We recently decried the Eighth Circuit’s continuing disregard of the expert gatekeeping function imposed by F.R. Evid. 702 in In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, ___ F.4th ___, 2021 WL 3612753 (8th Cir. Aug. 16, 2021).  Well, only four days later, the Fourth Circuit delivered a counterpoint in Sardis v. Overhead Door Corp., ___ F.4th ___, 2021 WL 3699753 (4th Cir. Aug. 20, 2021), reversing a nearly $5 million verdict, because the trial court in Sardis did precisely the opposite of the MDL judge in Bair Hugger – abdicated its Rule 702 gatekeeping function by dumping Rule 702’s requirements on the jury.

In so doing, Sardis cited the new amendments to Rule 702:

[T]he importance of the gatekeeping function cannot be overstated.  That much is confirmed by the Advisory Committee on Evidence Rules’ current proposal to amend Rule 702.  On April 30, 2021, the Committee unanimously approved a proposal to amend Rule 702, part of which is motivated by its observation that in “a number of federal cases . . . judges did not apply the preponderance standard of admissibility to [Rule 702’s] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that such issues were ones of weight for the jury.”  Advisory Comm. on Evidence Rules, Agenda for Committee Meeting 17 (Apr. 30, 2021).  In order to address this “pervasive problem,” id. at 18, both of the current draft amendments to Rule 702 would contain the following language in the advisory committee’s notes:

[U]nfortunately many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testimony], and the application of the expert’s methodology, are generally questions of weight and not admissibility.  These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.

Id. at 105, 107.  That clearly echoes the existing law on the issue.  Consistent with that existing law − and in accordance with the Committee’s pending rule − we confirm once again the indispensable nature of district courts’ Rule 702 gatekeeping function in all cases in which expert testimony is challenged on relevance and/or reliability grounds.

Sardis, 2021 WL 3699753, at *8-9 (citations except for Rule 702 amendment omitted) (emphasis added).

Thus, even before the Rule 702 Amendments are final, we have a circuit split.  Maybe (we hope) Sardis will influence the Eighth Circuit to take another look at its “incorrect application” of Rule 702, or if that fails, will induce the United States Supreme Court to enforce Rule 702 in the Bair Hugger litigation.

While a product liability case, Sardis is about as far from our prescription medical product sandbox as one could imagine.  Sardis involved the strength of wooden handholds on a packing crate.  The crate itself was not retained, id., at *2, so all of the two plaintiff experts’ testimony was speculative.  Rather than hold those experts to Rule 702’s prerequisites, the trial judge let everything go to the jury.

• Before trial, “[t]he district court denied [defendant’s Rule 702] motion as to both experts in a cursory fashion. Making no relevancy determinations, it held only that [defendant’s] reliability concerns lacked merit because “[a] lack of testing . . . affects the weight of the evidence, not its admissibility.”
• After trial, “the district court rejected [defendant’s] renewed [Rule 702] challenges . . . as only “ ‘affect[ing] the weight of the evidence,’ not its admissibility.”

Sardis, 2021 WL 3699753, at *3.

Sardis chastised the district court for repeatedly abusing its discretion.

The district court erred at the motion in limine stage when it improperly abdicated its critical gatekeeping role to the jury and admitted [the two experts’] testimony without engaging in the required Rule 702 analysis.  That error was harmful.  Had the district court faithfully executed its Daubert responsibilities before or after the jury’s verdict, our precedent would have compelled it to exclude both experts’ testimony.  And without that expert testimony, [plaintiff] failed to meet its evidentiary burden on each cause of action submitted to the jury.

Id. at *5.  Reversed and remanded for entry of a defense judgment as a matter of law.

The opinions in question were largely directed to the plaintiff’s negligent design theory (Virginia, the relevant jurisdiction, does not recognize strict liability).  “While district courts have broad discretion” under Rule 702, “such discretion does not include the decision to abandon the gatekeeping function.”  Id. at *7 (citation and quotation marks omitted).  That was precisely what had happened, when the district court “reflexively found that [defendant]’s arguments go to the weight the jury should afford [the] testimony, not its admissibility.”  Id. (citation and quotation marks omitted).  Post-trial, “the district court doubled down” on its abuse of discretion, ruling that defendant ““vigorously cross-examined [an expert] on his failure to test his theories, but the jury apparently found [those] opinions credible.”  Id.  “Cross-examination,” however, is no substitute for Rule 702 gatekeeping:

[C]redibility is entirely distinct from reliability and relevancy, which are preconditions to the admissibility of expert testimony.  While cross-examination may be a proper tool to determine which of two competing experts’ theories more credibly explains an event, even a thorough and extensive examination does not ensure the reliability or relevance of an expert’s testimony.

Id. (citation and quotation marks omitted).

Nor could plaintiff get away with claiming the trial court’s failure to apply Rule 702 criteria amounted to “implicit” application of those standards in favor of admitting the experts’ testimony:

That is plainly insufficient.  Where the admissibility of expert testimony is specifically questioned, Rule 702 and Daubert require that the district court make explicit findings, whether by written opinion or orally on the record, as to the challenged preconditions to admissibility.

Id. at *8 (citations omitted).

Most of the rest of the Sardis decision is product specific, and thus not of particular interest to our prescription medical product-focused audience.  However, one part does address something we frequently encounter – an expert purporting to offer opinions on legal issues, in Sardis the supposed applicability of an ASTM (American Society of Testing & Materials) standard.  The Fourth Circuit held that applicability of a legal standard is not a proper subject of expert testimony.

[W]hether [the] ASTM [standard] imposed particular duties on [defendant] to construct the Container in a certain manner should have never been delegated to the jury. . . .  [The] law is clear that the question of whether a manufacturer has a duty to design a product in a certain manner is a question of law for the court.  Judges rather than juries determine whether the defendant was under a duty of care at all and if so what standard of care applied.  The district court thus should have made this determination, not the jury.  Its failure to do so was error.

Sardis, 2021 WL 3699753, at *12 (citations and quotation marks omitted).

Thus, on the critical Rule 702 gatekeeping issues that concern our clients, Sardis was every bit as favorable as Bair Hugger was adverse.  Unfortunately, Sardis corrected a misapplication of Rule 702 in a one-off case, whereas Bair Hugger being an MDL, the effect of the Eighth Circuit’s error is multiplied several thousand-fold.  Fortunately, we hope and expect that final adoption of the Rule 702 amendments – specifically calling out what the Eighth Circuit did as “incorrect” – will ultimately solve the problem, since that would amount to an intervening change in controlling law and allow the MDL judge there to replicate the decision under the “new” Rule 702 (albeit with the defendant incurring huge amounts of additional expense in the interim).