The Need for Reform in the States
State rules governing admissibility of expert evidence should be amended to ensure courts apply the appropriate standards to determine whether “expert testimony” is admissible. States should adopt changes similar to the federal 702 amendment to ensure the fair administration of justice in state courts.
States should update their evidence rules to ensure that unreliable science does not unjustly influence juries.
Progress By State
Many states are moving towards adoption of rule reforms in alignment with the federal 702 amendment.
Different states enact such changes in different ways – some through the judiciary and others through legislative action.
The Arizona Supreme Court issued an order on August 22 changing its Rule 702 to conform with the amended federal rule. The rule took effect on January 1, 2024.
https://www.azcourts.gov/rules/Rule-Amendments-from-Recent-Rules-Agenda-s
Legislation which includes an amendment to Alabama Rule of Evidence 702 has been introduced in both the State House and State Senate. Alabama Senate Bill 293 can be found here. Alabama House Bill 420 can be found here. Concurrently, material in support of a rule change has been submitted to the Supreme Court’s Evidentiary Rules Committee.
The Florida State Bar is considering recommendations to the legislature regarding changes to the Florida Code of Evidence. 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. A working group has been formed in support of a change to the state code of evidence. Please contact Dan Steen at dsteen@lfcj.com if you are interested in being added to this working group.
A working group has been formed to consider potential amendments to the Illinois expert evidence statute, Illinois Rule of Evidence 702. 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 Sidley Austin LLP, EChiarello@Sidley.com.
The Kentucky Supreme Court on June 24 approved an amendment to KRE 702 to make it essentially identical to amended FRE 702. This action followed an order by the Kentucky Supreme Court ordering a public comment period to run through April 15, 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. The rule, attached here, is effective on July 1, 2024.
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.
Lloyd “Sonny” Shields (Irwin Fritchie Urquhart Moore & Daniels, LLC), a member of the Louisiana Law Institute Civil Procedure Committee, presented a proposed rule amendment to Committee to bring Louisiana Code of Evidence Article 702 into alignment with the amended federal rule. The Committee recommended and the Louisiana Supreme Court approved the amendment. The rule change was referred to the Louisiana State Legislature for approval. Senate Bill 16 was introduced by Senator Pressley on February 25 on the recommendation of the Institute, It codifies the amendment as part of the Louisiana Code of Evidence effective August 1. Following consideration by the Senate Judiciary Committee, the bill was adopted by the Louisiana Senate by a vote of 38-0.
View the text of the legislation here.
The Louisiana House passed SB 16 by a vote of 90-0 on May 13.
The bill implementing the amended expert evidence rule was signed into law by Louisiana’s Governor on May 21. The rule change becomes effective on August 1. Louisiana becomes the third state, joining Arizona and Michigan, to adopt the federal rule change.
For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese). For additional information on the legislation, contact Dan Steen (Lawyers for Civil Justice), or Taylor Brett (Adams & Reese).
Following public comment that closed on March 5, the Maryland Supreme Court without elaboration rejected the proposal of the state’s Standing Committee on Rules of Practice and Procedure to amend Maryland Rule of Evidence 5-702. The Supreme Court’s order is found here. LCJ’s comment in support of the rule change can be found here.
On March 27th, 2024, the Michigan Supreme Court adopted the amendment to Michigan Rule of Evidence 702 on expert evidence admissibility, which went into effect on May 1st. Michigan joined Arizona in bringing its expert evidence rule it into line with the amended federal rule.
LCJ thanks Mary Massaron, of Plunkett Cooney, and Mark Behrens, of Shook Hardy, for their advocacy on behalf of the amended rule. Mary and Mark prepared and filed the linked public comment filed with the Michigan Supreme Court.
Rule 702. Testimony by Expert Witnesses
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:
(a)-(c) [Unchanged.]
(d) the expert’s opinion reflects a reliable application of has reliably applied the principles and methods to the facts of the case.
Michigan lawyers are encouraged to file comments on the proposed amendment.
Massaron and Behrens Comment on Proposed Michigan Rule of Evidence 702 Amendment
January 31, 2024
View Comment Letter
Mississippi Rule of Evidence 702 follows the current federal standard and efforts are now underway to seek an amendment of the rule. If you are interested in learning more about the potential rule change in Mississippi, please contact William Gage, with Butler Snow, at William.Gage@butlersnow.com or LCJ Executive Director Dan Steen at Dsteen@lfcj.com.
A statutory change is required to amend Missouri’s expert evidence rule. A working group has been formed in support of an amendment to bring Missouri into alignment with the federal rule. To participate in this effort, please contact Dan Steen at Dsteen@lfcj.com.
A working group is being organized to consider the opportunity to amend New Jersey’s Rule of Evidence 702. If you are interested in participating in this effort, please contact LCJ Executive Director Dan Steen, Dsteen@lfcj.com, or Tim Freeman, with Tannenbaum Keale, at tfreeman@tktrial.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.
The Ohio Supreme Court adopted a proposed amendment to the Ohio Rule of Evidence 702 bringing it into conformity with FRE 702, effective on July 1, 2024. The approval of the amended rule followed two comment periods running from September 2023. The rule amendment proposal is found here. The final amended rule will be posted when published by the Court.
Jim McCrystal (Sutter O’Connell) led advocacy efforts in support of the rule change and numerous organizations filed in support of the rule amendment. Mark Behrens (Shook Hardy) led advocacy efforts on behalf of national organizations supporting the rule.
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.
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. Thank you to U.S. Virgin Islands lawyer Andrew Simpson, asimpson@coralbrief.com, for reporting on the amended rule, which is available here.