Upcoming Changes to Federal Rules for Experts

Admissibility of Expert Witness Testimony and Reliability of Methodology

On April 24, 2023, the Supreme Court of the United States approved two amendments to Rule 702. The language of these amendments was modified slightly from the language of the proposed amendments approved by federal judiciary’s Advisory Committee on Evidence Rules. This article discusses the amendments and how the changes will impact the admissibility of expert witness testimony.

On December 01, 2023, new amendments to Rule 702 of the Federal Rules of Evidence will go into effect that will impact the admissibility of expert testimony. These amendments concern the standard for admissibility and the application of an expert’s methodology. The first amendment seeks to clarify that a proponent of expert testimony must demonstrate to the court that it is more likely than not that the evidence would be admissible. The second amendment requires that a court find that the expert’s opinion reflects a reliable application of the expert’s methodology to the facts of the case. These amendments are intended to clarify the existing rules rather than make substantive changes to the law surrounding expert testimony. However, anyone serving as an expert witness should be aware of the changes because, in practice, they could impact whether a court admits an expert’s opinion and conclusions.

Amendments to Rules 702

On April 24, 2023, the Supreme Court of the United States approved two amendments to Rule 702.[1] The language of these amendments was modified slightly from the language of the proposed amendments approved by federal judiciary’s Advisory Committee on Evidence Rules. The revised Rule 702 amendments are as follows, with the additions in bold italics and the deletions struck through.

Rule 702: Testimony by Expert Witnesses

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 has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.[2]

The new language is intended to clarify rather than substantively change Rule 702. The advisory committee found that courts were incorrectly presuming that expert testimony was admissible and that two of the requirements in Rule 702—that an expert rely on sufficient facts or data and has reliably applied a reliable methodology—went to weight, not admissibility.[3] The amendments emphasize the judge’s role as gatekeeper of what expert testimony should be admitted for the trier of fact to consider.

In a minor change from the proposed rule, the Supreme Court approved the language “more likely than not” as opposed to referring to the standard as “by a preponderance of the evidence”.[4] This change in phrasing does not impact the overall meaning of the amendment or its application to expert testimony.

Impact of the Amendments

Although the amendments are not intended to substantively change Rule 702, they were adopted to address courts’ inconsistent application of the rule. The standard to admit expert testimony under Rule 702 has always been by a preponderance of the evidence, but some federal courts used more lenient standards and held that critical questions went to weight, not admissibility. The amendment removes any question about what standard federal courts must apply and clarifies any prior misconceptions.

The first amendment does not preclude testimony from experts with opposing opinions. As often occurs, experts may come to different conclusions based on a contested set of facts. A court can find that both opinions are admissible under the preponderance standard, and it will be up to the jury to weigh the opinions. Proponents of expert opinions do not need to establish by a preponderance of the evidence that the expert’s assessments are correct, only that the opinions are reliable.

The amendment to part (d) emphasizes that an expert must not only use a reliable methodology, but the methodology must be reliably applied to the facts or data at issue. This requires the court to exercise its gatekeeping authority with respect to the expert’s ultimate opinion and empowers the court to pass judgment on the expert’s conclusions. The court must find that the expert’s opinion reflects a reliable application of the methodology, because jurors may lack the specialized knowledge to appropriately determine if the expert’s conclusions go beyond the limitations of what the expert’s basis and methodology can reliably support.

While the amendments do not require an expert’s opinion to be perfect or for the court to nitpick the opinion, they are intended to emphasize the court’s role as a gatekeeper when determining admissibility of expert testimony before allowing the jury to weigh the evidence. Counsel and expert witnesses should be aware of these changes and expect that courts will more closely examine the reliability of an expert’s application of their methodology than courts may have done in the past. Both counsel and the expert should be prepared to address questions about the expert’s methodology and how it was applied to the facts or data before the expert’s testimony is deemed admissible.

This article updates The Value Examiner article published in the May/June 2022 issue.

[1] Supreme Court of the United States, Amendments to the Federal Rules of Evidence, 1 (Apr. 24, 2023).

[2] Ibid. at 7.

[3] Summary of Proposed New and Amended Federal Rules of Procedure, Honorable John D. Bates, Committee on Rules of Practice and Procedure Chair, 228–231 (Oct. 19, 2022), https://www.uscourts.gov/sites/default/files/2022_scotus_package_0.pdf

[4] Committee on Rules of Practice and Procedure, Judicial Conference of the United States PRELIMINARY DRAFT: Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Federal Rules of Evidence, 308–09 (August 2021).

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Samantha N. Swartz is an Associate in the Chicago office of Jenner & Block LLP, where she concentrates in civil litigation and internal investigations with a financial or accounting aspect.

Ms. Swartz can be contacted at (312) 840-7349 or by e-mail to sswartz@jenner.com.

Howard S. Suskin is a Partner in Jenner & Block’s Chicago office and co-chair of the firm’s Securities Litigation and Class Action Practices.

Mr. Suskin can be contacted at (312) 222-9350 or by e-mail to hsuskin@jenner.com.