Gleason IP News & Updates

Recent Changes to the Federal Rules of Evidence Governing the Admissibility of Expert Testimony

Effective December 1, 2023, the Federal Rules of Evidence relating to the admissibility of expert testimony were amended.

The Federal Advisory Committee on Evidence Rules (the “Committee”) indicated that Rule 702 (Testimony by Expert Witness) was amended in order to 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 admissibility requirements.

The changes to Rule 702 are shown below (additions are underlined and deletions are indicated with strikethrough text):

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

The change to subpoint (d) indicates that expert opinions should stay within the bounds of what can be concluded from a reliable application of the methodology applied.  In addition, the reliability of the expert testimony is supposed to be judged based on admissibility, not weight.  The Committee indicated that there is no presumption of admissibility for expert testimony despite past court decisions.  Furthermore, the Committee indicated that the court has an affirmative responsibility to determine reliability and use the gatekeeping function to keep out unreliable testimony or risk having admissibility being overturned on appeal.

The revised Rule 702 provides a broader basis for courts to potentially exclude expert testimony since it is based on the expert’s opinion and conclusions, not only the methodology.

Overall, these changes clarify the judge’s role as a gatekeeper for expert testimony and emphasize that it is the court’s (not the jury’s) affirmative responsibility to determine whether the expert’s testimony is more likely than not reliable in terms of both methodology and conclusions.

Sources: Amendments to the Federal Rules of Evidence, Communication from The Chief Justice, The Supreme Court of the United States and AICPA & CIMA Recent Changes to the Federal Rules of Evidence Governing the Admissibility of Expert Testimony, January 11, 2024