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For almost as long as we’ve been blogging, we’ve complained about some courts’ flaccid and lackadaisical Daubert gatekeeping.  It’s not just trial courts, but courts of appeals as well.  Now it appears that the Advisory Committee on Civil Rules of the Federal Judicial Conference shares our frustrations.  The Committee recently approved a couple of amendments to Fed. R. Evid. 702 intended to clamp down on inordinately generous gatekeeping.  Here are the new amendments as we understand them:

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 court finds that] the proponent has demonstrated by a preponderance of the evidence that:

(a) the expert’s witness’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 witness’s has reliably applied] expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Brackets and italics indicate deletions; bold and underlining indicate additions.

The first of these proposed changes specifies that, to admit an expert opinion, a court must find all of the substantive Rule 702 criteria – helpfulness to the jury, sufficient basis, reliability, and fit – have been met by a preponderance of the evidence.  The Draft Committee Notes explain that this change is explicitly to reject “many” overly lenient judicial applications of Rule 702:

First, the Rule has been amended to clarify and emphasize that the admissibility requirements set forth in the Rule must be established to the court by a preponderance of the evidence. . . .  [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). . . .

The Committee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to correctly apply it when applying the reliability requirements of that Rule.

The amendment clarifies that the preponderance standard applies to the three reliability based requirements added in 2000. . . .  The amendment focuses on subdivisions (b)-(d) because those are the requirements that many courts have incorrectly determined to be governed by the more permissive Rule 104(b) standard. . . .

[T]his does not mean, as certain courts have held, that arguments about the sufficiency of an expert’s basis always go to weight and not admissibility.  Rather it means that once the court has found the admissibility requirement to be met by a preponderance of the evidence, any attack by the opponent will go only to the weight of the evidence.

(Emphasis added).  This preponderance standard is not really new; it has ostensibly been the law all along, but too many courts have succumbed to the improper reasoning that “if it’s a close call, it goes to the weight.”  Thus, the Civil Rules Committee decided that an explicit reminder – right in the black letter of Rule 702 – is necessary.

This new amendment rejects treating problems with helpfulness to the jury, sufficient basis, reliability, and fit as mere matters of “weight” for the jury to decide.  We did a quick Westlaw search of Daubert cases that used “method!” or “basis” within the same sentence as “weight” within four words of “admissibility.”  It produced 920 cases.  Even a more circumscribed search using the exact phrase “weight not admissibility” produced 162 opinions.  That gives some idea of the magnitude of this problem.

The Civil Rules Committee seems convinced as well.  The Agenda Book released ahead of the recent meeting, indicated that this rules change enjoyed “unanimous” support:

Amendment to Rule 702 (Testimony by Expert Witnesses). Judge Schiltz explained that the committee was looking at two issues relating to testimony by expert witnesses.  The first was what standard a judge should apply when considering whether to allow expert testimony.  It is clear that a judge should not allow expert testimony without determining that all requirements of Rule 702 are met by a preponderance of the evidence.  The requirements are that the testimony will assist the trier of fact, that it is based on sufficient facts or data, that it is the product of reliable principles and methods, and that the expert reasonably applied those principles and methods to the facts at hand.  It is not appropriate for these determinations to be punted to the jury, but judges often do so.  For example, in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.  There is unanimous support in the Evidence Rules Committee for moving forward with an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.

Agenda Book at p.36 (Report of the Advisory Committee on Evidence Rules).  Thus, it seems that there is strong likelihood that this amendment will ultimately be approved.

The second amendment tweaks the requirement that expert opinions fit the facts of the particular case to require that the necessary “reliable application of the principles and methods to the facts of the case” appear in the expert’s actual “opinion.”  The Draft Committee Notes reflect that this amendment was to preclude “extravagant claims that are unsupported by the expert’s basis and methodology.”

Rule 702(d) has also been amended to emphasize that the trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert.  A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology.  Judicial gatekeeping is essential because jurors may be unable to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, and jurors may lack a basis for assessing critically the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.

Id. at p.2 (emphasis added).

Thus, experts should henceforth be prohibited from “assertions of absolute or one hundred percent certainty” particularly when “the methodology is subjective and thus potentially prone to error.”  Id.  Experts are also precluded from exaggerating the reliability of their opinions beyond “those inferences that can reasonably be drawn from a reliable application of the principles and methods.”  Id.  We’ve encountered this problem as well, where experts recites things like “differential diagnosis” (actually “etiology”) or “Bradford Hill,” as if the label alone is enough to establish “fit,” and all too often reviewing courts don’t bother to look beneath the label to see what’s actually there – or not there.  This amendment will make it clearer that substance, not labels, are what is important under Rule 702.

While we don’t think that these amendments by themselves will resolve the current Daubert morass, they are a welcome step in the right direction, and their eventual adoption cannot, in our reliable and fully supported opinion, come too soon.