Don't Say Daubert (Say Rule 702)

DON’T SAY DAUBERT (SAY RULE 702)

The Bar’s reference to the “Daubert standard” may have caused federal trial and appellate courts to misapply Federal Rule of Evidence 702, as amended in 2000, following the Supreme Court’s opinions in Daubert, Joiner and Kumho. Data indicates courts have oFen applied outdated case law, “cherry-picked” Supreme Court dicta, and generally failed to follow the requirements of Rule 702 when assessing the admissibility of expert tesKmony; and they have oFen undermined the true purpose of Daubert (and Rule 702): the trial court’s proper exercise of its gatekeeping role to ensure the reliability of admiPed expert tesKmony. In response to these trends, the FRE Advisory CommiPee has approved amendment to Rule 702 to emphasize the trial court must find the expert evidence “more likely than not” saKsfies Rule 702’s requirements, including that the expert’s opinion “reflects a reliable applicaKon of the principles and methods to the facts of the case”. This panel will discuss the history of Rule 702, the purpose of the proposed amendments—on course to become effecKve in December 2023-- and why the defense bar should say “Rule 702” is the standard for admissibility of expert evidence.

“Don’t Say Daubert.” Re-Affirming the Court’s Gatekeeping FuncMon and The Admissibility of Reliable Expert Opinions

Imoh E. Akpan, Goldberg Segalla; Joe Babbington, Helmsing, Leach, Herlong, Newman & Rose; and Jennifer Hoffman, Carr Allison

[This ar6cle was presented at the Federa6on of Defense & Corporate Counsel 2023 Winter Mee6ng and is being reprinted with permission.]

I. Admissibility of Expert TesMmony Pre-Daubert

In Frye v. United States, the Court of Appeals for the District of Columbia considered the admissibility of expert tesKmony regarding the results of a systolic blood pressure decepKon test, a precursor to the polygraph machine. The offering party, a criminal defendant, had 1 submiPed to the test and offered the expert to explain the results of the test. In affirming the trial court’s decision denying the admissibility of the expert’s tesKmony, the Court said:

[W]hile courts will go a long way in admieng expert tesKmony deduced from a well-recognized scienKfic principle or discovery, the thing from which the deducKon is made must be sufficiently established to have gained general acceptance in the parKcular field in which it belongs.

We think the systolic blood pressure decepKon test has not yet gained such standing and scienKfic recogniKon among physiological and psychological

authoriKes as would jusKfy the courts in admieng expert tesKmony deduced from the discovery, development, and experiments thus far made.2

In 1975, the Federal Rules of Evidence were enacted into law. Rule 702, in its original form, stated:

If scienKfic, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or educaKon, may tesKfy thereto in the form of an opinion or otherwise.3

There was considerable debate among liKgants, judges, and legal scholars as to whether the rule embraced the Frye standard or established a new standard. Before the mid-1980s, the only 4 significant limitaKon on expert tesKmony was that an expert witness needed to be qualified in his or her field, “beyond the ken of the jury” and helpful to the jury’s understanding of the case.5

II. Daubert and Its Progeny

In Daubert v. Merrell Dow Pharmaceu6cals, Inc., the U.S. Supreme Court held that Rule 702 established reliability as a prerequisite for the admissibility of expert scienKfic tesKmony.6 However, the Daubert opinion contained conflicKng language, which has caused confusion on whether the admissibility standard is strict or lenient. Specifically, the Court noted “the liberal 7 thrust of the Federal Rules and their general approach of relaxing the tradiKonal barriers to opinion tesKmony” as well as emphasizing the “flexible” nature of the trial court’s inquiry into the expert’s opinions. However, the Court also said trial courts have “a gatekeeping role” to 8 “ensure that any and all scienKfic tesKmony or evidence admiPed is not only relevant, but

Pub. Law No. 93-595, 88 Stat. 1926 (1975).

See President’s Council of Advisors on Sci. & Tech., Exec. Office of the President, Forensic Science in Criminal

Courts: Ensuring ScienKfic Validity of Feature-Comparison Methods (2016) at 41, hPps:// obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf.

See David E. Bernstein & Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, 57

WILLIAM & MARY L. REV. 1, 4 (2015).

509 U.S. 579, 588 (1993).

See David E. Bernstein & Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, 57 7 WILLIAM & MARY L. REV. at 5.

Id. at 588 and 594. 8

reliable.” This includes a recogniKon that Rule 702 “requires a valid scienKfic connecKon to the 9 perKnent inquiry as a precondiKon to admissibility.”10

In General Electric Co. v. Joiner, the Supreme Court held that (1) the reliability test applies to an expert’s conclusions as well as his or her general methodology and (2) appellate courts should review all district court admissibility rulings under Daubert under the abuse of discreKon standard. In Kumho Tire Co. v. Carmichael, the Supreme Court held that the 11 reliability test applies to all expert tesKmony and is not limited to just “scienKfic” knowledge.12

III. The 2000 Amendment to Rule 702

Rule 702 was last amended in 2000. The 2000 amendment was proposed to “address the conflict in the courts about the meaning of Daubert and also . . . provide guidance for courts and liKgants as to the factors to consider in determining whether an expert’s tesKmony is reliable.” The 2000 Amendment is below: 13

Rule 702. TesMmony by Expert Witnesses

If scienKfic, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or educaKon may tesKfy in the form of an opinion or otherwise if (1) the tesKmony is based upon sufficient facts or data, (2) the tesKmony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.14

The CommiPee Notes on the 2000 amendment state in perKnent part:

Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceu 6 cals, Inc ., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). In Daubert the Court charged trial judges with the responsibility of acKng as

Id. at 589, 597. 9

Id. at 592. 10

522 U.S. 136, 146 (1997) (“But conclusions and methodology are not enKrely disKnct from one another. Trained 11 experts commonly extrapolate from exisKng data. But noKng in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to exisKng data only by the ipse dixit of the expert. A court may conclude that there is simply to great an analyKcal gap between the data and the opinion offered. That is what the District Court did here, and we hold that it did not abuse its discreKon in so doing.”).

526 U.S. 137, 147-49 (1999) 12

See May 1, 1999 Report of the Advisory CommiPee on Evidence Rules to the Standing CommiPee on Rules of 13 PracKce and Procedure 5-7.

See May 1, 1999 Report of the Advisory CommiPee on Evidence Rules to the Standing CommiPee on Rules of 14 PracKce and Procedure 43-44.

gatekeepers to exclude unreliable expert tes K mony, and the Court in Kumho clarified that this gatekeeper funcKon applies to all expert tesKmony, not just tesKmony based in science. See also Kumho, 119 S.Ct. at 1178 (ciKng the CommiPee Note to the proposed amendment to Rule 702, which had been released for public comment before the date of the Kumho decision). The amendment affirms the trial court’s role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert tesKmony. Consistently with Kumho, the Rule as amended provides that all types of expert tesKmony present quesKons of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert tesKmony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the perKnent admissibility requirements are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987).

InteresKngly, the public comments to the 2000 amendment are very similar to the comments in favor and opposed to the current proposed amendment. The Advisory 15 CommiPee noted:

The public comment on the proposed [2000] amendment was mixed. Those in favor of the proposal believed that it was important to codify Daubert principles by using general language such as that chosen in the proposed amendment. They noted that many courts, even aFer Daubert, had done liPle screen of dubious expert tesKmony. Those opposed to the proposed amendment argued that it would 1) permit trial judges to usurp the role of the jury; 2) lead to the proliferaKon of challenges to expert tesKmony; 3) allow judges to reject one of two compeKng methodologies in the same field of experKse; and 4) result in the wholesale reject of experience-based expert tesKmony.16

IV. The Confusion among the Courts – Post 2000

1. Symposium at Boston College Law School

In 2009, the NaKonal Research Council’s CommiPee on IdenKfying the Needs of the Forensic Science Community quesKoned whether the courts were properly analyzing whether forensic evidence “is sufficiently reliable to merit a fact finder’s reliance on the truth that it purports to support.” In a published report, the CommiPee concluded that “Daubert and its 17 progeny have engendered confusion and controversy” with respect to the admission of forensic

See infra, SecKon V. 15

See May 1, 1999 Report of the Advisory CommiPee on Evidence Rules to the Standing CommiPee on Rules of 16 PracKce and Procedure 5-7.

See Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009), p. 9, 17 hPps://www.ojp.gov/pdffiles1/nij/grants/228091.pdf

science evidence in liKgaKon. The Report notes “judicial disposiKons of Daubert-type 18 quesKons . . . have been criKcized by some lawyers and scholars who thought that the Supreme Court’s decision would be applied more rigorously” and “[f]ederal courts have not with any consistency or clarity imposed standards ensuring the applicaKon of scienKfically valid reasoning and reliable methodology in [ ] cases involving Daubert quesKons.”19

Similarly, in 2015, President’s Council of Advisors on Science and Technology (“PCAST”) found that courts were relying on past precedent when evaluaKng the validity of forensic feature-comparison methods (i.e., methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear and hair). In its Report, PCAST said “our scienKfic review found that most forensic feature-comparison methods have historically been assumed rather than established to be foundaKonally valid”, which became problemaKc when “it became clear in recent years . . . that there [were] fundamental problems with the reliability of some of these methods.” When deciding the admissibility of expert tesKmony, PCAST recommended federal 20 judges (1) take into account the appropriate scienKfic criteria – “foundaKonal validity” and “validity as applied” and (2) “ensure that tesKmony about the accuracy of the method and the probaKve value of proposed idenKficaKons is scienKfically valid in that it is limited to what the empirical evidence supports.”21

In response to the PCAST and NaKonal Research Council’s reports, the Judicial Conference Advisory CommiPee on Evidence began formal consideraKon and review of Rule 702. On October 17, 2017, the Advisory CommiPee held a symposium led by Advisory 22 CommiPee Reporter, Daniel J. Capra. Among many observaKons from the CommiPee, Dr. Eric Lander, a PCAST co-chair, noted, “Rule 702 as applied by the courts is not working to exclude unreliable feature-comparison tesKmony.” Another panelist, Dr. IKel Dror said, “Maybe the 23 Rule [702] the way it is, is fine. It’s misapplied, so we need to make sure it is applied correctly.”

In 2021, the Lawyers for Civil JusKce examined all federal cases decided in 2020 addressing the admissibility of expert tesKmony under Rule 702. The research revealed the 24 following: Id. at 11.

See President’s Council of Advisors on Sci. & Tech., Exec. Office of the President, Forensic Science in Criminal 20 Courts: Ensuring ScienKfic Validity of Feature-Comparison Methods (2016) at 143.

See Ensuring ScienKfic Validity of Feature-Comparison Methods at 145. 21

See Colleen Cochran, The Process, Progression, and PotenKal RamificaKons of the Rule 702 Amendment, hPps:// 22 businesslawtoday.org/2022/09/rule-702-amendment-process-progression-potenKal-ramificaKons/; see also Symposium on Forensic Expert TesKmony, Daubert, and Rule 702, 86 Fordham L. Rev. 1464, 1465 (2018)

86 Fordham L. Rev. at 1467. 23

See Kateland R. Jackson & Andrew Trask, Federal Rule of Evidence 702: A One-Year Review and Study of 24 Decisions in 2020 (September 30, 2021).

• 1,059 federal opinions in 2020 addressed expert admissibility under Rule 702

o 35% (373) menKon that the proponent bears the burden of providing admissibility by a preponderance of the evidence.

o 65% (686) do not menKon the proponent’s burden of proof or preponderance standard.

o 13% (135) use language indicaKng a presumpKon of admissibility (e.g., Rule 702 has a “liberal thrust” favoring admission).

o 6% (61) required a showing of admissibility by a preponderance of the evidence and stated a presumpKon favoring admissibility (“liberal thrust” standard).

The Lawyers of Civil JusKce concluded “[t]he evidence demonstrates the need for an amendment clarifying that the court must find Rule 702’s admissibility requirements to be established by a preponderance prior to admieng expert evidence. This change would improve pracKce by reducing confusion and inconsistency in the federal courts.”25

V. The Advisory CommiXee’s SoluMon and Public Comments

As noted above, the Advisory CommiPee began researching a possible amendment to Rule 702 in 2017. A SubcommiPee on Rule 702 was appointed to consider the treatment of 26 forensic experts and the weight and admissibility quesKons around Rule 702’s reliability requirement. The SubcommiPee expressed interest in considering an amendment to Rule 702 27 focusing on “the problem of overstaKng results”, i.e. where an expert claims her opinion has a “zero error rate” when the conclusion is not supported by the expert’s methodology. The full 28 CommiPee ulKmately rejected a proposal to add an “overstatement” provision to Rule 702, out of concern that this issue was already covered by Rule 702 (d).29

UlKmately, the CommiPee unanimously approved a proposal that would amend Rule 702 (d) to require the court to find that “the expert’s opinion reflects a reliable applicaKon of principles and methods to the facts of the case.”30

The Advisory CommiPee was iniKally reluctant to propose a change to the text of Rule 702, addressing the mistakes made by courts regarding the proper standard of admissibility.31

See A One-Year Review and Study of Decisions in 2020 at p. 2.

See Report for the CommiPee on Rules of PracKce and Procedure (June 7, 2022) at 870.

UlKmately, the CommiPee unanimously agreed that explicitly weaving the Rule 104(a) standard into the text of Rule 702 would address the important conflict among the courts. The language 32 of the proposed amendment, which was released for public comment, required that “the proponent has demonstrated by a preponderance of the evidence” that the reliability requirements of Rule 702 have been met. The CommiPee Note for the proposed amendment 33 also made clear that there was no intent to raise any negaKve inference regarding the applicability of the Rule 104(a) standard of proof to other rules --- emphasizing that incorporaKng the preponderance standard into the text of Rule 702 was made necessary by the decisions that have failed to apply it to the reliability requirements of Rule 702.34

The proposal was released for public comment in August 2021. The Advisory CommiPee received over 500 comments from pracKKoners regarding the proposed amendment to Rule 702. A snapshot of some of the comments are below.

1. The Defense Bar

a. Lawyers for Civil JusKce

Below is the Advisory CommiPee’s summary of the public comments from the Lawyers for Civil JusKce.

Lawyers for Civil JusKce [] supports the proposed amendment to Rule 702, while advocaKng some adjustments. It states the amendment is needed because there is “widespread misunderstanding of Rule 702’s requirements.” LCJ also concludes that the proposed amendment helpfully addresses the problem of experts overstaKng their conclusions, and that the perKnent text and commiPee note “will be helpful to courts and counsel alike.” LCJ suggests that the amendment “would be even more effecKve if it expressly stated that the court must determine admissibility – a clarificaKon that would directly address the caselaw’s core confusion about the Rule’s allocaKon of responsibility between the judge and the jury.”

Lawyers for Civil JusKce submiPed a study of reported case law applying Rule 702 in 2020. The study concludes that the “inconsistent applicaKon of the preponderance standard in 2020 cases demonstrates that Rule 702 is not applied in the same way throughout the country, or even within the same federal circuit or judicial district. Further, the number of courts that acknowledge the preponderance standard but sKll adopt a ‘liberal thrust’ favoring admissibility may reflect larger confusion among federal courts about how to apply Rule 702.”

b. FDCC

On November 19, 2021, the FDCC wrote in support of the Proposed Amendment to Federal Rule of Evidence 702. The FDCC’s comment noted in part:

[I]n the 20 years that have passed since the 2000 amendment affirming the gatekeeping role, “a fair number of courts have treated the Rule 702 reliability requirements of sufficient basis and reliable applicaKon as quesKons of weight and admissibility.”

The proposed amendment in Rule 702(d) is necessary to ensure that District Courts enforce their gatekeeping funcKon.

It is also necessary to ensure that District Court’s properly apply the burden of proof for the admissibility of expert evidence. While FRE 702 is arguably silent, FRE 104(a) places the burden on the proponent of the evidence (by a preponderance). Some District Courts have stated that there is a presumpKon of admissibility, arguably altering the burden of proof. It is imperaKve then that this CommiPee clearly state the burden of proof within Rule 702 so that District Courts properly and consistently apply the standard.

Further, in maPers in which the specialized knowledge and experience of an expert are sought to be uKlized in order to assist the fact finder in bePer understanding the generally accepted customs, usages, pracKces or other circumstances at issue, it is of utmost importance that the proffered tesKmony be based, as the Rule intends, upon sufficient facts or data, that it be the product of reliable principles and methods, and reflect a reliable applicaKon of those principles and methods to the facts of the case. The CommiPee’s proposed amendments are a necessary response to common misconcepKons held by some courts regarding the admissibility standards applicable to expert opinions and are an important step to ensure that verdicts do not rely on unproven science or invalid data.

c. DRI

The DRI Center for Law and Policy supports the proposed amendment to Rule 702. The Center “applauds and supports this CommiPee’s effort to improve the rule (the “FRE 702 Amendment”) to achieve a necessary uniformity of applicaKon.” The Center states the proposed amendment “does so not by changing the intent or purpose of the rule.” It notes that “the amendment reminds the judge of the responsibility to make sure that the proponent of the expert’s opinion tesKmony has saKsfied the court that not only is the tesKmony the product of reliable principles and methods, but also that the expert’s opinion reflects a reliable applicaKon of those principles and methods to the facts of the case.” The Center concludes that these clarificaKons are “necessary because, with some regularity standard when ruling on proffered FRE 702 evidence.”

The Center states that the Rule could be improved by specifying that expert evidence is not admissible unless the court finds that the reliability requirements have been met by a preponderance of the evidence.

2. The PlainKff ’s Bar

a. The American AssociaKon for JusKce

The American AssociaKon for JusKce “is concerned that the changes sought will not be recognized by the judges who need a correcKon, but that the proposed amendment may unnecessarily limit the admissibility of plainKffs’ experts.” It asserts that including the preponderance of the evidence standard “has the unintended potenKal for causing the court to believe that the court, and not the jury, must weigh and decide the correctness of the scienKfic evidence, which will intrude and diminish the role of the jury.” The AssociaKon recommends that a reference to the court determining the issue not be brought back into the rule, and that the phrase “preponderance of the evidence” should be changed to “preponderance of the informaKon.” As to the change to Rule 702 (d), the AssociaKon does not disagree about its overall purpose but declares “it is not evidence that courts or parKes will find the direcKon provided in the rule text helpful.”

b. APorney InformaKon Exchange Group

APorney InformaKon Exchange Group contends that the current rule has worked well, and that the amendment would change what it asserts to be the exisKng law that “Rule 702 represents a liberal standard of admissibility for expert opinions.”

c. Other quotes from plainKff ’s lawyers

[Counsel] opposed the proposed amendment, expressing concern that it “will create confusion and inconsistency, undermine judicial discreKon and demean the rule of juries.” She argues that the changes “encourage judges to become fact finders when determining the admission of expert tesKmony while having the appropriately more limited tradiKonal role of being just the judge, not the jury as to all other evidenKary rulings.”

[Counsel] contends that phrase “the preponderance of the evidence” threatens the right to a jury trial, and recommends that it be changed to “the preponderance of available informaKon.”

[Counsel] states that the amendment is “not needed” because “Judges already make it too hard for evidence to be admiPed.”

[Counsel] contends that the proposed amendment to Rule 702 “would move the funcKon for weighing the evidence from the jury to the bench.”

[Counsel] states that adding the preponderance of the evidence standard “will imply that the court should weight the expert’s tesKmony – but there is nothing concrete to be weight against.”

The Advisory CommiPee did not agree that the preponderance of the evidence standard would limit trial courts to only consider admissible evidence, nor did it believe that the use of the term preponderance of the evidence would shiF the fact-finding role from the jury to the judge.35 However, the Advisory CommiPee decided that replacing the term “preponderance of the evidence” with a statement that the proponent must establish that it is “more likely than not” that reliability requirements were met, would achieve the same purpose while not raising the concerns menKoned by public commentators. The public comments also persuaded the 36 Advisory CommiPee “to clarify that it is the court and not the jury that must decide whether it is more likely than not that the reliability requirements of the rule have been met.” The 37 Advisory CommiPee agreed with a change that explicitly required the proponent establish “to the court” that it is more likely than not that the reliability requirements have been met. Lastly, the CommiPee Note clarified that the amended Rule 702 does not require the court to make reliability findings in the absence of a proper objecKon.38

VI. The Proposed 2022 Amendment & CommiXee Note

The Judicial Conference Advisory CommiPee on Evidence Rules and the Judicial Conference CommiPee on Rules of PracKce and Procedure approved the following amendment to Rule 702:

Rule 702. TesMmony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or educaKon may tesKfy 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 scienKfic, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the tesKmony is based on sufficient facts or data;

(c) the tesKmony is the product of reliable principles and methods; and See CommiPee on Rules of PracKce and Procedure (June 7, 2022) at 872.

(d) the expert’s opinion reflects a reliable applicaKon of the principles and methods to the facts of the case.

CommiXee Note

Rule 702 has been amended in two respects:

(1) First, the rule has been amended to clarify and emphasize that expert tesKmony may not be admiPed unless the proponent demonstrates to the court that it is more likely than not that the proffered tesKmony meets the admissibility requirements set forth in the rule. See Rule 104(a). This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules. See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that before admieng evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due considera K on.”); Huddleston v. United States , 485 U.S. 681, 687 (1988) (“preliminary factual findings under Rule 104(a) are subject to the preponderance-ofthe-evidence standard”). But many courts have held that the criKcal quesKons of the sufficiency of an expert’s basis, and the applicaKon of the expert’s methodology, are quesKons of weight and not admissibility. These rulings are an incorrect applicaKon of Rules 702 and 104(a).

There is no intent to raise any negaKve inference regarding the applicability of the Rule 104(a) standard of proof for other rules. The Commi P ee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly

the reliability requirements of that rule. Nor does the rule require that the court make a finding of reliability in the absence of objecKon.

The amendment clari fi es that the preponderance standard applies to 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. But it remains the case that other admissibility requirements in the rule (such as that the expert must be qualified and the expert’s tesKmony must help the trier of fact) are governed by the Rule 104(a) standard as well.

Some challenges to expert tesKmony will raise ma P ers of weight rather than admissibility even under the Rule 104(a) standard. For example, if the court finds it more likely than not that an expert has a sufficient basis to support an opinion, the fact that the expert has not read every single study that exists may raise a quesKon of weight and not admissibility. But this does not mean, as certain courts have held, that arguments about the sufficiency of an expert’s basis always go to weight and not admissibility. Rather it means that once the court has found it more likely than not that the admissibility requirement has been met, any aPack by the opponent will go only to the weight of the evidence.

It will oFen occur that experts come to different conclusions based on contested sets of facts. Where that is so, the Rule 104(a) standard does not necessarily

require exclusion of either side’s experts. Rather, by deciding the disputed facts, the jury can decide which side’s experts to credit. “[P]roponents ‘do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable. . . . The evidenKary requirement of reliability is lower than the merits standard of correctness.’” CommiPee Note to the 2000 amendment to Rule 702, quoKng In re Paoli R.R. Yard PCB Li6g., 35 F.3d 717, 744 (3d Cir. 1994).

Rule 702 requires that the expert’s knowledge “help” the trier of fact to understand the evidence or to determine a fact in issue. Unfortunately, some courts have required the expert’s tesKmony to “appreciably help” the trier of fact. Applying a higher standard than helpfulness to otherwise reliable expert tesK mony is unnecessarily strict.

(2) Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable applicaKon of the expert’s basis and methodology. Judicial gatekeeping is essenKal because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scienKfic and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.

The amendment is especially perKnent to the tesKmony of forensic experts in both criminal and civil cases. Forensic experts should avoid asserKons of absolute or one hundred percent certainty—or to a reasonable degree of scienKfic certainty—if the methodology is subjecKve and thus potenKally subject to error. In deciding whether to admit forensic expert tesKmony, the judge should (where possible) receive an esKmate of the known or potenKal rate of error of the methodology employed, based (where appropriate) on studies that reflect how oFen the method produces accurate results. Expert opinion tesKmony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable applicaKon of the principles and methods. This amendment does not, however, bar tesKmony that comports with substanKve law requiring opinions to a parKcular degree of certainty.

Nothing in the amendment imposes any new, speci fi c procedures. Rather, the amendment is simply intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702. Similarly, nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support. The Rule 104(a) standard does not require perfecKon. On the other hand, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.

. The proposed amendment is now before the Judicial Conference of the United States. If the Judicial Conference approves the amendment, it will be submiPed to the U.S. Supreme Court. If the Supreme Court approves and the U.S. Congress does not enact legislaKon to reject,

modify, or defer the rule, the proposed amendment to Rule 702 will take effect on December 1, 2023.

VII. Conclusion

If the proposed amendment is approved by Congress, it will have a profound impact on federal liKgaKon and those states, whose expert tesKmony rules are based on Rule 702. 39 LiKgants should expect an increase of moKons challenging the admissibility of expert tesKmony, which will require liKgants to pay closer aPenKon to their expert strategy at earlier stages in the liKgaKon.40

From the defense perspecKve, Daubert moKons should be no more. MoKons challenging the admissibility of expert tesKmony should be based on Rule 702 and emphasize the Court’s “gatekeeping” funcKon and the requirement that the trial court determine the reliability of expert evidence by the preponderance of evidence standard in Rule 104(a). Defense liKgants should anKcipate plainKffs will argue that these challenges are really a jury issue that goes to the “weight” of the evidence. Defense liKgants should consider including a discussion of the proposed amendment’s purpose in their next “Rule 702” moKon.

See Stephanie Amaru, Mark EllioP, Emily Huang & Rebecca Lee, Proposed Amended FRE 702 Confirms the Court 39 as Gatekeeper of Expert Tes6mony. hPps://www.jdsupra.com/legalnews/proposed-amended-fre-702-confirmscourt-2742255/

See supra, n. 18.