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Fix and follow federal rule of evidence 702 

Many courts now fall short in their adherence the standards for the admission of opinion testimony in Federal Rule of Evidence 702. Too often, courts do not adequately exercise their “gatekeeping” obligation to ensure that expert testimony is the product of sufficient data and reliable methods. This practice deviates from Rule 702’s requirements and the allocation of responsibility between the judge and the jury for deciding preliminary questions under Rules 104(a) (the judge decides whether evidence is admissible) and 104(b) (the jury decides how much weight to give the evidence). The distinction between these tests as applied to expert testimony is often unclear in the caselaw. 

Confusion about the judicial role in assessing the 702 requirements results in the admission of unreliable opinion testimony that misleads juries, undermines civil justice, and erodes stakeholders’ confidence in the courts. A change to the rule is needed, and that’s why LCJ advocated for and supports adoption of the Rule 702 amendment that the federal Committee on Rules of Practice and Procedure recently voted unanimously to approve.


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Click above to learn why you should stop calling them Daubert motions and to learn more about Rule 702 Reforms.

LEARn more

Learn more by reading the below comments and related research on the topic:
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pRATT mAKES cASE fOR eXPERT eVIDENCE aDMISSIBILITY rULES

LCJ emeritus member Tim Pratt argues for adoption of the clarifying amendment on Rule 702 and similar state expert evidence rules in the current issue of Today’s General Counsel.   Pratt highlights the “alarming number of opinions from trial judges that have held that questions relating to the sources of the expert’s opinion affect the weight, not the admissibility of that testimony,” citing LCJ’s groundbreaking 2020 study of misapplication of Rule 702.  Pratt argues the amendment “warrants final approval by the U.S. Supreme Court,” and urges state court adoptions of similar expert admissibility rules to fix similar issues and to “provide important consistency between state and federal systems.”   Tim Pratt’s article can be found here.

COURT DECISIONS

United States Court of Appeals for the Second Circuit in RE: Mirena IUS Levongogestrel-Related Products Liability Litigation (No. II)

PRESS RELEASES

LCJ Applauds Unanimous Approval of Amendment to Rule 702 by the Committee on Rules of Practice and Procedure
​June 7, 2022

IN THE NEWS

Judicial committee adopts controversial change to expert witness rule, Reuters - June 8, 2022
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comments

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LCJ Letter in Support of Proposed Rule 702 Amendment

LCJ Submits Comment on Rule 702 Amendment to the Advisory Committee on Evidence Rules


A Note About the Note: Specific Rejection of Errant Case Law is Necessary for the Success of an Amendment Clarifying Rule 702's Admissibility Requirements - February 8, 2021

GlaxoSmithKline Services Unlimited RE: Comment on Potential Amendment to Federal Rule of Evidence 702 - October 12, 2020 

Tucker Ellis LLP RE: Amending Federal Rule of Evidence 702 - October 10, 2020

State Farm RE: Amending Federal Rule of Evidence 702 to Clarify Courts' "Gatekeeping" Obligation - October 9, 2020

Dechert LLP RE: Suggestion on Potential Amendment to Federal Rule of Evidence 702 - October 2, 2020

Bayer RE: Amending Federal Rule of Evidence 702 - September 30, 2020

Kuchler Polk Weiner RE: Proposed Amendments to Federal R. Evid. 702 Commentary - September 30, 2020

Ford Motor Company's Comments to the Advisory Committee on Evidence and its Rule 702 Subcommittee - September 26, 2020

Baker Wotring on Amending Federal Rule of Evidence - September 3, 2020

Amending Federal Rule of Evidence 702 - A Review of Gatekeeping Practices in Multidistrict Litigation 

​​“Gatekeeping Reorientation: Amend Rule 702 to Correct Judicial Misunderstanding About Expert Evidence” 

Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702

Lasker and Bernstein on Amending Federal Rule of Evidence 702 ​

IADC Comment on Possible Amendments to Rule 702. - July 31, 2020
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FDCC Comment on Potential Amendment to Federal Rule of Evidence 702 - June 30, 2020

Leading U.S. Corporate Chief Legal Officers Urge Amendments to Rules Governing Expert Evidence - March 2, 2020

​50 Companies Urging Expert Evidence Rule Reform - March 2, 2020

In Support of Amending Rule 702 To Address The Problem Of Insufficient Basis For Expert Testimony - October 10, 2018

Clearing Up The Confusion: The Need For A Rule 702 Amendment To Address The Problems Of Insufficient Basis And Overstatement - September 6, 2019

​RELeases

Leaders of 61 Companies Urge Adoption of Amendments to Rules Governing Expert Evidence
LCJ Analysis Reveals Federal Courts Are Applying Incorrect Standards In Decisions On Admission of Expert Testimony

​LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702
Amendment to Federal Rule of Evidence 702 Advances Following Key Civil Rules Committee Vote​

Research and reports

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  • About Us
    • Who We Are >
      • Corporate Members
      • Law Firm Members
      • Defense Bar Organization Members
      • Board of Directors
      • Staff
    • LCJ Civil Justice Fellows Program
    • LCJ Annual Report
    • JOIN LCJ
    • Contact LCJ
  • Our Initiatives
    • Fix and Follow Federal Rule of Evidence 702
    • MODERNIZE PRIVILEGE LOG REQUIREMENTS
    • Protect the Right to Seal Proprietary and Confidential Information
    • Rules for MDLs
    • Disclose Third Party Litigation Funding
    • "Requester Pays" Discovery
    • Preserve Judicial Independence
    • Amend Rule 23(b)(3)
  • Amicus Briefs
  • LCJ In the News
  • Membership Meetings & Resources
    • LCJ May 2023 Meeting
    • December 2022 meeting and photo gallery
    • LCJ CALENDAR
    • Member Login
    • MEMBERSHIP MEETINGS