Putting Expert Witnesses Under the Microscope: Evidence Rule Changes Reinforce Gatekeeping Role of Courts
By: Jeff Adams
On June 7, 2022, the Judicial Conference Committee on Rules of Practice and Procedure met to consider amendments to numerous rules impacting a variety of practice areas. Ironically, among the proposals to create the most discussion are changes that one of their main supporters, United States District Judge Patrick Schiltz, has said1 actually “does not change the law at all:” amendments to the language of Federal Rule of Evidence 702, which governs the admission of expert testimony.
The Committee unanimously approved the addition of language to the rule which, if finalized, would make explicit that courts are required to apply a preponderance-of-the-evidence standard to the Rule’s existing admissibility criteria. In the Committee Note2 approved alongside the amended language, the Committee states that this interpretation is already implied by a correct reading of the current interplay between the existing Rule 702 and Federal Rule of Evidence 104 which states that the court must decide preliminary questions about whether a witness is qualified. However, the Committee found it necessary to clarify the language in Rule 702 in light of widespread inconsistency in how federal courts apply Rules 104 and 702 in practice.
Further, the amendment would remove any doubt as to whether it is the court’s responsibility or the jury’s responsibility to determine whether the proponent of the opinion has met their burden. Currently, while the court’s role as “gatekeeper” is widely recognized in federal case law,3 concerns have arisen that juries are often tasked with assigning weight to issues that, under Rule 702, should have been determinative of admissibility.
“[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”4 Thus, the proposed amendments, rather than announcing a departure from the Daubert standard (or the 2000 Amendment that formalized it), serve primarily as a reminder to judges and attorneys alike that the proponent of expert testimony is responsible for demonstrating that the testimony is more likely admissible than not, and it is the court’s responsibility to decide whether that has been done. Punting the question to the jury if the judge determines that the jury itself could find the testimony credible—as has been done at an increasing rate over the past 20 years—can no longer be seen as an acceptable default ruling, lest the court be seen as abandoning its role as gatekeeper.
An additional change, to Rule 702(d), replaces the requirement that “the expert has reliably applied the principles and methods” with the similar language, “the expert’s opinion reflects a reliable application of the principles and methods.” This change, according to the Committee Note, “emphasize[s] that a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed.” This modest change in language is aimed at reminding courts to examine whether the opinions of experts, especially forensic experts, include declarations of certainty or elevated degrees of confidence that are not supported by their methods. “Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error.”
This change also purports to be a mere clarification, as “[n]othing in the amendment imposes any new, specific procedures.” Because of the insistence that these proposed changes are nothing more than clarifications of rules that the Committee insists are already in effect, practitioners need not wait for them to become effective, likely in December 2023, before arguing that courts should heighten the level of scrutiny to which they have become accustomed. By citing to the Committee Note and highlighting its unanimous support at every stage thus far, lawyers attempting to exclude unfavorable expert opinions may already have the authority they need to force judges to take a closer look when Daubert motions are filed.
It remains to be seen whether courts will take these amendments, and the directives underlying them, to heart. One thing seems certain, however: whether or not the changes in fact constitute a change to the law as currently written, we will be feeling the effects for years to come.
1https://www.reuters.com/legal/government/judicial-committee-adopts-controversial-change-expert-witness-rule-2022-06-07 2https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_final.pdf at 891-896.
3See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
4See Committee Note at 892.
Attorney Contact Info
Jeff Adams
jeff.adams@swiftcurrie.com
404.888.6274