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The NAM filed an amicus brief urging the full Eighth Circuit to reconsider a deeply flawed panel opinion applying an obsolete standard to the admissibility of expert testimony and usurping the gatekeeping role of the trial court. This multidistrict litigation involves allegations that 3M’s Bair Hugger patient warming device causes surgical site infections. After conducting a thoughtful and thorough review of plaintiffs’ general causation experts’ opinions—a faithful application of Fed. Rule of Evidence 702—the district court found that the opinions included large analytical gaps and were not generally accepted, and, accordingly, granted summary judgment in favor of 3M. The Eighth Circuit reversed, applying a misunderstood standard found only in the Eighth Circuit dating to pre-Daubert days. Under that standard, it is an abuse of discretion to exclude expert testimony unless the experts’ opinions are “so fundamentally unsupported” that they’re of no help to a jury. This obsolete standard essentially abrogates any discretion a district court has to exclude expert testimony. The NAM filed an amicus brief in support of 3M’s petition for rehearing en banc, arguing that the fundamental fairness of civil jury trials in complex cases hinges on trial courts’ ability to exercise their gatekeeper function in evaluating the reliability of proffered expert testimony. The “so-fundamentally-unsupported” standard shifts the burden to defendants to show both that the evidence was fundamentally unsupported (unreliable) and unable to help the jury (irrelevant), an approach unsupported by the text of Fed. Rule of Evidence 702 and incompatible with Daubert and its progeny. Unfortunately, the court denied en banc review.