Changes to reinforce Federal Rule of Evidence 702 are likely coming by the end of next year.
Last year, the Advisory Committee on Evidence Rules unanimously approved a proposal to amend Rule 702. The comment period for the amendment to the federal evidence rule on expert testimony closed last month, and all signs indicate that these necessary changes, which would clearly establish the standard for admissibility of this testimony, will be approved by the Supreme Court soon and take effect Dec. 1, 2023.
The timing is right for these changes. Federal court litigation often involves scientific, technical, or other specialized theories, and experts are necessary to assist the jury. A litigant offers expert opinions under Rule 702, and the trial court should act as the gatekeeper of all expert testimony. But recent analyses demonstrate that courts are routinely abandoning this role and passing the responsibility on to the jury.
Two new changes to the text of Rule 702 seek to fix the problem. The changes will confirm what’s been true all along: the proponent of the expert testimony must show admissibility by a preponderance of the evidence, and the expert’s opinion must be reliable in light of the facts and applicable principles or methodology.
The changes amend Rule 702 so that its requirements can no longer be ignored and bring focus to the text of the rule. Judges will need to embrace Rule 702—and the role of gatekeeper.
No More Confusion on Burden
In the 1990s, Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire v. Carmichael established that all types of expert testimony present questions of admissibility for the court and that the judge is the gatekeeper.
Rule 702 was amended in 2000 in response to these (and other) cases to affirm the trial court’s role as gatekeeper and to provide three additional prerequisites (Rule 702(b)-(d)) for admissibility of expert testimony. The amended rule contained new and very different language from that of its predecessor, which was interpreted in Daubert and Kumho.
The committee notes to the 2000 amendment confirmed (consistent with Daubert, Rule 104(a), and the Supreme Court’s 1987 Bourjaily v. United States decision) that the proponent of the expert testimony has the burden of establishing these admissibility requirements by a preponderance of the evidence.
But recent analyses confirm that courts aren’t applying this standard. Lawyers for Civil Justice (LCJ), a nonprofit membership organization of corporations, law firms, and defense trial lawyer organizations, conducted a study into the standards employed for Rule 702 rulings, reviewing 1,059 decisions by federal district courts in 2020 that ruled on the admissibility of expert testimony under the rule. The study found that only 35% (373) of the opinions applied the preponderance of the evidence standard, while in 65% (686) of them, the trial judge did not even mention the preponderance standard.
A search of the past five years of Rule 702 and Daubert federal district court opinions in Bloomberg Law came up with similar results; fewer than half of them mentioned “preponderance of the evidence.”
While some may say that omitting the preponderance standard isn’t necessarily indicative of any error in outcome—or that the judge actively ignored the proper standard—the need for clarity in the rule (and in opinions) is further demonstrated by additional findings by LCJ.
In 135 decisions (13%) in 2020, the judge incorrectly indicated there’s a presumption of admissibility of expert testimony under Rule 702, and in 61 decisions (6%), the judge mentioned the preponderance of the evidence standard while also indicating that there is a presumption of admissibility. That’s remarkable, given those are conflicting standards. Together, these decisions account for almost one in five Rule 702 opinions in 2020.
The first change to expressly add “preponderance of the evidence” to Rule 702 would ensure that judges apply the correct standard in deciding admissibility and stop the perpetuation of outdated standards in caselaw.
The Weight of Nothing Is Zero
One reason given by the Advisory Committee for the need to clarify the preponderance standard in the rule is the tendency of courts to hold that questions regarding admissibility are questions of weight. Courts have improperly sent Rule 702 admissibility questions, such as the sufficiency of the factual basis, to the jury.
Rule 702(b) requires the court—as the gatekeeper—to find by a preponderance of the evidence that a challenged expert opinion is based on “sufficient facts or data” before it can be admitted. But standards expressed by courts in many circuits improperly limit a trial judge’s review of the factual bases of expert testimony, and the standards trace back to decisions that pre-date the 2000 amendment.
Several comments submitted on the new amendment identified many older decisions in conflict with Rule 702 but still routinely relied on by courts. For example, the Eighth Circuit’s 1988 Loudermill v. Dow Chemical opinion continues to be frequently cited by many circuits for the “general rule” that “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.”
But under Rule 702, this isn’t correct: The court must decide this question and other questions of admissibility. The application of this “general rule” from pre-2000 caselaw improperly bypasses the court’s gatekeeping role.
Other frequently cited pre-2000 caselaw includes similarly incorrect statements, claiming that the bases and sources of an expert’s opinion affect the weight of the opinion rather than admissibility and the soundness of the factual underpinnings are for the jury.
To be sure, there may be matters of weight even after proper application of Rule 702. Proponents don’t have to demonstrate that expert assessments are correct, only that their opinions are reliable.
But one task for a court in deciding whether an expert’s opinion is reliable is to find, by a preponderance of the evidence, that the opinion has a foundation of “sufficient facts or data,” as opposed to unsupported speculation. If there’s no foundation, there’s nothing for the jury to weigh.
The addition of clear language to the rule—that the proponent of expert testimony bears the burden of establishing admissibility—will emphasize the trial court’s role as the gatekeeper to declare expert testimony reliable and admissible before sending it to the jury to determine its weight.
Gatekeeping Applies to the Opinion
The second proposed rule change seeks to focus the trial judge on the opinion expressed by an expert.
Rule 702(d) requires a court, as the gatekeeper, to examine whether an expert has reliably applied the principles and methods required by Rule 702(c) to the facts in reaching the opinion. But courts here too have forgone a complete examination, and have concluded that the accuracy or execution of the expert’s application of facts or methodology in reaching the opinion is a jury matter.
The change to Rule 702(d) would ensure that the courts look at the bases for the foundation of a challenged expert opinion, and determine if the opinion itself will result in overstatement to the jury or is outside the bounds of what can be concluded by a reliable application of the expert’s bases and methodology.
A trial judge must also exercise gatekeeping authority with respect to the ultimate expert opinion under the proposed rule change. This means evaluating whether the expert’s conclusion is properly derived from the basis and methodology that the expert has employed.
Focus on the Rule
Rule 702 is the controlling law and the starting point for the requirements for admissibility, regardless of conflicting caselaw. If approved, the amendment would make it clear that the trial judge is the gatekeeper, and would lay out all requirements to make the determination of admissibility.
And after multiple amendments since Daubert, it’s time to call a challenge a “Rule 702 motion” and clearly place the burden on the proponent, not on the opponent.
Commenters—including LCJ—have called upon the Advisory Committee to discourage the use of the phrase “Daubert motion.” After all, Daubert isn’t the last word, and hasn’t been for some time. But importantly, the continued use of “Daubert motion” suggests to courts and litigants that they can rely on problematic pre-2000 caselaw.
Rule 702 as amended can be—and should be—the focus going forward.
Updated to identify Lawyers for Civil Justice in the ninth paragraph. An earlier version of this article was corrected to clarify that the changes will likely take effect Dec. 1, 2023.
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