Another Court of Appeals Has to Write an Opinion Reminding Litigants That Fed. R. Evid. 702 Applies to Nearly All Cases in Federal Court Involving Expert Testimony

In Love v. United States, No. 20-3534 (7th Cir. Nov. 4, 2021), the Seventh Circuit issues a short opinion devoted entirely to knocking down an argument that state rather than federal expert-witness evidence rules apply to a case governed by state law. This mirrors a recent Second Circuit opinion from October 6, 2021.

Plaintiff Vargas brought “suit under the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671–80, [charging] that a nurse employed by the VA was negligent in failing to order additional tests after receiving the results of a urinalysis in October 2015.” After a bench trial, the judge ruled for defendant, holding “that further testing to identify a potential urinary tract infection was not required by the appropriate standard of care, given the judge’s finding that no other indication of infection was present.”

The Seventh Circuit affirms. “Vargas’s principal appellate arguments concern expert evidence. The district judge permitted the United States to adduce testimony from Christopher Coogan, a board-certified urologist, whose testimony the district judge credited.” Vargas objected based “on a rule of Illinois law that a medical professional must testify within the scope of his or her specialty . . . . The decision not to follow up on the urine test was made by a nurse practitioner, and Vargas maintains that as a matter of Illinois law only a nurse practitioner may testify about whether that decision met the standard of care.”

Because the FTCA makes the United States liable for torts of its employees “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. §2674 ¶1, Vargas argued that the FTCA thereby incorporates state, rather than federal, expert-witness standards.

“The problem with this line of argument is that it ignores the Federal Rules of Evidence, which for the most part are statutes. They were enacted in 1974, and amendments to these rules prevail over older statutes per the supersession clause in the Rules Enabling Act. See 28 U.S.C. §2072(b); Henderson v. United States, 517 U.S. 654 (1996). And the Rules of Evidence are not ambiguous. They apply to all proceedings in federal court, see Fed. R. Evid. 101(a), with a few limits specified in Rule 1101 . . . . The fact that state substantive law supplies the rule of decision does not bring state procedural law into federal litigation.”

“We recognize that a state rule cast in procedural form may have a substantive function. One notorious example is the rule, adopted in many states, that the defendant in a tort suit arising from an automobile accident cannot show that the injured party failed to wear a seat belt. This rule, though stated as one about evidence, implements the substantive norm that failure to use a particular self-protective device cannot be asserted as a ground of contributory negligence. The seatbelt rule therefore applies in federal litigation.”

Here though the issue was not one of Illinois substantive law but of admissibility of evidence, and thus it is firmly governed by federal law. “How to prove the standard of care in a malpractice suit is a matter of evidence; we do not see in Illinois law any disguised substantive rule on the subject. The substantive norm is that medical care conforming with professional standards is not actionable. Which experts may testify about what topics is a matter of competence, which in a federal forum comes within the scope of the Federal Rules of Evidence.”

(The Seventh Circuit also notes in passing that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), has been superseded to a degree by amendment. “Rule 702 applies in every federal suit. It was amended after Daubert and altered that decision’s approach slightly, so the district court’s reference to Daubert was unfortunate—as the judge himself recognized when denying the motion for a new trial.”)

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