“Here’s what to expect with [proposed] changes to the federal expert witness rule”

Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023).

Paul’s article explains the “two important amendments” to  Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote:

The pending[1] amended rule reflecting the changes:

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:

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

d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. [emphasis in original].

If adopted, the impact will be significant:

“Pursuant to the amendments, expert testimony and opinions are no longer presumed admissible. Judges — as gatekeepers — must determine admissibility of expert testimony as a preliminary question based on the sufficient facts or data…. Under the rule as amended, expert opinions must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is required to evaluate the reliability of scientific and other methods underlying expert opinions that jurors will consider.”

Id.

Paul explains that:

Nothing in the amendment imposes any new, specific procedures. The amendments are intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702. Similarly, nothing in the amendment requires the court to nitpick an expert’s opinion in order to reach a perfect expression of what the basis and methodology can support.

The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.

The proposed amendments are not without criticism. For example, numerous questions arise as to the future of Daubert hearings, but only time will tell.

In a passage that may have implications to expert testimony on ESI issues, the Advisory Committee wrote:

The amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. [emphasis added].

This may have implications to a search methodology that is, for example, quality controlled to a 95% certainty with a 3% margin of error, or to the use of richness metrics to justify search methodology.

Finally, Paul points out that: “At long last, Maryland Rule 2-402(g) was amended, effective Jan. 1, 2023. This amendment falls in line with its current federal counterpart and protects communications among another party’s attorney and expert witnesses. Also, draft expert reports are not discoverable.”  See also Proposed Changes to the Maryland Rules Regarding Discovery of Experts

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[1] The Judicial Conference transmitted proposed amendments to the Supreme Court on October 19, 2022, recommending adoption by the Court and transmittal to Congress.