Federal Evidence Rule 702 on Expert Testimony

Rule 702 of the Federal Rules of Evidence now incorporates the Daubert / Kumho / Joiner requirements.

Rule 702 now provides:

[A] witness qualified as an expert . . . may testify . . . in the form of an opinion or otherwise if

  1. the testimony is based upon sufficient facts or data,
  2. the testimony is the product of reliable principles and methods, and
  3. the witness has applied the principles and methods reliably to the facts of the case.

The Committee, after clarifying that expert testimony may arise in scientific and non-scientific areas, see Kumho, 119 S. Ct. at 1178, sought to provide general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony. The Committee, to explain the “reliability” requirements, added the three subparts at the end of the rule: (a) sufficient data, (b) reliable principles and methodology, and (c) reliable application of the methodology.

Rule 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinion or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Revised Rule 702 now requires than an opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist. To assist courts and litigants, the Federal Rules Committee identified five other inquiries (derived from court decisions) to be considered in performing the gate keeping function:

  1. whether the testimony concerns matters growing naturally and directly out of research the expert has conducted independent of the litigation;
  2. whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
  3. whether the expert has adequately accounted for obvious alternative explanations;
  4. whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; and
  5. whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure provides that a party must disclose to other parties the identity and opinions of each testifying expert. The expert must provide a written report to the opposing party. The Federal Rule states that

“the report shall contain:

  1. a complete statement of all opinions to be expressed and the basis and reasons for the opinion;
  2. the data or other information considered by the witness in forming the opinions;
  3. any exhibits to be used as a summary of or support for the opinions;
  4. the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years;
  5. the compensation to be paid for the study and testimony;
  6. a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”

Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure [Emphasis supplied].

Since Rule 26(a)(2)(B) requires that the expert witness’s report include a “complete statement” of “all opinions to be expressed” plus a “complete statement” of the “basis and reasons” for each opinion. The expert’s report must be reasonably comprehensive. The reach of this Federal Rule language is uncertain; it is left to the court to decide how much detail is required to be a “complete statement”.

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