A new amendment to Federal Rule of Evidence (FRE) 702 took effect on December 1, 2023.
The amendment clarifies the duty of district courts to determine admissibility according to the rule’s standards before allowing an expert witness to testify. Although styled as a clarification, the amendment is meant to change practice.
These are the textual changes the amendment makes to the rule:
Rule 702: Testimony by Expert Witness
This amendment clarifies:
- The court must decide admissibility employing Rule 702’s standards;
- The proponent of expert testimony must establish its admissibility to the court by a preponderance of the evidence; and
- The court’s gatekeeping responsibility is ongoing—the decision to admit testimony does not allow the expert to offer an opinion that is not grounded in Rule 702’s standards.
- This amendment is meant to change practice, starting today, because Rule 702, not Daubert or any other case law, sets the standards for admissibility.
Rule 702. Testimony by Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
Courts have already started adhering to the new rule, which was designed to change practice
Courts and practitioners should apply the amendment now because it is a clarification of, rather than a change to, the existing rule. Courts are already employing the amendment to Rule 702.
- The Fourth Circuit in Sardis v. Overhead Door Corp. recognized that the amendment seeks to correct the misguided practices that some courts follow.
- District courts within the Fourth Circuit have also taken note of the amendment’s intent. In Bishop v. Triumph Motorcycles, the U.S. District Court for the Northern District of West Virginia observed that the Rule 702 amendment is motivated by courts’ frequent failure to recognize that all of the reliability components set forth in Rule 702 establish admissibility criteria that courts must decide.
- In two decisions, the U.S. District Court for the Middle District of North Carolina cited to the Sardis decision’s recognition that the amendment requires courts to consider if an expert’s opinions fulfill all of the Rule 702 criteria using the preponderance of proof standard.
- The U.S. Bankruptcy Court for the Western District of Tennessee in In re Anderson acknowledged that the Rule 702 amendment intends to guide courts toward a consistent gatekeeping practice that is not always followed today.
- The Committee on Rules of Practice and Procedure voted unanimously to approve this amendment to Rule 702 in June 2022, and it was subsequently approved by the Judicial Conference in September of 2022.
- The amendment was then sent for review to the U.S. Supreme Court, which in turn sent it to Congress in April 2023.
- The rule went into effect on December 1, 2023.
- Because state rules have the same shortcomings as the federal rule, states should also update their evidence rules to ensure that lawyers are not allowed to present unreliable expert testimony to juries.