Amicus Brief Urges Supreme Court To Keep “Junk Science” Away From Juries

The Atlantic Legal Foundation (ALF), joined by Washington Legal Foundation and DRI-The Voice of the Defense Bar, have filed an amicus brief urging the Supreme Court to hear an appeal that challenges the Eighth Circuit’s lax interpretation and application of Federal Rule of Evidence 702 (Testimony by Expert Witnesses). Rule 702 was amended more than 20 years ago to reflect the Court’s landmark “Daubert trilogy” of opinions—Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)—concerning the criteria governing admissibility of expert testimony. In essence, Rule 702 requires federal district court judges to act as “gatekeepers” who shield juries from expert testimony that is not reliable. Inadmissible testimony includes “junk science,” such as made-for litigation expert opinions that attempt to establish causation in product liability and toxic tort litigation. The amicus brief urges the Supreme Court to grant review and reinforce Rule 702 so that federal courts throughout the United States adhere to the Rule’s purpose by keeping junk science away from juries.

ALF long has been the nation’s foremost advocate for keeping junk science out of courtrooms.  For example, on behalf of esteemed scientists such as Nicholaas Bloembergen (a Nobel laureate in physics) and Bruce Ames (one of the world’s most frequently cited biochemists), ALF submitted amicus briefs in each of the “Daubert trilogy” of cases.  In Daubert, 509 U.S. at 590, the Court quoted the Foundation’s brief on the meaning of “scientific . . . knowledge” as used in Rule 702.  Recently, ALF submitted comments on proposed amendments to rule 702 which,  if adopted, will strengthen federal judges’ expert testimony gatekeeper role.


Issue Areas:

Sound Science

Read the Amicus Brief:
Question(s) Presented:

1. Whether the Eighth Circuit’s “so-fundamentally-unsupported” standard of initial admissibility for expert testimony conflicts with this Court’s precedents and Federal Rule of Evidence 702.

2. Whether the Eighth Circuit’s insufficiently deferential standard of appellate review of decisions excluding expert testimony conflicts with this Court’s precedents and Federal Rule of Evidence 702.

Additional Background:

3M Company v. Amador, No. 21-1100, is part of multidistrict product liability litigation involving a vital, body-warming medical device widely used by hospitals. The  company’s certiorari petition describes the case background relevant to the expert testimony admissibility questions presented by the appeal.

ALF’s Amicus Brief:

The amicus brief, authored by ALF Executive Vice President & General Counsel Lawrence Ebner, explains that Daubert, Joiner, and Rule 702 are intended to keep junk science out of federal courtrooms. Nonetheless, some federal courts of appeals, such as the First, Eighth, and Ninth Circuits, have been resistant to Rule 702. They have narrowed district court judges’ gatekeeper role and allowed juries, including in multidistrict product liability and toxic tort litigation, to be exposed to junk science and other unreliable scientific testimony that should have been ruled inadmissible. As the amicus brief explains, allowing juries to hear junk science testimony can mislead and confuse jurors, and deprive defendants of a fair trial and due process.


The Petition for Writ of Certiorari was denied on May 16, 2022.


Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation

Date Originally Posted: March 4, 2022

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