# Amicus Curiae Brief — General Electric Co. v. Joiner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 136

## Text

- 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.

~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0009%3A17. Public record. Not legal advice.