Federal Rule of Evidence 702: Review of the proposed amendments

Lee Mickus
Lee Mickus
Evans Fears & Schuttert LLP

Lee Mickus is a partner in the Denver office of Evans Fears & Schuttert LLP. He defends manufacturers and other business interests nationally in product liability and tort lawsuits

Colin Miller
Colin Miller
University of South Carolina School of Law

Colin Miller is a professor of law at the University of South Carolina School of Law. He is also the Blog Editor of EvidenceProf Blog, which focuses on developments in Evidence law.

On-Demand: October 25, 2022

Federal Rule of Evidence 702: Review of the proposed amendments

$245.00 2.5 hour CLE

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Program Summary

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

Speakers

Lee-Mickus_Evans-Fears-&-Schuttert-LLP_FedBarLee Mickus | Evans Fears & Schuttert LLP

Lee Mickus is a partner in the Denver office of Evans Fears & Schuttert LLP. He defends manufacturers and other business interests nationally in product liability and tort lawsuits. He has successfully tried cases to juries in Colorado, Texas, California, New York, Florida, Montana, Puerto Rico and several other states.

Lee draws upon his courtroom experience to develop reforms to end abusive practices and bring common sense to the litigation process. He has presented to the Advisory Committee on the Federal Rules of Civil Procedure and testified before several state legislatures on bills affecting a wide range of civil justice issues. He also has submitted numerous amicus briefs on behalf of business interests and civil justice groups in cases that threaten to expand liability unreasonably.

He is also Co-Chair of the Lawyers for Civil Justice Rule 702 committee supporting the proposed Rule 702 amendment, and in that capacity has written articles, given presentations to judges and lawyers, provided comments and submissions, and testified to the Advisory Committee on Evidence about the need for the amendment.

 

Colin-Miller,-Professor-of-Law-&-Thomas-H.-Pope-Professorship-in-Trial-Advocacy_School-of-Law_FedBarColin Miller | University of South Carolina School of Law School of Law

Colin Miller is a professor of law at the University of South Carolina School of Law. He is also the Blog Editor of EvidenceProf Blog, which focuses on developments in Evidence law. Professor Miller is also the host of the Undisclosed Podcast, which has played a role in thirteen exonerations.

Agenda

Session I – The proposed amendment to Federal Rule of Evidence 702 | 12:20pm – 2:00pm

  • Discussion set forth in cases rather than the requirements set forth in Rule 702 | 12:20pm – 12:50pm
  • Over-interpreting certain dicta statements within the Daubert opinion | 12:50pm – 1:20pm

Break | 1:20pm – 1:30pm

  • 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 | 1:30pm – 2:00pm

Session II – Pending Amendment to Federal Rule of Evidence 702 – Identified Flaws | 2:00pm – 3:10pm

  • Whether an expert’s opinion needs to merely help or “appreciably help” the jury | 2:00pm – 2:15pm
  • What standard of proof applies to Rule 702’s reliability-based requirements | 2:15pm – 2:30pm

Break | 2:30pm – 2:40pm

  • Closed scrutiny of Rules 702(c) and 702(d) | 2:40pm – 2:50pm
  • Sufficiency vs. weight considerations | 2:50pm – 3:00pm
  • Expert overstatements | 3:00pm – 3:10pm