Unanimous Approval Received For Amendments To Federal Rule Of Evidence 702: Testimony Of Expert Witnesses

• Published date: 17 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Harris Beach
• Author: Ms Judi Abbott Curry, Abbie Eliasberg Fuchs, Kelly Jones Howell and Marcus Tubin

The Committee on Rules of Practice and Procedure unanimously approved several amendments on June 7, 2022, to clarify Federal Rule of Evidence 702'the federal standard for admissibility of expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). The amendments (1) clarify that the proponent's burden for admissibility is a preponderance of the evidence, and (2) emphasize the court's duty, through trial, to ensure the expert's opinions/conclusions, not just methods, are reliable. These changes are in response to findings that federal courts too often fail to apply the preponderance standard and prevent experts from overstating their conclusions. Pending approval by the Judicial Conference, the Supreme Court and Congress, the amendments will take effect on December 1, 2023.

The Rule 702 Opening Statement Amendment

If amended, the below underlined language will be added to Rule 702's opening statement:

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 the evidence that . . . .

In Daubert, the Court noted that under Rule 104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76 (1987), questions of admissibility, including expert testimony, should be established by a preponderance of proof. See Daubert, 509 U.S. at 592 n.10. But, in "a number of federal cases . . . judges did not apply the preponderance standard of admissibility to [Rule 702's] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that such issues were ones of weight for the jury." Advisory Comm. on Evid. Rules, Agenda for Committee Meeting, 17 (Apr. 30, 2021). In fact, between 2015 and 2021, nearly 300 federal decisions claimed that questions related to the sources and bases of an expert's testimony go to credibility/weight, not admissibility. See Lawyers for Civil Justice, Comment to the Advisory Committee on Evidence Rules, 2-3 (Sept. 1, 2021) (citing, e.g., Joseph v. Doe, No. 17-5051, 2021 U.S. Dist. LEXIS 106083, at *15-16 (E.D. La. June 7, 2021) ("Any questions relating to the bases and sources of his opinion affect the weight of the evidence rather than its admissibility and should be left for the finder of fact.")).

To prevent further error, this amendment clarifies that the proponent must demonstrate by a preponderance of evidence that Rule 702's...