Commercial Litigation and Arbitration

Experts — Rule 702 vs. Rule 56

The District Judge in Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007) excluded the testimony of the plaintiff’s expert, finding that the testimony was not helpful, within Fed.R.Evid. 702, because it did not address the issue of causation, only defect, in this medical device products liability action. The Ninth Circuit reversed, holding that the District Court’s analysis ‛mingled the analysis required by Federal Rule of Evidence 702 for the admissibility of expert testimony and Federal Rule of Civil Procedure 56 for summary judgment.“

Though summary judgment enquires whether there is a "genuine issue of material fact," Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005), Rule 702's analysis is ordinarily prospective. Expert testimony is helpful if it "will assist the trier of fact." Fed.R.Evid. 702 (emphasis added). Thus a district court may not exclude expert testimony simply because the court can, at the time of summary judgment, determine that the testimony does not result in a triable issue of fact. Rather the court must determine whether there is "a link between the expert's testimony and the matter to be proved." United States v. Bighead, 128 F.3d 1329, 1335 (9th Cir. 1997). The chain necessary to prevail on a claim may be weakened by the absence of other evidence or testimony, but that does not undermine the admissibility of Rule 702 evidence.

The Ninth Circuit proceeded to affirm the District Court’s grant of summary judgment, however, because the District Judge was right that no triable issue of fact had been established.

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