D’Arcy Vicknair founding partner, Andrew Vicknair, recently authored a blog for the American Bar Association and posted on The Dispute Resolver: The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence.
Every litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony. Primarily, expert testimony is governed by Rule 702 of the Federal Rules of Evidence. On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect. It is important to understand these amendments. The Supreme Court adopted the amendments proposed earlier this year from the Advisory Committee on Evidence Rules.
Specifically, the amendments to Rule 702 are illustrated below which identify added language in underline and the deleted language is crossed out:
Rule 702. Testimony by Expert Witness
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 has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The Committee Note for Rule 702 indicates that the amendment was needed for the purpose of clarifying and emphasizing that expert testimony may not be admitted unless the proponent can demonstrate to the Court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in Rule 104 – the preponderance of the evidence standard. Thus, admissibility of expert testimony must be established by a preponderance of evidence.
It was noted that many courts were following an incorrect application of Rules 702 and 104(a) finding that questions as to the sufficiency of an expert’s basis and application of methodology were questions of weight and not admissibility. However, the Committee clearly stated that the sufficiency of an expert’s basis and the application of a methodology are questions of admissibility and not of weight of the evidence. Ultimately, it was determined that the amendment was needed to emphasize the preponderance admissibility standard in Rule 702.
The Committee also clarified that once a Court has found it more likely than not that the admissibility requirement has been met, any attack on the expert opinion will only go to the weight of the evidence and not the admissibility.
Clarification to Rule 702(a)
Rule 702(a) always required that the expert’s scientific, technical, or other specialized knowledge help the trier of fact understand the evidence or to determine a fact in issue. While this requirement was unchanged, the Committee clarified that this requirement should be applied exactly as worded – simply that the testimony “help” the trier of fact. The Committee noted that some courts applied an incorrect standard that required the expert’s testimony “appreciably help” the trier of fact. The Committee noted that any standard other than “helpfulness” is unnecessarily strict and was not the standard under Rule 702(a).
Amendment to Rule 702(d)
Rule 702(d) was amended to emphasize that an expert opinion must stay within the bounds of what can be concluded from a “reliable application” of the expert’s methodology. The Committee focused on the role of judicial gatekeeping to limit an expert’s opinions to one that is based on a reliable application of the methodology. The Committee noted the importance of “gatekeeping” because jurors may lack the specialized knowledge to (1) meaningfully evaluate the reliability of an expert’s methods utilized for an opinion and (2) determine if/when an expert’s opinion goes beyond what the expert’s methodology may reliably support.
The amendment further recognized the court’s authority to pass judgment on the conclusions that the expert has drawn from the methodology. The Committee’s amendment is in line with the holding of General Electric Co. v. Joiner, 522 U.S. 136 (1997) that a trial court must not only consider the expert’s methodology but must also consider the expert’s conclusion – – so the methodology must be reliably applied.
The amendment does not impose any new procedures. Rather, the amendment clarifies that Rule 104(a) preponderance of the evidence standard applies to expert opinions under Rule 702. The Court’s role is not to “nitpick” an expert’s opinion to reach “a perfect expression” of what the expert’s methodology can support. Rather, the amendment does not permit an expert to make claims that are simply not supported by the expert’s methodology.
In sum, expert testimony cannot be presumed admissible; rather the proponent (attorney) must establish by a preponderance of the evidence that the expert’s testimony – the methodology and principles – – are reliable and the expert “reliably applied” their methodology and principles to the case at issue.
Even though the amendment did not take effect until December 1, 2023, Courts have already started to recognize the amendments in their rulings. See Kaneka Corp. v. Designs for Health, Inc., 2023 U.S. Dist. LEXIS 131412, *6 (D. Del. 3/3/2023); In re Anderson, No. 15-21681, 2023 Bankr. LEXIS 153, at *3 (Bankr. W.D. Tenn. 1/19/2023); Qari v. Am. S.S. Co., 2023 U.S. Dist. LEXIS 154447, *8 (E.D. Mich. 8/31/2023); Edge v. SRA Mgmt., LLC, 2023 U.S. Dist. LEXIS 151277, *23 (E.D. Tenn. 8-28-2023).
Next time you are working with an expert, take some time to consider and evaluate the expert opinion (expert’s methodology and application thereof) under the standards set forth under the recent amendments to Rule 702. While the rule has not undergone massive changes, the changes clarify what standards the Courts should apply going forward in evaluating expert testimony. It is also important to note that the weight of prior precedent may be diminished if based on a prior incorrect application of Rule 702 that is in conflict with the recent amendments. At the end of day, the methodology must be reliable and the expert must have reliably applied the methodology to the case at issue. As litigators, we must be prepared to defend the qualifications of experts, their methodology, and the expert’s conclusion – or how the expert applied the methodology.