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As readers of the Blog undoubtedly know, the amendments toughening up Fed. R. Evid. 702 became effective on December 1, 2023.  Here are the precise changes again:

Rule 702. Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

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

New language in italics; deleted language struck out.

The three changes that the amended rule makes are:  (1) putting the proponent’s burden of proof (preponderance) into the black letter of Rule 702; (2) specifying that “the court” – not a jury – must decide that all four of the substantive criteria for expert admissibility have been met; and (3), the court’s gatekeeping obligation is to ensure that all expert testimony satisfies Rule 702’s four requirements, especially that the expert’s “principles and methods” are reliably applied to the case-specific facts.

These changes to Rule 702 were made because the Rules Committee believed – to put it bluntly – that too many courts were getting the prior (2000) version of the rule wrong.  We say “bluntly” because that’s what the 2023 Committee Note to the newly amended rule states.  They’re quite “blunt” about it, and we should be, too.  Here are several excerpts from Note that we should be using in our briefs going forward – particularly in circuits that were getting it wrong.

First, the Committee found it necessary to “emphasize” both the court’s role and the burden of proof.  “[E]xpert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.”  Committee Note to 2023 Amendments at (1).  Too many courts were getting Rule 702 wrong, particularly as to its “reliability requirements”:

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

Id. (emphasis added).  In short, there is no “presumption” in favor of admissibility under Rule 702.  The proponent must prove all the Rule’s four elements.

The amendment clarifies that the preponderance standard applies to the three reliability-based requirements added in 2000 − requirements that many courts have incorrectly determined to be governed by the more permissive Rule 104(b) standard.  But it remains the case that other admissibility requirements in the rule (such as that the expert must be qualified and the expert’s testimony must help the trier of fact) are governed by the Rule 104(a) standard as well.

Id. (emphasis added).

Specifically, courts applying earlier versions of Rule 702 applied “weight not admissibility” excuses to admit experts far more frequently than the Rule’s text allowed – particularly as to there being an adequate basis in fact, and how an expert applied what are, in the abstract, proper methodologies:

[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.  These rulings are an incorrect application of Rules 702 and 104(a).

Id. (emphasis added).  This final concern is what motivated the change to Rule 703(d) to emphasize judicial scrutiny of the “reliable application” of particular methods to particular facts.

“Weight,” the Committee Note observes, is limited to nibbling around the edges, such as “that the expert has not read every single study that exists.”  Id.  Weight “does not mean, as certain courts have held, that arguments about the sufficiency of an expert’s basis always go to weight and not admissibility.”  Id.  Rather, “weight” is grounds for admissibility only “once the court has found it more likely than not that the admissibility requirement has been met.”  Id.  “[I]t does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.”  Committee Note to 2023 Amendments at (2).

The 2023 amendments to Rule 702 were “unanimously” adopted by the Committee.  Committee on Rules of Practice & Procedure, Agenda Book, Tab 7A, “Report to the Standing Committee,” at 871 (June 7, 2022) (available online here).  They are intended to “emphasize that the court must focus on the expert’s opinion and must find that the opinion actually proceeds from a reliable application of the methodology.”  Id.  The amendment “more clearly empowers the court to pass judgment on the conclusion that the expert has drawn from the methodology.”  Id.  With respect to weight versus admissibility, the Committee explicitly set out to change “misstatement[s]” in “contrary” decisions rendered by “many courts”:

[T]he Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d) − that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology − are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible.  These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence.  The Committee concluded that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule 702(b) and (d) requirements by a preponderance of the evidence − essentially treating these questions as ones of weight rather than admissibility, which is contrary to the Supreme Court’s holdings that under Rule 104(a), admissibility requirements are to be determined by court under the preponderance standard.

Id. (emphasis added).  The amendment also “clarif[ied] that it is the court and not the jury that must decide whether it is more likely than not that the reliability requirements of the rule have been met.  Id. at 872.  On this record, the Committee on Rules of Practice and Procedure “unanimously gave final approval to the proposed amendment to Rule 702.”  Id.

We need to be including this material in our Rule 702 briefs going forward.  Doing this is especially necessary in circuits where such “incorrect” interpretations of the prior rule are embedded in appellate precedent.  Rule 702 itself states the binding law.  “All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”  28 U.S.C. §2072(b).  A federal rule is:

as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule’s mandate than they do to disregard constitutional or statutory provisions.

Bank of Nova Scotia v. United States, 487 U.S. 250, 2550 (1988).  Federal rules “are binding upon court and parties alike, with fully the force of law.”  In re National Prescription Opiate Litigation, 956 F.3d 838, 844 (6th Cir. 2020) (citations omitted).

Further, where, as with Rule 702, “Congress did not amend the Advisory Committee’s draft in any way . . . the Committee’s commentary is particularly relevant in determining the meaning of the document Congress enacted.  Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 165-166, n.9 (1988).

[The] Advisory Committee Notes are “a reliable source of insight into the meaning of a rule”. . . .  [W]hen the Committee intended a new rule to change existing federal practice, it typically explained the departure.

Hall v. Hall, 138 S. Ct. 1118, 1130 (2018) (quoting United States v. Vonn, 535 U.S. 55, 64 n.6 (2002)).  That is precisely what happened with Rule 702.  The Committee intended “to change existing federal practice” and said so.

Thus, neither the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), nor (obviously) any prior judicial decisions of the sort that the Advisory Committee specifically stated (more than once) are “incorrect,” provide any basis for any further judicial disregard of the express terms of Rule 702.  Three relatively recent adverse appellate decisions that should now bite the dust are.

  • In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, 9 F.4 th 768, 788 (8th Cir. 2021) (assessing only whether the expert’s opinions were “fundamentally unsupported” rather than Rule 702 indicia), citing pre-Daubert case Loudermill v. Dow Chemical Co., 863 F.2d 566 (8th Cir. 1988).  We discussed Bair Hugger here and also named it our worst case of 2021.
  • Puga v. RCX Solutions, Inc., 922 F.3d 285, 294 (5th Cir. 2019) (announcing “general rule” that questions about the bases and sources of an expert’s opinion go to weight, not admissibility) (relying on pre-Daubert case Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).
  • Mighty Enterprises, Inc. v. She Hong Industrial Co., 745 F. Appx. 706, 709 (9th Cir. 2018) (factual basis of an expert’s opinion is a matter of weight, not admissibility), citing Hangarter v. Provident Life & Accident Insurance Co., 373 F.3d 998 (9th Cir. 2004) (relying on language from other decisions following Loudermill).

Moreover, to take full advantage of the 2023 amendments to Rule 702, we on the defense side also need to stop shooting ourselves in our feet with what we say in our own briefs.  We recommend that all defense counsel thoroughly revise their Rule 702 briefs to:  (1) Ensure they use the current, post 12/1/2023 language of Rule 702.  (2) Never, ever, refer to Rule 702 motions as “Daubert motions,” either in writing or speech.  They’re not, and haven’t been for more than twenty years.  (3) Stop relying on Daubert in briefs, except for a footnote pointing out that Daubert’s essentially common-law approach to expert admissibility has been superseded by amended Rule 702.  Limited use of some of Daubert’s “factors” is okay, but should be couched in terms of those factors’ applicability to a particular Rule 702 requirement, and should cite case law tying those mere “factors” to the Rule’s binding “requirements.”  (4) Carefully review existing briefs to remove any language that suggests a bias or presumption towards admissibility, that uses “weight” versus “admissibility,” or that offers “cross-examination” as a solution to expert problems.  (5) There are already some good decisions out there.  See here and here.  Use them to make more.  (6) Rely on the comments and history of the 2023 Rule 702 amendments as much as you can.  (7) Explicitly call out bad decisions, particularly circuit court decisions, as incorrect after December 1, 2023.  (8) When you’re going to the mat, particularly in a big case that is likely to generate appeals on expert admissibility issues, look for amicus curiae support.  In particular, Lawyers for Civil Justice is willing to provide amicus support to Rule 702 motions at the trial/district court level.  You can contact LCJ’s amicus program here.

Finally, we’d like to acknowledge our reliance in this post on the Rule 702 materials that were presented at the recent 2023 American Conference Institute Drug and Medical Device Litigation Conference in New York City.  The Blog was proud to be a media sponsor of that conference.