Here’s what to expect with changes to the federal expert witness rule

In a classical Greek drama, when the hero is in grave straits, an immortal comes to save the day. The God is lowered to the stage from above by a machine — hence the term “deus ex machina”(God from the machine). While trial lawyers today do not have the deus ex machina, we have the next best thing — the expert witness, who can save the day not by force of arms but by rendering a lethal opinion.

The importance of the expert requires thorough appreciation of the rules governing expert testimony and keeping abreast of rule changes.

In December 2023, two important amendments to Federal Rule of Evidence 702 are expected to take effect.

FRE 702 as it exists today:

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:

1. 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;
2. b) the testimony is based on sufficient facts or data;
3. c) the testimony is the product of reliable principles and methods; and
4. d) the expert has reliably applied the principles and methods to the facts of the case.

The pending amended rule reflecting the changes:

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:

1. 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;
2. b) the testimony is based on sufficient facts or data;
3. c) the testimony is the product of reliable principles and methods; and

the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

According to the Rules Committee and Commentors, the purpose of the amendments is to obtain uniformity in the application of the rule across the federal circuits. (See Hon. John D. Bates, “Summary of Proposed New and Amended Federal Rules of Procedure, Comm. On Rules of Practice and Procedure,” Oct. 19, 2022, at 217, 227.

Pursuant to the amendments, expert testimony and opinions are no longer presumed admissible. Judges — as gatekeepers — must determine admissibility of expert testimony as a preliminary question based on the sufficient facts or data.

The amendments, according to the Rules Committee, are intended to:

1) Clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in rule FRE 104(a) (The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible….); and

2) Emphasize that the judge is the gatekeeper to assure that the evidence, which may constitute preliminary factual findings under Rule 104(a), is subject to the preponderance-of-the-evidence standard.

Under the rule as amended, expert opinions must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is required to evaluate the reliability of scientific and other methods underlying expert opinions that jurors will consider.

The amendments pertain to testimony of forensic experts (dealing with scientific or technical issues) in both criminal and civil cases. In deciding whether to admit forensic expert testimony, the judge should, if possible, receive an estimate of the known or potential rate of error of the methodology employed, based on studies that reflect how often the method produces accurate results.

The amendments do not, however, bar testimony that comport with substantive law requiring opinions to a particular degree of certainty.

Nothing in the amendment imposes any new, specific procedures. The amendments are intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702. Similarly, nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support.

The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.

The proposed amendments are not without criticism. For example, numerous questions arise as to the future of Daubert hearings, but only time will tell.

At long last, Maryland Rule 2-402(g) was amended, effective Jan. 1, 2023. This amendment falls in line with its current federal counterpart and protects communications among another party’s attorney and expert witnesses. Also, draft expert reports are not discoverable.

Paul Mark Sandler, trial attorney and author, can be reached at [email protected]