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 Data indicates courts have o en applied outdated case law, “cherry-picked” Supreme Court dicta, and generally failed to follow the requirements of Rule 702 when assessing the admissibility of expert tes mony; and they have o en undermined the true purpose of Daubert (and Rule 702): the trial court’s proper exercise of its gatekeeping role to ensure the reliability of admi ed expert tes mony. In response to these trends, the FRE Advisory Commi ee has approved amendment to Rule 702 to emphasize the trial court must nd the expert evidence “more likely than not” sa s es Rule 702’s requirements, including that the expert’s opinion “re ects a reliable applica on 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 e ec ve 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-A rming the Court’s Gatekeeping Func on and The Admissibility of Reliable Expert Opinions Imoh E. Akpan, Goldberg Segalla; Joe Babbington, Helmsing, Leach, Herlong, Newman & Rose; and Jennifer Ho man, Carr Allison [This ar cle was presented at the Federa on of Defense & Corporate Counsel 2023 Winter Mee ng and is being reprinted with permission.]

I.

Admissibility of Expert Tes mony Pre-Daubert

In Frye v. United States, the Court of Appeals for the District of Columbia considered the admissibility of expert tes mony regarding the results of a systolic blood pressure decep on test, a precursor to the polygraph machine.1 The o ering party, a criminal defendant, had submi ed to the test and o ered the expert to explain the results of the test. In a rming the trial court’s decision denying the admissibility of the expert’s tes mony, the Court said: [W]hile courts will go a long way in admi ng expert tes mony deduced from a well-recognized scien c principle or discovery, the thing from which the deduc on is made must be su ciently established to have gained general acceptance in the par cular eld in which it belongs.

We think the systolic blood pressure decep on test has not yet gained such standing and scien c recogni on among physiological and psychological

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1 293 F. 1013 (D.C. Cir. 2013).

authori es as would jus fy the courts in admi ng expert tes mony 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 scien c, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness quali ed as an expert by knowledge, skill, experience, training, or educa on, may tes fy thereto in the form of an opinion or otherwise.3 There was considerable debate among li gants, judges, and legal scholars as to whether the rule embraced the Frye standard or established a new standard.4 Before the mid-1980s, the only signi cant limita on on expert tes mony was that an expert witness needed to be quali ed in his or her eld, “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 Pharmaceu cals, Inc., the U.S. Supreme Court held that Rule 702 established reliability as a prerequisite for the admissibility of expert scien c tes mony.6 However, the Daubert opinion contained con ic ng language, which has caused confusion on whether the admissibility standard is strict or lenient.7 Speci cally, the Court noted “the liberal thrust of the Federal Rules and their general approach of relaxing the tradi onal barriers to opinion tes mony” as well as emphasizing the “ exible” nature of the trial court’s inquiry into the expert’s opinions.8 However, the Court also said trial courts have “a gatekeeping role” to “ensure that any and all scien c tes mony or evidence admi ed is not only relevant, but

2 Id. at 1014.

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

4 See President’s Council of Advisors on Sci. & Tech., Exec. O

ce of the President, Forensic Science in Criminal Courts: Ensuring Scien c Validity of Feature-Comparison Methods (2016) at 41, h ps:// obamawhitehouse.archives.gov/sites/default/ les/microsites/ostp/PCAST/pcast_forensic_science_report_ nal.pdf.

5 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).

6 509 U.S. 579, 588 (1993).

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

WILLIAM & MARY L. REV. at 5.

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8 Id. at 588 and 594.

reliable.”9 This includes a recogni on that Rule 702 “requires a valid scien per nent inquiry as a precondi on to admissibility.”10

c connec on to the

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 discre on standard.11 In Kumho Tire Co. v. Carmichael, the Supreme Court held that the reliability test applies to all expert tes mony and is not limited to just “scien c” knowledge.12 III.

The 2000 Amendment to Rule 702

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

Tes mony by Expert Witnesses

If scien c, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness quali ed as an expert by knowledge, skill, experience, training, or educa on may tes fy in the form of an opinion or otherwise if (1) the tes mony is based upon su cient facts or data, (2) the tes mony 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 Commi ee Notes on the 2000 amendment state in per nent part: Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceu 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 ac ng as 9 Id. at 589, 597.

10 Id. at 592.

11 522 U.S. 136, 146 (1997) (“But conclusions and methodology are not en rely dis nct from one another. Trained

experts commonly extrapolate from exis ng data. But no ng in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to exis ng data only by the ipse dixit of the expert. A court may conclude that there is simply to great an analy cal gap between the data and the opinion o ered. That is what the District Court did here, and we hold that it did not abuse its discre on in so doing.”).

12 526 U.S. 137, 147-49 (1999) 13 See May 1, 1999 Report of the Advisory Commi

ee on Evidence Rules to the Standing Commi ee on Rules of

Prac ce and Procedure 5-7.

14 See May 1, 1999 Report of the Advisory Commi

ee on Evidence Rules to the Standing Commi ee on Rules of

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Prac ce and Procedure 43-44.

gatekeepers to exclude unreliable expert tes mony, and the Court in Kumho clari ed that this gatekeeper func on applies to all expert tes mony, not just tes mony based in science. See also Kumho, 119 S.Ct. at 1178 (ci ng the Commi ee Note to the proposed amendment to Rule 702, which had been released for public comment before the date of the Kumho decision). The amendment a rms 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 pro ered expert tes mony. Consistently with Kumho, the Rule as amended provides that all types of expert tes mony present ques ons of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert tes mony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the per nent admissibility requirements are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987).

Interes ngly, the public comments to the 2000 amendment are very similar to the comments in favor and opposed to the current proposed amendment.15 The Advisory Commi ee 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 a er Daubert, had done li le screen of dubious expert tes mony. 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 prolifera on of challenges to expert tes mony; 3) allow judges to reject one of two compe ng methodologies in the same eld of exper se; and 4) result in the wholesale reject of experience-based expert tes mony.16 IV.

The Confusion among the Courts – Post 2000 1.

Symposium at Boston College Law School

In 2009, the Na onal Research Council’s Commi ee on Iden fying the Needs of the Forensic Science Community ques oned whether the courts were properly analyzing whether forensic evidence “is su ciently reliable to merit a fact nder’s reliance on the truth that it purports to support.”17 In a published report, the Commi ee concluded that “Daubert and its progeny have engendered confusion and controversy” with respect to the admission of forensic

15 See infra, Sec on V. 16 See May 1, 1999 Report of the Advisory Commi

ee on Evidence Rules to the Standing Commi ee on Rules of

Prac ce and Procedure 5-7.

17 See Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009), p. 9,

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h ps://www.ojp.gov/pd les1/nij/grants/228091.pdf

Similarly, in 2015, President’s Council of Advisors on Science and Technology (“PCAST”) found that courts were relying on past precedent when evalua ng the validity of forensic feature-comparison methods (i.e., methods for comparing DNA samples, bitemarks, latent ngerprints, rearm marks, footwear and hair). In its Report, PCAST said “our scien c review found that most forensic feature-comparison methods have historically been assumed rather than established to be founda onally valid”, which became problema c when “it became clear in recent years . . . that there [were] fundamental problems with the reliability of some of these methods.”20 When deciding the admissibility of expert tes mony, PCAST recommended federal judges (1) take into account the appropriate scien c criteria – “founda onal validity” and “validity as applied” and (2) “ensure that tes mony about the accuracy of the method and the proba ve value of proposed iden ca ons is scien cally valid in that it is limited to what the empirical evidence supports.”21 In response to the PCAST and Na onal Research Council’s reports, the Judicial Conference Advisory Commi ee on Evidence began formal considera on and review of Rule 702.22 On October 17, 2017, the Advisory Commi ee held a symposium led by Advisory Commi ee Reporter, Daniel J. Capra. Among many observa ons from the Commi ee, Dr. Eric Lander, a PCAST co-chair, noted, “Rule 702 as applied by the courts is not working to exclude unreliable feature-comparison tes mony.”23 Another panelist, Dr. I el Dror said, “Maybe the Rule [702] the way it is, is ne. It’s misapplied, so we need to make sure it is applied correctly.”

In 2021, the Lawyers for Civil Jus ce examined all federal cases decided in 2020 addressing the admissibility of expert tes mony under Rule 702.24 The research revealed the following:

18 Id. at 11.

19 Id. 20 See President’s Council of Advisors on Sci. & Tech., Exec. O

Courts: Ensuring Scien

ce of the President, Forensic Science in Criminal c Validity of Feature-Comparison Methods (2016) at 143.

21 See Ensuring Scien

c Validity of Feature-Comparison Methods at 145.

22See Colleen Cochran, The Process, Progression, and Poten al Rami ca ons of the Rule 702 Amendment, h

businesslawtoday.org/2022/09/rule-702-amendment-process-progression-poten al-rami ca ons/; see also Symposium on Forensic Expert Tes mony, Daubert, and Rule 702, 86 Fordham L. Rev. 1464, 1465 (2018) 23 86 Fordham L. Rev. at 1467.

24 See Kateland R. Jackson & Andrew Trask, Federal Rule of Evidence 702: A One-Year Review and Study of

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Decisions in 2020 (September 30, 2021).

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science evidence in li ga on.18 The Report notes “judicial disposi ons of Daubert-type ques ons . . . have been cri cized 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 applica on of scien cally valid reasoning and reliable methodology in [ ] cases involving Daubert ques ons.”19

ps://

•

1,059 federal opinions in 2020 addressed expert admissibility under Rule 702 o 35% (373) men on that the proponent bears the burden of providing admissibility by a preponderance of the evidence. o 65% (686) do not men on the proponent’s burden of proof or preponderance standard. o 13% (135) use language indica ng a presump on 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 presump on favoring admissibility (“liberal thrust” standard).

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

The Advisory Commi ee’s Solu on and Public Comments

As noted above, the Advisory Commi ee began researching a possible amendment to Rule 702 in 2017.26 A Subcommi ee on Rule 702 was appointed to consider the treatment of forensic experts and the weight and admissibility ques ons around Rule 702’s reliability requirement.27 The Subcommi ee expressed interest in considering an amendment to Rule 702 focusing on “the problem of oversta ng 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.28 The full Commi ee ul mately 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 Ul mately, the Commi ee unanimously approved a proposal that would amend Rule 702 (d) to require the court to nd that “the expert’s opinion re ects a reliable applica on of principles and methods to the facts of the case.”30 The Advisory Commi ee was ini ally reluctant to propose a change to the text of Rule 702, addressing the mistakes made by courts regarding the proper standard of admissibility.31 25 See A One-Year Review and Study of Decisions in 2020 at p. 2.

26 See Report for the Commi

ee on Rules of Prac ce and Procedure (June 7, 2022) at 870.

27 Id. 28 Id. 29 Id. at 870-71.

30 Id. at 871.

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31 Id. at 871.

Ul mately, the Commi ee unanimously agreed that explicitly weaving the Rule 104(a) standard into the text of Rule 702 would address the important con ict among the courts.32 The language 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.33 The Commi ee Note for the proposed amendment also made clear that there was no intent to raise any nega ve inference regarding the applicability of the Rule 104(a) standard of proof to other rules --- emphasizing that incorpora ng 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 Commi ee received over 500 comments from prac oners regarding the proposed amendment to Rule 702. A snapshot of some of the comments are below.

1.

The Defense Bar a.

Lawyers for Civil Jus ce

Below is the Advisory Commi ee’s summary of the public comments from the Lawyers for Civil Jus ce.

Lawyers for Civil Jus ce [] supports the proposed amendment to Rule 702, while advoca ng 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 oversta ng their conclusions, and that the per nent text and commi ee note “will be helpful to courts and counsel alike.” LCJ suggests that the amendment “would be even more e ec ve if it expressly stated that the court must determine admissibility – a clari ca on that would directly address the caselaw’s core confusion about the Rule’s alloca on of responsibility between the judge and the jury.”

Lawyers for Civil Jus ce submi ed a study of reported case law applying Rule 702 in 2020. The study concludes that the “inconsistent applica on 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 s ll adopt a ‘liberal thrust’ favoring admissibility may re ect larger confusion among federal courts about how to apply Rule 702.” b.

FDCC

32 Id. 33 Id.

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34 Id. at 872.

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 a rming the gatekeeping role, “a fair number of courts have treated the Rule 702 reliability requirements of su cient basis and reliable applica on as ques ons of weight and admissibility.”

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

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 presump on of admissibility, arguably altering the burden of proof. It is impera ve then that this Commi ee clearly state the burden of proof within Rule 702 so that District Courts properly and consistently apply the standard.

Further, in ma ers in which the specialized knowledge and experience of an expert are sought to be u lized in order to assist the fact nder in be er understanding the generally accepted customs, usages, prac ces or other circumstances at issue, it is of utmost importance that the pro ered tes mony be based, as the Rule intends, upon su cient facts or data, that it be the product of reliable principles and methods, and re ect a reliable applica on of those principles and methods to the facts of the case. The Commi ee’s proposed amendments are a necessary response to common misconcep ons 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

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The DRI Center for Law and Policy supports the proposed amendment to Rule 702. The Center “applauds and supports this Commi ee’s e ort to improve the rule (the “FRE 702 Amendment”) to achieve a necessary uniformity of applica on.” 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 tes mony has sa s ed the court that not only is the tes mony the product of reliable principles and methods, but also that the expert’s opinion re ects a reliable applica on of those principles and methods to the facts of the case.” The Center concludes that these clari ca ons are “necessary because, with some regularity standard when ruling on pro ered FRE 702 evidence.”

2.

The Plain a.

’s Bar

The American Associa on for Jus ce

The American Associa on for Jus ce “is concerned that the changes sought will not be recognized by the judges who need a correc on, but that the proposed amendment may unnecessarily limit the admissibility of plain s’ experts.” It asserts that including the preponderance of the evidence standard “has the unintended poten al for causing the court to believe that the court, and not the jury, must weigh and decide the correctness of the scien c evidence, which will intrude and diminish the role of the jury.” The Associa on 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 informa on.” As to the change to Rule 702 (d), the Associa on does not disagree about its overall purpose but declares “it is not evidence that courts or par es will nd the direc on provided in the rule text helpful.” b.

A orney Informa on Exchange Group

A orney Informa on Exchange Group contends that the current rule has worked well, and that the amendment would change what it asserts to be the exis ng law that “Rule 702 represents a liberal standard of admissibility for expert opinions.” c.

Other quotes from plain

’s lawyers

[Counsel] opposed the proposed amendment, expressing concern that it “will create confusion and inconsistency, undermine judicial discre on and demean the rule of juries.” She argues that the changes “encourage judges to become fact nders when determining the admission of expert tes mony while having the appropriately more limited tradi onal role of being just the judge, not the jury as to all other eviden ary 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 informa on.”

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

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

[Counsel] contends that the proposed amendment to Rule 702 “would move the func on 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 tes mony – but there is nothing concrete to be weight against.”

The Advisory Commi ee 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 shi the fact- nding role from the jury to the judge.35 However, the Advisory Commi ee 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 men oned by public commentators.36 The public comments also persuaded the Advisory Commi ee “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.”37 The Advisory Commi ee 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 Commi ee Note clari ed that the amended Rule 702 does not require the court to make reliability ndings in the absence of a proper objec on.38 VI.

The Proposed 2022 Amendment & Commi ee Note

The Judicial Conference Advisory Commi ee on Evidence Rules and the Judicial Conference Commi ee on Rules of Prac ce and Procedure approved the following amendment to Rule 702: Rule 702.

Tes mony by Expert Witnesses

A witness who is quali ed as an expert by knowledge, skill, experience, training, or educa on may tes fy 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 scien c, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the tes mony is based on su cient facts or data; (c) the tes mony is the product of reliable principles and methods; and

35 See Commi

ee on Rules of Prac ce and Procedure (June 7, 2022) at 872.

36 Id. 37 Id.

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38 Id.

the expert’s opinion re ects a reliable applica on of the principles and methods to the facts of the case.

Commi ee Note

Rule 702 has been amended in two respects: (1) First, the rule has been amended to clarify and emphasize that expert tes mony may not be admi ed unless the proponent demonstrates to the court that it is more likely than not that the pro ered tes mony 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 admi ng 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 a orded due considera on.”); Huddleston v. United S ta t e s , 4 8 5 U. S . 6 8 1 , 6 8 7 ( 1 9 8 8 ) (“preliminary factual ndings under Rule 104(a) are subject to the preponderance-ofthe-evidence standard”). But many courts have held that the cri cal ques ons of the su ciency of an expert’s basis, and the applica on of the expert’s methodology, are ques ons of weight and not admissibility.

These rulings are an incorrect applica on of Rules 702 and 104(a).

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

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(d)

the reliability requirements of that rule. Nor does the rule require that the court make a nding of reliability in the absence of objec on.

T h e a m e n d m e nt c l a r i e s t h at t h e 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 quali ed and the expert’s tes mony must help the trier of fact) are governed by the Rule 104(a) standard as well.

Some challenges to expert tes mony will raise ma ers of weight rather than admissibility even under the Rule 104(a) standard. For example, if the court nds it more likely than not that an expert has a su cient basis to support an opinion, the fact that the expert has not read every single study that exists may raise a ques on of weight and not admissibility. But this does not mean, as certain courts have held, that arguments about the su ciency 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 a ack by the opponent will go only to the weight of the evidence.

It will o en occur that experts come to di erent 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 eviden ary requirement of reliability is lower than the merits standard of correctness.’” Commi ee Note to the 2000 amendment to Rule 702, quo ng In re Paoli R.R. Yard PCB Li g., 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 tes mony to “appreciably help” the trier of fact. Applying a higher standard than helpfulness to otherwise reliable expert tes mony is unnecessarily strict.

The amendment is especially per nent to the tes mony of forensic experts in both criminal and civil cases. Forensic experts should avoid asser ons of absolute or one hundred percent certainty—or to a reasonable degree of scien c certainty—if the methodology is subjec ve and thus poten ally subject to error. In deciding whether to admit forensic expert tes mony, the judge should (where possible) receive an es mate of the known or poten al rate of error of the methodology employed, based (where appropriate) on studies that re ect how o en the method produces accurate results. Expert opinion tes mony 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 applica on of the principles and methods. This amendment does not, however, bar tes mony that comports with substan ve law requiring opinions to a par cular degree of certainty.

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(2) Rule 702(d) has also been amended to emphasize that each expert opinion must Nothing in the amendment imposes any stay within the bounds of what can be new, speci c procedures. Rather, the concluded from a reliable applica on of the amendment is simply intended to clarify expert’s basis and methodology. Judicial that Rule 104(a)’s requirement applies to gatekeeping is essen al because just as expert opinions under Rule 702. Similarly, jurors may be unable, due to lack of nothing in the amendment requires the specialized knowledge, to evaluate court to nitpick an expert’s opinion in order meaningfully the reliability of scien c and to reach a perfect expression of what the other methods underlying expert opinion, basis and methodology can support. The jurors may also lack the specialized Rule 104(a) standard does not require knowledge to determine whether the perfec on. On the other hand, it does not conclusions of an expert go beyond what permit the expert to make claims that are the expert’s basis and methodology may unsupported by the expert’s basis and reliably support. methodology. .

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

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

VII.

Conclusion

If the proposed amendment is approved by Congress, it will have a profound impact on federal li ga on39 and those states, whose expert tes mony rules are based on Rule 702.

Li gants should expect an increase of mo ons challenging the admissibility of expert tes mony, which will require li gants to pay closer a en on to their expert strategy at earlier stages in the li ga on.40 From the defense perspec ve, Daubert mo ons should be no more. Mo ons challenging the admissibility of expert tes mony should be based on Rule 702 and emphasize the Court’s “gatekeeping” func on and the requirement that the trial court determine the reliability of expert evidence by the preponderance of evidence standard in Rule 104(a). Defense li gants should an cipate plain s will argue that these challenges are really a jury issue that goes to the “weight” of the evidence. Defense li gants should consider including a discussion of the proposed amendment’s purpose in their next “Rule 702” mo on.

39 See Stephanie Amaru, Mark Ellio

, Emily Huang & Rebecca Lee, Proposed Amended FRE 702 Con rms the Court as Gatekeeper of Expert Tes mony. h ps://www.jdsupra.com/legalnews/proposed-amended-fre-702-con rmscourt-2742255/

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40 See supra, n. 18.