ILR’s recently released report, 101 Ways: A User’s Guide to Promoting Fair and Effective Civil Justice, features numerous ways state legislators can bring balance and fairness to their state’s lawsuit system. This blog post is part of a series highlighting some of the reforms from the guide and will focus on how courts can support the integrity of expert testimony. Expert testimony can have a major impact on litigation, and judges have an important role to play in determining who is an expert witness.
The 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals changed how federal judges should handle expert testimony, requiring judges to serve as “gatekeepers” for expert testimony. In 2000, Federal Rule of Evidence 702 codified the standard into law. In 2022, an amendment to the Federal Rule of Evidence 702 was proposed to further clarify that courts—not juries—are responsible for determining the admissibility of expert opinion testimony.
Clear, uniform standards in courts are important so all parties involved in litigation know they are following the rules. Currently, not all state courts follow the federal Rule 702 standard, which has resulted in the admission of “shaky” expert testimony—bringing immense pressure on companies to settle, even if they feel they have a strong case. It also means that a case that was dismissed for using unsupported science in one state court could still have a shot of making it through the court system in a different state.
In 101 Ways, ILR recommends several reforms state courts can enact that would ensure that testimony is reliable and fits the facts of the case, including:
- Amend state rules for admission of expert testimony to be consistent with Federal Rule of Evidence 702;
- Provide that the state’s standard for admission of expert testimony is to be interpreted consistently with Rule 702, including the “gatekeeping” function;
- Require courts to hold a pretrial hearing on an expert’s proposed testimony upon motion of a party; and
- Mandate pretrial disclosure of expert testimony.
As noted in ILR’s 2021 research paper, Fact or Fiction: Ensuring the Integrity of Expert Testimony, expert testimony plays a vital role in civil litigation and a judge’s decision on whether expert testimony can be admitted in a trial can lead to a dismissal or a multimillion-dollar settlement. In short, judges’ decision-making when it comes to expert testimony is critical for safeguarding the integrity of the litigation process which is why state courts must establish a clear standard for the admission of experts. If all state courts were to adapt their rules for admission of expert testimony based on the suggestions in 101 Ways, it would allow for both plaintiffs and defendants to have a clear across-the-board standard to follow.