January 20, 2015
Contributed by Christopher D. Barraza.
Following up on my colleague Melody Akhavan's excellent post on a recent "Daubert Do-Over," I wanted to revisit the certiorari petition filed by SQM North America Corporation (SQMNA) seeking to reverse the Ninth Circuit’s decision in SQM N. Am. Corp. v. City of Pomona, 750 F.3d 1036 (9th Cir. 2014). The petition struck me as notable because it highlighted the existing circuit split over the interpretation of FRE 702 and Daubert, particularly with regard to the gatekeeping role of trial courts. SCOTUS, unfortunately, denied SQMNA's petition. As a practical matter, litigants will continue to face different levels of Daubert scrutiny depending upon the circuit in which their case is pending.
Specifically, experts will face lower scrutiny in the Seventh, Eighth and Ninth Circuits, which have adopted the view that faults in an expert's methodology generally go to the weight of the expert's opinions, not their admissibility. See, e.g., SQM N. Am. Corp. v. City of Pomona, 750 F.3d 1036 (9th Cir. 2014); Johnson v. Mead Johnson & Co., 754 F.3d 557 (8th Cir. 2014); Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796 (7th Cir. 2013). Consequently, under this approach, even where valid challenges to an expert's methodology have been raised, the expert is likely to be permitted to testify before a jury. In contrast, experts will face heightened scrutiny in the Second, Third, Sixth and Tenth Circuits, which have adopted the bright line rule that “any step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony inadmissible, *** whether the step completely changes a reliable methodology or merely misstates that methodology.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (emphasis added); see also Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265-270 (2d Cir. 2002) (relying on Rule 702 and Paoli II to affirm trial court order excluding expert testimony offered to show a causal link between plaintiff’s exposure to workplace toxins and his injuries because one expert “fail[ed] to apply his stated methodology reliably to the facts of the case.”); Tamraz v. Lincoln Electric Co., 620 F.3d 665, 670 (6th Cir. 2010) (gaps in expert’s reasoning from previously published studies meant that his testimony was “at most a working hypothesis, not admissible scientific ‘knowledge’” based upon “ ‘sufficient facts or data’” or “‘the product of reliable principles and methods * * * applied reliably to the facts of the case.’”); Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769,779 (10th Cir. 2009) (citing Paoli II “any step” rule with approval and rejecting argument “that Daubert should not have been used to assess the application of the experts’ methodologies, but rather should have been used to assess only the methodologies upon which [they] relied.”) (emphasis in original).
The dueling approaches discussed above highlight a fundamental disagreement over how rigorously trial courts should act as gatekeepers. Sooner or later, and hopefully sooner rather than later, SCOTUS will need to resolve this split. We will continue to follow developments in this area and report back.