In the Fall of 2004, I was arguing a case before typically stern Judge Frank Easterbrook in the U.S. Court of Appeals for the Seventh Circuit. I made a reference to the Daubert standard for admissibility of expert testimony, only to be corrected by Judge Easterbrook, who said, “You mean Rule 702, not Daubert.” I was perplexed but charged ahead, only to say Daubert again, and have Judge Easterbrook remind me, “Don’t say Daubert.” I didn’t hold a grudge, but I did wonder: What was Judge Easterbrook’s point?
Now, I get it. Judge Easterbrook was drawing a distinction between Daubert and subsequent decisions, and the Federal Rule of Evidence that defines the standards for admissibility of expert evidence. Daubert was decided by the Supreme Court in 1993; but in 2000, the Court and Congress approved an amendment to Rule 702 to remedy the puzzlement that Daubert and its progeny had created.