(IT’S RULE 702)
Why you should be concerned about employing the correct standard – and name.
Since the Supreme Court’s landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, the word “Daubert” has become a de facto shorthand for the standard by which expert evidence is evaluated for admissibility before a federal civil jury.
However, it’s actually Federal Rule of Evidence 702 (Rule 702), not Daubert, that sets the standards that courts must follow in determining whether expert testimony is admissible.
It’s more than just semantics. The use of “Daubert” instead of “Rule 702” affects people’s understanding of what standards apply to those motions. The widespread misunderstanding of expert evidence admissibility standards in both trial and appellate courts within every federal circuit have led to decisions that are patently incompatible with Rule 702 – namely, the erroneous notion that fundamental questions about the basis of expert opinions go to the weight given to the testimony by the jury, rather than its admissibility by the court.
A study of the history behind the current expert admissibility standards shows that the all-too-common invocation of “the Daubert standard” should be discarded and replaced with “the Rule 702 standard.”
BY THE NUMBERS
Continued reference to ‘the Daubert standard’ has perpetuated courts’ reliance on errant case law that predates the 2000 Amendment to Rule 702 and, in some cases, even predates Daubert itself.
In fact, since January 2015 alone:
federal cases have recited the statement that “Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.” This language originates with the 1987 decision in Viterbo v. Dow Chem. Co. (5th Cir.)
federal cases have recited the erroneous standard that “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility.” This language emanates from the 1988 decision in Loudermill v. Dow Chem. Co. (8th Cir).
federal cases have incorporated the statement that “Soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact.” This language comes from the 2000 decision in Smith v. Ford Motor Co. (7th Cir.), a decision which came down in June, before the 2000 amendment to Rule 702 went into effect.
The Supreme Court’s opinion in Daubert v. Merrill Dow Pharmaceuticals (509 U.S. 579) holds that “scientific” testimony by expert witnesses is only admissible in federal court if the proponent of the evidence can show that it is relevant and valid, and affirmed that the judge has a ‘gatekeeping’ responsibility to prevent inadmissible testimony from being introduced to a jury.
The Supreme Court in General Electric Co. v. Joiner (522 U.S. 136) held that courts must determine the admissibility of expert testimony based not only on the reliability of the expert’s methodology, but also on whether the expert’s conclusion is supported by the data.
In Kumho Tire Co. v. Carmichael (526 U.S. 137), the Supreme Court ruled that the trial judge’s ‘gatekeeping’ obligation is not limited to “scientific” testimony only, but also extends to any testimony based on “technical” and “other specialized” knowledge.
After a lengthy debate and public comment process, the proposed amendment to Rule 702 went into effect on December 1, 2000. In drafting the amendment, the Advisory Committee on Evidence Rules made clear that, far from attempting to ‘codify’ Daubert, the amendment was intended to remedy the widely differing approaches that courts had taken since Daubert by providing a uniform standard for assessing expert evidence admissibility.
Confusion over the proper application of Rule 702 standard has resulted in hundreds of rulings that have allowed flawed and unreliable testimony to be presented in juries. This widespread confusion prompted the Advisory Committee on Evidence Rules to propose a new amendment to Rule 702 that was recently approved for publication by the Committee on Rules of Practice and Procedure.
The Advisory Committee on Evidence Rules has formally requested comments from the public on the proposed amendment to Rule 702. Comments are now being accepted through the U.S. Courts web portal.
Federal Rule of Evidence 702: A One-Year Review And Study Of Decisions In 2020, September 30, 2021
LCJ Public Comment on Rule 702, September 1, 2021
Proposed amendment to Federal Rule of Evidence 702, August 6, 2021
"Don't Say Daubert," Drug & Device Law Blog, August 16, 2021
"Stop Calling Them 'Daubert Motions': Federal Rule of Evidence 702 and Why Words Matter," Washington Legal Foundation, August 20, 2021
“Federal Courts’ Misunderstanding of Rule 702 Demonstrates Need for Amendment,” Lawyers for Civil Justice, 2020
“Gatekeeping Reorientation: Amend Rule 702 To Correct Judicial Misunderstanding About Expert Evidence” – Washington Legal Foundation, May 2020
“Infographic: Floodgates Not Gatekeeping: How FRE 702 Continues to be Misunderstood By Courts” Lawyers for Civil Justice, 2020
“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,” Lawyers for Civil Justice, February 2021
“Amending Federal Rule of Evidence 702 – A Review of Gatekeeping Practices in Multidistrict Litigation,” Phillips Lytle, June 2020
“Amend Rule 702 To Clarify Expert Witness Standards,” Law360, July 2021