Some Federal Courts Continue to Neglect Federal Rule of Evidence 702

The admissibility of expert testimony in federal court is governed by FRE 702.  FRE 702 was amended, in fact completely rewritten, in 2000.  As I’ve noted before, that hasn’t stopped some federal courts from ignoring the text of the rule in favor of other considerations.  Thus, not for the first time, we find a court construing the Supreme Court’s 1993 Daubert opinion as explaining the scope of Rule 702, even though Daubert was addressing an earlier and different version of the rule.  In re Chantix Prods. Liab. Litig., (N. D. Ala. August 21, 2012) (“Rule 702, Federal Rules of Evidence, as construed by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,  requires expert scientific evidence to be both reliable and relevant pursuant to Rule 702, such that it appropriately assists the trier of fact.”)  The judge, in charge not of an  individual case but an MDL, never does get around to citing the text of the rule, though he manages to cite lots of other material.

Really, how hard is it to understand that the admissibility of expert testimony is governed by statute, and when ruling on a statutory issue one starts with the text of the statute?  For that matter, how hard is it to understand that Rule 702 was rewritten in 2000, and therefore precedents from before 2000 could not be construing the text of that rule? Apparently harder than I think, because  in another recent case, the MDL judge invoked the Third Circuit approach to expert testimony, citing a circuit court  case from 1999 as a binding interpretation of Rule 702, and proceeded to ignore the language of the current statute:

Federal Rule of Evidence 702 reads: [I]f 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 fact 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. The Third Circuit has distilled this rule to two essential inquiries: 1) is the proffered expert qualified to express an expert opinion; and 2) is the expert opinion reliable? [FN citing In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999).]

I’m pretty sure the Third Circuit could not have distilled a rule from statutory language that did not yet exist.

H/T Nathan Schachtman