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More on FRE 702:

Blog 702, generally an excellent resource for Rule 702-related matters, rather harshly condemns my theory that Rule 702 is stricter than the the Daubert trilogy. Here's what Joiner says about methodologies and conclusions:

But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

Note the permissive language, backed up by an abuse of discretion standard.

Now, compare Rule 702, as amended, stating "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise... if ... "the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case." Note the lack of permissive language; courts must exclude evidence if an expert has not applied the principles and methods reliably to the facts of the case.

Similarly, Kumho Tire seems to give district courts almost infinitely wide discretion in how to determine the admissibility of experience-based testimony, including giving an example of a perfume-sniffer who is to be qualified based solely on experience and "whether his preparation is of a kind that others in the field would recognize as acceptable." Contrast this, again, with Rule 702's absolute requirement that all expert testimony be "the product of reliable principles and methods," that courts must ensure that "the witness has applied the principles and methods reliably to the facts of the case." Arguably, merely asking a perfume sniffer if "his preparation is of a kind that others in the field would recognize as acceptable" doesn't meet this standard.

Finally, Daubert itself was very ambiguous, and there was a great debate over whether it was a "loose scrutiny" or "strict scrutiny" opinion. Joiner and made it clear that Daubert was to be interpreted rather strictly with regard to scientific evidence, Kumho Tire made it clear that a reliability test applies to all expert evidence, and Rule 702 made things even stricter. For courts to go back and assume that any stray dicta is Daubert is sound simply ignores what has happened since then. Unfortunately, what many courts have been doing, in my view, is deciding based on their own predilections whether they want to admit challenged evidence, and then they go back and find precedents that support their perspective, instead of starting with an analysis of Rule 702's requirements, and then deciding whether the evidence meets that standard.

UPDATE: FWIW, there was a lengthy discussion of this issue a few months ago on the law professors' Evidence list, and while no consensus was reached, I think those professors (including me) who made the case that Rule 702 goes beyond the requirements of the Daubert trilogy were far more persuasive, and it's certainly true that I was hardly alone in my view on this.

William Spieler (mail) (www):
This is good stuff, for those of us who have our Evidence exams soon.
5.7.2006 3:09pm
enovack (mail) (www):
Again, from the point of view of a physician who understands that 'expert testimony' is often at the very heart of medical liability cases, I find the ability of courts to seemingly use a 'random' application of rules of evidence as very disturbing.
What role, if any, should the legislative branch play in the clarification for the courts of 'expert testimony'? Should/ can it be federal or state based?
5.7.2006 4:23pm
clerk (mail):
Respectfully, Prof. Bernstein, you are confusing the Supreme Court's commands as to the deference appellate courts should give district courts with the direct commands the FRE give to district courts. There is no inconsistency here; you are simply comparing apples to oranges. District courts _must_ do a variety of things; nonetheless, appellate courts review their compliance with seemingly firm rules for abuse of discretion.
5.8.2006 10:40am