We’ve chronicled the path of the 2023 amendments to Fed. R. Evid. 702 pretty much from the beginning. As we’ve discussed, those amendments reiterate what had always been (at least since 2000) the Rule’s requirements for analyzing the admissibility of expert witness testimony. But courts had been ignoring critical elements – such as the burden of proof – that had been in comments rather than the black letter of Rule 702 itself. So, as of December 2023, Rule 702 will provide that the proponent of expert testimony must meet all of the Rule’s substantive standards for admissibility by a preponderance of the evidence, and in particular that an adequate basis for such testimony is a prerequisite to admissibility.
Amended Rule 702 will state:
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 has demonstrated by a preponderance of the evidence 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 appliedexpert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Italicized language added; struck through language deleted. Thus, as of December, all those “presumed admissible” and “basis only goes to weight, not admissibility” decisions (hundreds of them) will be expressly contrary to amended Rule 702.
But there’s no reason to wait until then. As the Rules Advisory Committee stated in unanimously adopting the amendments last May, a lot of courts had been making “mistakes as to the proper standard of admissibility”:
[T]he Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d) − that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology − 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 preponderance of the evidence. The Committee concluded that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule[‘s] . . . requirements by a preponderance of the evidence − essentially treating these questions as ones of weight rather than admissibility, which is contrary to the Supreme Court’s holdings that under Rule 104(a), admissibility requirements are to be determined by court under the preponderance standard.
Report of the Advisory Committee on Evidence Rules, at 6 (May 15, 2022) (emphasis added). In other words, those decisions were wrong when decided, but there were so many of them that these amendments were necessary to correct them.
There’s no reason to wait until December to tell that to the courts. At least some of them are getting the message already. We discussed the first decision doing so, Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021), as soon as it came down. Sardis relied on the proposed rules change (even before the Advisory Committee adopted it) to reverse an erroneous verdict resulting from unsupported expert testimony.
[T]he importance of the gatekeeping function cannot be overstated. That much is confirmed by the Advisory Committee on Evidence Rules’ current proposal to amend Rule 702. On April 30, 2021, the Committee unanimously approved a proposal to amend Rule 702, part of which is motivated by its observation that in “a number of federal cases . . . judges did not apply the preponderance standard of admissibility to [Rule 702’s] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that such issues were ones of weight for the jury.” Advisory Comm. on Evidence Rules, Agenda for Committee Meeting 17 (Apr. 30, 2021). In order to address this “pervasive problem,” id. at 18, both of the current draft amendments to Rule 702 would contain the following language in the advisory committee’s notes:
[U]nfortunately many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testimony], and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.
Id. at 105, 107. That clearly echoes the existing law on the issue. Consistent with that 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.
Sardis, 10 F.4th at 283-84 (other citations omitted) (emphasis original in our earlier post).
And Sardis is not alone. A recent Washington Legal Foundation “Legal Backgrounder” collects additional decisions in which federal courts have relied on the pending Rule 702 amendments in performing their gatekeeping function under the rule. The title of the Backgrounder says it all: “Attorneys & Courts Should Immediately Rely on the Forthcoming Rule 702 Amendment.”
We agree wholeheartedly with those sentiments. The amendments seek to clean up an Augean Stable of erroneous Rule 702 precedent, so there’s no reason to wait until December to start the task.
Not surprisingly, some of those cases are from district courts in the Fourth Circuit, following the Sardis decision. See White v. City of Greensboro, 586 F. Supp.3d 466, 477 (M.D.N.C. 2022); Howard v. City of Durham, 2021 WL 5086379, at *15 (M.D.N.C. Nov. 2, 2021); Bishop v. Triumph Motorcycles (America) Ltd., 2021 WL 4316810, at *7 n.8 (N.D.W. Va. Sept. 22, 2021).
But courts elsewhere are starting to get the message as well. Earlier this year a Tennessee bankruptcy court also applied the Advisory Committee’s conclusions concerning Rule 702 in Anderson v. United States, 2023 Bankr. Lexis 153 (Bankr. W.D. Tenn. Jan. 19, 2023). The pendency of the Rule 702 amendments had “come to the Court’s attention” through an on-line piece written by one of our bloggers. Id. at *7 n.3 (citing this).
Though not yet in effect, Rule 702 in its newest form and the associated Committee Notes may be relied upon and cited to as persuasive authority because, as the Committee explains, they are simply intended to clarify how Rule 702 should have been applied all along. In fact, the United States Court of Appeals for the Fourth Circuit is among the first courts to rely on the proposed amendments. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). This Court is similarly persuaded by, and will observe, the amendments being made to Rule 702 from this point forward to ensure a faithful application of the proper standard. . . .
To reiterate, these changes are not substantive; rather, they clarify how the Rule was meant to be applied since it was first amended in 2000. The new language makes clear that the burden is on the proponent to demonstrate to the Court that an expert’s testimony more likely than not meets the four enumerated requirements for admissibility.
Anderson, 2023 Bankr. Lexis 153, at *7-8 (text of amended Rule 702 and other citations and footnotes omitted). See In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation, 2022 WL 15053250, at *4 (E.D.N.Y. Oct. 26, 2022) (“in deciding these [Rule 702] motions the Court is mindful of the proposed amendments’ purpose of ‘emphasiz[ing] that the court must focus on the expert’s opinion, and must find that the opinion actually proceeds from a reliable application of the methodology’ and ‘explicitly weaving the Rule 104(a) standard into the text of Rule 702’”) (quoting Committee on Rules of Practice and Procedure, Agenda Book, Tab 7A, at 871 (June 7, 2022)); In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation, 2022 WL 15044626, at *2 n.5 (E.D.N.Y. Oct. 26, 2022) (identical footnote); In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation, 2022 WL 14862098, at *2 n.6 (E.D.N.Y. Oct. 8, 2022) (identical footnote).
Sardis and the ensuing district court decisions demonstrate that the bench and bar need not wait until amended Rule 702 becomes effective in December. These are clarifying amendments, not anything new or different. Thus, courts and counsel may – as these courts have – immediately follow the guidance that has been given by the Advisory Committee in carrying out their gatekeeping function under Rule 702. As the Advisory Committee explains, these amendments were necessitated by judicial misunderstanding and misapplication of Rule 702’s current requirements. Nothing precludes the prompt correction of these mistakes.