“The expert testimony at issue here is a poster child for the kind of dubious made-for-litigation ‘expert’ opinions that Rule 702 was intended to weed out.”
—Cory 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 a decision by the U.S. Court of Appeals for the Eighth Circuit that drastically lowers the bar for admitting unreliable expert evidence in federal court. WLF joined Atlantic Legal Foundation and  DRI—The Voice of the Defense Bar in urging the Court to grant review.

The case arises from long-running multi-district litigation over 3M Company’s Bair-Hugger patient warming system, which remains the most popular choice of surgeons for ensuring patient comfort and safety during surgery. Plaintiffs claim that the Bair Hugger causes surgical-site infections during knee- and hip-replacement surgeries, on the theory that warm air flowing from the Bair Hugger conveys bacteria to the incision site. But the Bair Hugger is considered safe and effective by the Food and Drug Administration, and no physician, epidemiologist, or public-health official has embraced Plaintiffs’ theory of harm.

Citing grievous flaws, weaknesses, and gaps in the Plaintiffs’ experts’ causation testimony, the district court excluded their reports as unreliable. But the Eighth Circuit reversed, holding that expert testimony must be admitted unless it is “so fundamentally unsupported by its factual basis that it can offer no assistance to the jury.” As WLF’s brief makes clear, that is not the standard for reliability established by either Federal Rule of Evidence 702 or applicable Supreme Court precedent.

WLF’s brief argues that the Eighth’s Circuit lax standard for admitting expert evidence places a heavy thumb on the side of admitting expert evidence with acknowledged flaws and deprives defendants of a fair trial and due process. Without the Supreme Court’s intervention, junk science will continue to infect litigation throughout the United States.

Celebrating its 45th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.