Solving the Problem of Daubert’s “Shaky but Admissible Evidence”: An Amendment to Federal Rule of Evidence 702 May Be Forthcoming

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“[S]ome courts appear to be abdicating their charge under the Federal Rules of Evidence and Daubert and its progeny to make the hard call on admissibility. The end result … is to relegate to the jury the very decisions Rule 702 contemplates to be beyond jury consideration.”[i]

- Thomas D. Schroeder, Chief Judge for Middle District of North Carolina; Member, Advisory Comm. on Fed. Rules of Evid.; and Chair, Subcommittee on Rule 702. (May 2020).

I. INTRODUCTION

In the face of extraordinary challenges, 2020 has yielded profound developments within the scientific community: from the accelerated development and approval of highly effective and safe vaccines normally years in the making to the successful launch of the first crewed orbital spaceflight with a private spacecraft. Undoubtedly, 2021 will yield more equally significant changes.

Among those changes may be a long-overdue clarification regarding application of the standard for admission of expert testimony to rectify a longstanding problem: trial courts’ resistance to performing their gatekeeping role “either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.”[ii] In so doing, a patchwork of jurisdiction-specific standards have emerged in which some courts faithfully apply the Rule 702 requirements, while others permit experts to testify even when the sponsor of the testimony has failed to demonstrate, by a preponderance of the evidence, that there was a sufficient basis for the opinion and/or that the methodology had been reliably applied.

In response,[iii] the Judicial Conference’s Advisory Committee on the Federal Rules of Evidence (the “Committee”) is considering an amendment “to reiterate the need for proper application of Rule 104(a)’s threshold to each requirement of Rule 702.”[iv] After more than two years of analysis and debate, the Committee appears ready to amend the Rule.[v]

This article addresses the history of Daubert and the 2000 amendment to Rule 702, explains the problems that have arisen in courts’ misapplication of Rule 702 following the 2000 Amendment, and describes the scope of a possible amendment to Rule 702.

II. DAUBERT AND THE 2000 AMENDMENTS

A. Daubert: Striking a Balance Between a “Cosmic Understanding” and “Shaky But Admissible Evidence.”

Prior to Daubert, federal courts applied a variety of standards for the admission of expert testimony: some applied the Frye “general acceptance” test, others focused primarily on an expert’s qualifications, while still others applied Rule 702.[vi] To confront the risk that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it,” [vii] the Daubert Court established a framework for determining the admissibility of expert testimony to ensure “the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission.”[viii]

First, the Daubert Court made clear that adoption of the Federal Rules of Evidence superseded the Frye test.[ix] Second, the Court declared trial courts the gatekeepers of reliability. To that end, under Federal Rule of Evidence 104(a), a trial court must determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”[x] Specifically, the trial court must make a “preliminary assessment” of whether the testimony’s underlying reasoning or methodology is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.”[xi] Importantly, the Court reiterated that the proponent of the proffered evidence must make its showing by a “preponderance of proof.”[xii]

Third, some expert testimony will satisfy the Rule 702 requirements because the Rules of Evidence were “designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.”[xiii] Consequently, “shaky but admissible [expert] evidence” can be challenged with “conventional devices”: “[v]igorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof.”[xiv]

B. 2000 Amendment to Rule 702

Post-Daubert case law ushered in the need for an amendment “to distill and codify the many strands of doctrine that started in Daubert and that were developed in later case law.”[xv] The goal of the amendment was to provide a “’more rigorous and structured approach’ to the scrutiny of expert testimony than some courts were employing.”[xvi] Essentially codifying the Daubert trilogy,[xvii] the 2000 amendment added “reliability-based requirements for expert testimony to be admissible:”[xviii]

  1. the testimony must be based on sufficient facts or data;
  2. the testimony is the product of reliable principles and methods; and
  3. the expert has reliably applied the principles and methods to the facts of the case.

A Committee Note was included to “provide substantial and detailed guidance into the meaning of Daubert and its progeny; that would instruct on how to use the Daubert factors; and, that would assist courts and litigants in determining which questions about experts would go to weight and which to admissibility.”[xix] For example, the Committee Note confirms that the principles of Rule 104(a) govern admissibility of expert testimony, and as such, the proponent has the burden of establishing the Rule 702 admissibility requirements by a preponderance of the evidence. Importantly, the “clear intent and effect” of the amendment was for the court—as gatekeeper—to determine whether all of Rule 702’s reliability factors were satisfied by a preponderance of the evidence before allowing the expert testimony.[xx]

Additionally, the Committee Note acknowledges that the trial court’s gatekeeping function is not unlimited. For instance, to meet the preponderance standard for admissibility, the proponent does not have to demonstrate that its expert’s opinions are correct, only that their opinions are reliable.[xxi] Similarly, difficult questions about weight can arise in the case of “shaky but admissible” expert testimony, and therefore, a finding of reliability for one expert does not mean that a contradictory expert’s testimony is unreliable.[xxii] Likewise, because experts can “reach different conclusions based on competing versions of the facts,” a court cannot exclude expert testimony because the court accepts one version of facts over another. [xxiii]

In short, as amended, Rule 702 requires the trial court to act as the gatekeeper by determining if, by a preponderance of the evidence, the expert testimony is based on sufficient facts or data and whether the expert reliably applied the principles and methods to the facts of the case.[xxiv] Only after the trial court finds that all reliability-based factors have been met by a preponderance of the evidence do “slight defect[s] in either of these factors become[] a question of weight. But not before.”[xxv]

III. PROBLEMS WITH THE 2000 AMENDMENT IN PRACTICE: A CALL FOR CHANGE

A. Courts Ignore, Misstate and/or Misapply Subsections (b) and (d) of Rule 702

The purpose of the Rules of Evidence is “to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[xxvi] Underlying that purpose is the goal of uniformity within the rules: “the evidence rules should be clear, and there shouldn’t be much dispute about them.”[xxvii] However, 20 years after the 2000 amendment, “[m]any courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.”[xxviii]

A law review article documenting this trend prompted the Committee in 2017 to explore, in part, “whether the Rule [702] should be amended to emphasize that questions about sufficiency of basis and application of method are questions of admissibility, to be decided by the judge under Rule 104(a).”[xxix] Ultimately concluding that a number of courts “are ignoring the requirements” of Rule 702,[xxx] the Committee framed the issue this way:

The Rule provides that the requirements of sufficient basis [Rule 702(b)] and reliable application [Rule 702(d)] must be treated as questions of admissibility, and so must be established by a preponderance of the evidence under Rule 104(a). But the cases … appear[] to be treating these admissibility requirements as questions of weight.[xxxi]

In a detailed analysis of the case law, the Committee found that a “disturbing number” of courts “routinely state the misguided notion that arguments about sufficiency of bases and reliability of application almost always to go to the weight and not the admissibility.”[xxxii] Moreover, many courts permitted experts to testify despite the proponent failing to demonstrate, by a preponderance of evidence, that there was a sufficient basis for the opinion and/or that the methodology had been reliably applied.[xxxiii]

As part of its review of Rule 702, the Committee held on October 25, 2019 a conference on best practices for managing Daubert questions with five seasoned federal judges. An excerpt from the conference transcript highlights the depth of the problem:

Why is the goal to reach uniformity? … [O]ur legal system is based, in part, on the idea that there will be percolation of issues and maybe it is okay that district courts are disagreeing about issues and that will help flesh out different ideas and ultimately allow the court system to get the right answer … it’s not clear to me that uniformity should trump the notion of the plaintiff getting the benefit of the law where they filed the case. [xxxiv]

Nevertheless, in many cases “the expert arguably satisfied the Rule 104(a) standard anyway, so the court’s cavalier treatment of Rule 702(b) and (d) appears to make no difference to the result.”[xxxv] Thus, the Committee found that “wayward courts” are not confused by the text of Rule 702(b) and (d); instead, they “simply don’t follow the rule.”[xxxvi] Therefore, the Committee concluded that a substantive change to Rule 702 might be ineffective and instead focused on whether it could be modified so that courts applied it as intended: through the lens of Rule 104(a).[xxxvii] Finally, the Committee observed that the text of Rule 702 contains no language specifically incorporating the Rule 104(a) preponderance standard, and clarifying Rule 104(a)’s application might guide courts on the admissibility of expert testimony.[xxxviii]

B. The Solution: “Tweak” Rule 702 and Add a Committee Note

The Committee posed a simple framework to address the problem: (1) “tweak the existing language” of Rule 702, and (2) incorporate a Committee Note emphasizing that the Rule 702 admissibility requirements are governed by the Rule 104(a) preponderance of the evidence standard.[xxxix] With widespread support from the defense bar, the Committee has narrowed its focus, and as of its November 13, 2020, meeting, has moved even closer to amending Rule 702. [xl] Specifically, a possible amendment would clarify “that questions of sufficiency of facts or data and reliable application of method are questions for the court, and must be proved by a preponderance of the evidence under Rule 104(a).”[xli]

Currently before the Committee are two possible amendments (including Committee Notes) emphasizing that the Rule 104(a) preponderance standard applies to the Rule 702 admissibility requirements.[xlii] One proposed draft[xliii] would add the preponderance language at the beginning and, therefore, expressly apply to all of the Rule 702 requirements, as follows:

Rule 702. Testimony by Expert Witnesses

For a witness to testify as an expert in the form of an opinion or otherwise, the court must find the following requirements to be established by a preponderance of the evidence:

(a) the witness’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;

(d) the witness has reliably applied the principles and methods to the facts of the case; and

(e) the witness is qualified as an expert by knowledge, skill, experience, training, or education.

A second version of a proposed amendment emphasizes applicability of the preponderance standard only to subsections (a) to (d):[xliv]

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 proponent demonstrates by a preponderance of the evidence that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier offact 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 the principles and methods to the facts of the case.

The Committee met on November 13, 2020, but the outcome of its deliberations is unknown at the time of publication.

IV. CONCLUSION

Although they are the gatekeepers of reliability, courts have routinely “misstate[d] and muddle[d] the admissibility standard [under Rule 104(a)], suggesting that questions of the sufficiency of the expert’s basis and the reliability of application of the expert’s method raise questions of weight that should be resolved by a jury.”[xlv] Underscoring the gravity of this problem, the Committee has devoted more than two years analyzing it and debating the solution: a possible amendment to clarify “that questions of sufficiency of facts or data and reliable application of method are questions for the court, and must be proved by a preponderance of the evidence under Rule 104(a).”

With an amendment to Rule 702 debated for over two years and differing versions considered at the Committee’s November 13, 2020, meeting, the Committee appears poised to approve an amendment. An amendment, if not at least a new Committee Note, is needed to ensure that Rule 104(a) preponderance standard applies to Rule 702’s admissibility requirements.


[i] Hon. Thomas D. Schroeder, Toward A More Apparent Approach to Considering The Admission of Expert Testimony, 95 Notre Dame L. Rev. 2039, 2042 (May 2020)(hereinafter “Schroeder”).

[ii] David E. Bernstein & Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, 87 Wm. & Mary L. Rev. 1, 1 (Oct. 2015)(hereinafter “Bernstein & Lasker”)

[iii] Memorandum from Daniel J. Capra, Reporter, Advisory Comm. on Evidence Rules, to Advisory Comm. on Evidence Rules, Forensic Evidence, Daubert and Rule 702 (April 1, 2018) at 41 in ADVISORY COMMITTEE ON EVIDENCE RULES APRIL 2018 AGENDA BOOK (2018)(hereinafter “Capra Memo., April 1, 2018”); Bernstein & Lasker, at 1.

[iv] Schroeder, at 2039.

[v] Agenda for November 13, 2020 Committee Meeting of the Advisory Committee on Evidence Rules at 1 (hereinafter “November 13, 2020 Meeting Agenda”) in ADVISORY COMMITTEE ON EVIDENCE RULES NOVEMBER 2020 AGENDA BOOK (2020)(hereinafter “November 2020 Agenda Book”).

[vi] Bernstein & Lasker, at 1-2.

[vii] Daubert, 509 U.S. at 595.

[viii] Daubert, 509 U.S. at 594-597.

[ix] Daubert, 509 U.S. at 586-587.

[x] Daubert 509 U.S. at 592-593.

[xi] Daubert, 509 U.S. at 592.

[xii] Daubert, 509 U.S. at 592 n. 10.

[xiii] Daubert, 509 U.S. at 597.

[xiv] Daubert, 509 U.S. at 596.

[xv] Capra Memo., April 1, 2018, at 42.

[xvi] Capra Memo., April 1, 2018, at 42; Bernstein & Lasker, at 6-7.

[xvii] Capra Memo., April 1, 2018, at 42.

[xviii] Fed. Rule of Evid. 702; Capra Memo., April 1, 2018, at 42.

[xix] Capra Memo., April 1, 2018, at 42 n. 5. According to the Reporter, the Committee Note has been cited by courts more times than any other Committee Note in the Evidence Rules.

[xx] Memorandum from Daniel J. Capra, Reporter, Advisory Comm. on Evidence Rules, to Advisory Comm. on Evidence Rules, Rule 702(b) and (d) – weight and admissibility questions (October 1, 2018) at 2 in ADVISORY COMMITTEE ON EVIDENCE RULES OCTOBER 2018 AGENDA BOOK (2018)(hereinafter “Capra Memo., Oct. 1, 2018”).

[xxi] Advisory Committee Note to 2000 Amendment to Rule 702.

[xxii] Advisory Committee Note to 2000 Amendment to Rule 702.

[xxiii] Advisory Committee Note to 2000 Amendment to Rule 702.

[xxiv] Advisory Committee Note to 2000 Amendment to Rule 702; Capra Memo., April 1, 2018, at 43.

[xxv] Capra Memo., April 1, 2018, at 43 (emphasis added).

[xxvi] Fed. R. Evid. 102.

[xxvii] Daniel J. Capra, Conference on Best Practices For Managing Daubert Questions, and Rule 702, 88 Fordham L. Rev. 1215, 1241 (March 2020) (hereinafter “Capra, Conference on Best Practices”); see also Hanna v. Plumer, 380 U.S. 460, 472 (1986)(“One of the shaping purposes of the Federal Rules is to bring about uniformity in the federal courts …”).

[xxviii] Bernstein & Lasker, at 1 -2.

[xxix] Memorandum from Thomas D. Schroeder, Chair, Subcommittee on Rule 702 to Advisory Comm. on Evidence Rules, Work of Subcommittee on Rule 702 (September 15, 2018) at 1 in ADVISORY COMMITTEE ON EVIDENCE RULES OCTOBER 2018 AGENDA BOOK (2018).

[xxx] Capra Memo., April 1, 2018, at 49, 52.

[xxxi] Memorandum from Daniel J. Capra, Reporter, Advisory Comm. on Evidence Rules, to Advisory Comm. on Evidence Rules, Possible Amendment to Rule 702 (October 1, 2020) at 35 in ADVISORY COMMITTEE ON EVIDENCE RULES NOVEMBER 2020 AGENDA BOOK (2020) (hereinafter “Capra Memo., October 1, 2020”).

[xxxii] Capra Memo., October 1, 2018, at 5-25 (analyzing cases); Capra Memo., October 1, 2020, at 35 (summarizing case law analysis).

[xxxiii] Capra Memo., October 1, 2020, 36.

[xxxiv] Capra, Conference on Best Practices, at 1241-42 (emphasis added).

[xxxv] Capra Memo., October 1, 2018, at 25.

[xxxvi] Capra Memo., April 1, 2018, 50.

[xxxvii] Capra Memo., April 1, 2018, 50/98; Capra Memo., October 1, 2018, at 25.

[xxxviii] Capra Memo., October 1, 2020, 37.

[xxxix] Capra Memo., April 1, 2018, 53.

[xl] November 13, 2020 Meeting Agenda, at 1; November 2020 Agenda Book, Tab 2D (collecting letters and reports from defense bar).

[xli] Capra Memo., October 1, 2020, at 1.

[xlii] Capra Memo., October 1, 2020, at 49-58.

[xliii] Capra Memo., October 1, 2020, at 49-51.

[xliv] Capra Memo., October 1, 2020, at 51-52. If adopted, this version would necessitate a Committee Note reminding courts to determine an expert’s qualifications by a preponderance of the evidence.

[xlv] Schroeder, at 2039.

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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