Industrial Council.

The NAM's interest on issues that affect the law of

product liability is identical to the interest of PLAC.

MEDMARC is a specialty insurer which provides

product liability coverage for medical device manufac-

turers. Owned and controlled by its members, MEDMARC

was founded in 1979 in response to volatile conditions in

the commercial insurance market for product liability

insurance. MEDMARC’s membership includes approxi-

mately 550 manufacturers and distributors of medical

devices and diagnostic products.

The issue before this Court is the proper standard of

review of trial court decisions admitting or excluding

expert evidence Amici curiae are well-situated to address

this issue. Their members are subject to defending an

increasing number of product liability lawsuits. Expert

testimony is the rule, not the exception in those cases.

1A list of PLAC’s corporate members appears in the appendix

hereto.

3

Amici curiae regularly face appeals on issues relating to

the propriety of expert evidence.

SUMMARY OF ARGUMENT

The standard of review for trial court decisions con-

cerning the admissibility of evidence including admission

or exclusion of expert testimony has been the deferential

abuse of discretion standard. The Eleventh Circuit in

Joiner v. General Electric, 78 F.3d 524, 535 (11th Cir.

1996) applied a “particularly stringent” standard of review

to the trial court’s exclusion of expert testimony, even

though the trial court did not misapprehend the law

applicable to the issue. It created a double standard of

review, dependent on whether the trial court admitted

or excluded the evidence. Other courts have suggested

multiple standards of review, dissecting the admissibility

ruling into components in which different standards are

applied. Still other courts apply multiple standards de-

pending upon the final outcome of the admissibility deci-

sion, namely whether it results in summary judgment or

directed verdict.

What is the proper standard of review for a trial court’s

decision on the admission or exclusion of evidence from

experts? This is the limited issue before the Court. Amici

agree with this Court that the trial court is best situated

and fully capable of fulfilling the gatekeeper role more

fully defined in Daubert v. Merrell Dow Pharms., 509

U.S. 579 (1993). Those duties vary little from the obli-

gations successfully carried out by the trial courts prior

to Daubert. It is an unnecessary waste of time and re-

sources for appellate courts to revisit the admissibility

determination as if taking a first look at the matter.

While the Federal Rules of Evidence freed the trial

courts from the strictures of some common law exclu-

2 The Parties’ written consent to the submission of this brief is

on file with the Court.

4

sionary rules and formalistic requirements, thus “liberaliz-

ing” the admission of evidence, the changes in the law of

evidence contained within the Rules provide no justifica-

tion for abandoning the traditional abuse of discretion

standard of review. The “liberal thrust” of the Rules does

not suggest that the reliability gate has been cracked open

to permit unreliable evidence to slip through. The param-

eters within which evidence must fall to be deemed reli-

able have been merely broadened and clarified. The

“liberal thrust” of the Rules is in fact related to their

flexibility. With that flexibility is the recognition that the

trial court has broad discretion with respect to application

of the Rules to each particular case. Adoption of a

“particularly stringent” standard of review will no en-

courage trial judges to be flexible.

If the resolution of the admissibility question is fatal

to a party’s case, and results in summary judgment or a

directed verdict, that is no grounds to impose a stricter

standard of review than abuse of discretion. The trial

courts have had little difficulty resolving the admissibility

issues first, and then evaluating the merits of dispositive

motions. The trust this Court has in the trial courts to

fulfill the gatekeeper role is well-placed. In Daubert, the

trial court’s discretion was broadened to consider addi-

tional factors in evaluating the reliability of testimony

proffered by experts. That discretion must be respected

by the appellate courts faced with challenges to the trial

court’s rulings. To do otherwise, and permit the appellate

court to substitute its judgment for that of the trial court,

strains against judicial precedent and wastes judicial

resources. |

This court should reaffirm that the abuse of discretion

standard applies to all trial court determinations of the

admissibility of expert evidence.

5

ARGUMENT

I. THE ABUSE OF DISCRETION STANDARD OF

REVIEW SHOULD BE CONSISTENTLY APPLIED

WHETHER THE TRIAL COURT ADMITS OR EX-

CLUDES EXPERT EVIDENCE, OR WHETHER A

DECISION TO EXCLUDE RESULTS IN SUMMARY

JUDGMENT OR DIRECTED VERDICT

A. Introduction

The decision to admit or exclude expert evidence may

be based on evidence rules 401, 402, 403, 404(b), 702,

703, and/or a variety of statutes. Further, the effect of

an evidentiary ruling may vary, from a simple limitation

on the scope of certain evidence to complete exclusion

of a witness. In some cases, summary judgment or directed

verdict may follow, if the evidence excluded is crucial to

a party’s case.

Until very recently, circuit courts have unanimously

evaluated all lower court evidentiary decisions for abuse

of discretion or manifest error. The reasons for according

such deference to the trial court are manifest: 1) the

trial judge is in the best position to evaluate the proffered

testimony in the context of the entire case; 2) the trial

judge is called upon to make so many evidentiary rulings

in the course of a single case that the appellate courts

can ill afford to carry the burden of reviewing every such

ruling; 3) a heightened level of review of each evidentiary

_ Tuling will increase the frequency of appeals. Rulings on

the admissibility of expert testimony are based largely on

helpfulness to the jury, which of necessity, require the

exercise of discretion. In the past, the standard of review

has not been dependent upon whether the evidence was

admitted or excluded. It did not matter which evidence

rules formed the basis for the decision, the stage in the

3 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence, f 702.02[2] (ad ed. 1997) at 702-7: “There is no sub-

stantive difference between ‘manifest error’ and ‘abuse of discre-

tion.’ ”

6

proceeding when the issue was raised, or whether the deci-

sion led to the grant of a dispositive motion; the rulings

were reviewed for abuse of discretion.

To apply different standards of review according to the

result of the decision or the precise basis enunciated for

the decision, as some circuits now do, is to end decades

of uniform jurisprudence, and to add complexity and

confusion to an issue that needs clarity and consistency.

The abuse of discretion standard has worked for over a

century because it fosters finality of the trial court’s deci-

sion, recognizes the trial court is better situated to make

the decision, is simple to apply and makes sense. The

Daubert decision does not suggest that a double standard

is appropriate. To the contrary, this Court reaffirmed its

confidence in the trial court to determine the reliability

of expert evidence. The decision to admit or exclude that

testimony has always involved the analysis of the reliability

of the evidence, and now carries the same ramifications as

before. Because expert evidence may be admitted or

excluded under a variety of rules, the imposition of a

stricter scrutiny for trial court rulings which exclude

evidence under Rule 702 creates a pigeon hole for review

which ignores the interdependency of the Rules.

B. Admission Versus Exclusion

In Joiner, the Eleventh Circuit created a double stand-

ard when it applied “a particularly stringent standard of

review to the trial judge’s exclusion of expert testimony,”

78 F.3d at 529,* thus advocating a lesser standard where

the trial court admits expert testimony. The Rules them-

selves provide no support for a double standard; they are

neutral with respect to admission or exclusion. Com-

mentators have said correctly that the Rules provide the

trial judge with “broad discretion to admit or exclude

testimony under the test of helpfulness. J. Weinstein,

Weinstein's Federal Evidence, J 702.02[02], (2d ed. 1997).

It applied a new standard because the rules “display a prefer-

ence for admissibility.” Id. at 529.

7

In suggesting that “a hard look” should be taken,

appellate courts have expressed their concern about trial

court decisions to admit or exclude: the Fifth Circuit has

been concerned about the trial courts letting too much

in'; the Third and Eleventh Circuits are concerned about

the trial courts keeping too much out.“ If the Joiner dou-

ble standard is applied, the trial courts will be encouraged

to circumvent their gatekeeper duties, find a way around

the reliability gate, and admit the junk science Daubert

and the Rules meant to exclude. If a stricter standard

were applied to admission decisions, courts may escape

scrutiny by excluding that evidence which is sufficiently

reliable to meet the helpfulness standard of Rule 702.

The problems with a double standard are compounded

by some circuits which apply a stricter standard looking

to the end result of the trial court’s admissibility deter-

mination, not the foundation for it. Thus, in In re Paoli

R.R. Yard PCB Litigation, 35 F.3d 717, 750 (3d Cir.

1994), the Third Circuit stated:

Wihen the district court’s exclusionary evidentiary

rulings with respect to scientific opinion testimony

will result in a summary or directed judgment, we

will give them a “hard look“ . to determine if a

district court has abused its discretion in excluding

evidence as unreliable.

5 In Re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234

(5th Cir. 1986) : “In sum, we adhere to the deferential standard for

review of decisions regarding the admission of testimony by ex-

perts. Nevertheless, we take this occasion to caution that the stand-

ard leaves appellate judges with a considerable task. We will turn

to that task with a sharp eye, particularly in those intances, hope-

fully few, where the record makes it evident that the decision to

receive expert testimony was simply tossed off to the jury under a

‘let it all in’ philosophy. Our message to our able trial colleagues:

it is time to take hold of expert testimony in federal trials.”

See In re: Paoli R.R. Yard PCB Litigation, 35 F.8d 717 (3d

Cir. 1994) and Joiner, supra.

See also Ambrosini v. Labarraque, 101 F.3d 129, 132

(D.C. Cir. 1996) (applying de novo standard of review

because decision to exclude testimony resulted in sum-

mary judgment). This view fails to recognize that the

trial courts have had little trouble evaluating the admissi-

bility of evidence first, and considering subsequently

whether summary judgment or directed verdict are proper.’

See, e.g., Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 320

(7th Cir. 1996); Buckner v. Sam's Club, Inc., 75 F.3d

290, 292-93 (7th Cir. 1996); Barrett v. Atlantic Richfield

Co., 95 F.3d 375, 383 (Sth Cir. 1996).

There is no reason to apply different standards of

review to decisions that result in exclusion instead of

admission. We know that only reliable testimony is ad-

missible; the suggestion that a stricter standard is needed

when testimony is excluded misconstrues the “liberal

thrust” of the Rules. The courts that impose heightened

scrutiny to decisions excluding testimony recite that the

Rules changed the criteria for admission of some kinds

of evidence, and liberalized admission. See, e.g., In re

Paoli, supra; Joiner, supra. The notion that the federal

rules liberalized the standards of admission comes from

the abrogation of certain restrictive common law doctrines

and technicalities concerning evidence, including the

foundation required for expert testimony.“ See Federal

Rules of Evidene 702, 703, 704, 705; Arcoren v. United

States, 929 F.2d 1235, 1239 (8th Cir. 1991); Krist v.

Eli Lilly & Co., 897 F.2d 293, 298 (7th Cir. 1990);

Soden v. Freightliner Corp., 714 F.2d 498 (Sth Cir.

7 See, Fed. R. Civ. P. 56(e). Motions for summary judgment

depend upon the existence of admissible evidence.

o Meeting the goals of the Rules has greater significance than

technical perfection. F.R.E. 102. The Rules merged the concepts

of materiality and relevance, eliminated the needless formality of

the “best evidence” rule, eliminated the “uncalled witness rule,”

and permit experts to base their opinions on evidence which may be

inadmissible if it is information reasonably relied upon by experts

in the field. See generally Weinstein, supra, at 102.02[1]-[5]

9

1983); Seese v. Volkswagenwerk A.G., 648 F.2d 833,

844 (3d Cir. 1981); Bauman v. Centex, 611 F.2d 1115,

1120 (Sth Cir. 1980); Merit Motors, Inc. v. Chrysler

Corp., 569 F.2d 666, 672-73 (D.C. Cir. 1977); United

States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974).

Recall that prior to the adoption of the Rules, opinio

testimony was generally disfavored because opinions in-

vaded the province of the jury. Further, if opinion testi-

mony was permitted it was severely restricted by devices

like the hypothetical question, or unrealistic foundation

requirements. See 4 J. Weinstein, Weinstein’s Federal

Evidence, 4 702.0211], 703.02, 03[1] (2d ed. 1997).

The Rules were crafted to address these problems. How-

ever, the Rules favor admissibility of reliable evidence

only; the “liberal thrust” of the federal rules does not

Suggest that the gates have been lowered to admit un-

The first Supreme Court decision to address the stand-

ard of review of expert testimony admissibility was Spring

Co. v. Edgar, 99 U.S. 645, 658 (1878), in which the

Court stated: “Cases arise where it is very much a matter

of discretion with the court whether to receive or exclude

the [expert] evidence; but the appellate court will not

reverse in such a case, unless the ruling is manifestly

erroneous.” Next, Salem v. United States Lines Co., 370

US. 31, 35 (1962), reaffirmed that “the trial judge has

broad discretion in the matter of the admission or exclusion

of expert evidence, and his action is to be sustained unless

manifestly erroneous.” Thus, the same discretionary

standard applies regardless of the result of the trial court's

decision, i.e., admission or exclusion.

This Court in Daubert validated the exercise of that

discretion when it explicitly entrusted to the trial courts

the gatekeeper role, and expressed its confidence in federal

judges’ ability to undertake the Daubert analysis“ No

* Daubert v. Merrell Dow Pharms., supra, set forth the factual

matters a trial court should weigh in deciding on expert admissi-

10

mention was made of restricted discretion if the decision

was to exclude evidence. Indeed, in In re Joint Eastern d.

Southern Dist. Asbestos Litigation, 52 F.3d 1124, 1132

(2d Cir. 1995), the Second Circuit opined that “[t}he

Daubert Court significantly changed the stundards govern-

ing the admissibility of scientific evidence by expanding

district courts’ discretions to evaluate the reliability and

relevance of contested evidence.” (emphasis added) See

also 1 Steven Alan Childress & Martha S. Davis, Federal

Standards of Review, at 4.02, at n. 12 (2d ed. Supp.

1996) (With respect to application of Daubert, “it is

apparent that most of the decision making is located in

the trial judge, which is consistent with . abuse of

discretion review”); G. Michael Fenner, The Daubert

Handbook: The Case, Its Essential Dilemma, and Its

Progeny, 29 Creighton L. Rev. 939, 1028 (1996) (“The

standard of review of Daubert testing on appeal is pretty

clear. Though the words vary, the meaning is the same:

almost all of the cases say the standard is broad or defer-

ential, it is a clearly erroneous standard, it looks for

manifest or clear abuse of discretion”).

Implicitly acknowledging this expanded discretion, al-

most all the circuits have consistently applied the defer-

ential review in post-Daubert cases involving Rule 702.

See Lust by & Through Lust v. Merrell Dow Pharms.,

Inc., 89 F.3d 594, 597-98 (9th Cir. 1996) (stating that

the district court did not abuse its discretion in concluding

that, under Daubert, the methodology underlying the prof-

fered expert witness’s testimony was not scientific); Comp-

ton v. Subaru of Am., Inc., 82 F.3d 1513, 1517 (10th

bility. Daubert requires district judges to act as gatekeepers to

ensure that scientific evidence is both relevant and reliable. 509

U.S. 589. This entails two inquires: whether the reasoning and

methodology underlying the testimony is scientifically valid, and

whether the reasoning and methodology can properly be applied to

the facts. Id. at 592-98. The Supreme Court is “confident that

federal judges possess the capacity to undertake this review.” /d.

at 593.

11

Cir. 1996) cert. denied ——— U.S. ——— (1997) (uphold-

ing trial court’s admission of expert testimony under an

abuse of discretion standard); United States v. Shay, 57

F.3d 126, 132 (Ist Cir. 1995) (“A district court's deci-

sion to admit or exclude expert testimony is entitled to

great deference”); McCullock v. H.B. Fuller Co., 61 F.3d

1038, 1042 (2d Cir. 1995) (“The decision to admit

expert testimony is left to the broad discretion of the trial

judge and will be overturned only when manifestly errone-

ous.”); Government of the Virgin Islands v. Sanes, 57

F.3d 338, 341 (3d Cir. 1995) (“Whether to allow scien-

tific or technical expert testimony .. . is within the dis-

cretion of the district court and is reviewed only for

abuse.”); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378,

1384 (4th Cir. 1995) (“Daubert clearly vests the district

courts with discretion to determine the admissibility of

expert testimony.”); Pedraza v. Jones, 71 F.3d 194, 197

(Sth Cir. 1995) (stating that “the district court did not

abuse its discretion” in concluding that the proffered expert

testimony did not satisfy Daubert’s reliability require-

ments); American & Foreign Ins. Co. v. General Electric

Co., 45 F.3d 135, 137 (6th Cir. 1995) (trial court's

admission or exclusion of expert evidence is to be sus-

tained unless “manifestly erroneous”); Deimer v. Cincin-

nati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th Cir.

1995) (decision to allow expert testimony is within the

broad discretion of the trial judge and is to be sustained

on appeal unless “manifestly erroneous.”); Pestel v. Ver-

meer Mfg. Co., 64 F.3d 382, 384-85 (8th Cir. 1995)

(“The [District] Court concluded that the testimony was

not scientifically valid and would not aid the jury in its

fact finding. We do not find that the District Court abused

its discretion in any of its analysis.”); Joy v. Bell Heli-

copter Textron, Inc., 999 F.2d 549, 567-68 (D.C. Cir.

1993) (notwithstanding abuse of discretion standard, trial

court erred by allowing certain expert testimony).

12

C. The Same Standard Should Be Applied Regardless

of Dependent Motions: Summary Judgment or

Directed Verdict Are Not Disfavored

Every ruling on evidence affects the outcome of the

case to a greater or lesser degree. The standard of review

should not change where the exclusion of expert testimony

results in summary judgment or a directed verdict in favor

of the moving party. In the first instance, two separate

legal inquiries are involved. Thus, in Lust, supra, 89 F.3d

at 596-97, the Ninth Circuit stated:

We review a grant of summary judgment de novo,

.. . and an F.R.E. 702 ruling for an abuse of dis-

cretion. The abuse of discretion standard applies to

an F. R. E. 702 ruling even though the ruling was

dispositive of a motion for summary judgment.

Similarly, in Duffee by and Through Thornton v. Murray

Ohio Mfg. Co., 91 F.3d 1410, 1411 (10th Cir. 1996),

the Tenth Circuit affirmed summary judgment in favor

of the defendant manufacturer after upholding the exclu-

sion of the plaintiffs’ expert witness under an abuse of

discretion standard. The Duffee Court noted that a de

novo standard applies to summary judgment decisions,

but held that the evidentiary admissibility decisions of

the trial court are properly reviewed under the traditional

abuse of discretion standard. Id.

There is no need for different standards of review of

the admission decision is fatal to a party’s case. Summary

judgments and directed verdicts rise or fall depending on

what admissible evidence has been presented to make a

prima facie case. Appellate courts have no trouble ad-

dressing first the admissibility of evidence under an abuse

of discretion standard, then the summary judgment or

directed verdict under a de novo standard. Thus, numer-

ous appellate courts apply a deferential standard of review

13

to Daubert rulings, even though summary judgment

resulted.

Trial courts have shown, again and again, that this

Kieffer v. Weston Land, Inc., 90 F.3d 1496 (10th Cir.

1996); Markman v. Westview Instruments, Inc., 52 F.3d

967 (Fed. Cir. 1995); Hose v. Chicago Northwestern

Transp. Co., 70 F.3d 968 (8th Cir. 1995); United States

v. Quinn, 18 F.3d 1461 (9th Cir. 1994); Virgin Island v.

Penn, 838 F. Supp. 1054 (D.V.I. 1993); Benedi, supra;

McCullock, supra.

Trial courts have performed the Daubert analysis in a

reasonable and careful manner when they have decided to

10 See, e.g., Goewey v. U.S., 1997 U.S. App. LEXIS 1528 at *6-7

(4th Cir. Jan. 30, 1997) (“we cannot say that the district court

abused its discretion in excluding this expert testimony as ‘not

sufficiently reliable’ under Daubert, . . . or that it erred in rejecting

the expert testimony under Baughman. Accordingly, we affirm the

district court’s grant of summary judgment“); Wintz by & Through

Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997) (“Trial

judges enjoy wide latitude and discretion when determining whether

to admit expert testimony, and the district court’s decision concern-

ing admissibility of such testimony (provided it follows the Daubert

methodology) will not be disturbed unless ‘manifestly erroneous’ ” ;

summary judgment affirmed) ; Barrett, supra, 95 F.3d at 388 (“be-

cause we find no abuse of discretion in the court’s striking of the

expert testimony, and no additional relevant summary judgment

evidence, we affirm the court’s order granting Defendants’ motion

for summary judgment as to these claims”) ; Rosen, supra, 78 F.3d

at 320 (“The district court was within its discretion in concluding

that the scientific evidence of causation that the plaintiff offered

was not admissible, and therefore in dismissing the suit“); Buckner,

supra, 75 F.3d at 292, 294 (“We review a district court’s rulings

on evidentiary matters for abuse of discretion, giving the trial

judge much deference” ; summary judgment affirmed).

14

exclude expert evidence, as well. See, e.g., Peitzmeier v.

Hennessy Indus., Inc., 97 F.3d 293, 297 (8th Cir. 1996);

Cummins v. Lyle Indus., 93 F.3d 362, 367-70 (7th Cir.

1996); American & Foreign Ins. Co., supra; Allen v.

Pennsylvania Eng’g Corp., 102 F.3d 194 (Sth Cir. 1996);

Barrett, supra; Goewey, supra; Brown v. Miska, 1995

U.S, Dist. LEXIS 17197 at *11 (S.D. Tex. July 19, 1995),

aff'd without op., 96 F.3d 1445 (Sth Cir. 1996); Hall v.

Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or.

1996); Arrendondo v. Uniroyal Goodrich Tire Co., 1995

U.S. Dist. LEXIS 19943 (D. Ariz. Aug. 14, 1995);

Hopkins v. NCR Corp., 1994 U.S. Dist. LEXIS 17273 at

*20, 22 (M.D. La. Nov. 17, 1994); Stanczyk v. Black &

Decker, Inc., 836 F. Supp. 565 (N.D. III. 1993). The

fact that more appellate cases deal with the exclusion of

evidence should not come as a surprise, and provides no

justification for a stricter standard of review. A losing

party is more likely to appeal an exclusion decision than

an admission ruling involving testimony found to be

reliable.

D. No Reason to Distinguish Rule 702 From Other

Evidence Rules

The Rules of Evidence are interdependent, and require

flexibility in application. See generally F.R.E. 102, Wein-

stein, supra at J 102.02[{1],[2]. The Rules require the

trial courts to weigh competing interests, working toward

fulfilling the goal “that the truth may be ascertained and

the proceedings justly determined.” F.R.E. 102. Those

objectives require the court to exercise discretion; that

discretion is broad when the trial court is proceeding, as

Rule 102 directs, to balance the objectives of the Rules

in a particular case. Weinstein, supra at J 102.03. The

trial court must balance competing interests in every evi-

dence ruling it makes.

Rule 702 determinations turn on whether the evidence

will be helpful to the jury. Rule 403 determinations are

similarly governed. There is no mechanical formula to

15

determine helpfulness or relevance. The exercise of dis-

cretion is inherent in both rules. If an abuse of discretion

standard is appropriate anywhere, it is appropriate for

decisions concerning the admissibility of expert evidence.

There is no reason to distinguish between the standard

of review of lower court expert admissibility determina-

tions from other evidentiary decisions. In each instance,

the trial court applies the Rules to the facts on a case by

case basis. Admissibility decisions based on Rules 702

or 703 are much like decisions based on Rule 403. Rule

403 is reviewed for abuse of discretion, even though

application of that Rule may result in preclusion of evi-

dence, which itself may result in summary judgment or a

directed verdict. Thus, in Lucas v. Bechtel Corp., 800

F.2d 839, 849 (9th Cir. 1986), the Ninth Circuit upheld

the trial court’s exclusion of evidence pursuant to Rule

403, stating: “‘Our review of rulings on evidence is

limited to abuse of discretion, even in the context of

appeals from a directed verdict.’ [citations omitted] We

find no abuse of discretion.”

Several months ago, this Court affirmed that the stand-

ard of review applicable to evidentiary rulings of the

district court is abuse of discretion. Old Chief v. United

States, US. , 117 S. Ct. 644, 647 n.1 (1997)

(citing United States v. Abel, 469 U.S. 45 (1984)).

In Old Chief, the Court applied the abuse of discretion

standard to a trial court’s Rule 403 ruling that evidence

of a criminal defendant's prior crime was admissible.

Similarly, Abel involved a trial court’s admission of evi-

dence concerning the defendant’s involvement in a prison

gang. These cases show that even when a defendant's

liberty is at stake, the trial court’s evidentiary rulings are

given deferential review.

Case law is replete with examples of courts applying

an abuse of discretion standard to evidentiary decisions,

which of necessity involve mixed questions of law and

16

fact." That standard has been applied even in cases

where summary judgment or a directed verdict has re-

sulted. See Hawkins v. Hennepin Technical Center, 900

F.2d 153, 155 (8th Cir. 1990) (Eighth Circuit reversed

summary judgment for the defendant in a disparate treat-

ment sex discrimination case, holding that the district

court abused its discretion under Rule 402 in barring the

plaintiff from introducing evidence of prior sexual harass-

ment of herself and other employees); Gagne v. North-

Co., 998 F.2d 1224, 1287 (8d Cir. 1998) (“While ordinarily we

review a district court’s admissibility rulings under an abuse of

discretion standard, when the court’s ruling turns on an interpreta-

tion of a Federal Rule of Evidence th. appropriate standard of

review is plenary. [citations omitted] Here, though we do discuss

the interpretation of the Rules, at bottom we are using the defer-

ential standard of review because the district court exercised discre-

tion under Rule 403 in excluding the expert testimony”); United

States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (“We

review a district court 's [Rule 404(b)] evidentiary rulings for

abuse of discretion.”) ; Purnell v. Lord, 952 F.2d 679, 685 (2d Cir.

1992) (“Evidentiary rulings under Rule 403 are reviewed under

an abuse of discretion standard.“)

17

western National Ins. Co., 881 F.2d 309 (6th Cir. 1989)

(Sixth Circuit affirmed summary judgment for the defend-

ant employer and stated the trial court did not abuse its

discretion in finding irrelevant and overly prejudicial the

plaintiff's basis of her claim of age discrimination, vis,

one isolated comment by her boss).

Like determinations of the admissibility of expert evi-

dence, evidentiary rulings based on Rule 403 involve a

trial court’s weighing of legal factors as applied to a

specific factual context, which often involves credibility

and other issues that a trial court is much better situated

to analyze than a te courts. For this reason, appellate

E. The Abuse of Discretion Standard Makes Sense

As Applied to Trial Court Rulings on Expert

Testimony

The Joiner court imposed a stricter standard of review

on the trial court’s exclusion of expert testimony, relying

largely on precedent from the Third Circuit. Yet, before

the Daubert decision, the Eleventh Circuit and the Third

Circuit, like other circuits, recognized that an abuse of

discretion applied to review of evidentiary rulings. See,

e.g., United States v. McGlory, 968 F.2d 309, 345 (3d

Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 468 (llth

Cir. 1992); Busby v. City of Orlando, 931 F.2d 764, 784

(11th Cir. 1991); United States v. Leo, 941 F.2d 181,

197 (3d Cir. 1991). Why should the standard be

considering this Court in Daubert merely expanded the

18

criteria for the trial court to consider in determining the

reliability of evidence? Reliability has always been re-

quired; that is the critical element upon which the ad-

missibility decision is made.

The case law is replete with examples of trial courts

carefully considering the reliability of proffered expert

testimony before Daubert, and admitting it or excluding

it based on factors similar to those adopted by this Court

later in Daubert. For example, Judge Becker in the Third

Circuit taught that the abuse of discretion standard is par-

ticularly appropriate in reviewing issues related to the

admission of expert testimony, where the inquiry involves

a balancing test which incorporates important policy ele-

ments of Rule 702 and Rule 403. United States v. Down-

ing, 753 F.2d 1224, 1240 (3d Cir. 1985). A precursor

to Daubert, the court outlined a new standard directing

the trial court to follow in determining admissibility:

preliminary inquiry into the soundness and reliability

of the expert’s process or technique, consideration of

whether the testimony would likely overwhelm, confuse or

mislead the jury, and consideration of relevancy. Id. This

inquiry involves balancing of policies, a task that the trial

court is particularly suited to do, regardless that the ques-

tion of admissibility is a mixed question of law and fact.

Id.

Before Daubert, there was little suggestion that any

standard other than abuse of discretion should be used

to review the trial court’s decisions on admitting expert

testimony. Soden, supra, 714 F.2d at 502. In Soden,

the court, using Rule 703 as its foundation, explained

that the federal rules require the trial court to examine

the reliability of sources for the expert’s opinion, even

though wide latitude was given to the expert in choosing

the sources relied upon. Rule 703 broadened considerably

the permissible basis for experts’ opinions, which had been

limited at common law. Id. That, along with the helpful-

19

ness standard of 702, formed the basis for the notion that

the federal rules “liberalized” the rules concerning the

admissibility of expert testimony. See Arcoren, supra;

Krist, supra; Bauman, supra; Seese, supra; Merit Motors,

supra. However, while the criteria was broadened, the

threshold for reliability was not lowered to permit un-

reliable evidence to come in at trial. The trial court is

indeed best situated to resolve admissibility issues, con-

sidering the inquiry into whether reliability has been

established must be made on a case by case basis, focusing

on the reliability of the opinion and its foundation. Soden

at 503.

Indeed, the inquiry under Rule 702 and Rule 703

focuses on helpfulness to the jury. That element, which

is said to be the touchstone of Rule 702, is the essence of

Rule 403. Unless the evidence is reliable, it will not be

helpful to the jury. Unless the evidence is reliable, its

prejudice outweighs its probative value. The helpfulness

requirement, according to Judge Becker, implies “a quan-

tum of reliability” above and beyond “logical relevancy.”

Downing, supra, 753 F.2d at 1240. Accordingly, the

trial court must explore the soundness and reliability of

the process or technique used by the expert considering

factors like those adopted by this Court in Daubert. This

concept came in part from Judge Weinstein, writing first

in 4 J. Weinstein and M. Berger, Weinstein’s Federal Evi-

dence, J 702(03] (Ist ed. 1975) at 702-36 to 702-37,

and later in In re “Agent Orange” Prod. Liab. Litig., 611

F. Supp. 1223 (E.D.N.Y. 1985). In the latter, Judge

Weinstein, like other trial judges before him.“ carefully

12 See In re Swine Flu Immunization Prods. Liab. Litig., 588

F. Supp. 567 (D. Colo. 1980) ; In re Swine Flu Immunization Prods.

Liab. Litig., 508 F. Supp. 897 (D. Colo. 1981), aff'd Lima v. United

(10th Cir. 1988); Shatkin v. McDonnell

:

~

*

*

2

20

examined the underlying basis for an expert’s opinion,

recognizing full well the ability of expert testimony to

overwhelm the jury with that dazzle of apparent expertise

which may add confusion, not clarity, to the resolution

of the issues. This Court acknowledged that problem in

Daubert, by citing to Judge Weinstein’s discussion of the

need to conduct a Rule 403 analysis of proffered expert

testimony exploring possible prejudice against probative

force. Daubert at 595.

21

apply the standard. Does it lend itself to a result-oriented

review? Is the Joiner standard at the point where “dis-

cretion is a gossamer film, so limp and feeble that appel

make the determination; in fact, the appellate court is

wishes to offer is 8

Properly the subject of “scientific, technical,

Gr other specialized knowledge” is a question of law we reviee

de novo.... A comparable duty is imposed upon the trial

Court when the subject of the proposed opinion testimony is

22

A multiple standard of review is unwieldy when actually

put into practice. In fact, later the Sixth Circuit rejected

this approach in United States v. Jones, 107 F.3d 1147

(6th Cir. 1997). The Jones court criticized Cook’s un-

necessary hair splitting, adhering to the abuse of discre-

tion standard for determinations about whether the prof-

fered evidence is scientific knowledge that will assist the

trier of fact and the qualification of the witness.

In many cases it is a complex and needlessly onerous

task for a court to distinguish precisely between the issue

of qualifications, training and experience, reliability and

relevance considerations. The Jones court explained that,

because certain expert testimony “does not always neatly

separate itself from whether the particular expert in the

case is qualified and whether the testimony will be helpful

to the trier of fact, application of a de novo standard to

this particular prong could be difficult.” Id. at 1154.

Some experts’ “experience and training bear a strong cor-

relation to the reliability of the expert’s testimony.” Id. at

1155. Although experience alone does not ensure either

reliability or admissibility, it plays enough of a role in

the reliability analysis in the context of certain experts “to

blur the distinctions between ihe three separate prongs in

Cook.” Id. Thus, the multiple standard approach adyo-

cated in Cook is difficult to apply to the vast array of ex-

markets, supra, when the court discussed the multiple in-

tertwined issues which the courts must consider in deter-

mining the admissicn or exclusion of expert evidence. To

court has abused its discretion. See Koon v. United States,

U.S. » 116 S. Ct. 2035, 2047 (1996) (“A district

court by definition abuses its discretion when it makes an

error of law.“); Cooter & Gell v. Hartmarx Corp., 496

US. 384, 402 (1990) (“An appellate court would be justi-

trict court abused its discretion ) A de novo standard of

aa is not needed where a trial court commits an error

W.

the trial are “not

unless it be clearly shown such discretion has

abused”; the Court stated this concept “is settled by

the deferential abuse of discretion standard. Old Chief,

supra, 117 S. Ct. at 647 n.1 (citing United States v. Abel,

supra, 469 U.S. at 54-55). Different verbal formulas as

to what the “abuse of discretion” standard of review re-

nature of the decision, rather than conducting an analysis

of whether a question of fact or law is i “A dis-

United States v. Abel, supra, 469 U.S. at 54. Commen-

surately, It Ihe standard of review applicable to the evi-

dentiary rulings of the district court is abuse of discretion.”

Old Chief, supra, 117 S. Ct. at 647 n.1 (1997) (finding

abuse of discretion under Fed. R. Evid. 403 in the district

court's rejection of offer to stipulate to prior conviction,

cedure were adopted. K. Kunsch, Standard of Review (State and

Federal) : A Primer, 18 Puget Sound L., Rev 11. 17 (Fall 1994)

(hereinafter, “Kunsch”). See 9A Charles A. Wright e Arthur

Miller, Federal Practice and Procedure, § 2571 (2a ed. 1994)

n Petruszi’s IGA Supermarkets, supra, the court spoke about

the three intertwined reasons for excluding testimony under Rule

702 if the testimony will not assist the trier of fact, if it is not

sufficiently reliable, and if the expert lacks qualifications Those

factors have overlapping elements which render them nearly in.

extricable. To suggest, as the Joiner court does, that one is 4 ques.

tion of fact and another is 4 question of law requiring different

a

:

0

5

+

B

2

nelas v. United States. U.S. ——, 116 S. Ct. 1657,

1664-65 (1996) (Scalia J., dissenting).

One practicality is “an accommodation of the respective

institutional advantages of trial and appellate courts.”

Salve Regina College v. Russell, 499 U.S. 225, 233

(1991). For example, a deferential review of mixed ques-

tions of law and fact is wart anted when it appears that the

district court is “better positioned” than the appellate court

to decide the issue in question. Id., Miller v. Fenton, 474

U.S. 104, 114 (1985) (“as a matter of the sound admin-

istration of justice, one judicial actor is better positioned

than another to decide the issue in question.”). Such cir-

cumstances include where a district court, “{fjamiliar with

of appeals to marshal the pertinent facts and apply the

fact-dependent legal standard. Cooter & Gell, supra,

496 U.S. at 402; or the trial judge is in a better position

to make determinations of credibility, or has, as an inher-

ent result of his role, expertise in making the determina-

tion at issue, Anderson v. Bessemer City, 470 U.S. 564,

574-75 (1985); or the issue involves supervision of liti-

gation. See Pierce v. Underwood, 487 U.S. 552, 558 n.1

(1988).

appellate

scrutiny will not contribute to the clarity of legal doctrine.”

Salve, supra, 499 U.S. at 233; Miller v. Fenton, supra,

474 US. at 114; see also Cooter & Gell, supra, 496 a

27

issue.” Pierce, supra, 487 U.S. at 561 (quoting Rosen-

udicial Discretion of the Trial Court, Viewed from

, 22 Syracuse L. Rev. 635, 662-663 (1971). Defer-

ence to the district court is due where the matter is “pre-

cisely such a multifarious and novel question, little suscep-

tible, . . . of useful generalization, and likely to profit from

the experience that an abuse-of-discretion rule will permit

to develop.” Id. at 562!

The efficient allocation of judicial resources is also im-

portant. “The abuse of discretion standard ac

a

making

terminations that can profitably be made only at the trial

level.” Wayte v. United States, 470 U.S. 598, 624-25

(1985) (Marshall, J., Brennan, J., dissenting). Deference

28

and considered by the district court; it will also dis-

courage litigants from pursuing marginal appeals,

thus reducing the amount of satellite litigation.

Each and every reason for application of a deferential

standard of review applies to trial court decisions on the

admissibility of expert evidence. They apply with as much

force when the trial court is challenged for excluding the

evidence as when it is challenged for admitting it.

CONCLUSION

This court should reaffirm the deferential abuse of dis-

cretion standard for review of all trial court rulings con-

cerning the admissibility of expert testimony, regardless of

the result of the ruling. This case should be remanded to

the Eleventh Circuit for reconsideration and application

of the abuse of discretion standard to the issues presented.

- Respectfully submitted,

Hue F. Youns, In.“ Mary A. WELLS

PRODUCT LIABILITY ADVISORY Counsel of Record

CouNCIL, INC. SUANNE M. DELL

1850 Centennial Park Drive Grecory E. Sor

Suite 510 WELLS, ANDERSON & Race LLC

Reston, VA 22091 1700 Broadway, Site 1850

(703) 264-5300 Denver, CO 80290

JAN S. AMUNDSON * (308) 830-1212

General Counsel KEVIN QUINLEY *

QUENTIN RIEGEL General Counsel

Deputy Genera! Counsel MEDMARC

NATIONAL ASSOCIATION OF 4000 Legato Road, Suite 800

ACTURERS Fairfax, VA 22088

Pennsylvania Ave., NW. (703) 273-1996

Suite 1500—North Lobby

Washington, DC 2004-1790

(202) 637-3000

Of Counsel *

APPENDIX

la

APPENDIX

CORPORATE MEMBERS OF THE

PRODUCT LIABILITY ADVISORY COUNSEL

3M

ACRISON, Inc.

Allegiance Healthcare

Corporation

AlliedSignal, Inc.

Aluminum Company of

America

American Automobile

Manufacturers Assn.

American Brands, Inc.

American Home Products

Corporation

American Suzuki Motor

Corporation

Andersen Corporation

Anheuser-Busch Companies

Atlantic Richfield Company

Atlantic Richfield Company

BASF Corporation

Baxter International, Inc.

Bayer Corporation

Becton-Dickinson & Company

Beech Aircraft Corporation

BIC Corporation

Black & Decker (U.S.) Inc.

BMW of North America, Inc.

Bridgestone/Firestone, Inc.

Briggs & Stratton

Bristol-Myers Squibb

Company

Brown-Forman Corporation

Budd Company, The

C.R. Bard, Inc.

Case Corporation

Caterpillar, Inc.

CBI Industries, Inc.

Chrysler Corporation

Ciba-Geigy Corporation

Clark Material Handling

Company

Club Car, Inc.

Coleman Company, Inc., The

Continental General Tire, Inc.

Coors Brewing Company

Corning Incorporated

Dana Corporation

Deere & Company

Dow Chemical Company, The

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Estee Lauder Companies

Exxon Corporation

FMC Corporation

Ford Motor Company

Freightliner Corporation

Gates Rubber Company, The

General Electric Company

General Motors Corporation

Glaxo Wellcome Co.

Goodyear Tire & Rubber

Company, The

Great Dane Trailers, Inc.

Guidant Corporation

H. B. Fuller Company

Harnischfeger Industries

Heil Company, The

Hoechst Celanese Chemical

Group, Inc.

Hocchst Marion Roussel, Inc.

Honda North America, Inc.

Lorillard Tobacco Company

Lucent Technologies Inc.

Mack Trucks, Inc.

Maytag Corporation

Mazda (North America),

Michelin North America, Inc.

Mitsubishi Motor Sales of

America, Inc.

Monsanto Company

Motorola, Inc.

Navistar International

Transportation Corp.

Nissan North America, Inc.

O. F. Mossberg & Sons, Inc.

Otis Elevator Co.

Owens-Corning Fiberglas

Corporation

PACCAR, Inc.

Panasonic Company

Pentair, Inc.

Pfizer, Inc.

Pharmacia and Upjohn, Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North America,

Inc.

Vulcan Materials Company

Westinghouse Electric

Corporation

Whirlpool Corporation

Yamaha Motor Corporation,

U.S.A.

~