On this gorgeous late-spring Philadelphia day, we are excited about a couple of things. The Drug and Device Law Dowager Countess is home, after an improbable recovery from a horrific fall. We just learned that the Colorado Symphony is resurrecting an (also improbably) cool tribute to John Denver we saw a few years ago, featuring original band members and the Symphony playing along to archival footage on huge screens. (We cried through the whole thing the last time). And the long-anticipated amendments to the Fed. R. Evid. 702 have been approved.
A little over a year ago, we reported that the Advisory Committee on Civil Rules of the Federal Judicial Conference had approved two significant amendments to the Fed. R. Evid. 702. In the interim, several of us on panelspoke on panels promoting the proposed changes, and Bexis took his advocacy to the next level, speaking at a PLAC meeting and filing his own substantial comment with the Rules Committee. We are delighted to report that, this week, the Committee on Rules of Practice and Procedure voted unanimously to approve the proposed amendments. Here is what is changing, and why it is good thing for all of us who struggle, under the old Daubert regime, to exclude experts who have no business seeing the light of a courtroom day.
Here is the amended text of the Rule, with deletions struck through and additions underlined:
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 has demonstrated by a preponderance of the evidence that:
a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Here is why both of these changes matter. The first amendment provides that the trial judge must exclude expert testimony unless the proponent of the evidence demonstrates, by a preponderance of the evidence, that all of the requirements of Rule 702 are satisfied. The amendment emphasizes that this is a judicial gatekeeping function – it is not the job of the jury. We have all seen, time and time again, refusing decisions to exclude experts who lack the qualifications to offer their opinions, or who arrived at the opinions through unreliable methodologies, with the cop-out refrain that such determinations “go to the weight of the evidence, not to its admissibility. ” The preponderance standard was always meant to apply to the entire rule, but the amendment makes this explicit. While there will still be misadventures, this change highlights the judicial rigor demanded before a jury is allowed to hear an expert’s opinions.
The second change – the amendment to subsection (d) – addresses an equally egregious, and ubiquitous, loophole in the old Daubert regime. Under the heading of “it’s the methodology that matters, not the ultimate opinion,” an expert could lay out an ostensibly-reliable methodology but reach a nonsensical conclusion, and the opinion would be deemed admissible. As the Committee Note explained, when the amendment to Section 702 (d) was proposed:
Rule 702 (d) has also been amended to emphasize that a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert. A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology. . . . [J]As jurors may be unable to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also be unable to assess the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.
Draft Committee Notes. In other words, the conclusion matters, and an expert should be excluded if the ultimate opinion does not logically follow from a reliable application of the expert’s principles and methods.
Beginning in the fall, the approved amendment will be reviewed by the Judicial Conference, then the US Supreme Court, and finally by Congress. Assuming Congress approves it, it will take effect on December 1, 2023. What should all of his mean, in practice? We all know that we can work up a case with dogged thoroughness, file thoughtful and artful motions, and send our witnesses to court scurpulously prepared. And it can all go out the window with the testimony of an opposing expert who should have been excluded. By their terms, the amendments should require judges to reclaim their “gatekeeper” roles rather than punting threshold determinations to juries who won’t make them until they have been swayed by testimony they never should have heard. And (yes, Virginia…), This has the potential to increase the fairness of the whole process. Ay, perchance to dream.