The Advisory Committee on Evidence Rules is considering possible amendments to Rule 702 in order to address standards for expert evidence in civil litigation as well as “overstatement” by experts in both civil and criminal cases. ILR and others in the defense community have been urging the Committee to focus on the need for clarity about courts’ “gatekeeping” role in evaluating the admissibility of expert testimony.
On November 9, ILR submitted comments to the Committee, which can be found in full below. There are two main points:
(1) The admission of expert evidence should not vary by jurisdiction. The 2000 Notes to Rule 702 make it clear that the questions of the admissibility of expert evidence should be decided by a preponderance of the available evidence; however, certain courts misinterpret this standard to inappropriately favor the admission of evidence.
(2) Class certification should equally be governed by the same standard, meaning only admissible evidence subject to the Federal Rules of Evidence, including Rule 702. Some courts have held that evidence submitted in support of class certification do not meet the admissibility requirements of Rule 702.
ILR recommends a minor amendment to Rule 702 and the Notes to any amendment to offer clarification on these two points.
The Advisory Committee on Evidence Rules will be meeting on November 13, when it is expected to vote on whether to proceed with an amendment to Rule 702.
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