The amended Federal Rule of Evidence 702, which took effect on Dec. 1, emphasizes the importance of courts admitting only reliable expert testimony. A significant aspect of this amendment is the renewed focus on the timing and strategy of motions to exclude unreliable expert opinions.
The amendment explicitly reinforces the principle that it’s the proponent’s responsibility to demonstrate the reliability of an expert’s testimony, a task that needs to be approached with a preponderance of evidence. “Judicial gatekeeping is essential” for expert evidence, emphasized the Advisory Committee on Evidence Rules in its notes on the amended rule.
These types of motions, also known as Daubert motions, originate from the 1993 US Supreme Court case that established factors courts must consider when appraising reliability. The ideal timing for these motions seems to be during the summary judgment phase of a suit, particularly as discovery is typically closed by the summary judgment deadline, thereby limiting the possibility of opponents introducing new evidence or amending expert reports.
The strategic importance of expert opinions in achieving summary judgment cannot be understated. Removing unreliable expert opinions can significantly alter the dynamics of the case and potentially the verdict. A recent Bloomberg Law webinar survey supports this view, with the majority of over 250 respondents agreeing that summary judgment is the best time for a Daubert motion.
While there may be certain circumstances where alternative timings could be preferable – such as a clearly inadequate report, a damaging admission during a deposition, or a judge’s preference to wait until pretrial – the general strategy should be to proceed with FRE 702 motions at summary judgment.
For further insights, you may access the on-demand version of the Bloomberg Law webinar, Expert Motions Under FRE 702 and Daubert, at no charge. For those who subscribe to Bloomberg Law, additional related resources can be found on their Expert Discovery Practical Guidance page.
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