Note: A “fatal error,” caused by an old theme has disrupted the layout of my website. I am working on it
The opposition to Daubert’s regime of gatekeeping by the lawsuit industry has been fierce. From the beginning, the resistance has found allies on the bench, who have made the application of Rule 702 to expert witnesses, in both civil and criminal, uneven at best. Back in 2015, Professor David Bernstein and Eric Lasker wrote an exposé, about the unlawful disregard of the statutory language of Rule 702, and they called for and proposed an amendment to the rule.[1] At the time, I was skeptical of unleashing a change through the rules committee, given the uncertainty of where any amendment might ultimately look like.[2]
In the last several years, there have been some notable applications of Rule 702 in litigation involving sertraline, atorvastatin, sildenafil, and other medications, but aberrant decisions have continued to upend the rule of law in the area of expert witness gatekeeping. Last year, I noted that I had come to see the wisdom of Professor Bernstein’s proposal,[3] in the light of continued judicial dodging of Rule 702.[4] Numerous lawyers and legal organizations have chimed in to urge a revision to Rule 702.[5]
Earlier this week, the Committee on Rules of Practice & Procedure rolled out a proposed draft of an amended Rule 702.[6] The proposed new rule looks very much like the current rule:[7]
- Rule 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
Despite what looks like minor linguistic changes, the Rules Committee’s note suggests otherwise. First, the amendment is intended to emphasize that the burden of showing the admissibility requirements rests on the proponent of the challenged expert witness testimony. Of course, the burden of course has always been with the proponent, but some courts have deployed various strategems to shift the burden with conclusory assessments that the challenge “goes to the weight not the admissibility,” thereby dodging the judicial responsibility for gatekeeping. The Committee now would make clear that many courts have erred by having treated the “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as going to weight and not admissibility.[8]
The Committee appears, however, to be struggling to provide guidance on when challenges do raise “matters of weight rather than admissibility.” For instance, the Committee Note suggests that:
“nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support. The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make extravagant claims that are unsupported by the expert’s basis and methodology.”[9]
Somehow, I fear that the mantra of “weight not admissibility” has been or will be replaced by refusals to nitpick an expert’s opinion. How many nits does it take to make a causal claim “extravant”?
Perhaps I am the one nitpicking now. The Committee has recognized the essential weakness of gatekeeping as frequently practiced in federal courts by emphasizing that judicial gatekeeping is “essential” and required by the institutional incompetence of jurors to determine whether expert witnesses have reliably applied sound methodology to the facts of the case:
“a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert. A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also be unable to assess the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.”[10]
If the sentiment of the Rule Committee’s draft note carries through to the Committee Note that accompanies the amended rule, then perhaps some good will come of this effort.
[1] David E. Bernstein & Eric G. Lasker,“Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” 57 William & Mary L. Rev. 1 (2015).
[2] “On Amending Rule 702 of the Federal Rules of Evidence” (Oct. 17, 2015).
[3] “Should Federal Rule of Evidence 702 Be Amended?” (May 8, 2020).
[4] “Dodgy Data Duck Daubert Decisions” (April 2, 2020); “Judicial Dodgers – The Crossexamination Excuse for Denying Rule 702 Motions” (May 11, 2020); “Judicial Dodgers – Reassigning the Burden of Proof on Rule 702” (May 13, 2020); “Judicial Dodgers – Weight not Admissibility” (May 28, 2020); “Judicial Dodgers – Rule 702 Tie Does Not Go to Proponent” (June 2, 2020).
[5] See, e.g., Daniel Higginbotham, “The Proposed Amendment to Federal Rule of
Evidence 702 – Will it Work?” IADC Products Liability Newsletter (March 2021); Cary Silverman, “Fact or Fiction: Ensuring the Integrity of Expert Testimony,” U.S. Chamber Instit. Leg. Reform (Feb. 2021); Thomas D. Schroeder, “Federal Courts, Practice & Procedure: Toward a More Apparent Approach to Considering the Admission of Expert Testimony,” 95 Notre Dame L. Rev. 2039, 2043 (2020); Lee Mickus, “Gatekeeping Reorientation: Amend Rule 702 To Correct Judicial Misunderstanding about Expert Evidence,” Wash. Leg. Foundation (May 2020)
13-18 (noting numerous cases that fail to honor the spirit and language of Rule 702); Lawyers for Civil Justice, “Comment to the Advisory Comm. on Evidence Rules and its Rule 702 Subcommittee; A Note about the Note: Specific Rejection of Errant Case Law is Necessary for the Success of an Amendment Clarifying Rule 702’s Admissibility Requirements 1 (Feb. 8, 2021) (arguing that “[t]he only unambiguous way for the Note to convey the intent of the amendment is to reject the specific offending caselaw by name.”).
[6] Committee on Rules of Practice & Procedure Agenda Book (June 22, 2021). See Email Cara Salvatore, “Court Rules Committee Moves to Stiffen Expert Standard,” Law360 (June 23, 2021).
[7] Id. at 836. The proposal has been the subject of submissions and debate for a while. See Jim Beck, “Civil Rules Committee Proposes to Toughen Rule 702,” Drug & Device Law (May 4, 2021).
[8] Committee on Rules of Practice & Procedure Agenda Book at 839 (June 22, 2021).
[9] Id.
[10] Id. at 838-39.
