Expert Standards Set to Change

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by Shawn Meehan, Global Head of Legal Solutions at Guidepoint

Changes to Rule 702 under the Federal Rules of Evidence, the standard for the admissibility of expert witness testimony, have been recommended by an advisory committee to the federal judiciary. This recommendation is the culmination of five years of work and includes two sets of proposed changes.


First, the committee recommends changes to Rule 702 to limit overstatements of expert witnesses’ conclusions. Under the current rule, “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 expert has reliably applied the principles and methods to the facts of the case.” The committee proposes that an expert’s opinion be limited to a reliable application of the facts of a case. This proposal originated as a response to reports of forensic experts providing conclusions that could not be supported by their methodologies, but eventually expanded to cover all experts, according to the advisory committee.


Second, the committee recommends changes to Rule 702 to emphasize that expert witness testimony be admitted based on a preponderance of evidence standard. This standard highlights the role of the trial judge as gatekeeper, deciding which expert testimonies are allowed. While this standard is already in place (as noted in Daubert citing Bourjaily’s ruling on Rule 104(a)), federal trial judges have not consistently applied this standard, according to the advisory committee.


A string of Supreme Court cases – Daubert, Joiner, and Kumho Tire – in the 1990s and an amendment to Rule 702 in 2000 has tightened the standards for the admissibility of expert testimony, but those developments did not have the intended effects. This led to ongoing requests for changes and ongoing analysis by the advisory committee.


The Defense Bar has called for changes to Rule 702 for some time. Citing the “explosion” of mass tort litigation and class action lawsuits, the US Chamber Institute for Legal Reform has argued that rulings on the admissibility of expert testimony often determine which cases proceed to trial and which facts constitute common injuries.


In contrast, the Plaintiffs’ Bar has cautioned against changes. The American Association for Justice has raised concerns that unnecessary rule change[s]” would “lead to confusion, delay, and erroneous restrictions on testimony.”


Proponents and opponents will have an opportunity to shape any changes further. The advisory committee’s recommendations will be published for public comment. Any formal changes to Rule 702 would need to consider comments received and then go through several rounds of approval.


Litigators should take note of these developments. Changes to Rule 702 would affect practitioners before the federal judiciary directly, but any changes also would affect practitioners before the state judiciary. While state courts would not necessarily be bound by these changes, many would likely find them persuasive.


The Guidepoint Legal Solutions team works continuously to assist law firms in adapting to any new requirements or standards, facilitating a wide range of expert interactions that keep your team informed on every matter relevant to your case. Get in touch today to learn how Guidepoint Legal Solutions’ services can help your firm stay up to date as key standards change.


Please note: This article contains the sole views and opinions of Shawn Meehan and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Shawn Meehan is prohibited.


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