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Corporations Argue for Change to Federal Expert Testimony Rule

By Joseph Fawbush, Esq. on March 06, 2020 | Last updated on August 10, 2021

According to the general counsel of 50 of the nation's top corporations, federal courts are not sufficiently exercising their gatekeeping power under federal evidentiary rules to ensure that expert testimony “is the product of reliable principles and methods." Instead, they argue, federal courts are allowing juries to play a role, which “results in the admission of unreliable opinion testimony that misleads juries, undermines civil justice, and erodes our stakeholders' confidence in the courts."

This perceived lack of uniform standards and unreliability prompted general counsel at U.S. corporations frequently targeted in federal court to write a letter advocating for an amendment to federal rules of evidence. The letter was sent to the Committee on Rules of Practice and Procedure, which has considered amending when expert testimony is admissible since 2017. The Rules Committee next meets on May 8.

A Digression from Daubert?

Federal Rule of Evidence 702 governs expert witness testimony. The Rules Committee last amended Rule 702 in 2000, after the Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals outlined federal judges' gatekeeping duties. The 2000 amendment was intended to clarify the Daubert trilogy of cases and lead to a reliable expert admissibility standard. Under the current rule, trial judges are tasked with excluding unreliable expert testimony.

Lately, however, there have been calls for further amendments, and not just from corporations. A report from the President's Council of Advisors on Science and Technology in 2016, for example, highlighted a problem with forensic scientists overstating the reliability of forensic evidence used in criminal trials. This is what prompted the Rules Committee to contemplate amending Rule 702 in 2017 and question whether too many expert witnesses were overstating the certainty with which they were giving testimony.

Potential Amendments

In the 2000 amendment to Rule 702, the Rules Committee provided that “the rejection of expert testimony is the exception rather than the rule." Corporations argue that too many courts are mischaracterizing this amendment as a presumption of admissibility.

To correct these perceived mischaracterizations, the signatory corporations are advocating for three amendments. Namely, that:

  • The proponent of the expert's testimony bears the burden of establishing its admissibility
  • This burden requires demonstrating the sufficiency of the basis and reliability of the expert's methodology and its application
  • An expert shall not assert a degree of confidence in an opinion that is not itself derived from sufficient facts and reliable methods.

These proposed amendments are substantially similar to previous proposed amendments. For example, Lawyers for Civil Justice, a corporate defense counsel advocacy group, has been lobbying for these amendments for several years.

Corporations that signed the letter include AT&T, Google, Pfizer, and several other notable corporations in technology, medicine, and insurance.

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