We want to point out the cogent Comments by Lawyers for Civil Justice to the Advisory Committee on Evidence Rules in response to the Request for Comments on the Committee’s proposed amendment to Federal Rule of Evidence 702. Readers may know that LCJ is a national coalition of corporations, law firms, and defense trial lawyer organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and inexpensive determination of civil cases. For over 30 years, LCJ has been closely engaged in reforming federal procedural rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and burdens associated with litigation; and (3) advance predictability and efficiency in litigation.

Many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility, but these rulings are an incorrect application of Rules 702 and 104(a).  The misunderstanding that underlies these rulings persists because Rule 702 clearly assumes, but does not explicitly state, that the court should apply Rule 104(a)’s preponderance standard to the question of whether proffered evidence is admissible before allowing the jury to determine what weight to give that evidence. The caselaw is replete with decisions based on this misunderstanding which in turn result in courts’ failure to exercise their “gatekeeping” responsibility. The Proposed Amendment, which would clarify that the proponent of expert opinion testimony must demonstrate the admissibility requirements “by a preponderance of the evidence,” is a much-needed and appropriate solution for this serious and widespread confusion.

Worth a read. LCJ Public Comment on Rule 702 Amendment Sept 1 2021.