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Does Judicial Gatekeeping Look at What is Behind the Page?

Paul V Majkowski

Does Judicial Gatekeeping Look at What is Behind the Page?
Copyright Maskot via Getty Images

With the amendments to Federal Rule of Evidence 702—which became effective December 1, 2023—reinvigorating the courts’ “gatekeeping” role regarding expert evidence, we might wonder to what extent the courts will be inclined to look behind the page in addition to what is written on it.

This issue is illustrated in the matter of Peninsula Pathology Assocs. v. American Int’l Indus., now pending in the court of appeals for the Fourth Circuit on appeal from an order quashing the defendant cosmetic talc manufacturer’s subpoena into the background of an article written by a trio of routine plaintiffs’ experts. As American International Industries opens its appellate brief, “While on its face this appeal concerns a discovery order, its outcome will determine whether or not the underlying trial will proceed in a fundamentally unfair way.” That is, whether the article will be given the appropriate gatekeeping scrutiny to determine whether it is sound science or made-for-litigation. Brief for Appellant, p. 1, Peninsula Pathology Assocs. v. American Int’l Indus., No. 23-1972 (4th Cir. Dec. 13, 2023).

The underlying case involves a claim for mesothelioma allegedly arising from the plaintiff’s exposure to asbestos in the defendant’s cosmetic talc product. As proof of causation, the plaintiff relies on the published study, Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients. As the article discloses, the “cases were selected from [a] medical-legal consultation practice,” and the authors identified exposures based on deposition testimony and interrogatory answers. Rather than constituting a typical epidemiology study, the publication would merely be a vehicle to put 75 other plaintiffs in other cases before the jury. Moreover, by presenting these claims under the guise of a scientific study, the other plaintiffs are shielded from inquiry; the subjects are anonymous and the impact on their confidentiality interests as third parties would be implicated in considering such discovery.

As urged by amicus curiae American Tort Reform Association, “[t]he ability to test scientific claims is particularly critical when made-for-litigation science is at issue,” and parties must be able “through discovery, to probe the basis of a proposed expert’s testimony and present significant flaws or misrepresentations” on a Rule 702 motion if the courts are “to diligently exercise their gatekeeping responsibility.” Brief for American Tort Reform Ass’n as Amicus Curiae, pp. 3,7, Peninsula Pathology Assocs. v. American Int’l Indus., No. 23-1972 (4th Cir. Dec. 20, 2023). “By publishing their litigations opinions in a scientific journal and claiming ‘confidentiality’—the Emory Article’s authors attempt to evade federal courts’ ‘indispensable’ gatekeeping role under Rule 702 to evaluate the study’s reliability.” Id. at 6.

Peninsula Pathology is a significant case to watch as we take on a new era under the Rule 702 amendments and the federal courts’ gatekeeping role.