For a plaintiff’s attorney searching for a windfall payday, highly credible and fact-based expert testimony is always a plus, but it is hardly a necessity. Thanks to lax judges who fail to properly scrutinize expert testimony and allow pure nonsense to reach the ears of a jury, big jury awards can just as easily be handed down when lawyers put highly dubious testimony on the stand.
Infamous examples, such as the judge who allowed an “expert” to testify that breast implants were responsible for drunk driving, may give readers a laugh. But these laughs do not come cheap, given that abuse of our legal system costs consumers over $150 billion annually.
In 1993, former Supreme Court Justice Harry Blackmun wrote, “The rules of evidence… do assign the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” On the state court level, Justice Blackmun’s view still eludes us. Several recent federal court rulings drive this point home, highlighting the need for states to follow the federal judiciary’s lead by modernizing their standards for expert testimony.
In Zurbriggen v. Twin Hill Acquisition, Inc., flight crews alleged that newly issued uniforms caused a range of health problems, including skin irritation, respiratory issues, and hair loss. Both the district court and the Seventh Circuit in Illinois rejected the plaintiffs’ expert testimony under amended Federal Rule of Evidence (FRE) 702, finding their experts failed to prove causation.
Since jurors are often asked to weigh opinions on medicine, engineering, and other technical subjects far outside ordinary experience, expert testimony can carry enormous weight in the courtroom. When flimsy expert opinions are admitted during discovery or trial, jurors may have little ability to distinguish between fact and fiction, or causation and coincidence, increasing the risk of flawed outcomes.
In federal courts, Federal Rule of Evidence 702 has long provided judges with clear guidelines for evaluating the reliability of expert testimony. The 2023 amendments to that rule sharpened federal judges’ gatekeeping role. Those same amendments must now be adopted in all state courts.
Rule 702 now requires parties offering expert testimony to show, by a “more likely than not” standard, that the testimony meets all admissibility requirements. It also clarifies that courts must evaluate not only whether an expert’s methodology is reliable, but whether those methods were reliably applied to the facts of the case.
The Zurbriggen ruling demonstrates why the 2023 amendment was long overdue. Although the plaintiffs’ experts presented a plausible theory linking the uniforms to the reported health problems, the courts found they failed to adequately rule out alternative explanations for the symptoms. At the same time, laboratory and government testing conducted by the National Institute for Occupational Safety and Health (NIOSH) found only low levels of chemicals in the uniforms and confirmed they were unlikely to cause the alleged ailments. The case reinforced that expert testimony must be supported by reliable evidence and rigorous methodology, not merely by an alleged connection or compelling theory.
There is no reason why Rule 702 should not be universally adopted as the evidentiary standard in all 50 state courts. A growing number of states are updating their rules to reflect the 2023 amendment. In 2024, Arizona amended its expert evidence standards to mirror the 2023 changes, clarifying the burden of proof and addressing expert witness overstatement. Similarly, Louisiana amended their expert evidence requirements to ensure courts have the resources needed to determine when expert testimony is unreliable or not properly linked to the facts of the case.
The Zurbriggen case demonstrates why stronger gatekeeping standards matter. Unreliable expert opinions can pressure businesses into costly settlements, mislead juries, and erode confidence in the legal system. Although the plaintiffs’ claims received national attention, both courts ultimately found that the testimony presented failed to meet reliability standards required under amended Rule 702.
Litigation over uniforms continues in some states under different evidentiary standards. In California, juries have already awarded millions of dollars in damages despite unresolved questions surrounding causation. Conflicting outcomes only reinforce the need for a single, consistent standard on expert witness testimony.
Junk science has no place in our court system. On that one point, we should all agree. Rule 702 must be the universal standard at both the state and federal level. The patchwork standards we now have can’t be logically reconciled, and U.S. consumers can’t afford it.
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