In December of 2023, Federal Rule of Evidence 702 was amended. This provision is commonly known as the Daubert standard. The Advisory Comments state the amendment is only intended to clarify the standard and promote uniformity across courts. In practice, however, this amendment may have changed the way federal judges evaluate expert testimony. Accordingly, attorneys and expert witnesses must adapt and make some changes to the way expert testimony is presented in litigation. Here are a few things to keep in mind:

What is FRE 702?

Federal Rule of Evidence (FRE) 702 lists the specific elements required for the admissibility of expert opinion testimony. Codified in 2000, FRE 702 was developed from a series of cases, known as the Daubert trilogy: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). These cases required District Court judges to be gatekeepers and charged them with the responsibility of excluding unreliable expert testimony.

Daubert Standard Criteria

Two criteria are employed when courts consider the admissibility of expert testimony. The relevance criterion ensures that the expert’s testimony is relevant to the facts of the case, i.e., does the expert’s specialized knowledge “assist the trier of fact to understand the evidence or to determine a fact in issue[?]”. (FRE 702(a).) The reliability criterion assesses whether the expert’s methods are scientifically valid. Courts generally consider the following Daubert factors: “(1) whether the theory can be and has been tested, (2) whether the theory has been peer reviewed and published, (3) what the theory’s known or potential error rate is, and (4) whether the theory enjoys general acceptance in the applicable scientific community.” Daubert, 509 U.S. at 593-94.

Issues With the “Old” FRE 702

A review of trial court opinions regarding FRE 702 by the Judicial Conference Committee on Rules of Practice and Procedure found that the existing FRE 702 was not applied uniformly. Some judges were affording expert testimony a presumption of admissibility, rather than ensuring, by a preponderance of the evidence, that reliable expert evidence reached the jury.

The organization of Lawyers for Civil Justice reviewed more than 1,000 federal trial court opinions regarding FRE 702 in 2020. Notably, in 65% of these opinions the court did not cite the preponderance of the evidence standard that is required. In more than 50 federal judicial districts, courts were split over whether to apply the preponderance of the evidence standard when assessing the admissibility of expert testimony. And in 6% of these opinions, the court cited both the preponderance of the evidence standard and a presumption favoring admissibility (two standards which are inconsistent with each other).

The goal of the amendment to FRE 702 was to clarify the “preponderance of the evidence” standard as the controlling standard and to remind judges of their obligation to act as gatekeepers.

The 2023 Amendment

The amendment added key phrases to make the rule more specific and to clarify that the admission of expert testimony is ultimately decided by the judge. “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’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

At the outset, the amendment makes clear that the proponent of the expert testimony must convince the court that the testimony is admissible before it reaches the jury. It is not proper to rely on a “weight of testimony” argument. The amendment also explicitly references the appropriate standard: “more likely than not.” Finally, and perhaps most consequentially, the amendment clarifies that the expert’s testimony must reflect a reliable application of the principles and methods to the facts of the case. In other words, the expert must ensure that there are no analytical gaps between the data and the opinion proffered. Practical Implications of the 2023 Amendment Now that the Amendment has gone into effect, what can you do to prepare? First, take steps to assess your expert’s experience with the 2023 Amendment and its implications. Hire your experts early in the case and work with them to prepare accordingly. Together you will need to obtain, through discovery, the necessary underlying facts that will form the basis of your expert’s opinion.

Second, ensure your expert’s report adequately addresses each of the FRE 702 elements concisely. The 2023 Amendment brings with it a renewed focus on what is presented to the court and whether it is in fact admissible. Judges will be particularly keen on the methodology experts apply in reaching their opinions. Experts must now substantiate their opinions with more than mere claims of experience.

Finally, experts’ opinions and attorneys’ arguments should apply the preponderance (“more likely than not”) standard. The “liberal thrust” or “presumption of admissibility” policy is incompatible with FRE 702. The Amendment effectively overrules a significant body of case law that has misapplied the rule. The elements of FRE 702, not the caselaw, are the starting point for the requirement of admissibility.

Ultimately, both the attorney and the expert share the responsibility of getting expert testimony past the judges, i.e., the gatekeepers, and in front of a jury, with the expert’s providing the opinion and the attorney’s advocating its admissibility. The Amendment has clarified the standard regarding expert testimony, but in practice, it also now requires more from experts and attorneys. To be successful at trial, as is always the case, be prepared.

References:

• Committee on Rules of Practice and Procedure. (2022, June 7). Appendix A: Rules for Final Approval. https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_final.pdf
• Committee on Rules of Practice and Procedure. (2022, May 15). Report to the Standing Committee – Advisory Committee on Evidence Rules. https://www.uscourts.gov/sites/default/files/evidence_rules_report_-_may_2022_0.pdf
• Jackson, K. R., & Trask, A. J. (2021). LCJ Study of Rule 702 Decisions from 2020. Lawyers for Civil Justice. https://www.regulations.gov/comment/USC-RULES-EV-2021-0005-0008