Update on the changes to FRE Rule 702
By Robert H. Alexander, CPA/ABV/CFF, ASA
Shareholder, Alexander CPA LLC
Court Approves Amended Language
The Supreme Court adopted the amendment to Rule 702 on April 24, 2023, with only a minor change to the proposed wording. The wording change is incorporated in the text below. This adoption means the new rule will go into effect on December 1, 2023, unless Congress enacts legislation that modifies or rejects the changes.
Courts are Already Using the Amended Language
Changes have already begun in the courts. Sardis v. Overhead Door Corp. was tried in Federal Court in Virginia in a wrongful death action. The plaintiff had two experts, and the defense filed Daubert motions before trial on both experts and cited the amended language of FRE 702. The court ruled against both motions. After the jury returned a $5 million verdict for the plaintiff, the defense again renewed its motions but again was rebuffed.
Overhead Door appealed to the Fourth Circuit Court of Appeals. The Fourth Circuit panel overruled the trial court and had some harsh words for that court:
…[T]he only probative evidence supporting the Estate’s claims came from two expert witnesses, neither of whom offered relevant or reliable opinions. Nonetheless, the 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. Based on that testimony, the jury awarded the Estate a multi-million-dollar verdict.
That verdict results from the district court’s abuse of discretion in admitting the Estate’s expert testimony. Without it, the Estate offered insufficient admissible evidence as a matter of law to prevail on any of the four claims submitted to the jury. We, therefore, reverse the judgment in this case and remand with instructions that judgment be entered in favor of ODC as to each of the Estate’s claims.[1]
It is important to remember that the chair of the Advisory Committee on Evidence Rules (“Advisory Committee”) stated, “This does not change the law at all. It simply makes it clearer.”[2] This is because the Committee Notes accompanying the last amendment in 2000 discussed the court’s role of gatekeeper as more robust than many courts now apply it. The first paragraph of the Committee Notes state:
[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the applicable admissibility requirements are met by a preponderance of the evidence.[3]
Several district courts have already used the Sardis citation to the amendment as a basis for determining their approach to gatekeeping.
The court in Bishop v. Triumph Motorcycles (America) Ltd.[4] noted that Rule 702’s amendment was prompted by the courts’ frequent inability to acknowledge that all of the reliability components outlined in Rule 702 establish admissibility criteria that the courts must determine. Other courts have also cited the Sardis case in stating that the courts must apply all of the components of Rule 702 when determining the admissibility of expert testimony. See White v. City of Greensboro[5], Howard v. City of Durham[6], and In re Anderson[7].
Considering the decisions made by these courts, many have noted that it is time for both litigants and judges to adopt and employ the guidance provided by the Advisory Committee in the forthcoming amendment. Misunderstandings regarding its requirements necessitated the amendment to Rule 702, and it is not too soon to adopt the revised language when implementing the court’s gatekeeping responsibilities.
The New Rule 702
As a reminder, the change to FRE Rule 702 is made to the lead paragraph of Rule 702 and section (d). The amended Rule 702 will read as follows (the new language is in red, and the language to be omitted is stricken through):
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 demonstrations to the court that it is more likely than not 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 applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Barring unexpected action by Congress, the new rules become effective December 1, 2023.
[1] Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).
[2] Pierson, Brendan. “Judicial Committee Adopts Controversial Change to Expert Witness Rule.” Reuters, 7 June 2022, www.reuters.com/legal/government/judicial-committee-adopts-controversial-change-expert-witness-rule-2022-06-07/.
[3] Cornell Law School. “Rule 702. Testimony by Expert Witnesses, Committee Notes on Rules—2000 Amendment.” Legal Information Institute, 2011, www.law.cornell.edu/rules/fre/rule_702.
[4] No 3:18-CV-186, 2021 WL 4316810, at *7 n. 8 (N.D.W.Va. Sept. 22, 2021)
[5] 586 F. Supp. 3d 466, 478 (M.D.N.C. 2022).
[6] No 1:17cv477, 2021 WL 5086379, at *15 (M.D.N.C. Nov. 2, 2021).
[7] No 15-21681, 2023 Bankr. LEXIS 153, at *7-*9 (Bankr. W.D. Tenn. Jan. 19, 2023)