The Advisory Committee on Civil Rules ("the Committee") of the Federal Judicial Conference, recently approved two important amendments to Rule 702 of the Federal Rules of Evidence concerning expert witness testimony. The first proposed amendment seeks to clarify and emphasize that existing law requires the proponent of the expert to establish all of the admissibility requirements of Rule 702 by a preponderance of evidence. The second proposed amendment to Rule 702(d) is intended to remind courts that in exercising their gatekeeping role, they must ensure that the expert's opinion reflects a "reliable application" of the principles and methods to the facts of the case. The public comment period for the proposed amendments remains open until Feb. 16, 2022, and are, therefore, subject to change. If enacted as proposed, the role of the trial judge as gatekeeper to determine the admissibility of expert testimony should be crystal clear.

History of Rule 702

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the U.S. Supreme Court held that Rule 702, and not the "general acceptance" standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), governed the admissibility of expert testimony in federal court. At that time, Rule 702 provided: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."