Fun fact: There are 23 holidays that can be celebrated today, December 1st. Some, like Rosa Parks Day and World AIDS Day, are solemn and serious. Others are silly and fun, like National Peppermint Bark Day and National Christmas Lights Day. And then there are those that are downright strange, like Bifocals at the Monitor Liberation Day. (No, we didn’t make that up.) But for those of us who practice in the federal courts, we can add one more celebration to this esteemed list.
Today, the long-anticipated amendments to Federal Rule of Evidence 702, governing admissibility of expert opinion evidence, finally take formal effect. The amendments were unanimously approved by the Advisory Committee over two and a half years ago. Courts have been citing the proposed amendments since shortly after they were first approved. On the surface, the amendments to the text of Rule 702 itself may appear relatively modest. Indeed, at least one court has observed that the new language “clearly echoes the existing law on the issue.” Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). But there is more to these new amendments than initially meets the eye. In order to understand and effectively use the amendments, parties and litigators must understand and use the history and the Committee Note explaining the amendments.
As the Committee Note explains, a major reason for the amendment is
[T]o clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. . . [M]any 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. These rulings are an incorrect application of Rules 702 and 104(a).
This is why we are celebrating: these comments flatly reject the idea that the underlying bases and methodology for an expert’s opinion go to the weight, not the admissibility of an expert’s opinion. To be clear, under Rule 702, the bases and methodology of an expert’s opinions have always raised questions of admissibility. Now, the Committee Note reaffirms this in no uncertain terms.
Unfortunately, many courts continue to cite pre-Daubert precedent that has been obviated not only by Daubert and its progeny, but also by previous amendments to Rule 702. To combat the risk of recycling incorrect statements of law, here are a few considerations when briefing motions to exclude or limit opposing experts pursuant to Rule 702:
- Note what is new. Remind the court that Rule 702 has been amended. Make clear, using the Committee Note as quoted above, that certain existing case law is “incorrect” and, thus, abrogated by the amendment.
- Cite the burden of proof. Emphasize that the burden is on the proponent of expert testimony to establish, by a preponderance of the evidence, each of the elements of the Rule 702 analysis. Cite not only the newly added language in the first paragraph of Rule 702 itself (requiring that “the proponent demonstrate to the court that it is more likely than not that” each element has been satisfied), but also the Committee Note’s emphasis that the burden applies to each of the “three reliability-based requirements added in 2000—requirements that many courts have incorrectly determined to be governed by the more permissive Rule 104(b) standard” just as it does to Rule 702’s other requirements, such as qualification and helpfulness.
- Opinions and methodology go hand in hand. Highlight that courts must not focus solely on an expert’s methodology without regard to the opinion that the methodology yields. Rule 702(d)’s new formulation clarifies that an expert’s opinion must reflect a reliable application of the expert’s methodology to the facts of the case. The Committee Note clarifies that this amendment “emphasize[s] that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because . . . jurors may  be unable to assess the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.” (One more time in case you missed it – “Judicial gatekeeping is essential …”)
It remains to be seen how quickly courts will embrace this not-so-new but newly emphasized formulation of Rule 702. For now, we are certainly happy to add this to the list of things to celebrate today.
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