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Avoiding Expert Overstatement And FRE 702 (i.e., one person’s junk science is not another’s treasure)

While the adage that one person’s junk is another’s treasure may apply to items found in a junk shop, it has no place on a witness stand and that is what the amendments to Rule 702 of the Federal Rules of Evidence target. FRE 702 is not being amended because it was a bad rule or because of advances in medicine, science or technology. The Committee on Rules of Practice and Procedure observed that the amendments are “designed to address the problem of overstatement by experts” because “overstatements are often admitted by courts” misapplying or otherwise fumbling the analysis and leaving the jury to figure out both how to pick up the ball and which end zone to choose on an uneven playing field.

The Committee concluded that emphasizing “the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule.” Committee Report at 892-893. The Committee observed that many courts simply buy the argument of the proponent of the expert and conclude that the challenge to expert’s opinion goes to the weight not the admissibility leaving it to the jury to wrestle with testimony that should have been excluded.

An amended FRE 702 will require the Court to decide whether it is more likely than not that “the expert’s conclusion is properly derived from the basis and methodology that the expert has employed.”

Requiring the trial judge to do the heavy lifting will not supplant the role of the jury under FRE 104. Once “the court finds it more likely than not that an expert has a sufficient basis to support an opinion, the fact that the expert has not read every single study that exists may raise a question of weight and not admissibility.”

Proposed FRE 702 reads as follows:

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

The Committee issued its Report and Proposed Rule on June 7, 2022 and the proposal is on its way to the Judicial Conference and then to the Supreme Court. Barring any interference from Congress, a new FRE 702 should take effect in December 2023 and, at long last, the playing field may be closer to being level and cleared of all the junk science. The Committee Report can be found here.

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About the author Michael A. Walsh Shareholder, Dallas, TX

Mike devotes much of his practice to counseling clients in regulated industry on issues related to manufacturing, labeling, compliance and transportation. He has extensive experience defending clients in complex administrative law and litigation matters, and has served as national coordinating counsel, regional trial counsel and as local Texas counsel in environmental and toxic tort litigation. Mike has practiced in Dallas since 1994. Prior to 1994, he practiced in New York City as a trial lawyer handling a broad range of matters including securities, commercial, real estate, intellectual property, pharmaceutical, toxic tort and environmental contamination matters. He is the author of the law book, The Supply and Distribution of FDA Regulated Products published by Thompson Reuters. Mike is a frequent writer and speaker on issues related to compliance and litigation for regulated industry and is regularly published on issues concerning toxic exposure, compliance and marketing. Mike is the founder of a daylong educational program designed for lawyers and senior industry executives in industry regulated by the federal Food and Drug Administration.

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