Litigators! Substantive amendments have been proposed to Federal Rule of Evidence 702. The public comment period closes February 16.

Rule 702 was last amended substantively in 2000, soon after the concluding chapter in the Daubert trilogy, Kumho Tire. Those amendments were intended to reset the Rule based on the post-Daubert experience.

Lower courts had read snippets of language in Daubert through variable lenses, influenced by their level of enthusiasm or reluctance to keep flawed expert opinions from the jury. Though Daubert mandated rigorous gatekeeping, it also included Delphic comments about the “liberal thrust” of the federal rules (compared to the “rigid’ and “austere” Frye rule they replaced) and about the ability of the adversarial process to limit the impact of “shaky but admissible” evidence. Some courts misread these comments to limit the scope and depth of their gatekeeping obligation and adopted standards consistent with this vision.

The 2000 amendments attempted to sort out the post-Daubert cacophony. The original version of Rule 702 had required only a qualified expert and testimony helpful to the trier of fact. The amendments added specific prerequisite elements of reliability: Subdivision (b) required that testimony be based on sufficient facts or data and (c)–(d) required that it be the product of reliable principles and methods reliably applied to the facts of the case.

Fairly clear, rather reasonable. So why do we need an amendment?

Because the changes did not take. As the advisory committee note explains, many courts have incorrectly applied the Rule and 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.”

Under the Rules Enabling Act, 28 U.S.C. § 2072(b), the federal rules trump any inconsistent case law. But the courts have not reappraised their prior precedent; instead, notwithstanding inconsistencies with Rule 702, they have continued to mechanically recite and apply their obsolete standards. Those citations are repeated, that repetition increases their durability, and the outdated standards become even more entrenched. This process, frustrating the intent of the Rule, is why a reset remains needed, more than two decades later.

The case law demonstrates this pattern and the scope of the problem. First, pre-2000 courts read Rule 702 as a rule of “liberal admissibility,” with exclusion disfavored and any doubts to be resolved in favor of admissibility. Some went so far as to read a “presumption” of admissibility into the Rule. E.g., Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995); Holbrook v. Lykes Brothers Steamship Co., 80 F.3d 777, 780 (3d Cir. 1996). These interpretations fly in the face of Daubert, Joiner’s rejection of any preference for admissibility (discussed here), and Weisgram v. Marley’s observation that the Rule imposes “exacting” admissibility standards. More importantly, they are thoroughly inconsistent with the proponent’s burden of proving admissibility under Rule 702. Nevertheless, courts blithely continue to cite these preferences for admissibility unabated after the 2000 amendments. E.g., Orbital Eng’g, Inc. v. Buchko, 2022 WL 44744, at *2 (W.D. Pa. Jan. 5, 2022); Manzone v. Wal-Mart Stores, Inc., 2020 WL 5411483, at *4 (E.D.N.Y. Sept. 9, 2020).

Second, armed with the faux preference for admissibility, and notwithstanding Rule 702(b), courts in every circuit habitually recite a permissive standard derived from Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988):

As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. [Citations] However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted. See Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).

Courts repeatedly cite this outdated justification or a variation of it to routinely kick questions regarding foundation to the jury — even though Rule 702 requires far more than helpfulness (which goes primarily to relevance, not reliability) and assigns sufficiency of factual basis as a preliminary question of admissibility for the court under Rule 104(a).

Third, notwithstanding Rule 702(d) and Joiner before that, some courts decline to examine how an expert has applied their methodology to reach a conclusion. Sometimes courts broadly assert the false proposition that any flaws in application of an otherwise reliable methodology go to the weight. See, e.g., Guardino v. Alutiiq Diversified Services, LLC, 457 F. Supp. 3d 158, 162 (N.D.N.Y. 2020) (relying on McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).

The common thread is the fallacious premise that the Rule favors admissibility and systematically authorizes the jury to referee the battle of the experts. But Rule 702’s very basis is that juries can be mesmerized and misled by loquacious “experts” opining on complex subject matters beyond the jury’s comprehension. Juries are often ill-equipped to recognize and reject unreliable expert testimony. That’s why we have gatekeeping rather than a free-for-all. Accordingly, under Rule 702, only after the court has found the testimony reliable should it be submitted to the jury for evaluation, assisted by cross-examination.

The proposed amendments are a modest attempt to course-correct. First, they emphasize the requirement that the proponent demonstrate each element of the Rule under Rule 104(a).

Second, eliminating any residual ambiguity, Rule 702(d) unequivocally requires demonstration that the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

Third, the draft committee note reinforces these changes and explains their need — common judicial misapplication resulting in excessive deferrals to the jury. For example, the note flatly explains, “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 questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”

In sum, the proposed amendments are intended to interrupt the cycle of misapplication and to counter the inertial tendency of courts to apply obsolete case law standards that clash with the Rule — a significant abdication of gatekeeping responsibility. They would be a reset to restore the Rule’s intent — one sorely needed and long overdue.