06/08/2022 - Judicial Committee Reinforces Existing Requirement in 'Change to Expert Witness Rule'

On Tuesday, a federal judicial committee on rules of court practice voted to advance an amendment to the federal rule on expert witnesses that has raised criticism from opposition from the plaintiffs' bar.

With full backing, The Committee on Rules of Practice and Procedure passed the amendment allowing it to go to the Judicial Conference of the United States and then to the U.S. Supreme Court. If the amendment gleans those approvals and Congress does not intervene, it will take effect December 2023.

The mooted amendment to Rule 702 of the Federal Rules of Evidence states that expert witness testimony can only be admitted if a judge determines that the testimony is "more likely than not" based on sufficient facts and reliable methods.

However, U.S. District Judge Patrick Schiltz of Minnesota, who chairs an advisory committee on rules of evidence and supported the amendment, before the vote said, "This does not change the law at all, It simply makes it clearer."

The District Judge said that many federal judges had incorrectly interpreted the existing rule to mean evidence could be admitted if a jury could find it trustworthy, rather than determining if it was reliable themselves as the rule requires.

Professor Daniel Capra of the Fordham University School of Law, who is also part of the advisory committee on evidence went further. He said: "There are people who are benefiting from the misapplication of the law and they are fighting to maintain the misapplication,"

Lawyers for Civil Justice, who have long argued that the existing rule led to judges admitting unreliable "junk" scientific testimony. Members of the plaintiffs' bar and its main lobbying group, the American Association for Justice, have claimed the change would cause some judges to incorrectly evaluate pre-trial which side's expert witnesses were correct, not just the admissibility of their testimony.