There have been some famous law review articles, such as R. Coase, “The Problem of Social Cost,” J. of Law and Economics (1960), and S. Warren & L. Brandeis, “The Right to Privacy,” Harvard L. Rev. (1890).  Those articles made waves when they came out, and they were cited endlessly. But when was the last time you read them?  An article might have been brilliant and path-breaking, but that does not mean it is actually useful for one’s day to day practice. By contrast, when we worked in the U.S. Attorney’s Office, the Georgetown Law Journal Annual Review of Criminal Procedure was, along with the Federal Rules of Criminal Procedure, the most indispensable item in our brief bag. 

Today we are pleased to recommend a law review article that is both brilliant and useful. M. Behrens & A. Trask, “Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence,” 12 Texas A&M L. Rev. (2024), should find a place on the desks and in the hearts of defense lawyers looking to ward off plaintiff expert junk science. The authors are two heroes of the defense bar who practice at Shook Hardy and work with Lawyers for Civil Justice.  What they have written will well serve defendants who need to draft motions under amended Fed. R. Evid. 702 urging courts to bar unreliable expert opinions at the threshhold.  The article includes citations to virtually all Rules Committee materials that anyone would want to cite. If the words of Rule 702 and the intentions behind them matter — and they should — the Behrens/Trask article will be a valuable resource.

Sometimes when we summarize interesting law review articles we characterize what we are doing as client service; we blogsters read articles so that you do not have to.  That is not the case here.  The Behrens/Trask article is so well written, sourced, and reasoned that you will want to peruse it yourself. Here is the article’s abstract, describing what is in the article:

Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.

The article makes clear how the 2023 amendments to Rule 702 were necessitated by judicial mangling of the 2000 amendments. The 2000 amendments (which came seven years after the Daubert decision) emphasized the court’s gatekeeping responsibility and introduced several reliability requirements. Leaning a bit too heavily on the “liberal thrust” language in Daubert, too many courts applied a presumption of expert admissibility and held that weaknesses in an expert’s reliance materials or methodology went to weight, not admissibility. Those courts ignored the Rule 104(a) requirement that a proponent of evidence must satisfy every element of Rule 702 by a preponderance of the evidence. The result was, at best, inconsistency, as some courts followed the rigors of Rule 702 and some did not, and, at worst, wholesale admission of admittedly “rather weak” or “shakey” expert rulings in mass torts such as Roundup, Bair Hugger, etc.

Courts were getting Rule 702 wrong, and were adding to that vast pile of wrong.  Instead of functioning as gatekeepers, some courts played at being matadors, waving the bull by and onto the jury.  The folklore and mythology ofDaubert became untethered from the language of Rule 702.  Courts wrongly relied on precedents antedating the 2000 amendments to Rule 702, and there is a very real danger that courts will rely on incorrect precedents antedating the 2023 amendments.  That is the “obsolete” law to which the article refers. For that reason, the article (and this blog) urge defense lawyers to stop saying Daubert and start saying Rule 702.

Interestingly, many of the opponents to the 2003 amendments demonstrated by their comments how throughly Rule 702 had been misunderstood and misapplied, and thereby also demonstrated how necessary the amendments were.  Some opponents pushed back on the preponderance standard, arguing that it incorrectly suggested that expert testimony must be supported by admissible evidence.  The drafters of the amendments finessed this non-problem by deploying the language of “more likely than not” rather than preponderance. 

The Behrens/Trask article acknowledges the key role played by an earlier law review article by Bernstein and Lasker (2015), which supplied empirical evidence that too many judges were not following Rule 702.  That article was a catalyst.  Further, one of the reporters to the Advisory Committee on Evidence Rules, Professor Capra, believed that “public reports challenging the reliability of various forms of forensic evidence” would furnish a strong reason for the Advisory Committee to revisit Rule 702.  Professor Capra seems to be no stranger to understatement, as he pointed out that “[i]t is certainly a problem when Evidence Rules are disregarded by courts.” Indeed.

Now we have the 2023 amendments in place.  The proponent of expert evidence must have “demonstrated by a preponderance of the evidence” that the expert testimony will help the trier of fact, “is based on sufficient facts or data,” “is the product of reliable principles and methods,” and that the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”  The drafters of the 2023 amendments must have felt like city water superintendent William Mulholland when he gave the signal to turn on the water from the newly constructed Los Angeles aqueduct:  “There it is.  Take it.”

Have courts so far taken it? What has happened to Rule 702 jurisprudence?  A very helpful part of the Behrens/Trask article takes us through cases from M.D. Pa., N.D. Cal (!), the Sixth Circuit, D. Arizona, etc. where judges took the amendments very seriously and put some oomph behind their Daubert — oops — Rule 702 analysis.  The article also cites the Sardis decision from the Fourth Circuit, which was issued before the 2023 amendments went into effect, but took the amendments and their rationales into account in reversing a multi-million dollar award based on unreliable expert testimony involving an alleged defect in the packaging of garage doors.  The Sardis decision is important, not just because it shows that gatekeepers can also tend to garage doors, but also because it shows that the impetus behind the 2023 amendments was to correct judicial errors.  

The Behrens/Trask article should also help correct — or, better still, prevent — judicial errors.  As the article shows, “Rule 702 is one of the best-documented areas where courts have frequently misapplied (or ignored) the law.”  The article adds to and clarifies that documentation.  The hope is that there is now no more excuse for any court to shirk its gatekeeping duties.