It always gets a laugh when someone says, “Of course I’m sure, I read it on the internet.” And for good reason: It’s ridiculous to presume that whatever facts and opinions some “expert” shares online are based on accurate data and reliable information.
But it’s a lot less funny when the person sharing unsubstantiated opinions is testifying as an “expert witness” in a court of law, convincing a jury to enter a multimillion-dollar judgment on the basis of dubious statements. That’s exactly what can happen when unclear evidence standards lead to the admissibility of testimony without ensuring the witness’s statements are based upon established principles and reliable methods.
Expert testimony is required in cases involving issues of “scientific, technical or specialized knowledge” that fall outside the common experience of lay persons—a category that is growing ever larger in our high-tech society. Federal Rule of Evidence 702 sets forth a uniform standard for admission of expert testimony in order to ensure information shared with juries is reliable. Rule 702 was amended nearly two decades ago to reflect the rigorous expert evidence standards announced in the U.S. Supreme Court’s Daubert decision.
Unfortunately, the 20-year-old Rule 702 often fails to achieve its objective. Some courts have characterized Rule 702 as establishing a “presumption of admissibility” that undermines the specific tests for reliability. Other courts have deliberately decided—as a matter of policy preference, not interpretation of the rule—to be more permissive with expert testimony than other circuits. And still other courts have written that the factual basis for an expert’s opinion is a matter for the jury to sort out, not the judge.
Possible Amendments to Clarify Rule 702
Recognizing that adherence to Rule 702’s standards is less than uniform, the Advisory Committee on Evidence Rules has been studying how courts assess the admissibility of expert testimony in practice. The committee is debating the possibility of amending Rule 702 to clarify the standards for courts and parties alike.
Amending Rule 702 could solve two important problems. First, it could clarify that the proponent of expert testimony bears the burden of establishing its admissibility. This would remedy the erroneous “presumption of admissibility” that has derailed proper Rule 702 analysis in many courts.
It would also provide an opportunity for the committee to clarify the widely misunderstood statement in its Note to the 2000 rule amendment that “the rejection of expert testimony is the exception rather than the rule.” That statement, which was simply an observation about pre-2000 practice and not intended to characterize the standards for admissibility, has misled some courts.
The second problem an amendment could solve is that, too often, courts give juries the job of deciding whether an expert’s opinions have sufficient support. Rule 702 should expressly address the allocation of responsibility between the judge and the jury for deciding preliminary questions under Rules 104(a) (which states the court must decide the preliminary question about whether a witness is qualified or the evidence admissible) and 104(b) (existence of sufficient facts and data).
Those rules set forth two different tests and procedures for admissibility—a difference that is frequently unrecognized by both the bench and the bar. Confusion about these foundational requirements result in the admission of unreliable expert testimony that confuses juries, undermines civil justice and erodes confidence in the courts.
Clarifying admissibility standards could also include an explanation in a Note that “sufficient facts or data” under Rule 702(b) must reliably support the witness’ opinion, and that the application of “principles and methods to the facts of the case” under Rule 702(d) must use generally accepted techniques.
This would address, for example, an expert who has professional expertise on a particular disease and its pathology, but who should not be permitted on the basis of that background alone to opine on the cause of a particular person’s condition on the basis of risk factors.
Presuming that potential expert witnesses have adequate foundation for their testimony makes just as much sense as presuming that everything on the internet is true, but the stakes are much higher when justice is on the line. A clarifying amendment to Rule 702 would go a long way toward ensuring that insufficient and unpredictable standards won’t interfere with just outcomes in courts of law.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Michael Harrington is senior vice president and general counsel for Eli Lilly and Company. He serves on the boards of the National Center for State Courts and Leadership Council for Legal Diversity, and is a member of Lawyers for Civil Justice.