Update (March 7, 2019): The Minnesota Supreme Court heard argument in the Kedrowski case, described below. The question: did the trial court err in throwing the case out after a jury verdict, based on the trial judge’s conclusion that the plaintiff’s causation expert’s opinion “lacked foundational reliability.”
Among other things, the Minnesota Supreme Court is hung up on the standard of review. Is it “abuse of discretion,” which would apply to a decision on the admissibility of evidence, a deferential standard of review? Or, since the decision was in the context of a motion for judgment as a matter of law, is the decision subjected to a stricter standard of review?
In one sense, we do not think this is a difficult case.
Trial court judges may not weigh between two competent experts’ analytically sound and methodologically sound opinions.
On the other hand, if the judge finds one side’s opinion is analytically or methodologically unsound, the court should exclude that opinion. As for whether that decision is before or after a jury verdict does not matter. Either way, a litigant cannot prevail based on analytically or methodologically unsound expert testimony.
That much of the analysis is easy. Or is it?
In this case, the court must grapple with and understand technical expert testimony. This is not a case of “junk science,” which we know has no place in a court of law. The justices (and the trial court judge, and the intermediate court of appeals) are in a far more difficult spot when evaluating technical evidence by a competent expert in a recognized scientific field (as is the case in Kedrowski). (Did Plaintiff’s expert properly perform the “flow bench test” and did he properly analyze the data from it? Assuming his analysis of the flow bench test results was flawed, aside from the flow bench test, did Plaintiff’s expert have other sufficient foundational bases for his opinion?)
As for the timing of the trial court judge’s decision, whether during trial or after a jury verdict, that may be irrelevant. Either way, the questions are (1) what is the appropriate standard of review, and (2) did the trial court judge get it wrong?
But is the timing irrelevant?