Fed Expert Witness Rule Changes Set for December 1

The amendments to the Federal Rule of Evidence 702 submitted to the U.S. Congress on April 24th are still scheduled to take effect December 1st, 2023. The amendments are only intended to “clarify and emphasize” judicial gatekeeping duties which were already required, but incorrectly applied by too many federal courts, according to the Rules Advisory Committee.

The amendment package sent to Congress included the September 2022 Report of the Committee on Rules of Practice and Procedure which emphasized that courts must assess not only the expert's methodology but also the expert's application of the methodology to the facts, ensuring that an expert claims are supported by their basis and methodology. In the past, courts had held that issues of the sufficiency of an expert's basis and the application of the expert's methodology were questions of weight for the jury. From an excerpt of it's May 15, 2022 Report included in the package sent to the U.S. Congress:

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

In amending Rule 702, the Rules Advisory Committee has emphasized the “preponderance of the evidence” required to meet the substantive standards for admissibility. The amendment is fairly brief:

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 has demonstrated by a preponderance of the evidence that:

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

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

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

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

A number of courts have already started following the proposed clarified rules, with the Eastern District of Virginia doing so in 2021, before the May 2022 report (Sardis v. Overhead Door Corp., 10 F.4th 268, 4th Cir. 2021), and other courts have done the same, most recently noted in the Western District of Tennesee (Anderson v. United States, 2023 Bankr. Lexis 153, Bankr. W.D. Tenn. Jan. 19, 2023).