Rule
702. Testimony by Expert Witness
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:
(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 expert’s opinion reflects a reliable application of
the principles and methods to the facts of the case.
Clarification
on the Admissibility Standard
The
Committee Note[i] for Rule 702 indicates
that the amendments were necessary to clarify and emphasize that expert
testimony may not be admitted unless the proponent can demonstrate to the Court
that it is more likely than not that the proffered testimony meets the
admissibility requirements set forth in Rule 104 – the preponderance of the
evidence standard. Thus, admissibility of expert testimony must be established
by a preponderance of evidence.
It
was noted that many courts were following an incorrect application of Rules 702
and 104(a) finding that questions as to the sufficiency of an expert’s basis
and application of methodology were questions of weight and not admissibility. However,
the Committee clearly stated that the sufficiency of an expert’s basis and the
application of a methodology implicate questions of admissibility and not weight.
However,
once a court has found it more likely than not that the admissibility requirement
has been met, any attack on the expert opinion will only go to the weight of
the evidence and not the admissibility.
Clarification
to Rule 702(a)
Rule
702(a) always required that the expert’s scientific, technical, or other
specialized knowledge help the trier of fact understand the evidence or to
determine a fact in issue. While this
requirement was unchanged, the Committee clarified that this requirement should
be applied exactly as worded; the testimony need only “help” the trier of fact.
The Committee rejected the attempt to impose a higher bar, noting that some
courts applied an incorrect standard that required the expert’s testimony
“appreciably help” the trier of fact. The Committee noted that any standard
other than “helpfulness” is unnecessarily strict and was not the standard under
Rule 702(a).
Amendment
to Rule 702(d)
Rule
702(d) was amended to emphasize that an expert opinion must stay within the
bounds of what can be concluded from a “reliable application” of the expert’s
methodology. The Committee focused on the role of judicial gatekeeping to limit
an expert’s opinions to one that is based on a reliable application of the
methodology. The Committee noted the importance of “gatekeeping” because jurors
may lack the specialized knowledge to (1) meaningfully evaluate the reliability
of an expert’s methods utilized for an opinion and (2) determine if/when an
expert’s opinion goes beyond what the expert’s methodology may reliably
support.
The
amendment further recognized the court’s authority to pass judgment on the
conclusions that the expert has drawn from the methodology. The Committee’s
amendment is in line with the holding of General Electric Co. v. Joiner,
522 U.S. 136 (1997) that a trial court must not only consider the expert’s
methodology but must also consider the expert’s conclusion—so the methodology
must be reliably applied.
The
amendment does not impose any new procedures. Rather, the amendment clarifies
that Rule 104(a) preponderance of the evidence standard applies to expert
opinions under Rule 702. The court’s role is not to “nitpick” an expert’s
opinion to reach “a perfect expression” of what the expert’s methodology can
support. Rather, the amendment does not permit an expert to make claims that
are simply not supported by the expert’s methodology.
In
sum, expert testimony cannot be presumed admissible; rather the proponent
(attorney) must establish by a preponderance of the evidence that the expert’s
testimony—the methodology and principles—are reliable and the expert “reliably
applied” their methodology and principles to the case at issue.
[i] https://www.uscourts.gov/sites/default/files/2023_congressional_package_april_24_2023_0.pdf#=page210
[ii] See Kaneka Corp. v. Designs for Health, Inc., 2023 U.S.
Dist. LEXIS 131412, *6 (D. Del. 3/3/2023); In re Anderson, No. 15-21681,
2023 Bankr. LEXIS 153, at *3 (Bankr. W.D. Tenn. 1/19/2023); Qari v. Am. S.S.
Co., 2023 U.S. Dist. LEXIS 154447, *8 (E.D. Mich. 8/31/2023); Edge v.
SRA Mgmt., LLC, 2023 U.S. Dist. LEXIS 151277, *23 (E.D. Tenn. 8-28-2023).
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