I just came across the Eleventh Circuit’s opinion in Adams v. Lab. Corp. of Am., 760 F.3d 1322 (11th Cir. 2014). The opinion is getting a lot of play because the appellate court rejected the district court’s reliance on guidelines a professional society established for testifying experts reviewing slides from pap smears when a cytotechnologist allegedly missed signs of precancerous cells.  The guidelines required a blinded review, in which (a) the plaintiff’s slides are mixed in with other normal and abnormal slides, (b) those slides are sent to multiple reviewers who do not know which slides are the plaintiff’s, and (c) those reviewers offer their opinion on which slides are normal and which are abnormal.  The district court excluded the plaintiff’s expert’s testimony for not adhering to the guidelines. The Eleventh Circuit didn’t just disagree with that ruling, it deemed the ruling an abuse of discretion, and suggested that the standards existed only to shield the professional society’s members from litigation. In fact, the standards seem like a very sensible way to ensure that testimony relying on an expert’s professional judgment is objectively reliable as required by Federal Rule of Evidence 702, rather than being a product of adversarial bias.  Also notable, and related to its ultimate ruling, is that the Eleventh Circuit cited the language of FRE 702, the governing statutory standard for the admissibility of expert testimony, and then proceeded not just to ignore it, but to do so in the very next sentence:  Federal Rule of Evidence 702, as amended in response to Daubert and Kumho, provides:  A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: [*1328]  (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is the product of reliable principles and methods; and  (d) the expert has reliably applied the principles and methods to the facts of the case.  We have distilled from Daubert, Kumho, and Rule 702 these three requirements: First, “the expert must be qualified to testify competently regarding the matter he or she intends to address”; second, the expert’s “methodology . . . must be reliable as determined by a Daubert inquiry”; and third, the expert’s “testimony must assist the trier of fact through the application of expertise to understand the evidence or determine a fact in issue.” Kilpatrick, 613 F.3d at 1335.  It is, I should note, clearly false that the Eleventh Circuit distilled this test from Rule 702. Kilpatrick adopted the test from Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998), which was decided more than two years before the current version of Rule 702 went into effect–which explains why the Kilpatrick test is much more forgiving than the language of Rule 702. (For that matter, Kumho was decided by the Supreme Court in 1999, so Kilpatrick couldn’t have been distilled from that, either; this is especially ironic because Kumho overruled an Eleventh Circuit opinion, which should have been a hint ot the Eleventh Circuit that it shouldn’t be relying on its earlier precedents).  It’s a shame that I keep having to reiterate this, but Rule 702, not “Daubert“, and not some other test that a circuit court came up with in the 1990s before the amendments to Rule 702, is the law that lower courts must enforce. As a matter of law, I don’t see how this can be at all controversial. And yet, a federal circuit court feels free to quote the exact language of the rule, and then apply a pre-rule test that conflicts with the rule.  At some point, the Supreme Court is going to have to step in and restrain judges who are willfully ignoring the law as reflected in FRE 702.  David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, will be published in November.
The Eleventh Circuit rejected a sensible way to separate objectively reliable expert testimony from testimony tainted by adversarial bias, meanwhile ignoring the text of the rule of evidence is was supposedly applying.