In Anderson v. The Raymond Corporation (7th Cir., No. 22-1872, 2/1/2023), the Seventh Circuit gives a master class on the correct analysis for admitting or excluding expert witness testimony under Rule 702 of the Federal Rules of Evidence, as well as the standard of review on appeal. The court of appeals had the opportunity to do this because the district court’s minimal (almost disdainful) explanation for excluding an expert’s testimony consisted of just two sentences. First, “This Court finds that John Meyer’s opinion that Raymond was negligent or that its forklift is dangerously and defectively designed…simply does not pass the Daubert test.” And second, “John Meyer’s analysis and efforts in this case are not sufficiently exhaustive or thorough to green light a jury to consider rejecting the engineering consensus on this specific matter.”
You will observe that the district court never mentions Rule 702 of the Federal Rules of Evidence. I put Daubert in parentheses in the title of this post because lawyers and judges keep talking about “the Daubert test,” and some attorneys even ask us if a proposed expert has been “Daubert-ed.” Everyone forgets that Daubert was simply the Court’s first (and not its only) interpretation of Rule 702, and its opinion had a twofold purpose: First, to make it clear that the Rules, and specifically Rule 702, superseded the “general acceptance” standard for the admission of expert testimony established by Frye v. United States. (It’s astonishing that until 1993 when Daubert came down, 18 years after the Rules were adopted, some lawyers and judges still thought Frye controlled – indeed, so many of them that the Court finally found it necessary to set them straight. Some state courts still use the Frye standard under their own state’s rules of evidence, which is another matter entirely.) And second, to set forth some “general observations” – i.e., guidelines, not a test – concerning that application of Rule 702. Those guidelines emphasize that there are many factors for a trial judge to take into consideration, which may vary from case to case, and that flexibility is essential:
Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. (From the Daubert syllabus, https://www.law.cornell.edu/supct/html/92-102.ZS.html.)
In short, there is no Daubert test. There is only Rule 702, as applied in the light of Daubert’s “general observations” and in the light of later Supreme Court cases. For example, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, https://supreme.justia.com/cases/federal/us/526/137/ (1999), the Court found it necessary to explain to the legal world that Daubert is not the be-all and end-all. From the syllabus (citations omitted):
A trial judge determining the admissibility of an engineering expert's testimony may (emphasis in the original) consider one or more of the specific Daubert factors. The emphasis on the word “may” reflects Daubert's description of the Rule 702 inquiry as “a flexible one. “The Daubert factors do not constitute a definitive checklist or test (emphasis added), and the gatekeeping inquiry must be tied to the particular facts. Those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony. Some of those factors may be helpful in evaluating the reliability even of experience-based expert testimony…. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors where they are reasonable measures of reliability.
Or, as Justice Scalia put it more pithily in his concurring opinion (joined by O’Connor and Thomas, JJ), “the Daubert factors are not holy writ[. I]n a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.” This applies equally to the analogous rule in states that have largely or wholly adopted the federal rules as their own state’s rules of evidence. The seemingly endless citation of the nonexistent “Daubert test” by attorneys and judges has been a pet peeve of mine for years, and I’m delighted to have this opportunity to say something about it.
I close with three key excerpts (citations and internal quotation marks and brackets omitted) from Anderson v. The Raymond Corporation, the case that got me started on this screed. The full opinion is concise (a mere nine pages), articulate, and well worth your time.
Because much depends upon the particular circumstances of the particular case at issue, the Rule 702 analysis is case-specific. Ultimately, reliability is determined on a case-by-case basis….
If…the district court failed to conduct the requisite analysis, we review the expert opinion’s exclusion or admission de novo. A court must provide more than just conclusory statements of admissibility or inadmissibility to show that it adequately performed its gatekeeping function. Here, the district court addressed Meyer’s methodology in one sentence: “This Court finds that John Meyer’s opinion that Raymond was negligent or that its forklift is dangerously and defectively designed because it does not come standard with a compartment door, especially one that locks or latches, simply does not pass the Daubert test.” That is a conclusion – not an analysis – to which we owe no deference….
No one factor is dispositive…and the Supreme Court has repeatedly emphasized that the Rule 702 test is a flexible one. At all times, the correct inquiry focuses not on the ultimate correctness of the expert’s conclusions, but rather on the soundness and care with which the expert arrived at her opinion.
