Rule of Evidence 702 Is Changing Faster Than You Think

• Pages: 23-24
• Date: 01 April 2023
• Author: Daniel P. Elms

ll of us who regularly deal with testifying expert wit-

nesses are familiar with Federal Rule of Evidence

702 and its state law equivalents. In its current

form, the federal version provides, in relevant

part:

A witness who is qualied as an expert by knowledge, skill,

experience, training or education may testify in the form of

an opinion or otherwise if:

(a) …

(b) the testimony is based on sufcient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert has reliably applied the principles and methods

to the facts of the case.

This has been the form of Rule 702 since it was last amended

in 2000, and there are thousands of federal court opinions

interpreting and construing its language.

In May 2021, the Advisory Committee on Evidence Rules

gave nal approval to a proposed amendment to Rule 702.

Then in May 2022, after allowing a period for public com-

ment, the advisory committee issued its nal report to the

Standing Committee on Rules of Practice and Procedure. The

advisory committee recommended that the proposed amended

Rule 702 be conrmed and take effect on December 1, 2023.

The coming amendment to Rule 702 is either profoundly

signicant or entirely perfunctory. Or something in between.

The rst part of the rule will state that “a witness who is

qualied as an expert [ ] may testify in the form of an opinion

or otherwise if the proponent has demonstrated by a prepon-

derance of the evidence that…” (new language in italics), and

then it sets forth the conditions for admissibility. Subsection

(d) will also change to require proof that “the expert’s opinion

reects application of the [reliable] principles and methods to

the facts of the case” (same).

You’re Doing It Wrong

The advisory committee’s report also included a lengthy

discussion about the perceived need and rationale for the

amendment. It lamented “that many courts have declared

that the reliability requirements set forth in Rule 702(b) and

(d)…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 preponder-

ance of evidence.”

Then, in the spirit of a hundred online memes, the advisory

committee told our federal courts “You’re Doing It Wrong.”

The report states that in “a fair number of cases,” courts have

admitted expert testimony “even though the proponent had

not satised the Rule 702(b) and (d) requirements by a pre-

ponderance of evidence—essentially treating those questions as

ones of weight rather than admissibility[.]” The advisory com-

mitte opined that such approach was contrary to U.S. Supreme

Court holdings and Rule 104(a).

So far, no big deal. The advisory committee did not think

an existing rule of evidence was meeting its objectives regard-

ing the admission of expert testimony, so it recommended

amending that rule to better ensure those goals. But the advi-

sory committee’s rulemaking process and the march of federal

jurisprudence found a strange intersection.

The Future Visi ts the Present

Unsurprisingly, litigants took a keen interest in the proposed

amendment and the advisory committee’s comments. But per-

haps less predictably, courts began to rely on those comments

to inform their decisions on pending Rule 702 admissibility

issues. In Sardis v. Overhead Door Corp., for example, the

appellate court cited the advisory committee’s admonishments

in its decision reversing the district court’s admission of expert

testimony on shipping container design. And in Bishop v.

Triumph Motorcycles America Ltd., the district court followed

the path set by Sardis and did the same regarding expert testi-

mony on motorcycle design and safety.

Notably, both courts relied on the advisory committee’s

critiques before they were conrmed in its nal report. And in

the Sardis case, the advisory committee had not even issued

its comments when the district court made its decision to per-

mit the expert witness testimony, or when the appellate court

heard argument on the matter. So Sardis reversed the district

court based, in part, on advisory committee language that did

not exist when the district court made its decision and which

rationalized an amendment that might—if it were subsequently

recommended and approved—go into effect 26 months later.

Many Cooks in th e Judicial Ki tchen

I recall reading something once about the wisdom of diffusing

legal power. The legislature would create the laws, the executive

would enforce the laws, and the judiciary would explain what

those laws meant when applied to the people who had to live

under them. The last part was important because, among many

other reasons, our judiciary decides matters on a case-by-case

basis when actual legal controversies are submitted to it.

Granted, the “separation of powers” analogy is imperfect

here because in the context of the federal rules of evidence,

the judiciary both interprets and enforces the “laws” (rules).

Nevertheless, surely there is value in permitting our courts the

space and autonomy to do what we ask them to do without

muddling the issue. Indeed, it is ironic that the advisory com-

mittee would mention Rule 104(a) in support of its critiques

because that rule provides that “[t]he court must decide any

Rule of Evidence 702 Is Changing

Faster Than You Think

By Daniel P. Elms, Litigation News Editor-in-Ch ief

SPRING 20 23 • VOL. 48 NO. 3

23 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE