The National Association of Manufacturers filed an amicus curiae brief on April 21, 2014 encouraging the United States Supreme Court to review an important decision by the Fifth Circuit admitting unreliable testimony from an expert witness without adequately assessing its admissibility based upon reliability and factual basis.
The Federal Rules of Evidence were revised in 2000 to reflect recent Supreme Court decisions imposing a gatekeeper duty on trial courts to assess the reliability and helpfulness of proffered expert testimony. However, some federal circuits have still not changed their practices. Courts are required to scrutinize the factual underpinnings of any expert’s testimony before it is allowed before the jury. Unlike ordinary witnesses, experts are permitted wide latitude to offer opinions, which have an outsized influence on juries, based upon an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline. Once admitted, faulty testimony is incurable.
In this case, a software expert testified on issues far beyond his expertise, including corporate valuations and whether a trade secret existed. Some of the testimony was based upon a review of the wrong software. The testimony was the sole basis for a $100 million jury award. The Fifth Circuit upheld the trial court's abdication of its gatekeeper role, improperly relying on cross-examination and presentation of contrary evidence to cure the effects of the defective testimony. This deviation weakens the Court’s protection against factually unfounded expert testimony and we urged the Supreme Court to review the case. Unfortunately, on 6/9/14, it declined.