Press Release 10.07.21
Alert
Alert
By Mark E. Elliott, Stephanie Amaru, Rebecca M. Lee, Emily Huang
04.15.22
Introduction
Federal Rule of Evidence (FRE) 702—which governs the admissibility of expert opinion testimony in federal court—has the potential to make or break entire cases. To that end, motions under FRE 702—often called Daubert motions after the seminal 1993 U.S. Supreme Court case on admissibility of expert opinion—are commonly brought to limit or otherwise exclude expert testimony opining on the merits of a case.
Important textual changes to the Rule are expected to be reviewed by the Supreme Court in Fall 2022; the court has until May 2023 to approve the amendments. The two changes (in bold) are directed towards FRE 702(b) and FRE 702(d):
As discussed below, although the current FRE 702 is already reflective of the standard established in Supreme Court case law regarding admissibility of expert evidence, the amended Rule will have significant impacts in both civil and criminal cases in federal court involving claims to which expert evidence is central, e.g., antitrust, products liability, toxic torts, environmental litigation, and other types of litigation in federal court which involve technical issues beyond the experience of most lay persons. These impacts will be most significant in circuits where courts have diverged from the standard that the factual basis of an expert opinion is initially a matter of admissibility rather than the weight and credibility of the evidence. In practice, this means that, instead of allowing close questions of foundation and reliability to be heard by the jury, courts must vigilantly serve their proper role as gatekeeper of the evidence pursuant to FRE 104.
If approved, the amended FRE 702 will take effect on December 1, 2023.
I. Overview of FRE 702 and the Forthcoming Amendment
According to the seminal cases regarding admissibility of expert testimony, including Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), a federal judge must act as a “gatekeeper” to exclude any unreliable expert testimony, as required by FRE 104(a). Under FRE 104(a), the proponent of the testimony must show admissibility by a preponderance of the evidence, the sufficiency of which must be determined by the court.
The last amendment to FRE 702, made in 2000, revised the Rule to conform with the admissibility standard from the Daubert and Kumho line of cases and also imposed additional requirements. Specifically, the Rule requires the proponent of the expert testimony to show by a preponderance of evidence that: (1) “the expert’s scientific, technical, or other specialized knowledge will help” the factfinder “understand the evidence or 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 has reliably applied the principles and methods to the facts of the case.”
Despite Daubert and the 2000 amendment, however, federal courts have implemented widely disparate approaches to the FRE 702 admissibility standard. The impending changes to FRE 702 will promote uniformity in applying the Rule across the federal circuits and dispel any confusion regarding the admissibility standard from Daubert and its line of cases. Moreover, the amendment clarifies a judge’s gatekeeping function and FRE 104(a)’s preponderance of the evidence standard as applicable to the Rule. Indeed, the Advisory Committee Note accompanying the proposed amendment explains that clarification of FRE 702’s admissibility requirements is necessary because “many courts have held that the critical questions of the sufficiency of an expert's basis, and the application of the expert's methodology, are questions of weight and not admissibility.” The committee note further emphasizes that “[t]hese rulings are an incorrect application of Rules 702 and 104(a).” The forthcoming amendment therefore clarifies the standard embodied in Daubert and the 2000 amendment, reaffirming the appropriate burden of proof on the proponent and the court’s role as evidentiary gatekeeper.
II. Clarifying the Federal Standard Governing Admissibility of Expert Testimony
In practice, the new additions to FRE 702 would prevent courts from punting the question of admissibility of expert materials to a jury, thereby minimizing the potential that a jury is swayed by unreliable, speculative expert testimony.
First, the change to FRE 702(b) confirms that admissibility of expert testimony is not a question of fact and credibility—which are meant to go to the jury—but rather is a question of law reserved for the court to decide. This means that the court, in its gatekeeper role, may admit expert testimony only when the proponent establishes by a preponderance of the evidence that the expert’s opinion is reliable and based on “sufficient facts or data,” as opposed to unsupported speculation.
Second, the change to FRE 702(d) will ensure that judges, in making this determination of admissibility, scrutinize the foundation of the proffered expert opinion. The revised Rule would require judges to determine—before admitting the expert opinion—whether the opinion itself has sufficient foundation for consideration by the jury or whether it is incongruent with a “reliable” application of the expert’s bases and methodology. Previously, the Rule required that the expert “reliably apply” principles and methods—themselves previously concluded to be reliable—to the facts of the case. By clarifying that an “expert’s opinion [must] reflect[] a reliable application of” such principles and methods, the proposed amendment to FRE 702(d) serves to emphasize that the opinion itself must be a reliable application of the methodology. It is insufficient for the expert to utilize a method but otherwise reach an opinion that may diverge from that application.
Litigators who practice in federal courts should pay close attention to the forthcoming changes. Recent analyses suggest that a significant portion of federal courts have been imprecise in articulating the standard embodied in Daubert and its application to Rules 702 and 104(a). For example, under governing Ninth Circuit precedent, “expert testimony must be reliable to be admissible.” Hardeman v. Monsanto Co., 997 F.3d 941, 960 (9th Cir. 2021). That reliability inquiry—according to the Ninth Circuit—is “flexible and should be applied with a liberal thrust favoring admission.” Id. (Internal citations and quotation marks omitted). Thus, the Ninth Circuit’s interpretation of the current FRE 702 standard includes a presumption of admissibility. See id. at 962 (“[T]he district court’s slight deference to experts with borderline . . . opinions was proper under Daubert: The interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system … to attack shaky but admissible evidence.”) (Internal citations and quotation marks omitted).
The revisions to FRE 702 therefore constitute a clarification of existing law, made with the specific purpose of correcting misapplication by certain courts and practitioners. Indeed, public commentators have reported that, between January 1, 2015, and August 1, 2021, 569 federal cases incorporated variations of pre-2000 case law stating that the factual bases and source of expert opinions are questions of fact, the credibility of which should be weighed by the jury. The amended FRE 702 will make clear that even “very close questions” related to admissibility of expert opinions shall be determined by the court, not the jury, thereby imposing a more stringent inquiry on admissibility in all federal circuits.
If approved, the amended FRE 702 will be binding on pending actions, irrespective of their filing date, on December 1, 2023. However, the application of the amended Rule with respect to a pending proceeding is less clear. Because the amendments merely confirm the proper interpretation of the existing Rule and Supreme Court jurisprudence, courts arguably can and should apply them even before the effective date. It would be prudent for courts in circuits that have adopted a standard that is biased towards admissibility to anticipate and apply the forthcoming amendments before their effective date in light of the Advisory Committee’s clear indication that the amendments reflect existing, uniform federal law and the commentary on which they are based. Notably, however, the Rules Enabling Act, 28 U.S.C. § 2074, which provides that the Supreme Court “may fix the extent” a rule of evidence shall apply to pending proceedings, also grants a court discretion to apply the former rule where, in the court’s opinion, applying the “new” Rule “would not be feasible or would work injustice.” This statutory language therefore indicates that courts may have some leeway in deciding whether to apply the amended Rule in proceedings that were pending prior to the effective date.
III. Practical Impacts on Litigation
The amended Rule will undoubtedly impact federal litigation. For example, litigants should expect an uptick of motions challenging the admissibility of expert testimony in federal court.
Further, parties should scrutinize their cases and consider changes to their case management and expert strategy, including:
Finally, proactive identification of judges with experience deciding cases in a specific area of law will be crucial because courts will soon lose the latitude to pass their role as gatekeeper of expert testimony onto the jury.
* This article has been edited to clarify the review and approval process of the Rule.