Unless the Supreme Court ends the Ninth Circuit’s pattern of excusing trial court judges from their gatekeeping duty under Rule 702, the federal judiciary’s ability to produce fair and just results will be eroded.”
—Cory L. Andrews, WLF General Counsel & Vice President of Litigation
Click here for WLF’s brief.
(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to review, and ultimately to reverse, a Ninth Circuit decision that requires trial-court judges to abdicate their gatekeeping duty to keep unreliable expert evidence from ever reaching the jury. WLF’s amicus brief was prepared with generous pro bono assistance from Jonathan S. Tam and Matthew P. Steinberg of Dechert LLP.
The case arises from a lawsuit alleging that exposure to Monsanto’s popular herbicide Roundup caused the plaintiff’s non-Hodgkin’s lymphoma. After hearing expert testimony on causation, the jury awarded the plaintiff $80 million in damages, which was later reduced to $25 million. In its amicus brief supporting Monsanto’s petition, WLF argues that the Ninth Circuit erred by allowing the plaintiff to establish causation on the basis of unreliable expert opinions.
Rule 702 of the Federal Rules of Evidence requires that an expert offering his opinion as evidence in federal court must not only employ a reliable method but also must be reliably applied to the facts of the case. As many other federal circuits have recognized, simply invoking a reliable methodology is not enough; courts must also police the application of the methodology to ensure reliability.
But the Ninth Circuit is an outlier among its sister circuits. As WLF shows in its brief, the decision below is the merely the latest in a long line of Ninth Circuit decisions that give wide berth to medical-causation experts who say they have performed a scientific analysis but have failed to do so reliably. The decision thus deepens an entrenched and very lopsided circuit split on Rule 702’s reliable-application requirement and warrants the Supreme Court’s intervention.