Products liability and mass tort cases are well-known to be “battles of the experts.” Each side puts forward their best and brightest experts, and the jury makes the call. That’s how the American civil justice system works. For now. But this system is in danger of coming to an end if recently proposed amendments to Federal Rule of Evidence 702 are put into place. The time to stop these changes is now.
All attorneys and law firms which represent real people in personal injury and wrongful death cases should file comments opposing the rule. Those comments are due by the end of business on February 16, 2022. Those wishing to submit comments can do so through this link: https://www.regulations.gov/commenton/USC-RULES-EV-2021-0005-0001
This post will outline the key points of concerns we have and will be relaying to the Committee.
Background and the proposed rule changes.
First, some context. Federal Rule 702 was amended back in 2000 to reflect the sea change brought about by Daubert and its progeny. Those cases held that the trial court must act as a “gatekeeper”—but only by ensuring the reliability of the expert’s methodology. Daubert itself recognized the concern that judges may go too far and act as jurors. This is why the Court cautioned that, when conducting a Daubert inquiry, the “focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
So, when FRE 702 was amended in 2000, the language reflected the considerations that should guide the court in determining the reliability of the expert’s methodology. The amendments that are currently proposed seek to change the focus from the reliability of the expert’s methodology to the conclusions the experts reached through the methodology. The major changes are:
- Requiring that the judge determine whether the “expert’s opinion reflects a reliable application” of methodology, rather than focusing on the soundness of the methodology. In other words, the change would require the court to assess the actual opinion itself rather than the expert’s scientific process.
- Requiring that the judge to make a factual finding that the expert’s opinion is supported by a “preponderance of the evidence.” This change would effectively dictate that the judge step into the shoes of the factfinder—a job which is presently occupied by the jury.
- Amending the Committee Note to emphasize the role of the judge, rather than the jury, in assessing expert witness testimony.
Why all lawyers (plaintiff AND defense) should oppose the amendments.
The proposed changes are both unnecessary and harmful. Here’s why.
1.The proposed changes endanger the constitutional right to a trial by jury.
The U.S. Constitution protects the right to trial by jury in the 7th Amendment. Our founding fathers were crystal clear that this right was vital. In 1774, John Adams proclaimed: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”
Products liability, mass tort, and other complex cases usually turn on expert testimony. Without an expert’s opinion on the technical aspects, the plaintiff typically cannot prove their case. So, striking that opinion means that the court can enter summary judgment and prevent the plaintiff from ever having their day in court. In this way, the proposed rule changes would carve an end-run around the 7th Amendment by substituting the judge’s assessment of expert testimony in place of the jury’s assessment. If you believe in the Constitution and our system of government, changes like these are an afront to what our founding fathers created.
2. The changes are contrary to the case law because they focus on the opinions rather than the methodology.
We strongly believe that no amendment at all is needed. Daubert and its progeny have become entrenched throughout the federal judiciary. Judges are acting as gatekeepers. And they are doing so with regard to the scientific methodology and principles. That was always the intent of Daubert: to ensure a scientific opinion was being offered, rather than sheer speculation. The court’s agreement or disagreement with that opinion was never supposed to be part of the equation. Choosing between competing scientific opinions is the factfinder’s job.
Yet the proposed changes explicitly require the court to assess the expert’s opinion, rather than focusing on the methodology by which the conclusion was reached. The amendments will encourage judges to step into the jury’s shoes and ultimately decide whether they find an expert’s opinion believable. This is the inevitable result of shifting the emphasis of the rule from the methodology to the opinion itself.
To the extent any change is made to the rules, we would advocate that the change reflect the need to ensure there is a reasonable connection between the conclusion and the underlying methodology. But the focus of the inquiry should always be on the reliability of the method, and not whether the court agrees or disagrees with the expert’s conclusion. The expert’s opinion should be admitted so long as the methodology is
 Salvatore, Court Rules Committee Moves to Stiffen Expert Standard, Law360 (June 23, 2021) (available at https://www.law360.com/articles/1396864/court-rules-committee-moves-to-stiffen-expert-standard).
reliable. Any other standard would unconstitutionally strip the credibility and weight determinations away from the jury.
3.The Committee Note adds confusing new language that is contrary to the law.
The Committee Note only exacerbates the concerns stated above by doubling down on the focus towards the substantive opinion rather than the methodology. For instance, the note provides:
Rule 702(d) has also been amended to emphasize that a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert. A testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also be unable to assess the conclusions of an expert that go beyond what the expert’s basis and methodology may reliably support.
This language is confusing and directly antithetical to Daubert’s focus on the methodology rather than the conclusion. How exactly is a trial court to ascertain “the bounds of what can be concluded by a reliable application of the expert’s basis and methodology”? Since when did a judge who knows nothing about the viscosity of industrial lubricants become better suited to determine whether an expert’s testimony about that subject is reliable versus a juror who knows nothing about the viscosity of industrial lubricants? Point being, Daubert is clear that judges are gatekeepers to keep out unreliable methodology. Judges are not supposed to weigh the information in the opinion and determine whether the expert’s conclusions are reliable. That is the job for a good cross-examination and a jury.
Moreover, it is unclear where this language originated. A search of all federal cases across Westlaw for this phrase turns up zero hits.
To the extent there is a concern that courts are straying from the Daubert standard, they should be redirected to the pertinent language of the relevant opinions. Interposing new legal standards via committee notes will only add further confusion for litigants and the courts.
4. The changes would increase vexatious motion practice on already overburdened courts.
It’s no secret that Covid has caused severe delays and disruptions throughout our legal system. The last thing we need right now is further vexatious motion practice. But that’s the exact thing we can expect with a rule change like this one. Adopting these amendments will unleash the flood gates to launch challenges on every expert in a case.
5. The changes will have unintended effects on state court litigation.
States around the country have apparently found FRE 702, as drafted, to be a suitable rule. For instance, Florida recently adopted Daubert, its construing case law, and FRE 702 as part of their state evidence codes. The proposed amendments now seek to radically change the standard that states like Florida have recently begun to follow. As such, changing the federal rule will have a whipsaw effect for states like Florida. It will also subject state courts to vexatious motion practice—and as rough as the pandemic has been for federal courts, the situation is even more dire for many state courts.
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For all of these reasons, we believe that any change to FRE 702 is unnecessary and likely to cause more problems than it resolves. We strongly encourage anyone who has a practice that employs expert witnesses to make their voices heard and oppose the proposed amendment!