On December 1, 2023, an amendment to Federal Rule of Evidence 702 went into effect in the United States. The amendment, which can be accessed starting on page 18 here and is included below, clarifies that when it comes to the admissibility of expert testimony:
- It is the proponent who has the burden to establish admissibility of the expert by a preponderance of the evidence (“more likely than not”).
- The expert’s opinion must reflect a reliable application of the principles and methods to the facts of the case.
The Advisory Committee on Civil Rules has made clear that the changes to the rule are not intended to alter the law but rather are meant to clarify the correct standard in light of frequent misapplication by courts regarding the burden and the courts’ gatekeeping role over expert testimony.
Prior to its going into effect, courts already began to favorably cite the Rule 702 amendment. For example, in Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021), the U.S. Court of Appeals for the Fourth Circuit relied on the proposed rule to reverse a verdict that resulted from unsupported expert testimony. In so doing, the Fourth Circuit explained: “Consistent with  existing law –– and in accordance with the Committee’s pending rule –– we confirm once again the indispensable nature of district courts’ Rule 702 gatekeeping function in all cases in which expert testimony is challenged on relevance and/or reliability grounds.”1
Corporate litigants should be mindful of this amendment and use it to encourage courts to honor their gatekeeping function against proffered “junk” and other unreliable scientific testimony.
The Full Text of the Rule 702 Amendment:
Rule 702. Testimony by Expert Witnesses
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.
1 Sardis v. Overhead Door Corp., 10 F.4th 268, 283–84 (4th Cir. 2021).
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