Federal Judiciary Advisory Committee Proposes Amendments to Expert Testimony Rule
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The federal judiciary’s Advisory Committee on Evidence Rules has published proposed amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. The proposed change will “clarify and emphasize that the admissibility requirement set forth in the rule must be established to the court by a preponderance of the evidence.” Another amendment addresses “overstatement” by experts.
Current Rule 702 (which has been in effect since 2000) does not explicitly include a preponderance standard, but the Committee Notes accompanying the 2000 amendment state that “the admissibility of all expert testimony is governed by the principles of Rule 104(a),” under which “the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.” According to the Advisory Committee, “many courts” incorrectly apply Rules 702 and 104(a) by holding that “the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.”
The proposed amendments to Rule 702 state:
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 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 appliedexpert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Comments on the proposed amendments must be submitted electronically not later than February 16, 2022. The Advisory Committee on Evidence Rules will hold a public hearing conducted virtually via Microsoft Teams on January 21, 2022. Individuals wishing to present testimony must notify the office of Rules Committee Staff by email (RulesCommittee_Secretary@ao.uscourts.gov) at least 30 days before the scheduled hearing.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.
Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
Mark Behrens co-chairs Shook's Washington, DC-based Public Policy Practice Group and is a leading national expert on civil justice issues with over thirty years of experience. A substantial part of his practice is working to improve the civil litigation environment through state and federal legislation; in the courts through amicus curiae briefs; through legal scholarship and judicial education; and in the court of public opinion.
Mark is actively involved in civil justice reform efforts at the federal and state levels. He has testified before the U.S. Congress and most state legislatures on behalf of business and civil justice organizations. Mark also has an active amicus brief practice specializing in tort liability and civil justice issues. He has authored or co-authored over 150 amicus briefs in cases before the United States Supreme Court and federal and state appellate courts on behalf of business, civil justice, and defense lawyer organizations. In addition, Mark routinely files comments on behalf of business, civil justice, and defense lawyer organizations regarding potential changes to federal and state court rules. He chairs the International Association of Defense Counsel’s (IADC) Civil Justice Response Committee and serves on the Board of Directors of Lawyers for Civil Justice (LCJ).
Mark is a member of the American Law Institute (ALI). He received his J.D. in 1990 from Vanderbilt University Law School, where he was a member of the Vanderbilt Law Review. He received his B.A. in economics from the University of Wisconsin in 1987.
Assistant Solicitor General, Texas
Katie serves as an Assistant Solicitor General for the State of Texas. She previously practiced law at a firm in Washington, D.C. where she focused her legal practice on complex trial and appellate litigation, specializing in data privacy and biometric issues. Before that, Katie served as Chief Counsel to Senator Jeff Flake at the U.S. Senate Judiciary Committee and clerked for Judge Michael B. Brennan of the U.S. Court of Appeals for the Seventh Circuit. Katie graduated from Liberty University and the Antonin Scalia Law School at George Mason University. She is a member of The Federalist Society’s Litigation Practice Group Executive Committee.