There is a new Federal evidence rule change taking effect in two months, and tort practitioners will need to take notice now.

“1. 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 has demonstrated by a preponderance of the evidence 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.”

As of December 1, 2023, Federal Rule of Evidence 702 (“FRE 702”) – which governs whether you will be permitted to have your expert witness testify - will change. Here is the text of the new rule, with the changes highlighted:

If the above four elements of expert witness admissibility are not proved by a preponderance of evidence, then the proposed expert witness will be precluded.

At first blush these modifications seem innocuous, and experienced attorneys will wonder how the amendments change what has presumably been the expert admissibility standard in place since the 1993 Daubert case. The question is well-grounded.

The amendments to FRE 702 do not change the expert witness admissibility standard, so much as they instruct the trial Courts to utilize the proper standard. For example, the new text makes clear that, (a) it is the proponent of the expert witness (whether plaintiff or defendant) who has the burden of proving the four elements of expert admissibility, (b) it is the proponent of the expert witness who must prove all four elements by a preponderance of evidence, and (c) there is no ‘presumption’ for expert admissibility, or indeed for any of the four elements, to be given by the Courts. While these clarifications have always been the standard, Courts have been inconsistent in their application.

We see three major effects for tort practitioners who find themselves in Federal court, or in a jurisdiction that follows the Federal standard for expert witness admissibility.

First, both sides of the Bar will need to muster evidence – data, studies, surveys, peer-reviewed literature, textbooks – to prove all four elements under FRE 702. Given the not-so-subtle instruction to the trial Courts to look more closely at expert witness admissibility, practitioners will now have to pay much more attention to this than paid previously.

Second, the amendments to FRE 702 are an invitation to the Bar to make more preclusion motions (often termed Daubert motions). Closer judicial scrutiny of expert witness admissibility makes it obvious both sides will take advantage of such motions, and given the initial burden of proof at trial on plaintiffs generally the FRE 702 amendments are more likely to favor defendants.

Finally, there is now a whole host of case law applying a standard inconsistent with the new FRE 702. Drafting of motions and briefs must be done carefully to weed out that now non-relevant case law. By way of example, only one week ago the District Court for the Eastern District of New York decided a preclusion motion directed at several potential expert witnesses in an e-cigarette trademark infringement case. Fantasia Distrib., Inc. v. Cool Clouds Distrib., Inc., 2023 U.S. Dist. LEXIS 167641 While the Fantasia Court’s determinations under the old FRE 702 – mostly precluding the experts – may have been the same under the new FRE 702, the Court’s recitation of applicable case law and standards would not be the same. Here are some of the Fantasia Court’s recitations that the Bar should no longer see as of December 1:
"Qualification as an expert is viewed liberally …."
Fantasia Distrib., Inc. v. Cool Clouds Distrib., Inc., 2023 U.S. Dist. LEXIS 167641, *11

“The Second Circuit has cautioned, however, that courts ‘should only exclude [expert] evidence if the flaw [in the expert's reasoning or methodology] is large enough that the expert lacks good grounds for his or her conclusions.’"
Fantasia Distrib., Inc. v. Cool Clouds Distrib., Inc., 2023 U.S. Dist. LEXIS 167641, *13

“Although ‘the district court may . . . exclude opinion evidence where the court concludes that there is simply too great an analytical gap between the data and the opinion proffered . . . gaps or inconsistencies in the reasoning leading to the expert's opinion [generally] go to the weight of the evidence, not to its admissibility.’"
Fantasia Distrib., Inc. v. Cool Clouds Distrib., Inc., 2023 U.S. Dist. LEXIS 167641, *14

“In general, questions as to the usefulness of the expert testimony ‘should [] be resolved in favor of admissibility unless there are strong factors . . . favoring exclusion[.]’"
Fantasia Distrib., Inc. v. Cool Clouds Distrib., Inc., 2023 U.S. Dist. LEXIS 167641, *15