All of us who regularly deal with testifying expert witnesses are familiar with Federal Rule of Evidence 702 and its state law equivalents. In its current form, the federal version provides, in relevant part:
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: (a) … (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 has reliably applied the principles and methods to the facts of the case.
This has been the form of Rule 702 since it was last amended in 2000, and there are thousands of federal court opinions interpreting and construing its language.
In May 2021, the Advisory Committee on Evidence Rules gave final approval to a proposed amendment to Rule 702. Then in May 2022, after allowing a period for public comment, the advisory committee issued its final report to the Standing Committee on Rules of Practice and Procedure. The advisory committee recommended that the proposed amended Rule 702 be confirmed and take effect on December 1, 2023.
The coming amendment to Rule 702 is either profoundly significant or entirely perfunctory. Or something in between. The first part of the rule will state that “a witness who is qualified as an expert [ ] may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that…” (new language in italics), and then it sets forth the conditions for admissibility. Subsection (d) will also change to require proof that “the expert’s opinion reflects application of the [reliable] principles and methods to the facts of the case” (same).
The advisory committee’s report also included a lengthy discussion about the perceived need and rationale for the amendment. It lamented “that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d)…are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible. These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of evidence.”
Then, in the spirit of a hundred online memes, the advisory committee told our federal courts “You’re Doing It Wrong.” The report states that in “a fair number of cases,” courts have admitted expert testimony “even though the proponent had not satisfied the Rule 702(b) and (d) requirements by a preponderance of evidence—essentially treating those questions as ones of weight rather than admissibility[.]” The advisory committe opined that such approach was contrary to U.S. Supreme Court holdings and Rule 104(a).
So far, no big deal. The advisory committee did not think an existing rule of evidence was meeting its objectives regarding the admission of expert testimony, so it recommended amending that rule to better ensure those goals. But the advisory committee’s rulemaking process and the march of federal jurisprudence found a strange intersection.
Unsurprisingly, litigants took a keen interest in the proposed amendment and the advisory committee’s comments. But perhaps less predictably, courts began to rely on those comments to inform their decisions on pending Rule 702 admissibility issues. In Sardis v. Overhead Door Corp., for example, the appellate court cited the advisory committee’s admonishments in its decision reversing the district court’s admission of expert testimony on shipping container design. And in Bishop v. Triumph Motorcycles America Ltd., the district court followed the path set by Sardis and did the same regarding expert testimony on motorcycle design and safety.
Notably, both courts relied on the advisory committee’s critiques before they were confirmed in its final report. And in the Sardis case, the advisory committee had not even issued its comments when the district court made its decision to permit the expert witness testimony, or when the appellate court heard argument on the matter. So Sardis reversed the district court based, in part, on advisory committee language that did not exist when the district court made its decision and which rationalized an amendment that might—if it were subsequently recommended and approved—go into effect 26 months later.
I recall reading something once about the wisdom of diffusing legal power. The legislature would create the laws, the executive would enforce the laws, and the judiciary would explain what those laws meant when applied to the people who had to live under them. The last part was important because, among many other reasons, our judiciary decides matters on a case-by-case basis when actual legal controversies are submitted to it.
Granted, the “separation of powers” analogy is imperfect here because in the context of the federal rules of evidence, the judiciary both interprets and enforces the “laws” (rules). Nevertheless, surely there is value in permitting our courts the space and autonomy to do what we ask them to do without muddling the issue. Indeed, it is ironic that the advisory committee would mention Rule 104(a) in support of its critiques because that rule provides that “[t]he court must decide any preliminary questions about whether a witness is qualified” and, except as to privilege, “is not bound by evidence rules” in doing so (emphasis added).
It seems odd, then, that a court would rely on advisory language seeking to explain a future change to an evidentiary rule to adjudicate a present evidentiary dispute. One might retort that the amendment is not a real change at all but is just clarification of how the current rule is supposed to be construed. This is a valid point, but it begs the question. If the amended rule 702 is really just the current rule with additional words, then the advisory committee’s comments are nothing more than it telling federal judges what it thinks Rule 702 means. If, on the other hand, the amendment is a real amendment, then criticism of how courts interpreted the pre-amendment version is superfluous.
It is true that the advisory committee includes several sitting federal district and appellate court judges (along with other federal practitioners, state court judges, law professors, and private lawyers). No doubt all of its members have informed and thoughtful views on how best to manage the admission of expert testimony. But these types of questions have always been answered by individual judges, or small groups of judges, in the context of particular cases and parties.
The “advisory” role of the advisory committee can be limited to recommendations on changes to the rules of evidence, without simultaneously informing our federal judges that they have misunderstood the existing ones. It seems the latter task should belong exclusively to the federal circuit courts and the U.S. Supreme Court.
The advisory committee says, in essence, that every Rule 702 decision admitting expert testimony without an affirmative showing of proper grounds by a preponderance of the evidence is in error. Litigants who were on the wrong side of a decision admitting expert testimony should be drafting their motions for reconsideration or revising their appellate briefs because the advisory committee says that the district court may have made a mistake. It is doubtful that the advisory committee intended its comments to prompt litigants to challenge, or courts to second-guess, past Rule 702 decisions.
And spare a thought for the befuddled district court. How would it navigate, on the one hand, binding circuit court authority regarding the admissibility of expert testimony (or any other issue) and, on the other hand, an advisory committee pronouncement that such authority was wrongly decided? I do not envy the district judge who has to write that opinion, particularly when the amendment advocated by the advisory committee has not yet even become effective.
The advisory committee’s comments were undoubtedly made in good faith and with the goal of adding clarity to the body of law governing the admission of expert testimony. But both litigants and courts were listening perhaps more closely than the advisory committee anticipated. And there is a value in preserving the line between the body that makes those rules and the real-case-and-controversy judges who apply them.
