Recent Applications of FRE 702

In In re Terrorist Attacks on September 11, 2001, The U.S. District Court for the Southern District of New York observed that the Advisory Committee on Evidence Rules “proposed the changes [reflected in the 2023 amendment] in response to court decisions that admitted expert testimony too liberally,” and the enactment of the amendment “reflect[s] an intent to empower courts to take seriously their roles as gatekeepers of expert evidence.” The Court excluded opinions from an expert who purported to apply his experience but the conclusions he reached did not have factual support and failed “to account for . . . reasonable alternative explanations,” leaving an unacceptable analytical gap between his basis and his opinions.

In In re Terrorist Attacks on September 11, 2001, The U.S. District Court for the Southern District of New York observed that the Advisory Committee on Evidence Rules “proposed the changes [reflected in the 2023 amendment] in response to court decisions that admitted expert testimony too liberally,” and the enactment of the amendment “reflect[s] an intent to empower courts to take seriously their roles as gatekeepers of expert evidence.” The Court excluded opinions from an expert who purported to apply his experience but the conclusions he reached did not have factual support and failed “to account for . . . reasonable alternative explanations,” leaving an unacceptable analytical gap between his basis and his opinions.

The Fourth Circuit in Sardis v. Overhead Door Corp. recognized that the amendment seeks to correct the misguided practices that some courts follow.

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.

In Huss v. Sharkninja Operating LLC, the 2023 amendment mandates that the proponent show by a preponderance that the Rule 702 elements have been established and also “requir[es] the Court to determine whether an expert’s methodology is reliable rather than leaving that determination to the jury.” The Court excluded the expert because the plaintiff “has not sustained her burden of showing by a preponderance of the evidence that [the expert’s] methodology is reliable.”

The 2023 amendment requires the proponent to establish that an expert’s opinions are admissible by a preponderance of the evidence, and clarifies that the sufficiency of an expert’s factual basis and the reliability of the expert’s application of her methodology to the facts of the case are admissibility issues for the court to decide.  In Justice v. Beltway (USA), Inc., the Court found inadmissible a key opinion because “Plaintiffs have failed to establish by the preponderance of the evidence” that the opinion “is based on sufficient facts and data and is the result of a reliable application of a methodology.”

The U.S. District Court for the Central District of California In re: NFL “Sunday Ticket” Antitrust Litigation recognized that the Rule 702 amendment forbids expert witnesses from making claims unsupported by the expert’s methodology.

In Klein v. Meta Platforms, Inc., the Court described the 2023 amendments as “intended to amplify” the requirements of Rule 702. Courts should evaluate whether an expert identified sufficient facts or data to support every necessary link in her theory, and where that support is lacking may exclude the opinions due to the existence of an “analytical gap.”  The Court excluded the opinions at issue because the expert lacked a factual basis for a step necessary to reach his conclusion.

Judge David Campbell, the former Chairman of the Judicial Conference Committee on Rules of Practice and Procedure, observed in Jensen v. Camco Mfg., LLC that the 2023 amendment clarified that Court’s gatekeeping responsibility: “if the proponent does not meet its Rule 702 burden, the expert testimony is not admissible.” In considering engineering opinions based on a “differential diagnosis” methodology applied to determine if a product defect caused an accident, the Court observed that this type of analysis “is reliable only if the expert first ‘ruled in’ only those potential causes that could have produced the injury in question.” The Court ruled that the opinions must be excluded: “He speculates that the flame must have been due to some transient defect he did not detect, but speculation is not a reliable engineering method under Rule 702(c). And relying on a speculative cause because it ‘cannot be ruled out’ is not a reliable application of an engineering method to the facts of this case under Rule 702(d).”

In re Deepwater Horizon BELO Cases, the Court affirmed exclusion of the plaintiffs’ general causation experts, finding that their failure to identify a threshold exposure dose that will produce harm rendered their methodology unreliable.

Under amended Rule 702, “the burden is on the party offering the expert testifying based on experience to explain how that experience led to the conclusion he reached, why that experience was a sufficient basis for the opinion, and just how that experience was reliably applied to the facts of the case.”  In Brashevitzky v. Reworld Holding Corp., the Court excluded the expert’s opinions where the witness did not explain how his experience allowed him to identify specific areas that were contaminated: “there is too great of an analytical gap between [the expert’s] incomplete analysis in his declaration and his opinion to be admissible[.]”

Under amended Rule 702 in U.S. v. Jefferson, “the proponent of the expert testimony bears the burden of proving by a preponderance of the evidence that the testimony being proffered is admissible.” It is the responsibility of the Court to determine that the expert’s opinions are reliable, rather than deferring that determination to the jury, even when the opinions arise from the expert’s experience. The Court excluded most of the experience-based expert’s opinions because the defendant “has not shown that it is more likely than not that the testimony of [the] defense expert meets the requirements of Rule 702 of the Federal Rules of Evidence.”