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June 14, 2023 Feature

Proposed Amendments to Federal Rule of Evidence 702 and Their Impact on Expert Discovery

Kristen M. Bush and Kayla M. Kuhn
The Rule 702 amendments will lead to increased scrutiny of experts and result in the need for a higher caliber of expert testimony to be admissible.

The Rule 702 amendments will lead to increased scrutiny of experts and result in the need for a higher caliber of expert testimony to be admissible.

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Federal Rule of Evidence 702 governs the admissibility of expert evidence and testimony in criminal and civil trials, where experts are utilized to assist the jury in understanding scientific, technical, or otherwise specialized knowledge. Proposed amendments to Rule 702 aim to clarify the preponderance standard of admissibility of expert testimony, eliminate any ambiguity regarding the court’s role as the gatekeeper of the admissibility of expert testimony, and ensure that only testimony that meets the applicable reliability standards is presented to the jury.

The Judicial Conference Committee on Rules of Practice and Procedure approved amendments to Rule 702 of the Federal Rules of Evidence on June 7, 2022. The amendments were recommended by the Advisory Committee on Evidence Rules after a period of public comment that was met with great participation by both the plaintiffs’ and defense bar. Once approved by the Judicial Conference, the United States Supreme Court, and Congress, the amendments will go into effect on December 1, 2023.

Proposed 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:

(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] expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The expert must be qualified to testify based on their knowledge, skill, experience, training, or education. However, Rule 702 did not provide specific guidance on how the courts should evaluate the reliability, relevance, and subsequent admissibility of that evidence. The standard under Rule 702 is often referred to as the “Daubert standard” after the 1993 case Daubert v. Merrell Dow Pharmaceuticals, Inc. Rule 702 was last amended in 2000 to affirm the court’s role as the gatekeeper of admissibility through Rule 702(b)–(d). While the intent of the amendment was to clarify that the court was responsible for determining the admissibility of expert testimony, in practice the rule continued to be applied inconsistently among the courts. Some criticized that the lack of uniformity led to the admission of unreliable or irrelevant expert testimony and inconsistent decisions among judges. Some judges undertook the admissibility analysis themselves, while others incorrectly passed the responsibility to the trier of fact.

A 2021 study by the Lawyers for Civil Justice found that in the majority (61%) of federal judicial districts, the courts split over whether to apply the preponderance of the evidence standard when evaluating the admissibility of expert evidence. The study found that district splits exist in every federal appellate circuit. This study examined all federal cases decided in 2020 that addressed the admissibility of expert testimony under Rule 702.

The advisory committee began researching and discussing the possibility of an amendment to Rule 702 in approximately 2017. Through their research, the committee found that while the preponderance of the evidence standard (Rule 104(a)) applies to almost all evidentiary determinations, a specification was necessary for Rule 702 due to the number of known cases where the courts have found expert testimony admissible when the proponent did not satisfy the requirements under Rule 702(b) and (d) by a preponderance of the evidence. The advisory committee concluded that highlighting the “more likely than not” standard for this rule would eliminate the heightened level of ambiguity surrounding this evidentiary rule. Originally, the proposed amendment language included the phrase “preponderance of the evidence,” but this was met with many objections during the public comment phase. In an effort to appease while also achieving the same meaning, the advisory committee substituted the language with “more likely than not.”

The advisory committee found that some courts were incorrectly operating under the belief that the reliability requirements under 702(b) and (d) were questions of weight rather than admissibility, which in turn led to expert testimony being presumed to be admissible. This belief, which was shared by numerous courts, was a misstatement of the intent of Rule 702, and created an inequality in the standard of evidence that was allowed to be considered by the jury. The varying application of admissibility and the role of gatekeeper from judge to judge enabled some expert witnesses to overstate their conclusions without meeting the necessary reliability standards, thus resulting in verdicts based on what would otherwise be considered inadmissible evidence in another federal courtroom.

The issue of forensic experts overstating their conclusions was the catalyst for the evaluation of Rule 702 by the advisory committee, which later led to the currently proposed amendments. The proposed amendment to Rule 702(d) allows the judge to analyze the conclusions made by an expert to determine if their final opinion comes from a reliable application of reliable methodology. The new language is consistent with General Electric Co. v. Joiner, where the court determined that a trial court must consider both the expert’s methodology and their conclusion because the methodology must be not only reliable but also reliably applied.

Proponents of the Rule 702 amendments argue that they will enhance the quality of expert testimony presented in court by emphasizing the importance of relevance, reliability, and methodology in expert testimony to ensure that expert conclusions are based on sound scientific or technical principles. Critics, which in large part have been the plaintiffs’ bar, argue that the proposed amendments may make it more difficult for litigants to present expert testimony, grant too much authority to the judge, and may result in increased litigation costs due to more frequent Daubert challenges and lengthy litigation.

The intent of the advisory committee’s amendments to Rule 702 is to create uniformity throughout the federal courts to ensure that cases in all regions are being assessed in the same way to eliminate the current level of unpredictability of admissible expert testimony. In practice, once adopted, the amendments to Rule 702 will likely lead to a higher admissibility standard and a more thorough judicial examination in courts where the judges were previously allowing the jury to determine the admissibility of expert testimony. These changes will affect all aspects of expert discovery, from the selection of expert witnesses through trial preparation and examination, as it will become increasingly important for experts to have a working knowledge of all case facts and the ability to effectively communicate their opinions to the court.

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    Kristen M. Bush

    Schwartz Semerdjian Cauley & Evans LLP

    Kristen M. Bush is a partner at Schwartz Semerdjian Cauley & Evans LLP in San Diego, California, where she specializes in commercial litigation involving contract disputes, professional liability, insurance coverage, construction defect, and other business torts.

    Kayla M. Kuhn

    Schwartz Semerdjian Cauley & Evans LLP

    Kayla M. Kuhn is an associate at Schwartz Semerdjian Cauley & Evans LLP in San Diego, California, where she focuses her practice on personal injury, employment, and business litigation.