The Second Circuit’s Problematic Rule 702 Analysis in its Recent Tylenol Decision

Last week, in Rutledge v. Walgreen Co., the Second Circuit revived failure-to-warn claims under state law relating to maternal use of Tylenol during pregnancy and its alleged links to autism in children. The district court had rejected the plaintiffs’ expert testimony in a careful, extensive Rule 702 opinion, and the Second Circuit reversed that ruling.

I am hardly an expert on the underlying subject matter in general, or how it was presented to the district court in particular, and have no desire to become one, so I can’t claim to know whether the district court was correct as an initial matter.

Nevertheless, in reading the opinion, I saw three errors in the Second Circuit’s legal analysis.

First, the Court leads off its analysis by quoting the text of Rule 702, but then proceeds to cite Daubert v. Merrell Dow Pharmaceuticals and other cases from before the 2000 and 2023 amendments to the Rule. It also refers to its the analysis it is undertaking as a “Daubert inquiry.”

That doesn’t inherently mean that the court is going to undertake an incorrect legal inquiry, but it does suggest that the court has not fully absorbed the fact that “Daubert” is no longer the operative standard, and any caselaw or analysis that conflicts with the 2000 and 2023 amendments (the latter intended to admonish wayward judges who were declining to enforce the 2000 amendment) is void.

Second, my read of the opinion is that as a practical matter it undertakes de novo review, though the court does give very brief lip service to the correct standard of review, abuse of discretion. Abuse of discretion means that the district court’s opinion may only be reversed if its reasoning was “manifestly erroneous,” not if the Second Circuit simply disagreed with its conclusions, as seems to be the case here.

Third, and I think most important, the court explains its grossly incorrect understanding of how the district court was supposed to approach its Rule 702 review: “The gatekeeping role of the district court is to shield the jury from testimony by even qualified experts that is outside the boundaries of ordinary scientific discourse and thus constitutes ‘junk science.'”

That is simply wrong. There is nothing in the text or history of Rule 702 that suggests that courts may only exclude testimony from qualified experts if its so outside that the boundaries of science that it can reasonably be deemed “junk science.”

Recall the wording of the text. Expert testimony is admissible if:

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

That is not a “let-it-all-in unless it’s junk science” standard. That, instead, is a “carefully scrutinize the testimony for reliability” standard. Much unreliable scientific testimony falls far short of “junk science,” but still fails to meet the underlying standard.

Overall, the trend in federal courts since 2023 regarding Rule 702 seems positive. But the Second Circuit in general, and Judge Guido Calabresi–who, I should say, I love and respect from his time as the dean when I attended Yale Law School–in particular, have been generally recalcitrant about applying first Daubert/Joiner and then amended Rule 702 to uphold the exclusion of plaintiffs’ evidence in major tort litigation. Hopefully, this backsliding will not start a trend.