Good news for those wanting clarity on the federal courts’ rule on admitting expert testimony in civil trials. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure gave its unanimous approval to amend the Federal Rule of Evidence 702. The amendment outlines that expert testimony can only be admitted into a case if a judge determines the testimony is “more likely than not” based on sufficient facts.

The U.S. Judicial Conference is the next stop for the amendment. After that, the amendment goes to the U.S. Supreme Court and Congress for final approval. If it passes through both final steps, the amendment will take effect in December 2023.

Expert testimony plays an important role in civil litigation. A decision on whether expert testimony can be admitted into a trial can either lead to a dismissal or a multimillion-dollar settlement. The U.S. Supreme Court has weighed in on the issue with a series of rulings, including the 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, which requires judges to serve as “gatekeepers” for expert testimony. Rule 702 was amended after Daubert to reflect its line of cases and clarify and strengthen the standard.

Some state courts slowly transitioned to the Daubert standard, amended their rules of evidence to match Rule 702, or both. Others haven’t, which has resulted in the admission of “shaky” expert testimony, bringing immense pressure on defendant companies to settle, even if they feel they have a strong case.

The amendment to Rule 702 now reads:

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:

1. 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;
2. the testimony is based on sufficient facts or data;
3. the testimony is the product of reliable principles and methods; and
4. the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

ILR’s 2021 research, Fact or Fiction: Ensuring the Integrity of Expert Testimony, outlined the state of expert evidence standards around the country, explored key issues and concerns supporting a universal adoption of Daubert and further amendment of Rule 702, and offered recommendations for promoting these changes. The amendment reflects ILR’s research and the comments filed by ILR and Lawyers for Civil Justice (LCJ) at the end of last year.  

In the letter, ILR and LCJ highlighted two main points:  

1. That the admission of expert evidence should not vary by jurisdiction; and  

2. That evidence used in class certification proceedings should also be governed by the standard laid out in Rule 702. 

This amendment will help clearly define the courts’ role in evaluating the admissibility of expert testimony and oblige courts to prioritize their responsibility in gatekeeping. We hope the Judicial Conference will approve the amendment and bring a much-needed update to Rule 702.   

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