Changes to Rule 702 Federal Rules of Evidence Now Complete

Changes to Rule 702 of the Federal Rules of Evidence as they relate to testimony by expert witnesses have been now adopted by the U.S. Supreme Court and will go into effect on Dec. 1, 2023. It remains to be seen whether these changes will make a material difference in the admissibility of expert witnesses' testimony in federal courts or whether they will simply be, as advertised, a clarification of what is already there without much of an impact.

In a current article,¹ Samantha Swartz and Howard Suskin, both of Jenner & Block in Chicago, discussed the changes. The Supreme Court approved the changes on April 24, 2023. It made modest changes to the amendments the federal judiciary’s Advisory Committee on Evidence Rules proposed. “These amendments concern the standard for admissibility and the application of an expert’s methodology.” The first amendment clarifies 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 Supreme Court changed the “more likely than not” wording from the proposed wording of “a preponderance of the evidence.”

Drew Soshnick, of Faegre Drinker Biddle & Reath LLP in Indianapolis, indicates that the preponderance of the evidence standard means in various opinions 'to tip the scales,' 'the greater weight of the evidence,' 'more likely than not,' etc. So by using one of the recognized definitions it seems unlikely to change the meaning of the rule but the application of the rule may be another story.

"So the first issue is admissibility. There are cases that I have seen recently that deal with that issue, but usually they have admitted the witness and leave the issue of admissibility to the cross examination. This change to the rule might cause some witnesses to be excluded that have not been in the past.

"The second amendment to part (d) of the section on expert witness testimony now requires that 'the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.' According to Swartz and Suskin, '[t]he amendments emphasize the judge’s role as gatekeeper of what expert testimony should be admitted for the trier of fact to consider.'

"The second amendment now clarifies that the expert not only must use a reliable methodology, but reliably applies it to the facts or data at issue. It remains to be seen whether the changes will result in a larger number of expert witnesses being excluded from testifying. As a quick example, what will happen to the acceptance by courts of Calculations of Value? Such acceptance has increased significantly in the past couple of years with many cases not even discussing the issues with using a Calculation of Value. As stated in the AICPA Valuation Standards, VS100, a 'calculation engagement does not include all of the procedures required for a valuation engagement.' So is a Calculation of Value a reliable methodology? I can make a good case that it is not. I will not be surprised to see calculations of value thrown out in many cases.

"As an expert witness, I would suggest that these 'clarifying' changes could result in more risk of being excluded from testifying. You should work closely with the attorney to insure that you meet the new requirements."