Proposed Amendment To Federal Rules of Evidence Would Return Judicial Gatekeepers To the Gatehouse

Advocating for reliance on sound science in judicial and regulatory proceedings long has been one of the Atlantic Legal Foundation’s key mission areas.  In fact, we filed amicus briefs in each of the cases constituting the “Daubert trilogy” of Supreme Court decisions concerning the standards for admissibility of expert testimony under Federal Rule of Evidence 702—Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).  In Daubert, the Court even quoted the Foundation’s brief on the meaning of “scientific . . . knowledge” as used in Rule 702.  See Daubert, 509 U.S. at 590 (“Indeed, scientists do not assert that they know what is immutably `true’ — they are committed to searching for new, temporary theories to explain, as best they can, phenomena.”).

During the ensuing two decades, numerous federal district courts, and also trial courts in the many states that have adopted counterparts to Rule 702, have struggled—often inconsistently—with how to apply the expert witness “gatekeeper” role that the Daubert trilogy called upon trial court judges to fulfill in order to prevent jury confusion and bias and thereby facilitate due process of law. Indeed, a number of plaintiff-friendly trial courts routinely have shirked their gatekeeper responsibility, for example, the notorious City of St. Louis circuit court in talc-related mass product liability litigation. See ALF Urges Supreme Court To Review Junk Science “Talc” Litigation.      

But help appears to be on the way.  The Advisory Committee on Evidence Rules of the Judicial Conference of the United States is actively considering an amendment to Rule 702 that would make it even more explicit that the expert witness gatekeeper role inherent in Rule 702 resides with trial judges, not with the juries that trial judges are supposed to shield from junk science. More specifically, the proposed amendments, if adopted, would expressly require that the admissibility of expert testimony under the criteria set forth in Rule 702 be demonstrated by a “preponderance of evidence,” and also that the reliability of the principles and methods upon which an expert bases his or her opinion reflect “a reliable application of the principles and methods to the facts of the case.” The purpose of these amendments is to supersede cases holding that Rule 702’s requirements are questions of weight for juries to decide, rather than questions of admissibility for trial judges to determine.  Although juries can properly weigh competing expert opinions that are reliable, e.g., based on sound scientific principles and methods, a juror’s role is not to weigh expert testimony that is unreliable. In other words, the whole point of Rule 702, especially in light of the Daubert trilogy, is to ensure that trial judges keep unreliable expert testimony away from juries by ruling it inadmissible.

Atlantic Legal Foundation will be monitoring the progress of these Rule 702 amendments. We plan to take advantage of the public comment opportunities that the Advisory Committee will provide in the coming months by supporting the amendments.

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