Proposed FRE Amendments May Affect Your Expert Witnesses

Proposed amendments to the Federal Rules of Evidence (FRE), expected to take effect in late 2023, may affect the admissibility of expert testimony. The proposed amendments to FRE Rule 702 have been approved by the Judicial Conference of the United States. Assuming they’re approved by the U.S. Supreme Court and Congress doesn’t intervene, they’ll take effect on December 1, 2023.

2 key changes

Proposed changes to Rule 702 are shown below, with additions in bold and deletions struck through:

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:

• 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,
• The testimony is based on sufficient facts or data,
• The testimony is the product of reliable principles and methods, and
• The expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The first change is intended to address conflicting interpretations of Rule 702 among the federal courts. Some have incorrectly concluded that expert testimony is presumed to be admissible. They also view the rule’s requirements that the expert rely on sufficient facts or data and apply reliable principles and methods as questions of weight rather than admissibility. By adding the “preponderance of the evidence” standard, the proposed amendments clarify that whether expert testimony meets the reliability requirements is a question of admissibility for the court.

The second change clarifies that the court must determine not only that the expert has reliably applied the principles and methods to the facts of the case, but also that the expert’s ultimate opinion flows from such application. In other words, the court is empowered to prevent experts from overstating their opinions or exceeding the bounds of what can reasonably be concluded from a reliable application of their principles and methods.

Impact of the amendments

The proposed amendments aren’t intended to make substantive changes to Rule 702. Instead, they’re designed to clarify existing rules regarding the admissibility of expert testimony and address conflicting interpretations of the rule. Practically speaking, however, by emphasizing the courts’ gatekeeping role, the changes may make it more difficult to admit expert testimony in certain cases.