A little while ago, Bexis attended a Lawyers for Civil Justice semi-annual meeting, at which he received that organization’s “Outstanding Contributor Award” (in full disclosure, so did a half dozen other members).  With the soon-to-be-adopted amendments to Fed. R. Evid. 702 having now been approved by the Supreme Court (with only the unlikely step of a congressional veto remaining), the question was what happens next.

These amendments expressly enshrine the expert “gatekeeper” function in the text of Rule 702.  The next step is whether they can be duplicated – or paralleled − in state rules of evidence.  We think that they can, and for a state (like Pennsylvania and a number of others) that still follows the “Frye” standard looking to the “general acceptance” of expert testimony as the touchstone to admissibility, a Rule 702 state-law equivalent might look something like this:

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 is beyond that possessed by the average layperson;

(b) 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;

(c) the expert’s scientific, technical, or other specialized opinion was formed by application of methodologies that are generally accepted in the relevant fields of study; and

(d) the testimony is based on sufficient facts or data.

This language retains the gatekeeping procedure envisioned in Fed. R. Evid. 702, but adjusts it to fit Pennsylvania’s substantive Frye (“general acceptance”) standard, along with the Commonwealth’s factual basis requirement common to all forms of expert testimony.  E.g., Walsh v. BASF Corp., 234 A.3d 446, 461 (Pa. 2020) (current articulation of Frye standard); Commonwealth v. Rounds, 542 A.2d 997, 999 (Pa. 1988) (current articulation of requirement of a factual basis for expert opinions).

We are confident that similar variants on amended Fed. R. Evid. 702 could likewise be formulated in other states that follow Frye or some other substantive admissibility standard that varies from the federal Rule 702 standard.

The linchpin of our proposed language, or anything similar, is – of course – the requirement that trial judges act as “gatekeepers” to preclude the admission of inadequately supported – under whatever test a particular jurisdiction applies – expert opinions.  So we decided to research state-law for decisions recognizing the gatekeeping role of courts tasked with determining the admissibility of expert testimony.

The search was simple.  We used “expert /p gatekeep!”  The results – well that kept us, that primarily being Bexis and Reed Smith counsel Hevin Hara, busy for a while:  well over 3,000 cases in a library consisting of all state cases (which on Westlaw does not include “all” cases, since that database compiles state trial orders in a separate library).  So we did it by state.

Alabama

There are not a lot of gatekeeping cases in Alabama, but the law is generally favorable.  “If the [contested] testimony is expert testimony, the trial court must proceed under the gatekeeping protocols required by Rule 702 to admit it.”  Ex parte George, ___ So.3d ___, 2021 WL 68997, at *23 (Ala. Jan. 8, 2021).  Alabama’s version of Rule 702 was amended in 2012 to “require[] trial judges to act as ‘gatekeepers’ and determine whether the scientific evidence is both ‘relevant and reliable.’”  Payne v. State, 239 So.3d 1173, 1177 (Ala. Crim. App. 2017) (quoting Colbert County Northwest Alabama Health Care Auth. v. Regional Care Hospital Partners, Inc., 195 So.3d 948, 960 (Ala. Civ. App. 2015)).  A state analog to Fed. R. Evid. 702, as amended, could do some good in Alabama.

Alaska

Likewise, Alaska precedent is relatively sparse, but the state’s jurisprudence recognizes the gatekeeping role of trial courts.  In State v. Coon, 974 P.2d 386, 395 (Alaska 1999), the court “reject[ed] concerns that [the federal standard] will make the trial courts’ gatekeeping role unduly burdensome.”  Id. at 395, abrogated on other grounds, State v. Sharpe, 435 P.3d 887 (Alaska 2019).  Alaska “adopted the position that the trial court is the ‘gatekeeper’ responsible for keeping out ‘junk science.’”  John’s Heating Service v. Lamb, 46 P.3d 1024, 1033-34 (Alaska 2002) (quoting Coon) (footnotes omitted).  Thus, “[t]here is a heightened gatekeeper duty for trial courts when proposed expert witness testimony relates to science-based evidence.”  Cora G. v. Dept. of Health & Social Services, 461 P.3d 1265, 1278 n.27 (Alaska 2020).  Accord Bragaw v. State, 482 P.3d 1023, 1030 (Alaska App. 2021) (finding failure to enforce “the court’s ‘gatekeeper’ duty”).  Alaska law also supports state analog to Fed. R. Evid. 702.

Arizona

Arizona also recognizes courts as gatekeepers of expert testimony.  “The trial judge must act as a gatekeeper by applying this rule to admit only relevant and reliable expert testimony.”  State v. Carlson, 351 P.3d 1079, 1089 (Ariz. 2015) (citation and quotation marks omitted).  “Trial courts serve as the ‘gatekeepers’ of admissibility for expert testimony, with the aim of ensuring such testimony is reliable and helpful to the jury.  State v. Romero, 365 P.3d 358, 361 (Ariz. 2016) (citing Ariz. R. Evid. 702, official comment).

Rule 702(d), however, recognizes that a trial court must consider whether an expert reliably applied the pertinent methodology when expert testimony concerns the facts of a particular case.  Thus, the rule by its terms forecloses the approach of leaving challenges to an expert’s application of a methodology exclusively to the jury.  Such challenges are instead a proper subject of the trial court’s gatekeeping inquiry.

State v. Bernstein, 349 P.3d 200, 203 (Ariz. 2015).  “[A] trial court may exercise its gatekeeping role to conclude that proffered expert testimony does not satisfy Rule 702.”  State v. Salazar-Mercado, 325 P.3d 996, 1001 (Ariz. 2014).  Under Rule 702, the court serves as a “gatekeeper” and is directed to make “a preliminary assessment as to whether the proposed expert testimony is relevant and reliable.”  State v. Conner, 467 P.3d 246, 251 (Ariz. App. 2020) (citation omitted).

See State v. Miles, 414 P.3d 680, 689 (Ariz. 2018) (overruling prior precedent and confirming the “trial court’s role as a ‘gatekeeper’ with respect to behavioral-health evidence”).  Accord Arizona State Hospital/Arizona Community Protection & Treatment Center v. Klein, 296 P.3d 1003, 1009 (Ariz. App. 2013) (“The Arizona Supreme Court has made clear that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.”) (citation and quotation marks omitted); Mendoza v. State, 2020 WL 85401, at *3 (Ariz. App. Jan. 7, 2020) (a trial court “serves as the ‘gatekeeper’ to ensure an expert’s testimony is reliable and helpful to the jury”).  A state version of amended Rule 702 would fit seamlessly into Arizona law.

Arkansas

Arkansas also requires judicial gatekeeping in expert admissibility cases.  “[C]ourts, however, must not abandon their role as a gatekeeper [of] expert opinions.”  Young v. Gastro-Intestinal Center, Inc., 205 S.W.3d 741, 748 (Ark. 2005).  Bayer CropScience LP v. Schafer, 385 S.W.3d 822, 833 (Ark. 2011) (recognizing a “gatekeeping requirement” whereby “a circuit court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts”); Green v. Alpharma, Inc., 284 S.W.3d 29, 45 (Ark. 2008) (same).  Accord Richardson v. Union Pacific Railroad Co., 386 S.W.3d 77, 83 (Ark. App. 2011) (“Trial judges serve as evidentiary gatekeepers for ensuring the reliability of proposed expert testimony.”) (quoting Wood v. State, 53 S.W.3d 56, 61 (Ark. App. 2001)); Turbyfill v. State, 211 S.W.3d 557, 563 (Ark. App. 2005) (“the trial judge, when presented with a proffer of expert scientific evidence, must initially perform a gatekeeping function in order to determine if the reasoning behind the evidence is scientifically valid and can be applied to the facts of the case”).  Thus, a state Rule 702 analog would accurately state Arkansas law.

California

The gatekeeping function in California expert admissibility cases was settled in Sargon Enterprises, Inc. v. Univ. of Southern California, 288 P.3d 1237 (Cal. 2012):

[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or  3) speculative. . . .  The goal of trial court gatekeeping is simply to exclude clearly invalid and unreliable expert opinion.  In short, the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Id. at 1252 (citations and quotation marks omitted).  Thus, “[t]rial judges have a substantial gatekeeping responsibility when it comes to expert testimony.”  San Francisco Print Media Co. v. The Hearst Corp., 258 Cal. Rptr.3d 180, 187 (Cal. App. 2020) (citation and quotation marks omitted).

[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.  For example, an expert’s opinion based on assumptions of fact without evidentiary support or on speculative or conjectural factors has no evidentiary value and may be excluded. . . .  The court’s gatekeeper function allows it to conclude there is simply too great an analytical gap between an expert’s data and the opinion proffered, and thus exclude it as speculative or irrelevant.

Olive v. General Nutrition Centers, Inc., 242 Cal. Rptr.3d 15, 24 (Cal. App. 2018) (citations and quotation marks omitted).  Accord Long Beach Memorial Medical Center v. Kaiser Foundation Health Plan, Inc., 286 Cal. Rptr. 3d 419, 436 (Cal. App. 2021) (as to “analytical gap[s]”).

Thus, “[t]he plain language of Sargon dictates that a trial court exercise its gatekeeping function by considering the matter or information an expert actually relied on in reaching an opinion.”  Lowery v. Kindred Healthcare Operating, Inc., 262 Cal. Rptr.3d 663, 668 (Cal. App. 2020) (quoting San Francisco Print), review denied (Cal. July 29, 2020).  Trial judges have a “substantial ‘gatekeeping’ responsibility” to ensure that an expert’s opinion is based on both reliable material and sound reasoning.  Indeed, the trial court has the “duty to act as a ‘gatekeeper’ to exclude speculative expert testimony.”  Bader v. Johnson & Johnson, 303 Cal. Rptr.3d 162, 174 (Cal. App. 2022) (citations omitted).  “[A] court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning.”  Apple Inc. v. Superior Court, 228 Cal. Rptr.3d 668, 681 (Cal. App. 2018) (citation and quotation marks omitted).  “[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.”  Alexander v. Scripps Memorial Hospital La Jolla, 232 Cal. Rptr. 3d 733, 748 (Cal. App. 2018) (citation and quotation marks omitted).  “[A]n expert opinion may not be based on assumptions of fact that lack evidentiary support or on speculative or conjectural factors.”  Waller v. FCA US LLC, 261 Cal. Rptr.3d 922, 926 (Cal. App. 2020) (citation omitted), review denied (Cal. Aug. 19, 2020). “There is only one standard for admissibility of expert opinion evidence in California, and Sargon describes that standard.”  Apple, 228 Cal. Rptr.3d at 682.

While California has not formally adopted the federal Rule 702 standard, Sargon comes close enough that a modified version of the rule, incorporating Sargon’s set of factors along with federal gatekeeping requirements, would accurately state current California law.

Colorado

Colorado is also a gatekeeper state.  Just recently, the Colorado Supreme Court reaffirmed that principle − twice:

As a preliminary matter, we reaffirm the long-settled principle that trial courts have an obligation to serve as gatekeepers regarding the propriety of expert testimony. Thus, as noted above, our trial courts must ensure that expert testimony presented to the jury is both reliable and relevant.

Lawrence v. People, 486 P.3d 269, 278 (Colo. 2021) (citing Trujillo v. Vail Clinic, Inc., 480 P.3d 721, 724 (Colo. 2020) (stating trial courts’ role as gatekeepers regarding the admissibility of expert testimony); Murray v. Just in Case Business Lighthouse, LLC, 374 P.3d 443, 455 (Colo. 2016) (“Trial court judges act as gatekeepers to ensure the reliability of evidence”).

Before expert testimony may be presented to a jury, it must pass through the gate of admissibility − a gate trial courts have been entrusted with vigilantly guarding. As gatekeepers, trial courts play an important role in ensuring that expert testimony is not admitted unless it “both rests on a reliable foundation and is relevant to the task at hand.”

People v. Cooper, 496 P.3d 430, 431-32 (Colo. 2021) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)).  See Bocian v. Owners Insurance Co., 482 P.3d 502, 513 (Colo. App. 2020); Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo. App. 2008), aff’d, 250 P.3d 262 (Colo. 2011) (both affirming “gatekeeping” exclusion of expert testimony in civil cases).

Thus, Colorado is ripe for a revised version of Rule 702, paralleling the federal rule’s enhanced discussion of the judicial gatekeeping function.

Connecticut

In Connecticut, the “trial judge . . . [should] serve as a ‘gatekeeper’ and make a preliminary assessment of the validity of scientific testimony.”  State v. Patterson, 278 A.3d 1044, 1052 (Conn. 2022) (quoting State v. Porter, 698 A.2d 739, 746 (Conn. 1997)).  Thus, “trial courts have a role in assessing the reliability of scientific evidence beyond mere reliance on an expert witness’ belief that a methodology is reliable.”  Maher v. Quest Diagnostics, Inc., 847 A.2d 978, 995 (Conn. 2004).

The gatekeeping function of the trial court requires, at a minimum, that judges consider any new evidence that a [party] presents. . . .  To hold otherwise would transform the trial court’s gatekeeping function − which requires judges to regulate carefully which categories of scientific evidence are sufficiently reliable to present to the fact finders − into one of routine mandatory admission of such evidence, regardless of advances in a particular field and its continued reliability.

State v. Raynor, 254 A.3d 874, 888 (Conn. 2020).  “[F]or the trial court, in the performance of its role as the gatekeeper for scientific evidence, properly to assess the threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying [such] evidence,” without which “the trial court is entirely ill-equipped to determine if the scientific evidence is reliable.”  State v. Turner, 224 A.3d 129, 137 (Conn. 2020).  A “court’s failure to characterize [expert] testimony as scientific evidence and to carry out its role as a gatekeeper” is “an abuse of its discretion.”  Prentice v. Dalco Electric, Inc., 907 A.2d 1204, 1217 (Conn. 2006); accord Grondin v. Curi, 817 A.2d 61, 74 (Conn. 2003) (a court that “permits [an expert] to testify as an expert without first determining whether he or she has a sufficient basis” is “abdicating its evidentiary gatekeeping responsibilities”) (footnote omitted).  Connecticut appellate courts have also enforced judicial “gatekeeping” requirements in civil cases involving exclusion of expert testimony.  See Barnes v. Connecticut Podiatry Group, P.C., 224 A.3d 916, 933 (Conn. App. 2020); Kairon v. Burnham, 991 A.2d 675, 678 n.4, 679-80 (Conn. App. 2010).  Since Connecticut follows the federal rule, a state analog would be appropriate.

Delaware

Judicial gatekeeping in expert admissibility cases is a firmly established principle in Delaware under Del. R. Evid. 702.  “As a gatekeeper, the trial judge must assess an expert’s testimony to determine whether his testimony has a reliable basis in the knowledge and experience of [the relevant] discipline.”  Sturgis v. Bayside Health Ass’n Chartered, 942 A.2d 579, 584 (Del. 2007) (quotation marks and footnote omitted).

D.R.E. 702 imposes a special obligation upon a trial judge to ensure that any and all scientific testimony is not only relevant, but reliable.  The trial judge acts as the “gatekeeper” in deciding whether an expert’s testimony has a reliable basis in the knowledge and experience of [the relevant] discipline.

Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 794 (Del. 2006) (quotation marks and footnotes omitted).  Thus, “the Superior Court should act as the gatekeeper to all expert testimony and must decide if the expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline.”  Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1210 (Del. 2002) (citations and quotation marks omitted).  An appellate court “will not usurp the gatekeeping function of the trial court unless it is shown that the trial court abused its discretion in finding the testimony inadmissible.”  Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1270 (Del. 2013).

Other Delaware courts that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Kaur v. Boston Scientific Corp., 2022 WL 1486178, at *2 (Del. Super. May 11, 2022); D’Arro v. Morkides, 2022 WL 712444, at *2 (Del. Super. March 9, 2022); Anderson v. ATMI, Inc., 2014 WL 603254, at *1-2 & n.3 (Del. Super. Feb. 5, 2014); Tumlinson v. Advanced Micro Devices, Inc., 2013 WL 7084888, at *2 (Del. Super. Ct. Oct. 15, 2013), aff’d, 81 A.3d 1264 (Del. 2013); Collins v. Ashland, Inc., 2011 WL 5042330, at *3 (Del. Super. Oct. 21, 2011); Brown v. United Water Delaware, Inc., 2011 WL 4716251, at *2 (Del. Super. Oct. 7, 2011), aff’d mem., 74 A.3d 653 (Del. 2013); Jones v. Astrazeneca, LP, 2010 WL 1267114, at *7 (Del. Super. March 31, 2010); Hopkins v. Astrazeneca Pharmaceuticals, LP, 2010 WL 1267219, at *9 (Del. Super. March 31, 2010); Farrell v. University of Delaware, 2009 WL 5176218, at *2 (Del. Super. Nov. 24, 2009); Scaife v. Astrazeneca LP, 2009 WL 1610575, at *14 (Del. Super. June 9, 2009); Podrasky v. T&G, Inc., 2004 WL 2827710, at *6 (Del. Super. Nov. 15, 2004); Goodridge v. Hyster Co., 2002 WL 32007200, at *3 (Del. Super. Oct. 4, 2002), aff’d, 845 A.2d 498 (Del. 2004).  As in Connecticut, since Delaware follows the federal rule, a state analog would comport with relevant precedent.

District of Columbia

The District of Columbia − formerly home of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – is now a thoroughgoing judicial gatekeeping jurisdiction where expert witnesses are concerned.  See Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016) (“emphasiz[ing] the trial judge’s robust gatekeeping function”) (discussed here).  “[T]the trial judge’s general ‘gatekeeping’ obligation[] applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”  Id. at 755.  “The goal is to deny admission to expert testimony that is not reliable.”  Id. at 757.

[T]he trial judge’s role as gatekeeper . . . essentially provides that when a party proffers expert scientific testimony, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.  The objective of this requirement is to make certain that an expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Lewis v. United States, 263 A.3d 1049, 1059 (D.C. 2021) (Motorola footnotes and quotation marks omitted).  Courts “may not reflexively admit expert testimony because” they “ha[d] become accustomed to doing so under the . . . Frye test.”  Ford v. United States, 245 A.3d 977, 988 (D.C. 2021) (citations and quotation marks omitted).  In the District, this gatekeeping function, extends, as well, to prejudice exclusions under Rule 403.  Parker v. United States, 249 A.3d 388, 404 (D.C. 2021) (“as part of the trial court’s gatekeeping function, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses”) (citation and quotation marks omitted).  DC is ripe for a state equivalent to Fed. R. Evid. 702.

Florida

Florida, long notorious for lax expert witness standards, has recently adopted the judicial gatekeeping role of the federal system.  In In re Amendments to Florida Evidence Code, the Florida Supreme Court “receded” from its “prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code” and recognized “the trial court’s role as gatekeeper.”  278 So.3d 551, 552-53 (Fla. 2019) (quoting and following the dissent in In re Amendments to Florida Evidence Code, 210 So.3d 1231, 1242-43 (Fla. 2017)).  “To make sure evidence meets the criteria, trial judges play the role of an evidentiary ‘gatekeeper,’” which “ensures experts are held to the same standard in court as they are in the field.”  May v. State, 326 So.3d 188, 192-93 (Fla. App. 2021).

Today, “when engaging in a Daubert analysis, the judge’s role is that of the evidentiary ‘gatekeeper,’ that is, the one who determines whether the expert’s testimony meets [this] test.”  State Farm Mutual Automobile Insurance Co. v. All X-Ray Diagnostic Services, Corp., 338 So.3d 376, 384 (Fla. App. 2022) (pre-2019 citation omitted).  With respect to expert testimony, judicial discretion “does not mean that the trial court − even during a bench trial − has the discretion to decide not to perform the gatekeeper function at all.”  Cristin v. Everglades Correctional Institute, 310 So. 3d 951, 957 (Fla. App. 2020).  Experience no longer trumps methodology in Florida:

[T]he law requires more than experience alone; it requires the court to assess whether the expert’s reasoning or methodology properly can be applied to the facts in issue.  Here, the expert provided no insight into what principles or methods were used to reach his opinion.  With no insight into the principles, and with clear errors in methodology, the court had little to assess.  As a result, the court erred in refusing [defendant’s] request to exclude the testimony.

Philip Morris USA, Inc. v. Naugle, 337 So.3d 13, 18 (Fla. App. 2022) (citations and quotation marks omitted).  See Magical Cruise Co. v. Martins, 330 So.3d 993, 1003 (Fla. App. 2021) (“Under this gatekeeping authority, a trial judge must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”) (citation and quotation marks omitted); Kemp v. State, 280 So.3d 81, 88 (Fla. App. 2019) (“this gatekeeping function” is “to ensure that speculative, unreliable expert testimony does not reach the jury under the mantle of reliability that accompanies the appellation ‘expert testimony’”) (citation and quotation marks omitted).  Given Florida’s recent adoption of federal expert admissibility standards, a state rule paralleling Fed. R. Evid. 702, would be a logical next step.

Georgia

In Georgia, “it is the role of the trial court to act as a gatekeeper of expert testimony.”  Yugueros v. Robles, 793 S.E.2d 42, 48 (Ga. 2016).  “[T]he importance of the trial court’s gatekeeper role . . . cannot be overstated.”  HNTB Georgia, Inc. v. Hamilton-King, 697 S.E.2d 770, 774 (Ga. 2010).

[W]hether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.  In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.

Id. at 772 (2010).  “The whole premise of [the Georgia rule] is that a trial court must act as a ‘gatekeeper’ to ensure the relevance and reliability of expert testimony.”  Scapa Dryer Fabrics, Inc. v. Knight, 788 S.E.2d 421, 424 (Ga. 2016) (citations and quotation marks omitted).

Other Georgia appellate courts that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Hart v. Phung, 876 S.E.2d 1, 5-6 (Ga. App. 2022); Georgia Power Co. v. Campbell, 861 S.E.2d 255, 264 (Ga. App. 2021), cert. denied (Ga. Dec. 21, 2020) ; Stern v. Pettis, 847 S.E.2d 824, 828 (Ga. App. 2020), cert. denied (Ga. May 17, 2021); Cleveland v. Sentinel Insurance Co., 840 S.E.2d 738, 740 (Ga. App 2020); Smith v. Braswell, 804 S.E.2d 709, 710-11 (Ga. App. 2017), cert. denied (Ga. April 16, 2018); Cash v. LG Electronics, Inc., 804 S.E.2d 713, 715 (Ga. App. 2017); Anderson v. Atlanta Gas Light Co., 751 S.E.2d 589, 596-97 (Ga. App. 2013), cert. denied (Ga. March 28, 2014); L-3 Communications Titan Corp. v. Patrick, 729 S.E.2d 505, 507 (Ga. App. 2012); Butler v. Union Carbide Corp., 712 S.E.2d 537, 543-44 (Ga. App. 2011), cert. denied (Ga. Oct. 17, 2011).  Thus, nothing in Georgia law would preclude an analogous Rule 702.

Hawai’i

Gatekeeping precedent in Hawai’i is rather sparse.  The Hawai’i Supreme Court cited to what it called “the Daubert gatekeeping requirement” once over two decades ago,” quoting from Kumho Tire.  State v. Vliet, 19 P.3d 42, 54 (Haw. 2001).

The trial judge must determine, then, whether the proffered expert evidence will indeed accomplish that purpose.  The reliability requirement refers to evidentiary reliability − that is trustworthiness.  Under this prong, admission of expert evidence is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his or her discipline.  In this context, the trial court is assign[ed] the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.

Id. (citations and quotation marks omitted).  Although the tenor of Vliet is favorable to the gatekeeping function, the court also observed that Hawai’i’s version of Rule 702 did not include the 2000 amendment to federal rule that “affirms the trial court’s role as gatekeeper.”  Id. at 58.  The Hawai’i intermediate appellate court has referred to gatekeeping twice, both times quoting Kumho Tire and neither time in a personal injury case.  See State v. Escobido-Ortiz, 126 P.3d 402, 411 (Haw. App. 2005); In re Doe, 981 P.2d 723, 734 n. 16 (Haw. App. 1999).  Hawai’i’s rule 702 could thus use the same update that its federal counterpart received.

Idaho

Idaho has no state court authority to speak of that courts are to act as “gatekeepers” of expert testimony.  A dissent in State v. Pearce accepted that “the trial court is generally the gatekeeper of admissibility of evidence,” but believed the role had been abused in that case.  192 P.3d 1065, 1078 (Idaho 2008) (dissent).  The majority in Pearce did not address the issue.  A footnote in State v. Eytchison, notes that 2000 federal rules amendment as “affirming the trial court’s role as gatekeeper,” 30 P.3d 988, 991 n.2 (Idaho App. 2001), pointing out that Idaho’s Rule 702 does not have the same language (it still does not).  Eytchison reversed the trial court, finding the expert in question inadmissible, but did not address gatekeeping standards.  As with Hawai’i, it appears that the Idaho version of Rule 702 could use a federal-style overhaul.

Illinois

In Decker v. Libell, 737 N.E.2d 623 (Ill. 2000), the Illinois Supreme Court has agreed that “the trial judge serves in a familiar role as ‘gatekeeper,’ barring [expert] testimony that is not sufficiently relevant or reliable to be admitted into evidence.”  Id. at 625.  But two years later, in Donaldson v. Central Illinois Public Service Co., 767 N.E.2d 314, 324 (Ill. 2002), the same court took much of that statement back:

Frye does not make the trial judge a “gatekeeper” of all expert opinion testimony. The trial judge’s role is more limited.  The trial judge applies the Frye test only if the scientific principle, technique or test offered by the expert to support his or her conclusion is “new” or “novel.” Only novelty requires that the trial court conduct a Frye evidentiary hearing.

Id. at 324-24 (citation omitted).  Then, in In re Commitment of Simons, the court, in turn, abrogated much of Donaldson – although not specifically the gatekeeper discussion.  821 N.E.2d 1184, 1188-89 (Ill. 2004).

In Thompson v. Gordon, 851 N.E.2d 1231 (Ill. 2006), the court affirmed a “gatekeeper” ruling, of sorts, specifically quoting the intermediate appellate holding:

The trial court’s gatekeeping function is to determine whether an individual is qualified to be an expert, not merely by determining whether that individual took an exam and can display a piece of paper . . ., but by reviewing the individual’s credentials, experience, and knowledge of the subject matter.  The trial court’s function is also to determine whether that expert’s testimony would assist the trier of fact.

Id. at 1236 (quoting and affirming Thompson v. Gordon, 827 N.E.2d 983, 994 (Ill. App. 2005)).  So, gatekeeping was back in Illinois, at least for qualifications.

Thus, Illinois Supreme Court precedent on whether a trial court undertakes a gatekeeping role for expert witnesses is about a clear as mud.  Left to their own devices, the intermediate appellate courts in Illinois are all over the lot.  Some have followed Donaldson, despite its abrogation, as limiting the extent of a trial court’s gatekeeping function to “novelty.”  Molitor v. BNSF Railway Co., ___ N.E.3d ___, 2022 WL 17814657, at *8 (Ill. App. Dec. 20, 2022); People v. Rosenwinkel, 2016 WL 6465442, at *26 (Ill. App. Oct. 27, 2016); Noakes v. National Railroad Passenger Corp., 845 N.E.2d 14, 18 (Ill. App. 2006).

Most intermediate Illinois appellate decisions, however, have continued to endorse the judicial gatekeeping role for expert opinions, to a greater or lesser extent.

Because the rules of evidence grant expert witnesses testimonial latitude unavailable to other witnesses on the assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline, the trial court acts as a gatekeeper in excluding testimony that does not bear an adequate foundation of reliability.

People v. Illescas, 2012 WL 6859339, at *12 (Ill. App. Dec. 20, 2012).  Illescas relied on Verbance v. Altman, 754 N.E.2d 856 (Ill. App. 2001), which viewed the “objective” of the “gatekeeping requirement” as being “to ensure the reliability and relevancy of an expert’s testimony” and “to make certain that an expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Id. at 864 (citation omitted).  See Russo v. Corey Steel Co., 125 N.E.3d 1036, 1051 (Ill. App. 2018) (“courts act as ‘the gatekeeper’ allowing through only reliable and relevant evidence for consideration by the jury, courts employ ‘a totality of the circumstances’ approach”) (quoting Roach v. Union Pacific. Railroad, 19 N.E.3d 61, 71 (Ill. App. 2014)); Poliszczuk v. Winkler, 899 N.E.2d 1115, 1134 (Ill. App. 2008) (“the trial court closely examines proposed opinion testimony from a scientific expert to determine whether it bears sufficient indicia of reliability before the testimony is submitted”); Troyan v. Reyes, 855 N.E.2d 967, 980 (Ill. App. 2006) (“[a]s the gatekeeper of expert opinions disseminated to the jury, the trial court plays a critical role in excluding testimony that does not bear an adequate foundation of reliability”) (quoting Soto v. Gaytan, 728 N.E.2d 1126, 1133 (Ill. App. 2000)) (emphasis added); Southwestern Illinois Development Authority v. Al-Muhajirum, 809 N.E.2d 730, 733 (Ill. App. 2004) (“the trial judge” is “a gatekeeper of expert opinion”).

Adoption of the new federal version of Rule 702 would go a long way towards clarifying the messy state of current Illinois law on expert admissibility standards. However, the Frye variant discussed above may be needed.

Indiana

Indiana is an expert gatekeeping state.  The state’s version of Rule 702 includes the express requirement that “[e]xpert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.”  Ind. R. Evid. 702(b).  In Doe v. Shults-Lewis Child & Family Services, Inc., 718 N.E.2d 738, 750 (Ind. 1999), the Indiana Supreme Court held:

[T]he trial court is considered the gatekeeper for expert opinion evidence.  The trial court must weed out unreliable “junk science” from reliable scientific evidence.  To fulfill this function, it is entrusted with the discretion to rule on the admissibility of expert opinion evidence. . . .  [W]e believe that an expert opinion affidavit submitted in a summary judgment proceeding, in addition to asserting admissible facts upon which the opinion is based, must also state the reasoning or methodologies upon which it is based.

Id. at 750 (citations omitted).  The court returned to this subject in Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012), citing Rule 702 as the source of this gatekeeping obligation:

The trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702. . . .  By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and that the underlying scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony.

Id. at 786 (text of Ind. R. Evid. 702 omitted).  Accord Person v. Shipley, 962 N.E.2d 1192, 1194 (Ind. 2012) (“reiterat[ing]” holding in Bennett that “the trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702”).

Other Indiana appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Wilkerson v. Carr, 65 N.E.3d 596, 600 (Ind. App. 2015); Tucker v. Harrison, 973 N.E.2d 46, 49 (Ind. App. 2012); Lytle v. Ford Motor Co., 814 N.E.2d 301, 309 (Ind. App. 2004); Clark v. Sporre, 777 N.E.2d 1166, 1170 (Ind. App. 2002); Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind. App. 2000); Wallace v. Meadow Acres Manufactured Housing, Inc., 730 N.E.2d 809, 812 (Ind. App. 2000); Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 236 (Ind. App. 1999); Howerton v. Red Ribbon, Inc., 715 N.E.2d 963, 967 (Ind. App. 1999).

Modifying Ind. R. Evid. 702 to parallel amended Fed. R. Evid. 702 would be entirely consistent with existing Indiana law, however, Ind. Rule 702(b), as currently constituted, largely accomplishes the same thing.

Iowa

“Iowa adopted most of the Federal Rules of Evidence in 1983,” including that “[t]he district court is to perform a gatekeeper role in determining the admissibility of opinion testimony.”  Matter of Condemnation of Certain Rights in Land for Extension of Armar Drive Project By City of Marion, 974 N.W.2d 103, 111 (Iowa 2022).  As with federal law, “[Iowa rule] 702 places a gatekeeping function with the district court to “ensure that evidence submitted to the jury meets the rule’s criteria for relevance and reliability.”  Ranes v. Adams Laboratories, Inc., 778 N.W.2d 677, 690 (Iowa 2010) (citation and quotation marks omitted).

This judicial role has become increasingly difficult and complex, yet important, as the access to and availability of sources of information and opinions continue to expand.  Thus, we encourage a more expansive judicial gatekeeping function in difficult scientific cases.

Id. at 686.  “[T]rial courts have a well-recognized role as guardians of the integrity of expert evidence offered at trials.”  Id.

[W]e control the admission of expert testimony in order to prevent miscarriages of justice arising from reliance on unreliable expert testimony.  In a wide variety of contexts, then, our legal system does not simply hand evidence to the jury without gatekeeping, and we do not on rely on Wigmore’s “engine” of cross-examination to establish reliability of . . . expert testimony, nor should we here.

State v. Doolin, 942 N.W.2d 500, 546 (Iowa 2020) (citations and footnote omitted).  Accord Taft v. Iowa Dist. Court, 828 N.W.2d 309, 316 (Iowa 2013) (“the district court functions as a gatekeeper weighing the opinions of opposing experts”).  See also Junk v. Obrecht, 2013 WL 4769433, at *4 (Iowa. App. Sept. 5, 2013) (in table at 839 N.W.2d 675) (a trial court “assumes a ‘gatekeeper’ function which requires it to determine whether scientific evidence is sufficiently reliable to be admissible”) (affirming exclusion of toxic tort causation expert opinion).

An amendment to conform Iowa’s version of Rule 702 to the federal version would thus be wholly consistent with current Iowa law.

Kansas

In 2014, Kansas legislatively adopted the federal standard for assessing the admissibility of expert testimony – codifying, as Kansas law, the then-current version of Fed. R. Evid. 702.  See Kan. Stat. 60-456(b).  “Under this framework, a district court is required to act as an evidentiary gatekeeper by assessing the reliability and relevancy of expert testimony in a particular case.”  State v. Aguirre, 485 P.3d 576, 585 (Kan. 2021).  This “gatekeeping function applies to all expert testimony, not just scientific testimony.”  Matter of Cone, 435 P.3d 45, 50 (Kan. 2019).  “[T]he gatekeeping inquiry must be tied to the facts of a particular case,” and “the trial court must have the same kind of latitude in deciding how to test an expert’s reliability as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.”  State v. Lyman, 455 P.3d 393, 410 (Kan. 2020) (citations and quotation marks omitted).  See also Smart v. BNSF Railway Co., 369 P.3d 966, 973-94 (Kan. App. 2016) (extensive “gatekeeping” analysis in first published case to affirm expert exclusion in toxic tort case following enactment of Kansas statute).

Given that a previous version of Fed. R. Evid. 702 has been statutorily enacted in Kansas, any revision to that language would likewise require a statutory amendment, rather than a rules change.

Kentucky

The Kentucky Supreme Court adopted the federal standard and confirmed the trial court’s role “as a ‘gatekeeper’ charged with keeping out unreliable, pseudoscientific evidence,” requiring the court to determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”  Miller v. Eldridge, 146 S.W.3d 909, 913-14 (Ky. 2004).  Kentucky Rule of Evidence 702 “was drafted in response to Daubert . . ., which mandated ‘the trial court to play the role of ‘gatekeeper’” to determine the reliability of evidence.  Turner v. Commonwealth,544 S.W.3d 610, 616 (Ky. 2018); see Futrell v. Commonwealth, 471 S.W.3d 258, 282 (Ky. 2015) (“[A] trial court’s task in assessing proffered expert testimony is to determine whether the testimony both rests on a reliable foundation and is relevant to the task at hand.”) (citation and quotation marks omitted).  Kentucky intermediate decisions are similar:

To fulfill its function as a “gatekeeper” of proper opinion evidence, the circuit court must engage in a two-fold inquiry: (1) whether the proposed evidence consists of specialized, technical, or scientific knowledge (2) that “will assist the trier of fact to understand or determine a fact in issue

Lukjan v. Commonwealth, 358 S.W.3d 33, 41 (Ky. App. 2012).  “These . . . factors do not constitute an exclusive list, [and] . . . may not even be pertinent given the specific circumstances of a particular case because the gatekeeper function must be ‘tied to the facts.’”  Boon Edam, Inc. v. Saunders, 324 S.W.3d 422, 426 (Ky. App. 2010) (citation omitted).

Other Kentucky appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577-78 (Ky. 2000); Jackson v. Ghayoumi, 419 S.W.3d 40, 42 (Ky. App. 2012); Estate of Thomas v. Kentucky One Health, 2021 WL 5979265, at *3 (Ky. App. Dec. 17, 2021); Rossi v. CSX Transportation, Inc., 357 S.W.3d 510, 512 (Ky. App. 2010); Miller v. Jewish Hospital Healthcare Services, 2005 WL 2469688, at *5 (Ky. App. Oct. 7, 2005).

Because Kentucky’s Rule is identical to the prior version of Federal Rule 702, an amendment would be in order to keep the state’s analog aligned with the recent federal changes.

Louisiana

In Louisiana, the trial court “performs the important gatekeeping role of ensuring that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  Blair v. Coney, 340 So.3d 775, 781 (La. 2020) (citation and quotation marks omitted).  The Louisiana Supreme Court has also recognized that “the expert’s testimony can be quite misleading and prejudicial if this gatekeeping role is not properly satisfied, requiring a flexible approach and a careful evaluation of the methodology surrounding the testimony and its conclusions.”  State v. Foret, 628 So.2d 1116, 1122 (La. 1993).

Intermediate Louisiana appellate courts also enforce the judicial gatekeeping role:

The objective of [the] gatekeeping requirement is to ensure the reliability and relevancy of expert testimony by making certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes an expert’s practice in the relevant field. 

Jones v. Black, 145 So.3d 402, 414 (La. App. 2014).  “[T]he trial judge’s gatekeeping obligation to ensure that the scientific evidence is not only relevant but, more importantly for our purposes here, also reliable, cannot be understated.”  State v. Hampton, 183 So.3d 769, 777 (La. App. 2015).

In addition to determining whether specialized or scientific knowledge will assist the trier of fact, “[t]he other three conditions [of La. C. Evid. art. 702] are pertinent to [the] inquiry conducted by the trial judge qua gatekeeper. . . .  (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case.”  Boudreaux v. Bollinger Shipyard, 197 So.3d 761, 770 (La. App. 2016) (citation omitted).

A similar change to the Louisiana Rule 702 analog would be appropriate because, historically, Louisiana’s rule “is virtually identical to its source provision in the Federal Rules of Evidence.”  Id. at 1121; see also Rhodes v. AMKO Fence & Steel Co., LLC, 329 So.3d 1112, 1120 (La. App. 2021) (“Because La. C.E. art. 702 is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702, the Louisiana Supreme Court applied [federal] analysis, which allows a more flexible standard for determining admissibility while recognizing the detailed analysis in which the trial court must engage to satisfy its gatekeeping function.”). However, since Louisiana evidence standards are in that state’s statutory code, legislative action would be required.

Maine

There is little case law in Maine on the gatekeeping issue, but what exists is supportive.  Maine precedent holds that “it is the judge’s role to act as the gatekeeper to determine admissibility and the jury’s role to determine the weight of expert testimony.”  Tolliver v. Dept. of Transportation, 948 A.2d 1223, 1240 (Me. 2008).  A couple of Maine trial court decisions have also referred to judicial gatekeeping of expert testimony.  The court in Mahony v. Pickus, 2008 WL 1926721 (Me. Super. Feb. 14, 2008), professed to being “mindful with respect to its role as a gatekeeper with respect to expert testimony” but nonetheless allowed the challenged testimony.

[T]he trial court is the gatekeeper for expert testimony and is in charge of the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.  Under [a Rule 702] analysis, . . . [the judicial] gatekeeper function requires an assessment of the scientific validity underlying the testimony.  That assessment involves consideration of (1) whether the opinion can be and has been empirically tested, (2) whether the opinion has been published and subject to peer review, and (3) whether the opinion has been generally accepted in the relevant technical community.

Cyr v. Dead River Co., 1998 WL 35151484 (Me. Super. March 19, 1998) (Daubert citations and quotation marks omitted).

An amendment to Me. R. Evid. 702 would thus be useful to clarify that Maine is a gatekeeping state.  However, when the rule was last amended in 2014, “Maine did not adopt the final subparagraphs of Federal Rule of Evidence 702.”  Maine Restyling Note – November 2014.

Maryland

Maryland adopted federal expert admissibility procedures in Rochkind v. Stevenson, 236 A.3d 630, 632 (Md. 2020), but that did not alter the court’s role as the “gatekeeper,” because Maryland already had “jurisprudence [that] engages trial judges in a serious gate-keeping function, to differentiate serious science from ‘junk science.’”  Blackwell v. Wyeth, 971 A.2d 235, 245 (Md. 2009).  Even before Rochkind, “the trial court [wa]s the “Frye-Reed gatekeeper.”  Alford v. State, 180 A.3d 244, 252 (Md. App. 2018) (citation omitted).

Thus, “Rochkind did “not upend [the] trial court’s gatekeeping function.”  State v. Matthews, 277 A.3d 991, 1011 (Md. 2022) (citation omitted).  “[I]n exercising its gatekeeping function under Rule 5-702, a trial court generally should be most concerned about the reliability of an expert’s methodology.”  Id. at 1013.  “The trial judge exercises this gatekeeping function by holding a pre-trial . . . hearing.”  Phillips v. State, 126 A.3d 739, 748 (Md. App. 2015), aff’d, 451 Md. 180, 152 A.3d 712 (Md. 2017) (applying pre-Rochkind “Frye-Reed” standard).  “[T]hat an expert’s opinion is not contradicted does not require its admission, [because] to so hold would abrogate the gatekeeping obligation of the trial court, which must inquire into the admissibility” of such evidence.  Savage v. State, 166 A.3d 183, 202 (Md. App. 2022).

Since Maryland only recently broadened its expert admissibility standard to include the type of analysis compatible with federal procedures, it adopted a version of Fed. R. Evid. 702 – Md. R. 5-702 – only recently, in 2021.  That rule does not include the latest federal amendments.

Massachusetts

In Massachusetts, “[t]he judge is the gatekeeper of the evidence” and must make a threshold determination that the testimony is both relevant and “sufficiently reliable to go before the jury.”  Commonwealth v. Hinds, 166 N.E.3d 441, 450-51 (Mass. 2021).  This has been Massachusetts law since 1994.

The trial judge has a significant function to carry out in deciding on the admissibility of a scientific expert’s opinion.  If the process or theory underlying a scientific expert’s opinion lacks reliability, that opinion should not reach the trier of fact.  Consequently, the judge must rule first on any challenge to the validity of any process or theory underlying a proffered opinion.  This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.  The judge thus has a gatekeeper role.

Commonwealth v. Lanigan, 641 N.E.2d 1342, 1349 (Mass. 1994) (citation and quotation marks omitted).

Thus, “[t]he trial judge, as gatekeeper, should make a clear ruling on the record outside the presence of the jury whether the expert is qualified.”  Campbell v. Cape & Islands Healthcare Servs., 961 N.E.2d 1096, 1102 (Mass. App. 2012).  In carrying out the gatekeeping facility, a judge:

[C]onsiders a nonexclusive list of . . . factors [including] whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards.

Commonwealth v. Camblin, 86 N.E.3d 464, 475-76 (Mass. 2017) (citation and quotation marks omitted).  In so doing, “the judge must perform the role of “gatekeeper” to ensure that the expert testimony meets a minimum standard of reliability.”  Commonwealth v. Barbosa, 933 N.E.2d 93, 105 (Mass. 2010).  “[T]he proponent must establish a sufficient foundation for a judge to determine whether the expert’s opinion satisfies gatekeeper reliability.”  Commonwealth v. Davis, 168 N.E.3d 294, 301 (Mass. 2021).  Massachusetts law “requires that the trial judge, acting as gatekeeper, determine whether the conclusions of an expert in a particular case have a reliable factual basis.”  Palandjian v. Foster, 842 N.E.2d 916, 923 (Mass. 2006).

Other Massachusetts appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Abdulky v. Lubin & Meyer, P.C., ___ N.E.3d ___, 2023 WL 2657181, at *6-7 (Mass. App. March 28, 2023); Federico v. Ford Motor Co., 854 N.E.2d 448, 451 (Mass. App. 2006); Hicks v. Brox Industries, Inc., 711 N.E.2d 179, 182 (Mass. App. 1999); Ducharme v. Hyundai Motor America, 698 N.E.2d 412, 416-17 (Mass. App. 1998); Rotman v. National Railroad Passenger Corp., 669 N.E.2d 1090, 1092 (Mass. App. 1996); see Fuss v. Boston Scientific Corp., 2022 WL 16775279, at *2-3 (Mass. Super. Oct. 20, 2022) (“The judge serves as a gatekeeper on the admission of expert opinion testimony.”) (citation and quotation marks omitted); Fiano v. J.E.S. Supply Depot, Inc., 2018 WL 922467, at *2 (Mass. Super. Jan. 16, 2018) (“The court acts as a ‘gatekeeper’ in determining whether to allow expert testimony by assessing the validity of the process or theory underlying an expert opinion, and by determining whether the opinion should properly reach the trier of fact.”) (citations omitted).

Since Massachusetts has embraced the judicial gatekeeping role for many years, inclusion of this settled concept in its Rules of Evidence would be appropriate.

Michigan

“As a threshold matter, applying . . . [Mich. R. Evid.] 702 requires a trial court to act as a gatekeeper of . . . expert testimony and determine whether that testimony is relevant and will assist the trier of fact to understand the evidence.”  People v. Bynum, 852 N.W.2d 570, 578 (Mich. 2014).  “The trial court thus acts as a gatekeeper for expert testimony and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable.”  Id. at 578.  Accordingly, the court has a continuing duty:

This gatekeeper role applies to all stages of expert analysis.  MRE 702 mandates a searching inquiry, not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from those data.  Thus, it is insufficient for the proponent of expert opinion merely to show that the opinion rests on data viewed as legitimate in the context of a particular area of expertise (such as medicine). The proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology.

Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 409 (Mich. 2004).  “We have repeatedly stated that trial courts are gatekeepers with respect to expert testimony . . . [and] in accordance with this responsibility, they must ensure that expert testimony is not only relevant, but also reliable.”  Figurski v. Trinity Health-Michigan, 909 N.W.2d 445, 446 (Mich. 2018).

The comments to Michigan’s statutory analog to Federal Rule 702 clearly describe the gatekeeping function: “[t]he new language requires trial judges to act as gatekeepers who must exclude unreliable expert testimony,” and “emphasize the centrality of the court’s gatekeeping role in excluding unproven expert theories and methodologies from jury consideration.” M.R.E. 702, staff comments; see Estate of Smith v. Fliegner, 2020 WL 814698, at *4 (Mich. App. Feb. 18, 2020) (“[t]rial courts, however, have a ‘gatekeeping obligation’ under MRE 702, which obliges them ‘to review all expert opinion testimony’ for admissibility . . . [that] applies to all stages of expert analysis”) (citation omitted).

Other Michigan appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are: Weir v. McLaren Port Huron, 2022 WL 3333244, at *5 (Mich. App. Aug. 11, 2022); Mallory v. Beaumont Health System, 2020 WL 7636560, at *5 (Mich. App. Dec. 22, 2020).

While Michigan may seem like a candidate for an amendment to its evidentiary rules, it has legislation, Mich. Comp. L. §600.2955, that imposes expert admissibility requirements that are stronger than those found in even the most recent Fed. R. Evid. 702 amendments, therefore, the state would seem to be a relatively low priority.

Minnesota

Little Minnesota authority exists on the role of the judiciary as “gatekeepers” of expert evidence.  Minnesota follows a hybrid of the Frye standard focusing on general acceptance of expert testimony, as the Minnesota Supreme Court has “reaffirm[ed] our adherence to the Frye–Mack standard and reject[ed] Daubert,” such that “when novel scientific evidence is offered, the district court must determine whether it is generally accepted in the relevant scientific community.”  Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (citation omitted).

However, there is some Minnesota authority indicating that this analysis involves a gatekeeping-like function.  A party’s day in court “remains subject to the district court’s authority to act as a gatekeeper for the admissibility of evidence.”  State v. Anderson, 789 N.W.2d 227, 237 (Minn. 2010).  “When utilizing Rule 702 . . . district courts should evaluate the admission of expert testimony on a case-by-case basis, determining whether the expert’s testimony will be helpful to the trier of fact and supported by adequate foundation.”  Doe v. Archdiocese of St. Paul & Minneapolis, 817 N.W.2d 150, 167 (Minn. 2012) (citation omitted).  This is “gatekeeping” language, as Ly v. North Memorial Medical Center, 2018 WL 1570150 (Minn. App. Apr. 2, 2018), concluded:  “The district court, in exercising its authority as the gatekeeper for admitting evidence, must consider the reliability, consistency, and accuracy of the subject matter and ultimately determine whether the proffered evidence is reliable.”  Id. at *4 (citing Doe).

Several trial court opinions also specifically refer to courts as “gatekeepers” of expert testimony.  See Ryding v. Wayzata Community Church, 2021 Minn. Dist. Lexis 1581, at *4-5 (Minn. Dist. July 26, 2021) (“The question of whether an expert is sufficiently qualified is limited to the court’s gatekeeping function and does not go to the weight or credibility of the proposed witness.”); Chubboy v. Best Buy Co., 2012 WL 7150852 (Minn. Dist. April 26, 2012) (“The Court is the gatekeeper in determining the admissibility of expert testimony.”); Herman v. Johnson, 2009 WL 6763768 (Minn. Dist. March 2, 2009) (“The Court acts as a gatekeeper with respect to [expert] testimony.”).

While the judicial gatekeeping function could use buttressing in Minnesota, that state’s continued rejection of the federal approach to expert testimony means that such a change would be a very heavy lift.

Mississippi

Mississippi is a “gatekeeping” state, where the Supreme Court “recognized that trial courts are vested with a gatekeeping responsibility to determine whether the expert testimony presented is both relevant and reliable.”  Clark v. State, 315 So.3d 987, 996 (Miss. 2021).  “It is the task of the trial court to make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.”  Id. (citation omitted).  “The trial judge has the sound discretion to admit or refuse expert testimony; an abuse of discretion standard means the judge’s decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous.”  Poole v. Avara, 908 So.2d 716, 721 (Miss. 2005).

We are confident that our learned trial judges can and will properly assume the role as gatekeeper on questions of admissibility of expert testimony.  The . . . test does not require trial judges to become scientists or experts.  Every expert discipline has a body of knowledge and research to aid the court in establishing criteria which indicate reliability.  The trial court can identify the specific indicia of reliability of evidence in a particular technical or scientific field.

Mississippi Transportation Comm’n v. McLemore, 863 So.2d 31, 40 (Miss. 2003); see also Sherwin-Williams Co. v. Gaines, 75 So.3d 41, 45 (Miss. 2011) (“Mississippi Rule of Evidence 702 and our familiar Daubert standard require trial courts to act as ‘gatekeepers’ with regard to expert opinion testimony, because juries tend to place great weight on the testimony of experts and can be misled by unreliable opinions.”).  “As part of its gatekeeping role under Rule 702, the trial court is to determine whether expert testimony is reliable.”  Patterson v. Tibbs, 60 So.3d 742, 751 (Miss. 2011); see also Hubbard v. McDonald’s Corp., 41 So.3d 670, 675 (Miss. 2010) (stating that “a trial judge is vested with a gatekeeping responsibility concerning the admission of expert testimony”).

Other Mississippi appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are: Thompson v. Holliman, 283 So.3d 718, 721, 725-26 (Miss. 2019); Watts v. Radiator Specialty Co., 990 So. 2d 143, 146-47, 150 (Miss. June 12, 2008); Young v. Illinois. Central Railroad Co., 284 So.3d 839, 849 (Miss. App. 2019); Howell v. Holiday, 155 So.3d 839, 844-45 (Miss. App. 2013); Townsend v. Doosan Infracore Am. Corp., 3 So.3d 150, 154 (Miss. App. 2009).

With Mississippi being a strong gatekeeping jurisdiction, it would be an excellent candidate for a Rule 702 update.

Missouri

Missouri is another state, like Florida and Maryland, that only recently embraced the “gatekeeper” responsibility of the trial court in expert admissibility cases.  Missouri did so legislatively.  See Mo. Stat. §490.065.  This enactment “mirrors FRE 702 and 703, which affirms the circuit court’s role as gatekeeper for the admissibility of expert testimony.”  State v. Addie, 655 S.W.3d 456, 459 (Mo. App. 2022).  “Federal Rule of Evidence 702, on which §490.065.2 is patterned, “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.” State ex rel. Gardner v. Wright, 562 S.W.3d 311, 318 (Mo. App. 2018) (quotation marks and citation omitted).  “At its core, the gatekeeping function of a trial court with respect to expert testimony is essentially to determine that the expert is qualified, the testimony is relevant and the opinions therein are reliable.”  Id. at 312.  “Under section 490.065.2, trial courts must act as gatekeepers to ensure that the testimony sought to be admitted . . . is not only relevant, but reliable.”  Ingham v. Johnson & Johnson, 608 S.W.3d 663, 700 (Mo. App. 2020) (citation and quotation marks omitted).

Until this recent change in Missouri law, “no Missouri court ha[d] accepted the invitation to hold a “Daubert” hearing such as those in federal trial courts in which the validity of expert testimony is evaluated in hearings that may last for days.”  State ex rel. Crown Power & Equipment Co., L.L.C v. Ravens, 309 S.W.3d 798, 807, fn. 15 (Mo. 2009) (finding that “§490.065, RSMo 2000, differs from the expert provisions of the Federal Rules of Evidence and does not make the judge a gatekeeper of the validity of expert testimony”).  State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 149 (Mo. 2003) (“Section 490.065.3 requires that the facts and data on which an expert relies must be those reasonably relied on by experts in the relevant field.”).

Since Missouri enacted its equivalent of Rule 702 by statute, any amendment would similarly have to be statutory, rather than through any rules-based process.

Montana

Although Montana has only a few on-point cases, it is a “gatekeeping” jurisdiction.  In Montana, “the district court’s gatekeeper role in applying the Daubert factors, which guide trial courts in their assessment of the reliability of proffered scientific expert testimony, applies only to the admission of novel scientific evidence in Montana.”  Harris v. Hanson, 201 P.3d 151, 158 (Mont. 2009).  “[T]he trial judge . . . must make a preliminary assessment of whether the testimony’s underlying reasoning and methodology is scientifically valid and can be properly applied to the facts at issue, . . . referred to as the courts’ ‘gatekeeping’ function.”  State v. Clifford, 121 P.3d 489, 500 (Mont. 2005).

“[T]rial courts [are required] to act as a gatekeeper and screen potential expert scientific testimony to ensure that it is relevant to the case and reliable.  State v. S., 980 P.2d 3, 14 (Mont. 1999) (citation omitted).  Thus, “[t]he trial court serves as the gatekeeper over the content of expert testimony under Rules 702 and 703, M.R. Evid, excluding expert testimony that is either unreliable or irrelevant.”  Niedermeyer v. Geyser Whitewater Expeditions, Inc., 2018 WL 6984918, at *2 (Mont. Dist. April 3, 2018).  “In reviewing proposed expert opinion testimony, the Court serves as a gatekeeper.”  Peterson v. Russo, 2017 WL 7086639, at *2 (Mont. Dist. Oct. 24, 2017).  “[T]he trial court [serves a] dual role of serving as a gatekeeper while also ensuring the jury hears expert testimony necessary to assist it in evaluating information outside its common knowledge.”  Trotter v. USAA Casualty Insurance Co., 2004 Mont. Dist. Lexis 3452, at *22 (Mont. Dist. Dec. 2, 2004).  “Clearly, as a gatekeeper, this Court has the duty under Rule 702 to ensure that proposed testimony of an expert provides evidence that is relevant and reliable.”  Plumb v. Southgate Mall Assocs., 2000 WL 35726272 (Mont. Dist. June 21, 1999) (citation and quotation marks omitted).

However, in Montana, the district court’s gatekeeper role established . . . applies only to the admission of novel scientific evidence.”  State v. Damon, 119 P.3d 1194, 1198 (Mont. 2005), thus Montana would be a good candidate for a modernizing amendment along the lines of new Fed. R. Evid. 702.

Nebraska

In Nebraska, “a trial court acts as gatekeeper to ensure the reliability of an expert’s opinion.”  Carson v. Steinke, ___ N.W.2d ___, 2023 WL 3262457, at *11 (Neb. May 5, 2023).  “[T]his gatekeeping function entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.”  State v. Greer, 979 N.W.2d 101, 108 (Neb. 2022).  Earlier, the same court declared:

The objective of the trial court’s gatekeeping responsibility is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. 

Freeman v. Hoffman-La Roche, Inc., 911 N.W.2d 591, 594 (Neb. 2018).  “Under the Daubert/Schafersman framework, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion.”  Hemsley v. Langdon, 909 N.W.2d 59, 67-68 (Neb. 2018).  “The purpose of this gatekeeping function is ‘to ensure that the courtroom door remains closed to ‘junk science’ that might unduly influence the jury, while admitting reliable expert testimony that will assist the trier of fact.’”  State v. Herrera, 856 N.W.2d 310, 324 (Neb. 2014); see also Gonzales v. Nebraska Pediatric Practice, Inc., 923 N.W.2d 445, 462 (Neb. App. 2019) (same).  “A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court’s conclusion whether the expert’s opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination.”  State v. Pierce, 2022 WL 1010073, at *8 (Neb. App. April 5, 2022).  “In order to properly conduct appellate review, it is the duty of the trial court to adequately demonstrate by specific findings on the record that it has performed its gatekeeping functions.”  State v. Casillas, 782 N.W.2d 882, 896-897 (Neb. 2010).

Nebraska is another firmly established gatekeeping jurisdiction, and could benefit from a Rule 702 update.

Nevada

Nevada courts are charged with the performance of gatekeeping duties, and “before a person may testify as an expert under NRS 50.275 [the state analog to Federal Rule 702], the district court must first determine whether he or she is qualified in an area of scientific, technical, or other specialized knowledge.”  Hallmark v. Eldridge, 189 P.3d 646, 650-51 (Nev. 2008).  “[I]n performing its gatekeeping duties, the district court must first determine that the witness is indeed a qualified expert.”  Cramer v. Dep’t of Motor Vehicles, 240 P.3d 8, 12 (Nev. 2010) (citation and quotation marks omitted). “Nevada trial judges assume the role of a gatekeeper in assessing whether experts satisfy these requirements.”  Delapa v. Diaz, 2021 WL 7968018, at *1 (Nev. Dist. June 3, 2021).

Nevada law supports expert gatekeeping, even though it does not follow federal standards.  “By not adopting the Daubert standard as a limitation on judges’ considerations with respect to the admission of expert testimony, we give Nevada trial judges wide discretion, within the parameters of NRS 50.275, to fulfill their gatekeeping duties.”  Higgs v. State, 222 P.3d 648, 656 (Nev. 2010).  “To assist the trier of fact, the proffered testimony must be relevant to the claims or defenses and the product of reliable methodology,” which constitutes a “gatekeeping” function to ensure that only relevant and reliable expert opinion is presented at trial.”  Johnson v. City of Reno, 2021 Nev. Dist. Lexis 39, at *12-13 (Nev. Dist. Ct. Feb. 11, 2021) (citation omitted); see also Peeler v. Aiello, 2021 WL 3260695, at *10-11 (Nev. Dist. Ct. July 29, 2021) (describing the trial court’s “gatekeeper” role as “limited to determining, as a matter of law, whether the proffered testimony is admissible, which means that it must apply these legal standards to the contents of the proffered testimony”).

Nevada’s statutory framework is similar to, but distinct from Rule 702, and would need amendment to align it with the revised Federal Rule.  Given the state’s prior reluctance to embrace federal standards, that would not be easy.

New Hampshire

New Hampshire courts have only a handful of cases on expert witness gatekeeping, but under applicable authority, “[t]he trial court functions . . . as a gatekeeper, ensuring a methodology’s reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert’s testimony.”  Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 813 A.2d 409, 416 (N.H. 2002); see Goudreault v. Kleeman, 965 A.2d 1040, 1050 (N.H. 2009) (same).  “Thus, the trial court must ‘decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.’”  Baker Valley Lumber, 813 A.2d at 416.  “As the gatekeeper, the trial court has the discretion to admit expert testimony that it finds reliable, which will then be tested by competing expert testimony and cross-examination.”  Stachulski v. Apple New England, LLC, 191 A.3d 1231, 1239 (N.H. 2018).  The New Hampshire Supreme Court confirmed the court’s function as a gatekeeper in interpreting the state’s statute governing admissibility of expert testimony, “RSA 516:29-a, I(c) [which] must be interpreted and applied with some flexibility to encompass the multitude of scenarios that may be presented and to maintain the division in function between the fact-finder and gatekeeper.”  State v. Langill, 945 A.2d 1, 12 (N.H. 2008).  “We, in turn, review the trial court’s gatekeeping decisions to determine whether its exercise of discretion is sustainable.”  Moscicki v. Leno, 238 A.3d 1036, 1040 (N.H. 2020).

Since New Hampshire recognizes judicial gatekeeping, but has little precedent, a Rules amendment facilitating reliance on other states’ precedent would be useful.

New Jersey

New Jersey courts confirm the judge’s “gatekeeper” role for expert testimony, and recognize that federal court “factors for assessing the reliability of expert testimony will aid our trial courts in their role as the gatekeeper of scientific expert testimony in civil cases.”  In re Accutane Litigation, 191 A.3d 560, 564 (N.J. 2018) (citations omitted).  It extends” not only to testimony based on scientific knowledge but also to testimony based on technical or other specialized knowledge.”  State v. Olenowski, 154, 289 A.3d 456, 468 (N.J. 2023).  In abandoning the more limited Frye “general acceptance” standard, the New Jersey Supreme Court underscored the importance of the “gatekeeping” duty:

When this Court modified the general acceptance standard to adopt a more relaxed approach for causation expert testimony in toxic tort litigation, and later for all medical cause-effect expert testimony, it envisioned the trial court’s function as that of a gatekeeper − deciding what is reliable enough to be admitted and what is to be excluded.  Those are not credibility determinations that are the province of the jury, but rather legal determinations about the reliability of the expert’s methodology.  We now reinforce the rigor expected of the trial court in that role under our existing case law.

Id. at 588.  “As gatekeepers, trial judges must ensure that expert evidence is both needed and appropriate, even if no party objects to the testimony.”  State v. Sowell, 61 A.3d 882, 888 (N.J. 2013).

“In resolving issues of reliability of an expert’s methodology in a new and evolving area of medical causation . . . [t]he court’s function is to distinguish scientifically sound reasoning from that of the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs.”  Id. at 589.  However, the Accutane court “hesitate[d] to embrace the full body of Daubert case law as applied by state and federal courts.”  Id. at 594.  Rather:

Our view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology.  When a proponent does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable.

Id. at 595 (citations omitted).  “The focus . . . belongs on the soundness of the methodology and reasoning used to validate the expert opinion or technique.”  Olenowski, 289 A.3d at 468 (N.J. 2023).  Gatekeeping extends to the bases of the contested opinion.  Morales-Hurtado v. Reinoso, 230 A.3d 241, 243 (N.J. 2020) (“any expert’s . . . opinion on which [another] expert relies must be couched in terms of reasonable medical certainty or probability”) (citations and quotation marks omitted).

The “gatekeeping role requires care,” and “[p]roperly exercised, the gatekeeping function prevents the jury’s exposure to unsound science through the compelling voice of an expert.”  Lanzo v. Cyprus Amax Minerals Co., 254 A.3d 691, 707-08 (N.J. Super. App. Div. 2021) (citation omitted). 

To fulfill their gatekeeping responsibility, judges begin by applying N.J.R.E. 702, which states that, “[i]f scientific . . . knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

State v. Pickett, 246 A.3d 279, 298 (N.J. Super. App. Div. 2021) (citation omitted).  In New Jersey, the “trial judge’s function is to act as a gatekeeper . . . with a focus on “whether the experts adhered to the same level of intellectual rigor that characterizes their field.”  Carl v. Johnson & Johnson, 237 A.3d 308, 312 (N.J. Super. App. Div. 2020).

While New Jersey procedure appears to accord fully with federal practice under Fed. R. Evid. 702, the Accutane court’s hesitance explicitly to embrace federal practice suggests that a rule amendment in New Jersey may be difficult.

New Mexico

New Mexico is another state in which trial courts serve as “gatekeepers” of expert evidence, because “[the] inquiry . . . [in] the role of the trial judge as gatekeeper . . . is to “ensur[e] that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  State v. Downey, 195 P.3d 1244, 1250 (N.M. 2008) (citation and quotation marks omitted).  To that end, “[p]ursuant to Rule 11-702 (the state’s version of Rule 702), the district court is required to act as a ‘gatekeeper’ to ensure that an expert’s testimony rests on both a reliable foundation and is relevant to the task at hand so that speculative and unfounded opinions do not reach the jury.”  Parkhill v. Alderman-Cave Milling & Grain Co., 245 P.3d 585, 588 (N.M. App. 2010).  “Our district courts perform the function of gatekeepers in order to ensure that properly admitted lay opinion testimony is not contaminated by improper expert testimony.”  State v. Vargas, 368 P.3d 1232, 1238 (N.M. App. 2016).

“When scientific evidence is presented at trial, New Mexico trial courts act as gatekeepers to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  State v. Garcia, 455 P.3d 886, 888 (N.M. App. 2020) (citation and quotation marks omitted). “Our Supreme Court has characterized the trial court’s role in the admission of expert evidence as that of a ‘gatekeeper.’” State v. Aragon, 216 P.3d 276, 287 (N.M. App. 2009); Banks v. IMC Kalium Carlsbad Potash Co., 62 P.3d 290, 293 (N.M. App. 2003) (Rule 11-702 “contemplated that the trial judge would act as gatekeeper, making a  ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’”) (citation omitted).

A Rule 702 amendment would seem to accord with current New Mexico law.

New York

Even though New York procedure has been trending towards the federal rules in its evaluation of the bases of expert testimony, see, e.g., Nemeth v. Brenntag North America, 194 N.E.3d 266, 272-73 (N.Y. 2022); Parker v. Mobil Oil Corp., 857 N.E.2d 1114, 1116 (N.Y. 2006), precedent discussing the court’s “gatekeeper” role is noticeably lacking from the state’s highest court.  Cf. Sarkees v. E. I. Dupont De Nemours & Co., 15 F.4th 584, 589-90 (2d Cir. 2021) (suggesting that New York “state law” concerning expert admissibility is now stricter than federal law).  Courts in New York have recognized “the important public policy of allowing courts to retain discretion in their role as gatekeeper in determining the admissibility of expert testimony.”  Mercado v. Schwartz, 174 N.Y.S.3d 82, 88 (N.Y. App. Div. 2022). 

Discussion of trial court gatekeeping responsibility is much more frequent in the New York lower courts.

A trial judge’s role as a gatekeeper of evidence is not a role created [under federal rules] and rejected by the Court of Appeals; it is an inherent power of all trial court judges to keep unreliable evidence (“junk science”) away from the trier of fact regardless of the qualifications of the expert. A well-credentialed expert does not make invalid science valid merely by espousing an opinion.

Clemente v. Blumenberg, 705 N.Y.S.2d 792, 799 (N.Y. Sup. Aug. 6, 1999) (while New York has not adopted Rule 702, “common law and the New York Civil Practice Law and Rules contain many of the same principles of evidence contained in the Federal Rules of Evidence”).

Moreover, as a New York appellate court observed, the state “has not adopted the Daubert rule,” [and a]ccordingly, the Frye standard governs the admissibility of expert testimony.”  Nonnon v. City of New York, 819 N.Y.S.2d 705, 713 fn. 18 (N.Y. App. Div. 2006).  Rule 4515, the only New York evidentiary rule concerning experts, deals with hypothetical questions.  But, notwithstanding these differences from the Federal Rules, New York courts likewise “serv[e] as the gatekeeper in determining the admissibility vel non of expert testimony.”  Mercado v. Schwartz, 92 N.Y.S.3d 582, 590 (N.Y. Sup. 2019) (citation omitted), aff’d, 174 N.Y.S.3d 82 (N.Y. App. Div. 2022).

However, in the absence of a definitive rule, the scope of this gatekeeping function is uncertain.  Some precedent supports a broad rule “that the principles of fairness and due process embedded in our laws imposes upon the court the role of gatekeeper in assuring that expert testimony is not only relevant but reliable.”  In re Guardianship of Faith D.A., 2012 WL 603954, at 18 (Fam. Jan. 23, 2012) (in table at 946 N.Y.S.2d 69) (citation omitted).

Before plaintiff’s experts can testify as to his or her opinion before a jury, this court must exercise its role as gatekeeper and review the evidence to ascertain whether plaintiff’s experts’ opinions are scientifically or technically reliable and generally acceptable in the scientific community.

Litwack v. Plaza Realty Investors, Inc., 2004 WL 5641570, at *?? (N.Y. Sup. Nov. 12, 2004);  accord O’Connor v. Port Authority of New York, 2011 WL 1130498, at *3 (N.Y. Sup. March 10, 2011) (enforcing “this court’s role as ‘gatekeeper’ in determining the adequacy of the foundation upon which an expert’s opinion is based”). 

Other courts interpret New York’s “gatekeeping function . . . not [to] require it to engage in its own independent review of a proposed expert’s methodology,” O’Brien v. Ahmed, 2021 WL 4862326, at *5 (N.Y. Sup. Sept. 2, 2021), or to be inapplicable “if the methodology is not novel and the issue is whether the methodology leads to a reliable theory of causation.”  In re Neurontin Products Liability Litigation, 2009 WL 1979936, at *2 (N.Y. Sup. 2009) (in table at 897 N.Y.S.2d 671).

Given that New York has yet to embrace Rule 702 fully, an amendment to add a Rule 702 equivalent would be very useful – particularly given the discordant lower court precedent concerning the extent of gatekeeping.  However, it would also represent a sea change in New York law, and thus would probably be very difficult to accomplish.

North Carolina

In North Carolina, “[t]rial courts act as a gatekeeper in determining admissibility of expert testimony.”  State v. Walston, 798 S.E.2d 741, 745-46 (N.C. 2017).  “In 2011, the General Assembly amended Rule 702 of the Rules of Evidence and adopted the Federal Daubert standard, which gives trial court judges a “gatekeeping” role when admitting expert opinion testimony.”  State v. Gray, 815 S.E.2d 736, 739 (N.C. App. 2018).  At the same time, those amendments “did not categorically overrule all judicial precedents interpreting Rule 702,” and “previous cases are still good law if they do not conflict with the [2011] standard.”  Id. (citation omitted).

Thus, “North Carolina trial courts now perform the same ‘gatekeeping role’” that federal district courts have long performed.”  Kerry Bodenhamer Farms, LLC v. Nature’s Pearl Corp., 2018 WL 6829168, at *2 (N.C. Super. Dec. 27, 2018) (citation omitted); see Safety Test & Equipment Co. v. American Safety Utility Corp., 2016 WL 7380675, at *5-7 (N.C. Super. Dec. 16, 2016) (also “exercising its gatekeeping role”).  The purpose of this gatekeeping role is to ensure the reliability and relevancy of expert testimony,” and, therefore, “[i]t is up to the trial court to ensure that expert testimony serves its legitimate purpose − to aid the jury with specialized knowledge − without compromising the jury’s ability to independently evaluate all the evidence.”  Potts v. KEL, LLC, 2019 WL 4744646, at *2 (N.C. Super. Sept. 27, 2019) (citations and quotation marks omitted).

North Carolina’s adherence to the federal standards makes it a good candidate to amend its version of Rule 702, as the state has previously, to bring it in line with the current Fed. R. Evid. 702.

North Dakota

There are very few on-point North Dakota cases, but they support the “gatekeeper” doctrine.  “Rule 104(a), N.D.R.Ev., imposes a “gatekeeper” function much like that discussed in Daubert and Kumho.”  State v. Hernandez, 707 N.W.2d 449, 463-64 (N.D. 2005).  However, the same decision “decline[d] [the] invitation to adopt Daubert by judicial decision.”  Id. at 453.  Rather, advocates should follow the “formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee.”  Id.  The North Dakota Supreme Court has also recognized the similarity between Federal Rule 702 and its North Dakota counterpart:

It is unnecessary to decide whether we should adopt the standards for admitting expert or scientific evidence under Fed. R. Evid. 702 . . ., because the result in this case would be the same under those standards and under our traditional standards governing admission of evidence under N.D.R.Ev. 702.

Gonzalez v. Tounjian, 665 N.W.2d 705, 714 n.1. (N.D. 2003).

Given the express reference in Hernandez to the rules amendment process as the proper way to adopt federal expert gatekeeping standards, North Dakota would seem to be a prime candidate for a conforming amendment to its equivalent N.D.R. Ev. Rule 702

Ohio

Ohio has adopted the “gatekeeper” role for its courts, with the Ohio Supreme Court holding that the “gatekeeping function imposes an obligation upon a trial court to assess both the reliability of an expert’s methodology and the relevance of any testimony offered before permitting the expert to testify.”  Terry v. Caputo, 875 N.E.2d 72, 77-78 (Ohio 2007).  “The trial court’s Daubert responsibilities, however, do not end with reliability, because the trial court’s gatekeeping function also requires it to judge whether an expert’s testimony is relevant to the task at hand in that it logically advances a material aspect of the proposing party’s case.”  Id.  (citation and quotation marks omitted).  “Because even a qualified expert is capable of rendering scientifically unreliable testimony, it is imperative for a trial court, as gatekeeper, to examine the principles and methodology that underlie an expert’s opinion.”  Valentine v. Conrad, 850 N.E.2d 683, 686-87.

Thus, in Ohio, “[t]he trial court acts as a gatekeeper and must determine if the expert’s methodology for formulating his expert opinion is reliable and the opinion testimony is relevant before allowing the expert to testify.”  Hartman v. Erie Insurance Co., 85 N.E.3d 454, 468 (Ohio App. 2017).  “[A]s evidentiary gatekeepers, trial courts must now analyze not what the experts say, but what basis they had for saying it, which will require some objective, independent validation of the expert’s methodology.”  Watkins v. Affinia Group, 54 N.E.3d 174, 179 (Ohio App. 2016) (citations and quotation marks omitted).  “The trial court assumes a gatekeeper function and determines whether to permit the expert to testify by assessing the reliability of the expert’s principles and methodology and the relevance of the testimony.”  State v. Chapman, 2017 WL 4570655, at *2 (Ohio App. Oct. 13, 2017) (citation omitted).

Other Ohio appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Cooper v. BASF, Inc., 2013 WL 3356680 at *3-4 (Ohio App. June 28, 2013); State Farm Fire & Casualty Co. v. Holland, 2008 WL 4058094, at *2 (Ohio App. Sept. 2, 2008); Asbury v. Key Mobility Services, Ltd., 2008 WL 2809223, at *13 (Ohio App. July 18, 2008); Turker v. Ford Motor Co., 2007 WL 701046, at *4 (Ohio App. March 8, 2007).

Ohio has long been a gatekeeping jurisdiction, having adopted Daubert in 1998, which makes it a good candidate to continue to stay abreast with the changes in Federal Rule 702, including by amending its analog to 702.

Oklahoma

Oklahoma jurisprudence “recognizes the gatekeeping capacity of a trial judge,” viewing federal procedure as “but a refinement of this role.”  Christian v. Gray, 65 P.3d 591, 598-99 (Okla. 2003).  “[T]rial judges must continue to act as gatekeepers, ensuring that all novel scientific evidence is both reliable and relevant.”  Taylor v. State, 889 P.2d 319, 329 (Okla. 1995).  Accordingly, the trial court acts as a gatekeeper:

[T]he trial court, in its gatekeeping role, must make a determination as to whether such evidence has sufficient indicia of reliability to be admitted for jury consideration, although the four [admissibility] factors may or may not be pertinent depending upon the nature of the issue at hand, the expert’s particular expertise, and the subject of his testimony.

Worsham v. Nix, 145 P.3d 1055, 1068 (Okla. 2006).  Oklahoma courts recognize that Rule 702 “creates a gatekeeping function for the trial court regarding the admission of an expert’s evidence.”  Covel v. Rodriguez, 272 P.3d 705, 710 (Okla. 2012).  “The trial judge, as the gatekeeper of the evidentiary process, has the duty to screen evidence to determine its relevance and reliability.”  Hudson v. State, 507 P.3d 647, 657 (Okla. 2021).

Likewise, the intermediate Oklahoma appellate court for civil matters has held, “[u]nder the Oklahoma Evidence Code, the trial court stands as a “gatekeeper,” admitting or excluding evidence based on the judge’s assessment of its relevance and reliability.”  Linn v. Oklahoma Farm Bureau Mutual Insurance Co., 479 P.3d 1013, 1019 (Okla. Civ. App. 2020).  “The trial court’s gatekeeping role is designed to test the expert or scientific means by which the expert arrives at a conclusion, not a test of the underlying facts upon which the expert relies.”  Black v. Ferrellgas, Inc., 417 P.3d 1267, 1273 (Okla. Civ. App. 2018).  “[T]he trial court must serve as gatekeeper for expert testimony by determining whether the testimony is relevant and has a reliable basis in the witness’s knowledge and experience in the relevant discipline.”  Stephenson v. Oneok Resources Co., 99 P.3d 717, 724 (Okla. Civ. App. 2004) (citation omitted).

Oklahoma’s early adherence to Rule 702 standards, and similarity between Fed. R. Evid. 702 and Okla. Stat. tit. 12, §2702 makes the state an excellent candidate to stay in stride with evolving federal evidentiary standards.

Oregon

Oregon is another jurisdiction, where:

In ruling on admissibility, the trial court performs the vital role of gatekeeper, screening proffered scientific testimony to determine whether it is sufficiently valid, as a matter of science, to legitimately assist the trier of fact and exclud[ing] bad science in order to control the flow of confusing, misleading, erroneous, prejudicial, or useless information to the trier of fact.

Marcum v. Adventist Health System/West, 193 P.3d 1, 4 (Or. 2008) (citations and quotation marks omitted).  “Faced with a proffer of expert scientific testimony, an Oregon trial court, in performing its vital role as ‘gatekeeper’ pursuant to OEC 104(1), should, therefore, find [federal practice] instructive.”  State v. O’Key, 899 P.2d 663, 680 (Or. 1995).

Thus, “the court’s role as a “gatekeeper” [is] determining, based on a preponderance of the evidence, whether the scientific evidence is sufficiently valid to assist the trier of fact.”  Miller v. Elisea, 459 P.3d 887, 890 (Or. App. 2020) (citation omitted).  As a “gatekeeper,” “the trial court’s function [is] to determine whether the offered evidence was based on scientifically valid principles.”  Id. (citation omitted).  “The primary source of a trial court’s gatekeeping function with respect to expert testimony is [Or. Evid. C.] 702.”  Id. at 889 n.4.   “In performing its gatekeeping role under OEC 702, the court is to screen proffered scientific testimony to determine whether it is sufficiently valid, as a matter of science, to legitimately assist the trier of fact and exclude bad science that would be confusing, misleading, erroneous, prejudicial or useless.”  State v. Ray, 509 P.3d 171, 175 (Or. App. 2022) (citation and quotation marks omitted).

Given Oregon’s early adoption of federal expert admissibility practice, it is logical to think the state would be amenable Rule 702-based amendments. However, in Oregon, the rules of evidence are legislatively adopted, so a statutory amendment would be necessary.

Pennsylvania

Pennsylvania, a Frye-based state, has only equivocally adopted the “gatekeeper” role for trial courts adjudicating expert admissibility.  “Whether we refer to the role of the trial court in a Frye contest as that of a “gatekeeper” is not consequential.  What is of consequence is the role that the trial court plays . . . [because] it is the trial court’s proper function to ensure that the expert has applied a generally accepted scientific methodology to reach his or her scientific conclusions.”  Walsh v. BASF Corp., 234 A.3d 446, 458 (Pa. 2020).  But there is Pennsylvania appellate authority that “the [c]ourt is a gatekeeper to insure that conclusions reached by the experts is [are] within the methodology commonly accepted within the [relevant scientific] community.”  Commonwealth v. Bonnett, 239 A.3d 1096, 1103 (Pa. Super. 2020) (citations and quotation marks omitted).  Judges are charged with “perform[ing] [their] traditional gatekeeper function with regard to the proposed expert testimony.”  Commonwealth v. Selenski, 158 A.3d 102, 112 (Pa. Super. 2017) (citation omitted).  “[T]he gatekeeping role of the court, far from detracting from the jury’s function, is in fact essential to it:  Scientific methodology and conclusions must initially be scrutinized by the court to ensure that what might appear to the jury to be science is not in fact speculation in disguise.”  Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314, 1325 (Pa. Super. 1997), aff’d, 564 Pa. 3, 764 A.2d 1 (2000).

Pennsylvania trial courts have more frequently expounded on their “gatekeeping” task:

Pennsylvania law requires that the judge serve as a gatekeeper before proffered expert testimony is provided at trial, . . . to ensure that the witness has demonstrated qualifications in the field offered, the testimony provides information that an average juror would not already possess, the testimony is relevant and the methods used are reliable. 

Greene v. Phila. Media Network, Inc., 40 Pa. D.&C.5th 157, 161 (Pa. Com. Pl. Philadelphia Co. 2014).

The Court . . . acts as gatekeeper to decide whether the science being offered by the expert is sufficiently reliable, solid, trustworthy, and good enough to serve as the basis for the jury’s findings of fact or if it is dressed up to look good enough, but basically so untrustworthy that no finding of fact can properly be based on it.

Sechrist Construction, Inc. v. Harpster, 2018 WL 1900257, at *12 (Pa. Com. Pl. Cumberland Co. Jan. 18, 2018) (citation and quotation marks omitted).

The trial court has the obligation to act as a gatekeeper in order to ensure that the jury only considers opinions grounded in reliable methodology and to exclude expert opinion where it is not based on a reliable, generally acceptable methodology.

Wolfe v. Automation, 2014 Pa. Dist. & Cnty. Dec. Lexis 10894, at *5-6 (Pa. Com. Pl. Allegheny Co. April 21, 2014). 

The best that could be expected in Pennsylvania is what we proposed in the introduction – a version of Rule 702 that reflects the Commonwealth’s continued adherence to the general acceptance standard of Frye.

Rhode Island

Rhode Island courts recognize ruling on the admissibility of expert testimony “create[s] an obligation on the part of trial justices to act as ‘gatekeepers:’ their role is to insure that proposed experts are qualified and that all scientific testimony is not only relevant, but also reliable.”  Raimbeault v. Takeuchi Manufacturing (U.S.), Ltd., 772 A.2d 1056, 1061-62 (R.I. 2001).  “Clearly, a trial justice serves an important role as the gatekeeper in determining the admissibility of evidence.”  Gallucci v. Humbyrd,709 A.2d 1059, 1064 (R.I. 1998).  “Indeed, the trial justice serves an important ‘gatekeeping function’ when it comes to admitting expert testimony, [because] expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”  Ribeiro v. R.I. Eye Institute, 138 A.3d 761, 771 (R.I. 2016) (citations and quotation marks omitted).  “The trial justice exercises a gatekeeping function by holding a preliminary evidentiary hearing outside the presence of the jury in order to determine whether such evidence is reliable and whether the situation is one on which expert testimony is appropriate.”  DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 685 (R.I. 1999) (citation and quotation marks omitted).

“The primary function of the trial justice’s gate-keeping role is to assure that the proposed expert testimony, presented as a scientifically valid theory, is not mere ‘junk science.’”  Owens v. Silvia, 838 A.2d 881, 891 (R.I. 2003).  “[I]n Rhode Island a trial justice . . . in a must exercise this gatekeeping function and shall conduct a preliminary examination prior to allowing scientific evidence . . . to be submitted to the jury.”  State v. Quattrocchi, 681 A.2d 879, 884 (R.I. 1996).

Other Rhode Island appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Mills v. State Sales, Inc., 824 A.2d 461, 471-72 (R.I. 2003); Rodriquez v. Kennedy, 706 A.2d 922, 924 (R.I. 1998).

Because Rhode Island has a long-standing history of being a gatekeeping jurisdiction and its R.I. R. Evid. 702 is patterned after the Federal Rule, it would be a reasonable candidate for a rules amendment conforming to the new federal Rule 702 standard.

South Carolina

In South Carolina, “all expert testimony under Rule 702, SCRE, imposes on the trial courts an affirmative and meaningful gatekeeping duty,” and this includes “a gatekeeping role for trial courts in connection with nonscientific (or experienced based) expert testimony.”  State v. White, 676 S.E.2d 684, 686-87 (S.C. 2009) (“All expert testimony must satisfy the Rule 702 criteria, and that includes the trial court’s gatekeeping function in ensuring the proposed expert testimony meets a reliability threshold for the jury’s ultimate consideration.”).  The South Carolina Supreme Court reiterated the importance of the trial court’s responsibilities in ruling:

We hold that the trial courts of this state have a gatekeeping role with respect to all evidence sought to be admitted under Rule 702, whether the evidence is scientific or nonscientific. In the discharge of its gatekeeping role, a trial court must assess the threshold foundational requirements of qualifications and reliability and further find that the proposed evidence will assist the trier of fact. The familiar evidentiary mantra that a challenge to evidence goes to weight, not admissibility may be invoked only after the trial court has vetted the matters of qualifications and reliability and admitted the evidence.

Id. at 689.

“[I]n executing its gatekeeping duties, the trial court must make three key preliminary findings which are fundamental to Rule 702 . . .,” that “the subject matter is beyond the ordinary knowledge of the jury;” “the proffered expert has indeed acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter;” and “[f]inally, the trial court must evaluate the substance of the testimony and determine whether it is reliable.”  Watson v. Ford Motor Co., 699 S.E.2d 169, 175 (S.C. 2010) (citations omitted).  “We have repeatedly discussed the trial court’s ‘gatekeeping’ role regarding the admission of expert testimony,” and “repeatedly enforced the requirement that trial courts exercise their gatekeeping responsibility in admitting expert testimony.”  State v. Phillips, 844 S.E.2d 651, 658-59 (S.C. 2020) (citations omitted).  “In the discharge of its gatekeeping role, a trial court must assess the threshold foundational requirements of qualifications and reliability and further find that the proposed evidence will assist the trier of fact.”  Risher v. S.C. Dep’t of Health & Environmental Control, 712 S.E.2d 428, 432 (S.C. 2011).  “At the same time, however, this Court’s jurisprudence emphasizes the role of the trial court as the gatekeeper in determining both the qualifications of an expert and whether the expert’s testimony will assist the trier of fact.”  Fields v. J. Haynes Waters Builders, Inc., 658 S.E.2d 80, 86 (S.C. 2008); see also Jamison v. Morris, 684 S.E.2d 168, 175 (“All expert testimony must meet a reliability threshold under Rule 702, SCRE, which imposes an affirmative and meaningful gatekeeper function on the trial judge.”); State v. Warner, 842 S.E.2d 361, 365 (S.C. App. 2020) (“Before admitting expert testimony, trial courts, as the gatekeepers of evidence, must ensure the proffered evidence is beyond the ordinary knowledge of the jury; the witness has the skill, training, education, and experience required of an expert in his field; and the testimony is reliable.”).

South Carolina is another firmly entrenched gatekeeping jurisdiction and South Carolina’s evidentiary rule has mirrored its federal counterpart.  Thus, South Carolina would be a prime target for a rules amendment conforming to the recent changes to Fed. R. Evid. 702.

South Dakota

South Dakota judges “must ensure that an expert’s testimony rests on both a reliable foundation and is relevant to the task at hand, [and] when the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function.”  Rogen v. Monson, 609 N.W.2d 456, 459 (S.D. 2000) (citation and quotation marks omitted).  “As with other expert opinions, a trial court must exercise its gatekeeping function, ensuring that the opinion meets the prerequisites of relevance and reliability before admission.”  Reinfeld v. Hutcheson, 783 N.W.2d 284, 292 (S.D. 2010) (citations and quotations marks omitted).  “[W]hen dealing with expert opinion, the court must fulfill a gatekeeping function, ensuring that the opinion meets the prerequisites of relevance and reliability before admission.”  Garland v. Rossknecht, 624 N.W.2d 700, 702 (S.D. 2001).  “To exercise its gatekeeping function, the trial court must determine both the reliability and the relevancy of the expert’s testimony.”  State v. Moeller, 616 N.W.2d 424, 466 (S.D. 2000).  “[W]hen the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function to determine that the opinion has a reliable foundation and is relevant to the case at hand.”  Nickles v. Schild, 617 N.W.2d 659, 664 (S.D. 2000) (citation and quotation marks omitted).  “While circuit courts are to determine whether the expert testimony is reliable and will assist the trier of fact, the trial courts are gatekeepers, not armed guards.”  Tosh v. Schwab, 743 N.W.2d 422, 433 (S.D. 2007) (citation and quotation marks omitted).

South Dakota has incorporated federal evidentiary standards into its statute governing expert testimony, and has consistently followed federal standards.  It is another good candidate for an amendment conforming to the updated federal rule.

Tennessee

In Tennessee, “[a]n essential role of the judge, as the neutral arbiter in the trial, is to function as a ‘gatekeeper’ with regard to the admissibility of expert testimony, permitting only expert opinions that are based on relevant scientific methods, processes, and data, and not upon [the] expert’s mere speculation.”  Payne v. CSX Transportation, Inc., 467 S.W.3d 413, 454 (Tenn. 2015) (citation and quotation marks omitted).  “[W]e emphasize that it is a trial court’s responsibility to act as a gatekeeper regarding the admissibility of expert testimony.”  State v. Lowe, 552 S.W.3d 842, 871 (Tenn. 2018).

This gatekeeping role is simply to guard the jury from considering as proof pure speculation presented in the guise of legitimate scientifically-based expert opinion.  It is not intended to turn judges into jurors or surrogate scientists.  Thus, the gatekeeping responsibility of the trial courts is not to weigh or choose between conflicting scientific opinions, or to analyze and study the science in question in order to reach its own scientific conclusions from the material in the field.  Rather, it is to assure that expert’s opinions are based on relevant scientific methods, processes, and data, and not on mere speculation, and that they apply to the facts in issue.

McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997) (citation omitted).  The gatekeeping function is “to ensure that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Brown v. Crown Equipment Corp., 181 S.W.3d 268, 275 (Tenn. 2005) (citation and quotation marks omitted).

As a “gatekeeper,” a trial court “must assure itself that the opinions are based on relevant scientific methods, processes, and data, and not upon an expert’s mere speculation.”  Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d 466, 479-80 (Tenn. App. 2010) (citation and quotation marks omitted).  “Thus, a trial court must act as a gatekeeper in determining whether expert testimony is admitted.”  Beaudreau v. GMAC, 118 S.W.3d 700, 703-04 (Tenn. App. 2003).  “[Q]uestions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court,” and “[a]s such, the trial court acts as a gatekeeper in determining whether expert testimony is admitted.”  Biggs v. Town of Nolensville, 2022 WL 41117, at *3, n.2 (Tenn. App. Jan. 5, 2022) (citations and quotation marks omitted).

Other Tennessee courts that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Dowdy v. BNSF Railway Co., 2023 WL 3000863, at *3 (Tenn. App. April 19, 2023); Jackson v. Thibault, 2022 WL 14162828, at *3-4 (Tenn. App. Oct. 25, 2022); Kidd v. Dickerson, 2020 WL 5912808, at *7 (Tenn. App. Oct. 5, 2020); Boyd v. BNSF Railway Co., 596 S.W.3d 712, 724-25 (Tenn. App. 2018); Kennard v. Townsend, 2011 WL 1434625, at *10 (Tenn. App. April 14, 2011); Johnson v. Richardson, 337 S.W.3d 816, 818 (Tenn. App. 2010); Gibson v. Chrysler Corp., 2004 WL 1918725, at *13 (Tenn. App. Aug. 26, 2004).

Tennessee is a strong gatekeeping jurisdiction, and probably be amenable to a Rule 702 update.

Texas

In Texas, “[t]he trial court must act as an evidentiary gatekeeper to exclude irrelevant and unreliable expert evidence.”  Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012).  Gatekeeping is the trial court’s “primary responsibility.”  General Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex. 1999).  Texas courts acknowledge that “trial judges are the gatekeepers and should pay particular attention to the reliability of the expert and his or her testimony.”  Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 726 (Tex. 1998) (citation omitted).  “[T]he court, as gatekeeper, must determine how the reliability of particular testimony is to be assessed.”  TXI Transportation Co. v. Hughes, 306 S.W.3d 230, 235 (Tex. 2010) (citation and quotation marks omitted).  In ruling on admissibility, trial judges are the gatekeepers and should pay particular attention to the reliability of the expert and his or her testimony.”  Gammill, 972 S.W.2d at 726 (citation and quotation marks omitted).

In determining reliability, the trial court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.  A significant part of the trial court’s gatekeeper function is to evaluate the expert’s qualifications, listen to the testimony, view the evidence, and determine which factors and evaluation methodology are most appropriate to apply.

Mack Trucks v. Tamez, 206 S.W.3d 572, 579 (Tex. 2006) (citation and quotation marks omitted).

“When a party objects to the reliability of its opponent’s scientific expert testimony, the trial court − in exercising its gatekeeper function − is responsible for making the preliminary determination of whether the proffered testimony meets the standards of scientific reliability.”  Faust v. BNSF Railway Co., 337 S.W.3d 325, 332 (Tex. App. 2011) (citation omitted).

The trial court has the gatekeeper function of ensuring that expert testimony is based on a reliable foundation, and is relevant to the issues in the case.  When measuring the reliability of an expert’s opinion in non-scientific cases, such as the one here, we consider the following:  (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon the principles involved in that field.

In Interest of J.R., 501 S.W.3d 738, 748 (Tex. App. 2016).  “In evidentiary matters, a trial court is a gatekeeper, ensuring expert testimony is relevant and based on a reliable foundation.”  Null v. State, 640 S.W.3d 370, 382 (Tex. App. 2022).  This “gatekeeper function” also “assure[s] that the witness truly has expertise concerning the “actual subject about which they are offering an opinion.”  R&M Mixed Beverage Consultants, Inc. v. Safe Harbor Benefits, Inc., 578 S.W.3d 218, 241 (Tex. App. 2019) (citations omitted).

Other Texas courts that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Adame v. 3M Co., 585 S.W.3d 127, 147 (Tex. App. 2019) (en banc); Oliver v. Saadi, 2019 WL 4126614, at *5 (Tex. App. Aug. 30, 2019); Jackson v. Michelin North America, Inc., 2018 WL 4323624, at *3 (Tex. App. Sept. 10, 2018); Zamora v. Champion Cooler Corp., 2018 WL 507362, at *2 (Tex. App. Jan. 23, 2018); Johnson v. Harris, 546 S.W.3d 293, 299-300 (Tex. App. 2017); Burks v. Duncan, 2016 WL 3346056, at *3 (Tex. App. June 15, 2016); Johnston v. Christus Spohn Health System Corp., 2015 WL 10574287, at *2 (Tex. App. March 31, 2015); Chesapeake Operating, Inc. v. Hopel, 2013 WL 5782916, at *3 (Tex. App. Oct. 24, 2013); Dickerson v. State Farm Lloyd’s Inc., 2011 WL 3334964, at *3 (Tex. App. Aug. 3, 2011); Hackett v. Littlepage & Booth, 2009 WL 416620, at *3 (Tex. App. Feb. 20, 2009); Gaudette v. Conn Appliances, Inc., 2007 WL 2493437, at *3 (Tex. App. Sept. 6, 2007); Brazil v. Khater, 223 S.W.3d 418, 421 (Tex. App. 2006); Feria v. Dynagraphics Co., 2004 WL 500869, at *5 (Tex. App. March 15, 2004); Exxon Corp. v. Makofski, 116 S.W.3d 176, 192-93 (Tex. App. 2003); Wiggs v. All Saints Health System, 124 S.W.3d 407, 411 (Tex. App. 2003); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 611-12 (Tex. App. 2002); Revels v. Novartis Pharmaceuticals Corp., 1999 WL 644732, at *2 (Tex. App. Aug. 26, 1999).

Texas has historically been a strong gatekeeping state, and given its history and precedent, it is another jurisdiction in which an update to its Rule 702 analog would likely stand a strong chance of success.

Utah

Utah’s version of Rule 702 was amended in 2007 to “assign[] to trial judges a gatekeeper responsibility to screen out unreliable expert testimony − not just scientific expert testimony, and in applying . . . rule 702, judges should approach expert testimony with rational skepticism.”  Eskelson v. Davis Hospital & Medical Center, 242 P.3d 762, 766 (Utah 2010) (citations and quotation marks omitted).  Thus, Rule 702 “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony.”  Taylor v. University of Utah, 466 P.3d 124, 128 (Utah 2020) (quoting note to Rule 702).  To exercise its “gatekeeper role,” a “trial court must . . . decide whether the specific testimony that the eyewitness expert proposes to offer to the jury is reliable.”  State v. Guard, 371 P.3d 1, 19 (Utah 2015) (footnotes omitted).  “Judges are compelled to exclude expert testimony where it is unhelpful, unreliable, unduly prejudicial, or has improperly invaded the province of the jury.”  Smith v. Volkswagen SouthTowne, Inc., 513 P.3d 729, 753 n.19 (Utah 2022).  “The “gatekeeping function in excluding scientific and medical expert testimony” ensures that “scientific controversy must be settled by the methods of science rather than by the methods of litigation.”  Alder v. Bayer Corp., 61 P.3d 1068, 1081 (Utah 2002) (citation and quotation marks omitted).

“Trial courts perform a gatekeeping function relative to expert testimony and are tasked with ensuring that the principles forming the basis of the expert’s testimony are reliable, are based on sufficient facts or data, and have been reliably applied to the facts of the case.”  State v. Moore, 493 P.3d 703, 706 n.5 (Utah App. 2021) (citation and quotation marks omitted).  “In determining whether to allow an expert to offer an opinion, the district court’s role is that of a ‘gatekeeper,’ meant to screen out unreliable expert testimony.”  Howe v. Momentum LLC, 461 P.3d 1111, 1115-16 (Utah App. 2020) (citation and quotation marks omitted); see also Johnson v. Montoya, 308 P.3d 566, 568 (Utah App. 2013) (“Trial courts perform an important gatekeeping function by screening out unreliable expert testimony and ensuring that only reliable expert testimony will be presented to the jury.”) (citations and quotation marks omitted). 

Other Utah appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Paget v. DOT, 322 P.3d 1180, 1181-82 (Utah 2014); Swanigan v. Avenues Healthcare, Inc., 524 P.3d 173, 177 (Utah App. 2023); De Adder v. Intermountain Healthcare, Inc., 308 P.3d 543, 548-49 (Utah App. 2013).

Utah has already amended its analog to R. Evid. Rule 702 once to conform to federal changes.  It is a good candidate to do so again – and it could well be necessary, as language to “err on the side of admission” has crept into recent gatekeeping discussions.  E.g., Smith v. Volkswagen, 513 P.3d at 753.

Vermont

Vermont decisions are scarce on the judicial “gatekeeper” function in expert admissibility cases, but are generally supportive. “[T]rial judges in Vermont must now act as gatekeepers who screen expert testimony ensuring that it is reliable and helpful to the issue at hand before the jury hears it.”  USGen New England, Inc. v. Town of Rockingham, 862 A.2d 269, 276 (Vt. 2004).  USGen “conclud[ed] that because our rules of evidence are essentially identical to the federal ones on admissibility of scientific evidence it makes sense to adopt admissibility principles similar to those used in the federal courts.”  Id. at 275 (citation and quotation marks omitted).  “The trial courts must have flexibility in carrying out their gatekeeper functions, but we cannot allow our deferential standard of review to blind us to fundamental misapplications of” Rule 702.  985 Assocs., Ltd. v. Daewoo Electronics America, Inc., 945 A.2d 381, 384-85 (Vt. 2008).  “These standards provide that admissible expert testimony need only be both relevant and reliable, directing trial courts to act as gatekeepers and screen expert testimony before the jury hears it.”  State v. Scott, 88 A.3d 1173, 1177 (Vt. 2013).

“The central purpose of judicial gatekeeping under Rule 702 is to screen out potentially confusing or misleading ‘junk science’ that was propagated primarily for litigation.”  Id. at 1178 (citation and quotation marks omitted). 

[T]he objective of the gatekeeping requirement [i]s ensuring the reliability and relevancy of expert testimony and making certain that an expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

State v. Pratt, 128 A.3d 883, 889-90 (Vt. 2015) (citations and quotation marks omitted).  “Thus, in fulfilling its gatekeeper role, the trial court must examine the expert’s conclusions in order to determine whether they could reliably flow from the facts known to the expert and the methodology used.”  Estate of George v. Vermont League of Cities & Towns, 993 A.2d 367, 373 (Vt. 2010) (citation and quotation marks omitted).  “We have cautioned that trial courts must take great care when relying on other court decisions to ensure that they do not abdicate their responsibility as evidentiary gatekeepers.”  State v. Sarkisian-Kennedy, 227 A.3d 1007, 1018 (Vt. 2020) (citation and quotation marks omitted).

Since clear Vermont authority confirms that its courts fill the position of a “gatekeeper” in determining admissibility of expert testimony, and has enforced admissibility standards “virtually identical” to Fed. R. Evid. 702, Vermont is a candidate for a conforming amendment.

Virginia

Virginia appears to be a “gatekeeping” state when considering expert testimony.  21st Century Systems, Inc. v. Perot Systems Gov’t Services, Inc., 726 S.E.2d 236, 247 n.3 (Va. 2012) (referring to the judge as “gatekeeper” in expert context).

[Expert] testimony . . . must meet certain fundamental requirements.  Such testimony cannot be speculative or founded upon assumptions that have an insufficient factual basis.  Such testimony also is inadmissible if the expert has failed to consider all the variables that bear upon the inferences to be deduced from the facts observed.

Tittsworth v. Robinson, 475 S.E.2d 261, 263 (Va. 1996) (citations omitted); accord Keesee v. Donigan, 524 S.E.2d 645, 647-48 (Va. 2000) (following Tittsworth).

However, most explicit Virginia “gatekeeping” precedent is from state trial courts.  “When deciding whether expert testimony meets the well-established evidentiary standards for admissibility, the Court acts as a gatekeeper.”  Commonwealth v. Shaw, 2022 WL 18360378, at *3 (Va. Cir. March 9, 2022) (citations omitted).  “It is the function of this Court to act as a gatekeeper to prevent evidence not reaching this threshold from getting before the jury.”  Russell v. Clark Equipment Co., 1996 Va. Cir. Lexis 427, at *3 (Va. Cir. Nov. 25, 1996).  “As the so-called ‘gate-keeper’ of evidence, the court’s role is to determine if the matter the expert is to testify about ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’”  Jones v. CSX Transportation, Inc., 2001 WL 2125, at *2 (Va. Cir. Jan. 3, 2001) (quoting Va. Code Ann §8.01-401.3(A)).  “The law nonetheless requires that the proposed expert testimony satisfy certain fundamental requirements before a trial court, exercising its evidentiary gatekeeping function, should admit the evidence.”  Rhodes v. Lance, Inc., 2001 WL 534140, at *2 (Va. Cir. May 21, 2001) (citation omitted).

Virginia is not a strong gatekeeping jurisdiction, nor does it have a close Rule 702 analog, but rather a statute.  While conforming Virginia practice to Fed. R. Evid. 702 would be useful, that would require a statutory, rather than a rules, change.

Washington

In Washington, “[t]he trial court acts as a gatekeeper, determining whether a particular expert’s testimony will assist the trier of fact and excluding evidence that does not meet this standard.”  Frausto v. Yakima HMA, LLC, 393 P.3d 776, 782 (Wash. 2017).  “By preserving the court’s gatekeeping function, expert testimony may be excluded when it clearly cannot help the trier of fact.”  Id. at 784; see State v. King County Dist. Court West Div., 307 P.3d 765, 769 (Wash. 2013) (“Essentially, the trial court acts as a gatekeeper and can exclude otherwise admissible evidence if it fails to meet ER 702 standards.”) (citation omitted).

[T]he trial court, in its gate keeping role, must decide if evidence is admissible.  To satisfy the pursuit of truth, evidence must meet certain criteria.  Evidence must be probative and relevant, and meet the appropriate standard of probability.  Expert testimony, in addition, must be helpful.  Evidentiary rules provide significant protection against unreliable, untested, or junk science.

Anderson v. Akzo Nobel Coatings, Inc., 260 P.3d 857, 863 (Wash. 2011); accord L.M. v. Hamilton, 436 P.3d 803, 810-11 (Wash. 2019) (“The courts serve the gatekeeping function of keeping out unreliable, untested, or junk science.”) (quoting Anderson).

Thus, in Washington, “the trial court has a gatekeeping function under the rules of evidence.”  State v. Digioia, 2021 WL 5296321, at *4 (Wash. App. Nov. 15, 2021).  “It is the court’s duty to act as a gatekeeper, to admit techniques accepted in the relevant scientific community even when they are novel to the court, but to exclude techniques that are novel both to the court and the relevant scientific community.”  Moore v. Harley-Davidson Motor Co. Group, 241 P.3d 808, 813 (Wash. App. 2010).

Washington, however, remains a Frye state and balances that analysis with the requirements of its analog of Rule 702.  “[T]he gatekeeping function of Frye requires both an accepted theory and a reliable method of applying that theory to the facts of the case.”  State v. Riker, 869 P.2d 43, 50 (Wash. 1994):

In Washington, expert testimony must satisfy both the Frye test and ER 702.  While Frye concerns the use of novel scientific methodology and guards against the admission of new techniques until a scientific consensus decides the methodology is reliable, ER 702 concerns the use of existing scientific methodology and excludes testimony where the expert fails to adhere to that reliable methodology.

State v. Arndt, 453 P.3d 696, 703-04 (Wash. 2019) (footnotes, citations and quotation marks omitted).  “[T]he trial court serves as the gatekeeper for evidence,” and under “the Frye standard [they] determin[e] whether the expert’s science and methodology are sufficient to be admissible.”  Eckstrom v. Hansen, 2020 Wash. Super. Lexis 11310, at *2 (Wash. Super. Feb. 14, 2020). 

Washington’s mixture of the Frye standard with gatekeeping under its version of Rule 702 would make that state a good candidate for the version of a rules amendment we suggested at the outset as appropriate for Frye jurisdictions.

West Virginia

West Virginia courts serve as “gatekeepers” for expert witness testimony, because “[t]he [procedural] regime contemplates that trial judges will perform a gatekeeping function, determining whether the . . . methodology underlying proffered expert testimony is scientifically valid and whether that . . . methodology properly can be applied to the facts in issue.”  Harris v. CSX Transportation, Inc., 753 S.E.2d 275, 305 (W. Va. 2013) (citation and quotation marks omitted).  “We . . . impose[] a ‘gatekeeper’ duty upon trial courts to screen scientific expert opinions to ensure relevancy and reliability.”  Anstey v. Ballard, 787 S.E.2d 864, 880 (W. Va. 2016).  In West Virginia, “a trial court has a gatekeeper obligation to screen scientific expert opinions for admissibility.”  State v. Surbaugh, 786 S.E.2d 601, 609 (W. Va. 2016).

When scientific evidence is proffered, a circuit court in its gatekeeper role . . . must engage in a two-part analysis in regard to the expert testimony.  First, the circuit court must determine whether the expert testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science.  Second, the circuit court must ensure that the scientific testimony is relevant to the task at hand.

San Francisco v. Wendy’s International, Inc., 656 S.E.2d 485, 493 (W. Va. 2007) (citation omitted).  In exercising its role as evidentiary “gatekeeper” confronting scientific testimony, court must make a preliminary determination of “whether the reasoning or methodology underlying the testimony is scientifically valid” before the jury may receive it.  State ex rel. Weirton Medical Center v. Mazzone, 584 S.E.2d 606, 611 (W. Va. 2003) (citation and quotation marks omitted); see also State v. Lockhart, 542 S.E.2d 443, 450 (W. Va. 2000) (trial court, as gatekeeper, must determine “whether expert scientific testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science”).

West Virginia admissibility standards closely Fed. R. Evid. 702 and, given the state’s tradition as a gatekeeping jurisdiction, an effort to amend the state’s rules to conform to the latest federal amendments would have a good chance of success.

Wisconsin

In Wisconsin, “the circuit court must act as a gatekeeper and make a threshold determination that the testimony is reliable in order for it to be presented at trial.”  State v. Burch, 961 N.W.2d 314, 344–45 (Wis. 2021) (citation omitted).  “[T]he trial judge stands as a gatekeeper to prevent irrelevant or unreliable testimony from being admitted.”  State v. Dobbs, 945 N.W.2d 609, 624 (Wis. 2020) (citation and quotation marks omitted).  This “gatekeeping obligation . . . assigns to the trial court the task of ensuring that a scientific expert is qualified and that [expert] testimony both rests on a reliable foundation and is relevant to the task at hand.”  Seifert v. Balink, 888 N.W.2d 816, 830 (Wis. 2017) (plurality opinion) (citation and quotation marks omitted).  “The trial court’s gatekeeping function . . . requires more than simply taking the expert’s word for it.”  Id. at 834 (citation and quotation marks omitted).

[A]dmissibility of exposition testimony pursuant to Wis. Stat. §907.02(1) is not automatic.  The trial judge stands as a gatekeeper to prevent irrelevant or unreliable testimony from being admitted.  When expert testimony is proffered in the form of an exposition on general principles, the circuit court, as gatekeeper, must consider the following four factors:  (1) whether the expert is qualified; (2) whether the testimony will address a subject matter on which the factfinder can be assisted by an expert; (3) whether the testimony is reliable; and (4) whether the testimony will “fit” the facts of the case.

Dobbs, 945 N.W.2d at 624 (citations and quotation marks omitted).

Thus, “[t]he reliability of expert testimony [has] ceased being a question for the jury and became a gatekeeping assessment for the trial court.”  State v. Hogan, 959 N.W.2d 658, 665 (Wis. App. 2021) (citation omitted).  “The trial court, in performing its ‘gatekeeping’ function, has discretion to choose the manner in which the reliability of an expert’s testimony is appraised.  However, the trial court has no discretion to abandon its role as gatekeeper.”  State v. Cameron, 885 N.W.2d 611, 615 (Wis. App. 2016) (citation omitted).

[T]he legislature adopted [a] reliability test and created a more rigorous gatekeeping role for trial courts.  Whereas before, courts were required to admit expert testimony so long as it was relevant and the witness qualified, the statute now requires an additional, more rigorous, showing: the reasoning or methodology underlying the testimony must be reliable and reliably applied to the facts of the case.

Id. at 659.  “The court’s gate-keeper function . . . is to ensure that the expert’s opinion is based on a reliable foundation and is relevant to the material issues.”  State v. Giese, 854 N.W.2d 687, 691 (Wis. App. 2014) (citation omitted).  “The standard is flexible but has teeth.  The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion.”  State v. Murphy, 2018 WL 3954208, at *3 (Wis. App. Aug. 16, 2018) (citation and quotation marks omitted).

The heightened standard under the amended Wis. Stat. §907.02 . . . require[s] more of the gatekeeper.  Instead of simply determining whether the evidence makes a fact of consequence more or less probable, courts must now also make a threshold determination as to whether the evidence is reliable enough to go to the factfinder.

State v. Jones, 911 N.W.2d 97, 107 (Wis. App. 2018).  Other post-statute Wisconsin appellate decisions that have discussed “gatekeeping” responsibilities while excluding testimony in personal injury cases are:  Turner-Fictum v. Integrity Property & Casualty Insurance Co., 2021 WL 787559, at *3 (Wis. App. March 2, 2021); and Miranda v. Gaston, 2017 WL 5462957, at *3-4 (Wis. App. Nov. 14, 2017).

The Wisconsin legislature imposed judicial gatekeeping after the courts refused to adopt it themselves.  See State v. Fischer, 778 N.W.2d 629, 642 (Wis. 2010) (“declin[ing] to . . . make the judge the gatekeeper”).  When passed, §907.02 “mirror[ed]” the 2000 version of Fed. R. Evid. 702.  Seifert, 888 N.W.2d at 829-30.  So, while it would be logical to update the “mirror” in light of the change to Fed. R. Evid. 702, that change would have to be made statutorily, not through a rules change.

Wyoming

“[T]he Wyoming Supreme Court ha[s] emphasized that district courts must act as ‘gatekeepers’ to assure that only reliable and helpful expert testimony is communicated to the jury.”  Woods v. State, 401 P.3d 962, 972 (Wyo. 2017).  Wyoming law “impos[es] gatekeeping responsibilities on trial courts to decide whether scientific or technical expert testimony is admissible.”  Alexander v. Meduna, 47 P.3d 206, 214 (Wyo. 2002).  “While the district court has discretion in the manner in which it conducts its [gatekeeping], there is no discretion regarding the actual performance of the gatekeeper function.”  BNSF Railway Co. v. Box Creek Mineral Ltd. Partnership, 420 P.3d 161, 167 (Wyo. 2018) (citation omitted) (emphasis original).  “The gatekeeper inquiry under Rule 702 is ultimately a flexible determination, [but] the [trial] court must provide more than just conclusory statements of admissibility or inadmissibility to show that it adequately performed its gatekeeping function.”  Id. at 167 (citation and quotation marks omitted). “‘Gut feelings’ or ‘common knowledge’ are exactly what the gatekeeper role is designed to prevent.  The gatekeeper must make sure that the method used by the expert is reliable.”  Id at 170-71. 

“[T]he focus of the gatekeeping function is to assure that the theories relied upon by experts to support their conclusions are scientifically ‘reliable’ and that they ‘fit’ the facts in question.”  Hoy v. DRM, Inc., 114 P.3d 1268, 1278 (Wyo. 2005).

When determining the admissibility of expert testimony, the district court’s gatekeeping function requires it to determine whether the methodology or technique used by the expert to reach his conclusions is reliable and, if so, the court must then determine whether the proposed testimony “fits” the facts of the particular case.

Easum v. Miller, 92 P.3d 794, 799 (Wyo. 2004) (citation omitted). 

Wyoming has adhered the same kind of admissibility analysis as Fed. R. Evid. 702 for many years.  It would probably be receptive to an update matching the recent amendment to the analogous federal rule.