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Just last week we updated our discussion on the 2023 amendments to Rule 702 urging our readers to start using the amendments now before their official implementation in December.  That’s because the Report of the Rules Advisory Committee confirms that the change to Rule 702 is to correct the mistakes of those courts who have opined that the basis of an expert’s opinion “only goes to weight, and not admissibility.”  Today we add to the discussion a prime example of why you should not wait. 

In Crockett v. Luitpold Pharmaceuticals, Inc., 2023 U.S. LEXIS 29923 (E.D.PA Feb. 23, 2023), the court denied defendant’s motion to exclude plaintiff’s expert under Rule 702 primarily concluding that the reliability issues raised by defendant went to weight rather than admissibility—a misapplication of Rule 702.  Specifically, the court’s analysis started with the false premise that “[w]hen reliability questions go to the weight of an expert’s proposed testimony rather than admissibility . . .”  Id. at *5.  But use of a reliable methodology is a condition of admissibility that must be established by a preponderance of the evidence.  It is not “an issue suitable for the jury.”  Id.

In Crockett, defendant challenged plaintiff’s expert’s opinion that the condition plaintiff suffered from was systematically underreported in clinical trials for the drug.  Defendant argued that the opinion was not based on a reliable methodology or supporting data.  Id. at *9.   In fact, the expert’s report referred to his theory as a “hypothesis” that “may have” led to underreporting.  Id. at *10.  The only basis for his “hypothesis” seems to be the expert’s “experience” that the complication occurs “way more” than what the trials reported.  The medical community lacks familiarity with the condition so they don’t report it, which perpetuates the lack of familiarity.  Circular reasoning supported by nothing other than personal “experience” is not proof by a preponderance of the evidence of reliability, absent which plaintiff has not met her burden of establishing admissibility under Rule 702.  But that’s according to us and the Rules Committee.  In Crockett, “defendants’ objections [went] to the weight of [the expert’s] testimony on underreporting, making them better suited for cross-examination.”  Id. at *11 (citing another case that does not survive the Rule change, Durando v. Trustees of Univ. of Pennsylvania, 2022 WL 2467080, at *1 (E.D. Pa. July 6, 2022)).   

The expert’s other opinions likewise appear to be largely based general experience and occasionally some unidentified medical literature.  For example, on the question of the latency period, defendant points to the absence of any citations in that section of the expert’s report.  The court, however, found his methodology sufficient because it was based on “extensive clinical research experience” and some unidentified medical literature identified as reference materials.  But it is not clear whether the literature was cited for the relevant propositions, as opposed to being mentioned somewhere else in the report.  Id. at *13.  On another opinion, defendant pointed to a lack of supporting data.  The court determined that that was a concern “better suited for cross-examination.”  Id. at *15.  But a lack of supporting data is also a criterion for admissibility, not an issue of weight.       

Finally, the decision refuses to consider an argument that the other risks the expert opines on are irrelevant to the case, as plaintiff did not suffer them because defendant raised the issue for the first time in its reply brief.  But the argument is based on an apparent concession in the plaintiff’s opposition papers, so it does not seem possible for the defendant to have made the argument any earlier.  Id. at *16.

Decisions like Crockett should not survive the rule change in December.  But more importantly, defendants should be doing what they can to prevent 10 more months of decisions like Crockett misapplying Rule 702.  The end of “basis only goes to weight” is near, but maybe we can help it along.