Say Goodbye to ‘Daubert Motion’, Hello to New Rule 702 (1)

April 4, 2022

An ASA College of Fellows “Recommended Read” courtesy of Roger Grabowski, FASA.

Changes to reinforce Federal Rule of Evidence 702 are likely coming by the end of next year.

Last year, the Advisory Committee on Evidence Rules unanimously approved a proposal to amend Rule 702. The comment period for the amendment to the federal evidence rule on expert testimony closed last month, and all signs indicate that these necessary changes, which would clearly establish the standard for admissibility of this testimony, will be approved by the Supreme Court soon and take effect Dec. 1, 2023.

The timing is right for these changes. Federal court litigation often involves scientific, technical, or other specialized theories, and experts are necessary to assist the jury. A litigant offers expert opinions under Rule 702, and the trial court should act as the gatekeeper of all expert testimony. But recent analyses demonstrate that courts are routinely abandoning this role and passing the responsibility on to the jury.

Two new changes to the text of Rule 702 seek to fix the problem. The changes will confirm what’s been true all along: the proponent of the expert testimony must show admissibility by a preponderance of the evidence, and the expert’s opinion must be reliable in light of the facts and applicable principles or methodology.

The changes amend Rule 702 so that its requirements can no longer be ignored and bring focus to the text of the rule. Judges will need to embrace Rule 702—and the role of gatekeeper.

Learn more about this topic by Elizabeth Bernard, published in Bloomberg Law.

Read the complete article here.

Disclaimer: The views, opinions or examples included in linked article are those of the author and do not necessarily reflect an official policy or position of ASA or its members.