State Evidentiary Rule Reform

Alabama Rule of Evidence 702 tracks pre-amendment Federal Rule of Evidence 702.  A rule change to ensure that Alabama’s expert evidence rule continues to conform to the federal rule remains under consideration by the Alabama Supreme Court’s Evidentiary Rules Committee.

The Delaware Supreme Court in the In Re Zantac (Ranitidine) Litigation held that Delaware follows the standard for expert evidence admissibility set forth in amended FRE 702. The Court found that Rule 702 was “amended to clarify the rule without changing its substance” and that 2023 amendments to the federal rule confirm that the “trial courts are required to vigorously exercise their gatekeeping function.” The trial court, like other Delaware courts, cited incorrect standards which presumed the admissibility of expert testimony and allowed experts to testify without applying reliable scientific methodology to reach their conclusions. The Court wrote that “DRE 702 has not been amended at the present time to mirror the 2023 amendments to FRE 702.  But, because the [Federal] Advisory Committee has explained that the 2023 amendments … “only clarified the existing federal standard, we view the committee’s recent guidance as important material to consider in reviewing our trial courts’ decision and providing guidance to litigants.”

 LCJ’s amicus brief in In Re Zantac, prepared by Raffi Melkonian, with Wright Close & Barger LLP, urged the Delaware Supreme Court to interpret DRE 702 consistent with amended FRE 702 and addressed in detail the clarification to FRE 702 adopted by the Federal Courts.

Delaware Supreme Court decision

LCJ amicus brief

The Florida State Bar is considering proposed recommendations to the legislature to amend the Florida Code of Evidence to bring into alignment with FRE 702.   Lawyers for Civil Justice submitted briefing materials to the Bar in support of maintaining consistency on state expert evidence admission rules and amended FRE 702.  If you are interested in participating in the working group supporting amended expert evidence rules in Florida, please contact Dan Steen at dsteen@lfcj.com.

A change to Georgia’s expert evidence admission standards to make them consistent with FRE 702 requires legislative action adopting the change. An amendment to Georgia Rule of Evidence is endorsed by the Georgia Defense Lawyers Association and a working group of Georgia lawyers continues to seek  an amendment to the state code of evidence. Please contact Dan Steen at dsteen@lfcj.com if you are interested in participating in the Georgia Working Group.

 While efforts on behalf of codification of the rule continue, the Georgia Court of Appeals ruled in Sterigencs U.S. v. Mutz (2025) that Georgia’s admission practices are largely aligned with federal standards:  Georgia trial courts must act as gatekeepers and assess the reliability of proposed expert testimony; they must consider whether the expert’s methodology is sufficiently reliable; and the proponent of the expert testimony bears the burden of establishing that reliability or the testimony will not be admitted.  Lisa Baird, in her analysis in the Drug and Medical Device blog applauds the state court decision, “to the extent it is has better aligned state practice with federal standards and reinforced the importance of rigorous judicial scrutiny of expert causation testimony.”

An Illinois Working Group advocates for statutory amendments to the Illinois expert evidence standard. Illinois Rule of Evidence 702 currently follows the “Frye” standard which permissively allows expert evidence to go before juries, For more details on how to participate in the working group, please contact LCJ Executive Director Dan Steen, Dsteen@lfcj.com, or Elizabeth Chiarello at Alston & Bird, elizabeth.chiarello@alston.com

The Indiana Supreme Court has the authority to amend and rescind rules of practice and procedure and its Committee on Rules of Practice and Procedure also serves as the State’s Evidence Rules Review Committee.  A working group, led by Joe Eaton (Barnes & Thornburg) has been formed to prepare a proposed rule change to the Committee.  If you are interested in participating in the working group to support the amendment, please contact Dan Steen at DSteen@lfcj.com.

Legislation has been introduced in the Kansas Senate to amend the Kansas expert evidence rule to align with FRE 702. The Kansas expert evidence rule currently generally aligns with the federal rules. Read Kansas Senate Bill 398 here. A hearing on the bill is expected in early February. The legislative effort is being led by the Kansas Chamber of Commerce. To participate in the Kansas Working Group, contact LCJ Executive Director Dan Steen or Kansas Chamber of Commerce Vice President Eric Stafford.

The Kentucky Supreme Court approved an amendment to KRE 702 to align the state rule with amended FRE 702. The rule, attached here, became  effective on July 1, 2024.

The Kentucky Supreme Court’s action followed a public comment period, coinciding with mandated state legislature review.  All comments received by the Court were in support.   The Kentucky Supreme Court also held a listening session on this and other rule changes at the Kentucky Bar Convention on May 9.

David Schaefer, with Dinsmore & Shohl in Louisville, made the initial presentation in support of amending KRE 702 in the summer of 2023 and led advocacy efforts leading to the adoption of the amendment.  The Kentucky Defense Counsel, joined by the DRI, IADC, FDCC, ADTA, and LCJ, submitted a public comment on April 11, 2024, in support of the rule change. See the Comment here.

Louisiana adopted by statute an amendment to Louisiana Code of Evidence Article 702, to bring the state into alignment with Federal Rule of Evidence 702.  The rule change became effective on August 1, 2024. View the text of the legislation here.

Lloyd “Sonny” Shields (Irwin Fritchie Urquhart Moore & Daniels, LLC), a member of the Louisiana Law Institute Civil Procedure Committee, proposed the rule amendment to bring Louisiana Code of Evidence Article 702 into alignment with the amended federal rule. The Civil Procedure Committee recommended and the Louisiana Supreme Court approved the amendment. The rule change was referred to the Louisiana State Legislature for approval.  Following consideration by the Senate Judiciary Committee, the bill was adopted by the Louisiana Senate by a vote of 38-0. The Louisiana House passed SB 16 by a vote of 90-0. The bill implementing the amended expert evidence rule was signed into law by Louisiana’s Governor on May 21.

The Maryland Supreme Court recognizes amended FRE 702 as an analog to Maryland Rule 5-702. The Court cites the commentary of the federal Advisory Committee on Evidence Rules accompanying the 2023 amendment to FRE 702 in support of its decision advising trial courts to exercise “meaningful gatekeeping as to an expert opinion’s factual basis” and use of the “preponderance standard” in applying expert evidence “reliability requirements.” Maryland recognizes that critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology generally, go to admissibility and not weight. Katz, Abosch, Windesheim, Gershman & Freedman, P.A. et al. v. Parkway Neuroscience and Spine Institute, LLC, (Md. S.Ct., August 30, 2023).  Although the Maryland Supreme Court recognizes the analogous federal rule, it has not yet adopted the amended federal rule language. In 2024, the Court declined, without comment, to implement the recommendation of Maryland’s Standing Committee on Rules of Practice and Procedure to amend Rule 5-702. The Supreme Court’s April 5, 2024 order is found here. LCJ’s comment in support of the rule change, prepared by Mark Behrens and Chris Appel with Shook Hardy, can be found here.

Mississippi Rule of Evidence 702 is aligned with federal evidentiary standards on expert evidence. A proposed amendment to MRE 702 is now pending which would maintain the consistency between the state rule and FRE 702.  The Mississippi Supreme Court has referred the proposed rule change to its Advisory Committee on Rules of Civil Practice and Procedure for research and a recommendation.

  The amendment was proposed in a letter by Chris Maddux, William Gage, Rod Richmond, Tim Threadgill, and Phillip Sykes, all with the Butler Snow firm, which highlights that “Mississippi … has followed the federal standards for the admissibility of expert witness testimony for more than 20 years.” The Butler Snow lawyers argue the “changes are critical to ensuring that courts fulfill their gatekeeping obligations.” To read the full letter, click here. For more information, contact William Gage at William.Gage@butlersnow.com or Dan Steen at DSteen@lfcj.com.

Missouri legislation would bring the language of the state’s expert evidence admission standards into alignment with amended Federal Rule of Evidence 702, which clarifies that it is the role of trial courts to evaluate expert testimony before it is admitted in a case. House Bill 2255 introduced by Rep. Barry Hovis, and Senate Bill 918, introduced by Senator Jamie Burger, clarify that under Missouri law, the proponent of expert evidence has the burden of proving admissibility and the judge in a case should evaluate the reliability and appropriateness of any expert testimony before it is put before a jury.  The legislation was reported by the Senate General Laws Committee after receiving a  a favorable reception in the Senate Committee in 2025.

The Missouri Organization of Defense Lawyers (MODL) is leading state efforts on behalf of the bill. MODL has been joined by a growing group of bar, business, and civic organizations in advocating for the legislation. Mark Dunn, with Osborn Hine & Yates, leads the LCJ state working group which developed the proposed rule change, and which continuing its work to educate legislators.

Separately, the Missouri Supreme Court is now considering an appeal which addresses the admission requirements for expert testimony under the state’s current expert evidence rule.  Lawyers for Civil Justice filed an amicus brief in Hanshaw v. Crown Equipment Corporation which urges the Court to affirm that the state’s current expert evidence rule has the same admissibility requirements as those stated in FRE 702, which was recently amended to clarify that trial courts have the responsibility for evaluating proffered expert evidence for admissibility.  In its brief, LCJ cites the Delaware Supreme Court’s decision in the In Re Zantac (Ranitidine) Litigation, which held that FRE 702 was “amended to clarify the rule without changing its substance.” LCJ’s brief can be found here.

For more information on the continuing legislative effort, contact Brian Bernskoetter, with RJ Scherr & Associates, or Mark Dunn.  If you are interested in joining the advocacy initiative in Missouri or those of other states, contact Dan Steen at DSteen@lfcj.com.

The New Jersey Defense Association has filed a letter requesting an amendment to New Jersey Rule of Evidence 702 to clarify existing New Jersey law on admissibility of expert testimony and the gatekeeping role of judges. The letter, found here, was filed with the New Jersey Rules of Evidence Committee, and asked for the formation of a subcommittee to consider the proposed amendment. The New Jersey Defense Association is led by Katelyn Cutinello, a partner at Cocca & Cutinello in Morristown. A state working group formed in support of the amendment is working with the NJDA and helps lead the advocacy efforts of Lawyers for Civil Justice on this and other issues. If you are interested in participating in the working group, please contact Dan Steen at DSteen@lfcj.com.

North Carolina Supreme Court decisions have followed the prior federal rule.  A working group has been formed in support of rule amendment.  Please contact LCJ Executive Director Dan Steen, Dsteen@lfcj.com, or Aulica Monroe, with Womble Bond Dickinson, Aulica.monroe@wbd-us.com, for more information.

A working group has been formed to consider Pennsylvania’s expert evidence admission standards. If you are interested in participating in the working group, please contact LCJ Executive Director Dan Steen at Dsteen@lfcj.com, or FDCC President Bernie Heinze at bernie@thefederation.org.

An amendment to bring Tennessee’s expert evidence admission rules into alignment with FRE 702, the Sixth Circuit, and other states in the Southeast, has been proposed to the Tennessee Bar Association. Butler Snow and several other prominent Tennessee law firms, including Baker Donelson, Hickman Goza & Spragins, Gordon Rees Scully Manshukhani, and the law office of Michael T. Goodin, have requested endorsement by the Tennessee Bar Association of an amendment to Tennessee Rule of Evidence 702, noting that Tennessee precedent is consistent with a rule change and it is timely for Tennessee to adopt rule language aligned with Federal Rule 702. Read the letter here.

A working group is active in support of an amendment to Tennessee Rule of Evidence 702. LCJ is working with the Tennessee Defense Lawyers Association, which is leading efforts on the bill, and other organizations.  If you are interested in participating in this effort, contact Eric Hudson at Butler Snow, or LFCJ Executive Director Dan Steen at DSteen@lfcj.com

Following a recommendation from its advisory committee on rules, the Supreme Court of the Virgin Islands, in an order filed on July 14, 2023, amended Virgin Islands Rule of Evidence 702 to align with Federal Rule of Evidence 702.   The amended rule is available here.

Wisconsin legislation amending the state’s expert evidence admission standards, SB 459 and AB 458, available here and here, amend Wisconsin’s expert evidence rule to align with amended Federal Rule of Evidence 702.  On January 22^nd, the Wisconsin Assembly unanimously concurred in the adoption of SB 459, after the Wisconsin Senate unanimously adopted the legislation on November 18^th.  Floor action in both houses followed bipartisan and unanimous approval in the Senate and House Judiciary Committees.    The bill is set to be presented to the Governor for signature.

AB 458 is sponsored by Representative Brent Jacobson, Vice Chair of the Assembly Committee on Judiciary, and 11 other state assembly representatives. SB 459 is sponsored by Senator Van Wanggaard, Chair of the Senate Committee on Judiciary and Public Safety, and three other state senators.

Wisconsin Defense Counsel is leading advocacy efforts for the legislation. WDC’s DRI representative, Nicole Marklein (West Dunn), is leading in-state efforts and the WDC is represented at the legislature by Rebecca Hogan (Hamilton Consulting).

The amendment clarifies Wisconsin’s rules on the admission of expert witness testimony:

1. The trial court must determine the admissibility of expert evidence by employing Wisconsin’s statutory expert evidence standards.
2. The proponent of expert testimony has the burden of establishing the admissibility of expert evidence by a preponderance of the evidence.
3. The court’s gatekeeping responsibility is ongoing—the court’s decision to admit proffered testimony does not allow the expert to ultimately offer an opinion that does not meet Rule 702’s standards.

For more information or to participate in the Wisconsin Working Group advocating for the bills, contact Nicole Marklein at nmarklein@cjmmlaw.com or Dan Steen, DSteen@lfcj.com.

For more information or to participate in the Wisconsin Working Group advocating for the bills, contact Dan Steen, DSteen@lfcj.com, or Nicole Marklein.