05/12/2022 - A Federal Judicial Panel Has Acted on What They Call "Junk" Scientific Testimony at Trials.

A federal judicial panel has acted after corporate defense lawyers urged the federal judiciary to adopt a rule that would make it harder for expert witnesses to present what they call "junk" scientific testimony at trials. Plus in medical drug trials where injuries have occurred.

A federal judicial panel voted in what evidence can be presented at trial, namely to advance a proposed rule that corporate defense lawyers say would make it harder for expert witnesses to present what they call "junk" scientific testimony.

The Advisory Committee on Evidence Rules unanimously voted to send a slightly ammended copy of a proposed rule amendment opposed by the plaintiffs' bar to the judiciary's primary rulemaking panel for consideration for a June 7 hearing.The unanimous vote marked a victory for defense lawyers and business-oriented groups like Lawyers for Civil Justice who pushed for strengthening the standards of Rule 702 of the Federal Rules of Evidence, with expert testimony admissibility as the key feature.

"This is the third-rail of the evidence rules, this Rule 702," U.S. District Judge Patrick Schiltz, the panel's Minnesota-based chair, said at its Friday hearing in Washington, DC. "We've managed to improve it without any of us being electrified to death."
The defense bar has insisted the rule has been employed with inconsistency undercutting the so-called Daubert standard for expert testimony the U.S. Supreme Court set in a 1993 ruling by allowing unreliable trial testimony.

Following years of discussions, the panel in August published for a comment a proposal that would, among other things, say a party must prove by a "preponderance of evidence" that expert testimony is admissible, which it had not explicitly stated before.

Members of the plaintiffs' bar and its main lobbying group, the American Association for Justice, said the change would cause some judges to wrongly evaluate pre-trial which side's expert witnesses were correct, not just the admissibility of their testimony.
Many opponents of the change argued that only a jury can assess evidence on a "preponderance" standard. While panel members disagreed, as a concession, they changed the language to say "more likely than not" and to include in a note that it meant the same thing.

"'Preponderance' is supposed to be a way to say that in a less cumbersome way," U.S. Circuit Judge Richard Sullivan of the 2nd U.S. Circuit Court of Appeals said at Friday's hearing. "The suggestion only juries decide things by preponderance is preposterous."
The amendment now goes to the judiciary's Committee on Rules of Practice and Procedure, which at the June 7 hearing will decide whether to submit the rule to the Judicial Conference for the United States and then the U.S. Supreme Court.

If it goes through, the amendment would be introduced in December 2023, unless Congress takes action to disapprove it. We wait with bated breath.