Don’t say Daubert!

Federal Rules of Evidence Rule 702—formerly the Daubert standard—provides the criteria for the admissibility of expert opinions in federal court. On December 1, 2023, the Advisory Committee on Evidence Rules issued an update to Rule 702. This update did not actually change the threshold for admissible expert testimony. It simply emphasized that federal judges must focus on the expert’s opinion and ensure that the opinion arises from a reliable application of that expert’s methodology. The trial judge is the gatekeeper and must ensure that only relevant and reliable evidence is admitted in court.

The Advisory Committee’s decision to issue the update was based on a lower-court split. Prior to the December 1, 2023, clarification, federal circuit courts applied Rule 702 inconsistently. See United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (stating “As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.”) (quotation marks omitted); but see Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir. 2012) (correctly stating “As the Supreme Court explained in Daubert, the trial judge must make a determination at the outset whether these factors are satisfied by the proposed testimony. Under Rule 702, the trial judge stands as a gatekeeper to prevent irrelevant or unreliable testimony from being admitted.”) (emphasis added). In some districts, the exclusion of expert testimony was an exception to the rule, so trial judges failed to perform the required gatekeeping function. To address the issue, the Advisory Committee codified in Rule 702 the standard for admitting expert testimony. Thus, moving forward, practitioners should cite “Rule 702” instead of “Daubert.”

Generally, Rule 702 requires that expert testimony assist the trier of fact. Expert testimony must also demonstrate sufficient reliability. Under Rule 702, 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) “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 applied “the principles and methods to the facts of the case.”

Further, Rule 702 requires district courts to perform a two-step gatekeeping function to assess whether expert scientific testimony is admissible:

1. District courts must determine whether the opinion is based on scientifically valid reasoning.
2. District courts then must decide whether the underlying methodology has been properly applied to the facts. See Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013); see also C.W. v. Textron, Inc., 807 F.3d 827 (7th Cir. 2015). 

As part of this update, the Advisory Committee clarified that, “A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology.” Thus, trial courts are empowered to pass judgment on how an expert witness reaches a conclusion. This is consistent with the Supreme Court’s ruling in Gen. Elec. Co. v. Joiner. Lastly, failure to satisfy this criterion may result in the exclusion of expert testimony. However, admissibility determinations should not supplant the adversarial process; shaky expert testimony may be admissible and assailable through cross-examination.

Despite Rule 702’s clarification, practitioners should be prepared to educate judges tactfully, especially when working in federal circuits that have previously misapplied Rule 702. For example, trial teams may use a slide deck to outline the trial court’s gatekeeper function under Rule 702. Regardless, it is important that trial teams cease using “Daubert” as a catchall reference. Moving forward, Rule 702 is the only applicable law.

Tips

• Ensure you understand Rule 702 and the circuit-specific test applied in the federal jurisdiction you are working. For example, some courts may use a six-factor test, while other courts may use a five-factor test.
• Set Rule 702 alerts for the applicable federal circuit(s) that you are working in to ensure you stay abreast of any updates. Older case law may not always cite Rule 702, so include “Daubert” in any research queries.
• Avoid citing case law prior to 2000 without distinguishing it, as it may reference an outdated standard.
• If you are an associate working on a case where Rule 702 is applicable, consider drafting an internal memo outlining: (1) the Rule 702 clarification, (2) a checklist of the trial judge’s gatekeeper function, and (3) the Rule 702 test applied by the particular federal circuit.