By James Ford, Senior Vice President and Group General Counsel, Legal and Compliance, of GlaxoSmithKline.

General Counsel and their legal teams can help ensure the reliability of scientific and other expert testimony admitted in federal court by filing a comment or testifying in support of a proposed amendment to Rule 702 of the Federal Rules of Evidence. The amendment, which is under consideration by the Judicial Conference Advisory Committee on Evidence Rules (“Committee”), would make clear that the proponent of expert testimony is required to demonstrate its admissibility by a preponderance of the evidence. The amendment addresses decades of inconsistent and irreconcilable rulings about the scope and application of Rule 702 and the trial court’s obligation to bar unreliable expert testimony from the courtroom.

Public comments are due February 16, 2022, but sooner is better. General Counsel and others who wish to testify at the Committee’s virtual public hearing on January 21, 2022 should register as soon as possible but at least 30 days in advance. You can find more information about the public comment process on the United States Courts website (https://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment).

Why an amendment to Rule 702 is needed

District and circuit courts still exhibit confusion about how to apply Rule 702, despite amendments made in 2000 to “implement[] the standards of Daubert and its progeny and provid[e] a uniform structure for assessing expert testimony in light of all the case law.”1 Examples include: (1) the continued use of outdated, pre-2000 admissibility standards; (2) application of a presumption of admissibility of expert testimony not embodied in Rule 702; (3) statements that the sufficiency of the expert’s factual basis under Rule 702(b) is an issue of weight for the jury, rather than admissibility for the court, and (4) holding that the reliability of an expert’s methodology under Rule 702(d) is not subject to the gatekeeping function.2 Decisions like these create opportunities for factually unsupported or otherwise unreliable opinion testimony to drive a jury’s decision making, with important consequences outside the courtroom.

The Committee’s proposed amendment addresses these concerns by clarifying and emphasizing that the proponent of expert testimony must establish Rule 702’s admissibility requirements “by a preponderance of the evidence.” In doing so, it resolves misunderstandings about how Rule 702 should be applied in conjunction with Rule 104(a), which says the court must decide the preliminary questions of whether a witness is qualified and the evidence is admissible, and Rule 104(b), which allows the jury to determine what weight to give the evidence after the court has admitted it.3 This an important clarification that will help both courts and counsel follow Rule 702, particularly where courts have erroneously applied a presumption of admissibility of expert opinions.4

Additional recommendations to enhance the reform

Lawyers for Civil Justice (“LCJ”), an organization representing in-house and defense counsel and the three major defense bar organizations, strongly supports the proposed amendment and has made several thoughtful recommendations to ensure the amended Rule will be as effective as possible.5 You may wish to incorporate some or all of these suggestions in your own comment to the Committee. LCJ’s recommendations include:

  • Adding language to Rule 702 explicitly stating “the court” must determine admissibility. While the proposed Committee Note is clear that the court is the decision maker, the proposed amended Rule language states simply that expert evidence is admissible if “the proponent has demonstrated by a preponderance of the evidence” that the requirements are satisfied. This small change would limit any opportunity for misunderstanding.
  • Expanding the Committee Note to confront the ongoing problem of reliance on outdated, erroneous case law. A handful of cases are repeatedly cited as authority for positions that are directly at odds with Rule 702’s requirements. Identifying the most troublesome cases the amendment is meant to address would be extremely helpful to courts and counsel as they seek to properly apply the amendment.6 This approach was taken in an earlier rulemaking.7
  • Emphasizing in the Committee Note that Rule 702 does not favor any particular outcome. The Rule assigns the burden of proof to the proponent of the testimony. It does not create a presumption of admissibility or otherwise endorse a policy objective favoring admissibility of expert evidence. Numerous courts have either misapplied or failed to apply the requirements of Rule 702 because of an underlying, and incorrect, presumption that the Rule “liberalized” the admissibility standard for expert testimony and therefore “favors” admissibility. The Note’s text should make explicit the neutrality of Rule 702. This would help reduce any confusion that results from attempting to enforce a burden of proof while also applying an erroneous presumption favoring admissibility.

While the proposed amendment is considered, corporate and defense counsel can help change the culture by referring to “Rule 702” rather than “Daubert” when discussing expert admissibility standards. The near-universal use of the terms “Daubert motions” and “Daubert hearings” misleads people into focusing on potentially outdated caselaw rather than on Rule 702.

The Committee’s proposal to address the misunderstandings that have weakened the decision-making process for the admission of expert testimony holds great promise to ensure only reliable and relevant expert testimony is admitted, thereby improving the judicial system and jury outcomes. The next few months provide a critical opportunity for corporate and defense counsel to support its adoption and success.

Notes

  1. See Daniel Capra, Memorandum to the Advisory Committee on Evidence Rules, n.6 (Apr. 21, 2018), Agenda Book for Advisory Committee on Rules of Evidence April 26-27, 2018, at 92.
  2. See, e.g., David E. Bernstein and Eric G. Lasker, Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, 57 Wm. & Mary L. Rev. 1, (2015); Lee Mickus, Gatekeeping Reorientation: Amend Rule 702 to Correct Judicial Misunderstanding About Expert Evidence, Washington Legal Foundation, Critical Legal Issues Working Paper Series, Number 217 (May 2020).
  3. See Proposed Committee Note, Preliminary Draft, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure and the Federal Rules of Evidence, at 309 (Aug. 2021).
  4. The proposed amendment already has proven useful in explaining the gatekeeping obligation. In August, the U.S. Circuit Court for the Fourth Circuit reversed a jury verdict in a product liability action, reasoning that the district court abused its discretion by allowing the admission of contested expert testimony with the explanation that the issues of relevance and reliability impacted only the weight of the experts’ testimony, not their admissibility. Sardis v. Overhead Door Corp., 10 F.4th 268, 281 (4th Cir. 2021). The Fourth Circuit explained that its decision was “confirmed by the Advisory Committee on Evidence Rules’ current proposal to amend Rule 702,” which had been unanimously approved by the Committee in April 2021. As the Fourth Circuit indicated, the proposed advisory committee note explains: “‘[U]nfortunately many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testimony], and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.’” Id. at 284. See Evan M. Tager & Geoffrey M. Pipoly, Fourth Circuit Issues Important Decision on District Courts’ Gatekeeping Obligation, WLF Legal Pulse (Oct. 4, 2021).
  5. Lawyers for Civil Justice, Comment to the Advisory Committee on Evidence Rules (Sept. 1, 2021).
  6. LCJ identifies the following cases as the three most frequent sources of incorrect statements about Rule 702’s standards: Loudermill v Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility …”); Viterbow v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility …”); and Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (holding that the “soundness of the factual underpinnings of the expert’s analysis” are “factual matters to be determined by the trier of fact”). See LCJ Sep. 1 Comment at 7.
  7. The Committee Note explaining the 2015 amendment to Federal Rule of Civil Procedure 37(e)(2) cites and rejects a US Circuit Court of Appeals case to communicate the Federal Civil Rules Advisory Committee’s intentions for that amendment. Fed.R.Civ.Pro. 37(e)(2), 2015 Committee Note.