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    October 06, 2022 Practice Points

    Potential Changes to Federal Rule of Evidence 702 on the Horizon

    Proposed amendments to the rule, which may well take effect on December 1, 2023, would clarify the applicable standard of admissibility of expert opinion.

    By Sherilyn Pastor

    Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Proposed amendments to the rule, which may well take effect on December 1, 2023, would clarify the applicable standard of admissibility of expert opinion.

    Litigation often involves scientific, technical, or other specialized theories. Experts therefore are often necessary to assist the jury. Because expert testimony can significantly influence a jury’s decision, trial courts serve as the gatekeeper for expert opinion. Issues have arisen, however, over whether courts are uniformly undertaking review of expert testimony before it is presented. The proposed amendments to Rule 702 are intended to address this concern. They are offered to promote uniformity in application of Rule 702; clarify that expert opinions should not be presumed admissible; and (3) make clear that judges must determine the admissibility of expert testimony as a preliminary question based on the “sufficient facts or data” standard.

    The Amendments

    Parties typically seek to limit or exclude testimony by making Daubert motions, referencing the seminal 1993 U.S. Supreme Court case on admissibility of expert opinion. Rule 702 (b) and (d) may be changed to add the following bolded language:

    •  “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 has demonstrated by a preponderance of evidence that” all elements of admissibility in FRE 702(a)-(d) are present.”
    •  “[E]xpert’s opinion [must] reflect [] a reliable application of the principles and methods to the facts of the case.”

    These amendments are intended to minimize the likelihood that a jury will be persuaded by unreliable, speculative expert opinion. They confirm that expert testimony is not a question of fact and credibility for a jury. The court, as a matter of law, must consider and allow expert testimony only when the proponent establishes the evidence’s foundation is reliable and based on “sufficient facts or data,” as opposed to unsupported speculation.

    The amendments also emphasize that the opinion to be offered must be a reliable application of the methodology employed by the expert. It not enough for the expert to utilize a method but otherwise reach an opinion that would diverge from that application.

    Practice Pointers

    Even before the amendments are enacted, discussion over the need for them is likely to be accompanied by an increase in motions challenging the admissibility of expert testimony. Litigators therefore should:

    • Coordinate with their experts regarding the foundation and support for their opinions;
    • Be sure that case management orders provide sufficient time for experts to complete their review of materials and provide reports, particularly rebuttal reports;
    • Assure expert reports offer sufficient detail on the foundation for each opinion offered—bearing in mind the preponderance of evidence standard;
    • Confirm their expert’s methodology in developing each opinion aligns with (i.e., does not depart from) the opinion offered; and,
    • Anticipate likely challenges to the expert’s testimony and how they should be addressed given that courts will be closely examining matters in light of the potential Rule changes.

    At the end of the day, the amendments under consideration should not be an impediment to offering reliable testimony from experienced and qualified experts. Litigators, nonetheless, need to be mindful of the amendments and prepared to address challenges based on them.

    Sherilyn Pastor is with McCarter & English in Newark, New Jersey, and cochair of the Trial Evidence Committee.

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    Sherilyn Pastor

    Partner

    The author  is with McCarter & English in Newark, New Jersey, and a cochair of the Trial Evidence Committee.

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