Don’t Say Daubert – Reviving Rule 702

Expert testimony is often decisive. The standard governing its admissibility is therefore critically important.

For years, federal practitioners have referred to that standard as the “Daubert” standard, for the Supreme Court’s seminal decision in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert made clear that judges must act as gatekeepers when it comes to expert testimony and articulated various factors that they are to consider when deciding whether particular expert testimony is admissible. Defendants generally like Daubert because it effectively raised the bar for expert testimony, making it harder for plaintiffs to rely on junk science to make their case.

But Daubert has its problems. In construing Federal Rule of Evidence 702, which governs the admissibility of expert testimony, the Court used inexact language that has enabled lower courts to dilute its salutary effect. All too often, courts have held that questions regarding the factual basis of an expert’s opinion and the application of the expert’s methodology to those facts are questions that go to the weight rather than admissibility of the expert’s ultimate opinion. In other words, courts have frequently admitted expert opinions that rest on dubious factual foundations or do not logically follow from the underlying facts.

That should soon be coming to an end.

For more than five years, the federal judiciary’s Advisory Committee on Evidence Rules has worked on amendments to Rule 702. Last month, the Committee gave final approval to amendments that will go into effect late next year if, after review by the Judicial Conference, they are approved by the Supreme Court and not disapproved by Congress.

The amendments clarify Rule 702 in two important ways: They make clear (i) that the proponent of the expert testimony bears the burden of demonstrating “to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in [Rule 702]” and (ii) that the court is empowered to determine whether the expert’s ultimate opinion is “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.” Comm. on Rules of Prac. of Proc., June 7, 2022 Agenda Book 892–94, available here.

In short, the amendments underscore the court’s duty to exclude expert testimony unless the party offering the testimony shows that the expert’s opinion is based on the sound application of a valid methodology to sufficient facts.

The amendments approved by the Committee are shown below (with additions underlined and deletions struck through):

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 expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

June 7, 2022 Agenda Book 891–92.

The Committee Note explains that the amendments are necessary because, when applying Daubert, “many courts have held that the critical question of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility” and thus questions for a jury. June 7, 2022 Agenda Book 892. “These rulings are,” the Committee declares, “an incorrect application of Rules 702,” which governs expert testimony in particular, “and 104(a),” which governs the admissibility of testimony generally. Id.

By making clear that the proponent of expert testimony must demonstrate “to the court” that the testimony satisfies each of Rule 702’s four criteria for admissibility, the amendments “emphasize” the court’s obligation to carefully screen proposed expert testimony before allowing it to be considered by a jury (or the court when deciding a motion for summary judgment). And by requiring that the expert’s “opinion reflect[] a reliable application” of scientific principles and methodology, the amendments demand the exclusion of ultimate opinions that are not justified by the data or methodology on which they purportedly rest.

As the Committee noted when approving amendments, “[j]udicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.” June 7, 2022 Agenda Book 894.

Although the proposed amendments, if approved, will not take effect until December 1, 2023, practitioners can already rely on them and the accompanying Committee Notes as persuasive authority because, as the Committee explains, they are “simply intended to clarify” how Rule 702 should have been applied all along. June 7, 2022 Agenda Book 895. Indeed, the Fourth Circuit recently relied on the proposed amendments, noting that the proposed amendments “confirm[]” that the “importance of [the] gatekeeping function cannot be overstated.” Sardis v. Overhead Door Corp., 10 F.4th 268, 283 (4th Cir. 2021) (internal quotation marks omitted).

Practitioners seeking to exclude unreliable expert testimony should immediately begin referring to Rule 702 rather than Daubert.