DON'T SAY
DAUBERT

(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.

MORE THAN

152

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.)

MORE THAN

212

MORE THAN

72

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.

TIMELINE

1993

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.

1997

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.

1999

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.

2000

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.

2000

- PRESENT

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.