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The Expert Perspective: Changes to FRE 702

Andreas Groehn and Raymond C Kolls

The Expert Perspective: Changes to FRE 702

Many of the country’s premier law firms have written instructive commentary on the changes to Federal Rule of Evidence (FRE) 702, which took effect on December 1, 2023. However, there has been little commentary from the expert witness community, which is the subject of the changes. This Practice Point comes from an experienced expert witness, Dr. Andreas Groehn, who is resident in Berkeley Research Group’s (BRG) economics and damages practice group, and Raymond Kolls, JD (nonpracticing), a co-leader of that group. As explained below, we feel the rule changes will have a salutary impact on expert witnesses and their interactions with counsel and could improve the quality of expert witness testimony and opinions.

Textual Revisions to FRE 702

First, we provide the revised text of FRE 702 (the underscored language is new):

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 has reliably appliedexpert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Notable Changes in the Rule and Notes

The points of emphasis for experts when interacting with counsel include:

  • The committee notes accompanying the textual changes contain a statement that “the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology,” should be treated as questions going to admissibility of the proffered evidence and not to the weight it should be given. The committee noted further, “[O]nce the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will only go to the weight of the evidence.”
  • While seemingly minor, the foregoing change should serve to sharpen the attention of both experts and counsel to ensure that the proposed expert evidence can meet the preponderance standard for admissibility. It is helpful clarity to know that admissibility is not a given, but at least must be more likely than not to be “help the trier of fact to understand the evidence or to determine a fact in issue,” in addition to satisfying the other requirements discussed above.
  • The committee notes also clarify that rule 702’s focus is on whether expert evidence is helpful to the trier of fact and that “[a]pplying a higher standard than helpfulness to otherwise reliable expert testimony is unnecessarily strict.” The amended rule and notes thus guide courts away from requiring that expert evidence be “appreciably helpful” to the trier of fact to be admitted or other similar heightened admissibility formulations.
  • Finally, the amended rule and notes provide that district courts retain their traditional “gatekeeping” role. The notes make clear that for admissibility purposes, a party offering expert evidence does not have to “demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct; they only have to demonstrate by a preponderance of evidence that their opinions are reliable.” Determining reliability (i.e., gatekeeping) is essential because, “just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”

Expert Evidence Pointers

  • The amendments and new additions to the committee notes provide clarification on the essential elements of expert evidence admissibility.
  • To be admitted, expert evidence must be more likely than not to be helpful to the finder of fact.
  • Expert opinion should be based on sufficient facts or data and be the product of (i.e., be based on) reliable principles and methods that are applied to the facts of the case in a consistent manner.
  • Counsel now have a sharpened set of guideposts to use with experts they retain. Counsel can use these elements to work with experts to determine whether evidence developed by the experts is sufficient for admission.
  • By demonstrating in the expert report and in their testimony that the expert’s opinions are based on sufficient facts and data, as well as reliable principles and methods, experts can support counsel in defending against Daubert motions and make it easier for the court to fulfill its gatekeeper role.
  • In light of the committee notes that “many courts” have previously made “an incorrect application of Rule[] 702” with regard to the threshold question of admissibility, application of the rule through case law will likely cause a meaningful impact on exclusion of expert evidence.
  • In this last respect, it is noteworthy that BRG experts have used data-driven analytical methods to study challenges and exclusions of intellectual property (IP) damages experts across multiple dimensions, including by type of challenge, across districts, and by judge. See “A Detailed Study of Court Decisions on Admissibility of Intellectual Property Damages Experts,” by Deepa Sundararaman and Cleve B. Tyler.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.