Joelle Moreno on Federal Rule of Evidence 702:

Last week, I posted a critique of a Federal Circuit decision that ignored the text of amended Rule 702. The court treated issues of wheter a methodology is used in a reliable way in a particular case, which is an issue of admissibility under Rule 702, as an issue of weight. Despite what I think is the clear text of the rule, some commentors claimed that I was propounding an indiosyncratic view of Rule 702.

However, I just came across a piece by Prof. Joelle Moreno that critiques an Eleventh Circuit opinion on which the Federal Circuit relied heavily in the case I criticized. Moreno makes the same point I do:

One recent case from the Eleventh Circuit illustrates how courts can misconstrue their Daubert gatekeeping obligations, effectively abnegating responsibility for reliability decisions. In Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., the appellant challenged the admission of defense expert trial testimony, arguing that the expert had "misused a method that, in the abstract, is reliable." 326 F.3d 1333, 1345 (11th Cir. 2003). The appellate court recast the question, finding that "although [r]ulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology, it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Id. at 1341 (internal quotations and citations omitted). By redefining the reliability of an expert's application of his methods to the facts, which should fall squarely within the judge's purview, as a question of "persuasiveness," the court was able to conclude that "the alleged flaws in Frank's analysis are of a character that impugn the accuracy of his results, not the general scientific validity of his methods." Id. at 1345. When the Eleventh Circuit concluded that this finding meant that the appellant had failed to raise an argument relating to admissibility, the court completely misconstrued its Daubert obligations. The Eleventh Circuit's mistake was to define this as a question of weight, leading the court to conclude that "the identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination." Id.

Joelle Ann Moreno, What Happens When Dirty Harry Becomess an (Expert) Witness for the Prosecution, 79 Tulane L. Rev. 1 (2004).