Behrens and Trask: 2023 Amendments to the Federal Rule of Evidence 702
In December 2023, the Federal Rule of Evidence 702 was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proposed testimony meets all of the rule's admissibility requirements. Shook Public Policy Practice Group Co-Chair Mark Behrens and Senior Counsel Andrew Trask co-authored an article in the Texas A&M Law Review on the amendments.
In “Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence,” Behrens and Trask discuss the history of the rule, how courts continued to allow more lenient standards for expert testimony, and outline the recent amendments. With the amendments in place, they call on the courts to act as gatekeepers, noting the courts must perform a Rule 702 analysis before admitting expert opinion over objection.
“A court ‘cannot simply invoke the language of the Rule and then admit a proposed expert’s testimony without finding by a preponderance of the evidence that the testimony meets all the Rule’s requirements,’” they said. “Just as important, ‘a judge’s gatekeeping role is a continuing one.’ Thus, if an expert who is permitted to testify overstates an opinion at trial, the court is under an obligation to strike the testimony.”
Drug & Device Law Blog called the article “both brilliant and useful,” noting it “should find a place on the desks and in the hearts of defense lawyers looking to ward off plaintiff expert junk science.”
“The authors are two heroes of the defense bar ... what they have written will well serve defendants who need to draft motions under amended Fed. R. Evidence 702 urging courts to bar unreliable expert opinions at the threshold,” the blog said.
