Adam Rabinowitz | Attorney At Law Magazine
Federal Rules of Evidence 702 governs the admissibility of expert evidence. It’s intended to safeguard the expert testimony presented to the jury. The first amendments to this rule in more than two decades go into effect December 1, 2023, and could affect how courts will admit certain expert testimony.
Prior to the recent changes, Rule 702 was last amended in 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the other cases applying Daubert. This amendment addressed the requirements that expert testimony be admissible if it is: based on sufficient facts or data (702(b)), reliable principles and methods (702(c)) and relevant to the facts of the case (702(d)). The party seeking to admit expert testimony has the burden of establishing that these admissibility requirements within Rule 702 are met by a preponderance of the evidence (“more likely than not”).
On April 24, 2023, the Supreme Court of the United States approved new amendments to Rule 702, intended to clarify two main points: The first is to make clear that the proponent bears the burden of laying the proper foundation for its admissibility by a preponderance of the evidence. The second is to clarify that the expert’s opinions should demonstrate a reliable application of principles or methodology to the facts of the case.
The amended Rule 702 reads as follows
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 to the court that it is more likely than not that:
(a) The expert’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; and
(d) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Lack of uniformity in application of Rule 702
As discussed below, the genesis of these amendments mainly relates to a lack of uniformity among the courts in the application of Rule 702. A 2021 study by the Lawyers for Civil Justice researched 1,059 federal opinions in 2020 that addressed expert admissibility under Rule 702. Key findings from this study included that:
- 65% of the cases did not mention the preponderance standard.
- 61% of the federal districts have courts that are split on whether to apply the preponderance standard.
- 13% of the cases, courts used language indicating that there was a presumption of admissibility among expert testimony.
These results indicated that Rule 702 is not applied the same way throughout the country or even within the same district. This is primarily because of the inconsistent application of the preponderance standard and that some courts have a “liberal policy favoring admissibility.”
The study ultimately concluded that “the need for an amendment clarifying that the court must find Rule 702’s admissibility requirements to be established by a preponderance of the evidence prior to admitting expert evidence.”
The language approved by the Supreme Court this April was modified from the original language of the proposed amendments approved by the Advisory Committee on Evidence Rules, which initially included the phrase “preponderance of the evidence.” However, as shown above, that was changed to “more likely than not.”
Impact of Rule 702 amendments
The amendments clarify the idea that Rule 702 requires that proponents establish by a preponderance of the evidence that the expert’s opinion is reliable and relevant, not necessarily correct. As stated in the Committee Notes on Rules – 2000 Amendment, experts sometimes reach different conclusions based on competing versions of the facts, and the court can find that both are admissible, leaving the jury with the ultimate task to weigh the evidence.
The amendments simply clarify the existing Rule 702 and aim to address inconsistent applications of the rule with the intention of promoting uniformity throughout the courts nationwide. Nevertheless, counsel may see judges conducting more comprehensive considerations, as opposed to favoring admissibility when considering whether to admit expert testimony to the jury. Given this potential shift, counsel should be aware of the amended Rule 702 and the rationale for the amendments. They should also communicate these amendments to their experts and confirm that they are prepared to address each admissibility requirement prior to issuing their expert opinions.
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