Thought Leadership

Expert testimony is the tool that enables litigators to elucidate concepts that require scientific, technical or specialized knowledge. However, a proponent cannot introduce expert testimony without demonstrating under F.R.E. 702 that the expert’s opinion is relevant and that the principles and methods utilized by the expert are reliable. Rule 702, which was last amended in 2000 in order to resolve debate that arose following the Daubert decision, has been revamped once again.

Effective TODAY December 1, 2023, F.R.E. 702 reads as follows:

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.¹  

The 2023 amendment aims to enhance the reliability and relevance of expert testimony. According to the Committee, this was done in an effort to clarify and emphasize that (1) expert testimony may not be admitted unless the proponent demonstrates that it is more likely than not (preponderance of the evidence standard) that the proffered testimony meets the admissibility requirements, and (2) the expert testimony must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Id. at 891–96.

These changes emphasize the importance of the expert's methodology and its direct relevance to the specific case being tried. Under 702(d), a proponent of expert testimony must exhibit that the testimony is not only based on reliable principles and methods but, also, that the expert reliably applied those principles and methods to the facts of the case at hand. This means that courts will now be expected to scrutinize an expert's qualifications, as well as the process through which that expert arrived at their conclusions. 

Additionally, the added language seeks to accentuate the requirement that a proponent of expert testimony has the burden of satisfying, under a preponderance standard, the reliability requirement contained in the rule. It should be stressed however that the amendment does not impose any new procedures, but only clarifies that F.R.E. 104(a) is applicable under Rule 702. Such clarification was necessitated by courts incorrectly holding that the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight rather than admissibility. In that vein, the Committee emphasized that “judicial gatekeeping is essential” because jurors may lack the ability to (a) evaluate the reliability of an experts’ opinions and (b) determine whether the conclusions go beyond what the basis and methodology may reliably support.

While this amendment may appear minor, it represents a commendable effort to create uniformity among the federal courts in regard to the admissibility of expert testimony. Moreover, it seeks to build on the Daubert analysis and further enhance the reliability of expert testimony. While the amendment will not substantively change Rule 702, it should nonetheless cause notable change in the way some federal courts analyze admissibility. Attorneys should begin to incorporate the new language into their practice and take note when citing prior precedent that may be rendered less persuasive. Most importantly, attorneys must now ensure that their expert is able to articulate why their opinion reflects a reliable and relevant application of the principles and methods utilized.

[1] Comm. on Rules of Prac. of Proc., Agenda, 891 (June 7, 2022) (new language has been underlined; language to be deleted has been lined through).

^{Legal Update for Insurance Services, December 1, 2023, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.}