Federal Judicial Conference Unanimously Approves Proposed Rule 702 Amendments
Daubert’s evolution passed a major milestone last week, one that should affect the admissibility of expert testimony in Maryland’s state and federal trial courts going forward. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved the proposed amendments to Federal Rule of Evidence 702. Of course, Maryland state courts follow Md. Rule 5-702. But the Court of Appeals of Maryland, in 2020, formally adopted the Daubert standard, which applies FRE 702, for construing Rule 5-702. Rochkind v. Stevenson, 471 Md. 1 (2020). This leaves no room to interpret the state rule for admitting expert testimony any differently than the federal rule.
If approved by Congress (after review by the Judicial Conference and U.S. Supreme Court), the amended Rule will become effective on December 1, 2023. It states:
Rule 702. Testimony by expert witnesses.
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:
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;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
the expert has reliably appliedthe expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The new clause requiring each of Rule 702’s four reliability factors to be “demonstrated by a preponderance of the evidence” is not a substantive change but rather a point of emphasis. It directly targets the recurring error of judges who construe challenges to the sufficiency of the expert’s facts or data or the reliability of the expert’s case-specific application of principles and methods as jury questions that merely “go to the weight of the evidence.” Under the rule, this has always been a threshold question for the judge to decide as gatekeeper. Except judges have too often approached their gatekeeping role with excessive leniency. (Of course, other judges could be far too strict as gatekeepers under Rule 702, but the rules committee has not identified this as a problem.)
Last year, the Fourth Circuit Court of Appeals handed down a precedential opinion applying the proposed revised text and emphasizing that trial judges must ensure that each element of Rule 702 is met by a preponderance of the evidence. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis opinion cautions trial judges that, under Daubert and Rule 702, they cannot delegate to jurors the judicial inquiry into whether Rule 702’s subsections (a) through (d) are all satisfied.
Going forward, challenges to an expert’s testimony should “go to the weight of the evidence” and not admissibility only after the trial judge has found that the testimony is probably “based on sufficient facts or data,” probably “the product of reliable principles and methods,” and probably “a reliable application of the principles and methods to the facts of the case.” Well-credentialed experts cannot bypass judicial scrutiny by merely characterizing their facts and data as sufficient and their methodology as reliable. The proponent of the expert testimony remains bound to show the trial judge that their testimony is likely to be reliable and helpful to the jury.