Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory Committee on Evidence Rules, district courts will be asked to conduct more consistently rigorous gatekeeping for expert opinions offered in their courtrooms, and will be supported when they do. Litigants can help usher in this change by citing the amendments themselves, following the pattern of courts that have been doing so.
The Advisory Committee unanimously approved the pending amendments to Rule 702 on April 30, 2021. On May 6, 2022, following a comment period, the Committee issued a report reflecting public comments received. In October 2022, the Committee presented the amendments to the United States Supreme Court. On April 24, 2023, the Court sent revisions to Congress. Per 28 U.S.C. § 2074(a), the revisions will take effect on December 1, 2023, unless a law is passed otherwise.
The proposal revises two aspects of Rule 702, making express the requirement that a party offering the expert’s opinions must demonstrate that it is more likely than not that all four subparts (a) – (d) are met, and revising subpart (d) to indicate that the expert’s opinion must reflect “a reliable application of the principles and methods to the facts of the case.” Previously, subpart (d) required that the expert “has reliably applied the principles and methods to the facts of the case.”
Commentators have spilled much ink over the changes, which faced opposition from some while being characterized by others (including the Committee) as making no actual change in the applicable standard. But, as the Committee noted in approving the amendments, “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.” The goal is not to change the standard, but to remind and encourage courts to apply it.
The Fourth Circuit, which was the first to cite the pending changes, agreed that the amendments and commentary “clearly echo the existing law on the issue.” Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021) (finding reversible error in the district court’s failure to exclude expert testimony). Yet Sardis took the opportunity to “insist” that district courts comply with Rule 702’s “plain gatekeeping requirement” and set out the “precise parameters of how a district court’s abdication of its gatekeeping function becomes harmful error.” This opinion – issued in August 2021, more than one year before the Advisory Committee sent the amendments to the Supreme Court for consideration – also noted the Committee’s motivation to act, given its observation that in a number of federal cases, judges were finding issues of weight for the jury, rather than excluding testimony that did not meet Rule 702’s requirements of sufficiency of basis and reliable application of the principles and methods.
Sardis has been cited numerous times within the Fourth Circuit in the two years since it was issued. Several courts outside the Fourth Circuit likewise have begun to cite the still-pending amendments as persuasive despite not yet being in effect. See, e.g., Al Qari v. Am. Steamship Co., 2023 WL 5014782 (E.D. Mich. Aug. 7, 2023); In re Anderson, 2023 WL 2229355 (Bankr. W.D. Tenn. Jan. 20, 2023). These courts, like Sardis, have noted the Committee’s position that the changes “are not substantive, but rather clarify how the Rule was meant to be applied since it was first amended in 2000.” Al Qari, 2023 WL 5014782.
And the spirit has been followed, though the change was not cited, in a recent decision from the Eighth Circuit affirming the district court’s exclusion of expert opinion for an insufficient basis. Lancaster v. BNSF Ry. Co., 2023 WL 4921579, — F.4th — (8th Cir. Aug. 2, 2023). A railway employee died of lung cancer, and the executrix of his estate sued the railway. First, the court emphasized that even under the “relaxed causation standard” applicable in cases brought under the Federal Employers’ Liability Act (FELA), expert testimony still must meet the Daubert and Rule 702 requirements for admissibility. The court went on to consider the foundation of the expert who issued a specific cause opinion. This expert thought the employee had been exposed to above-background rates of asbestos, diesel exhaust and silica dust at his job. But the exposure expert on whose opinion he relied actually had found above-background exposure documented only for silica dust. As to asbestos and diesel fumes, there was only the potential for exposure. Because the specific cause expert “ruled in” all three as plausible causes, but did not “rule out” the two for which there was no evidence of exposure, the district court found his opinion to be speculative and lacking in sufficient facts and basis under Rule 702. On appeal, the plaintiff used some variation of the phrase “goes to the weight, not the admissibility” 12 times in her opening brief (2022 WL 141153) and another nine times in her reply brief (2022 WL 1433699). That is, she invited the Eighth Circuit to approve what the Advisory Committee labeled “an incorrect application of Rules 702 and 104(a).” The Eighth Circuit refused, affirming the district court’s conclusion that the expert’s opinion “lacked a sufficient foundation” and was inadmissible.
Rule 702 is changing, and soon. Courts already have begun to cite the forthcoming amendments, echoing the Advisory Committee’s sentiment that the amendments will not change the substance of the law as it was meant to be applied but that many courts have not been applying it correctly. Litigants should follow suit, citing both the amendments and the Advisory Committee notes to alert courts that old precedent – particularly “weight, not admissibility” cases – may not be consistent with newly amended Rule 702.