When Daubert gets Erie: Medical certainty and medical expert testimony in federal court

Denver University Law Review

Volumn 77, Issue 1, 1999, Pages 69-115

  Craig, Robin Kundis ^a  

^a WESTERN NEW ENGLAND UNIVERSITY   (United States)

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EID: 33750850869     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (293)

1. 509 U.S. 579 (1993).
2. Rule 702 provides that: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702.
3. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
4. See Daubert, 509 U.S. at 595.
5. See id. at 589-90, 595.
6. See, e.g., Goldman v. Bosco, 120 F.3d 53, 54 (5th Cir. 1997); Hall v. Dow Coming Corp., 114 F.3d 73, 78 (5th Cir. 1997); Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997). The most common exception is medical malpractice cases against medical personnel who are federal government employees, such as hospital personnel at Veterans Administration hospitals. These claims are only cognizable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1994), and thus are matters of federal question. The Supreme Court, however, has construed the Tort Claims Act as requiring federal courts to apply state law. Molzof v. United States, 502 U.S. 301, 305 (1992) (citing United States v. Muniz, 374 U.S. 150, 153 (1963); Richards v. United States, 369 U.S. 1, 6-7, 11 (1962); Rayonier, Inc. v. United States, 352 U.S. 315, 318-19 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 68-69 (1955); United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 370 (1949)). Several federal circuits have explicitly extended this principle to medical malpractice actions against federal employees. Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998) (citing Taylor v. United States, 121 F.3d 86, 89 (2d Cir. 1997)); Abraham v. United States, 932 F.2d 900, 902 (11th Cir. 1991); Campbell v. United States, 904 F.2d 1188, 1191 (7th Cir. 1990); Jackson v. United States, 881 F.2d 707, 712 (9th Cir. 1988) (citing Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984)); Welsh v. United States, 844 F.2d 1239, 1243 (6th Cir. 1988) (citing Rayonier, Inc. v. United States, 352 U.S. 315, 318-20 (1957)); LeMaire v. United States, 826 F.2d 949, 953 (10th Cir. 1987) (citing Holler v. United States, 724 F.2d 104, 105 (10th Cir. 1983); Collins v. United States, 708 F.2d 499, 500 (10th Cir. 1983)); Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir. 1985) (citing United States v. Muniz, 374 U.S. 150, 152-53 (1963); Edwards v. United States, 519 F.2d 1137, 1139 (5th Cir. 1975), cert. denied, 425 U.S. 972 (1976)); Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir. 1973) (citing Kington v. United States, 396 F.2d 9, 11 (6th Cir. 1998), cert. denied, 393 U.S. 960 (1968); Kossick v. United States, 330 F.2d 933, 935-36 (2d Cir. 1964), cert. denied, 379 U.S. 837 (1964); Hungerford v. United States, 307 F.2d 99, 101-02 (9th Cir. 1962); Quinton v. United States, 304 F.2d 234, 235-10 (5th Cir. 1962)). Therefore, state law only rarely does not govern a medical malpractice case.
7. See, e.g., Richmond Police Dep't v. Bass, 493 S.E.2d 661, 667 (Va. Ct. App. 1997) (holding that plaintiff failed to show that job stress caused his heart disease when no doctor "opined to a reasonable degree of medical certainty that job stress was a causative factor in the disease claimant suffered").
8. See, e.g., Payton v. Kearse, 495 S.E.2d 205, 211 (S.C. 1998) (holding that a doctor was not qualified to testify as to causation when he could not say that any medication most probably caused the plaintiff's tinnitus).
9. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (establishing that federal courts sitting in diversity must apply state substantive law, both statutes and common law). See also Hanna v. Plumer, 380 U.S. 460, 467-68 (1965) (holding that whether the choice between state and federal law is outcome determinative should be viewed with respect to whether the choice leads forum shopping and the inequitable application of laws); Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945) (holding that state law applies in diversity cases if the choice of law is outcome determinative).
10. See, e.g., McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995).
11. Shegog v. Zabrecky, 654 A.2d 771, 776 (Conn. App. Ct. 1995).
12. See, e.g., Raynor v. Merrell Pharm. Inc., 104 F.3d 1371 (D.C. Cir. 1997); In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1131 (2d Cir. 1995).
13. See, e.g., Heller v. Shaw Indus., Inc., 167 F.3d 146 (3d Cir. 1999).
14. See. e.g., Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 669 (5th Cir. 1999) (affirming the lower court's finding of general causation by outlining the presented evidence of the hazards of benzene to establish a sufficient causal connection between benzene and the claimed injuries); Snyder v. Upjohn Co., 172 F.3d 58 (9th Cir. 1999) (stating that evidence of general causation cannot be used to establish cause and effect); Barnes v. American Tobacco Co., 161 F.3d 127, 135 (3d Cir. 1998) (noting that proof of general causation does not prove individual causation for tobacco class action members); Raynor v. Merrell Pharm., Inc., 104 F.3d 1371, 1376 (D.C. Cir. 1997) (holding that testimony on specific causation has legitimacy only after admissible evidence shows that the drug in question is generally capable of causing birth defects); In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d at 1131 (stating that the first element of causation that must be established in a toxic tort action is general causation, or the causal link between the implicated product and the claimed injury); Smith v. Ford Motor Co., 626 F.2d 784, 797-800 (10th Cir. 1980) (finding that defendant's failure to disclose that an expert witness would be testifying to both general and specific causation resulted in prejudice requiring a reversal and remand); Heller, 167 F.3d at 155 (stating that "a medical expert [need not] always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness.").
15. See e.g., University of Ala. Health Servs. Found, v. Bush, 638 So. 2d 794 (Ala. 1994)); Lineaweaver v. Plant Insulation Co., 31 Cal. App. 4th 1409, 1416 (Cal. Ct. App.1995); Kunst v. Vitale, 680 A.2d 339, 343-44 (Conn. App. Ct. 1996); Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1377 (Del. 1991); Woldeamanuel v. Georgetown Univ. Hosp., 703 A.2d 1243, 1244 (D.C. 1997); McNeil Pharm, v. Hawkins, 686 A.2d 567, 582-83 (D.C. 1996); Duran v. Cullinan, 677 N.E.2d 999, 1010 (Ill. App. Ct. 1997); Northern Trust Co. v. Upjohn Co., 572 N.E.2d 1030, 1036, 1038-10 (Ill. App. Ct. 1991); Daub v. Daub, 629 N.E.2d 873, 878 (Ind. Ct. App. 1994); Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998) (citing Thomas v. Fellows, 456 N.W.2d 170, 173 (Iowa 1990)); Hare v. Wendler, 949 P.2d 1141, 1143, 1145 (Kan. 1997); Russo v. Bratton, 657 So. 2d 777, 785 (La. Ct. App. 1995); Lally v. Volkswagen Aktiengesellschaft, 698 N.E.2d 28, 36 (Mass. App. Ct. 1998); Rohde v. Lawrence Gen. Hosp., 614 N.E.2d 686, 688 (Mass. App. Ct. 1993); Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346, 1364 (Miss. 1990); Brickey v. Concerned Care, 988 S.W.2d 592, 596-97 (Mo. Ct. App. 1999); Lashmet v. McQueary, 954 S.W.2d 546, 551 (Mo. Ct. App. 1997); Doe v. Zedek, 587 N.W.2d 885, 891 (Neb. 1999); Dow Chem. Co. v. Mahlum, 970 P.2d 98, 107-08 (Nev. 1998); Jacques v. New York, 487 N.Y.S.2d 463, 466 (N.Y. Ct. Cl. 1984); Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997); Blum v. Merrell Dow Pharm., Inc., 705 A.2d 1314, 1321 (Pa. Super. Ct. 1997); Fulton v. Pfizer Hosp. Prod. Group, Inc., 872 S.W.2d 908, 912 (Tenn. Ct. App. 1993); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Greene v. Thiet, 846 S.W.2d 26, 33 (Tex. App. 1993); Kent v. Pioneer Valley Hosp., 930 P.2d 904, 906 (Utah Ct. App. 1997); Reeves v. Geigy Pharm., Inc., 764 P.2d 636, 640 (Utah Ct. App. 1988); Bruns v. PACCAR, Inc., 890 P.2d 469, 477 (Wash. Ct. App. 1995); Guile v. Ballard Community Hosp., 851 P.2d 689, 693 (Wash. Ct. App. 1993).
16. See, e.g., Bowman v. Beghin, 713 N.E.2d 913, 916 (Ind. Ct. App. 1999); Bazel, 576 N.W.2d at 387; Hare, 949 P.2d at 1147; Lally, 698 N.E.2d at 35-36; Rohde, 614 N.E.2d at 688; Brickey, 988 S.W.2d at 596; Cobo v. Raba, 495 S.E.2d 362, 366 (N.C. 1998); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).
17. See. e.g., Robinson v. Group Health Ass'n, Inc., 691 A.2d 1147, 1150 (D.C. Cir. 1997); Wilder v. Eberhart, 977 F.2d 673, 676 n.2 (1st Cir. 1992) (applying New Hampshire law); Wingo v. Rockford Mem'l Hosp., 686 N.E.2d 722, 734 (Ill. App. Ct. 1997); Soper v. Bopp, 990 S.W.2d 147, 150-51 (Mo. Ct. App. 1999); Jacques v. New York, 487 N.Y.S.2d 463, 466 (N.Y. Ct. Cl. 1984); Smith v. Grab, 705 A.2d 894, 899 (Pa. Super. Ct. 1997).
18. Richmond Police Dep't v. Bass, 493 S.E.2d 661, 667 (Va. Ct. App. 1997), rev'd on other grounds, 515 S.E.2d 557 (Va. 1999) ("[C]laimant had the burden of establishing by clear and convincing evidence, to a reasonable degree of medical certainty, that his condition arose out of and in the course of his employment.").
19. See, e.g., Alberts v. Schultz, 975 P.2d 1279, 1286 (N.M. 1999) (noting that proximate cause must be shown to a reasonable degree of medical probability); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 471 (Okla. 1987) (noting that the medical probability standard applies to the whole case); LeNotre v. Cohen, 979 S.W.2d 723, 729 (Tex. App. 1998) (noting that proximate cause must be shown to a reasonable degree of medical probability).
20. Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 482 (Ohio 1996). Accord Bobo, 706 So. 2d at 765; Owens Coming v. Bauman, 726 A.2d 745, 767 (Md. Ct. Spec. App. 1999); Taylor v. Medenica, 479 S.E.2d 35, 43 n.10 (S.C. 1996).
21. Borkowski v. Sacheti, 682 A.2d 1095, 1099 (Conn. App. Ct. 1996). Accord Eisenbach v. Downey, 694 A.2d 1376, 1384 (Conn. App. Ct. 1997); Bondi v. Pole, 587 A.2d 285, 287 (N.J. Super. Ct. App. Div. 1991); Dolen v. St. Mary's Hosp., 506 S.E.2d 624, 628 n.10 (W. Va. 1998).
22. Payton v. Kearse, 495 S.E.2d 205, 211 (S.C. 1998). "Before expert medical testimony is admissible on the question of causation between the plaintiff's injuries and the acts of the defendant, the testimony must satisfy the 'most probably' rule." Id. The "most probably rule" states: It is not sufficient for the expert . . . to testify merely that the ailment might or could have resulted from the alleged cause. He must go further and testify that taking into consideration all the data it is his professional opinion that the result in question most probably came for the cause alleged. Baughman v. American Tel. & Tel. Co., 410 S.E.2d 537 (S.C. 1991). The standard changes slightly when a plaintiff "relies solely upon the opinion of medical experts to establish a causal connection between the alleged negligence and the injury." In that case, the experts must, "with reasonable certainty, state that in their professional opinion, the injuries complained of most probably resulted from the defendant's negligence." Ellis v. Oliver, 473 S.E.2d 793, 795 (S.C. 1996) (emphasis added).
23. Cusher v. Turner, 495 N.E.2d 311, 314 (Mass. App. Ct. 1986).
24. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 938 (Tex. App. 1997). But see Hernandez v. Calle, 963 S.W.2d 918, 920 (Tex. App. 1998) (stating that in summary judgment, expert testimony as to causation must be based on reasonable medical probability).
25. E.g., Kunnanz v. Edge, 515 N.W.2d 167, 173 (N.D. 1994) ("Hypertechnical words are not necessary for the admission of an expert medical opinion; the test for admissibility is whether the expert's testimony demonstrates the expert is expressing a medical opinion that is more probable, or more likely than not."); Welsh v. Bulger, 698 A.2d 581, 585-86 (Pa. 1997) ("We do not, however, require experts to use 'magic words' when expressing their opinions. . . . Instead, we look at the substance of their testimony."); Weber v. McCoy, 950 P.2d 548, 551 (Wyo. 1998) ("Wyoming does not require that an expert use the magic words 'reasonable medical probability' in order for his opinion to be considered a competent medical opinion.").
26. See, e.g., Abdul-Majeed v. Emory Univ. Hosp., 484 S.E.2d 257, 258 (Ga. Ct. App. 1997) (holding that "a possibility that the alleged negligence caused the death is not sufficient to establish proximate cause. . . . Certainty is not required, but the plaintiff must show a probability rather than merely a possibility that that alleged negligence caused the injury or death."); Koontz v. Ferber, 870 S.W.2d 885, 890 (Mo. Ct. App. 1993) (holding that a "physician's opinion that the lab reading 'may' reflect acidosis is not the same as an opinion, to a reasonable degree of medical certainty, that the lab reading does reflect acidosis" and therefore that exclusion of the testimony was not an abuse of discretion); Kunnanz, 515 N.W.2d at 172 (noting that expert medical opinions must "be expressed in terms of reasonable medical certainty or probability, not mere possibility."); Vitrano v. Schiffman, 702 A.2d 1347, 1351 (N.J. Super. Ct. App. Div. 1997) ("'[M]edical opinion testimony must be couched in terms of reasonable medical certainty or probability; opinions as to possibility are inadmissible.'") (quoting Johnesee v. Stop & Shop Cos., Inc., 416 A.2d 956 (N.J. Super. Ct. App. Div. 1980)); McKellips, 741 P.2d at 471 (holding that in proving causation in a medical malpractice action, "[a]bsolute certainty is not required," but "mere possibility or speculation is insufficient"); State Farm Mut. Auto. Ins. v. Kendrick, 491 S.E.2d 286, 287 (Va. 1997) (holding that a medical opinion based on "possibility" is inadmissible).
27. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 (Cal. 1997): Plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth. Id. See also Lineaweaver v. Plant Insulation Co., 31 Cal. Rptr. 902, 906 (Cal. Ct. App. 1995) ("In evaluating whether exposure was a substantial factor in causing asbestos disease, the standard should be the same as used in other cases: is there a reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to plaintiff's injury.").
28. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996) (applying New Jersey law). See also Roses v. Feldman, 608 A.2d 383, 385-86 (N.J. Super. Ct. App. Div. 1992) (noting that in medical malpractice cases, the jury decides whether the deviation in care is a substantial factor in producing the injury but requiring medical experts to testify to a reasonable degree of medical probability whether this deviation increased the risk of harm) (citing Battenfeld v. Gregory, 589 A.2d 1059, 1063-64 (N.J. Super. Ct. App. Div. 1991)).
29. Blinzler, 81 F.3d at 1152 (citing Hake v. Manchester, 486 A.2d 836, 839 (N.J. 1985)).
30. See Rutherford, 941 P.2d at 1219 ("The substantial factor standard is a relatively broad one, requiring only that the contribution of an individual cause be more than negligible or theoretical.").
31. See, e.g., Smith v. Milfield, 869 P.2d 748, 750 (Kan. Ct. App. 1993); Schrantz v. Luancing, 527 A.2d 967, 969 (N.J. Super. Ct. Law Div. 1986); Koontz v. Ferber, 870 S.W.2d 885, 890 (Mo. Ct. App. 1993); Payton v. Kearse, 495 S.E.2d 205, 211 (S.C. 1998); State Farm Mut. Auto. Ins. v. Kendrick, 491 S.E.2d 286, 287 (Va. 1997); Reese v. Stroh, 907 P.2d 282, 286 (Wash. 1995) (en banc).
32. See, e.g., Eisenbach v. Downey, 694 A.2d 1376, 1383-84 (Conn. Ct. App. 1997). See also Joyce v. Boulevard Physical Therapy & Rehabilitation Ctr., 694 A.2d 648, 655 (Pa. Super. Ct. 1997) (stating that in Pennsylvania, "if a witness has an reasonable pretension to specialized knowledge on a subject under investigation he may testify, and the weight given to his testimony is for the jury.").
33. See, e.g., Jacques v. State, 487 N.Y.S.2d 463, 466 (N.Y. Ct. Cl. 1984); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 471 (Okla. 1987); Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 937 (Tex. App. 1997); City of Richmond Police Dep't v. Bass, 493 S.E.2d 661, 667 (Va. Ct. App. 1997), rev'd on other grounds, 515 S.E.2d 557 (Va. 1999).
34. E.g., Forrestal v. Magendantz, 848 F.2d 303, 307 (1st Cir. 1988); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 271 S.E.2d 335, 340 (W. Va. 1980).
35. District of Columbia v. Watkins, 684 A.2d 395, 402-03 (D.C. 1996) (quoting Clifford v. United States, 532 A.2d 628, 640 n.10 (D.C. 1987)).
36. Rewis v. United States, 503 F.2d 1202, 1218 (5th Cir. 1974).
37. See Zerr v. Trenkle, 454 F.2d 1103, 1106 (10th Cir. 1972). Accord Schrantz, 527 A.2d at 969 (accepting either reasonable medical certainty or reasonable medical probability); Dellenbach v. Robinson, 642 N.E.2d 638, 648 (Ohio Ct. App. 1993) (noting that reasonable medical certainty and reasonable medical probability are "essentially the same standard"); McKellips, 741 P.2d at 471 (accepting either "reasonable medical certainty" or "reasonable medical probability" but stating that "[a]bsolute certainty is not required, however, mere possibility or speculation is insufficient.").
38. Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1201 (6th Cir. 1988). See also Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 505 S.E.2d 232, 234 (Ga. Ct. App. 1998) ("Thus, 'reasonable medical probability' has no greater meaning than a preponderance of the evidence, and the standard of proof is preponderance of the evidence as to medical causation.").
39. See supra note 6 and accompanying text.
40. See, e.g., Goldman v. Bosco, 120 F.3d 53, 54 (5th Cir. 1997); Hall v. Dow Coming Corp., 114 F.3d 73, 78 (5th Cir. 1997); Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997).
41. 304 U.S. 64 (1938). Federal courts have applied the Erie doctrine to diversity medical malpractice or products liability cases. See, e.g., Cortes-Irizarry, 111 F.3d at 189; Free v. Carnesale, 110 F.3d 1227, 1230 (6th Cir. 1997); Boburka v. Adcock, 979 F.2d 424, 427 (6th Cir. 1993).
42. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). In so holding, the Court overruled the prior rule of Swift v. Tyson, 41 U.S. 1 (1842), which had held that state statutes but federal common law governed in diversity cases. Swift, 41 U.S. at 18-19.
43. Guaranty Trust v. York, 326 U.S. 99, 109 (1945).
44. Id.
45. Id. at 108.
46. Id. at 109.
47. Id.
48. See id. at 110.
49. See Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958).
50. Byrd, 356 U.S. at 533-34.
51. Id. at 528.
52. See id.
53. See id. at 534 (citing Adams v. Davison-Paxon Co., 96 S.E.2d 566 (S.C. 1957)).
54. Id. at 535 (referring to Erie's holding that "the federal courts must respect the definition of state created rights and obligations by the state courts." Id. See also Erie R.R. Co. v. Thompkins, 304 U.S. 64, 79-80 (1938)).
55. Id. at 536 (distinguishing the case at bar from Dice v. Akron, 342 U.S. 359 (1952), "where this court held that the right to trial by jury is so substantial a part of the cause of action created by the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., that the Ohio courts could not apply, in an action under that statute, the Ohio rule that the question of fraudulent release was for the determination by a judge rather than by a jury." Id.).
56. Id.
57. See id. at 536-37.
58. Id. at 538.
59. Id. at 537. The Court additionally found that the likelihood of a different outcome was not "so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome." Id. at 540.
60. 380 U.S. 460 (1965) (footnote omitted).
61. See Hanna, 380 U.S. at 462 (referring to MASS. GEN. LAWS Ch. 197, § 9 (1958)).
62. See id. at 46. "Service shall be made as follows: . . . upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing within." Id. (quoting FED. R. CIV. P. 4(d)(1)).
63. FED. R. CIV. P. 4 See id.
64. See id. at 461-62.
65. See id. at 463-64.
66. Id. at 464. The Rules Enabling Act provides that: "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals. Such rule shall not abridge, enlarge or modify any substantive right." 28 U.S.C. § 2072 (1994). For an extensive discussion of the substantive rights limitation in the Rule Enabling Act, see Leslie M. Kelleher, Taking "Substantive Rights" (in the Rules Enabling Act) More Seriously, 74 NOTRE DAME L. REV. 47 (1998).
67. See also Earl C. Dudley, Jr., Federalism and Federal Rule of Evidence 501: Privilege and Vertical Choice of Law, 82 GEO. L.J. 1781, 1797-1803 (1994) (discussing "substance, procedure, and evidence law");
68. see generally Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281 (1989) (providing a thorough discussion of the meaning of "substance" and "procedure" under the Rules Enabling Act through illustrating both in the context of statutes of limitations).
69. Hanna, 380 U.S. at 472.
70. Id. at 468.
71. See id. at 468-69.
72. See id. at 469-74. For further refinements of the Hanna analysis and the Federal Rules, see discussion infra Part IV.B.2.a.
73. See Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7-8 (1987). In Hanna v. Plumer, . . . we set forth the appropriate test for resolving conflicts between state law and the Federal Rules. The initial step is to determine whether, when fairly construed, the scope of Federal Rule [of Appellate Procedure] 38 is "sufficiently broad" to cause a "direct collision" with the state law or, implicitly, to "control the issue" before the court, thereby leaving no room for the operation of that law. . . . The [Federal] Rule must then be applied if it represents a valid exercise of Congress' rulemaking authority, which originates in the Constitution, and has been bestowed on this Court by the Rules Enabling Act, 28 U.S.C. § 2072. Id.
74. Cf. Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1306 (11th Cir. 1999) (holding that the Federal Rules of Evidence, not state law, govern the admissibility of evidence in federal court but that state law can be used in determining the materiality of evidence); United States v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999) (holding that when the Federal Rules of Evidence and any state rule conflict, the Federal trump the state); Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987) (holding that "[w]here a state and federal evidentiary rule conflict, the proponent is entitled "to the benefit of the more favorable rule."); Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir. 1983) (holding that in diversity actions, the Federal Rules of Evidence apply; that Federal Rule of Evidence 401 provides that evidence is relevant if it is "of consequence" to the suit, FED. R. EVID. 401; and that, thus, relevancy in a diversity action is determined by "the underlying substantive state law.").
75. 28 U.S.C. § 2072 (1999).
76. Salas v. Wang, 846 F.2d 897, 904 (3d Cir. 1988); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 751 (3d Cir. 1994); Fasanaro v. Mooney Aircraft Corp., 687 F. Supp. 482, 485 nn.4-5 (N.D. Cal. 1988).
77. A full discussion of whether and how the Erie doctrine applies to the Federal Rules of Evidence is beyond the scope of this article. It is worth noting, however, that the issue is potentially more complicated for the Federal Rules of Evidence than for either the Federal Rules of Civil Procedure or the Federal Rules of Appellate Procedure. First, Congress enacted the evidentiary rules as statutes, unlike the Federal Rules of Civil Procedure, implying that the Supremacy Clause plays a role in the analysis as well as the Erie doctrine. See Dudley, supra note 66, at 1798 (stating that "[b]ecause the Rules Enabling Act, with its prohibition on modification of substantive rights, was the only available vehicle for federal evidence reform, scholars debated intensely the question of whether evidence law as a whole could be classified as 'procedural,' despite the various purposes served by the evidentiary rules," and arguing that congressional enactment of the Federal Rules of Evidence independent of the Rules Enabling Act ended this argument that the rules were, by definition, procedural); Kenneth J. Lorge, Note, Hottle v. Beech Aircraft: Confusion Surrounding the Choice of Law in Federal Diversity Actions Persists as the Fourth Circuit Applies State Evidentiary Law in the Face of a Conflicting Rule of Federal Evidence, 26 Sw. U. L. REV. 135, 147-19 (1996) (arguing that the Federal Rules of Evidence apply in diversity cases through the Supremacy Clause as long as the law is arguably procedural). Second, however, in adopting the Federal Rules of Evidence, Congress made it clear that it intended to give effect to at least some aspects of the Erie doctrine. See Kelleher, supra note 66, at 82-83 ("Notably, [in the enacted Federal Rules of Evidence], the proposed Rules on privileges were completely revised to require the application of state law whenever state law provides the substantive rule of decision."). In addition, three points argue against a simple extension of Hanna v. Plumer to the Federal Rules of Evidence. First, as will be argued infra in Part IV.B.2.a, later Erie jurisprudence emphasizes harmonizing state and federal provisions rather than choosing between them. Second, the argument can be made-indeed, has troubled numerous federal courts-that evidentiary rules are far more likely than the Federal Rules of Civil Procedure to affect substantive rights, thus distinguishing the Hanna v. Plumer analysis for the Federal Rules of Evidence. Many scholars note that Hanna's "rationally capable of classification as procedural rule" is subject to excessively broad interpretations that go too far in allowing Federal Rules to displace state law. Professor Dudley points out: "The interference with the independent administration of the federal system - that is, the impact on the accuracy of fact-finding - occasioned by the application of a [state-law evidentiary] rule in a diversity case arguably is not sufficient to justify disregarding a substantive state policy in applying state law." Dudley, supra note 66, at 1797-1803; Carrington, supra note 66, at 297-99. See also Kelleher, supra note 66, at 78-79 (arguing that the federal interest in determining what evidence should be available is less compelling in diversity actions). Third, at least half of the federal circuits addressing Erie/Federal Rules of Evidence problems have determined that the Erie doctrine applies in their analysis of whether they should take account of state evidentiary rules.
78. See, e.g., Piamba Cortes, 177 F.3d at 1306 ("The admissibility of evidence in a federal [diversity] action is governed by the Federal Rules of Evidence, not state law."); United States v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999) ("[S]tate rules on any subject, cannot trump the Federal Rules of Evidence."); Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1163 (D.C. Cir. 1990) (holding that under the Erie doctrine the admissibility of expert medical testimony in a Bendectin case was a procedural issue). See also Daniel C. Hohler, First Circuit Application of the Federal Rules of Evidence in Diversity Jurisdiction: A Return to Hanna Analysis, 1 SUFFOLK J. TRIAL & APPELLATE ADVOC. 49, 52-54, 61-64 (1995) (distinguishing the Erie and Hanna analyses and implicitly approving the Hanna analysis for the Federal Rules of Evidence).
79. See Conway v. Chemical-Leaman Tank Lines, Inc., 540 F.2d 837, 839 (5th Cir. 1976); Stonehocker v. General Motors Corp., 587 F.2d 151, 156 (4th Cir. 1978); see also Carter, 716 F.2d 344, 347 (using Texas products liability law to determine relevance of evidence); Adams, 820 F.2d 271, 273 (using Missouri products liability law to determine relevance of evidence).
80. FED. R. EVID. 1101(b).
81. See e.g., Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806 (7th Cir. 1995); Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109 (4th Cir. 1995); Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9 (1st Cir. 1994); Washington v. Department of Transp., 8 F.3d 296, 300 (5th Cir. 1993); Grossheim v. Freightliner Corp., 974 F.2d 745, 754 (6th Cir. 1992); Potts v. Benjamin, 882 F.2d 1320, 1324 (8th Cir. 1989); Romine v. Parman, 831 F.2d 944, 944-45 (10th Cir. 1987).
82. See FED. R. EVID. 302.
83. See FED. R. EVID. 501.
84. See FED. R. EVID. 601.
85. FED. R. EVID. 402.
86. FED. R. EVID. 401.
87. FED. R. EVID. 401. Id.
88. Thus, the Fifth Circuit, after determining that the Federal Rules of Evidence apply in diversity actions, nevertheless concluded that "[t]o determine relevancy in a diversity case we must look to the underlying state substantive law." Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir. 1983). It looked to Texas law to determine whether evidence of industry custom was relevant - and hence admissible - in a strict products liability case. Id. at 347-18. Similarly, the Eighth Circuit, after determining that the Federal Rules of Evidence "provide the standards of relevancy of evidence," nevertheless turned to Missouri products liability law to determine whether state-of-the-art feasibility evidence should be admissible. Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987). But see Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st Cir. 1994) (determining the relevance of prior accidents in a strict products liability action with reference only to federal decisions, holding that "it is axiomatic that in determining whether evidence is relevant, and therefore admissible in a diversity action, the Federal Rules of Evidence supply the appropriate rules of decision"); Romaine v. Parman, 831 F.2d 944, 945-16 (10th Cir. 1987) (holding that "the Federal Rules of Evidence should be applied in a diversity case in federal court to determine whether evidence is relevant or prejudicial" and declining to follow state-law decisions that made pleas of guilty in traffic offenses inadmissible).
89. See Stonehocker v. General Motors Corp., 587 F.2d 151, 154-55 (4th Cir. 1978).
90. Stonehocker, 587 F.2d at 153 (citing Mickle v. Blackmon, 166 S.E.2d 173 (S.C. 1969)).
91. See id. at 154-55 (noting that South Carolina law governed the existence of the manufacturer's duty "and the Supreme Court of that State ha[d] imposed a duty on automobile manufacturers to use due care in car design.").
92. Id. at 155-56.
93. Stonehocker, 587 F.2d at 155 (citing Conway v. Chemical-Leaman Tank Lines, Inc., 540 F.2d 837 (5th Cir. 1976)). But cf., Michael H. Gottesman, Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, 15 CARDOZO L. REV. 1837, 1838 (1994) (arguing that evidence that would be admitted in many state courts will not be admitted in federal court under Daubert: "So long as diversity of citizenship exists, the defendant will remove the [products liability] case to federal court, if not originally filed there by plaintiff, in order to achieve the radically different outcome resulting from the federal courts' more stringent evidence rules.").
94. See Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109-10 (4th Cir. 1995). Noting that Virginia had made the policy of keeping private rules separate from the legal standard of reasonable care as far back as 1915 and that "there is no countervailing federal interest compelling application of the federal rules in this case," the Fourth Circuit concluded that "the Virginia rule is sufficiently bound up with state policy so as to require its application in federal court." Id. at 110.
95. See Conway, 540 F.2d at 838-39. The court reasoned: [W]e recognize in article 4675a [the Texas wrongful death statute at issue] one of those rare evidentiary rules which is so bound up with state substantive law that federal courts sitting in Texas should accord it the same treatment as state courts in order to give full effect to Texas' substantive policy. Actions for wrongful death did not exist at common law, and in Texas, as elsewhere, they are entirely the creation of statute. . . . [The statutory provisions] remained constant for almost fifty years, until 1973, when the Texas Legislature, doubtless to forestall further use of the tactics employed here to create a misleading impression of continuing widowhood, enacted article 4675a and no other amendment to the act at that session. Such a course of action evidences clearly that the legislators considered the amendment a matter of significance and one necessary to substantive policy in an area peculiarly within their control. As such, article 4675a represents more than a mere rule of evidence; it is a declaration of policy by the creators of the Texas wrongful death action that the sort of palming off theretofore practiced would no longer be tolerated. In such and similar circumstances, federal courts have long recognized an exception to the inapplicability of Erie to evidentiary questions . . . . Id. (citations omitted).
96. See Wray v. Gregory, 61 F.3d 1414, 1417-19 (1995) (footnote omitted).
97. Wray, 61 F.3d at 1417.
98. Id. at 1417 (quoting 19 C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4512, at 194-95 (1984)).
99. Barron v. Ford Motor Co. of Canada, 965 F.2d 195, 199 (7th Cir. 1992).
100. See Barron, 965 F.2d at 196-97, 198.
101. See id. at 198-99.
102. Id. (citations omitted).
103. Id. at 200. See also Milam v. State Farm Mut. Auto. Ins. Co., 972 F.2d 166, 170 (7th Cir. 1992) (holding that the Federal Rules of Evidence apply in diversity cases, "[b]ut where a state in furtherance of its substantive policy makes it more difficult to prove a particular type of state-law claim, the rule by which it does this, even if denominated a rule of evidence or cast in evidentiary terms, will be given effect in a diversity suit as an expression of state substantive policy."). But see Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806 (7th Cir. 1995) ("[T]he federal rules of procedure and evidence always apply in federal litigation, whether or not they determine the outcome.").
104. Barron, 965 F.2d at 200.
105. See Dillinger v. Caterpillar, Inc., 952 F.2d 430, 434-45 (3d Cir. 1992) (considering whether evidence of seat belt non-use was correctly admitted at trial in a strict products liability action).
106. See Potts v. Benjamin, 882 F.2d 1320, 1324 (8th Cir. 1994).
107. See ARK. CODE § 27-34-101 et seq. (1999).
108. Potts, 882 F.2d at 1324.
109. McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st Cir. 1985).
110. McInnis, 765 F.2d at 245.
111. Fitzgerald v. Expressway Sewerage Constr., Inc., 177 F.3d 71, 74 (1st Cir. 1999).
112. Id. at 73-74.
113. See id. at 74 ("Whether tort damages in a tort suit are mitigable by payments originating with a third party depends, quite obviously, on substantive principles. Hence, the state-law collateral source rule supplies the rule of decision.").
114. Id.
115. Id.
116. See id. at 74-76.
117. See, e.g., Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995); Dillinger v. Caterpiller, Inc., 959 F.2d 430, 435-37 (3d Cir. 1992); Barron v. Ford Motor Co. of Canada, 965 F.2d 195, 198-99 (7th Cir. 1992); Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1986); Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir. 1983); Stonehocker v. General Motors Corp., 587 F.2d 151, 154-56 (4th Cir. 1978); Massachusetts Mut. Life Ins. Co. v. Brei, 311 F.2d 463, 465-66 (2d Cir. 1962).
118. See supra notes 31-33 and accompanying text.
119. See Dick v. New York Life Ins. Co., 359 U.S. 437, 446 (1959) (holding that state law presumptions and burdens of proof are substantive for purposes of the Erie doctrine). Several circuits have expressly held or noted that state law dictates the burden of proof in diversity actions. See Gust v. Jones, 162 F.3d 587, 593 (10th Cir. 1998); Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997); Roberts & Schaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, 253 n.2 (7th Cir. 1996); Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir. 1996); American Eagle Ins. Co. v. Thompson, 85 F.3d 327, 330 (8th Cir. 1996); American Title Ins. Co. v. East W. Fin. Corp., 959 F.2d 345, 348 (1st Cir. 1992); Wynfield Inns v. Edward Leroux Group, Inc., 896 F.2d 483, 491 (11th Cir. 1990).
120. See, e.g., DeLuca v. Merrell Dow Pharm., Inc., 911 F.2d 941, 958 n.22 (3d Cir. 1990) (holding that New Jersey's standard "that a plaintiff show to a reasonable degree of medical probability that defendant's conduct caused her injuries" was a burden of proof that governed in federal diversity cases).
121. See Free v. Carnesale, 110 F.3d 1227, 1231 (6th Cir. 1997) (quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993)).
122. Christopher v. Cutter Lab., 53 F.3d 1184, 1191 (11th Cir. 1995).
123. For additional discussion of this conflict and an argument that state law should govern, see Gottesman, supra note 95, at 1863-69.
124. See Owens v. Bourns, Inc., 766 F.2d 145, 149-50 (4th Cir. 1985) ("Even under diversity jurisdiction the sufficiency of the evidence to create a jury question is a matter governed by federal law."). Accord, Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1259 n.47 (10th Cir. 1999) ("While state law governs a party's substantive entitlement to damages in a diversity case like this, it is well-established that federal law governs the grant or denial of a new-trial motion in diversity cases, and, at least in this Circuit, governs the determination whether evidence is sufficient to support a verdict."); Johnson Enters, of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308 n.44 (11th Cir. 1998) ("The sufficiency of the evidence to create a case for the jury is a procedural issue to which we apply federal law.") (citing Excel Handbag Co. v. Edison Bros. Stores, Inc., 630 F.2d 379, 383-84 (5th Cir. 1980)); Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395, 1399 (10th Cir. 1997) (in diversity cases, federal law controls the issue of whether the evidence in a products liability action is sufficient to go to the jury); Mayer v. Gary Partners & Co., 29 F.3d 330, 334 (7th Cir. 1994) (in diversity cases, federal law controls the issue of whether the evidence is sufficient to survive summary judgment); Pegasus Helicopters, Inc. v. United Tech. Corp., 35 F.3d 507, 510 (10th Cir. 1994) (in diversity cases, federal law controls the sufficiency of evidence for judgment as a matter of law); Thrash v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1356 (5fh Cir. 1993) (federal law governs the sufficiency of evidence in upholding a jury verdict in diversity cases); ABC-Paramount Records, Inc. v. Topps Record Distrib. Co., 374 F.2d 455, 460 (5th Cir. 1967) ("[T]he sufficiency of the evidence to raise a question of fact for the jury is controlled by federal law"). But see Gust v. Jones, 162 F.3d 587, 593 (10th Cir. 1998) ("When reviewing diversity actions, we examine the sufficiency of the evidence on a particular issue by reference to the burden of proof dictated by forum state law.").
125. See Raynor v. Merrell Pharm., Inc., 104 F.3d 1371, 1376 (D.C. Cir. 1997) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Accord Morales v. American Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998) (applying the state-law standard of review to a Rule 50(b) motion for judgment as a matter of law); Ashley v. R.D. Columbia Assocs. L.P., 54 F.3d 498, 501 (8th Cir. 1995) (in diversity cases, state law provides the standard for the sufficiency of evidence for judgment notwithstanding the verdict).
126. FED. R. EVID. 601.
127. See e.g., LeMaire v. United States, 826 F.2d 949, 953-54 (10th Cir. 1987); Geeslin v. Nissan Motor Acceptance Corp., No. CIV. A. 1:97CV186-D, 1998 WL 527111, at *2-3 (N.D. Miss. July 27, 1998) (applying state rules regarding witness competency pursuant to FED. R. EVID. 601).
128. See FED. R. EVID. 702.
129. LeMaire, 826 F.2d at 954.
130. Id. (emphasis added; citations omitted).
131. Id. (emphasis added).
132. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Rules of Decision Act, 28 U.S.C. § 1652 (1999) ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the United States, in cases where they apply.").
133. See supra notes 40-65 and accompanying text.
134. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 (1996) (quoting Hanna v. Plumer, 380 U.S. 460, 468 n.9 (1965)).
135. See Gottesman, supra note 91, at 1851-55 (discussing how state standards for expert testimony differ substantively from that in Daubert).
136. For example, in Texas, "[a] possible cause only becomes 'probable' [for purposes of the reasonable medical probability standard] when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action." Williams v. NGF, Inc., 994 S.W. 2d 255, 256-57 (Tex. App. 1999). Similarly, in Vermont, a psychiatric expert's testimony met the "reasonable degree of medical certainty" standard when the expert positively identified psychological rather than physical causes as the source of the plaintiff's pain after a fall. Everett v. Town of Bristol, 674 A.2d 1275, 1277 (Vt. 1996).
137. See Steineke v. Share Health Plan, Inc., 518 N.W.2d 904, 907 (Neb. 1994).
138. Steineke, 518 N.W. 2d at 907-08.
139. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Bankers Trust Co., v. Lee Keeling & Assocs., 20 F.3d 1092, 1099 (10th Cir. 1994).
140. See Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). See also supra notes 15 & 16 and accompanying text.
141. Id.
142. In an effort to weed out non-meritorious medical malpractice claims, keep medical costs down for insurance purposes, and encourage alternative dispute resolution, several state have enacted medical malpractice screening requirements. These statutes generally require potential medical malpractice plaintiffs to take their grievance before a panel or committee, and that panel or committee's evaluation of the potential case is usually admissible into evidence. The six federal circuits that have faced the question of whether federal courts sitting in diversity must follow these state-law screening statutes have all answered in the affirmative, concluding that the screening and admissibility requirements are sufficiently substantive to require application under Erie. See Wray v. Gregory, 61 F.3d 1414, 1417-18 (9th Cir. 1995); Daigle v. Maine Med. Ctr., 14 F.3d 684, 687-90 (1st Cir. 1994); DiAntonio v. Northampton-Accomack Mem'l Hosp., 628 F.2d 287, 292 (4th Cir. 1980); Edelson v. Soricelli, 610 F.2d 131, 135, 141 (3d Cir. 1979); Hines v. Elkhart Gen. Hosp., 603 F.2d 646, 649 (7th Cir. 1979); Woods v. Holy Cross Hosp., 591 F.2d 1164, 1168-69 (5th Cir. 1979). But see Braddock v. Orlando Reg'l Health Care Sys., Inc., 881 F. Supp. 580, 582-84 (M.D. Fla. 1995) (refusing, pursuant to the Erie doctrine, to apply Florida's statutory pre-suit requirements for medical malpractice suits in a federal diversity action because state law directly conflicted with Federal Rules of Civil Procedure 3, 4 and 8).
143. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 750-52 (3d Cir. 1994).
144. See In re Paoli, 35 F.3d at 750.
145. Id. at 751; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-91 (1993) (discussing what Federal Rules of Evidence 702 & 703 require).
146. Id. (quoting Salas v. Wang, 846 F.2d 897, 904-06 (3d Cir. 1988)).
147. Id. (interpreting Cohen v. Albert Einstein Med. Ctr., 592 A.2d 720, 723 (Pa. Super. Ct. 1991)).
148. Id. at 752. The Third Circuit has recently reaffirmed its approach, noting that in addition to the Daubert analysis, "state rules on the degree of certainty required of an expert's opinion apply" in diversity cases. Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 n.4 (3d Cir. 1999).
149. See Forrestal v. Magendantz, 848 F.2d 303, 305 (1st Cir. 1988) ("The exclusion or admission of testimony is governed by the Federal Rules of Evidence in diversity cases as well as in all others.").
150. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1054 (4th Cir. 1986)("Unlike evidentiary rules concerning burdens of proof or presumptions, the admissibility of expert testimony in a federal court sitting in the diversity jurisdiction is controlled by federal law. State law, whatever it may be, is irrelevant.").
151. See Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir. 1986).
152. See Clark v. Heidrick, 150 F.3d 912, 914 (8fh Cir. 1998). In a diversity medical malpractice case regarding the explicit issue of whether a medical expert's testimony could be admissible even though it did not meet the "reasonable medical certainty standard," the Eighth Circuit held that "'[t]he question of whether expert testimony should be admitted or excluded is a matter governed by federal, rather than state, law.'" Id. (quoting Fox v. Dannenberg, 906 F.2d 1253, 1255 (8th Cir. 1990)).
153. See id.
154. See Brooks v. American Broad. Co., 999 F.2d 167, 173 (6th Cir. 1993) ("The admissibility of expert testimony is a matter of federal, rather than state, procdure.").
155. See Stutzman v. CRST, Inc., 997 F.2d 291, 294-95 (7th Cir. 1993) (considering whether expert testimony is substantive or procedural and finding that "the Federal Rules governing expert testimony reflect a procedural judgment that juries are aided by hearing expert testimony and that assistance enhances the accuracy of the entire process-even where an expert is not absolutely certain about his conclusion."). See also United States v. Cyphers, 553 F.2d 1064, 1072-73 (7th Cir. 1977) (upholding Rule 702 as the sole measure of an expert's admissibility and refusing to impose a medical certainty standard, and citing United States v. Wilson, 441 F.2d 655, 656 (2d Cir. 1971), for "the rule that an expert's lack of absolute certainty goes to the weight of his testimony, not to its admissibility."); Rogers v. Ford Motor Co., 952 F. Supp. 606, 611 n.3 (N.D. Ind. 1997) (citing Stutzman, 997 F.2d at 295, for the principle that "[a]lthough federal courts exercising diversity jurisdiction apply state law to substantive issues, the admissibility of expert testimony in diversity suits is governed by the Federal Rules of Evidence"); LaSalle Nat'l Bank v. Massachusetts Bay Ins. Co., No. 90 C 2005, 1997 WL 51653, at *2 (N.D. Ill. Feb. 5 1997) (citing Daubert for the principle that the "admissibility of [an expert's] testimony in federal court depends not on any state law but on Rule 702 of the Federal Rules of Evidence"); Allstate Ins. Co. v. Sunbeam Corp., 865 F. Supp. 1267, 1275 (N.D. Ill. 1994) (holding that an Illinois rule rendering expert reconstruction testimony inadmissible when eyewitness testimony was available did not apply in a diversity action because state law rules of admissibility of expert testimony do not apply in federal court). But see Lovejoy Elecs., Inc. v. O'Berto, 873 F.2d 1001, 1005 (7th Cir. 1989) (noting that "as a general rule federal rather than state law governs the admissibility of evidence in federal diversity cases" but recognizing exceptions when the Rules themselves so provide and when "substantive rules masquerad[e] as evidence rules").
156. See Gust v. Jones, 162 F.3d 587, 594 (10th Cir. 1998) ("The admission of expert testimony in a federal trial is governed by Federal Rule of Evidence 702 . . . .").
157. See supra notes 15 & 16 and accompanying text; see also Cortes-Irizarry v. Corporation Insular de Seguros, 111 F.3d 184, 191 (1st Cir. 1997); Rohrbough v. Wyeth Lab., Inc., 916 F.2d 970, 972 (4th Cir. 1990) (holding that proof of causation in a products liability case involving a vaccine "must be by expert testimony.").
158. 293 F. 1013 (D.C. Cir. 1923).
159. See id. at 1013
160. Id. at 1014 (emphasis added).
161. 509 U.S. 579 (1993).
162. See id. at 582.
163. See id. at 586-87.
164. FED. R. EVID. 702. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Id.
165. Daubert, 509 U.S. at 588.
166. Id. at 589.
167. Id.
168. Id.
169. Id. at 592.
170. Id. at 589-90.
171. Id. at 590.
172. Id.
173. Id. at 591.
174. Id.
175. Id.
176. See id. at 593-94.
177. Id. at 594-95.
178. Id. at 595 (quoting FED. R. EVID. 403).
179. See Daubert v. Merrell Dow Pharm., Inc. (Daubert II), 43 F.3d 1311, 1319 (9th Cir. 1995).
180. Daubert II, 43 F.3d at 1319.
181. Id.
182. Id.
183. See id.
184. See id.
185. See id. at 1320.
186. Id. at 1320-21 (citations omitted).
187. Id.
188. Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996) (quoting Daubert, 509 U.S. at 591).
189. Ambrosini, 101 F.3d at 134.
190. Id. at 135 (quoting Daubert, 509 U.S. at 591 (quoting FED. R. EVID. 702)).
191. Id. at 135-36.
192. See id. at 135 n.8 (rejecting the Ninth Circuit's approach and noting that "[i]n light of our disposition, we have no occasion to consider whether the substantive tort law of California and the District of Columbia are similar . . . .").
193. 522 U.S. 136 (1997).
194. See Joiner v. General Elec. Co., 78 F.3d 524, 528-29 (11th Cir. 1996), cert. granted, 520 U.S. 1114 (1997), rev'd, 522 U.S. 136 (1997).
195. Joiner, 522 U.S. at 138.
196. Id.
197. Id. at 142.
198. See id.
199. See id. at 146.
200. 526 U.S. 137 (1999).
201. Kumho, 119 S. Ct. at 1174.
202. Id. at 1175 (emphasis added) (quoting Daubert, 509 U.S. at 593).
203. Id. at 1176.
204. See generally id. at 1167-80.
205. FED. R. EVID. 702; Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 588 (19993).
206. The Supreme Court's recent decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (discussed supra, Part IV.A), eliminated many of the potentially hairsplitting decisions that federal courts had been making regarding when the Daubert analysis applies. See, e.g., Desrosiers v. Flight Int'l, Inc., 156 F.3d 952, 960-61 (9th Cir. 1998) (stating that the Daubert analysis may not apply to testimony of accident reconstruction experts that did not involve scientific knowledge); Talkington v. Atria Reclamelucifers Fabrieken BV (Cricket BV), 152 F.3d 254, 265 (4th Cir. 1998) (holding that Daubert does not apply to an electrical engineer's expert testimony based on his experience and training in the absence of a challenge to his methodology or technique); Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915, 920 (11th Cir. 1998) (noting that Daubert applies to expert testimony based on science, not experience, but holding that expert testimony regarding the origin of a fire was subject to Daubert because it relied on scientific method); Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435 (11th Cir. 1997) (holding that Daubert applies only to expert witnesses who claim scientific expertise and thus did not apply to the testimony of an expert regarding tire failure); United States v. Call, 129 F.3d 1402, 1404 (10th Cir. 1997) (holding that Daubert applies to polygraph evidence because it is scientific); Moore v. Ashland Chem., Inc., 126 F.3d 679, 687 (5th Cir. 1997) (citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989-91 (5fh Cir. 1997) for the principle that Daubert is not limited to "scientific knowledge" or "novel" scientific evidence and holding that it applied to expert clinical medical testimony); Watkins, 121 F.3d at 989-91 (holding that expert testimony in a products liability case regarding defective design was subject to Daubert); McKendall v. Crown Control Corp., 122 F.3d 803, 806 (9th Cir. 1997) (holding that Daubert applies only to "scientific knowledge" and thus did not apply to a products liability product design expert's testimony because that testimony was based on "technical or other specialized knowledge"); Freeman v. Case Corp., 118 F.3d 1011, 1016 (4th Cir. 1997) (holding that Daubert does not apply when an expert relies on experience and training rather than a particular methodology); Masayesva v. Hale, 118 F.3d 1371, 1379 (9th Cir. 1997) (holding that Daubert does not apply to an expert's relatively straightforward application of range economics); United States v. Webb, 115 F.3d 711, 716 (9th Cir. 1997) (holding that Daubert was not applicable to a police expert's testimony regarding the reasons people hide guns because the testimony was not based on scientific knowledge); People Who Care v. Rockford Bd. of Educ, Sch. Dist. No. 205, 111 F.3d 528, 534 (7th Cir. 1997) (holding that Daubert applies to the testimony of "social scientists as well as to that of natural scientists"); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 (9th Cir. 1997) (holding that Daubert applies to all expert testimony but that survey evidence should generally be found admissible); United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997) (holding that Daubert applies only to the admission of scientific testimony); Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th Cir. 1996) (holding that Daubert applies only when an expert relies on a principle or methodology); Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (holding that Daubert applies only to scientific testimony). Even before Kumho Tire, however, only two federal courts declined to apply Daubert to expert medical testimony. Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir. 1998) (holding that the Daubert analysis does not apply to a doctor's testimony regarding a seaman's fitness for duty because it "does not constitute 'scientific' testimony but rather testimony based on the doctor's training and experience"); Waitek v. Dalkon Shield Claimants Trust, 934 F. Supp. 1068, 1087 n.10 (N.D. Iowa 1996) (holding that the Daubert factors do not apply to clinical medical testimony based solely on experience or training). It appears that after Kumho Tire, Daubert should always apply to expert medical testimony.
207. See supra notes 177-81 and accompanying text.
208. Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C. Cir. 1996).
209. See id. at 135 n.8.
210. See FED. R. EVID. 104(a) ("Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . .");
211. FED. R. CIV. P. 16(a), (c)(4) (authorizing the court to hold pretrial conferences in order, among other things, to discuss "the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence").
212. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993).
213. See Cortes-Irizarry v. Corporation Insular de Seguros, 111 F.3d 184, 187-88 (1st Cir. 1997).
214. See, e.g., Raynor v. Merrell Pharm., Inc., 104 F.3d 1371, 1375-77 (D.C. Cir. 1997) (granting defendants' motion for judgment notwithstanding the verdict because the testimony of the plaintiffs' experts was inadmissible under Daubert).
215. See Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1083-84 (8th Cir. 1999) (affirming summary judgment because the district court properly excluded an expert witness); Mitchell v. Gencorp, Inc., 165 F.3d 778, 780-84 (10th Cir. 1999) (affirming summary judgment because the district court properly excluded as expert witness); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998) (affirming summary judgment because the district court properly excluded an expert witness); Ancho v. Pentek Corp., 157 F.3d 512, 515-18 (7th Cir. 1998) (affirming summary judgment because the district court properly excluded an expert witness); Target Mkt. Publ'g, Inc. v. ADVO, Inc., 136 F.3d 1139, 1141-45 (7th Cir. 1998) (affirming summary judgment for defendant because the district court properly excluded a business appraiser's report under Daubert); Cabrera v. Cordis Corp., 134 F.3d 1418, 1420-23 (9th Cir. 1998) (affirming summary judgment for defendant when experts were properly excluded under Daubert for unreliability); Binakonsky v. Ford Motor Co., 133 F.3d 281, 291 (4fh Cir. 1998) (reversing summary judgment for the defendant in part because, contrary to the district court's decision, Daubert screening was inapplicable to a medical examiner's non-expert testimony); Carmichael v. Samyang Tire, Inc., 131 F.3d 1433 (11th Cir. 1997) (reversing summary judgment for defendant because, contrary to the district court's decision excluding the expert, Daubert screening was inapplicable to the testimony of an expert on tire failure); Dancy v. Hyster Co. 127 F.3d 649 (8th Cir. 1997) (affirming summary judgment for defendant when the district court properly excluded pursuant to Daubert plaintiff's sole expert witness); McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir. 1997) (reversing summary judgment for defendant because, contrary to
216. See Blue Dane Simmental Corp. v. American Simmental Ass'n, 178 F.3d 1035, 1039-11 (8th Cir. 1999) (affirming judgment as a matter of law in part because the circuit court agreed with the district court's exclusion of an expert pursuant to Daubert); Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668-72 (5th Cir. 1999) (partially reversing judgment as a matter of law because the district court had improperly excluded expert testimony under Daubert); Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 88 (1st Cir. 1998) (reversing judgment on a jury verdict on the basis of improper exclusion of evidence under Daubert); Robertson v. Norton Co., 148 F.3d 905, 907-08 (8th Cir. 1998) (reversing judgment on a jury verdict because a ceramic expert's opinion was not sufficiently reliable under Dauben); Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir. 1997) (affirming the district court's granting of judgment notwithstanding the verdict because the lower court had properly excluded expert under Daubert); Raynor, 104 F.3d 1371 (affirming the district court's granting of judgment notwithstanding the verdict because it properly held experts' testimony inadmissible under Daubert); Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194 (5th Cir. 1996) (affirming the district court's granting of judgment as a matter of law because it had properly held expert testimony inadmissible under Daubert); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995) (affirming the district court's denial of judgment as a matter of law because it properly admitted expert testimony under Daubert).
217. Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923).
218. See Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114-16 (5th Cir. 1991).
219. Trial courts can grant motions for judgment as a matter of law during or after trial, for example, only when "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." FED. R. CIV. P. 50(a)(1). The persistence of the "scintilla rule," which allows jury resolution if the non-moving party produced any evidence at all to support its position, testifies to courts' reluctance to take decision making authority away from juries. See, e.g., Kentucky State Police Prof'l Ass'n v. Gorman, 870 F. Supp. 166, 168 (E.D. Ky. 1994) (applying the "scintilla rule" in summary judgment decisions); Adcox v. Teledyne, Inc., 810 F. Supp. 909, 913 (N.D. Ohio 1992) (applying the "scintilla rule" to directed verdict decisions).
220. Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1071 (6th Cir. 1993) (quoting Turpin v. Merrell-Dow Inc., 959 F.2d 1349 (6th Cir. 1992), cert denied, 506 U.S. 826 (1992)). The court declined to address plaintiff's argument, raised only on appeal, that Tennessee law rather than Daubert applied under the Erie doctrine to determine whether plaintiff's expert scientific testimony was admissible to create an issue of fact on the issue of whether Bendectin could cause birth defects. Id. at 1072. According to plaintiffs, Tennessee law did not allow courts to take the "hard look" at scientific evidence that Daubert requires federal courts to take. Id.
221. Cavallo v. Star Enter., 100 F.3d 1150, 1158 (4th Cir. 1996).
222. Cavallo, 100 F.3d at 1158.
223. The debate surrounding judicial activism dates back at least as far as Judge Weinstein's decisions in the Agent Orange litigation. See In re Agent Orange Prods. Liab. Litig., 611 F. Supp. 1223, 1260-63 (E.D.N.Y. 1985) (dismissing plaintiff's action against defendant chemical companies for failure to prove causation under a "national consensus law" requiring plaintiffs to prove "but for" causation by a preponderance of the evidence); See also Richard L. Marcus, Apocalypse Now?: AGENT ORANGE N TRIAL: MASS TOXIC TORT DISASTERS IN THE COURTS, 85 MICH. L. REV. 1267, 1290-96 (1987);
224. Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337 (1986) (discussing in detail the role of the judiciary in the Agent Orange toxic tort settlement).
225. For the more recent debate on the judge's role under Daubert, see Edward W. Kirsch, Daubert v. Merrell Dow Pharmaceuticals: Active Judicial Scrutiny of Scientific Evidence, 50 FOOD & DRUG L.J. 213, 228-29 (1995) (stating that "Daubert represents the culmination of a trend in the courts toward active judicial review of the admissibility and sufficiency of scientific evidence."); Holley Davis Thames, Comment, Frye Gone, but not Forgotten in the Wake of Daubert: New Standards and Procedures for Admissibility of Scientific Expert Opinion, 63 MISS. L.J. 473, 484-85 (1994) (arguing that Daubert requires greater judicial activism in determining the scientific validity of scientific evidence before putting that evidence in front of the jury);
226. Linda Sanstrom Simard & William G. Young, Daubert's Gatekeeper: The Role of the District Judge in Admitting Expert Testimony, 68 TUL. L. REV. 1457, 1464-65 (1994) (discussing the difficulty of the role of the judge under Daubert in deciding relevance and reliability of scientific evidence).
227. FED. R. EVID. 601. Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. Id.
228. FED. R. EVID. 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Id.
229. See, e.g., Ward v. United States, 838 F.2d 182, 188 (6th Cir. 1988) (outlining plaintiff's and defendant's conflicting views on whether Federal Rule of Evidence 601 or 702 governed the competency of expert medical witnesses, and declining to decide that issue "because plaintiff's failed to show that this evidentiary ruling affected a substantial right as required by Federal Rule of Evidence 103(a)(1).").
230. Ward, 838 F.2d at 188 (citations omitted). The Tennessee malpractice statute provided that: No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established [in a malpractice action] unless he was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. Id. at 184 (quoting TENN. CODE. ANN. § 29-26-115(b) (1975)).
231. Id. at 188. The Sixth Circuit has continued to refuse to decide whether Federal Rule of Evidence 601 or Federal Rule of Evidence 702 controls the competency of a medical expert. See Ralph v. Nagy, 950 F.2d 326, 329 (6th Cir. 1991) ("These issues are moot because the jury expressly found that the defendant did not breach his duty ot the plaintiff under the appropriate standard of care."); Hanson v. Parkside Surgery Ctr., 872 F.2d 745, 750 n.5 (6th Cir. 1989) ("Because neither party has raised the issue of Dr. O'Day's competency as an expert, we again decline to consider" the relationship between Federal Rules of Evidence 601 and 702.)
232. See Cronkrite v. Fahrbach, 853 F. Supp. 257, 259 (W.D. Mich. 1994); Tucker v. American Tel. & Tel. Corp., 794 F. Supp. 240, 245 (W.D. Tenn. 1992); Slifcak v. Northern Mich. Hosps., Inc., No. 90-CV-565, 1991 WL 626469, at *2 (W.D. Mich. Aug. 19, 1991); Ralph v. Nagy, 749 F. Supp. 169, 172-73 (M.D. Tenn. 1990), aff'd on other grounds, 950 F.2d 326 (6th Cir. 1991); Denton v. United States, 731 F. Supp. 1034, 1036 (D. Kan. 1990); Crumley v. Memorial Hosp., Inc., 509 F. Supp. 531, 532 n.2 (E.D. Tenn. 1978), aff'd, 647 F.2d 164 (6th Cir. 1981). But see Peck v. Tegtmeyer, 834 F. Supp 903, 910 (W.D. Va. 1992) (holding that Rule 702 governs the admissibility of medical experts even if the question can be viewed as one of competency).
233. Federal courts facing this issue might well make use of Erie jurisprudence by analogy to avoid finding an absolute conflict between Federal Rules of Evidence 601 and 702. See discussion infra Part IV.B.2.a.
234. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3rd Cir. 1994). In an unpublished opinion, the Ninth Circuit refused to decide whether Arizona's standard for admitting expert testimony, rather than Daubert, should apply in a diversity case on the ground that a Daubert analysis was unnecessary. See Arrendondo v. Uniroyal Goodrich Tire Co., 114 F.3d 1193, *1 (9th Cir. 1997). However, the court upheld the district judge in excluding the expert's testimony on the basis that it was unreliable - a criterion that enters Rule 702 only by way of Daubert. See id. Ironically, the Ninth Circuit itself cited Daubert for the proposition that Rule 702 "demands that the evidence be reliable." Id. (citing Daubert, 509 U.S. at 591).
235. In re Paoli R.R. Yard PCB Litig., 35 F.3d at 750-51.
236. See id. at 751.
237. See id. at 753. Although the court recognized that several factors undermined Dr. Sherman's testimony, including mistakes while testifying and substantial employment as a plaintiff's witness, it concluded that "a trained internist who has spent significant time reviewing the literature on PCBs [can] testify as to whether PCBs caused illness in plaintiffs." Id. at 753-54.
238. Id. at 754. Rule 703 states that: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. FED. R. EVID. 703.
239. See In re Paoli, 35 F.3d at 754.
240. Id. at 759.
241. See id. at 760.
242. See id. at 766 (excluding testimony that PCBs caused sinusitis because it relied heavily on unreliable immunological data and was thus unreliable itself).
243. See id. at 767 (excluding testimony that PCBs were a significant factor in causing reduced ankle reflexes because Dr. Sherman would not testify to causation to a reasonable degree of medical certainty).
244. See id. at 766 (excluding testimony that PCBs caused pregnancy losses because Dr. Sherman had not explained away alternative causes and because "Dr. Sherman's statement that PCB's were a possible cause did not have sufficient scientific certainty to survive summary judgment.").
245. See id. at 749 n. 19.
246. See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426 (1996) ("The dispositive question, therefore, is whether federal courts can give effect to the substantive thrust of [New York Civil Practic Law and Rules] § 5501(c) without untoward alteration of the federal scheme for the trial and decision of civil cases."); Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5 (1987) ("The initial step is to determine whether, when fairly construed, the scope of Federal Rule [of Appellate Procedure] 38 is 'sufficiently broad' to cause a 'direct collision' with state law, or, implicitly, to 'control the issue' between the court, thereby leaving no room for the operation of that law."); Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980) ("Application of the Hanna analysis is premised on a 'direct collision' between the Federal Rule and the state law.").
247. See Walker, 446 U.S. at 749-50.
248. Id. at 752-53.
249. See id. at 740.
250. Id. at 742-43 (citing OKLA. STAT. tit. 12, § 97 (1971)).
251. FED. R. CIV. P. 3.
252. Walker, 446 U.S. at 749-50. See also Burlington N. R.R. Co., 480 U.S. at 4-5 (citing Walker for the same rule).
253. Walker, 446 U.S. at 750 (quoting Hanna v. Plumer, 380 U.S. 460, 470 (1965)).
254. Id. at 750-51 (citations omitted).
255. Id. at 751-52 (citations omitted).
256. 480 U.S. 1 (1987).
257. See id. at 7-8 ("Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals, the Alabama statute precludes any exercise of discretion within its scope of operation.").
258. See id. at 4.
259. See id. at 3-4, 7-8 (comparing ALA. CODE § 12-22-72 (1986) with FED. R. APP. P. 38 (1982)).
260. Id. at 7.
261. 518 U.S. 415 (1996).
262. Id. at 418 (quoting N.Y. CIV. PRAC. LAW & RULES § 5501(c) (McKinney 1995)).
263. U.S. CONST., amend. VII.
264. See Gasperini, 518 U.S. at 422 (citations omitted).
265. Id. (citing Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1012-13 (2d Cir. 1995)).
266. Id. at 426.
267. Id.
268. Id. at 424 (citing O'Connor v. Graziosi, 516 N.Y.S.2d 276, 277 (App. Div. 1987)). See also Consorti. 72 F.3d at 1013; Harvey v. Mazal Am. Partners, 590 N.E.2d 224, 228 (N.Y. 1992).
269. Gasperini, 518 U.S. at 427-28 (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)).
270. Id. at 430 (paraphrasing Hanna, 380 U.S. at 467-68).
271. See id. at 430-31.
272. Id. at 431 (quoting Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537 (1958)).
273. Id. at 434.
274. Id. at 437-38.
275. Id. at 438.
276. Arredondo v. Uniroyal Goodrich Tire Co., 114 F.3d 1193, *1 (9th Cir. 1997) (noting but not reaching an Erie argument that Arizona still uses the Frye test and hence that a federal court sitting in diversity should not use the Daubert analysis); National Bank of Commerce v. Associated Milk Producers, Inc., 22 F. Supp. 2d 942, 949 n.4 (E.D. Ark. 1998) (stating: If a federal evidentiary rule results in dismissal where the state evidentiary rule would not, then, under Erie, the evidentiary ruling might be considered substantive rather than procedural. If so considered, then the federal court would have to apply the state evidentiary rule in a diversity case such as this. But Arkansas cases follow Daubert's reliability inquiry. See Moore v. State, 323 Ark. 529, 544-47, 915 S.W.2d 284, 292-94 (1996); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Therefore, we are not required to face that problem here.); Hall v. Baxter Healthcare, Corp., 947 F. Supp. 1387, 1395 n.21 (D. Or. 1996) (noting the potential Erie problem but deciding that the Oregon state analysis was the same as the federal Daubert analysis).
277. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 750 (3d Cir. 1994). See also supra notes 127-131 & accompanying text. See generally Gottesman, supra note 85, at 1859-63 (arguing that based on legislative history Congress did not intend Federal Rule of Evidence 702 to supersede state substantive law).
278. See Schulz v. Celotex Corp., 942 F.2d 204, 207-08 (3d Cir. 1991). See also Mayhew v. Bell S.S. Co., 917 F.2d 961, 963-64 (6th Cir. 1990) (excluding expert testimony because the doctor would not testify with certainty); Grant v. Farnsworth, 869 F.2d 1149, 1152 (8th Cir. 1989) (excluding a chiropractor's testimony as not assisting the jury because he could not state an opinion with a reasonable degree of medical certainty); DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st Cir. 1988) (admitting expert medical testimony because it "generally reflected a conclusion based on a reasonable degree of medical certainty"). But see United States v. Cyphers, 553 F.2d 1064, 1072-73 (7th Cir. 1977) (holding that there is no requirement of reasonable scientific certainty in opinions).
279. Grant, 869 F.2d at 1152.
280. See, e.g., Thirsk v. Ethicon, Inc., 687 P.2d 1315, 1318 (Colo. Ct. App. 1983) (holding that under Colorado Rule of Evidence 702, "[a] medical opinion is admissible if founded on reasonable medical probability" (citing Houser v. Eckhardt, 450 P.2d 664 (Colo. 1969))); Bloching v. Albertson's, Inc., 934 P.2d 17, 19-20 (Idaho 1997) (holding that under Idaho Rules of Evidence 701 and 702, the testimony of a physician expert "that it was 'possible' that the insulin blend could have caused a reaction" was inadmissible because "expert medical opinion testimony must be based upon a 'reasonable degree of medical probability' in order to be admissible."); Fugett v. Harris, 669 N.E.2d 6, 7-8 (Ohio Ct. App. 1995) (in order to satisfy the purposes of Ohio Evidence Rule 702(A), expert opinions on causation must be stated in terms of probabilities (citations omitted)); Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606, 610 (Tex. App. 1991) (reasoning that, under Texas Rule of Civil Evidence 702, expert medical testimony is admissible when it is clear that the doctor's opinion is based on a reasonable medical probability); Everett v. Town of Bristol, 674 A.2d 1275, 1277 (Vt. 1996) (holding that under Vermont Rule of Evidence 702, expert testimony that does not meet a standard of reasonable probability or reasonable certainty is speculative, irrelevant, and inadmissible and citing Jackson v. True Temper Corp., 563 A.2d 621, 623 (Vt. 1989)); Reese v. Stroh, 907 P.2d 282, 286 (Wash. 1995) (en banc) (holding that, under Washington Evidence Rules 702 and 703, expert medical testimony is admissible if it is based upon a reasonable degree of medical certainty, because such testimony must "rise above speculation, conjecture, or mere possibility.").
281. See Collins v. Straka, 517 N.E.2d 1147, 1151-52 (Ill. App. Ct. 1987). But see Cherry v. Harrell, 353 S.E.2d 433, 437 (N.C. Ct. App. 1987) (holding that North Carolina's adoption of Federal Rules of Evidence 702 through 705 superseded the prior state requirement that experts testify to a reasonable medical probability).
282. See, e.g., Schulz, 942 F.2d at 207 (holding that the district court should have admitted a doctor's expert testimony regardless of whether New Jersey or federal evidence rules applied because no conflict existed between those rules).
283. See, e.g., Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir. 1995) (addressing the admissibility and sufficiency of expert medical testimony on causation purely in terms of Daubert); Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th Cir. 1993) (quoting United States v. Cyphers, 553 F.2d 1064, 1072-73 (7th Cir. 1997), for the principle that under Rule 702, "'an expert's lack of absolute certainty goes to the weight of his testimony, not to its admissibility'").
284. See, e.g., Cavallo v. Star Enter., 100 F.3d 1150, 1158 (4th Cir. 1996) (holding that Daubert sets the standard for the admissibility of expert medical testimony in diversity cases, not state law).
285. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
286. See id. at 589 n.6. For a more expansive discussion of the Erie arguments in the Daubert litigation, see Gottesman, supra note 85, at 1846-48.
287. See Daubert, 509 U.S. at 595. In addition, the Court stated that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one." Id. at 594.
288. Merrell Dow Pharm., Inc. v. Havner, 907 S.W.2d 535, 542 (Tex. App. 1994).
289. Id. at 542 (citation omitted).
290. National Bank of Commerce v. Associated Milk Producers, Inc., 22 F. Supp.2d 942, 949 n.4 (E.D. Ark. 1998).
291. See, e.g., Anthony v. Chambless, 500 S.E.2d 402, 404-05 (Ga. Ct. App. 1998) (noting that, in a loss of chance medical malpractice action, testimony to a reasonable degree of medical certainty serves to ensure that the decedent's prospects for survival were "more man a mere chance or speculation"); Cherry v. Harrell, 353 S.E.2d 433, 437 (N.C. Ct. App. 1987) (noting that "'Reasonable probability' was employed to increase the degree of certainty allowed" when experts could not testify as to ultimate issues).
292. See, e.g., Hernandez v. Altenberg. 904 S.W.2d 734, 738-39 (Tex. App. 1995) (noting that reasonable medical probability standard is met and testimony is admissible when an expert identifies a "probable" cause in contrast to other "possible" causes); Weber v. McCoy, 950 P.2d 548, 551 (Wyo. 1997) (quoting Vassos v. Roussalis, 658 P.2d 1284, 1290-91 (Wyo. 1993), for the principle that the requirement of reasonable medical probability ensures that the expert opinion represents that expert's "professional judgment as to the most likely one among the possible causes of the physical condition involved").
293. See, e.g., Steineke v. Share Health Plan, Inc., 518 N.W.2d 904, 907-08 (Neb. 1994) (noting that "[m]edical testimony couched in terms of 'possibility' is insufficient to support a causal relationship" and citing Fuglsang v. Blue Cross, 456 N.W.2d 281 (Neb. 1990), for the rule that expert medical testimony is still inadmissible speculation when "rendered on a 50-50 basis").