The Rules of Practice and Procedure Committee unanimously approved several amendments on June 7, 2022 to clarify Federal Rule of Evidence 702, the federal standard for admissibility of expert testimony. See Daubert versus Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). The amendments (1) clarify that the onus of admissibility on the proponent is a preponderance of the evidence, and (2) emphasize the duty of the court, through the trial, to ensure that the opinions/findings of the expert, and not just the methods, are reliable. These changes follow findings that federal courts too often fail to apply the paramountcy standard and prevent experts from exaggerating their conclusions. Pending approval by the Judicial Conference, Supreme Court, and Congress, the amendments will become effective December 1, 2023.
The modification of the opening statement of rule 702
If changed, the underlined text below will be added to the opening statement of Rule 702:
A witness who is qualified as an expert by knowledge, skill, experience, training or education may give evidence in the form of an opinion or otherwise if the sponsor has demonstrated by a preponderance of the evidence that . . . .
In Daubertthe Court noted that under section 104(a) and Bourjaily c. United States, 483 US 171, 175-76 (1987), questions of admissibility, including expert testimony, must be established by a preponderance of the evidence. See Daubert, 509 US to 592 n.10. But in “a number of federal cases[lesjugesn’ontpasappliquélanormederecevabilitédelaprépondérance[Rule 702’s] requirements of sufficiency of basis and reliable application of principles and methods, believing instead that these matters carried weight for the jury. Com. on Evid. Rules, Committee Meeting Agenda, 17 (April 30, 2021). In fact, between 2015 and 2021, nearly 300 federal rulings have affirmed that issues related to the sources and basis of expert testimony are matters of credibility/weight, not admissibility. See Lawyers for Civil Justice, Comment to the Rules of Evidence Advisory Committee2-3 (September 1, 2021) (citing, for example, Joseph v. Doe, no. 17-5051, 2021 US Dist. LEXIS 106083, at *15-16 (ED La. June 7, 2021) (“Any questions relating to the basis and sources of his opinion affect the weight of the evidence rather than its admissibility and must be left to the trier of fact.”) .
To avoid further errors, this amendment clarifies that the proponent must demonstrate by a preponderance of evidence that the reliability requirements of Rule 702 are met. Whether the expert relied on sufficient facts or data and reliably applied sound methods is a matter of admissibility, not credibility/weight of evidence. See Comm. advisory. on Evid. Rules, Report of the Rules of Evidence Advisory Committee, 6 (May 15, 2022). It is important to note that proponents “do not have to demonstrate to the judge by a preponderance of evidence that their experts’ assessments are correct, they only need to demonstrate by a preponderance of evidence that their opinions are reliable. . . .” In D Paoli RR Court PCB Litigation., 35 F.3d 717, 744 (3d Cir. 1994) (emphasis in original).
Further, by noting that the sponsor must prove reliability by a preponderance of the evidence, the amendment demystifies the “presumption of admissibility” for expert testimony (see Report of the Advisory Committee on Rules of Evidence, 6 ( May 15, 2022)) that some courts erroneously assert. See, for example, Cates v. Trs. from Columbia University., 16 Civil. 6524, 2020 US Dist. LEXIS 55409, at *18 (SDNY Mar 30, 2020) (“There is a presumption that expert testimony is admissible…” (quoting Borawick v. Shay68 F.3d 597, 610 (2d Cir. 1995)); Price v General Motors, LLC, no. CIV-17-156-R, 2018 US Dist. LEXIS 239984, at *2 (WD Okla. Oct. 3, 2018) (“[T]there is a presumption under the Rules that expert evidence is admissible. (quotation marks omitted)).
The Amendment to Rule 702(d)
The proposed amendment to Rule 702(d) will focus the court’s attention on the expert’s opinion, not just his application of the principles and methods:
d) the expert reliably applied the expert’s opinion reflects a reliable application of principles and methods to the facts of the case.
Nor is it a new law. See General Electric Co., c. Carpenter522 US 136, 146 (1997) (“[C]Conclusions and methodology are not entirely distinct from each other. . . nothing in it either Daubert or federal rules of evidence require a district court to admit opinion evidence related to existing data only by the ipse says of the expert. “). But, the change will help prevent experts from exaggerating their opinions, i.e. going beyond the limits of what can be concluded from a reliable application of the expert’s basis and methodology. . Just as jurors may lack the special knowledge to assess the reliability of an expert’s methods, they may be unable to assess whether an expert’s conclusions reasonably follow.
Moreover, the change from “has reliably applied” (past) to “the opinion reflects a reliable application” (current) emphasizes that the control function continues even after an initial finding of admissibility. See id. at 1039, (attach Advisory Comm. on Rules of Evidence, draft minutes of meeting of May 6, 2022, 8 (“The rapporteur explained that this was the purpose of the amendment to rule 702 (d) – to emphasize the trial judge’s continuing obligation to prevent an admitted expert from testifying to unsubstantiated overstatements such as a zero error rate.” (quotation marks omitted))).
Impact and recommendation
Although the amendments may not become effective until December 1, 2023, they have already been cited to correct a misapplication of Rule 702. In Sardis versus Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021), the Fourth Circuit cited proposed amendments and cited the findings of the advisory panel before setting aside an order denying a defendant’s motion to exclude expert testimony. See id. at 283-84, 296-300 (finding that the trial court abused its discretion and made a reversible error of law in abdicating its access control function under Rule 702). The court acknowledged that the lower courts’ failure to apply the proponent’s paramountcy standard is a “pervasive problem”, in violation of Rule 702 and Daubert, which the proposed amendments will address. See id. at 284 (citing Advisory Comm. on Rules of Evidence, Committee Meeting Agenda, 18 (April 30, 2021) (quotation marks omitted)).
To avoid the misapplications of Rule 702 that have caused these amendments, parties planning expert challenges should emphasize the following in their arguments:
- there is no presumption of admissibility for expert testimony;
- the promoter must satisfy the requirements of reliability by a preponderance of the evidence under Rule 104(a);
- the sufficiency of an expert’s factual basis and the reliability of his methods are questions of admissibility, not credibility; and
- the expert’s opinions/conclusions must remain within the limits of a reliable application of his methods.
As observed by the Advisory Committee, the above points are part of existing law but are often lost in trial courts, leading to erroneous results that can have costly effects in complex litigation. By emphasizing these long-recognized aspects of Rule 702, parties will gain credibility, minimize incorrect decisions, and maintain strong appeal arguments.