The committee that sets the rules for federal courts is expected to significantly toughen the standards judges must use to screen out bogus expert testimony, in a move that will make it harder for litigants to put shaky expert testimony before jurors and easier for defendants to get cases dismissed before trial.
The Advisory Committee of the Federal Rules of Evidence has proposed amendments to Rule 702 governing testimony by experts who are hired to explain complex technical issues to lay jurors. The amendments would clarify the “gatekeeper” role of judges and prohibit the looser standards some federal courts have applied, under which they leave it to the jury to decide whether an expert witness is credible.
The amendments don’t change Rule 702 as much as give judges less room to work around it, said Lee Mickus, a partner with Evans Frears & Schuttert in Denver who frequently represents clients facing litigation involving expert testimony.
"The amendments really reflect what courts should have been doing all along," Mickus said.
In one prominent recent example, U.S. District Judge Vince Chhabria allowed scientific evidence he admitted was “shaky” and which “barely inched over the line” into multidistrict litigation over Roundup weedkiller. After multiple courtroom losses based on that testimony, Bayer AG has entered into a multibillion-dollar settlement agreement over Roundup even though the U.S. Environmental Protection Agency prohibits the company from placing a warning on the product because the government doesn’t believe it causes cancer.
The proposed amendments instruct courts to use a “preponderance of the evidence” test before admitting expert testimony, meaning the judge must determine the expert relies upon sufficient facts and has reliably applied scientific methods to arrive at a conclusion. Judges will also be required to strike expert opinions that stray beyond the expert’s own methodology into speculation, such as stating they are “100% certain” when that is scientifically implausible.
In Roundup litigation, for example, judges have allowed medical experts to tell jurors they are certain plaintiffs contracted non-Hodgkin’s lymphoma from exposure to the weedkiller, even though the plaintiffs have multiple other risk factors, and the cause of the cancer is unknown in 75% of cases.
The U.S. Supreme Court attempted to clarify the requirements of Rule 702 in its landmark Daubert decision in 1993, instructing judges to fill a “gatekeeping role” to prevent jurors from being exposed to ill-supported or scientifically unproven evidence. Despite that ruling, several courts, including the Eighth and Ninth circuit courts of appeal, have maintained looser standards, sometimes predating Daubert. The Eighth Circuit, for example, says the factual basis for an expert opinion “goes to the credibility of the testimony, not the admissibility.”
That is precisely wrong, said Mickus, who filed an amicus brief with the 10th Circuit for Lawyers for Civil Justice, a defense organization, in a case involving BMW America. In the BMW case, the plaintiffs have appealed a trial judge’s rejection of expert testimony over a car jack that failed. The judge ruled the expert arrived at his conclusion about why the jack toppled without including basic facts such as the weight of the car or scientific methods that could be replicated by others.
The Standing Committee in charge of the federal rules of civil procedure is expected to approve the amendments, which have long been supported by defense lawyers. If the committee approves the changes, the U.S. Supreme Court will submit them to Congress to be codified in legislation.
One of the most significant effects of the amendments may be before a case ever gets to a jury, Mickus said. Without a Rule 702-qualified expert to testify on the key question of causation, the judge may dismiss the case on summary judgment. Expert testimony is especially important in intellectual property litigation, for establishing both infringement and damages, and in toxic-tort cases where experts are needed to establish the plaintiff's injuries were caused by the defendant's products.