A Practitioner’s Guide To Understanding the 2023 Amendments to Federal Rule of Evidence 702
Following more than two decades of various forms of misapplication of the “Daubert trilogy” of United States Supreme Court cases articulating the standards for admitting scientific and other forms of expert testimony, the December 1, 2023 amendments to Rule 702 have the effect of: (1) raising the admissibility bar by strengthening trial courts’ initial gatekeeping role, (2) requiring a tighter connection between experts’ opinions and the methods they use, and (3) continued monitoring of experts’ in-court testimony to be able to strike, when necessary, expert testimony that, as actually presented, no longer meets admissibility standards.
This article discusses (1) how courts were misapplying Rule 702 before the amendments, (2) the amendments to Rule 702, and (3) how the rule should be applied now.
How Courts Were Applying The Rule Before The Amendments
Prior to the Rule 702 amendments that took effect on December 1, 2023, courts were misapplying Rule 702 in three ways. First, despite the explicit directives of Rule 702(b) and (d), many decisions declared the factual basis of an expert’s opinion and the application of the expert’s methodology to the facts of the case to be matters of weight for juries to evaluate rather than admissibility considerations for the court to decide. Second, some courts did not assess expert testimony under the preponderance of the evidence burden of production that applies to Rule 702 inquiries, but instead relied on characterizations of Rule 702 as being a “liberal” standard or “presuming admissibility.” Finally, a number of judges allowed experts to overstate the conclusions that their methodology will actually support, resulting in expressions of a degree of confidence in the experts’ conclusions that go beyond what reliable science will allow.
The Rule’s Amendments
The amendments changed Rule 702 as follows:
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) 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’s opinion reflects a reliable application of the principles and methods to the facts of the case.
How The Rule Should Be Applied Now
It is now clear that courts must perform a Rule 702 analysis before admitting an expert opinion over objection. A court cannot simply invoke the language of the Rule and then admit a proposed expert’s testimony without finding by a preponderance of the evidence that the testimony meets all the Rule’s requirements. Furthermore, the judge’s gatekeeping duty is a continuing one. Rule 702(d) states that the expert’s opinion must reflect “a reliable application” of her principles and methods. Thus, if an expert overstates an opinion at trial, the court must strike the testimony.
An early example of a court correctly applying the 2023 version of Rule 702 is the Fourth Circuit Court of Appeals’ decision in Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021), a wrongful death action where the court factored the Advisory Committee’s findings and the amendment into its decision. The Fourth Circuit reversed a verdict for the plaintiff, finding that the trial court had “improperly abdicated its critical gatekeeping role to the jury and admitted [the testimony of plaintiffs’ experts] without engaging in the required Rule 702 analysis.” The court criticized the trial court’s failure “to perform any Daubert analysis” and its ruling “that the issues of relevance and reliability impacted only the weight of the experts’ testimony, not their admissibility.” The court held that when “the admissibility of expert testimony is specifically questioned, Rule 702 and Daubert require that the district court make explicit findings, whether by written opinion or orally on the record, as to the challenged preconditions to admissibility.”
Following the Fourth Circuit’s lead, there are other actions that litigants can take to ensure Rule 702 is applied correctly.
Briefs should stress the preponderance (“more likely than not”) standard in Rules 702 and 104(a). As explained, Rule 702 was misapplied by many courts after the 2000 amendment because courts were erroneously applying Rule 104(b)’s more permissive standard. Lawyers must remind courts not only that the preponderance standard is to be applied, but also that a “liberal thrust” admission policy (or its cousin, the “presumption of admissibility”) is incompatible with the text of Rule 702. As the chair of the Federal Advisory Committee’s Rule 702 subcommittee has written, the “elements of Rule 702, not the caselaw, are the starting point for the requirements of admissibility.”
Briefs also should avoid reliance on pre-2000 case law that is contrary to the text of the Rule. Cases that misapplied Rule 702 should no longer be cited. Importantly, this incorrect case law will not be flagged as such through Westlaw or Lexis, which generally only identify where cases have been expressly overruled or vacated by subsequent case law or statute. As such, practitioners will need to review the reasoning presented in support of these opinions, and identify for the court where and how such opinions fail to apply the proper Rule 104(a) standard of review.