Consistent with its mission of advocating for sound science in judicial and regulatory proceedings, the Atlantic Legal Foundation long has been one of the nation’s foremost advocates for strict adherence to the expert testimony admissibility standards imposed by Federal Rule of Evidence 702. One of Rule 702’s precepts is that federal judges must act as “gatekeepers” by refusing to allow juries to be exposed to or influenced by junk science or other types of unreliable scientific or medical testimony. Unfortunately, too many judges have failed to exercise their gatekeeper role—a crucial responsibility which can be traced back to the “Daubert trilogy” of Supreme Court cases, in which ALF not only participated as amicus curiae, but also was quoted by the Court.
In August 2021 the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed amendments to Rule 702 in order to reinforce federal judges’ expert testimony gatekeeper role. The Committee Note explains that the proposed amendments “clarify and emphasize that the admissibility requirements set forth in the rule must be established to the court by a preponderance of the evidence,” and that many courts “have failed to apply correctly the reliability requirements” of Rule 702 by holding “that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not of admissibility” (emphasis added).
Many organizations, including ALF, have submitted comments on the proposed amendments. ALF’s comments, available here, support the proposed amendments. ALF’s comments emphasize that when a federal district judge fails to act as an expert testimony gatekeeper by allowing juries to hear junk science or other unreliable testimony, defendants are deprived of a fair trial and due process. ALF Executive Committee member Joe Hollingsworth, and two of his colleagues, Eric Lasker and Elyse Shimada, at Hollingsworth LLP, assisted with preparation of ALF’s comments.
Consideration of the proposed amendments is a somewhat long process that hopefully will culminate in approval by the Supreme Court.
