Seemingly capricious applications of Federal Rule of Evidence 702 have caused frustration among some attorneys for years. Starting in 2017, a committee formed to address the issue and their recommendations are now out.
Legal teams are well acquainted with the Federal Rule of Evidence 702, which establishes a standard for the admissibility of expert witness testimony. Rule 702 has become a powerful tool for litigators, helping ensure unreliable information is excluded from consideration by a jury. This purpose makes use of the rule critical, as inconsistent application of it dramatically impacts admission of an expert’s testimony. This purpose is also the reason the Judicial Conference Advisory Committee has proposed amendments to Rule 702, amendments that aim to bring consistency to the admission of expert witness testimony.
Currently, there are differences in the way federal courts assess whether expert testimony is admissible. From the perspective of some, varied understanding and utilization of the rule has negatively affected the decision-making process for expert testimony admission. The path to these amendments began with a Symposium on forensic experts, specifically addressing the challenges to forensic evidence detailed in a report by the President’s Council of Advisors on Science and Technology. A subcommittee was subsequently assembled to evaluate the situation and treatment of forensic experts, who recommended against action on the issue because of the overlap with Rule 702.
While this situation with forensic experts sparked the fire that led to proposed amendments, the lack of uniformity is most common in cases dependent on medicine and science testimony presented by an expert as proof of causation. There is often a lot on the line in these matters and the application of Rule 702 can impact the final verdict.
An example of how these jurisdictional inconsistencies impact a case can be seen in the U.S. Supreme Court case, Monsanto Company v. Edwin Hardeman. In this instance, a petition for certiorari is pending as the defendant requests the court’s perspective on whether the “Ninth Circuit’s standard for admitting expert testimony—which departs from other circuits’ standards—is inconsistent with this Court’s precedent and Federal Rule of Evidence 702.” The concern here is that the Ninth Circuit’s standard is biased, historically leaning toward admissibility where other circuits do not.
After four years of comprehensive study and debate, the Judicial Conference Advisory Committee on Evidence Rules has proposed amendments that aim to bring clarity to the application of Rule 702. The goal of the committee’s proposed amendments is to avoid verdicts based on inadmissible evidence by ensuring juries are not making decisions based on inaccurate and unsound expert witness testimony.
The proposed amendments would change Rule 702 in the following ways:
A qualified witness determined by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if there is 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 principles and methods to the facts of the case.
According to the committee, the amendments intend to clarify the admissibility standard and assert the judicial authority established in Daubert v. Merrell Dow Pharmaceuticals Inc. These amendments are backed by a third party study conducted by Lawyers for Civil Justice that looked back on all federal cases decided in 2020 that included the admissibility of expert testimony within Rule 702. These findings align with the committee’s proposed amendments as they shed light on irregularities in the application of the admissibility standard.
On January 21, 2022, a virtual public hearing will be held regarding the proposed amendments. Should the amendments be approved, the Committee on Rules of Practice and Procedure will conduct a review and analysis and the amendments will be suggested to the Judicial Conference of the U.S. Finally, should the Judicial Conference see fit, the amendments will be recommended to the U.S. Supreme Court who will have the choice to approve by May 1, 2022, positioning the amendments to take effect December 1, 2022.
An expert’s testimony has a significant impact on the decisions of a jury, which is why the reliability of their testimony is so important. The proposed amendments to Rule 702 should go a long way toward strengthening reliability and benefiting the justice system.
For more than 25 years, Round Table Group has helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.