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Thursday, February 19, 2015

Dodging Daubert: Developments in Expert Admissibility in Federal Courts

If you’ve been following the news or tracking major judicial developments, you may know that the Supreme Court of the United States, also known as SCOTUS, has a busy spring ahead of it this year. The nine justices have already heard arguments concerning the Fair Housing Act in January and will soon be hearing oral arguments for cases concerning the future of the Affordable Care Act, marriage equality, and lethal injection.

But what case won’t SCOTUS be hearing?

SQM N. Am. Corp. v. City of Pomona, 750 F.3d 1036 (9th Cir. 2014).

In 2011 the City of Pomona, California sued the SQM North America Corporation in Federal Court for groundwater contamination. Alleging that the perchlorate in the groundwater was caused by the use of sodium nitrate imported from Chile by SQMNA, Pomona sought to recover the cost of its source investigation and subsequent remediation. In order to prove causation, Pomona’s expert performed stable isotope analysis to fingerprint the perchlorate and compare the results to a “reference database of known perchlorate sources.” The expert concluded that the primary source of the perchlorate in the groundwater was the same as the perchlorate imported by SQMA.

SQMNA moved to exclude the expert’s opinions, and the district court granted the motion in limine after finding the opinions unreliable under Rule 702 of the FRE. The court based its decision on “(1) the opinions were subject to future methodological revisions and not yet certified; (2) the procedures he used had not yet been tested and were not subject to retesting; and (3) the reference database used…was too small.” The decision was appealed, and the Ninth Circuit reversed, essentially finding that the acceptability of the methodology – in terms of the credibility of the expert and strength of the method – was a matter for a jury to decide. Then last September, SQMNA petitioned SCOTUS to reverse the Ninth Circuit, but was recently rebuffed.

Okay, so it’s certainly not as interesting as some of the cases that SCOTUS will actually hear this spring, so why are we covering it?

At its core, the case pertains to how circuit courts interpret FRE 702 and Daubert – issues that are particularly relevant to experts. The Product Liability Monitor, a blog managed by the Product Liability division of Weil, recently brought it to our attention, and Christopher Barraza, Esq., has an excellent analysis of the case (1) and its implications (2): “As a practical matter, litigants will continue to face different levels of Daubert scrutiny depending upon the circuit in which their case is pending.”

Barraza explains that the Ninth Circuit’s decision “in SQMNA creates an undeniable circuit split over FRE 702, Daubert, and the gatekeeping role of a trial court,” (1). For in its ruling the Ninth Circuit rejected the Third Circuit’s approach: “any step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony inadmissible, *** whether the step completely changes a reliable methodology or merely misstates that methodology,” (1). This approach has been adopted by the Second, Sixth, and Tenth Circuits. Meanwhile, the Seventh, Eighth, and now the Ninth Circuit, “have adopted the view that faults in an expert’s methodology generally go to the weight of the expert’s opinions, not their admissibility,” (2).

As Barraza notes, though SCOTUS dodged making a decision in the immediate future, at some point the court will need to address the disparity in scrutiny among the trial courts. For now, if you find yourself involved in a Federal Court case, it is very important to identify which jurisdiction the case is in (see our map above, modeled after the U.S. Courts’ court locator, for the level of scrutiny you should expect). Knowing the degree of gatekeeping your methodology and opinions will undergo is significant as it affects which scientific methods you can safely rely upon and how you apply them in forming your opinions. Unfortunately, unlike SCOTUS, experts don’t have a choice in dodging Daubert.

5 comments:

  1. Thanks for the informative article! The map is a great resource to help illuminate the splits and uneven application of Daubert.

    We just recently did a case study on Pomona v. SQM as well, but from a unique perspective: what would have happened if Sturchio's report was peer reviewed by other scientists before it was filed (http://jurilytics.com/pomona)? Much of the city's headaches may have been prevented in the first place!

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    1. Amit, thanks for the comment! Your case study was an interesting read – it’s fascinating that this matter can be viewed from so many different perspectives and offer such different, but extremely useful “lessons learned.”

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  2. Thank you Kate! If you like what we are doing at JuriLytics, you can follow our developments: LinkedIn or Twitter!

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