ANALYSIS: ‘More Likely Than Not,’ New Rule 702 Nearing Approval

Two amendments to Federal Rule of Evidence 702 — which governs the admissibility of expert testimony in federal court — are one step closer to final approval after the Judicial Conference’s Committee on Rules of Practice and Procedure voted unanimously this month to advance them.

The amendments were recommended by the Advisory Committee on Evidence Rules following the completion of a public comment period with the notable submission of over 500 comments, including many challenges by members of the plaintiffs’ bar.

The advisory committee submitted the amendments with changes from those released for public comment and discussed in a Bloomberg Law analysis earlier this year. But these changes were made to only one of the amendments and are slight. The proposed amendments to Rule 702 remain aimed at reinforcing the role of the judge as the gatekeeper of expert testimony, and are poised for final approval.

‘More Likely Than Not,’ Not ‘Preponderance’

A key proposed (but highly unpopular) amendment released for public comment was the explicit addition of the phrase “preponderance of the evidence” to Rule 702 to emphasize the burden on the proponent of the expert testimony to establish the admissibility requirements.

“Preponderance of the evidence” is the standard already required under Rule 104 (a). But the standard isn’t in the text of that rule or in Rule 702 as currently written; to find it requires review of US Supreme Court precedent. Even Daubert v. Merrell Dow Pharmaceuticals only mentions it in a footnote. As such, analyzes of recent court decisions demonstrate that courts are failing to apply the preponderance standard to the reliability requirements of Rule 702 — with some courts applying a conflicting presumption of admissibility — making it particularly necessary to emphasize the standard in the text of Rule 702.

But this proposal drew myriad objections during the public comment period. According to the advisory committee, most of the public comments were against the addition of the phrase to the text of Rule 702, and, interestingly, many demonstrated a common misunderstanding of the existing law (thus actually supporting the need for an amendment). For instance, comments asserted that “preponderance of the evidence” could be read to limit the judge to only admissible evidence at a Rule 702 hearing — even though the plain language of Rule 104 (a) allows a court to consider inadmissible evidence in its preliminary determinations.

The advisory committee decided that the same purpose could be achieved by changing the preponderance phrase to “more likely than not” in the amendment it sent for approval. The advisory committee found the terms are “substantively identical,” and a search of Bloomberg Law confirms that courts agree that a “preponderance of the evidence” means “more likely than not.”

‘To the Court,’ Not the Jury

On the other side, supporters of the amendment to add the preponderance standard, including members of the defense bar, argued that the initial version didn’t go far enough. Analyzes have also demonstrated that many courts do not sufficiently consider the reliability of expert testimony, deciding instead to rule that any objections go to “weight, not admissibility,” and defer the issue to the jury.

Commenters objected to the initial amendment released for public comment because the amendment didn’t indicate who needs to make the determinations under Rule 702; the rule should expressly state that it’s the judge that decides the reliability requirements for admissibility are met.

The advisory committee changed the amendment to add that it’s “to the court” that the proponent must demonstrate “more likely than not” that the reliability requirements of Rule 702 have been met. This satisfies the need for clarification that the amendment is intending to convey: Rule 702 challenges are for the judge to decide, not the jury.

No More Overstatement

The second amendment recommended by the advisory committee — a change to Rule 702 (d) to emphasize that the court must focus on the expert’s opinion — remained unaltered from the proposal released for public comment. This amendment requires the court to find that the challenged “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

The amendment expressly gives the trial judge the authority to look at the conclusions made by an expert. Judges can repudiate outdated caselaw standards saying that the accuracy of the expert’s opinion is a matter for the jury. The court as the gatekeeper must also find that the ultimate opinion comes from what can actually be concluded by a reliable application of reliable methodology.

What’s Next?

This latest step toward approval is a win for those who supported the amendments. The defense bar and groups like Lawyers for Civil Justice have pushed for these amendments to Rule 702, arguing that the rule has long been improperly applied by many courts relying on outdated caselaw and incorrect standards. And the slight changes don’t impact the intended effect of the original amendments: The addition of “to the court” sends an even stronger message to judges that it’s time to embrace the gatekeeper role.

One court is on board with that message. In a 2021 opinion, the Fourth Circuit cited the proposed amendments in rejecting the argument that the reliability of the expert’s testimony goes to the weight, not admissibility, of the testimony.

In its analysis, the court recognized the “pervasive problem” of district courts forgoing their gatekeeping duties, and that existing law and the new amendments confirm the “indispensable nature” of the court’s gatekeeping function in all cases in which expert testimony is challenged on relevance or reliability grounds.

Outdated caselaw, however, remains cited in other circuits. But as the amendments don’t change the controlling law — they simply make the applicable law clearer — trial judges should be empowered now to embrace the gatekeeper role and bring their decisions in line with the proposed amendments. And litigants challenging an expert opinion should use the amendments to guide the courts in a Rule 702 motion, emphasizing that the burden is on the proponent to establish the reliability requirements to the court, and that the court must evaluate the expert’s ultimate conclusion, too.

By starting now to emphasize these long-standing principles that have been overlooked, courts can begin the process of excising outdated caselaw and minimize incorrect rulings that put unreliable expert testimony in front of a jury.

The full Judicial Conference of the United States will consider the amendments next, after which they will be reviewed by the US Supreme Court, which in turn sends the final version to Congress. Unless Congress acts to reject the amendments, the changes will take effect on Dec. 1, 2023.

Resources for additional court opinion searches and points of law are available in our Litigation Intelligence Center.

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