DRI Submits Amicus Brief Urging Supreme Court to Review Decision on Admissibility of Expert Testimony

On December 20, 2017, DRI filed an amicus brief in the U.S. Supreme Court supporting the petition for a writ of certiorari in Teva Pharmaceuticals USA, Inc. v. Wendell, No. 17-747. The brief was filed through DRI’s Center for Law and Public Policy.

The case raises two questions concerning the admissibility of expert testimony, a subject with enormous practical significance for litigation in federal and state courts nationwide. Almost 25 years ago, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court articulated standards for federal trial courts to apply in determining whether an expert should be permitted to offer opinion testimony. In keeping with the trial court’s “gatekeeper” role in determining whether expert testimony should be admitted or excluded, the Court held a few years later that decisions on expert-admissibility would be reviewed on appeal under the abuse-of-discretion standard.

At issue in Teva v. Wendell, is the proposed testimony of two doctors on the issue of causation in a case alleging that prescription pharmaceutical drugs manufactured and distributed by defendants caused a patient to develop an exceedingly rare and aggressive form of cancer. The district court granted defendant Teva’s motion for summary judgment because the testimony of plaintiffs’ causation experts was not reliable and therefore not admissible under Federal Rule of Evidence 702. The U.S. Court of Appeals for the Ninth Circuit reversed and remanded. In the Ninth Circuit’s view, “Daubert poses no bar” and the contested testimony “should have been admitted as expert testimony.” The appellate court reached that conclusion by applying de novo review to the question “whether particular evidence falls within the scope of [Rule 702].”

DRI’s amicus brief urges the Court to grant review to resolve circuit court conflicts on both questions presented in the petition: (1) the standard for appellate review of expert-admissibility rulings, and (2) the standards for determining when proposed expert testimony is sufficiently reliable to be presented to a jury. DRI explains that these issues have broad application to litigation across the country; that the issues have enormous practical significance given the pivotal—often dispositive—role that expert testimony plays in complex litigation; and that nationwide uniformity is essential to “the fair, orderly administration of justice.” The brief explains that Supreme Court review is also warranted because the issues “affect counsel for plaintiffs and defendants (whether they support or oppose an expert in a particular case).”

DRI’s brief was authored by Jerrold J. Ganzfried, founder of GANZFRIED LAW in Washington, D.C. Mr. Ganzfried is a fellow of the American Academy of Appellate Lawyers, and is a former chair and current member of the DRI Amicus Committee.