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Courts and commentators continue to wrestle with how questions concerning the admissibility of expert testimony relate to questions of sufficiency of the evidence. In an earlier article, we explained that many courts determine the admissibility of an expert opinion based on whether the scientific evidence proffered by the expert supports a reasonable inference of causation. What’s more, we claimed that this is not a bad thing and better than using inappropriate Daubert factors to decide admissibility. A key distinction to appreciate is that between global sufficiency and local sufficiency. Just as courts may take a case from the jury if there is insufficient evidence to permit a reasonable fact finder to reach a certain outcome, a judge should exclude an expert when the data upon which the expert relies is insufficient to support the expert’s conclusion. We defend this approach against several normative critiques.

The earlier paper relied on anecdotal case examples to support our descriptive claim. This paper draws upon two samples of cases to ascertain the prevalence of courts employing a sufficiency analysis when deciding whether to admit expert testimony. We find that in toxic tort cases when courts exclude expert testimony, a significant majority of them do engage in a local sufficiency analysis.