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    "[U]nless a litigant gets a real bite at the apple of discord
    he should not be foreclosed from another attempt.

    -- Frankfurter, J., dissenting, in Angel v. Bullington, 330 U.S. 183, 207 (1947).


    In Weisgram v. Marley Co., 528 U.S. 440 (2000), the Supreme Court addressed a narrow and technical procedural question.  If expert evidence is erroneously admitted at trial, and if the erroneously admitted evidence is what defeats a timely post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50, then may the appellate court overruling the admissibility of the evidence simply order entry of judgment as a matter of law, or must it remand so that the district court may consider ordering a new trial instead?

   The general answer given in Weisgram is that the courts of appeal may do any of three things, as circumstances warrant: (1) direct the entry of judgment as a matter of law; (2) order a new trial; or (3) remand so that the district court may make the decision.

Is the Holding in Weisgram Fair?

   To the holding in Weisgram, it might be objected that directing the entry of judgment in such circumstances is unfair, because it deprives the proponent of the evidence (typically the plaintiff) of any opportunity to substitute other, admissible evidence, as the proponent might have been able to do, had the proponent foreseen the precise grounds on which the evidence actually proffered was going to be found inadmissible.  And to that objection, the simple rejoinder might be offered that any such unfairness was already possible before Weisgram, because the district court itself might refuse a new trial.  All Weisgram did was to clarify that courts of appeal could do the same.

   But the Weisgram Court felt the need to go beyond that simple rejoinder.  To the particular plaintiffs before it, the Court offered the backhanded condolence that their claims were probably beyond hope of redemption in any event -- echoing the Eighth Circuit's appraisal that this was "not a close case."  Readers may evaluate that appraisal for themselves from a review of the proceedings as chronicled in the Eighth Circuit's own opinion.  One plausible evaluation is that the plaintiffs in Weisgram might possibly have prevailed if not shackled to their improvidently chosen expert witnesses, but of course we shall never know for certain whether the district court would have given them the chance for a redo.

   Meanwhile, by way of assuaging more general concerns about fairness, the Weisgram Court served up the following language:

   Since Daubert, . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.  It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing [plaintiff's] fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. In this case, for example, although [plaintiff] was on notice every step of the way that [defendant] was challenging his experts, he made no attempt to add or substitute other evidence.

Holding and Dictum

    In the context of debates over retrial, the language just quoted may not be too hard to swallow.  Retrials represent a very substantial judicial diseconomy, and they probably should not be doled out indiscriminately to litigants who have willfully ignored clear warning signs along the way.  If evidence needs to be shored up, there should be incentives for litigants to do it before trial, where possible.

    But the dicta quoted above are also sometimes invoked against efforts at "shoring up" undertaken far in advance of trial.  At the extreme end of the spectrum, it is even sometimes argued that the expert's original report should anticipate and rebut Daubert objections not yet raised or foreseen.  The best remedy against this misreading of the Supreme Court's language may be the Court's language itself.  After all, one principal rationale offered by the Court for (sometimes) shutting down post-trial rehabilitation of expert testimony is that pretrial opportunities to correct and supplement the testimony were available.

Issues of Notice

    The question, perhaps, boils down, as the Court's language suggests, to the issue of notice.  One wants litigants to have some opportunity to address claimed deficiencies in their experts' testimony.  A superficial reading of the first sentence in the quotation above would suggest that in the Supreme Court's view, the mere issuance of the opinion in Daubert, by itself, put all proponents of expert evidence on notice of every conceivable evidentiary objection, so that experts may legitimately be expected to address all such objections when they first state their opinions in their initial reports.  But that superficial reading cannot be correct, because the opposite is actually true.  Before Daubert, under Frye, the proponent knew, at least, that the admissibility of expert evidence would depend on a showing that the expert was qualified and on a showing that the expert's methods or opinions were generally accepted in the relevant scientific or technical community.  After Daubert, by contrast, there are innumerable grounds on which expert testimony may be attacked, and no comprehensive list of potential objections can be imagined.  In vastly expanding the scope of possible quarrels over expert testimony, Daubert actually diminished the foreseeability of each particular challenge.

     Evidentiary objections become correspondingly more important, after Daubert, in placing proponents on notice of potential deficiencies in their experts' testimony.  In the real procedural world, of course, such objections generally are not raised for the first time at trial, but rather are addressed in advance of trial via motion in limine.  The real battleground issue, therefore, is how far to allow parties to "supplement" or "elaborate" or "change" or "revise" or "explain" their expert testimony to meet such objections at various pretrial stages.  That is a question on which particular rules of evidence and procedure have something to say.  But it is not a question on which Weisgram ultimately pronounces.

Kumho Tire