Back in May, we discussed the latest amendments proposed by the Advisory Committee on Civil Rules to Fed. R. Evid. 702.  These amendments, while not changing the substance of Rule 702’s standards for admission of expert testimony – helpfulness, factual basis, reliability – are intended to reinforce other aspects of the Rule.  These changes are:  (1) requiring the proponent of the expert to meet its burden of proof, and (2) that expert opinions must not only apply methods that are “reliable,” in the abstract, but must reliably apply those methods in the context of the facts of each case in which they are offered.

Under the current rule, the Advisory Committee has concluded, too many judges are failing to exercise their gatekeeping function, and instead have been kicking the can, particularly on reliability, down the road to the jury.  That, the rules will now state, is error:

But many 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). . . .  [E]mphasizing 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. . . .  [Rule 702] 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.

Proposed Committee Note (emphasis added).

It’s about time.

Despite the existing language of Rule 702, we have misguided holdings like this:  “As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.”  United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011).  How did Finch get there?  By blindly quoting a 2009 case that in turn quoted a 1997 case.  Id.  Whatever was true in 1997 was error by 2011 (and even worse for the 17 cases since that have since cited this headnote in Finch) because it totally ignores the 2000 overhaul of Rule 702 that “respon[ded]” to the recognition in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and subsequent cases that federal district judges have “the responsibility of acting as gatekeepers to exclude unreliable expert testimony.”

The [2000] amendment affirms the trial court’s role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony. . . .  [T]he Rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful.  Consequently, [for] the admissibility of all expert testimony . . . the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.

2000 Committee Note.

There’s plenty more adverse, and simply wrong, Rule 702 caselaw involving admissibility of expert testimony created by courts that continue blindly following pre-2000 precedent.  First and foremost is the obsolete judicial chestnut about expert admissibility:  that exclusion of expert testimony is supposedly “the exception rather than the rule.”  That also comes, albeit indirectly, from pre-2000 precedent.  The 2000 Committee Note included a survey of sorts of that precedent, stating that “[a] review of the caselaw” revealed less than vigorous gatekeeping – that exclusion was the “the exception rather than the rule,” and the 2000 amendments were the Committee’s first attempt to do something about that.

Instead, courts intent upon avoiding their gatekeeping responsibilities have taken that line completely out of context – and converted it into a value judgment:  that lassitude was how things were supposed to be.  For more details, see Mickus, “Gatekeeping Reorientation:  Amend Rule 702 To Correct Judicial Misunderstandings about Expert Evidence” (May 2020), available here, and “Floodgates Not Gatekeeping,” available here.  This approach was most emphatically not what the Committee intended, hence the current amendments.

We’re not going to duplicate all that research, which the Advisory Committee has already reviewed and quite evidently agreed with, but a quickie search of cases for 2021 only shows why these latest amendments are sorely needed.  A search for “exception rather than the rule” in the same paragraph as “702” or “Daubert” yielded no fewer than seventy-five cases in the federal courts – including the egregious Moore v. Intuitive Surgical, Inc., 995 F.3d 839 (11th Cir. 2021), in which the appellate court found an abuse of discretion in excluding a “differential etiology” about an aspect of robotic surgery despite its being offered by an “expert” who (while an experienced surgeon) had never actually performed a robotic surgery in his life.  Id. at 853.  That’s 75 cases misciting the Committee’s 2000 note in less than eight months.  No wonder the Committee has acted.

Another form of Rule 702 abuse is when courts ignore the burden of proof added to Rule 702 in 2000 and in favor of a non-existent “presumption of admissibility.”  We ran another quickie search, and for 2021 alone, found three such cases:  American Dairy Queen Corp. v. W.B. Mason Co., ___ F. Supp.3d ___, 2021 WL 2382313, at *24 (D. Minn. June 10, 2021) Scott v. Dyno Nobel, Inc., 2021 WL 1750238, at *3 (E.D. Mo. May 4, 2021); Cleaver v. Union Pacific Railroad Co., 2021 WL 75259, at *5 (D. Neb. Jan. 7, 2021).  It’s probably not a coincidence that all of these courts are in the Eighth Circuit.

We can only hope that the new amendments, assuming they are enacted, are more effective in enforcing Rule 702’s gatekeeping requirements than were the 2000 amendments.

Our defense-minded readers can help.  What’s happens next is the public part of the rules amendment process.  Public comments on the amendments opened on August 6, and will continue until February 16, 2022.  The Committee’s Preliminary Draft, available here, provides instructions (at the beginning) on how to file a comment.  The material on the Rule 702 amendments is on pp. 308-32.  We encourage our audience (or their firms) to file a comment – no form letters, please – that can include specific instances you have encountered where courts have avoided or evaded the expert admissibility standards that Rule 702 is designed to enforce.

Beyond that – defense counsel should simply stop saying “Daubert” and start using “Rule 702” as the preferred terminology.  There are multiple reasons for this, and they’re discussed in more depth on the new Lawyers for Civil Justice Don’t Say Daubert website.  We at the Blog are as guilty as anyone for using terms like “Daubert motion” or “Daubert ruling.”  We’ve started to make amends, such as replacing what had been a “Daubert” tag for posts with “Rule 702” and changing the titles of dozens of posts.

Why?

Basically, so we’re not undercutting our own arguments on expert admissibility.  The decision Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), while justifiably viewed as seminal on the gatekeeping requirement, is hardly the last word on admissibility standards.  That’s what Rule 702 is for.  On that issue Daubert is, to use a technical term, mushy as all get out.  It provides a bunch of overlapping and non-exclusive “factors” that Rule 702 has subsequently honed and limited.  Language in Daubert about the “liberal thrust” of the federal rules, 509 U.S. at 588, is – like the 2000 comment discussed above – subject to out-of-context abuse, since that statement was a comparison to the prior, narrowly focused Frye standard.

Loose use of “Daubert” conveys to courts that it’s okay for them to rely on pre-2000 expert admissibility standards, since Daubert itself predates the current structure of Rule 702.  That lets erroneously lax pre-2000 “tests” continue:

  • “Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”  This statement, is facially contrary to Rule 702(b)’s requirement that courts decide whether “the testimony is based on sufficient facts or data.”  This phrase appears in 492 federal cases dated after 2000, and originated in Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987).
  • “The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.”  This statement, is likewise facially contrary to Rule 702(b)’s requirement that courts decide whether “the testimony is based on sufficient facts or data.”  This phrase appears in 551 federal cases dated after 2000, and originated in Loudermill v. Dow Chemical Co., 863 F.2d 566, 570 (8th Cir. 1988).
  • “Soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact.”  This phrase appears in 197 federal cases dated after 2000, and originated in Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000), which was decided before the 2000 amendment to Rule 702 became effective on December 1, 2000.

All these statements are simply wrong, given the express terms of Rule 702.  Courts are not allowed to ignore the the Federal Rules:

[O]f overriding importance, courts must be mindful that [any] Rule as now composed sets the requirements they are bound to enforce.  Federal Rules take effect after an extensive deliberative process involving many reviewers:  a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress.  The text of a rule thus proposed and reviewed limits judicial inventiveness.  Courts are not free to amend a rule outside the process Congress ordered.

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).

In the expert admissibility context, the older the case, the less likely it is to have applied rigorous gatekeeping.  Thus, colloquial use of “Daubert” and rote reliance on pre-2000 expert admissibility caselaw does not help our clients.

These three instances of outdated, anti-gatekeeping language alone have affected over 1,000 expert admissibility decisions, ostensibly being made under Rule 702.  It’s not hard to check these things, either – just grab the verbatim quote of any dodgy language that the other side offers, put quotation marks around it, and throw it into Lexis or Westlaw.  Arrange the results by date and see when the oldest use occurred.  Then call out the other side for misleading the court with pre-2000 standards, often laundered through the opinions of more recent courts that themselves were snookered by similar ploys.

That, and get these Rule 702 amendments enacted as soon as possible.