“We can only hope that the new amendments…are more effective in enforcing Rule 702’s gatekeeping requirements than were the 2000 amendments.”
Reed Smith
(IT’S RULE 702)
Why you should be concerned about employing the correct standard – and name.
Featured News
New Jersey is the latest state to have a formal request filed in support of an amendment to the state rules clarifying the standard for expert testimony admissibility. The New Jersey Defense Association submitted a letter to the State’s Rules of Evidence Committee requesting the amendment and asking the Committee to put the proposal on its December 2024 agenda for action. More details on the initiative to amendment New Jersey’s rules is available on the Don’t Say Daubert state webpage.
Who We Are
“Don’t Say Daubert” (DSD) is a joint project of Lawyers for Civil Justice, DRI, International Association of Defense Counsel, and Federation of Defense & Corporate Counsel dedicated to reforming federal and state civil rules governing the admission of expert evidence in civil courts.
What we advocate for
We propose and support amendments to federal and state civil rules governing the admission of expert evidence. We advocate before judicial rulemaking committees as well as state legislatures to effectuate change. We also work to inform the wider legal community about the meaning of Federal Rule of Evidence 702, the amendment to Rule 702 that took effect on December 1, 2023, and the need for reform of equivalent state rules.
- Since the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, the word “Daubert” has become shorthand for the standard by which expert evidence is evaluated for admissibility before a federal jury. However, Federal Rule of Evidence 702 (Rule 702) and its state equivalents, not Daubert, set the standards that courts must follow in determining whether expert testimony is admissible. Rule 702, written in 2000 and soon to be amended, supersedes Daubert and harmonizes the Supreme Court’s post-Daubert rulings.
- Fundamental questions about the basis of expert opinions are meant to go to the admissibility of expert evidence rather than its weight. For too long, the rule has been frequently misapplied. We and our allies work at both the federal and state levels to ensure judges in civil trial courts fulfill their role as gatekeepers ensuring only reliable science reaches juries for consideration.
Why “Don’t Say Daubert”?
Using the name “Daubert” as shorthand for expert testimony admissibility is misleading because Rule 702, not caselaw, defines the applicable standards. Words matter in the practice of law. Referring to Rule 702 motions, Rule 702 hearings, and Rule 702 decisions is the accurate way to talk about expert evidence admissibility. Don’t Say Daubert.
Get Involved: State evidence rule reform
Learn about Don’t Say Daubert efforts to reform rules of evidence in states across the country
GET MORE INFO
Updates to Rule 702
The new amendment to Federal Rule of Evidence 702 that takes effect on December 1, 2023, clarifies that:
1
Courts must determine admissibility before allowing an expert witness to testify
2
The proponent of expert testimony must establish admissibility by a preponderance of the evidence
3
The court’s “gatekeeping” responsibility doesn’t end when admissibility is determined, but is ongoing and includes everything the expert says
WHAT PEOPLE ARE SAYING
Read what industry experts are saying about Rule 702.
“The unanimous vote marked a victory for defense lawyers and business-oriented groups like Lawyers for Civil Justice who pushed for toughening the standards of Rule 702 of the Federal Rules of Evidence, which governs expert testimony admissibility.”
Reuters
“LCJ strongly supports the amendment to Rule 702, which will make clear that courts, not juries, are the gatekeepers for the admissibility of expert opinion into the courtroom.”
Lawyers for Civil Justice
“Misapplications [of Rule 702] can have huge consequences because they unfairly influence trial verdicts, especially in high-stakes muti-district litigation which can have thousands of cases and billions of dollars at risk.”
Lawyers for Civil Justice
“Federal Rule of Evidence 702, not the Daubert holding, sets the admissibility standard. Many courts mistakenly take their guidance about the gatekeeping function from prior court rulings, rather than the rule.”
Evans, Fears & Shuttert
“In the meantime, since the same problems that are motivating the federal amendment exist with state rules (perhaps even more so), many state courts and legislatures will consider similarly amending their expert admissibility rules. Doing so will ensure that state courts have their own appropriate standards for expert evidence, as well as provide important consistency between state and federal systems.”
Former General Counsel, Boston Scientific