New Federal Rule 702 Clarifies Expert Admissibility Requirements
In complex litigation, expert witnesses and the admissibility of their opinion testimony frequently are critical elements of a plaintiff's or defendant's case. Recent amendments to Federal Rule of Evidence 702 (effective December 1, 2023) have clarified the essential role of the trial judge in determining whether juries may hear and consider expert testimony.
Before the 2023 amendments, federal courts had interpreted the judge's gatekeeping function and the proponent's burden of proof regarding the admissibility of expert testimony across a wide, and inconsistent spectrum. Some courts required the proponent of expert testimony to prove to the judge by a preponderance of the evidence (more likely than not) that the proposed testimony met the Rule's four reliability criteria; other judges merely presumed admissibility and allowed the jury to determine the weight to give the testimony. The rationale for some courts' "presumption" of admissibility was that judges are ill-equipped to scrutinize expert testimony for methodological errors, analytical gaps, or overstated conclusions, and it is better to "just let the jury decide."
Amended Rule 702 clarifies that a proponent of expert testimony must prove, and the court must find, by a preponderance of the evidence, that the proposed expert testimony meets Rule 702's four reliability requirements: the expert is qualified, the testimony is supported by sufficient facts or data, the principles and methods are reliable, and the expert has reliably applied those principles and methods. The amended Rule expressly states that the proponent of the testimony must show that the expert's opinions and conclusions are based on sufficient facts and logically follow from the reliable application of reliable methods.
Rule 702 now reads as follows (added language in italics and deleted language struck through):
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
expert has reliably applied expert's opinion reflects a reliable application of the principles and methods to the facts of the case
The changes to Rule 702 are significant. The judge, and not the jury, is the sole gatekeeper to evaluate and determine the reliability, and hence admissibility, of expert testimony. Trial strategy and tactics will focus on selecting experts who not only can demonstrate expertise in their field, but who also can competently apply reliable methods in performing analyses and reaching conclusions. Proponents of expert testimony will need to be prepared to establish that it is more likely than not that proposed expert testimony is reliable and meets the requirements of Rule 702.
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