Like Scalia Gorsuch to Keep a Tight Daubert Gate

By Annie Dike, Esq.
While a district court doesn’t have to discuss all the reliability factors that the Supreme Court identified in Daubert and Kumho in every case, the court is, however, required to “focus its attention on the specific factors implicated by the circumstances at hand.” StorageCraft Technology Corp. v. Kirby, No. 12-4182 (10th Cir., March 11, 2014).

This is according to Neil Gorsuch in an opinion from 2014 we previously reported on, stating with specificity what is required of a district court to adequately carry out its Daubert duties. While “the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable and hence an abuse of discretion.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). This is according to Antonin Scalia in his concurring opinion in the famous 1999 Kumho tire case. Fifteen years apart, yet the similarities are still striking. With Gorsuch stepping in soon to fill Scalia’s tight-laced shoes, we predict he will be just as rigorous and rigid with his Daubert reviews and equally eager to reverse a district court’s admission of “expertise that is fausse and science that is junky.” Id.

What to Expect

So, what can you expect from Gorsuch on the bench? Being a staunch originalist like Scalia, Gorsuch will likely want to see district courts follow explicit, literal instructions on how to conduct a proper Daubert review. Specifically, on appeal, this is what Gorsuch will likely expect out of the district court in a Daubert ruling:

  • Address each Daubert objection raised. While the court does not have to touch on each reliability factor, it must address those raised by the Daubert objector. For example, “[i]f the challenge is to the expert’s methodology, … it is not sufficient for the judge to stress the expert’s qualifications.” Tymkovich, Seymour and Gorsuch: StorageCraft, No. 12-4182.
  • Give complicated issues lengthy discussion.  “[O]ther things equal, more complicated challenges demand lengthier discussions while less complicated challenges require less discussion.” Id.
  • Seek testing, scientific literature, and peer-reviewed studies. Affirming the district court’s exclusion of an expert who did “not perform[] any testing specifically related to his opinions in this case.” O’Brien, Seymour and Gorsuch: Cruz v. Zia Trust, Inc., Case No. 08-2242 (10th Cir., July 22, 2010).
  • Look for general acceptance of the opinion.  Affirming district court’s exclusion where the expert “offered no peer-reviewed studies supporting his opinion, he offered no empirical data, and he conceded that no tire standard called for use of nylon cap plies in tires. In other words, plaintiffs failed to satisfy the enumerated Daubert admissibility criteria.” Id.
  • Create a sufficient record of the Daubert review. “[I]t is not sufficient for a district court simply to say on the record that it has decided to admit the expert testimony after due consideration. Instead, the district court must furnish enough of a record to permit a reviewing court to say with confidence that it ‘properly applied the relevant law.’” Tymkovich, Seymour and Gorsuch: StorageCraft, No. 12-4182.
  • Maintain the gate-keeping function. “The discretion Daubert endorses—trial-court discretion in choosing the manner of testing expert reliability—is not discretion to abandon the gatekeeping function. I think it worth adding that it is not discretion to perform the function inadequately. Rather, it is discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Scalia concurring, Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

With instructions this specific as to how to properly perform a Daubert review and sufficiently document and support that review in order to pass review on appeal, it is likely Gorsuch—much like Scalia—will prove to be a tight gate-keeper when it comes to the admission of expert testimony. True to their originalist roots, very literal interpretation of the Daubert reliability factors will require attorneys seeking to admit expert testimony under the new SCOTUS to ensure their experts are adequately testing their theories and offering up scientific literature, peer-reviewed studies, and empirical data to support their opinions. In addition, counsel should ensure the district court’s opinion, whether excluding or admitting expert testimony, meets Gorsuch’s sticking points for proving a properly conducted Daubert review.

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As a former trial and litigation attorney, Annie Dike has a keen eye for expert evidentiary issues and a clear voice for practical solutions.  Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude.  While in law school, she served as Vice President of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team as well as Lead Articles Editor of The Journal of the Legal Profession.  Ms. Dike has published articles in The Alabama Lawyer and DRI MedLaw Update and has spoken on numerous legal issues at various conferences nationwide.

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