It is widely recognized that the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.¹ marked a significant departure from the longstanding liberal approach to the admissibility of expert opinions. The primacy of Daubert in the minds of litigators, judges, and experts is self-evident—even the hearing to evaluate the admissibility of expert testimony bears Daubert’s name. What seems to be fading from the collective consciousness, however, is that Daubert was merely the first domino to fall. Over the ensuing six years, the Supreme Court tightened the liberal standards for the admissibility of expert testimony twice more, in General Electric Co. v. Joiner² and Kumho Tire Co. v. Carmichael.³ And on the heels of those three cases, the Judicial Conference completely overhauled Rule 702.

The judicial and legislative enhancements to Daubert were sorely needed; as one leading treatise succinctly puts it, “[t]he Daubert opinion was open-ended and vague.”⁴ This allowed Daubert to be “something of a Rorschach test revealing judges’ preexisting views about how strictly trial courts should scrutinize expert testimony.”⁵ Over time, the clarity once provided by Joiner, Kumho Tire, and amended Rule 702 has faded. Indeed, the analysis employed in a number of recent opinions suggests that courts have come full circle, back to a Rorschach test—only now, judges are armed with 15 years of case law capable of supporting virtually anything that might be seen in the inkblot.

Given the important role that expert testimony plays in modern litigation, the magnitude of party and judicial resources devoted to working with experts and their testimony, and the ability of expert testimony to be both singularly “powerful and quite misleading,”⁶ this unrest in the state of the law deserves the attention of the Supreme Court.

The Historical Backdrop: The Traditional Standard Gives Way to Daubert, Joiner, Kumho Tire, and Amended Rule 702

The rise of big-ticket toxic tort class actions in the 1980s and early 1990s—many of which hinged on suspect expert theories of causation—provoked pockets of judicial resistance to the traditional laissez-faire approach to the admissibility of expert testimony. By 1992, the Supreme Court weighed in, via Daubert, which marked a significant departure from the status quo. But it was hardly a definitive statement of the new law.

The threshold question in Daubert was whether the 1975 enactment of the Federal Rules of Evidence superseded the seventy-year-old Frye⁷ “general acceptance” standard for the admissibility of scientific expert testimony. Answering in the affirmative, the Court reversed and remanded to the Ninth Circuit with instructions to apply Rule 702, thus declining the opportunity to provide valuable guidance by itself applying the freshly interpreted rule.

Yet the Court did go on, as Chief Justice Rehnquist’s concurring opinion characterized it, to “construe Rules 702 and 703 very much in the abstract and then offer some ‘general observations’”⁸—dictum sufficiently vague, ambiguous, and abstract for both sides plausibly to claim victory.⁹

The Court took the opportunity to address these divergent interpretations four years later in Joiner. Relying heavily on Daubert’s language that the “focus, of course, must be solely on principles and methodology, not on the conclusions that they generate,” the proponent of the testimony argued that the district court erred by analyzing—and disagreeing with—the expert’s conclusions. The Supreme Court sharply disagreed; it made it clear that Daubert tasks judges with assessing the reliability of an expert’s reasoning process, explaining that “conclusions and methodology are not entirely distinct from one another.”¹⁰ The Court emphasized, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse
dixit of the expert.”¹¹

The Court took up Kumho Tire two years later, and ruled that courts must perform their gatekeeping duty with respect to all expert testimony, not merely “scientific” testimony—a term that had come to be defined quite narrowly by courts inclined to the traditional laissez-faire approach to expert admissibility.¹²

Not long after Kumho Tire was decided, Rule 702 was overhauled. The amended Rule 702 adopted a stringent interpretation of the Daubert trilogy, making explicit that even experts with the most sparkling of credentials must base their opinions on “sufficient” facts and data; offer opinions that are “the product of reliable principles and methods”; and reliably apply the principles and methods to the facts of the case.13 As the Committee Notes explained, this analysis of reliability is comprehensive under the amended Rule 702: “any step that renders the analysis unreliable ... renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.”¹⁴

The Re-emerging Judicial Divide: Just what is the Gatekeeper’s Role?

Proponents of an Exacting Gatekeeping Analysis

Many courts continue to understand Rule 702 to impose a stringent gatekeeping duty that requires scrutinizing the reasonableness of all aspects of experts’ analytical process and reasoning.¹⁵ Courts on this side of the interpretive divide are not persuaded by the “suggestion that the reasonableness of an expert’s reliance on facts or data to form his opinion is somehow an inappropriate inquiry under Rule 702,” because that view “results from an unduly myopic interpretation of Rule 702 and ignores the mandate of Daubert that the district court must act as a gatekeeper.”¹⁶ To these courts, it is for judges, not juries, to make reliability determinations.¹⁷

These courts dutifully apply each of the requirements of Rule 702’s multiple sub-parts. When any aspect of the proffered testimony fails to satisfy each of parts (b), (c), and (d) of Rule 702, the testimony is excluded.¹⁸

Proponents of a Modest Gatekeeping Function

On the other side of the interpretive divide are a growing cadre of judges who view their role as confirming that the expert’s methodology is—in the abstract—a reasonable one, and leaving the rest to the jury. The opinions in this camp commonly treat Daubert as the primary legal authority on the topic,¹⁹ relegating the text of Rule 702 and cases such as Joiner to a secondary role—or no role at all.²⁰ There are two recurring ways these cases tend to diverge from those in the opposing camp.

First, these cases commonly trumpet Daubert’s dicta differentiating conclusions from methodology to support holdings that courts must not evaluate the correctness of experts’ opinions—a role that view to be reserved solely for the factfinder.²¹ Thus, while these courts may analyze whether the expert employs reliable principles and methods, they frequently ignore: (i) Rule 702(c)’s other requirement that “the testimony”—i.e., the expert’s conclusion—“[be] the product of” those “reliable principles and methods” and (ii) Rule 702(d)’s requirement that “the expert has reliably applied the principles and methods to the facts of the case.”²²

Second, these cases frequently refuse to evaluate the sufficiency of the facts underlying proffered opinions, ignoring the edict of Rule 702(b) and insisting that such an evaluation would improperly invade the province of the factfinder.²³

A Recent Exemplar of the Interpretive Divide

A recent high-profile matter exemplifies courts’ widely divergent applications of Rule 702 and the Daubert trilogy. Apple and Motorola brought high-stakes patent-infringement suits against one another in the Northern District of Illinois; Judge Posner sat by designation as the trial judge and applied Seventh Circuit law. After conducting a “Daubert hearing,” Judge Posner issued an opinion²⁴ addressing the admissibility of the proposed testimony of four well-respected damages experts. Judge Posner made clear at the outset that to the extent he found “too great an analytical gap” in an expert’s opinion, he was empowered by Joiner to rule the opinion inadmissible.²⁵ To Judge Posner, Joiner teaches, “a judge must exclude expert evidence that fails to meet a minimum threshold of reasonableness.”²⁶

Judge Posner analyzed six discrete modules of expert damages testimony. He excluded all of it. He did so, not by taking issue with the general methodology applied by any of the experts, but by finding serious analytical gaps that left one opinion after another irredeemably flawed.²⁷ In Judge Posner’s mind, how the experts reached their opinions just did not make sense. For that reason, they did not meet the minimum threshold of reasonableness he viewed as required for admissibility.

Quoting dicta in Kumho Tire, Judge Posner also stressed his view that “[a]n important test for deciding whether a problem with proposed expert testimony is disabling, or merely a weakness, is whether the expert ‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’”²⁸ In Judge Posner’s view, much of the testimony he reviewed was also inadmissible because the analysis performed by the experts was not the analysis that would have been performed in the real world, outside the context of litigation. To Judge Posner, that point was outcome determinative.

Judge Posner’s opinion made a clear statement. As one commentator put it, Judge Posner’s “opinion was transparently an exercise in what he saw as swamp draining.”²⁹

Both parties appealed certain of Judge Posner’s rulings to the Federal Circuit. Unlike Judge Posner, the Federal Circuit saw no swamp.³⁰ The Federal Circuit repeatedly invoked the Daubert dictumthat the focus must be “solely on principles and methodology, not on the conclusions they generate,”³¹ and reversed all but one of the expert admissibility rulings before it. Remarkably, despite Joiner having addressed that Daubert dicta head on and Judge Posner relying heavily on Joiner’s direction to exclude testimony with a material analytical gap, the Federal Circuit did not so much as cite Joiner, much less attempt to address Judge Posner’s reading of that case. Instead, purporting to apply Seventh Circuit law, the Federal Circuit asserted that a court “overstep[s] it gatekeeping role” by “evaluating the correctness of conclusions.”³²

According to the Federal Circuit, even courts’ review of experts’ methodology is a highly general exercise, not a detailed review of the steps taken to support a conclusion. The court held that one expert’s opinion was admissible on the basis that his method of “using sufficiently comparable licenses is a generally reliable method of estimating the value of a patent.”³³ According to the Federal Circuit, “whether these licenses are sufficiently comparable such that Motorola’s calculation is a reasonable royalty goes to the weight of the evidence, not its admissibility.”³⁴ Under this standard, it is difficult to imagine how an ipse dixit of the type deemed inadmissible by Joiner would not get to the jury.

Thus, the divide between Judge Posner’s view of Seventh Circuit law and the Federal Circuit’s view of Seventh Circuit law could hardly be starker.³⁵

An Interesting Subplot: A Nascent Real-World Intellectual Rigor Litmus Test

Courts on both sides of the divide have recently relied heavily on the Supreme Court’s dicta in Kumho Tire that expert witnesses are required to “employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” as a litmus test of admissibility.³⁶ The authors view this approach as misguided, both as a matter of law and as a normative matter.

Recent Examples of Intellectual Rigor as a Litmus Test

At the district court in Apple v. Motorola, Judge Posner elevated that dicta to the mantle of the most “important test” for admissibility.³⁷ He viewed the test as virtually binary. If this test is passed, opined Judge Posner, “then with possible exceptions ... the testimony is admissible and its weaknesses are to be left to be explored at trial. If not—if the expert, though he could have used in the lawsuit the same approach that he would have been required by the applicable professional standards to use to deal with an identical issue outside the litigation context, failed to do so—then … his proposed testimony should be barred.”³⁸

Each of Judge Posner’s rulings relied heavily on his view as to whether the expert would have performed a similar type of analysis in the real world—each time, the answer was “no.” For example, Judge Posner rejected one module of Motorola’s damages expert testimony—without passing on whether the testimony was reliable—because the expert’s testimony relied on conversations with Motorola’s technical expert. According to Judge Posner, in the real world the damages expert “would not ask an engineer at Motorola; Motorola would ask an engineer at Motorola.”³⁹ Judge Posner deemed this “real-world” test so important that he imagined a conversation that would transpire in the real world scrutinizing the experts’ opinions; the conversations typically ended with an insult (“Dummy!”) and an implicit or explicit termination of the expert’s employment (“Dummkopf! You’re fired!”).⁴⁰

In Milward, a case that is otherwise at the opposite end of the spectrum, the First Circuit similarly elevated the real-world intellectual rigor test to an outcome-determinative inquiry. The Milward court asserted that “[t]he object of Daubert is ‘to make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’”⁴¹ With that as the legal backdrop, the First Circuit framed the question as “whether [the expert], in reaching his opinion, applied the methodology with ‘the same level of intellectual rigor’ that he uses in his scientific practice.”⁴² Because the court concluded that the expert “employed the ‘same level of intellectual rigor’ that he employs in his academic work,”⁴³ it held that the district court therefore applied Daubert improperly and abused its discretion by ruling the proffered testimony inadmissible.

Real-World Intellectual Rigor Is Not and Should Not Be the Test for Admissibility

We believe this view is flawed. Whether experts employ real-world intellectual rigor should not be a litmus test for admissibility. Instead, real-world intellectual rigor should be one potential consideration that informs the issue with which Rule 702 is concerned: reliability.

As a matter of statutory interpretation, it is inappropriate for any aspect of Kumho Tire to supplant the later-amended Rule 702. Daubert itself makes clear that Rule 702—and not case law that precedes it—occupies the field.⁴⁴ Moreover, unlike with Daubert and Joiner, because the Rule was drafted before the Kumho Tire decision, the Rule could not have incorporated the Kumho Tire real-world intellectual rigor test. That is not to say that Kumho Tire is irrelevant; rather, it is entirely consistent with the Rule, as the Advisory Committee’s several references to the case make clear, and is therefore helpful persuasive authority. That is precisely the manner in which Kumho Tire’s real-world intellectual rigor language should be used: a helpful example of a consideration that oftentimes informs, but never supplants, the question of reliability.

It is also inappropriate as a normative matter. Mindful of the “legitimate concern that the jury, unschooled in the ways of experts, will if unregulated give undue weight to expert testimony that is in fact unreliable,”⁴⁵ our system of justice should be—and is—designed to minimize the risk that unreliable expert testimony is presented to the factfinder. To the extent the real-world rigor consideration informs the assessment of reliability—as it often will—all the better. Our judicial system has no interest in ensuring, per se, that expert testimony employs the same intellectual rigor as would be applied in the real world; it is only interested in that issue to the extent it bears on the reliability of the testimony. Certainly, testimony that employs something other than a real-world approach but nevertheless suffers from no disqualifying “analytical gaps” and is reliable in all manners contemplated by Rule 702 should be admitted. And the converse is true: testimony that employs real-world rigor but is unreliable should be rejected. Therefore, it would be illogical for a real-world rigor test to supplant the assessment of reliability.

The divergent application of Rule 702 has left expert admissibility determinations to “roulette wheel randomness.”⁴⁶ This unrest in the state of the law deserves the attention of litigators, experts, and the Supreme Court. Only after the Court breaks its extended silence on the standards of expert admissibility, will the objectives of the work that it began with Daubert finally be realized.

The authors would like to thank Neil Steinkamp for his invaluable contributions to this article.

Guest authors:

Jonathan Watkins

Larry Gwaltney

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¹ 509 U.S. 579 (1993).
² 522 U.S. 136 (1997).
³ 526 U.S. 137 (1999).
⁴ Saltzburg, Martin & Capra, Federal Rules of Evidence Manual § 702.02 (10th ed. 2011).
⁵ David E. Bernstein, The Misbegotten Judicial Resistance to the Daubert Revolution, 89 Notre Dame L. Rev. 27, 43 (2013) [hereinafter Bernstein].
⁶ Daubert, 509 U.S. at 595 (“Expert evidence can be both powerful and quite misleading because of the difficulty evaluating it.” (quoting Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 631 (1991))).
⁷ Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
⁸ Daubert, 509 U.S. at 598 (Rehnquist, C.J., concurring in part and dissenting in part, joined by Justice Stevens). The Chief Justice presciently lamented: “General observations” by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observations—they are not applied to deciding whether or not particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this . . . . Id.
⁹ See Bernstein at 42 (collecting contemporaneous new reports and noting that “there [i]s sufficient language in the opinion to allow both sides [of the debate over whether judges should meaningfully screen expert testimony] to declare victory”). Proponents of lenient admissibility rules pointed to the Court’s characterization of “the Rules’ permissive backdrop,” Daubert, 509 U.S. at 589 “liberal thrust,” id. at 588, and “general approach of relaxing the traditional barriers to ‘opinion’ testimony,” id. In place of the rejected “rigid,” id., approach of Frye, they argued, was a new rule that defaulted to letting it all in—even “shaky” expert opinion testimony, id. at 596—and trusting “lawyer-adversaries and sensible triers of fact,” id. at 589, to sort it all out through “[v]igorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof,” id. at 596. Of critical importance to those on this side of the debate, the Court stressed that the admissibility inquiry must focus “solely on principles and methodology, not on the conclusions that they generate.” Id. at 595. This language suggested to those in favor of a liberal admissibility standard that so long as the methodology was reasonable in the abstract, the testimony was admissible. Any criticism of the plausibility of the conclusion was for the factfinder. Advocates of a more strict approach to admissibility pointed to the Supreme Court’s charge that trial courts serve a “gatekeeping role” that bars “unreliable” expert testimony from being admitted. Notwithstanding the Court’s dicta focusing on methodology, those of such a mind argued, Daubert requires proponents of expert testimony to prove by a preponderance of evidence that the reasoning and methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue. See, e.g., Claar v. Burlington Nat’l R.R., 29 F3d 499, 501 (9th Cir. 1994) (explaining that a district court is “both authorized and obligated to scrutinize carefully the reasoning and methodology underlying” expert testimony).
¹⁰ Joiner, 522 U.S. at 146.
¹¹ Id.
¹² Lest there be any doubt regarding the import of the Daubert trilogy, the Supreme Court declared a year later that “[s]ince Daubert . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.” Weisgram v. Marley Co., 528 U.S. 440, 455 (2000).
¹³ Fed. R. Evid. 702. Rule 702, as amended in 2000, provides in its entirety: RULE 702. TESTIMONY BY EXPERT WITNESSES
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
¹⁴ Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,745 (3d Cir. 1994)) (alteration and emphasis in advisory committee’s notes). The Committee Notes also instructed that “[t]he trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted.” Id.
¹⁵ See, e.g., Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (explaining that the duty falls squarely on the district court to “act as a ‘gatekeeper’ to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards.”).
¹⁶ ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012).
¹⁷ See, e.g., Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014) (en banc).
¹⁸ See, e.g., Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000); see also Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010) (“Whether we describe [the expert’s] causation methodology as ‘different etiology’ or ‘differential diagnosis,’ that does not make it reliable.”); Davison ex rel. Davison v. Cole Sewell Corp., 231 F. App’x 444, 450 (6th Cir. 2007) (ruling expert testimony excluded because it “was not supported by an adequate factual foundation, but rather was based solely upon conjecture and speculation”); Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 408 (6th Cir. 2006).
¹⁹ The primacy assigned to Daubert by these cases is particularly remarkable considering that Daubert itself stressed that “the legislatively enacted Federal Rules of Evidence” must be “interpret[ed]” in the same manner as “any statute,” Daubert, 509 U.S. at 587, and that “the Rules occupy the field,” displacing earlier case law. As Daubert explained, even prior case law that is “entirely consistent” with the Rules is relegated to potentially helpful persuasive authority. Of course, with the 2000 overhaul of Rule 702, that is the role now occupied by Daubert.
²⁰ See, e.g., Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209 (Fed. Cir. 2006) (failing to cite either the text of Rule 702 or Joiner and instead treating Daubert as the definitive word on the subject); Apple Inc. v. Motorola, Inc., Nos. 2012-1548, 2012-1549, slip op. at 39, 40 (Fed. Cir. April 25, 2014) [hereinafter Apple II] (repeatedly quoting dicta from Daubert that was superseded by Joiner, but failing to cite, mention, or acknowledge the existence of Joiner).
²¹ See, e.g., Apple Inc. v. Motorola, Inc., Nos. 2012-1548, 2012-1549, slip op. at 40. In so doing, these courts regularly ignore—and, a number of commentators would argue, flout—the Supreme Court’s holding in Joiner that, despite Daubert’s dicta, which the losing party relied upon in Joiner, “conclusions and methodology are not entirely distinct from one another.” It is not clear whether these cases reach this result because they are unaware of the significant impact of Rule 702 and cases like Joiner or they consciously brush Joiner and Rule 702 aside because they are set on reaching a particular result.
²² Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003) (asserting that finding “flaws in [the application of] generally reliable scientific evidence is precisely the role of cross-examination”); Walker v. Gordon, 46 F. App’x 691, 695-96 (3d Cir. 2002) (asserting that “the role of the District Court is simply to evaluate whether the methodology utilized by the expert is reliable,” while the adequacy of the “application” of the methodology is to be “addressed on cross-examination”).
²³ In Milward, for example, the First Circuit held that the jury should be able to decide if there is “insufficient support for an expert’s conclusion,” Milward v. Acuity Specialty Prods. Group, Inc., 639 F.3d 11, 22 (1st Cir. 2011)—despite Rule 702(b) conditioning admissibility on the Court’s finding “sufficient” factual support by a preponderance of proof. In Manpower, Inc. v. Ins. Co. of Pennsylvania, the Seventh Circuit held that “[t]he district court usurps the role of the jury, and therefore abuses its discretion, if it unduly scrutinizes the quality of the expert’s data and conclusions rather than the reliability of the methodology the expert employed.” 732 F.3d 796, 806 (7th Cir. 2013). And even more recently the Federal Circuit (applying Seventh Circuit law) expressed approval for the proposition that “[t]he soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact.” Apple II, slip op. at 40 (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)).
²⁴ Apple, Inc. v. Motorola, Inc., No. 1:11-cv-08540, 2012 U.S. Dist. LEXIS 105387 (N.D. Ill. May 22, 2012) [hereinafter Apple I].
²⁵ Judge Posner relied on parts (c) and (d) of Rule 702 and a passage from a case that was quoted in the Committee Notes to set the stage for the searching review that was to follow, explaining that “[A]ny step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” 2012 U.S. Dist. LEXIS 105387, at *18 (quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d at 745 (alteration in by Judge Posner)).
²⁶ Id. at *30.
²⁷ For example, Judge Posner indicated that a properly constructed consumer survey would be a perfectly appropriate way to estimate the value of a software feature, but viewed the consumer survey questions chosen by the expert to be entirely incapable of estimating the value of the feature at issue.
²⁸ Id. at *17 (quoting Kumho Tire Co., 526 U.S. at 152).
²⁹ David McGowan, Opportunity Lost: Economic Analysis in Apple v. Motorola, May 1, 2014, available at http://patentlyo.com/patent/2014/05/opportunity-analysis-motorola.html.
³⁰ See id.
³¹ Apple II, slip op. at 39 (quoting Daubert, 509 U.S. at 595).
³² Apple II, slip op. at 40.
³³ Id. at 60.
³⁴ Id. at 61.
³⁵ Though some commentators viewed a petition for certiorari to be inevitable, the parties settled the case in the wake of the Federal Circuit ruling.
³⁶ Kumho Tire, 526 U.S. at 152.
³⁷ Apple I, 2012 U.S. Dist. LEXIS 105387 at *17.
³⁸ Id. at *18.
³⁹ Id. at *22.
⁴⁰ The Federal Circuit reversed this ruling. The opinion sharply disagreed with Judge Posner’s understanding and application of the real-world rigor test, explaining that “[a] rule that would exclude Apple’s damages evidence simply because it relies upon information from an Apple technical expert is unreasonable and contrary to Rules 702 and 703 and controlling precedent.” Apple II, slip op. at 54-55.
⁴¹ Milward, 639 F.3d at 15 (quoting Kumho Tire, 526 U.S. at 152).
⁴² Id. at 19 (quoting Kumho Tire, 526 U.S. at 152).
⁴³ Id. at 26 (quoting Kumho Tire, 526 U.S. at 152).
⁴⁴ See supra n.28.
⁴⁵ Daniel J. Capra, Memorandum to Advisory Committee of Evidence Rules, Mar. 1, 1999 at 16.
⁴⁶ Victor E. Schwartz & Cary Silverman, The Draining of Daubert and the Recidivism of Junk Science in State and Federal Courts, 35 Hofstra L. Rev. 217, 218 (2006).