Expert witnesses already feeling Rule 702 crackdown

Although they don’t officially go into effect until December 1, expert witnesses are already feeling the effects of the changes designed to strengthen Rule 702, which is the federal rule of evidence regarding testifying experts. Last year, we noted that the changes will result in more experts being excluded from testifying, and that is just what is happening—but earlier than we thought.

Early adoption: Courts have already been citing the pending changes when excluding expert testimony, points out a recent article by attorneys at the law firm Faegre Drinker Biddle & Reath. The article mentions several cases in different jurisdictions that have cited the pending changes, including one in which an appellate court reversed the district court’s decision to admit expert evidence.

Courts have a “gatekeeping” function under Daubert or similar standards to disqualify testifying experts who are not competent or who can’t offer helpful evidence. But the courts were not performing their gatekeeping function as rigorously as originally intended. The courts were going more to “weight than admissibility,” that is, just letting the experts testify and then the judge deciding on the weight to give that testimony or deferring that decision to the jury. The Rule 702 amendments “will not change the substance of the law as it was meant to be applied but that many courts have not been applying it correctly,” the article says.

This article was originally posted in the September 27 edition of the BVWire.