By Lee Mickus, a Partner in the Denver, CO office of Evans Fears Schuttert McNulty Mickus LLP. He serves as Co-Chair of the Rule 702 committee for Lawyers for Civil Justice. In that capacity he has written articles, given presentations to judges and attorneys, and provided comments and testimony to the Advisory Committee on Evidence Rules during the rulemaking process that led to the 2023 amendments.

Introduction

On December 1, 2023, amended Federal Rule of Evidence 702 became effective.  The Advisory Committee’s Note declares that the amendments were put into place to “clarify and emphasize” the applicable burden of proof and the admissibility criteria, and not to change the standard.  Put more directly, the Rule 702 amendments have a corrective purpose: before the amendments, some courts had “failed to apply correctly the reliability requirements of that rule.”  In its final report to the Judicial Conference Committee on Rules of Practice and Procedure prior to adoption of the proposed amendments, the Advisory Committee identified two frequent errors that courts had been making, and that the amendments sought to remedy:

the Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d) – that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology – are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible. These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence.

Now that new Rule 702 has been in effect for almost four months and has been applied in more than 100 rulings, it is appropriate to ask whether the amendments have succeeded in correcting the earlier misunderstandings.  The discussion which follows will review the most notable gatekeeping decisions issued since December 1 in order to answer this question. The results have been mixed.  Many of the recent orders recognized the amendments’ directive that courts must focus on Rule 702’s admissibility criteria and must scrutinize the proposed experts’ testimony using the preponderance standard.  These decisions reflect proper adherence to the amendments’ objective.  Other decisions, however, overlooked the new rule’s specification that the court, and not the jury, must determine if the expert meets the enumerated requirements.  These rulings rely on statements from prior caselaw that declare an expert’s factual basis and methodological application to be “questions of weight and not admissibility,” and which the Advisory Committee’s Note rejected as being “an incorrect application of Rules 702 and 104(a).”  Finally, a number of orders simply ignored the most visible aspect of the amendments—bringing the preponderance standard into the text of Rule 702 itself—and instead evaluated admissibility challenges with the view that courts should decide admissibility using a different scale, one that prefers admission and reserves exclusion for exceptional situations.  With apologies to Sergio Leone, these post-amendment decisions can be categorized as “the Good, the Bad and the Ugly.”

These observations about recent Rule 702 rulings then beg a further question: how should counsel adjust their litigation tactics to emphasize amended Rule 702’s requirements?  Several steps to focus courts’ attention on the corrective nature of the amendments will be suggested.

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