The Volokh Conspiracy - More on Daubert and Rule 702:

I've noted before that many federal courts are ignoring the language of amended Federal Rule of Evidence 702, and relying on selective quotes from earlier precedents to evade their gatekeeping responsibilities. An excellent example just came across my desk, Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209 (Fed. Cir. 2006).

A few interesting, and disturbing, things about this opinion:

(1) The court never cites the text of Rule 702, or, for that matter, shows an awareness that Rule 702, as amended in 2000, is the governing rule for the admissibility of expert testimony;

(2) The court cites the 1993 Daubert opinion as the apparent last word on the scope of Rule 702, even though Daubert was only the first in a trilogy of relevant cases ending in 1999, and Rule 702 was amended in 2000 to codify what amounts to a strict interpretation of all three opinions, resolving certain ambiguities in the trilogy in favor of a conservative admissiblity standard;

(3) A very brief excerpt: "The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Such a flawed analysis, it argued, made the testimony and evidence unreliable." The court concludes that this objection goes to weight, not admissibility, and refuses to review the reliability of the evidence. Yet Rule 702, as amended, specifically states that expert testimony is only admissible if "the witness has applied the principles and methods reliably to the facts of the case." If an expert used incorrect or missing data and the wrong equations in an analysis, it's hard to see how he met the standard imposed by the above language, and the court certainly doesn't explain it.

(4) The court cites Daubert for the proposition that "the focus of a court's inquiry into the relevance and reliability of scientific evidence 'must be solely on principles and methodology, not on the conclusions that they generate'", but fails to recognize that, even if one wrongly ignores the text of Rule 702, the 1997 Joiner case specified (specifically in response to the misuse of the earlier language in Daubert) that "conclusions and methodology are not entirely distinct from one another," and that courts could reject testimony even when based on what, in general, may be a reliable methodology, if it was misused in the case at hand.

(5) The court cites a 1986(!) 8th Circuit opinion for the proposition that if inadequacies in expert testimony, especially if they can be vigorously contested at trial, are a matter of weight, not admissibility. In terms of the evolution of federal expert evidence law, 1986 might as well be 1800.

(6) In fairness, the court cites a favorable 2003 11th Circuit opinion, which unfortunately is equally wrongheaded, showing how judicial error can compound judicial error. The 11th Circuit opinion bizarrely actually does quote the language of amended Rule 702, and then proceeds to completely ignore the requirement that "the witness has applied the principles and methods reliably to the facts of the case." (And the 11th Circuit opinion is also the apparent source of the 1986 citation.)

[Update: A federal district court recently wrote, "Rule 702 of the Federal Rules of Evidence, as discussed and interpreted by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)." It would have been pretty difficult for the USSC to have discussed and interpreted current Rule 702 in these cases, because they were also decided before current Rule 702 existed. I wonder if many federal judges are simply unaware that Rule 702 was amended in 2000. If so, it would behoove attorneys seeking to enforce the Rule to remind them.]

The relevant excerpt of the Federal Circuit opinion can be found below:

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Vaughan's challenges to expert testimony and scientific evidence are analyzed under the Supreme Court's Daubert factors. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). When faced with expert scientific testimony, a district court must first determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact at issue." Id. at 592, 113 S.Ct. 2786. This requires an assessment of the reasoning and methodology underlying the testimony to determine whether it is scientifically valid. Id. In Daubert, the Supreme Court set forth four factors for district courts to *1221 consider when evaluating the validity and relevance of scientific evidence pursuant to Rule 702 of the Federal Rules of Evidence. Id. at 592-93, 113 S.Ct. 2786. These factors include (1) whether the methodology can and has been tested, (2) whether the methodology is subject to peer review, (3) the potential rate of error, and (4) the general acceptance of the methodology. Id. at 593-94, 113 S.Ct. 2786. The court further noted that the focus of a court's inquiry into the relevance and reliability of scientific evidence "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786. Here, Vaughan's argument focuses on the parameters Lueptow applied, not on the reliability of CFD analysis in general. Indeed, CFD analysis has been previously recognized in the scientific community and has been recognized as reliable by at least one circuit. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1343-44 (11th Cir.2003). In Quiet Tech., the appellant challenged the credibility of CFD analysis for modeling aerodynamic properties in a jet engine. Id. at 1344. The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Id. Such a flawed analysis, it argued, made the testimony and evidence unreliable. Id. at 1344-45. The court held that such an attack goes more to the weight of the evidence than to its admissibility. "The identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination." Id. at 1345; see also In re TMI Litig., 193 F.3d 613, 692 (3d Cir.1999) (" 'So long as the expert's testimony rests upon 'good grounds,' it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors['] scrutiny for fear that they will not grasp its complexities or satisfactory [sic] weigh its inadequacies.' " (quoting Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir.1998))); Wilmington v. J.I. Case Co., 793 F.2d 909, 920 (8th Cir.1986) ("Virtually all the inadequacies in the expert's testimony urged here by [the defendant] were brought out forcefully at trial •••• These matters go to the weight of the expert's testimony rather than to its admissibility."). Here, Vaughan's challenge goes to the weight of the evidence rather than the admissibility of Lueptow's testimony and analysis. Though he admitted that his models did not exactly match the various accused tanks, this fact was fully discussed on cross examination. As in Quiet Tech., his models were not the perfect models of each individual tank, but they were based on reliable scientific methodology and subject to cross examination and the proffering of further scientific analysis by Vaughan. We conclude that a reasonable juror could consider Lueptow's testimony explaining the very robust, helical flow in the models and infer that the similar accused tanks will produce flow similar to the modeled flow. Therefore, we will not contravene the province of the jury by reweighing Lueptow's testimony.

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	[David Bernstein, July 6, 2006 at 3:38pm] Trackbacks More on Daubert and Rule 702: I've noted before that many federal courts are ignoring the language of amended Federal Rule of Evidence 702, and relying on selective quotes from earlier precedents to evade their gatekeeping responsibilities. An excellent example just came across my desk, Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209 (Fed. Cir. 2006). A few interesting, and disturbing, things about this opinion: (1) The court never cites the text of Rule 702, or, for that matter, shows an awareness that Rule 702, as amended in 2000, is the governing rule for the admissibility of expert testimony; (2) The court cites the 1993 Daubert opinion as the apparent last word on the scope of Rule 702, even though Daubert was only the first in a trilogy of relevant cases ending in 1999, and Rule 702 was amended in 2000 to codify what amounts to a strict interpretation of all three opinions, resolving certain ambiguities in the trilogy in favor of a conservative admissiblity standard; (3) A very brief excerpt: "The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Such a flawed analysis, it argued, made the testimony and evidence unreliable." The court concludes that this objection goes to weight, not admissibility, and refuses to review the reliability of the evidence. Yet Rule 702, as amended, specifically states that expert testimony is only admissible if "the witness has applied the principles and methods reliably to the facts of the case." If an expert used incorrect or missing data and the wrong equations in an analysis, it's hard to see how he met the standard imposed by the above language, and the court certainly doesn't explain it. (4) The court cites Daubert for the proposition that "the focus of a court's inquiry into the relevance and reliability of scientific evidence 'must be solely on principles and methodology, not on the conclusions that they generate'", but fails to recognize that, even if one wrongly ignores the text of Rule 702, the 1997 Joiner case specified (specifically in response to the misuse of the earlier language in Daubert) that "conclusions and methodology are not entirely distinct from one another," and that courts could reject testimony even when based on what, in general, may be a reliable methodology, if it was misused in the case at hand. (5) The court cites a 1986(!) 8th Circuit opinion for the proposition that if inadequacies in expert testimony, especially if they can be vigorously contested at trial, are a matter of weight, not admissibility. In terms of the evolution of federal expert evidence law, 1986 might as well be 1800. (6) In fairness, the court cites a favorable 2003 11th Circuit opinion, which unfortunately is equally wrongheaded, showing how judicial error can compound judicial error. The 11th Circuit opinion bizarrely actually does quote the language of amended Rule 702, and then proceeds to completely ignore the requirement that "the witness has applied the principles and methods reliably to the facts of the case." (And the 11th Circuit opinion is also the apparent source of the 1986 citation.) [Update: A federal district court recently wrote, "Rule 702 of the Federal Rules of Evidence, as discussed and interpreted by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)." It would have been pretty difficult for the USSC to have discussed and interpreted current Rule 702 in these cases, because they were also decided before current Rule 702 existed. I wonder if many federal judges are simply unaware that Rule 702 was amended in 2000. If so, it would behoove attorneys seeking to enforce the Rule to remind them.] The relevant excerpt of the Federal Circuit opinion can be found below: (show) Vaughan's challenges to expert testimony and scientific evidence are analyzed under the Supreme Court's Daubert factors. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). When faced with expert scientific testimony, a district court must first determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact at issue." Id. at 592, 113 S.Ct. 2786. This requires an assessment of the reasoning and methodology underlying the testimony to determine whether it is scientifically valid. Id. In Daubert, the Supreme Court set forth four factors for district courts to *1221 consider when evaluating the validity and relevance of scientific evidence pursuant to Rule 702 of the Federal Rules of Evidence. Id. at 592-93, 113 S.Ct. 2786. These factors include (1) whether the methodology can and has been tested, (2) whether the methodology is subject to peer review, (3) the potential rate of error, and (4) the general acceptance of the methodology. Id. at 593-94, 113 S.Ct. 2786. The court further noted that the focus of a court's inquiry into the relevance and reliability of scientific evidence "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786. Here, Vaughan's argument focuses on the parameters Lueptow applied, not on the reliability of CFD analysis in general. Indeed, CFD analysis has been previously recognized in the scientific community and has been recognized as reliable by at least one circuit. See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1343-44 (11th Cir.2003). In Quiet Tech., the appellant challenged the credibility of CFD analysis for modeling aerodynamic properties in a jet engine. Id. at 1344. The appellant argued that the expert used incorrect data or was missing data to run the CFD software and used the wrong equations to run his CFD analysis of the engine's aerodynamic properties. Id. Such a flawed analysis, it argued, made the testimony and evidence unreliable. Id. at 1344-45. The court held that such an attack goes more to the weight of the evidence than to its admissibility. "The identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination." Id. at 1345; see also In re TMI Litig., 193 F.3d 613, 692 (3d Cir.1999) (" 'So long as the expert's testimony rests upon 'good grounds,' it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors['] scrutiny for fear that they will not grasp its complexities or satisfactory [sic] weigh its inadequacies.' " (quoting Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir.1998))); Wilmington v. J.I. Case Co., 793 F.2d 909, 920 (8th Cir.1986) ("Virtually all the inadequacies in the expert's testimony urged here by [the defendant] were brought out forcefully at trial •••• These matters go to the weight of the expert's testimony rather than to its admissibility."). Here, Vaughan's challenge goes to the weight of the evidence rather than the admissibility of Lueptow's testimony and analysis. Though he admitted that his models did not exactly match the various accused tanks, this fact was fully discussed on cross examination. As in Quiet Tech., his models were not the perfect models of each individual tank, but they were based on reliable scientific methodology and subject to cross examination and the proffering of further scientific analysis by Vaughan. We conclude that a reasonable juror could consider Lueptow's testimony explaining the very robust, helical flow in the models and infer that the similar accused tanks will produce flow similar to the modeled flow. Therefore, we will not contravene the province of the jury by reweighing Lueptow's testimony. (hide)