Federal Rule of Evidence 702

The admission of expert testimony in federal courts is governed by Rule 702 of the Federal Rules of Evidence. Effective December 1, 2023, Rule 702 was amended to clarify the “preponderance of evidence” standard requiring judges to find an “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”[1] Rule 702 now reads as follows (crossed out language has been omitted from the Rule and bold language represents new language):

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the   trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Impact on Asbestos/Talc Litigation

While the amendment to Rule 702 will impact all litigation, it will especially impact asbestos/talc litigation. In asbestos/talc litigation, plaintiffs heavily rely on expert testimony to prove their case. For example, plaintiffs hire experts to testify cosmetic products incorporating talc, such as body powders and makeup, contain asbestos in quantities sufficient to cause asbestos-related illness.[2]

In response, defendants move to exclude plaintiffs’ expert testimony, arguing there is no scientifically reliable evidence linking talc products to asbestos-related illness.[3]  Scientific expert testimony is critical for both plaintiffs and defendants in these types of cases, and it plays a large role in trial results.

For example, in a consolidated Missouri case, 22 plaintiffs sued a manufacturer of baby powder.[4] Plaintiffs alleged defendant’s baby powder was contaminated with asbestos and caused their development of ovarian cancer.[5] At trial, plaintiffs’ expert opined that each of the 22 plaintiffs’ talc use “directly contributed” to her ovarian cancer.[6] Defendant argued that the testimony of plaintiffs’ expert “rested on insufficient facts and data, was not the product of reliable principles and methods, and did not reliably apply principles and methods and facts…”[7] The court admitted the testimony of plaintiffs’ experts which ultimately resulted in a $2 billion verdict.[8]  One could argue that the admissibility of the plaintiffs’ expert testimony significantly impacted the jurors decision to render such a high award.

Conversely, in an Arizona case, plaintiff alleged he developed mesothelioma as a result of his use of various brands of talcum powder products sold by defendants.[9] Several of the defendants moved to exclude plaintiff’s expert testimony that talc causes mesothelioma, arguing there is no scientifically reliable evidence linking talc products to the development of mesothelioma.[10] The court determined that: “The theory that asbestos from talcum powder causes mesothelioma does not have general acceptance in the scientific community. Indeed, there is simply no definitive, scientific, control group, peer-reviewed study that has concluded that there is any causal connection between asbestos in talc and mesothelioma.” [11] The exclusion of plaintiff’s expert testimony was beneficial in defendants obtaining summary judgment.

The amendment to Rule 702 intends to ensure uniformity throughout federal courts as well as protect juries from unsound science by reinforcing the “gatekeeping” function of trial judges.[12] While the impact of the amendment to Rule 702 regarding the admissibility of experts in asbestos/talc litigation remains to be seen, this development is significant as it may cast doubt on the reliability of some of plaintiffs’ most prominent expert witnesses. Assuming courts will be more critical when examining expert testimony, we expect plaintiffs will take even greater care preparing and selecting their witnesses. Additionally, defendants should shift their approaches to Daubert challenges accordingly.

[1] Fed. R. Evid. 702 (Effective December 1, 2023).

[2] Kimberly Winbush, Products Liability: Talcum Powder Cases, 78 A.L.R. 7th 3.

[3] Id.

[4] Ingham v. Johnson & Johnson, 608 S.W.3d 663, 678 (Mo. Ct. App. 2020).

[5] Id.

[6] Id. at 684.

[7] Id. at 699, 705, 707, 709.

[8] Johnson & Johnson: High Court Won’t Hear Appeal on $2.1BB Verdict, Class Action Reporter (July 7, 2021); Ingham v. Johnson & Johnson, 2020 Mo. LEXIS 410.

[9] Weiss v. Albertsons Cos., 2023 Ariz. Super. LEXIS 204, *3.

[10] Id.

 [11] Id. at *70.

[12] Adam Rabinowitz, United States: Recent Amendments to Rule 702 Could Impact Expert Testimony Admissibility, Mondaq Business Briefing, January 4, 2023.