Barb Jones is one of the nation’s best legal journalists.  Ms. Jones writes for the Minnesota Lawyer and serves as the Managing Editor.  She recently had an interesting piece on the Eighth Circuit Court of Appeals decision interpreting Rule 702 of the Federal Rules of Evidence.

The article begins:

The guardian ad litem for a brain-damaged child may pursue a claim against Mead Johnson & Company, the makers of Enfamil Lipil with Iron, alleging that the child was infected by bacteria in the formula, the 8th U.S. Circuit Court of Appeals ruled on June 6. The opinion reverses a grant of summary judgment to the defendant by District Court Judge Joan Ericksen.

Ericksen granted summary judgment after excluding the testimony of all of the plaintiff’s experts. She determined that their methodology, ruling in the scientifically plausible causes and then ruling out the least plausible, was not reliable enough to assist the trier of fact.

The three-judge appellate panel said in this case it would resolve the “intriguing juxtaposition” between liberal standards for admission of expert testimony under Rule 702 and an abuse-of-discretion standard of review in favor of admission of the testimony.

“That’s always the problem,” said Minneapolis attorney Kay Nord Hunt, who represented the appellant. “The standards are liberalized under Rule 702, but the appeal is for abuse of discretion.” If the trial court judge doesn’t apply a liberal standard, the appellate court may yet affirm, she explained. That’s what is unusual about this case, she said, because the courts usually affirm. Furthermore, the clerk of court assessed the guardian ad litem $18,442 in costs, which Ericksen refused to vacate. The case is Johnson v. Mead Johnson & Company.

The full article may be found here (subscription required).