Commercial Litigation and Arbitration

Experts: Factual Basis for Expert Testimony Must Satisfy Court under Rules 104 and 703

From Medtronic, Inc. v. Boston Scientific Corp., 2011 U.S. Dist. LEXIS 33581 (D. Del. Mar. 30, 2011):

As recognized by the United States Court of Appeals for the Third Circuit, while an expert's methodology is required to pass muster under Rule 702, the data underlying the expert's opinion must pass muster under Rules 104 and 703. More specifically, the Third Circuit in In re Paoli R.R. Yard PCS Litig., 35 F.3d 717 (3d Cir. 1994), made clear "that it is the judge who makes the determination of reasonable reliance, and that for the judge to make the factual determination under Rule 104(a) that an expert is basing his or her opinion on a type of data reasonably relied upon by experts, the judge must conduct an independent evaluation into reasonableness." Id. at 748. The Third Circuit concluded in In re Paoli that, because the policy considerations underlying the rules of evidence are the same, the "reliability requirement" for admission under Rules 104, 702 and 703 should be the same - "there must be good grounds on which to find the data reliable."

Footnote 8. Rule 104 provides:

(a) Questions of admissibility generally. 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, subject to the provisions of subdivision (b)....

(b) Relevance conditioned on fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Fed. R. Evid. 104.

Footnote 9. Rule 703 provides:

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 in order for the opinion or inference to be admitted[.]

Fed. R. Evid. 703.

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