Amendment Effective on the Horizon: A Clarified FRE 702

On December 1, 2023, amendments to Federal Rule of Evidence (FRE)  702 will go into effect. As this date approaches, Tressler thought this would be a good time for a brief discussion on what to expect from the change.

In May of 2022, the Advisory Committee on Evidence Rules (“Committee”) approved proposed amendments to Federal Rule of Evidence 702. The amendments to FRE 702 read as follows, with the new language bolded and underlined and the omitted language lined through:

Rule 702. Testimony by Expert Witnesses

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:

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 testimony 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 expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. 

Of note, the amendment clarifies that the proponent of the expert’s testimony bears a burden to meet a “preponderance of the evidence” standard. What is interesting is how the Committee arrived at the language in the amendment. Clearly, the current iteration of FRE 702 does not expressly outline a preponderance standard. However, the Committee indicated that the “more likely than not” language in the amendment is “substantively identical to ‘preponderance of the evidence.’” The Committee did not believe that the term “preponderance of the evidence” would limit courts to considering only admissible evidence, it did explain its reasoning for opting for the phrase “more likely than not.” “More likely than not” avoids any reference to “evidence” and thus addresses the concern that the term “evidence” means only admissible evidence.[1] As the proponent of the evidence is tasked with demonstrating to the court that the opinion satisfies the four prongs of FRE 702, the court does not have to rely only on admissible evidence. The amended language and emphasizing the preponderance standard was necessary as the Committee concluded that courts have failed to correctly apply the reliability requirements of Rule 702.[2] This clarity should better equip attorneys to develop case strategy and theories that hinge on expert testimony.

The amendment to 702(d) emphasizes that the expert’s opinion must be derived from a reliable application of the expert’s methodology. The Committee indicated in no uncertain terms that when it comes to making preliminary determinations about admissibility, the judge “is and always has been” a factfinder.[3] The Committee sought to promote uniform decision making among the federal courts regarding the admissibility of expert witness testimony and clarify federal judges’ obligations to act as the gatekeeper in determining the admissibility of expert witness testimony. As such, the amendment to 702(d) directs the courts to focus on the expert’s opinion and whether it is not only a product of reliable principles and methods, but that it reflects a reliable application of these principles and methods to the facts of the case. This amendment emphasizes that each expert opinion stays within the bounds of what can be concluded from a reliable application of the expert’s methodology.[4]

The takeaway here should be that the amendments to FRE 702 clarifies, but does not substantively change, how courts should apply it in determining the admissibility of expert testimony and their opinions. With the added clarity, the federal courts should align in their application of FRE 702 and consistently apply the appropriate scrutiny to expert opinions. Attorneys and experts must be able to demonstrate to the court that the opinion meets the explicitly articulated admissibility standards and that the opinion was developed from a reliable application of the expert’s principles and methods.

For more information about this article, contact Ryan L. Nolte at rnolte@tresslerllp.com.

About the Author

Ryan is an associate attorney and a member of the General Defense and Litigation Practice Group. He handles a wide range of complex civil litigation matters spanning across several practice areas including insurance, commercial and business. Ryan approaches litigation with an eye toward results; understanding that advancing his clients’ legal strategies should fit within their overall business interests. Ryan has experience in all phases of litigation, including drafting pleadings, discovery, taking depositions, arguing dispositive motions and trial.