Defense Bar Seeks Changes to Expert Standard


by Shawn Meehan, Global Head of Legal Solutions at Guidepoint

Even before the pandemic, Corporate America faced sizable verdicts from big-ticket lawsuits. In response, Chief Legal Officers (CLOs) from nearly 50 companies (including AT&T, Ford, Google, Johnson & Johnson, and Pfizer) earlier this year sought to amend Rule 702 under the Federal Rules of Evidence, the key standard for the admissibility of expert witness testimony.


In a letter to the Administrative Office of the US Courts, these CLOs argued that courts have not consistently enforced their “gatekeeping” function, allowing the juries to decide for themselves whether an expert’s opinion has the requisite scientific support, without courts first ensuring that that expert’s opinion is the “product of reliable principles and methods, and is reliably applied.”


Furthermore, the CLOs argued that courts have not imposed the proper burden for the admissibility of expert testimony, creating a “presumption of admissibility” where none should be found. The proponent of the expert testimony should have the clear burden to establish the admissibility of that expert testimony, according to the CLOs.


In 2000, an amendment to Rule 702 codified the role of courts in determining the reliability of an expert’s methodology and the application of that methodology to the facts of a case. Its enactment followed a string of Supreme Court cases – Daubert, Joiner, and Kumho Tire – that tightened the standards for the admissibility of expert testimony.


This amendment has not had the intended results, and the scientific and legal communities continue to cite flaws in the admission and application of expert testimony. The National Academy of Sciences (the leading advisory group to Congress), the President’s Council of Advisors on Science and Technology (PCAST) (the leading advisory group to the President), and official advisors all have identified a lack of clarity about the reliability and application of forensic evidence. Legal commentators have gone even further, lamenting the admission of unreliable expert testimony of all types and arguing for corrective measures.


The Administrative Office of the US Courts is tentatively scheduled to hear public testimony on the letter and additional proposals related to the Federal Rules of Evidence in November. The hearing scheduled for May was canceled.


We believe that litigators should special take note of these developments, as any changes to Rule 702 would require a re-evaluation of sourcing and selection of expert witnesses. If formal guidance is issued, counsel must be prepared, at least, for more rigorous assessments of the reliability of their experts’ witnesses’ testimony. If a formal amendment is enacted, counsel will have to be prepared for even greater assessments of their experts and the scope of their testimony.


Rest assured. Whatever the outcome, Guidepoint Legal Solutions will help law firms quickly adapt to any new requirements or standards. As it stands, all experts we suggest are extensively vetted to verify their credentials and suitability.


Please note: This article contains the sole views and opinions of Shawn Meehan and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Shawn Meehan is prohibited.


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