Last week, I posted a critique of a Federal Circuit decision that ignored the text of amended Rule 702. The court treated issues of wheter a methodology is used in a reliable way in a particular case, which is an issue of admissibility under Rule 702, as an issue of weight. Despite what I think is the clear text of the rule, some commentors claimed that I was propounding an indiosyncratic view of Rule 702.
However, I just came across a piece by Prof. Joelle Moreno that critiques an Eleventh Circuit opinion on which the Federal Circuit relied heavily in the case I criticized. Moreno makes the same point I do:
One recent case from the Eleventh Circuit illustrates how courts can misconstrue their Daubert gatekeeping obligations, effectively abnegating responsibility for reliability decisions. In Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., the appellant challenged the admission of defense expert trial testimony, arguing that the expert had "misused a method that, in the abstract, is reliable." 326 F.3d 1333, 1345 (11th Cir. 2003). The appellate court recast the question, finding that "although [r]ulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology, it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Id. at 1341 (internal quotations and citations omitted). By redefining the reliability of an expert's application of his methods to the facts, which should fall squarely within the judge's purview, as a question of "persuasiveness," the court was able to conclude that "the alleged flaws in Frank's analysis are of a character that impugn the accuracy of his results, not the general scientific validity of his methods." Id. at 1345. When the Eleventh Circuit concluded that this finding meant that the appellant had failed to raise an argument relating to admissibility, the court completely misconstrued its Daubert obligations. The Eleventh Circuit's mistake was to define this as a question of weight, leading the court to conclude that "the identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination." Id.
Joelle Ann Moreno, What Happens When Dirty Harry Becomess an (Expert) Witness for the Prosecution, 79 Tulane L. Rev. 1 (2004).
The Fed Cir was created over two decades ago eliminate the inconsistency between regional circuits in patent law. Now, that problem has been replaced with inconsistency between different panels of Federal Circuit judges: different panels frequently write opinions in express conflict with one another, making inconsistent legal standards the rule rather than the exception. With your post you've picked up on one small corner of a huge issue that is creating unpredictability, unfairness and a growing outcry for reform in the patent arena.
Most of the jurists in the Federal Circuit are highly qualified and highly competent -- that is not the problem -- perhaps the problem stems from the inherent chaos that comes from having an entire circuit that, with a majority of its energies centered on one area of law, frequently finds itself changing the law in that area time and time again in order to maintain relevance. As a result, one frequently finds the Federal Circuit (1) intentionally misrepresenting the holdings of other circuits in order to reach a predetermined result, (2) ignoring inconvenient Supreme Court precedent or basic rules of civil procedure, (3) selectively interpreting statutes and rules, and (4) often having two completely inconsistent lines of cases that would lead to two different results that it can apply in any particular situation. These actions are not taken by the judges through malice -- they seem to be taken because the Fed. Cir's role forces its judges (and its practicioners) to often view the law with "blinders on."
Curently, practitioners often end up viewing the result in a Fed Cir case, cynically, and in my view incorrectly, as determined by the biases of the panel of judges you receive, rather than by the law and the merits. While this view is wrong, it shows how much the Federal Circuit is in dire need of reform, and one can only hope that with the nomination of soon-to-be Judge Moore, the Federal Circuit's jurisprudence will begin to shift to more consistent standards, more comity with regional circuit law, and more respect for stare decisis and the need for some level of predictability in federal circuit jurisprudence.
In her case, the 11th Circuit did make a mistake in recasting the argument of "misuse of the method" into "persuasiveness." Misuse of the method is a violation of admissibility under Rule 702.
In the case you critiqued, however, the expert used the method correctly, and the argument was about the data input into the method. That is not "misuse of the method" and does, in fact, go to persuasiveness.
Prof. Moreno has a point. I don't think you do.
Or is this all academic pish-posh?
And by the way, my main complaint isn't that your reading is unsupportable; just that the other reading is plausible, and federal courts aren't necessarily evading their gatekeeping responsibilities by using it.
Thanks, I was going to rant on the difficulty of dealing with the Federal Circuit, but you did an excellent job.
You do have lots of company, more generally, in criticizing decisions that say various issues involving the application of a method, or the factual predicates of some expert's analysis, are for the jury. The belief that the courts must resolve all dubiety over methodological application in favor of exclusion (or at least take all such issues very, very seriously, whenever some litigant raises them) is not idiosyncratic to you; it is a fallacy of epidemic proportions. Not even every issue of purely methodological reliability necessarily presents grounds for exclusion.
I think the confusion comes partly because courts say things like "jury question" or "persuasive" to announce their conclusions, and the critics incorrectly assume that the courts must be using those concepts to state a full explanation, or even an explanation, of their reasoning.
So the Federal Circuit relies heavily on a badly-decided 11th Circuit decision, and the badly-decided result it reaches leads you to criticize it for insufficient comity with regional circuit law?
Hunh?
I'm not sure your criticisms are misplaced--I agree with many of them, at least in part--but I'm not quite sure why they're coming up in comments here.