The Process, Progression, and Potential Ramifications of the Rule 702 Amendment

The plan to amend Federal Rule of Evidence 702, the rule that governs admissibility of expert witness testimony, is progressing toward fruition.

On May 6, 2022, the Judicial Conference Advisory Committee on Evidence Rules (“Advisory Committee”) approved the amendment and recommended it to the Judicial Conference Committee on Rules of Practice and Procedure (“Standing Committee”). On June 7, 2022, the Standing Committee unanimously approved the amendment for submission to the Judicial Conference of the United States, the national policy-making body for the federal courts.

If the Judicial Conference concurs with the rule modifications, it will recommend the revised rule to the U.S. Supreme Court. If the Court concurs and U.S. Congress does not enact legislation to reject, modify, or defer the rule, the Rule 702 amendment will take effect on December 1, 2023.

Impetus for the Rule 702 Modification

Committee scrutiny of Rule 702 was first inspired by a 2015 William & Mary Law Review article written by Professor David E. Bernstein and Eric G. Lasker, Esq. The authors asserted that despite the fact that Rule 702 was amended in 2000 to codify doctrines set forth in the Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals, General Electric v. Joiner, and Kumho Tire v. Carmichael, some federal court judges were not assuming their proper gatekeeping role in regard to assessment of the admissibility of expert witness testimony.

In particular, some judges were ignoring the Rule 702 instruction to not only scrutinize the principles and methods used by an expert witness but to also ensure those principles and methods were reliably applied to the facts of the case. The authors pointed to numerous federal court decisions in which judges had allowed unfounded expert testimony to be admitted before juries.

The authors claimed, “Judicial protection from unreliable expert testimony has become dependent upon the happenstance of the jurisdiction in which a case is filed, or even the particular judge the parties happen to draw.” They said that disparate standards concerning admissibility of expert testimony have resulted in “uneven administration of justice” in the federal courts.

Advisory Committee scrutiny of Rule 702 was also inspired by a 2016 report to President Obama from the President’s Council of Advisors on Science and Technology (“PCAST”). In that report, members of the scientific community expressed concerns that expert testimony touting the accuracy of forensic feature-comparison methods (i.e., methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair) was not always supported by empirical evidence. Courts were relying on longstanding precedents in which forensic feature-comparison methods had been assumed rather than established to be valid, thus enabling some expert witnesses to overstate the error rates of their conclusions.

Lead-Up to a Rule 702 Amendment Draft

Formal consideration of problems and possible solutions related to forensic expert testimony and application of Daubert began when the Advisory Committee held a symposium at Boston College Law School on October 27, 2017. For the next five years, the committee held a series of conferences on the matter of potential Rule 702 revisions and invited public input.

Advisory Committee Reporter Daniel J. Capra noted throughout the project that Rule 702 was not incorrectly worded—the problem was that “wayward courts” were not following the rule. When contemplating solutions to this issue, he remarked that a language change to Rule 702 might look something like this: “We weren’t kidding. We really mean it. Follow this rule or else.”

Given that federal courts were divergently applying Rule 702, it was clear, however, provision of more definitive instruction was necessary. The Advisory Committee was particularly concerned about admission of forensic expert testimony that overstated results, that is, testimony that offered conclusions unsupported by methodology. To address this issue, the committee considered drafting a freestanding rule, adding a subdivision (e), or adding a detailed Committee Note.

The committee also considered PCAST’s suggestion that the Judicial Conference issue a best practices manual to provide guidance to federal judges concerning the admissibility of expert testimony that is based on forensic feature-comparison methods. The committee determined that while such a manual would be helpful, its effect would be limited because it would not have the force of law.

Ultimately, committee members decided they could address the problem of overstated forensic results by clarifying judges’ gatekeeping obligations overall. Some general additional guidance concerning forensic testimony was offered in the Committee Note.

The proposed amendment follows with new material underlined in red; matter to be omitted is lined through.

Amended 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:

1. 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;
2. the testimony is based on sufficient facts or data;
3. the testimony is the product of reliable principles and methods; and
4. the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The amendment clarifies that the proponent of expert testimony is required to demonstrate to the court that it is “more like than not” that the testimony meets the admissibility requirements set forth in the rule. The Advisory Committee, in accordance with the standard required under Rule 104(a), had originally amended Rule 702 to read that the proponent had to demonstrate the rule’s sufficiency and reliability standards “by a preponderance of the evidence.” However, many members of the plaintiffs’ bar opposed that wording during the public comment period (which lasted from August 6, 2021, until February 16, 2022), fearing it would limit courts’ consideration during a Daubert hearing to only admissible evidence and would shift the factfinding role from jurors to judges.

The committee disagreed that the term “by a preponderance of the evidence” implied a court should only consider admissible evidence. Its rationale, as relayed in its May 15, 2022, report to the Standing Committee, was that the plain language of Rule 104(a) allows the court deciding admissibility to consider inadmissible evidence. Furthermore, the committee felt worries about the factfinding role shifting from jury to judge were misguided because, when it comes to making preliminary determinations about admissibility, the factfinding role has always belonged to the judge.

In an effort to assuage commentators’ concerns that “evidence” might refer to only admissible evidence, the Advisory Committee replaced the term “preponderance of the evidence” with “more likely than not,” and the amended Rule 702 Committee Note states the meaning of the terms is essentially the same.

And in order to appeal to commentators at the other end of the spectrum (largely members of the defense bar) who felt the amendment did not go far enough to stress that matters of admissibility are the purview of judges not jurors, the committee added that the proponent of testimony had to establish the testimony’s reliability “to the court.”

Finally, in order to stress that the court is responsible for determining the reliability of expert witnesses’ testimony in toto, including conclusions, the Advisory Committee revised section (d) to read “the experts’ opinion reflects a reliable application of the principles and methods to the facts of the case.” This revision safeguards against overstated conclusions by directing judges to ensure that experts’ opinions result from reliable methodologies that are reliably applied.

Effects of the Rule 702 Amendment

The Advisory Committee’s intent for the Rule 702 amendment is to establish proper and uniform admissibility standards across the federal courts so that litigation parties, regardless of the venue in which they appear, receive fair and predictable treatment. Based on the more than five hundred public comments the committee received, members of the legal community hold differing views on whether the amendment will benefit their clients.

Commentators opposed to the amendment, in addition to expressing concerns that the rule would preclude inadmissible evidence and transform judges from gatekeepers to factfinders, offered criticisms such as: the amendment places too much authority in the hands of the judge; it will diminish the role of jurors; judges will go too far and make decisions about the weight of testimony; judges will have to play scientists; litigation will become lengthy and expensive; and the number of Daubert challenges will increase.

At the Advisory Committee videoconference hearing held on January 21, 2022, personal injury attorney Michael J. Warshauer of Warshauer Law Group opposed the amendment, asserting it could, to the benefit of defendants, turn trial judges “into fences and not gatekeepers.”

Other speakers at the hearing voiced support for the new amendment. Rebecca E. Bazan, who spoke on behalf of Duane Morris LLP, said by clarifying the court’s gatekeeping function, the proposed changes will minimize jury exposure to speculative or unreliable expert testimony. Mary Massaron, for Plunkett Cooney, agreed that the new rule will protect jurors from being misled. Eric G. Lasker, attorney at Hollingsworth LLP, whose law review article was the catalyst for the proposed amendment, testified at that hearing that “the amendment now being considered will go a long way towards improving the administration of justice in the federal courts.”

Given that the amendment has received unanimous approval from both the Advisory and Standing Committees, it is likely that federal courts will start closely adhering to the revised rule even before it achieves final approval. After all, the Advisory Committee has made clear that the amendment clarifies what should have been courts’ proper interpretation of Rule 702 all along.

Therefore, attorneys, particularly those who have been advocating in federal courts that were biased toward admissibility, should ensure their expert witnesses are prepared now to lay a foundation for their testimony that meets Rule 702 amendment standards. All attorneys should become familiar with their judges’ history deciding cases in specific areas of law, and that information should inform the degree of explanation experts will need to relay in reports and testimony.

Tim Kirkman, senior director of innovation at IMS Consulting & Expert Services, believes if the amendment is approved, Daubert challenges will increase. Kirkman, who has spent sixteen years ensuring attorneys at AM Law 100 firms are aligned with effective expert witnesses, urges attorneys to be very careful to choose expert witnesses who are knowledgeable about the new rule and who are capable of relaying information simply and clearly in the courtroom. He also suggests attorneys align themselves with experts early in case development so those experts remain apprised of case facts as they evolve.