Federal Rule of Evidence 702: Review of the proposed amendments

Session I - The proposed amendment to Federal Rule of Evidence 702 – Lee Mickus

The proposed amendment to Federal Rule of Evidence 702 has its roots in a fundamental misunderstanding held by many courts and litigants: that case law, and not the text of Rule 702 itself, establishes the gatekeeping standard for determining the admissibility of expert testimony. This confusion has resulted in repetition of several errors relating to how courts address challenges to expert testimony.

First, by looking first to the discussion set forth in cases rather than the requirements set forth in Rule 702, many courts have carried forward the pre-Daubert understanding enunciated in several Circuits that the sufficiency of an expert’s factual foundation is a matter of weight for the jury to determine and not an admissibility consideration for the court – even though Rule 702(b) says otherwise.

Next, by over-interpreting certain dicta statements within the Daubert opinion, some cases invented and many courts have perpetuated an outcome preference for admitting challenged expert opinions that cannot be reconciled with the applicable preponderance of the evidence burden of production. Also, courts have followed prior decisions that allow expert to state a degree of confidence in an opinion not justified by a reliable methodological application even though Rule 702(d) indicates that this issue should be a gatekeeping consideration. With simple changes to the text of Rule 702, the proposed amendment will clarify the admissibility standard courts must apply.

Key topics to be discussed:

• Discussion set forth in cases rather than the requirements set forth in Rule 702
• Over-interpreting certain dicta statements within the Daubert opinion
• Prior decisions that allow expert to state a degree of confidence in an opinion not justified by a reliable methodological application even though Rule 702(d) indicates that this issue should be a gatekeeping consideration

Session II - Pending Amendment to Federal Rule of Evidence 702 – Identified Flaws – Colin Miller

This program will focus upon the pending amendment to Federal Rule of Evidence 702. It will address the flaws identified with regard to the admission of expert testimony and they ways in which the amendments seek to address them.

Key topics to be discussed:

• Whether an expert's opinion needs to merely help or "appreciably help" the jury
• What standard of proof applies to Rule 702's reliability-based requirements
• Closed scrutiny of Rules 702(c) and 702(d)
• Sufficiency vs. weight considerations
• Expert overstatements

This course is co-sponsored with myLawCLE.

Date: October 25, 2022

Closed-captioning available