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The Advisory Committee on Evidence Rules will continue this fall its ongoing discussions on amendments to Federal Rule of Evidence (FRE) 702.

The two possible amendments being considered for FRE 702 include:

· an amendment addressing the “overstatement” of expert conclusions

· an amendment (or committee note) regarding the admissibility requirements for expert testimony.

The latter is critical to correcting problems with the current application of FRE 702, which has been inconsistent and, arguably, has put settling legal outcomes ahead of evaluation of scientific merit in the courtroom.

More than two decades ago, Judge Posner observed that “the courtroom is not the place for scientific guess work. Law lags science; it does not lead it.”[1] With courts seeing more law suits based on early or questionable scientific evidence (think the analysis of glyphosate in RoundUp litigation), changes to FRE 702 are essential to reduce the scientific guess work that is, all too often, occurring in courtrooms today.

When FRE 702 was last substantively amended in 2000, it was meant to establish a uniform, rigorous, and structured approach for the judicial gatekeeping role established by the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. Daubert and the as-amended FRE 702 provide judges with the general standards to evaluate reliability and, thus admissibility, of an expert’s opinion.

While it clearly establishes judicial gatekeeping, Daubert also exclaims the virtue of rigorous cross-examination as the best means for attacking an expert’s questionable scientific opinions.

The resulting confusion has led to twenty-five years of inconsistency in assessing the admissibility of expert testimony and an urgent need for additional guidance regarding the admissibility of expert opinions. The Advisory Committee must address two primary issues: confirming the burden of admissibility is on the proponent of the evidence and reminding courts that gatekeeping is not a pass-through proposition.

The 2000 Advisory Committee Note to FRE 702 clearly states that “the proponent [of the expert testimony] has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.”

Despite this apparent clarity, numerous courts have included “presumption of admissibility” language when allowing expert testimony. They have done so by citing language in the same note to support the principle that “rejection of expert testimony is the exception rather than the rule.”

However, this is a complete misinterpretation of the substance of the note itself, which reads, “A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” The language regarding exception vs. rule, in fact, was the Committee’s post-Daubert observation and not guidance directly conflicting with their clear statement on the burden of admissibility.

FRE 702 requires that judges assess the reliability of an expert’s opinion before those opinions are ever put before a jury. Too often, however, courts prefer to leave that assessment to juries through an evaluation of expert credibility or the weight of the evidence. These courts rely on the adversarial system and the effectiveness of cross-examination to highlight the weakness and unreliability of the opinion, rather than weighing the science itself.

Minutes from the Advisory Committee on Evidence Rules meetings highlight the fact that relying on cross- examination in an adversarial system is not an effective replacement for a judge serving as a gatekeeper in assessing an expert’s opinion.[2] Daubert demands the court be the gatekeeper. Displacing this role to jurors places an unfair burden on juries, who are rightfully unprepared to fully evaluate complex, scientific expert testimony.

While significant amendments to the language of FRE 702 itself are not required, an Advisory Committee Note that provides clarity and direction to trial courts in application of FRE 702 is necessary. Effectively performing the gatekeeping function under Daubert and FRE 702 has never been (and likely will never be) easy. There are real time, money, and knowledge hurdles to overcome. But hurdles can’t stop courts from correctly applying FRE 702’s admissibility assessment, rather than relegating that function to juries.

Footnotes:

[1] Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)

[2] See Minutes of the Meeting of May 3, 2019, Advisory Committee on Evidence Rules at 24 in Advisory Committee on Evidence Rules October 2019 Agenda Book 73 (2019) (“On the theory that the adversary system should take care of these issues, the rule could freely admit all expert testimony and leave it to the lawyers to discredit it. But the key to Daubert is that cross-examination alone is ineffective in revealing nuanced defects in expert opinion testimony and that the trial judge must act as a gatekeeper to ensure that unreliable opinions don’t get to the jury in the first place.”) & at 11 (“The whole point of Rule 702 — — and the Daubert-Rule 104(a) gatekeeping function — — is that these issues cannot be left to cross-examination.”)

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