Neil Gorsuch Brings Track Record of Deference and Particularity With Expert Evidence to Supreme Court

Anjelica Cappellino, J.D.

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— Updated on February 12, 2021

Neil Gorsuch Brings Track Record of Deference and Particularity With Expert Evidence to Supreme Court

Since the death of Justice Antonin Scalia last year, the vacancy in the United States Supreme Court has been a contentious topic of debate. With the Court essentially split, with four conservative and four liberal justices currently sitting on the bench, Justice Scalia’s successor will shift the balance of power in the nation’s highest court for years to come. It is in this context that President Donald Trump nominated Neil Gorsuch, an appellate judge for United States Court of Appeals for the Tenth Circuit, to the United States Supreme Court on January 31st, 2017.

Trump and Neil Gorsuch

To say that this is a significant nomination is an understatement.  Judge Gorsuch will likely rule on a number of divisive legal issues with far-reaching implications. Throughout the Senate Judiciary Committee’s confirmation hearings beginning March 20th, Gorsuch’s record of rulings will be under strict scrutiny. In the particular context of expert witnesses, Gorsuch has penned a number of opinions that suggest how he may rule in impending Supreme Court cases.

If Gorsuch’s past judicial decisions are any indicator of his future leanings, he will continue to be interested in maintaining the gatekeeping function of expert testimony. When deciding on the admissibility of an expert witness’ testimony, Gorsuch has advocated for a reasoned, particularized analysis to be conducted at the district court level.

In Storagecraft Technology Corp. v. Kirby, 744 F.3d 1183 (10th Cir. 2014), a trade secret misappropriation case where the defendant objected to the plaintiff’s damages expert and appealed the verdict, Gorsuch articulated how the Court should proceed when determining the admissibility of expert testimony. Although Gorsuch conceded that the court had “yet to identify some unifying theory or principle for discerning the precise point at which a district court’s gatekeeping findings prove sufficient,” he noted several lessons from past appellate decisions that should be considered when admitting expert testimony.

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First, Gorsuch ruled that the district court must sufficiently establish its reasoning on record, so that the appellate court may confidently determine that the relevant law was properly applied. Second, the district court must address the specific concerns raised by the objector as to the expert’s reliability. The court need not discuss every factor enumerated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), but rather, should “focus its attention on the specific factors implicated by the circumstances at hand.” Lastly, the Tenth Circuit held that insufficient gatekeeping findings at the district court level might not warrant reversal if the error is harmless. If the record reflects that the expert testimony was admissible, or if there was other “sufficiently strong” evidence to conclude the inadmissible evidence had no effect on the decision, then the Court “will not demand a new trial when the existing one reached the right result.”

Gorsuch’s opinion in Storagecraft Technology, Inc. was subsequently relied upon in later Tenth Circuit decisions regarding expert testimony. In Adamscheck v. American Family Mut. Ins. Co., 818 F.3d 576 (10th Cir. 2016),  an automobile collision case, the insurer sought an appeal on the grounds that the exclusion of its biomechanical engineering expert was an error. In its analysis, the Court cited Storagecraft, noting that the district court admitted expert testimony where “the record contained independent, admissible evidence establishing the same proposition to which the expert had testified.” In Adamscheck, the Court used the same rationale to conclude that the excluded expert testimony was materially different than any other evidence introduced at trial, and thus, was not considered harmless error. The ruling in Adamscheck illustrates how Gorsuch’s opinion concerning Daubert findings can be used to conclude that an admissibility determination was, in fact, harmful error.

Interestingly, Storagecraft was even cited in a Tenth Circuit criminal appellate decision. In U.S. v. Smith, 756 F.3d 1179 (10th Cir. 2014), the defendant appealed his convictions for robbery and using a firearm during and in relation to a crime of violence. Among other arguments, the defendant contended that the district court erred by admitting expert testimony from a forensic firearm and tool mark examiner. The defendant did not challenge the admission of the testimony on substantive grounds – rather, he argued that the district court should have held a hearing opposed to accepting paper submissions by the parties. Writing for the Court, Gorsuch held that the defendant identified “no evidence or argument he wanted to place before the court in person that he wasn’t able to put forth on paper.” Invoking language from Storagecraft, Gorsuch held that the defendant gave the Court no reason to think the error, if any, was anything but harmless, and thus, concluded a new proceeding would not be needed when “there’s so little reason to doubt the existing one reached the right result.”

This calendar year, there are currently a variety of cases pending before the Supreme Court, with matters ranging from educational benefits for disabled children to police officers and the use of excessive force. There is no telling if and when issues surrounding expert testimony will see the forefront of any of the Supreme Court opinions addressing these cases.

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