Amendment Details
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 Court 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 Acetaminophen – ASD-ADHD Products Liability Litigation, the U.S. District Court for the Southern District of New York demonstrated effective judicial gatekeeping as outlined under the amended Rule 702 by repeatedly excluding the plaintiff’s general causation experts after ruling the experts failed to reliably apply their methodologies.
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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.
- 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.
- In Cohen v. Cohen, the Court overturned the admission of an expert because the district court undertook “no engagement with the arguments raised” in a Rule 702 motion challenging the reliability and fit of the expert’s opinions. “A district court’s gatekeeping responsibilities are not negated by the existence of an opposing expert, nor can a district court delegate its duty to the parties.”
- 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.
- 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.
- 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.”
- 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.”
- 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 2023 amendment confirms that the expert’s proponent bears the burden of establishing admissibility, and that the expert’s factual foundation must be shown sufficient in order for the opinion testimony to be admitted. The proffered expert in Kopp Development, Inc. v. Metrasens, Inc., however, unreliably based his opinion exclusively on projected data received from the plaintiff without performing any evaluation of those projections.
- In re Terrorist Attacks on September 11, 2001, the Court 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 Court recognized in Alter Domus, LLC v. Winget that the 2023 amendment was adopted because some courts had “sidestepped” their obligation to decide “whether the admissibility criteria have been satisfied.”
- 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[.]”
- 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 Colwell v. Sig Sauer, Inc., the Court was troubled where the expert expressed an opinion on causation “without reference to the specific facts” underlying the plaintiff’s incident – “there was no video footage, no explanation as to why Colwell’s pistol discharged, and no experimentation.” In light of this lack of foundation, the Court concluded that the “causation opinion does not pass muster under Fed. R. Evid. 702 because it is not ‘based on sufficient facts or data’; it is not ‘the product of reliable principles and methods’ and it does not ‘reflect[ ] a reliable application of the principles and methods to the facts of the case.’”
Procedural History
- 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.