Bruce Barze, Jr., Barze Taylor Noles Lowther LLC Insuralex Exclusive Member in Alabama.
Few would question Mona Lisa Vito’s qualifications and reliability to offer expert opinions about Positraction and the tire marks left by a 1964 Buick Skylark.1 Sadly, however, too many experts proffered by plaintiffs do not meet Rule 702’s requirements with Mona Lisa’s ease, yet they nevertheless are permitted to testify at trial.
But defense lawyers should take heart, because a significant amendment to Federal Rule of Evidence 702 will take effect on December 1, 2023 that should result in more stringent gatekeeping by federal judges.2 This is not a substantive change to—but rather a clarification of—Rule 702’s gatekeeper requirement. This article is written to remind Alabama defense lawyers practicing in federal courts that Rule 702, not case law pronouncements, sets the expert admissibility standard. Alabama defense practitioners should familiarize themselves with the forthcoming amendment and begin arguing its applicability now, because rather than substantively changing Rule 702, the amendment simply emphasizes and clarifies how the rule was always meant to be applied. Because many case law pronouncements, including the seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,3 have been cited inconsistently with Rule 702’s mandates, defense lawyers should stop calling expert challenges “Daubert motions” and start referring to them as “Rule 702” motions.
The Federal Standard for Testimony by Expert Witnesses
Since 2000, Rule 702 has laid out the requirements for the admissibility of expert witness testimony and the assessments courts must make to determine whether a jury will hear an expert’s testimony. The 2023 amendment to Rule 702, unanimously adopted in May of 2022, reiterates what these requirements are and how judges must act as gatekeepers regarding the admissibility of expert testimony. In order “to clarify and emphasize” the admissibility requirements, the amendment changes the language of Rule 702 as follows:
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 demonstrates to the court that it is more likely than not that:
- 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;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.4
The new language explicitly dictates that the burden of proof in Rule 702 is a preponderance of the evidence and affirms that “the expert’s opinion [must] reflect[ ] a reliable application” of the expert’s principles and methods. This phrase replaces the language that the “expert [must] ha[ve] reliably applied” the expert’s principles and methods, emphasizing that the opinion itself must reflect the reliable application of the expert’s principles and methods. The 2023 amendment is necessary because of the Advisory Committee’s concerns that courts have been ignoring these critical elements of Rule 702. Based on this concern about these federal court decisions, the Advisory Committee amended the black letter of Rule 702 itself to include what was previously in the comments.5
The Judge’s Role as Gatekeeper for the Admissibility of Expert Testimony
As noted above, the Advisory Committee on Evidence Rules recommended the 2023 amendment “to clarify and emphasize” that: (1) the proponent of the expert is required to meet its burden of proof, and (2) expert opinions must not only apply methods that are “reliable,” in the abstract, but must reliably apply those methods in the context of the facts of each case in which they are offered.6
The Advisory Committee recommended this amendment in large part based on the significant number of federal decisions incorrectly articulating and failing to properly apply the Rule 702 gatekeeping standard. In 2021, the Advisory Committee reported on this ongoing problem:
It is clear that a judge should not allow expert testimony without determining that all requirements of Rule 702 [, including that it is based on sufficient facts or data,] are met by a preponderance of the evidence. . . . It is not appropriate for these determinations to be punted to the jury, but judges often do so. For example, in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable. There is unanimous support in the Evidence Rules Committee for moving forward with an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met. This would not be a change in the law, but rather would consolidate information available in two different rules and two Supreme Court opinions.7
Therefore, the Advisory Committee clarified that “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” are questions of admissibility not weight.8 The Advisory Committee noted:
Many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a)[.]9
The Advisory Committee also made clear that the “preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules” also applies to Rule 702. Thus, the proponent must demonstrate to the court that it is “more likely than not” that the expert’s testimony meets Rule 702’s admissibility requirements.10
This burden on the proponent to make the requisite showing runs counter to how some courts have been applying Rule 702. For instance, some decisions state that expert testimony is presumed to be admissible11 or mistakenly recite that exclusion should be “the exception rather than the rule.12 The Advisory Committee rejected these notions, observing “that emphasizing the preponderance standard in Rule 702 . . . was made necessary by the courts that have failed to apply correctly the reliability requirements” of the rule. However, the Advisory Committee offers a reminder that the court does not need to “make a finding of reliability in the absence of objection.”13 Therefore, defense attorneys should always raise appropriate objections to expert testimony and argue that the judge must serve as gatekeeper in deciding whether the party offering an expert’s testimony has met Rule 104(a)’s preponderance of the evidence standard.
Federal Case Law and Application of the 2023 Amendment
Already, courts are considering arguments about Rule 702’s application in light of the forthcoming amendment. The Fourth Circuit was one of the first courts to rely on the upcoming amendments to Rule 702.14 In Sardis, the estate of a worker killed while unloading a metal garage door hood brought an action against the manufacturer. At trial, the plaintiff offered the testimony of two expert witnesses, which the district court allowed over defendant’s objection. On appeal, the court found the experts did not offer relevant or reliable opinions. “[T]he district court permitted the jurors to hear their testimony, finding that cross-examination was the proper, and only, tool to vet any relevance or reliability factors. On the basis of that testimony, the jury awarded the Estate a multi-million-dollar verdict.”15 Finding the trial court had not fulfilled its gatekeeping role, the court reversed the judgment and also opined:
We conclude with one final observation. Our insistence on district courts’ compliance with Rule 702’s plain gatekeeping requirement stems not from an arbitrary adherence to a procedural formality. Rather, because Rule 702 grants experts “wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation,” “[e]xpert evidence can be both powerful and quite misleading.” Daubert, 509 U.S. at 592, 595, 113 S.Ct. 2786. As such, “the importance of [the] gatekeeping function cannot be overstated.” United States v. Barton, 909 F.3d 1323, 1331 (11th Cir. 2018).
That much is confirmed by the Advisory Committee on Evidence Rules’ current proposal to amend Rule 702. On April 30, 2021, the Committee unanimously approved a proposal to amend Rule 702, part of which is motivated by its observation that in “a number of federal cases … judges did not apply the preponderance standard of admissibility to [Rule 702’s] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that such issues were ones of weight for the jury.” Advisory Comm. on Evidence Rules, Agenda for Committee Meeting 17 (Apr. 30, 2021). In order to address this “pervasive problem,” id. at 18, both of the current draft amendments to Rule 702 would contain the following language in the advisory committee’s notes:
Unfortunately many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testimony], and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.
Id. at 105, 107. That clearly echoes the existing law on the issue. … Consistent with that existing law––and in accordance with the Committee’s pending rule––we confirm once again the indispensable nature of district courts’ Rule 702 gatekeeping function in all cases in which expert testimony is challenged on relevance and/or reliability grounds.16
In Sardis’s wake, courts in the Northern District of West Virginia and the Middle District of North Carolina issued similar holdings.17 In Bishop, the court rejected the “argument that [the expert’s] inference . . . is ‘a question of fact for the jury to decide.’”18 The Bishop court referred to the Sardis court’s rejection of the idea that “relevance and reliability impact[ ] only the weight of the [expert’s] testimony, not [its] admissibility.”19The Bishop court likewise noted that “district courts not performing their gatekeeping duties” is such a pervasive problem that the Advisory Committee specifically identified courts’ failures to apply Rules 702 and 104(a).”20 The Bishop court concluded that “in order for the Court to perform its ‘gatekeeping’ duties under Daubert,” it must itself make the finding regarding the reliability of the expert’s assumption— not the jury.21
Similarly, in the Howard and White decisions, the Middle District of North Carolina relied on the Advisory Committee Notes to the 2023 amendment, holding that per Rule 104(a), “the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.”22Note, however, that proponents do not need to show by a preponderance that their expert’s testimony is correct, but only that their expert’s testimony is reliable. When defendants argue that facts “upon which [the expert] relies are either disputed or unknown to her, that goes to the weight of her opinions and is properly the subject of cross-examination.”23
Courts outside the Fourth Circuit also have referenced the 2023 amendment.24 In In re Payment Card Interchange Fee, a court in the Eastern District of New York ruled, “in deciding these [Rule 702] motions the Court is mindful of the proposed amendments’ purpose of ‘emphasiz[ing] that the court must focus on the expert’s opinion, and must find that the opinion actually proceeds from a reliable application of the methodology’ and ‘explicitly weaving the Rule 104(a) standard into the text of Rule 702.’”25 The court qualified that because the amendments were not in force at the time it was reaching its decision, it was not applying the amended version of Rule 702, but simply taking into account the amendment’s purpose.26
The In re Anderson court, in the Eastern District of Tennessee, found amended Rule 702 and its Committee Notes to be persuasive authority because they simply clarify how Rule 702 should have been applied all along. 27 However, the Anderson court went a step further than the Payment Interchange Fee court and was willing to observe “the amendments being made to Rule 702 from this point forward to ensure a faithful application of the proper standard.”28
One court in the Southern District of Alabama referenced the forthcoming amendment in a May 2023 decision.29 The Williams case involved an insurance dispute arising from a roof damage claim. State Farm moved for summary judgment and filed a motion to exclude the opinions of the plaintiff’s causation expert. As part of that effort, State Farm “urge[d] application of proposed amendments to Rule 702 of the Federal Rules of Evidence… (that the reliability requirements, by a preponderance of evidence standard, are questions of admissibility not credibility/weight to be decided by the judge, not the jury)30.” Judge DuBose was not persuaded because the proposed amendment was not yet in effect.31
The forthcoming amendment is intended to remind courts and litigants that Rule 702, not outdated case law statements, sets the expert admissibility standard.32 To the extent courts have based their approach to opinion testimony on deferential judicial precedents, that analysis must be reconsidered and reconciled with the requirements of the rule. Defense lawyers should take the opportunity to emphasize the centrality of Rule 702 by changing the words used to refer to expert admissibility challenges. References to “Rule 702 motions,” rather than “Daubert motions,” should become standard practice. There are multiple reasons for this, which are discussed in more depth on the excellent Lawyers for Civil Justice Don’t Say Daubert website.33 The authors of a well-known Washington Legal Foundation white paper also have called on the defense bar to refer to expert challenges as “Rule 702 motions:”
“Daubert motion” has become de rigeur slang among federal practitioners when referring to a motion to exclude an expert witness. Courts also frequently use that nomenclature, making statements such as “Now before the Court is a Daubert Motion filed by Defendants to strike or limit the purported expert testimony of Plaintiffs’ witnesses[.]” But these descriptions are inaccurate: Federal Rule of Evidence 702, not the Daubert holding, sets the admissibility standard.
* * *
Replacing “Daubert motion” with “Rule 702 motion” amounts to more than a simple word choice; it changes the focus of the discussion. Rule 702, not Daubert or any other case, should be the center of attention34
Hopefully, this new amendment will be more effective in enforcing Rule 702’s gatekeeping requirements than were the 2000 amendments to that rule.
- See, e.g., My Cousin Vinny, Automotive Expert, https://youtu.be/3nGQLQF1b6I.
- Advisory Comm. on Evid. Rules, Report of the Advisory Committee on Evidence Rules (May 15, 2022) at 6, Comm. on Rules of Practice & Procedure, Agenda for Committee Meeting 866 (June 7, 2022).
- 509 U.S. 579 (1993).
- See Fed. R. Evid. 702 advisory committee note to 2000 amendment (“[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a).”).
- Fed. R. Evid. 702 advisory committee note to 2023 amendment.
- See, e.g., Advisory Comm. on Evid. Rules, Agenda for Committee Meeting 60 (Apr. 30, 2021) (emphasis added).
- Fed. R. Evid. 702 advisory committee note to 2023 amendment.
- See, e.g., Price v. General Motors, LLC, No. CIV-17-156-R, 2018 WL 8333415, at *1 (W.D. Okla. Oct. 3, 2018) (“The Federal Rules encourage the admission of expert testimony and there is a presumption under the Rules that expert testimony is admissible.”) (quotations omitted); Powell v. Schindler Elevator Corp., No. 3:14cv579 (WIG), 2015 WL 7720460, at *2 (D. Conn. Nov. 30, 2015) (“The Second Circuit has made clear that Daubert contemplates liberal admissibility standards, and reinforces the idea that there should be a presumption of admissibility of evidence that there should be a presumption of admissibility of evidence.”).
- See, e.g., Wright v. Stern, 450 F. Supp. 2d 335, 359–60 (S.D.N.Y. 2006) (“Rejection of expert testimony, however, is still ‘the exception rather than the rule,’ Fed.R.Evid. 702 advisory committee’s note (2000 Amendments)[.] . . . Thus, in a close case the testimony should be allowed for the jury’s consideration.”) (quotation omitted).
- Sardis v. Overhead Door Corp., 10 F.4th 268, 283-84 (4th Cir. 2021).
- Id. at 275.
- Id. at 283-85 (emphasis added) (citations omitted).
- See Bishop v. Triumph Motorcycles (America) Ltd., No. 3:18-CV-186, 2021 WL 4316810, at *7 n.8 (N.D.W. Va. Sept. 22, 2021) aff’d, No. 21-2113, 2022 WL 17103710 (4th Cir. Nov. 22, 2022); Howard v. City of Durham, No. 05-MD-1720 (MKB), 2021 WL 5086379, at *15 (M.D.N.C. Nov. 2, 2021); White v. City of Greensboro, 586 F. Supp.3d 466, 477 (M.D.N.C. 2022).
- Bishop, 2021 WL 4316810, at *7 n.8.
- Id. at *8 (citing Advisory Comm. on Evid. Rules, Agenda for Committee Meeting 105, 107 (Apr. 30, 2021)).
- Howard v. City of Durham, 2021 WL 5086379, at *15. See also White v. City of Greensboro, 586 F.Supp. 3d 466, 477.
- See In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., No. 05-MD-1720 (MKB), 2022 WL 15053250, at *4 n.5 (E.D.N.Y. Oct. 26, 2022); In re Anderson v. United States, No. 15-21681, 2023 WL 2229355, at *3 (Bankr. W.D. Tenn. Jan. 19, 2023).
- In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., 2022 WL 15053250, at *4 n.5.
- In re Anderson, 2023 WL 2229355, at *3.
- Williams v. State Farm Fire & Casualty Company, 2023 WL 3296156, at *12 n.3 (S.D. Ala. May 5, 2023).
- Id. at *7 n.3.
- The author has read Richard Rosario’s excellent article in the Spring 2023 issue of the ADLA Journal concerning Alabama’s version of Rule 702. While the state rule differs from Federal Rule of Evidence 702, even in state court cases practitioners should focus the court on Alabama Rule of Evidence 702, as opposed to outdated federal precedents.
- Lawyers for Civil Justice, Why You Should Be Concerned About Employing the Correct Standard–and Name, https://www.dontsaydaubert.com/.
- Lee Mickus & Abigail Dodd, Stop Calling Them “Daubert Motions”: Federal Rule Of Evidence 702 And Why Words Matter, 221 Washington Legal Foundation, Critical Legal Issues Working Paper Series, 1, 15 (Aug. 2021).
Bruce Barze, Jr. is a founding partner of Barze Taylor Noles Lowther LLC in Birmingham. Bruce has a national litigation practice, and over the last thirty years he has acquired substantial experience in business, insurance, construction, and environmental litigation, as well as the defense of high-stakes personal injury and wrongful death cases. He has tried lawsuits to verdict in five states and litigated or managed matters in 20 states, territories, and Canada. He is a summa cum laude graduate of the University of Alabama School of Law and received his undergraduate degree from Vanderbilt University. Bruce is a longstanding member of the Standing Committee on the Alabama Rules of Evidence, and he served as ADLA’s President during 2007-08. Bruce can be reached at email@example.com.
Bruce would like to acknowledge the invaluable research and writing provided for this article by Elise Helton, a rising 3L student at the University of Alabama School of Law.