Tag Archives | Quackspertise

Some Expert Evidence Law News from California and Wisconsin

Bucking the trend in jurisdictions that apply the Frye general acceptance test (such as Florida and Illinois), in November the California Supreme Court stated that trial courts have “substantial gatekeeping” responsibilities, and favorably cited federal Supreme Court precedents like Daubert v. Merrell Dow Pharmaceuticals, Joiner v. General Electric Co., and Kumho Tire v. Carmichael.  Perhaps of greatest significance, as this has been an issue of ongoing controversy in both state and federal (despite Joiner and clear language in amended Rule 702), the Court noted that the gatekeeping responsibility ” means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning.  A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered [citing Joiner].”  Interestingly, the California court reached this ruling under the California evidence code, while limiting Frye (in California, “Kelly-Frye“) to novel scientific techniques.  Sargon Enterprises, Inc. v. University of Southern Cal., 288 P.3d 1237 (Cal. 2012). So we can tentatively put California in the strict scrutiny camp.

Meanwhile,  I had somehow missed that Wisconsin, which was perhaps the last state to allow any qualified expert to testify to just about anything “relevant” with virtually no judicial oversight, amended its code of evidence by statute in 2011 to adopt the language of amended federal rule 702. As near as I can tell, the Wisconsin Supreme Court has not yet had the opportunity to recognize the new rule, and it’s possible that the court will find some excuse to declare that it won’t abide by it.  But in the meantime, lower Wisconsin courts are applying it, and Wisconsin has gone from the “let-it-all-in” state to a “gatekeeping-reliability” state. […]

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Some Federal Courts Continue to Neglect Federal Rule of Evidence 702

The admissibility of expert testimony in federal court is governed by FRE 702.  FRE 702 was amended, in fact completely rewritten, in 2000.  As I’ve noted before, that hasn’t stopped some federal courts from ignoring the text of the rule in favor of other considerations.  Thus, not for the first time, we find a court construing the Supreme Court’s 1993 Daubert opinion as explaining the scope of Rule 702, even though Daubert was addressing an earlier and different version of the rule.  In re Chantix Prods. Liab. Litig., (N. D. Ala. August 21, 2012) (“Rule 702, Federal Rules of Evidence, as construed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,  requires expert scientific evidence to be both reliable and relevant pursuant to Rule 702, such that it appropriately assists the trier of fact.”)  The judge, in charge not of an  individual case but an MDL, never does get around to citing the text of the rule, though he manages to cite lots of other material.

Really, how hard is it to understand that the admissibility of expert testimony is governed by statute, and when ruling on a statutory issue one starts with the text of the statute?  For that matter, how hard is it to understand that Rule 702 was rewritten in 2000, and therefore precedents from before 2000 could not be construing the text of that rule? Apparently harder than I think, because  in another recent case, the MDL judge invoked the Third Circuit approach to expert testimony, citing a circuit court  case from 1999 as a binding interpretation of Rule 702, and proceeded to ignore the language of the current statute:

Federal Rule of Evidence 702 reads: [I]f scientific, technical or other specialized knowledge will assist the trier of


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