Tuesday, May 09, 2006

More on Daubert and Amended Rule 702

Professor David Bernstein has replied to our post of 5/6/06, in which we took issue with his contention that Fed. R. Evid. 702, as amended in 2000, is stricter than, and to that extent supersedes, the teachings of Daubert and its pre-2000 progeny. Bernstein’s response is cross-posted at The Volokh Conspiracy and Point of Law.

Bernstein’s response offers two principal examples to buttress his claim that Rule 702 is more exacting than the requirements on expert evidence imposed in the Daubert trilogy. We’ll address his first example here, and discuss the second in a subsequent post.

Bernstein’s first example contrasts Chief Justice Rehnquist’s famous “ipse dixit” passage from Joiner with the text of amended Rule 702. As we understand him, Bernstein reads the Joiner opinion as merely permitting district courts to exclude testimony from experts who have applied concededly reliable methods in an incorrect or unreliable fashion, whereas he reads the language of Rule 702 to require exclusion in such circumstances.

We do not believe the claimed inconsistency to exist. Bernstein’s reading of Joiner, in particular, seems wide of the mark. Bernstein quotes the following excerpt, in which we have numbered the sentences for the reader’s convenience:
(1) But conclusions and methodology are not entirely distinct from one another. (2) Trained experts commonly extrapolate from existing data. (3) But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. (4) A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
Bernstein invites us to “[n]ote the permissive language, backed up by an abuse of discretion standard.” No one supposes, however, that the amendments to Rule 702 in 2000 did anything to change the standard of appellate review announced in Joiner. That leaves the passage’s allegedly “permissive” content. Bernstein’s reference, presumably, is to the italicized “nothing” and “requires” in Sentence #3 (his emphases), and perhaps to the word “may” in Sentence #4.

It is true, no doubt, that on a narrowly literalist reading, Sentence #3 does not explicitly require district courts to exclude expert opinions that are “connected to existing data only by the ipse dixit of the expert.” But in fact, on a narrowly literalist reading, nothing in Rule 702 imposes such any such requirement either. The naked language of Rule 702 says only that admissibility follows “if ”certain conditions are satisfied. It does not say “only if.” The naked text says nothing explicit, that is, about what happens if the stated conditions go unmet. If, as Bernstein (correctly) claims, Rule 702 mandates that evidence not satisfying those conditions must be excluded, it does so only by virtue of a negative inference, supplied via interpretation.

Now interpretation is a good thing, in our estimation. This is especially so, perhaps, in divining the meaning of the Federal Rules of Evidence – which are presented in a pithy, cathechistic format, but which are intended to guide the resolution of a vast array of complex evidentiary disputes in widely disparate factual contexts. Supreme Court opinions, however, need their fair share of interpreting too, and the standard interpretation of Sentence #3 has long incorporated precisely the same negative inference that Bernstein (correctly) reads into the text of Rule 702. Proponents of expert evidence, that is, do not quote Sentence #3 to argue that district courts may admit opinions that are connected to the data only by the sheer ipse dixit of the expert. Parties opposing the admissibility of the evidence quote Sentence #3 to argue that such evidence must be excluded. That’s how courts quote the language too.

So too with Sentence #4. On a narrowly literalist reading, Sentence #4 does not say anything about what a district court may or may not do, once it has concluded that there is “too great an analytical gap.” It is universally understood, however, that if the district court finds “too great an analytical gap,” the exclusion of the evidence should follow. The nub of most controversies here, of course, is whether some “analytical gap” exists and is “too great,” which is what the district courts “may” decide under Joiner, within the limits of their sound discretion. The most closely parallel provision in Rule 702 speaks of whether “the witness has applied the principles and methods reliably to the facts of the case.” Once again, it is generally left to the district court’s sound discretion to decide whether the expert has satisfied that requirement. And once again, everyone agrees that if the expert is found not to have done so, the testimony will be excluded.

We can make these same points less formalistically. In the quoted passage from Joiner, Chief Justice Rehnquist was rebutting a very particular argument. The expert in Joiner had relied on various epidemiological studies to support an opinion that the plaintiff’s lung cancer resulted from PCB exposures. In excluding the expert’s testimony, the district court concluded that the studies did not support a generic causal link between PCB exposure and lung cancer. The plaintiff’s counsel argued, on appeal, that the district court’s ruling violated Daubert’s famous prescription that the “focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” The district court in Joiner, however, did not in fact reason in the fashion that Daubert proscribes. It did not exclude the expert’s opinion from mere substantive disagreement with the expert’s conclusions, nor based on any argument that took the falsity of those conclusions as a premise. It simply found that the expert’s methods did not actually “generate” the conclusions he adopted. Thus in the oft-quoted passage from Joiner that Bernstein cites, Rehnquist was putting to rest the argument that any judicial inquiry into an expert’s application of his methods constitutes a forbidden “focus” on the expert’s conclusions. Far from being in any disharmony with that teaching, Rule 702, as amended, expressly adopts it.

As we’ve said, we’ll tackle Prof. Bernstein’s second example in another post. In the meantime, though, why does any of this matter, if it makes no difference in evidentiary outcomes? What difference does it make whether a ruling purports to be reached under Joiner or by virtue of amendments to Rule 702, if the result is the same?

To us, it matters because if someone wanted to overthrow thirteen years of precedent under Daubert in one fell swoop, perhaps because someone felt those precedents were too permissive, the presumptive method of choice would be to claim that those precedents were trumped by some short, catechistic text, such as the text of amended Rule 702, to whose explication courts should henceforth devote themselves, to the exclusion of consulting the disfavored precedents. (That, after all, is precisely how decades of jurisprudence under Frye were overthrown.)

We do not say that Prof. Bernstein has such an agenda, and we do not say he doesn't. We’re merely concerned to show that any such agenda won’t fly. The amendments to Rule 702 in 2000 didn’t overturn anything in Joiner (whether holding or dictum). Quite the contrary, those amendments incorporated and distilled Joiner’s reasoning. There remains some controversy over precisely what Joiner and Rule 702 mean. But there’s no good reason to think they mean anything different, or to conclude that the latter was intended to supersede the former.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.