Admitting Expert Evidence Under Rule 702: By What Standard?

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This webinar will host a debate over the pending amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. In August 2021, the federal judiciary’s Advisory Committee on Evidence Rules published proposed amendments to Rule 702 to include within the text of the rule language directly stating that the proponent of expert testimony must establish each of Rule 702’s elements by a preponderance of the evidence. Currently, Rule 702 does not explicitly include a preponderance standard, but merely cross-references the preponderance standard included under another evidentiary rule. A year’s worth of research into federal cases analyzing the current Rule 702 reveals that some courts apply a preponderance standard while others apply a more relaxed policy favoring admissibility.

The Advisory Committee will host a public hearing on January 21, 2022, and those wishing to testify are asked to reserve a spot 30 days in advance. The Committee is also accepting public comments on the proposed amendment until February 16, 2022.

The webinar discussion will be moderated by Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK. Participants will include Lee Mickus, a Partner at Evans, Fears & Schuttert, who has written and spoken extensively in support of Rule 702 reforms; David Wool, a Partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively and questioned the need for the proposed amendment; and Katie Jackson, an Associate at Shook, Hardy & Bacon and Fellow with Lawyers for Civil Justice who has conducted research regarding the courts’ application of Rule 702.

Here is a link to a webpage with several Rule 702 resources for those wishing to file a comment, testify at the hearing, or simply learn more about the proposed amendments.

 

Featuring:

 

Kateland Jackson, Associate at Shook, Hardy & Bacon LLP in Washington, D.C.

Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK.

Lee S. Mickus, Partner, Evans Fears & Shuttert LLP

David Wool, Partner, Wagstaff Law Firm

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Leah Lorber:  Hi everybody. Welcome to The Federalist Society webinar on proposals to amend the Federal Rule of Evidence 702. The Federal Evidence Rules Advisory Committee is considering amending Federal Rule of Evidence 702 to clarify the standards for the admissibility of expert evidence. The committee is part of the Federal Judicial Conference, the policy-making arm of the federal court system, and is responsible for recommending amendments to the Federal Rules of Evidence.

 

      The committee's proposed amendment is currently up for public comment. The comment period will run until February 16. There is also the opportunity to testify at a hearing that will occur virtually on January 21, but only if you get your request in to testify to the committee soon. It would be best to sign up by December 21, both because space is limited and because you want to make sure to meet the committee's 30-day-in-advance registration deadline.

 

      In light of the opportunity for public comment, our goals for this webinar are to explain the amendment and to share perspectives from both sides of the bar about why this amendment is or is not needed. We are going to hear today from Katie Jackson, an attorney at Shook, Hardy & Bacon, who has recently published research on the variety of ways courts applied Rule 702 during 2020; from David Wool, a partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively, and who has questioned the need for the proposed amendment; and from Lee Mickus, a partner at Evans Fears & Schuttert, who has also litigated these issues extensively, and written and spoken in favor of Rule 702 reform.

 

      Before we hear from our panelists, I'd like to very briefly set the stage about where things stand with Rule 702 and about the proposed amendment. Several years ago, some attorneys and academics raised concerns that Rule 702 has become an afterthought for some courts, even though it provides the governing standard for the admission of expert testimony. Even Daubert recognized that in its core holding in 1993.

 

      Unfortunately, both courts and litigants often see admissibility as a matter of case law precedent rather than as a matter of the governing rule. The result is that the content of the rule is overlooked. There have been a number of rulings based on case law that take different approaches to the admissibility analysis, but that all put factually unsupported or otherwise unreliable expert testimony before the jury. I'm sure you'll hear more about those today.

 

      After several years of study of these and other concerns, the Evidence Rules Advisory Committee recommended and got approval to move ahead with the proposed amendment through the public comment process. I'll put some slides up describing the amendment.

 

      The proposed amendment does two things. First, it expressly states that the party seeking to introduce the evidence must establish each of the elements of Rule 702 by a preponderance of the evidence. Rule 104(a) already applies a preponderance standard to all the rules of evidence, but the committee thought it would be important to emphasize the preponderance standard in the context of Rule 702, in light of the concerns that were raised.

 

      This change should have two effects: clarifying what the standard actually is for courts that don't recognize it, and ensuring that all of the gatekeeping elements set forth in the rule are decided by the court as a matter of admissibility.

 

      Second, through the proposal [inaudible 00:03:50] of subsection (d), to limit overstatement by experts stating a conclusion or degree of confidence that the method can't support.

 

      The amendment will be accompanied by a committee note. This slide shows some of the current highlights. Importantly, it calls out that courts that have identified some of the Rule 702 elements as a matter of weight and not admissibility are wrong. And second, it shows that the 702(d) amendment is intended to deter experts from exaggerating their conclusions beyond what the method allows.

 

      Now, at the most recent Advisory Committee meeting, they discussed adding a reference to the court as a decider into the text of the rule. That's received some pushback. I personally think it would be a good idea just to make crystal clear that the court is deciding these issues.

 

      Another suggested change is making it explicit that in the consistent cases that find factual basis or application of the methodology to be issues of weight are rejected and not consistent with the rule.

 

      With that, I'll turn to our first panelist. Katie, you and your colleague, Andy Trask, did a significant amount of research, analyzing all of the 2020 federal district court opinions that considered admissibility under Rule 702. Please tell us about it.

 

Kateland Jackson:  Right. Thank you, Leah. I appreciate it. I currently serve as a fellow with Lawyers for Civil Justice, LCJ. So in that capacity, like you said, my colleague, Andy Trask, and I were able to conduct a year-long research study into how courts are currently applying Rule 702.

 

      So Andy and I reviewed every federal case decided during 2020 in which the judge either admitted, excluded, or partially admitted expert testimony. There were over 1,000 cases that fit this description. So the purpose of this research was to isolate instances in which courts conducted a Rule 702 expert evidence inquiry and required the proponent of the evidence to show proof of its admissibility by a preponderance of the evidence. That's the preponderance standard that you were alluding to in Federal Rule of Evidence 104(a), which is incorporated by comment into Rule 702.

 

      But what Andy and I found is that the majority of federal courts do not explicitly require a burden of proof at all when admitting expert evidence and that courts are split over whether to apply the preponderance standard. This split actually appears within 57 of the 93 total federal judicial districts, and that covers every federal circuit court's jurisdiction in the country.

 

      Quickly, one quick anecdote: we actually found that one district court, the Southern District of New York -- two judges on the same case actually disagreed over whether to apply the preponderance standard to expert motions in that same case. So as you can see, there are some inconsistencies in the courts.

 

      I'm going to try to share my screen with you to show you a graphic that LCJ put together to convey these results. Bear with me. All right. Are you able to see this graphic? Yes. Good. Okay, so I'll walk you through some of this data real quick.

 

      So in row one, you'll see that nearly two-thirds of the time, in 65 percent of cases that we reviewed, courts did not mention the proponent's burden of proof or that a preponderance standard applies to a Rule 702 analysis. So this means that only about a third of the time, in 35 percent of the cases that we looked at, courts actually mentioned that the proponent bears the burden of proving admissibility by a preponderance of the evidence.

 

      We'll move down to row two. And you can see that in about 13 percent of cases, courts included language indicating that there is a presumption of admissibility. So this would include language such as "the federal rules have a liberal thrust favoring admission." Several cases included this type of language. So we do know that, at least in these cases, there was a clear presumption in favor of admissibility, which does directly conflict with the preponderance standard. Again, that is referenced in Rule 104(a) and 702.

 

      So finally, we'll look at the third row here. And we can see that, in a number of cases, the courts inconsistently required both a showing of admissibility by a preponderance of the evidence and a presumption favoring admissibility. This data point is probably the most interesting data point that we found because the two standards do directly conflict. So it's unexpected that the research would produce that some courts are applying both.

 

      This finding indicates that there is general confusion among the courts over whether the preponderance standard applies under Rule 702. I think it also shows that there is deeper confusion about what the standards even mean.

 

      So I will stop sharing my screen here. If you are interested in these research results or the report graphic that I just had up, these are all available on LCJ's Don't Say Daubert website. That's www.dontsaydaubert.com. I'm sure we can make that available to you if you're interested. And there are several resources available for folks that are looking to either submit a comment or testify or just want to learn more about what these proposed amendments would do.

 

      Like I said, the results do indicate that there is inconsistent application throughout the country. So, yes, dig into the results if you're interested. And that's all I've got for you, Leah.

 

Leah Lorber:  Thanks, Katie. David, you're up.

 

David Wool:  So I'd like to push back on the idea that we need an amendment to the rule at all. So with all due respect to Katie and the research that she has done, we have a well- and generally-accepted methodology for determining whether district courts are getting it wrong. And that's called appellate courts. And fortunately, when you're dealing with a misconstruction of the rules of evidence or something like that, appellate courts review that under a de novo standard. So there's no deference given to the lower court's opinion.

 

      And while you can pinpoint select words or phrases in some of these opinions, what you don't see are a slew of appellate decisions overturning district courts on the basis that they have misapplied the preponderance standard or something like that.

 

      I think that, in a lot of cases, maybe a court doesn't specifically say, "Preponderance of the evidence," but does indicate that the burden is on the party that is trying to seek admission of expert testimony. And so, I think, overall, that this isn't something that is really consuming appellate courts and, therefore, isn't something that really, necessarily, warrants a change to the rule itself. Although, I will point out that, since Daubert itself, the burden has been on the party seeking to admit expert testimony.

 

      And then, the other point that I'd like to kind of push back on a little bit is that the language that actually comes from Daubert itself, or was cited in Daubert itself—that Rule 702 has a liberal thrust favoring admission—is inconsistent with the preponderance standard. To the extent courts are confused at all, I think that the confusion doesn't stem from the standard or things within Rule 702 itself. The confusion sort of stems from this nebulous standard of reliability and what does it mean for testimony to be reliable.

 

      And I do think that the judiciary could benefit from some more decisions and maybe articles that really try to flesh out what it means to be reliable. But we know that the gatekeeping standard and the reason that that language sort of developed, has to do with the ability of expert testimony to be quite misleading to the jury. And so, at least the way I see it, reliable testimony means that the expert is not giving misleading testimony.

 

      And, ultimately, that isn't an incredibly high standard. Right? Reliability means something different than, "Is the expert right?" And so, I don't think that any of these proposed changes would really clarify for courts what reliability means.

 

      And then, lastly, while we're on this initial introductory topic, I also think that the advisory committee note explaining that court decision saying that the sufficiency of the evidence goes to weight and not admissibility is sort of misplaced. Since Joiner, that has been the case—that you have to show that expert testimony is based on sufficient facts and data to be admissible. I think that most district courts review the Supreme Court precedent. But I think that the comment note is kind of based on an overreading of a lot of these decisions.

 

      And the reason for that is that evidence exists along a continuum. Right? Once evidence is admissible, then it goes to the jury, who weighs it. And so, I'm not saying that there aren't some opinions out there who get it wrong, but I think that a lot of these courts are merely saying that because the proponent of the expert testimony has shown that it's based on sufficient facts and data, that the testimony then becomes a matter of weight for the jury to consider.

     

      And so I think a blanket statement that sort of suggests that every district court opinion that says that the sufficiency of the evidence goes to weight and not admissibility is incorrect, really kind of over -- goes a little bit too far, if you will.

 

      And so, overall, I think that this isn't necessary. I think that what it's going to do is really shift the focus of a lot of Daubert motions to rule 702(d) and sort of try to nudge courts into overstepping their bounds and kind of stepping into the role of factfinder in trying to weigh whether the evidence is sufficient by a preponderance standard to convince the court, which, obviously, is not, I think, within the spirit of the rule, and is not something that we need.

 

      So with that, I'll turn it over to Lee, who I'm sure is going to tell me that he disagrees with everything that I just said.

 

Lee S. Mickus:  Just maybe. But thank you, David, for that perspective. And thank you to The Federalist Society for giving us this forum to raise and discuss these very important issues. As David foreshadowed, I'm going to argue that the proposed amendment is necessary. And it's necessary because Rule 702, in our modern courts, has become the Rodney Dangerfield of the Federal Rules of Evidence. It gets no respect. Why do I say that? Under the Rules Enabling Act, Rule 702, and not the case law, actually sets the admissibility standard. That's what governs.

 

      But everybody wants to talk about Daubert. Everybody wants to talk about other cases. And we heard David make a reference just now to Daubert motions. Well, it's 702 that actually governs. But because of this focus on the case law, rulings are getting framed in terms of language that are pulled from the cases and not in terms of what the rule itself actually says and actually directs.

 

      And many times, these cases that are being referenced actually predate Rule 702, are fundamentally inconsistent with Rule 702, and were intended to be displaced by Rule 702 when it was amended and adopted in its current form back in 2000. So reliance on old cases that date back from the 1980s or early '90s can't possibly be interpreting the actual governing standard. But yet courts continue to apply and continue to make reference to these cases and to the language that they set forth way back in the 1980s.

 

      I don't want you to take my word for it. I want to give you some examples to show why I think this is the case—that Rule 702 is the Rodney Dangerfield of the federal rules. So let's start with the burden of production—that concept that Katie and her colleague looked at—and what a proponent of evidence must show in order for the opinion testimony to be admissible.

 

      Now, there shouldn't be a controversy about this. The advisory committee note that's out there, and has been since 2000, says the standard is preponderance. Rule 104(a) pretty clearly applies in this situation. It says, "Preponderance of proof." Even Daubert, in a footnote, says that in determining reliability, preponderance is the standard. And most recently, the advisory committee, when it published the current proposal at the end of July of this year, again reiterated, preponderance is the standard.

 

      But the cases—even very recent cases that I'm about to make reference to—often don't. And instead, they employ a different standard. And they've done this even after the proposed amendment was published. And so, these courts should know better. Let me throw some examples at you.

 

      So, the Ashley Energy case from the Eastern District of Missouri, just in November, less than a full month ago – it ruled as follows—that "exclusion of an expert opinion is proper only"— only—"if it is so fundamentally unsupported that it can offer no assistance to the jury." That doesn't sound like preponderance to me. Interestingly, this court cited to the Wood v. 3M case that dates back to 1997—so predates the amendment. And Wood actually cites to an even earlier case, called Loudermill v. Dow that dates back to 1988. So it even predates Daubert.

 

      There's another example, this one from the Third Circuit, in a case called Knecht v. JAKKS Pacific, Pennsylvania, again, dating to August of this year, so after the advisory committee published the proposed amendments. And there should be no dispute as to what the actual standard is. Yet, the Court said, "Rule 702 embraces a liberal policy of admissibility pursuant to which it is preferable to admit any evidence that may assist the trier of fact." In making that statement, it quoted to a case called Kannankeril from the Third Circuit that dates back to 1997, again, predating the current rule.

 

      And as Katie referenced—and this I find absolutely fascinating—it is by no means unusual to find courts that mix their metaphors, that make reference to the preponderance standard and yet, turn around—in fact, sometimes even in the same sentence—cite a modification of the preponderance standard. And so, it's unclear exactly what standard they're using.

 

      Here's an example from the Ninth Circuit—a California District Court case -- again, just from August -- Glumetza antitrust litigation -- a case out there that concluded as follows: "Ultimately, while the proponent of expert testimony bears the burden of demonstrating its admissibility, the Daubert inquiry should be applied with a liberal thrust favoring admission." So, it's a neutral standard. Oh, but wait, there's a thumb on the scale in favor of admissibility. That's fundamentally just an incoherent approach. It can't be squared with itself.

 

      Interestingly, that same approach—that it must be applied with a liberal thrust favoring admissibility—was something picked up by the Ninth Circuit in the Hardeman case, a case I know David knows very well. He's counsel on it. And it's a fascinating and very widely published case. But yet, when the Ninth Circuit is affirming application of that liberal thrust, it's doing so in a manner that is inconsistent with—that disrespects—Rule 702 and the standard that it, by its nature, is supposed to apply.

 

      And then, even on the very content of the gatekeeping inquiry, the elements that are admissibility considerations that the judge must assess, that are laid out right in the text of Rule 702, again, Rule 702 gets no respect. Here are a few examples.

 

      First couple of examples relate to Rule 702(b). 702(b), as you saw when Leah had the slides up, looks at the sufficiency of an expert's factual basis. And 702(b) says that's part of the court's gatekeeping determination. But courts very recently are saying things like what the court did in the Jaunich v. State Farm case up in Minnesota -- again, just last month, November of this year. It says, "The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility. And it's up to the opposing party to examine the factual basis for the opinion in cross-examination." It went on, not surprising, "State Farm's arguments in this regard are better suited for cross-examination, and State Farm's Daubert motion is denied."

 

      Now, to David's point—and it's a legitimate one—that sometimes there are just pure disputes, and the preponderance is met with respect to Rule 702(b) for this particular issue. And so, it is appropriate for cross-examination on that point. But that's not what this court is saying. What this court is saying is, as a fundamental, general principle, this is not a matter for the court to determine on admissibility, despite rule 702(b). Rather, this is a matter that automatically gets deferred to the jury, and it's up to the jury to decide. That's not what rule 702(b) does. And that's why it's dangerous.

 

      Is this the only circumstance where this happens? No. In fact, the case I quoted to you, being in Minnesota, came from the Eighth Circuit. And there is a whole vein of cases that come out of the Eighth Circuit, including, most recently, an Eighth Circuit decision itself -- from the Circuit -- a case called Bair Hugger -- in August -- that actually used that very same language, which again, originates from that Loudermill case in 1988. It used that case as the basis for overturning an exclusion of an expert.

 

      So that's, in essence, a rejection of the content of Rule 702(b), and I dare say—as a rejoinder to David's point—that we can rely on appellate courts. If the appellate courts are reading content out of Rule 702, then it seems to be a rules problem because there seems to be a misunderstanding of what governs. And when the Eighth Circuit is relying on Loudermill rather than the content directed under the Rules Enabling Act, then we've got a real problem.

 

      But the Eighth Circuit is not the only place where we see this problem. The Fifth Circuit is another great example, where there is a pattern of hundreds of cases that address this concern about factual basis in a manner inconsistent with Rule 702(b). Another very recent example -- a case called Britt, out of Texas in November of this year, where the Court said, "Moreover, as a general rule," —general rule—"questions relating to the basis and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration."

 

      Interestingly, I have found hundreds of cases that use exactly that same quote. And that quote doesn't originate in Daubert, doesn't originate in Rule 702. It originates in a case called Viterbo v. Dow, a Fifth Circuit case from 1987 -- another concept that Rule 702, as it currently exists, should have displaced, but didn't, and has been carried forward, recycled by courts that rely on the case law as opposed to the rule.

 

      Similarly, that Eighth Circuit language that I mentioned that was picked up by the Bair Hugger case and that I quoted to you from the Jaunich case -- I have found more than 200 cases that cite that very same general rule language in the last five years. So this is a -- it's not a pervasive problem, but it is a problem that has substantial, substantial impact because it is widespread. And it has generated a great deal of inconsistency.

 

      And was 702(b) the only problem—the only content that gets left out of the rule when courts apply their gatekeeping? Not always. Rule 702(d) is another area. That rule, if you don't remember it off the top of your head, says that whether the expert reliably applied the methodology that he or she is employing in the case to develop the opinions—reliably applied the methodology to the case facts—that is part of the court's gatekeeping determination. But we see courts that say things like the court in a case called DoubleTap Defense, August of this year. Again, after publication of the proposed amendment, it went on to say, "Generally, deficiencies in application go to the weight of the evidence, not its admissibility."

 

      And interestingly, it quotes a case called Martinez, another Eighth Circuit decision that dates all the way back to 1993. So again, we've got a court that is relying on the case law, not on the text of the rule, in order to displace and reconfigure the content of the gatekeeping function in a way that is inconsistent with Rule 702.

 

      And so, what are we left with when we've got courts that are doing this both with the standard and the content that should apply to the gatekeeping function? Even though we purportedly have a national standard, a single uniform national rule, we've got a patchwork of different approaches with a wide range of overlapping and confusing different standards. Sometimes it's preponderance. Sometimes it's a presumption in the Second Circuit. Sometimes it's a liberal thrust favoring admissibility. Sometimes it is only unless it's so fundamentally unsupported. We've got an inconsistent standard. We've got inconsistent content. And so, what that means is, depending on where a case gets filed, the admissibility of expert testimony is going to be analyzed in a different way.

 

      Now, think about that in terms of pattern litigation. Think about that in terms of NDL cases. That creates a real problem, where the same expert in the same kind of a case is going to be treated very differently even though, supposedly, there is a single standard that applies. That's not what the federal rules are designed to address. And that's not what our court system should allow. But yet, that's what we are dealing with right now. And that is why this proposed amendment is needed. It will go far to correct this confusion in the court about what the standard is and what the gatekeeping content should include.

 

      But I will say, I have a concern about the effectiveness of the communication that is set forth in the current draft. Courts have been ignoring the content of Rule 702(b) and 702(d) for decades now. I made reference to Viterbo. I made reference to Loudermill. Those cases go back to 1988. They have been rolled forward now for more than 20 years, consistently. The courts in those jurisdictions, the Fifth and the Eighth in particular—great example being the Bair Hugger decision—the courts in those areas place great emphasis on the case law. And as a result, these practices of reading 702(b), reading 702(d) out of the standard are very deeply entrenched.

 

      And so, requiring courts that have gone with this approach for so long to change their practice and require them to internalize that what they've been doing for so long is not right, is going to require some very clear, very direct direction in the form of the rule. And to do so in a way that demonstrates that this must be a court determination, I think, requires including that direction right in the text of the rule, adding in what we saw in red in what I think was Leah's third slide -- that, if the court finds, or if the court determines, in order to make it 100 percent clear that this is intended to displace those case law determinations that read Rule 702(b) out -- if we go up one slide -- yeah, there we go -- that language, I think, is going to make things very, very clear if it is added.

 

      If it's not there, then I have a fear that there's a risk that some courts are going to read this amendment as a clarification that, "Well, that just doesn't apply to me." And that's a real concern. If we're going to go to the trouble of amending it, we want to make sure that everybody gets the right message.

 

      So with that, I'll turn it back to Leah to lead the discussion further. But I appreciate the opportunity to go through what the problem is and why we need this amendment.

 

Leah Lorber:  Sure. And we're going to take audience questions in a few minutes. Before we start that, I'd like to give both David and Katie an opportunity to comment either in a rebuttal or just add additional remarks following their fellow panelists' comments.

 

David Wool:  Well, I guess my comment for Lee would be -- and I get what Lee is saying with respect to court's relying on the case law, as opposed to, say, purely on the text of the rule itself. But obviously, these elements of the rule find support in the case law itself, and specifically from cases from the Supreme Court. And I'm thinking most specifically of Joiner and the reliable application of the methodology to the facts of the case.

 

      And so, it sort of strikes me, I guess, sort of as the way that Lee has framed it, as kind of a problem that doesn't really have a solution if courts are both ignoring the text of the rule itself —if that's really occurring—and seemingly ignoring the Supreme Court's directive in Joiner. And so, I guess I would just kind of wonder, Lee, how you sort of square that, if you will.

 

Lee S. Mickus:  Sure. I'm happy to take that up. And look, you're right that the concept originates in Joiner. But I think that overlooks the fact that Joiner itself was displaced by the adoption of Rule 702. Daubert doesn't govern. And in fact, there's some great authority out there—the best one comes from the Seventh Circuit—that notes that every time litigants show up and talk about Daubert, they're talking about superseded case law because it's Rule 702. We shouldn't be talking about Daubert motions. We should be talking about Rule 702. And that is where the content comes from.

 

      And if your concern, David, is, as I hear you, is that courts are just not getting it right—they're either confused or they don't understand what they need to be doing—then I think that is a perfect opportunity for education through the rules process—what the advisory committee is presently undertaking—in order to communicate to them what the rule is and what the rule directs they should be doing. If they're reading it out, and they continue to read it out, then sure, the appellate process and other steps are worthwhile.

 

      But the problem we've got right now is that there isn't even agreement about what governs because there is so much emphasis on the case law over Rule 702. And that has led to this chaos that we see within the district courts. So it's a rules problem that needs to be communicated to the courts through the advisory committee and through the kinds of steps that will be taken once the amendment is adopted and courts can get refocused on what the standard is, it seems to me.

 

Leah Lorber:  So is it a rules problem, or is it an efficacy problem, or is it both? David and Lee, what are you seeing in your cases about the attorneys arguing to the court in this area?

 

David Wool:  Well, I'll give the attorneys that I go up against a lot of credit. I don't think that they have left any doubt—at least in the recent cases that I've been involved with—as to the standard or the burden and where that lies. So I guess I would push back on the idea that there's a fundamental problem to begin with.

 

      But I think that if courts are confused as to where the burden lies, then I think that, ultimately, is an advocacy problem because I think everybody on this panel would agree that for decades it has been clear in both, I think, the rule and the case law that the burden is on the party proffering the expert testimony. There's no dispute on that. So I think it, ultimately, is an advocacy problem.

 

Lee S. Mickus:  And I would tend to agree with that. But I'm going to add another dimension. I think it's not just an advocacy problem. I think it's also a vocabulary problem. Lawyers and judges, for decades now, have talked about, just as David did -- and I'm not faulting him because it's the way lawyers talk, and the way judges talk about these issues. They talk about it as a Daubert issue. They talk about it as a Daubert hearing. And when we do that, we emphasize the case law over the content of the rule. And that then encourages litigants and court clerks and judges to look first to the cases, and then look to the cases that interpret those cases, look to the recent applications of those case procedures.

 

      And the content of the actual rule kind of fades into the background. And when those judges follow the natural instincts to look to the case law first, what they see is a case law history that is shot through with these old concepts that have been carried forward—in error, but carried forward—and, a lot of times, misapplied. And as a result, you've now got this range of different standards, this range of different content, that is in the gatekeeping function.

 

      And so, if we, as advocates, clean up our language and make clear the focus should be on Rule 702, whatever it is, then that is going to go a long way, I think, to helping the courts and the litigants refocus the issue because that's where the standard exists. And to the extent that we look at case law, that should be supplemental. It should be interpretive. But we need to make sure that those cases that we rely on are actually interpreting Rule 702 and are not carrying forward something that dates back to the '80s that was purposely displaced by Rule 702, but in a way that didn't effectively disrupt its recitation in the cases going forward.

 

Kateland Jackson:  I have a quick point to support something that Lee just said—just an interesting data point, as well, that some of the cases that we reviewed did not even use the word "702," "Rule 702." They only reference Daubert or other controlling case law. So that's interesting as well, and kind of supports what Lee is saying—that this vocabulary might need to be cleaned up. And it could be cleaned up from an advocacy standpoint. I'm not sure if it was the lawyers who submitted the Daubert language before the court, and then the court picked it up. But regardless, some of the cases did actually not even reference Rule 702 at all.

 

Lee S. Mickus:  Yeah, I think that's a --

 

Leah Lorber:  So, before we move to audience questions. Go ahead.

 

Lee S. Mickus:  Go ahead. Yeah. Katie, I think that's a great observation. And I think it's troubling. I mean, I think it's far too common. But it's, I think, another indication of the overreliance on case law to the exclusion of Rule 702. Again, it's Rodney Dangerfield. It gets no respect. I'm sorry, Leah.

 

Leah Lorber:  To what extent are there opportunities to participate in educating of courts through amicus briefs for people that might be with organizations or others that are watching today?

 

Lee S. Mickus:  David?

 

David Wool:  Well, as Lee knows, there's tons of opportunity. I've been involved in an appeal involving various significant Daubert issues, Rule 702 issues. And there's been a ton of amicus support for the other side. And I think that a lot of the briefs are very interesting. They're well-argued. I think that they're wrong in this case, but these cases are percolating up with a good bit of regularity. And so I think that, if you look out particularly on the NDL landscape, I think that there are lots of cases that would lend themselves to amicus briefing if somebody wants to get involved.

 

Lee S. Mickus:  I'm glad to hear you say that, David, because I agree with that point. I mean, I think it's an important function right now in light of everything that we see and the attention that the advisory committee has drawn to Rule 702 and what's been going on there. And I guess I'll raise a practical point with respect to the amicus function. When I have found myself as party to a counsel in arguing a 702 issue, frequently, my hands are tied by page limitations and record references and all the nitty-gritty of the particular case. What did the expert do? What was the factual basis? What was the methodology being applied? And is it good or bad, admissible or not? And that's what appeals are all about.

 

      But the kinds of issues that we've been talking about—what is the proper standard, is it appropriate for a court to be making reference to the liberal thrust favoring admissibility or to the Loudermill decision—that takes a lot of discussion. There's a lot of history involved in that. There's a lot of case law progression involved in that. That takes [inaudible 00:41:07]. And I think that kind of discussion to help courts understand what is the standard, what is the content, is a great opportunity for amicus parties to engage in. It's something Lawyers for Civil Justice has done recently in a couple of different cases. And I think it's a very useful function to help educate the courts and to help recenter them on the text that matters.

 

David Wool:  And if I can sort of add one thing to that, I guess what I think would be interesting to see—and I think this would be very well-suited for an amicus brief—would be briefing on the topic of what is reliable because I think a lot of this discussion is focused on what is the -- making parties meet the preponderance standard for proving reliability. But there hasn't been much discussion on what does reliability mean in general. And I think that it's really a topic that hasn't been as developed as it should within the case law or within the commentary. And in talking to judges, other lawyers on both sides, I think that if there is confusion-- or really, where the source of the confusion springs from is how reliability is, in and of itself, kind of a nebulous term, a little bit.

 

Leah Lorber:  So now, we have several very interesting questions and comments in the queue, and I'd like to move on and get your thoughts on those. I'll start with one from Paul Cole, who says that it is confusing to apply the same standard of proof to admit expert testimony that will be applied to deciding a case. This is especially true because, in many cases, expert testimony, if taken as submitted, could be dispositive. The rule, as stated, has the potential to moot the right of jury trial. What do you people think of that? Panelists?

 

David Wool:  Well -- if I can jump in -- that's my big concern. Obviously, we have a rule. And the rule is the law. But we also have a Constitution and the sixth presumption amendment right to trial by jury. And in particular, my concern is that -- and I've spoken on a panel with Lee about this before, but with Rule 702(b) in particular, by including the preponderance language in the rule itself, I think that it can cause a little bit of confusion because where a judge is trying to decide, "Has the expert relied on sufficient facts and data and proven this by a preponderance of the evidence?" without some -- if the rule is adopted without further clarification of the rule, it kind of encourages a judge to put their thumb on the scales and say, "Well, does the evidence that the expert’s relying on prove their case by a preponderance of the evidence?"

 

      And I think that that's the real concern. And so, if the rule is adopted, I would add something to the language of 702(b) to the effect of, "Has the expert relied on sufficient facts and data to meet the preponderance standard of reliability, or to show that it's" -- sorry -- "sufficient facts and data to show that the opinion is reliable, rather than correct?" because, ultimately, that's what the point of Rule 702 is, is to meet reliability, not correctness.

 

Lee S. Mickus:  And I would certainly agree with that notion. It's about reliability and not correctness. I guess I would come at it from a slightly different perspective, not surprisingly. The notion that there has been gatekeeping, and that gatekeeping is a responsibility of the court, and that gatekeeping should include an examination of the factual basis of supporting the expert's opinion and analysis -- that's been part of the discussion since Daubert, certainly since Rule 702 was adopted in its current form in 2000.

 

      So that's been part of the discussion for 20 years. The problem has been not courts overstepping their bounds. The problem has been courts ignoring it entirely and not recognizing that that does present a reliability consideration. I think there is a vast case law, however, among courts that do read 702(b) as part of the reliability analysis, part of the gatekeeping function. And there's a good line -- and I know David is familiar with these cases. They're recognized.

 

      Okay, when there is a factual dispute as to whether the light was red or green, then the experts are allowed to rely on the testimony, the evidence that they rely on. And it is probably going too far to determine the correctness of which witness's testimony an expert gets to rely on. But there does have to be a determination that there is sufficient factual support, period.

 

      I mean, an expert can't just make a castle in the air and then try to apply it, or try to speak to it in front of the jury, and hope that the jury will try to fill in some gaps and reach a conclusion. And that's the problem. That's the kind of misleading stuff that Rule 702, I think, was entirely intended to keep out.

 

Leah Lorber:  So we have another question. This is from someone identified as Carlos CDC, who notes that there are some discussions, for example, on the Harvard case, where each side brings in very heavy weights on each side. For example, tenured economics professors working education policy. These cases seem to bring in notions of expertise and assumption to the fore. Put differently, where the expert testimony weighs in highly contentious issues, where reasonable people disagree, as expert opinions might become more politicized, would this rule change help fix those risks?

 

Lee S. Mickus:  I guess I can start. I think, to the point that David was raising—and it's a very good one—the whole notion of Rule 702 is not to determine what is the correct outcome, or what is the correct assessment of a complex or technical or scientific matter. It is to determine what is a reliable opinion. And on the cutting edge of certain functions, there is, perhaps, room for disagreement among reasonable scientists, or reasonable engineers, who may look at a particular widget and, from one perspective, see it as good, and from another perspective, see it as bad.

 

      I think the focus of Rule 702 is maybe down a notch. It is really more to the level of, is this theory something that is, at this point, only a hypothesis? Something that is potentially misleading to the jury? Something that is not going to be of a substantial substance? Is it junk science? Is it of such insufficient substance that putting it in front of a jury with the credibility attached to it being expert testimony, is that going to give it such a stamp of approval, such prestige, that the jury is going to look at it in a way that it's going to be more credible than the methodology justifies?

 

      And so I think there's room for disagreements within science, within engineering, within any expert topic, I think. And that's not what Rule 702 is designed to tease out. But there does need to be some real substance to look at the foundation, the reliability, of the opinion. David? Katie?

 

David Wool:  Yeah. Well, I'll jump in here. I actually pretty much agree with all of that. Where two experts are applying reliable methodologies and they just happen to disagree, that's what courts are for. Courts are there to resolve disputes. And so, where both experts meet the reliability standard, then it should go to the jury.

 

      And to Lee's point, what the court should be focused on is not that two experts disagree with each other, but whether one expert has some testimony, or maybe a conclusion, or something to that effect, that has the capacity to mislead. And so I don't see really a big issue with two well-credentialed experts disagreeing with each other over something.

 

Kateland Jackson:  Yeah. I would agree with that, based on the cases. I would say it becomes an issue when the court clarifies that its believed role is to simply keep out junk science. And that did come up in several cases. So I think that would be my one hesitation, is just to make sure that that wouldn't be flipped on its head so that the court is getting its own role wrong in that instance.

 

David Wool:  Katie, that's a great point. And that harkens me back to the Eighth Circuit's -- it should not be excluded unless it is so fundamentally unsupported as to be unhelpful to the jury. There's a vein of cases in the Ninth Circuit that says the gatekeeping function is only to screen out "unreliable nonsense opinions." There's more substance to Rule 702 than that. But I think that Rule 702 does allow for a level of disagreement among well-credentialed scientists who have applied reliable methods and a factual basis, etc.

 

Leah Lorber:  Is there a line dividing reliability and correctness? And where should it be?

 

David Wool:  Well, I can jump into that. I think I mentioned this at the very beginning, but I think that the line for reliability, at least as I see it, is whether the testimony's misleading. Right? Obviously, you can have some non-misleading testimony that's so far afield from reliable scientific principles that even though a jury could clearly recognize that it's wrong and misleading, that it's just sort of not worth the time of dragging regular citizens into court to sit and listen through that.

 

      But where the testimony is not misleading and the court simply views it as incorrect, I think that that should always go to a jury. If the jury can understand it, if it's not misleading, and they simply conclude that it's wrong, that's what they're there for, to kind of resolve disputes like that.

 

Leah Lorber:  Katie or Lee, do you want to take that? Do you have a thought?

 

Lee S. Mickus:  This is sort of a how-high-is-up kind of question. And I mean, look, this is why we have judges. I would, not surprisingly, probably take a little bit higher view of the gatekeeping requirement than just, is it misleading? I think reliability demands more than that. And I think that's what the four Daubert factors are all about, as well as all the content of 702(b), (c), and (d). And to some extent, this is a -- the judge is going to know it when he or she sees it.

 

      But I think concepts like, are there circumstances where a theory is disprovable -- I think that bears something worth considering. But this is literally where the rubber meets the road, and it is why we have judges because in every different technical field and every different set of circumstances, I think reliability is going to be presented through a series of different facets. And conveniently, that's why judges have the opportunity to look at briefing, to study, to have hearings, and to explore these in a way that makes sense under the standard.

 

Leah Lorber:  So before we go to our last question, I wanted to make sure to call out Professor Capra's question in the Q&A. He is the reporter to the Federal Rules Advisory Committee. He asks about -- as to the suggestion that language be added to the rule that says the court must find that all the elements are satisfied by a preponderance of evidence, he'd like to say, "It would be helpful to provide insight on why that language would not create a concern that the court would have to make a 702 finding even without the objection of the adversary."

 

      He has his own answer to that, but he would like public comments to address that concern. I'm assuming he means public comments within the comment period. We do have one other question that I'd like to get to real fast—the next four minutes. Enrique [inaudible 00:54:40] asks, "Why not a probable cause standard, or, in the alternative, a clear and convincing standard, instead of the preponderance of evidence?

 

David Wool:  What was the first standard that you said?

 

Leah Lorber:  Why not a --

 

David Wool:  You said, “Very convincing,” and what was the first one?

 

Leah Lorber:  Sure. Probable cause. What other probable cause standard?

 

David Wool:  At least from my recollection from law school and whatnot, probable cause, at least my recollection, is that it's a sort of 51 percent, and more or less the same standard as the preponderance standard.

 

Lee S. Mickus:  Yeah. I mean, I'll take a look at it from maybe a different vein, but not necessarily reaching a different conclusion than David. I mean, I think the answer is because that's the way evidence rules work. Rule 104(a), when it's a judicial determination, applies a preponderance of the evidence standard, or a preponderance of proof -- however you want to phrase it -- if that's easier. And from time immemorial, or at least as far back as I've been practicing, that is the approach.

 

      And clear and convincing is a standard that gets applied maybe in some criminal contexts. I know in a number of states, it's used as the punitive damages standard, and maybe for findings of things like recklessness, circumstances like that. And that would be an interesting concept. But the answer is -- my answer, at least is, that's just never been part of an evidentiary consideration. And so, that would be really a fundamental shift in the framing of the issue—not necessarily a bad one, but that's a whole different topic, I think.

 

Leah Lorber:  Do any of our panelists have any final remarks before we close out? We've got two minutes. Thank you so much to The Federalist Society. Sorry, Lee. I cut you off.

 

Lee S. Mickus:  No, no. Please go ahead. Go ahead.

 

Leah Lorber:  Thanks so much to The Federalist Society and to the members of our panel for taking part in this today. This has been a great discussion, and I'm sure it won't end here. Please, everyone, think about your position on this, and file a comment or sign up to testify. Again, get your request to testify in by December 21. So make sure you meet the 30-day-in-advance deadline.

 

Guy DeSanctis:  Yes. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. As always, please note that all expressions of opinion are those of the experts on today's call. We also welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.