By Jamie Huffman Jones
Originally published in Arkansas Lawyer (Summer 2020)
Federal Rule of Evidence (FRE) 702 currently provides:
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: (a) 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; (b) the evidence is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
On October 19, 2019, the Chair of the Judicial Conference Advisory Committee for Evidence (the Committee), the Honorable Debra A. Livingston, addressed a panel of federal jurists convened to discuss the best practices of admitting expert testimony.2 “We’ve been wrestling with FRE 702 for some time now, addressing whether we should recommend to the Standing Committee of the Rules of Practice and Procedure to take up a possible amendment to the Rule,” she began. Specifically, she explained, the Committee is
looking now principally at the proposal to add a provision about overstatement of an expert’s conclusion to the Rule. The principal reason for our inquiry, the principal motivating factor when we took it up, was the special concern with forensic feature-comparison evidence. But members of the Standing Committee suggested that while we were engaged in this inquiry, we should take a look at Daubert too, as a whole, as it has been over twenty-five years since Daubert was decided, and this seemed like an opportune moment.3
A number of amendments have been suggested to the Committee.4 The purpose of this article is to educate regarding these possible amendments.5
The Enactment of the Federal Rules of Evidence
The United States Supreme Court (USSC) circulated drafts of the FRE in 1969, 1971, and 1972, catching the attention of Congress. Pursuant to the Rules Enabling Act, Congress blocked the implementation of the FRE pending Congressional study.6 On January 2, 1975, President Gerald Ford signed An Act to Establish Rules of Evidence for Certain Courts and Proceedings.7 Although statutory in nature, the USSC is given the authority to amend the FRE subject to Congressional disapproval. However, any modification to privileges requires affirmative approval by Congress.8 On December 11, 2011, a “restyled” FRE became effective.
The Gatekeeping Function of FRE 702
Litigation often involves specialized theories, which are not in the normal understanding of a lay person. Experts are therefore necessary to assist the jury. FRE 702 seeks to reduce the risk that a jury is given bad information: “for the very reason that an expert is needed (because lay jurors need assistance) the jury may well be unable to figure out whether the expert is providing real information or junk.”9 A form of FRE 702 was included in the 1975 implementation. In the 1990s, however, the USSC decided a trio of cases that set out standards for the admission of expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc.,10 Kumho Tire Co. v. Carmichael, 11 and General Electric Co. v. Joiner. 12
Following Daubert, the Circuits differed on how to interpret its requirements. The Committee noted:
Some courts approach Daubert as a rigorous exercise requiring the trial court to scrutinize in detail the expert’s basis, methods, and application. Other courts hold that Daubert requires only that the trial court assure itself that the expert’s opinion is something more than unfounded speculation.13
Ultimately, FRE 702 was amended in 2000 and affirmed the trial court’s role as gatekeeper.14 Professor Capra, Reporter for the Committee, has identified particular issues in applying the trilogy to FRE 702:
1. At times, Daubert is a “schizophrenic opinion” with an inconsistent message;
2. General Electric “emphasized that trial courts have significant discretion in the gatekeeper review,” but also that trial courts must be concerned about any gaps between methodology and conclusion; and
3. Kumho Tire extended the gatekeeper function to nonscientific testimony.15
Professor Capra concludes that “[t]he bottom line from the trilogy is that the trial court must ensure that the expert is using the same degree of intellectual rigor in reaching the in-court opinion as you would expect them to use in their job outside of court.”16 Professor Capra and Judge Livingston’s comments thus allude to the issues the Committee wrestles with today. Suggested amendments are discussed below.
The Gatekeeping Function
“The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted.”17 This is what is known as the gatekeeper function, to screen the testimony before it reaches the jury. Professor Capra has explained the procedure:
It is not the case that the judge can say, “I see the problems, but they go to the weight of the evidence. After a preponderance is found, then any slight defect in either of these facts becomes a question of weight. But not before.18
In the 20 years that have passed since the amendment, Judge Livingston has noted that “a fair number of courts have treated the Rule 702 reliability requirements of sufficient basis and reliable application as questions of weight and admissibility.”19
Professor Capra is blunter, stating “the fact remains that some courts are ignoring the requirements of Rule 702(b) and (d).”20 He concluded that the issue is that some courts “have a different, less stringent view of the gatekeeper function.”21 Professor Capra further suggested that “it may be possible to tweak the existing language in some way, and then write a Committee Note that strongly reaffirms the admissibility requirements in Rule 702 and criticizes the cases that treat these requirements as questions of weight rather than admissibility.”22 Such comments invited suggested amendments, citing to lack of circuit uniformity. Specifically, the proponents cite to opinions whereby particular flaws in the factual basis for the expert’s opinion or in the expert’s methodology are held to go to the weight or credibility the jury should give the testimony.23 Multidistrict Litigation Cases (MDLs) whereby a case can be won or lost based on how the circuit applies FRE 702 illustrate the issue.24 For example, in the Roundup MDL, the district court admitted that inter-circuit differences on how to apply FRE 702 “could matter in close cases” and that the Ninth Circuit’s approach “has resulted in slightly more room for deference to experts in close cases than might be appropriate in some other circuits.”25 Proponents argue that depending on the circuit, issues such as the reliability of “trending data,” opinions regarding general causation, and the role of drug studies might be admitted whereby the same testimony was excluded in another circuit.26
While initially the Committee was looking at this broad focus of the gatekeeping function, at the Committee’s symposium in 2018, “all of the judges [present] raised questions about amending Rule 702, suggesting that it was functioning properly in its current form.”27 The pushback likely narrowed the Committee’s focus. Following that symposium, Professor Capra stated, “[a]s to the weight/admissibility issue, the Committee has resolved that the text of the Rule should not be changed to address it, because Rule 702 already establishes that the reliability requirements are questions for the court, to be decided by a preponderance of the evidence.”28
A Focus on Regulating Expert Overstatement
Instead of the broader focus of the gatekeeping function, “[a]fter the symposium, the Committee determined that it would focus on the possibility of an amendment . . . that would limit ‘overstatement’ by expert witnesses.”29 An example it has given is “an expert stating an opinion as having a ‘zero error rate’ where that conclusion is not supportable by the methodology.”30 Specifically, the current amendment drafted by the Committee
would add the following to the list of admissibility requirements under FRE 702: “the expert does not claim a degree of confidence that is unsupported by a reliable application of the principle and methods.”31
There Is No Presumption of Admissibility
The Committee is further primed to amend regarding burden of proof. While FRE 702 is silent, FRE 104(a) places the burden on the proponent of the evidence (by a preponderance). However, courts have stated that the presumption is that expert testimony is admissible, arguably altering the burden of proof.32 Such decisions often cite to the Committee Notes stating “a review of the case law . . . shows that rejection of the expert testimony is the exception rather than the rule.”33 Amendment proponents argue that this statement is taken out of context, and that it was “simply an empirical observation” that before the 2000 Amendment, the courts did not regularly exclude.34
As a cure, amendment proponents have suggested:
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 of the testimony establishes by a preponderance of the evidence . . . .35
On October 25, 2019, the Committee conducted a miniconference with the judiciary on “Best Practices in Managing Daubert Questions.”36 The Committee stated that it was considering:
Two possible changes to Rule 702: 1) an amendment regulating overstatement of expert conclusions (directed toward, but not only toward, forensic experts); and 2) an amendment (or Committee Note) that the admissibility requirements set forth in the rule—most especially sufficiency of basis and reliability of applications—are matters that must be decided by the court by a preponderance of the evidence under Rule 104(a).37
It is anticipated that the comments from that conference will be discussed by the Committee.38 Generally it meets in April and October, with subcommittee meetings occurring in between. None have been posted since the October 2019 conference. Those interested should watch the process, and submit comments to any recommended amendment.
Twenty-five years after Daubert was rendered, the Advisory Committee now wrestles with whether FRE 702 is being applied as it was intended. Amendments designed to focus on regulating overstatement of expert conclusions and clarifying that the burden of proof is placed on the sponsor of the evidence by a preponderance of the evidence are anticipated.
1. This article concerns Federal Rule of Evidence 702, and not the separate Arkansas Rule of Evidence (“ARE”) 702. Like the Federal Rule, the case law interpreting ARE 702 does apply Daubert v. Merrrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Farm Bureau Mut. Ins. Co. of Ark. v. Foote, 341 Ark. 105, 116 (2000); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 262 (2003). Potential differences in application of the two rules are beyond the scope of this Article.
2. Conference on Best Practices for Managing Daubert Questions, 88 Fordham L. Rev. 1215, 1217 (2020) (part of The Philip D. Reed Lecture Series Advisory Committee on Evidence Rules).
4. All are from defense-oriented organizations or corporations, including Federation of Defense & Corporate Counsel, Thomas Sheehan, Washington Legal Foundation, 50 Companies, Altec, Inc., and Lawyers for Civil Justice. See also David E. Bernstein & Eric G. Lasker, Defending Daubert; It’s Time to Amend Federal Rule of Evidence 702, 57 Wm. & Mary L. Rev. 1, 48 (2015) (“Many courts continue to resist the judiciary’s proper gatekeeping rules, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.”).
5. The Advisory Committee for Evidence documents are all available through the Judiciary’s website: https://www.uscourts. gov/rules-policies/records-rules-committees (last visited July 19, 2020).
6. Kirsi Luther, Wading in Erie’s Murky Waters: A Federal Court’s Constitutional Duty to Deny Supplemental Jurisdiction When Faced With A Conflict of Privilege Law, 52 Tex. Tech. L. Rev. 561, 570 (Spring 2020).
7. Pub. L. 93-595, 88 Stat. 1926.
8. 28 U.S.C. § 2074.
9. Daniel Capra, Memorandum at 132, https://www.uscourts.gov/sites/default/ files/advisory_committee_on_rules_of_ evidence_-_final_draft_agenda_book.pdf (last visited July 19, 2020).
10. 509 U.S. 579 (1993).
11. 119 S. Ct. 1167 (1999).
12. 118 S. Ct. 512 (1997).
13. Report of the Advisory Committee on Evidence Rules (May 1, 1999) at 7, in Advisory Committee on Evidence Rules October 1999 Agenda Book 52 (1999), https://www.uscourts.gov/sites/default/files/ fr_import/EV1999-10.pdf (last visited July 20, 2020).
14. Advisory Committee Notes 2000.
15. Fordham Law Review supra note 2, 1218–1220.
17. Advisory Committee Note to 2000 Amendments.
18. Memorandum from Reporter Daniel J. Capra (April 1, 2018) at 43, Agenda Book April, 2018 meeting (emphasis in original), https://www.uscourts.gov/sites/default/files/ agenda_book_advisory_committee_on_ rules_of_evidence_-_final.pdf (last visited July 20, 2020).
19. Memorandum from Debra Ann Livingston, Chair, Advisory Committee Evidence Rules, to David G. Campbell, Chair Committee on Rules of Practice and Procedure (May 14, 2018), Agenda Book for June 12, 2018 Standing Committee meeting minutes, p. 21, https://www.uscourts.gov/ sites/default/files/2018-10-evidence-agendabook_0.pdf (last visited July 20, 2020).
20. Memorandum from Reporter Daniel J. Capra (April 1, 2018), Agenda Book for Advisory Committee on Rules of Evidence April, 2018 meeting, https://www.uscourts. gov/rules-policies/archives/agenda-books/ advisory-committee-rules-evidenceapril-2018 (last visited July 20, 2020).
21. Memorandum from Daniel J. Capra, Reporter, Advisory Committee on Evidence Rules, Forensic Evidence, Daubert and Rule
702 (April 1, 2018) at at 50.
22. Id. at 53.
23. See Puga v. RCX Sols, Inc., 922 F.3d 285, 294 (5th Cir. 2019) (“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”); Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (“The soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact, or where appropriate, on summary judgment.”); Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in crossexamination.”); United States v. Shea, 211 F.3d 658, 668 (1st Cir. 2000) (“[A]ny flaws in [the] application of an otherwise reliable methodology went to weight and credibility and not to admissibility.”).
24. Letter from Thomas Sheehan to Bebecca A. Womeldorf, Secretary, Committee on Practice and Procedure (June 9, 2020), https://www.uscourts.gov/sites/default/ files/20-ev-e_suggestion_from_thomas_ sheenan_-_rule_702_0.pdf (last visited July 20, 2020).
25. In re Roundup, 390 F. Supp. 3d 1102, 1109 (N.D. Cal. 2018).
26. See Sheehan Letter Suggestion supra, note 24, 19–21.
27. See October 25, 2019 Meeting of Advisory Committee Minutes, at 89, https://www.uscourts.gov/sites/default/ files/advisory_committee_on_rules_of_ evidence_-_final_draft_agenda_book.pdf (last visited August 3, 2020).
28. Id. at 131.
30. See October 2019 Meeting of Advisory Committee Minutes, supra note 27, p. 51.
31. Id. at 63 (emphasis added).
32. See e.g. Price v. General Motors, LLC, No. CIV-17-156-R (W.D. Okla. Oct. 3, 2018) (“[T]here is a presumption under the Rules that expert testimony is admissible.”) (quotation omitted); Crawford v. Franklin Credit Mgt. Corp., 08-CV-6293 (S.D.N.Y. Jan. 22, 2015) (“In assuming this role, the Court applies a presumption of admissibility.”).
33. 2000 Amendments. See, e.g., E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (citing to this language).
34. Washington Legal Foundation Suggestion, Gatekeeping Orientation, A Rule 702 Amendment Can Correct Judicial Misunderstandings About Expert Evidence at 15, https://www.uscourts.gov/sites/default/ files/20-ev-d_suggestion_from_washington_ legal_foundation_-_rule_702_0.pdf (last visited July 20, 2020).
35. Federation of Defense and Corporate Counsel Suggestion Letter, https://www. uscourts.gov/sites/default/files/20-ev-f_ suggestion_from_federation_of_defense_ and_corporate_counsel_-_rule_702.pdf (last visited August 3, 2020).
36. Fordham Law Review, supra note 2.
37. See October 2019 Meeting of Advisory Committee Minutes, supra note 27, p. 61. 38. Fordham Law Review, supra note 2 at 1217. n