The Committee on Rules of Practice and Procedure unanimously approved several amendments on June 7, 2022, to clarify Federal Rule of Evidence 702'the federal standard for admissibility of expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). The amendments (1) clarify that the proponent's burden for admissibility is a preponderance of the evidence, and (2) emphasize the court's duty, through trial, to ensure the expert's opinions/conclusions, not just methods, are reliable. These changes are in response to findings that federal courts too often fail to apply the preponderance standard and prevent experts from overstating their conclusions. Pending approval by the Judicial Conference, the Supreme Court and Congress, the amendments will take effect on December 1, 2023.
The Rule 702 Opening Statement Amendment
If amended, the below underlined language will be added to Rule 702's opening statement:
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 has demonstrated by a preponderance of the evidence that . . . .
In Daubert, the Court noted that under Rule 104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76 (1987), questions of admissibility, including expert testimony, should be established by a preponderance of proof. See Daubert, 509 U.S. at 592 n.10. But, in "a number of federal cases . . . judges did not apply the preponderance standard of admissibility to [Rule 702's] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that...
