Amendments to Federal Rule of Evidence 702 Loom Closer

When the Supreme Court set the standard for expert testimony admissibility in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), it upended decades of prior case law interpretation of what it means to be an expert. In light of the decision’s enormity, Rule 702 of the Federal Rules of Evidence was subsequently amended seven years later to more directly conform to Daubert’s holding.

In the two decades since, the admissibility of expert testimony has not always been a clear-cut question. The Judicial Conference’s Advisory Committee on the Federal Rules of Evidence has voiced concern over Rule 702, and if the past two years of debate have been any indicator, it looks as though the rule may be ready for an amendment. As with any amendment to admissibility, these changes will undoubtedly affect expert testimony going forward.

Rule 702’s Previous Amendments and Daubert

Prior to the Daubert decision and its subsequent codification in Rule 702, the decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) set forth the general standard for expert admissibility. This standard states, namely, that expert witness testimony is inadmissible unless the opinion has gained “general acceptance” with the scientific community.

The Supreme Court’s decision in Daubert overruled Frye, finding it inconsistent with Rule 702’s emphasis on an expert’s relevance and reliability. Instead, this decision set forth enumerated factors to consider when deciding admissibility. Although an expert’s opinion being generally accepted within the scientific community is included, it is only one factor to consider, along with considering whether:

1. The expert’s technique or theory can tested and assessed for reliability;
2. The technique or theory has been subject to peer review and publication;
3. The known or potential rate of error of the technique or theory; and
4. The existence and maintenance of standards and controls.

In enumerating these factors, the Supreme Court emphasized the trial judge’s “gatekeeping responsibility” in screening potential testimony prior to admissibility. Daubert’s progeny further expounded on this premise, holding in General Electric Co. v. Joiner, 522 U.S. 136 (1997) that appellate review of a trial court’s decision on expert admissibility would use an abuse of discretion standard, according due deference to the trial judge. Then in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court broadened Daubert’s reach, holding that the standard applied to all expert testimony, not only testimony scientific in nature.

In response to Daubert and its progeny, Rule 702 was amended in 2000 to reflect these changes. Per Rule 702, as amended in 2000 and as it states now, a witness who is qualified as an expert “by knowledge, skill, experience, training, or education” may testify if:

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 has reliably applied the principles and methods to the facts of the case.

Rule 702’s Currently Proposed Changes

Constant advancements in the sciences have led to more complex litigation and the increasingly frequent use of experts. As such, the Advisory Committee of the Federal Rules of Evidence has debated whether Rule 702 needs another amendment. Among the proposed changes would be clarification regarding the trial court’s gatekeeping function, which some courts have resisted “either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.” By admitting expert testimony that has not shown, by a preponderance of the evidence, that there is a sufficient basis for the opinion or that the methodology has been reliably applied, the judge is effectively abdicating their role to the jury. The Committee has stressed that Rule 702’s requirements concern admissibility, not the weight of the evidence. The latter remains a jury function.

Proposed amendments would clarify that Rule 702—which is silent as to the burden of proof—should follow Rule 104(a), which places the burden on the proponent of the evidence, and should be decided by the court. The purpose of the amendment, which would specify the burden of proof within Rule 702’s language, would be to ensure that the court finds all of the Rule 702 factors are satisfied by a preponderance of the evidence before admitting expert testimony. The Committee has also considered incorporating a Committee Note to further emphasize the burden of proof. Such a note would also address the court’s role in admitting evidence.

The Committee has considered these amendments for several years and has received widespread support. In its Fall 2020 meeting, the Committee’s focus narrowed on this issue. This all points to a high likelihood that an amendment to Rule 702 will finally be forthcoming.