Judges, Be the Gatekeepers 702 Needs you to Be

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The Advisory Committee on Civil Rules of Federal Judicial Conference recently approved several amendments to Fed. R. Evid. 702 intended to quash lackadaisical and flaccid Daubert gatekeeping.

Below is the amended text of the rule, with deletions in brackets and italics, and additions underlined and bolded:

Rule 702. Testimony by expert witnesses.

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 court finds that] the proponent has demonstrated by a preponderance of the evidence that:

  1. 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;
  2. b) the testimony is based on sufficient facts or data;
  3. c) the testimony is the product of reliable principles and methods; and
  4. d) [the expert has reliably applied] the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

These amendments do not change the substance of Rule 702’s standards for admission of expert testimony – helpfulness, factual basis, reliability, and fit. Instead, the amendments are intended to emphasize judges’ role as gatekeeper and remind courts this is not a question for the jury to decide.

To that end, the first amendment provides that a judge should exclude expert testimony unless the substantive criteria of Rule 702 have been met by a preponderance of the evidence. The Draft Committee Notes accompanying the proposal explained, “[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104.” Too many courts have succumbed to this incorrect application, with far too many judges, instead, ruling that helpfulness to the jury, sufficient basis, reliability, and fit were matters of weight for the jury to decide. The Draft Committee Notes further clarified, “[T]his does not mean, as certain courts have held, that arguments about the sufficiency of an expert’s basis always go to weight and not admissibility. Rather, it means that once the court has found the admissibility requirement to be met by a preponderance of the evidence, any attack by the opponent will go only to the weight of the evidence.” The Committee’s intent is to reiterate the proper standard with explicit wording in the black letter of Rule 702.

The second amendment in subsection (d) requires an expert’s opinion to demonstrate that the expert’s reliable principles and methods were reliably applied to the facts of the case at hand. The Draft Committee Notes clarify that this amendment is intended to stop “extravagant claims that are unsupported by the expert’s basis and methodology.” This change is intended to stop courts from justifying admission of expert opinion by reasoning that the methodology matters, not the ultimate opinion. In other words, the amendments are intended to signal to judges that an expert should be excluded if the conclusion does not logically follow from a reliable application of the expert’s principles and methods, which will potentially lead to a higher rate of expert exclusions than were seen under Daubert.

Nothing in this amendment imposes any new procedures or standards. It is merely an effort to clarify the standard and to begin to rectify the ubiquitous errors made by courts when determining the admissibility of expert opinion. The approved amendment will be reviewed by the Judicial Conference in the fall, then the U.S. Supreme Court, and finally the U.S. Congress. If Congress approves the amendment, it will take effect on December 1, 2023

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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