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Proposed amendments to Federal Rule of Evidence 702

11/2/21

By: Jacob E. Daly

The federal judiciary’s Advisory Committee on Evidence Rules has proposed two significant amendments to Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony.  These amendments would change Rule 702 as follows (additions are underlined; deletions are lined through): 

According to the proposed Committee Note that would accompany these amendments, the first amendment is intended “to clarify and emphasize that the admissibility requirements set forth in the rule must be established to the court by a preponderance of the evidence.”  This is necessary because many courts have incorrectly determined that the sufficiency of the basis for an expert’s opinions, as well as the application of the expert’s methodology, are questions of weight and not admissibility.  Such decisions are an incorrect application of Rule 702 and Rule 104(a), which requires courts to determine whether a witness is qualified and whether evidence is admissible. 

A recent study conducted by Lawyers for Civil Justice provides empirical support for the Advisory Committee’s findings.  LCJ reviewed every decision by the federal district courts during 2020 that ruled on the admissibility of expert testimony under Rule 702.  Of the 1,059 decisions, only 373 (35%) correctly articulated the proponent’s burden of proof on the admissibility of expert testimony as a preponderance of the evidence.  The remaining 686 (65%) did not mention the proponent’s burden of proof or did not identify it as a preponderance of the evidence.  In 135 decisions (13%), the judge indicated (wrongly) that there is a presumption of admissibility of expert testimony under Rule 702.  And in 61 decisions, the judge applied the preponderance of the evidence standard while also indicating that there is a presumption of admissibility.  This is remarkable because the preponderance of the evidence standard and the presumption of admissibility are inconsistent.  This study confirms the need for the first amendment to Rule 702. 

The second amendment to Rule 702 is designed, according to the proposed Committee Note, “to emphasize that a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert.”  Although Daubert cautions judges about focusing on an expert’s opinions, Rule 702 requires them to ensure that an expert’s opinions stay within the limits of his or her basis and methodology.  This does not mean judges should “nitpick” an expert’s opinions, but neither should judges allow an expert “to make extravagant claims that are unsupported by the expert’s basis and methodology.” 

The Advisory Committee is scheduled to have a virtual public hearing on these amendments on January 21, 2022, and it will receive public comments until February 16, 2022.  Thereafter, if it approves these amendments, it will forward them to the Committee on Rules of Practice and Procedure for an independent review and analysis.  That committee would then recommend (or not) the amendments to the Judicial Conference of the United States, which in turn would recommend (or not) the amendments to the United States Supreme Court.  If the Court approves the amendments by May 1, they become effective on December 1 of the same year unless Congress enacts contrary legislation. 

For further information or for further inquiries you may contact Jacob E. Daly at jacob.daly@fmglaw.com