The Significance
Although the rule does not go into effect until next month, it is already influencing judges’ decisions in cases. For instance, in litigation over whether Johnson & Johnson’s baby powder caused ovarian cancer in plaintiffs, U.S. District Judge Michael Shipp of the District of New Jersey questioned whether the amended rule has any impact on a judge’s prior ruling in bellwether litigation admitting five plaintiffs’ experts on general causation.
“Do you think it makes it vulnerable?” Shipp asked counsel. The judge suggested appointing retired U.S. District Judge Freda Wolfson, who authored the prior ruling, to serve as special master and oversee the “entire Daubert can of worms.”
William Lee of Wilmer Cutler Pickering Hale and Dorr, said the amendment will likely result in more live testimony hearings across the nation under the U.S. Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, and recommends that litigators request these Daubert-focused hearings.
“If you look at the record across all the cases, most of the time at a Daubert hearing, it’s like a motion hearing,” Lee said. “You very infrequently see [an] opinion that says, ‘The plaintiff’s expert says A. The defense expert says B. I find that the opinion is reliable because notwithstanding what B says …’ That’s what this rule has in mind.”
For Southwestern Law School professor Richard Jolly, the biggest concern is not the rule change itself, but the language of the committee note proposed alongside it. One portion of the note says “Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”
Jolly said the note disparages jurors’ intelligence and earnestness in deliberations. “The jury is a deeply committed judicial actor, one that is disinterested in long-term outcomes. They are temporary. They have nothing to gain, and they are not repeat players,” Jolly said. “For that reason, their neutrality is far more secure than that of a judge or some other type of adjudicator.”
The Information
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The Forecast
The amended rule will likely continue to stir debate among lawyers, as well as fiercely fought live-testimony Daubert hearings.
Hollingsworth’s Lasker pointed to the committee’s note stating that an update was needed after more than two decades of some courts misapplying Rule 702.
The committee wrote that “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”
Lasker said that not only is Rule 702 approved for the future, but it means there is a significant body of case law courts have been relying on that is wrong. “So this rule change is going to really create a bright line for courts and hopefully set them on the correct path going forward,” he said.
