Ignoring the Text of Federal Rule of Evidence 702

I’ve noted before that many federal courts simply ignore the text of Federal Rule of Evidence 702 in favor of their own formulations, sometimes relying on cases that were decided before Rule 702 was amended in 2000, and that conflict with the amended rule. I just came across a good example. On September 7th, the Eleventh Circuit decided the case of Rosenfeld v. Oceana Cruises, in which the court overturned a district court ruling excluding the testimony of a floor safety expert.

Here’s the Eleventh Circuit, quoting a 2004 case that in turn quoted a 1998 case–a case that predates not only amended Rule 702, but also the Kumho Tire case that established standards for the admissibility of non-scientific expert testimony while overruling, you guessed it, an overly lenient Eleventh Circuit opinion:

[T]rial courts determining the admissibility of expert testimony under Federal Rule of Evidence 702 must “engage in a rigorous three-part inquiry,” considering whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

That is perhaps a reasonable test, but it doesn’t happen to be the same as the three-part test that Rule 702 quite explicitly enumerates, to wit:

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.

The Eleventh Circuit notes that “Oceania argues that Vournechis’s methods failed to accurately test for wet conditions, and that his conclusions were ‘imprecise and unspecific’ and based on ‘incorrect assumption[s]‘ about the location of Rosenfeld’s fall.” Then, applying its own test, the court concludes that “these arguments attack the weight and the persuasiveness of Vournechis’s testimony, not its admissibility.”

Whoa! Part (3) of Rule 702 specifically states that expert testimony is only admissible if
“the witness has applied the principles and methods reliably to the facts of the case.” If, in fact, Vournechis did, for example “fail to accurately test for wet conditions,” then he did not apply his principles and methods reliably to the facts of the case, and this is an issue of admissibility, not mere weight. But since the Eleventh Circuit doesn’t quote or otherwise pay any attention to the text of the rule it’s purporting to apply, and instead applies the test it invented instead, it not surprisingly gets the law wrong.

In fairness to the court, though, I should point out that none of this was explained by the defendant’s attorneys, who never cite the text of Rule 702 in their brief.