Back in May, we discussed the latest amendments proposed by the Advisory Committee on Civil Rules to Fed. R. Evid. 702. These amendments, while not changing the substance of Rule 702’s standards for admission of expert testimony – helpfulness, factual basis, reliability – are intended to reinforce other aspects of the Rule. These changes are: (1) requiring the proponent of the expert to meet its burden of proof, and (2) that expert opinions must not only apply methods that are “reliable,” in the abstract, but must reliably apply those methods in the context of the facts of each case in which they are offered.
Under the current rule, the Advisory Committee has concluded, too many judges are failing to exercise their gatekeeping function, and instead have been kicking the can, particularly on reliability, down the road to the jury.