Federal Rule of Evidence 702 governs admissibility of expert witness testimony in federal courts. In April 2023, the Supreme Court ordered that Rule 702 be amended in two respects. First, it was amended "to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule." Advisory Committee Notes to 2023 Amendment to Fed. R. Evid. 702. Second, it was amended "to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." Id.
To effectuate these dual goals, the language of Rule 702 was revised as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
The committee notes were explicit that the amendments were not intended to change the law but merely to clarify the correct Rule 702 analysis that courts should have—but unfortunately often had not—applied all along. Advisory Committee Notes to 2023 Amendment to Fed. R. Evid. 702.
So now, a year later, what has the clarification done? The short answer is that the practical effect of these amendments has been subtle. See McCoy v. Depuy Orthapedics, Inc., No. 22-CV-2075 JLS, 2024 WL 1705952, at *9 (S.D. Cal. Apr. 19, 2024) ("Rule 702's 2023 amendments do not represent the sea change Defendants contend."). With that said, a review of Rule 702 cases from the past year reveals a noteworthy change in at least two areas: admission of testimony from non-scientific industry experts and the related admission of expert testimony on "toolmarks," i.e., what tools made a particular mark, which is often an aspect of forensic analysis. In sum, courts are setting a slightly higher bar for the admission of such testimony than had applied before, and this is in keeping with the Advisory Committee's note that the 2023 amendment "is especially pertinent to the testimony of forensic experts in both criminal and civil cases." Advisory Committee Notes to 2023 Amendment to Fed. R. Evid. 702. Below are several examples of cases excluding evidence under Rule 702 in reliance on the 2023 amendments:
Non-Scientific Industry Experts:
In Skaggs v. Ferrellgas, Inc., 2023 WL 8711898 (S.D. Ind. Dec. 18, 2023), an expert prepared a report with several opinions on propane dispensers "based upon his '45 plus years of experience within the safety and health profession.'" Id. at *3. The Court excluded that report because, "[i]mportantly, Rule 702(d) has been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology" and "[a]n expert who is addressing non-scientific issues must still employ reliable methods and principles in forming their opinions, and [this expert] has not done so." Id.
Similarly, in Farmers Ins. Co. v. DNS Auto Glass Shop LLC, 2024 WL 1256042 (D. Ariz. Mar. 25, 2024), the defendants sought to have an expert testify to certain "prevailing competitive price ranges for windshield replacement service components," such as glass and labor. Id. at *10. After explicitly calling out the 2023 amendments to Rule 702, the court held that because the expert offered only his "general experience in the industry, coupled with vague references to conversations he's had over years" to support his opinions—in other words, nothing more than his own ipse dixit—the defendants had "not shown by a preponderance of the evidence that [the expert's] opinion me[t] the requirements of Rule 702." Id.
In United States v. Diaz, No. 24-CR-0032 MV, 2024 WL 758395, (D.N.M. Feb. 23, 2024), the court relied on the new Rule 702 amendments to prohibit law enforcement officers from providing expert testimony based on their industry experience that a certain "amount of cocaine ... exceeds personal use and is instead consistent with distribution," about "the value of the cocaine seized in this case," and "that drug traffickers frequently carry firearms and do so in order to protect themselves and their proceeds." Id. at *11; see also Austin v. Brown, No. 2024 WL 1602968, at *24 (D. Colo. Feb. 22, 2024) (recommending based on Rule 702's 2023 amendments that certain testimony of a self-proclaimed "false-confession expert" be excluded because it was not sufficiently verifiable).
Last, in Post v. Hanchett, 2024 WL 474484, (D. Kan. Feb. 7, 2024), a plaintiff tried to admit expert testimony about the cause of truck-tire blowouts from a witness who was "a second-generation trucking expert with over 15 years of combined experience as a truck driver, truck-driving instructor, truck-driving consultant, accident investigator, [and] forklift and heavy equipment operator." Id. at *5. The court again pointed to the 2023 Rule 702 amendments and found that the plaintiff failed to demonstrate that her expert was duly qualified merely by his industry experience. Id.
Toolmark Testimony:
In United States v. Graham, No. 4:23-CR-00006, 2024 WL 688256, (W.D. Va. Feb. 20, 2024), a criminal defendant argued "that the field of firearm and toolmark analysis is inherently flawed," and thus an expert's opinion that was "based on [the] application of the prevailing methodology in that field, [wa]s unreliable under Daubert, and ... should be excluded." Id. at *1. The court disagreed with that far-reaching conclusion but determined nonetheless that "based on Rule 702's recent [2023] amendments" the toolmark testimony had to be limited to conform with the U.S. Department of Justice's uniform standards. Id. This was because the DOJ's standards ensured that the jury would not take the expert's "word for absolute truth" and that the testimony would thus satisfy the amended Rule 702's concern that "that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." Advisory Committee Notes to 2023 Amendment to Fed. R. Evid. 702.
Finally, in United States v. Briscoe, 2023 WL 8096886, at *12 (D.N.M. Nov. 21, 2023), the court similarly noted the "tension between the long history of routine admission of toolmark identification evidence, and a rising tide of criticism regarding forensic evidence in general." Id. at *12 (quoting United States v. Johnson, 2019 WL 1130258, at *12 (S.D.N.Y. Mar. 11, 2019), aff'd, 861 F. App'x 483 (2d Cir. 2021). Because the "proposed amendments to Rule 702 reflect the Advisory Committee's intention to limit the routine admission of forensic expert testimony and empower courts to fulfill their gatekeeping obligation," the court substantially limited a toolmark expert's testimony. Id.
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These cases do not represent a large shift in Rule 702 and Daubert precedents—and they should not, given that Rule 702's amendments explicitly sought to clarify rather than change the law. But they do show that, moving forward, courts may point to the 2023 amendments to justify slightly more scrutiny towards the admissibility of expert testimony, particularly in the identified areas of nonscientific industry experts and toolmark evidence (and in analogous fields).
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