Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.