Proposed Changes to Federal Expert Evidence Rule Are Already Having Impact

Significant revisions to the federal rule governing the admissibility of expert evidence will go into effect December 1. The evidence rule changes appear to raise the bar slightly for admission of expert evidence, requiring litigators to make a relatively stronger showing that their expert’s testimony will be reliable and helpful to the jury.

Because the upcoming changes to Rule 702 of the Federal Rules of Evidence are intended to clarify – rather than change – how trial courts should perform their gatekeeper role when expert evidence is offered into evidence, the new language is already having an effect in expert depositions and trial proceedings across the country.

In modern practice, the admissibility of expert testimony is developed primarily through the expert’s deposition and other facts established during the pretrial discovery phase of litigation. The prevailing standards for admission of expert evidence were established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and conforming revisions to Rule 702 adopted in 2000. Trial court’s approach to the admissibility of expert testimony has not been uniform, thus prompting the latest attempt at clarification.

Beginning December 1, Rule 702 will read:

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

  1.  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; 
  2.  the testimony is based on sufficient facts or data; 
  3.  the testimony is the product of reliable principles and methods; and 
  4.  the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. (Emphasis added)

Rule 702 has been revised in two significant respects, highlighted by the italicized portions of the rule above.

The first revision is the drafting committee’s introduction of the new phrase “if the proponent demonstrates to the court that it is more likely than not that.”

Drafting committee notes (Report of the Committee on Rules of Practice and Procedure, June 7, 2022) accompanying the Rule 702 revisions indicate that the committee believed that trial courts were incorrectly concluding that challenges to the reliability of proffered expert evidence raised questions of weight rather than admissibility. In other words, the drafting committee believed that these trial courts were not performing their gatekeeper role of preventing unreliable evidence from reaching the jury.

The new language “demonstrates to the court” underlines the court’s gatekeeper role when expert evidence is proffered. And the addition of the “more likely than not” burden of proof – borrowed from Rule 104(a) – explicitly reminds the trial court that the party proffering expert evidence must make a threshold showing of reliability before expert evidence can be admitted.

The second revision concerns Rule 702(d). This part of the rule currently asks the trial court to decide whether the expert has “reliably applied the principles and methods to the facts of the case.” The revised language frames the inquiry somewhat differently: it now asks whether the expert’s opinion “reflects a reliable application of the principles and methods to the facts of the case.

As the drafting committee explained:

[C]ourts have frequently misconstrued Rule 702 requirements as going only to the weight, and not the admissibility, of the expert’s testimony; those judges will admit the testimony if they think that a reasonable juror could conclude that the requirements are met. The proposed amendments to the rule emphasize that the court must determine that the reliability-based requirements for expert testimony are established by a preponderance of the evidence, and that the trial court must evaluate whether the expert’s conclusion is properly derived from the basis and methodology that the expert has employed. The latter aspect of the proposal is designed to address the problem of overstatement by experts.

Litigation experts believe that the overall impact of the Rule 702 revisions will be to make it more difficult to get expert testimony admitted in those jurisdictions that were treating reliability challenges as going merely to the weight – and not the admissibility – of expert evidence. The new language in Rule 702 makes clear that trial courts have a gatekeeper role to perform when expert testimony is proffered, and that expert evidence should not reach the jury unless the trial court first decides that the reliability of the proffered expert evidence has been established by a preponderance of the evidence.

The arguable failure of some trial courts to perform their assigned gatekeeper role regarding expert evidence, as well as the drafting committee’s response to these concerns, was discussed at length in Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).

Finally, the upcoming revisions to Rule 702 can be expected to have a trickle-down effect in state courts that have adopted the federal approach to admissibility of expert evidence. This has already occurred in Michigan, where the Michigan Supreme Court announced on October 25 that it was considering revising its evidence rules to conform to federal Rule 702. Other states are likely to follow.