Changes to Rules Governing Expert Testimony Imminent

Michael Guggeinheim | Proskauer Rose

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

Rule 702, which was further explicated by the seminal case Daubert v. Merrell Dow Pharmaceuticals, Inc., allows for an witness to testify in the form of an expert opinion if the propounding party demonstrates the following foundation:

“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:

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 the principles and methods to the facts of the case.”

The advisory committee approved two amendments to the rule that clarify that an expert must meet all four elements of Rule 702 by a preponderance of the evidence, and require that the expert’s opinion “reflects a reliable application of the principles and methods.” The amended rule would thus read as:

“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 has demonstrated by a preponderance of the evidence 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’s opinion reflects a reliable application of has reliably applied the principles and methods to the facts of the case.”

The amended rule, therefore, more clearly establishes that judges should take a discerning approach to expert witness testimony, ensuring that only reliable evidence is presented to the jury as part of their deliberations.  With respect to Rule 702(d), the amendment removes the current, more nebulous “reliably applied” standard with a new guidepost that heightens the judge’s role as the gatekeeper of evidence.

The proposed changes to Rule 702 seem to be in response to growing concerns about unreliable expert testimony being admitted. While expert opinions are most often used in civil cases, concerns have also been raised about unreliable expert testimony in criminal proceedings. There has also been confusion between courts as to what standard to apply, with some courts applying the preponderance standard while others appearing to apply no discernable standard at all. Amending the rule as the Advisory Committee on Evidence has recommended could go a long way to ensuring that expert witnesses are subject to rigorous, and consistent, verification before their testimony is heard by the jury.

If these amendments are approved—which is expected later this summer, with final enactment in December 2023 pending Supreme Court approval—trial strategies and approaches could shift markedly. To ensure that expert witnesses can lay enough foundation to meet this new standard, litigation teams will need to take extra care in their selection of experts, such as by selecting witnesses who can sufficiently demonstrate expertise in the field in which they will offer an opinion. Likewise, experts will need to prepare their materials—including merits and rebuttal reports—with an eye towards maximizing their chances of meeting this standard. Finally, counsel will need to be prepared to both defend their experts, as well as challenge opposing experts, to determine the reliability of both the methods and applications of experts’ methodologies. Engaging with counsel to secure reliable expert testimony – and ensuring that the reliability of said expert testimony is properly presented to a judge—will be essential to guaranteeing effective trial representation and securing favorable outcomes in court.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Countering the Bad Expert: Don’t Expect Jurors to Deliberate Past the BS on Their Own

Dr. Ken Broda-Bahm | Holland & Hart

In my opinion, it is one of the most interesting and important areas of social science at the moment. And if it’s not that, then it’s certainly the sassiest. A group of researchers has been focused on our susceptibility and resistance to various forms of bad information, disinformation, misinformation, rumors, bald-claims, conspiracy theories, and fake news. And I can just picture one of the researchers plaintively raising the question, “Can’t we just call it ‘bullshit?’” Well, they decided that they could, so now we have peer-reviewed scholarly articles on bullshit influence, persistence, and vulnerability. We even have the sine qua non of academic tools — a validated psychometric measure called the “Receptivity to Bullshit” Scale.

While it won’t be a good look to be applying that scale to potential jurors as they come into court, the overarching concept and research findings are relevant to litigation, since it is a measure of how gullible people can be when presented with information that lacks clear meaning or foundation. The question can be particularly important when it comes to expert testimony: you have a situation where there is complex information, as well as economic motive for a particular answer, so there’s a real chance that your jurors just might be presented with some bullshit. Researchers have found that, while susceptibility is significant, people can often counter this bad information through reflection. When they have to try explain in their own words why a bullshit idea is actually valid, they become significantly less likely to support it. So, you would think that group deliberation, where individuals are called on to explain and defend their positions, would be the ideal setting for countering testimony that lacks clear meaning or foundation. And in many circumstances it is. But based on a new study, there seems to be unique susceptibility when it comes to expert testimony. In this post, I’ll explain those study results and share a few implications when it comes to countering a bullshitting expert on the other side.

The Research: Expert Bullshit Is Different From Other Bullshit

Defining bullshit as “information constructed with a carefree indifference for conveying truth, accuracy, clarity, or meaning that is often used to impress, persuade, or otherwise mislead others,” the study (Littrell, Meyers & Fugelsang, 2022) tested susceptibility to various forms of bullshit, including pseudo-profound statements and fake news headlines, as well as scientific statements that were either anonymous or sourced to experts. Specifically, they looked at whether reflection (e.g., being asked to “describe in detail why the statement below is or is not true”) could be a cure. They found that while reflection can reduce the effects of fake profundity and fake news, there is a blind spot when it comes to expert opinion.

This suggests that we cannot expect jurors to reason their way out of questionable scientific testimony in the same way they deliberatively respond to other questionable information. The reason that statements from perceived experts seem to work differently comes down to something the researchers call the guru effect: “People often perceive bullshit statements from purported experts as more meaningful and convincing than bullshit attributed to anonymous sources.” To some extent, the research participants also seem to outsource responsibility for the explanation from themselves to that expert. As the researchers note, “failing to generate an explanation for how something works makes individuals doubt the knowledge they possess, but not the knowledge others possess.”

The Implications: Protect and Empower Your Jurors

A good trial attorney, of course, wouldn’t expect jurors to reason their way independently to a discovery of the problems with an opposing expert. That litigator has other tools — namely cross-examination and opposing experts — that were not available in the research setting. At the same time, both courts and attorneys have good reason to be sensitive to the particular risk that comes from a bad expert.

An Additional Reason for Daubert

The classic response to the possibility of bad expert evidence has been that jurors are the gatekeepers. Now, however, in a post-Daubert climate, judges are often the ones deciding whether proposed testimony has scientific merit that can be applied to the facts of the case. This research suggests that there is good reason for that. While the kinds of reflection promoted by deliberation are very valuable on a wide array of common-sense determinations, these collective tools can fail when jurors are outside the realm of their own experience and understanding. For those who cite social science to the court, this study might add to your motion against the other side’s bad expert.

An Additional Reason to Unpack the ‘Why’ and to Be the Better Teacher

The research finding also underscores the intuition that expert witness testimony should never just be presented. It should be taught. The more jurors outsource their judgment to someone else, the more susceptible they are to bad information. But the more they come to understand the process, the steps, and the reasons underlying an expert’s conclusions, the more they can appreciate and use your expert’s counter. This “show your work” emphasis should be a reminder to your testifying expert that they are not there simply to be an “authority.” They are there to be the better teacher. Ultimately, it is as much about being clear, concrete, and engaging as it is about being right.

Court Of Appeals Clarifies That Expert Testimony Required in Nearly All Faulty Construction Cases

Joseph Davies | Smith Debnam Narron Drake Saintsing & Myers

In a recent decision touching on many interesting issues, North Carolina’s Court of Appeals effectively determined that, in all but the most obvious cases, expert testimony is required to establish a failure to perform construction in a workmanlike fashion.

Small Claims Court to Court of Appeals

In Dan King Plumbing Heating & Air Conditioning, LLC v. Harrison, 20221-NCCOA-27, a plumbing and HVAC contractor entered into two contracts with the defendant – one for plumbing work and one for HVAC work. The contractor filed suit to recover money owing under the contracts, and the defendant filed a number of counterclaims based on breach of contract and alleged misrepresentations. One of the breach of contract claims alleged that the contractor failed to perform the plumbing work in a “workmanlike fashion” – essentially that the contractor’s work was defective and, therefore, had not fulfilled its obligations under the contract. The case initially started in small claims court – the contractor sued for less than $4,000. After losing in small claims court, the contractor appealed to district court, where the homeowner filed his counterclaims and obtained a jury verdict in his favor in excess of $30,000. Apart from any legal analysis, this case stands as a good reminder that even “small” cases can quickly take on a life of their own, well beyond what the plaintiff may have anticipated at the outset.

Verdict for the Owner

At trial, the homeowner relied upon his own testimony and several pictures of the plumbing to establish his claim for defective work. The contractor requested that the court direct a verdict in its favor on this particular claim, arguing that the homeowner was required to provide expert testimony to establish his claim and, having failed to do so, was not entitled to have the jury decide the issue. In general, to establish a claim for faulty workmanship, the pleading must allege how it was faulty and requires the party alleging the breach to show that the contractor or builder did not use the “customary standard of skill and care” in the particular industry, location, and time-frame in which the construction occurs. In this case, the contractor argued that establishing a failure to abide by the customary standard of skill and care necessarily requires expert testimony regarding exactly what that standard of care is. The homeowner argued in response that whether the work was deficient did not require an expert and is something that a jury could determine on its own. The trial court denied the contractor’s motion, and the jury returned a verdict in favor of the homeowner. Each party appealed various aspects of the case.

Expert Testimony and the “Common Knowledge” Exception

On appeal, the contractor essentially argued that these construction cases are like a medical or legal malpractice case, where there ordinarily must be some expert that testifies regarding the standard that a doctor or lawyer should meet in a given situation. The Court of Appeals noted that general rule requires expert testimony in cases like this and discussed the “common knowledge” exception o the general rule. That exception applies in situations where “the workmanship is so grossly subpar that it is obvious to any layperson that the work does not live up to a professional standard of care.”  In those cases, expert testimony would not be required. The court then provided two analogies – the work must be the construction equivalent of a surgeon leaving a sponge inside a patient on the operating table or a lawyer being ignorant of the applicable statute of limitations.

Verdict for the Contractor

The court then reviewed the twelve photographs the owner had introduced into evidence and concluded that they were insufficient to indicate to a layperson that the plumbing work was obviously or grossly defective. As a result, the common knowledge exception did not apply, expert testimony was required, and the contractor was entitled to judgment in its favor on this claim because the homeowner had failed to offer any expert evidence.

The court also ruled on several other issues, including unfair trade practices and issues of civil procedure. The court examined the requirement of “aggravating factors” in order for a breach of contract to reach the level of an unfair trade practice. The court examined whether the homeowner had relied on any alleged misrepresentation and concluded he had not and could therefore not establish a claim for unfair trade practices on those grounds. The court also reviewed the trial court’s refusal to introduce certain evidence and the ordering of arguments at the trial. While these issues are undoubtedly important, the primary takeaway for those in the construction industry is that expert testimony will be required to prove workmanship claims in all but the most egregious cases. Of course, this also means that defending such claims will often require retaining an expert as well.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Courts Deal With “Dual-Hat” Experts: Part I

Thomas E. Spahn | McGuireWoods

Fed. R. Civ. P. 26(a)(2)(B)(ii) governs testifying experts’ duty to produce “the facts or data considered by the witness in forming” his or her opinion. Fed. R. Civ. P. 26(b)(4)(D) governs dramatically different non-testifying consulting experts. Not surprisingly, witnesses might switch from one role to the other, and also might possess arguably pertinent facts from direct or tangential participation in the pertinent underlying events. This type of expert is commonly called a “dual-hat” expert, whose involvement can raise subtle issues.

In Johns v. CR Bard (In re Davol, Inc.), Case Nos. 2:18-md-2846 & 2:18-cv-1509, 2021 U.S. Dist. LEXIS 105022 (S.D. Ohio June 4, 2021), plaintiff alleged injuries from hernia mesh complications. Plaintiff hired Dr. Nagy as a non-testifying consulting expert, and later designated him as a testifying expert — but refused to produce documents he created while reviewing defendants’ documents. The court ordered plaintiff to produce those documents. First, “[e]ven crediting Plaintiff’s contention that Dr. Nagy was a consulting witness initially,” the court ruled that “[t]he proponent of a dual-hat expert, i.e.[,] an expert that is both a consulting and testifying expert” may only withhold “‘materials generated or considered uniquely in the expert’s role as [non-testifying] consultant.'” Id. at *11-12 (citation omitted). The court explained that Dr. Nagy “‘cannot be expected to draw a mental line in the sand between information gleaned’ in an earlier, consulting context and information later learned as a testifying expert when the subject matter is so similar.” Id. at *12 (internal citation omitted). The court also noted that the testifying expert rule requires such experts to produce “all materials reviewed or considered by the expert, whether or not the expert report ultimately refers to those materials as a basis for his or her opinions.” Id. at *6 (citation omitted). The court emphasized that “[a]mibiguities are resolved in favor of discovery.” Id.

Litigants often retain an expert first as a non-testifying consulting expert — to be sure that the litigant likes the expert’s conclusions, demeanor, etc. But litigants must carefully consider what such an expert might be required to produce upon morphing into a testifying expert. Next week’s Privilege Point will address a “dual-hat” expert scenario another court addressed about two weeks later.

Courts Deal With “Dual-Hat” Experts: Part II

Thomas E. Spahn | McGuireWoods

Last week’s Privilege Point addressed a court’s careful sorting out of discovery issues implicated when a non-testifying consulting expert created documents arguably related to his later role as a testifying expert. About two weeks later, the Southern District of New York (Judge Caproni) dealt with other issues involving non-testifying experts.

In In re Commodity Exchange, Inc. Gold Futures & Options Trading Litig., Nos. 14-MD-2548 (VEC) & 14-MC-2548 (VEC), 2021 U.S. Dist. LEXIS 113760 (S.D.N.Y. June 17, 2021), plaintiffs alleged that defendants comspired to manipulate the London daily benchmark gold price. Defendants sought to depose plaintiffs’ non-testifying consulting experts, but the court rejected defendants’ motion. First, defendants argued that plaintiffs’ non-testifying experts were “fact witnesses and not experts,” because they were familiar with gold pricing issues from their previous work. Id. at *24. The court acknowledged that Fed. R. Civ. P 26(b)(4)’s Advisory Committee’s Notes state that experts may be deposed about information they acquired as “an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” Id. at *25. But the court concluded that plaintiffs’ experts had not “traded gold or gold-based instruments or participated in any way in the Fixing process” – and that “[b]y Defendants’ logic, most experts who analyze facts are fact witnesses who fall outside the ambit of Rule 26(b)(4)(D), swallowing any protections afforded by the Rule.” Id. at *26-27. Second, the court found that plaintiffs’ experts had waived certain work product protection – accurately noting that “[c]ourts are split as to whether [non-testifying consulting experts’] protections can be waived.” Id. at *29. After concluding that the non-testifying consulting expert Rule did not protect plaintiffs’ experts from depositions, the court nevertheless denied defendants’ motion to depose them – concluding that “any additional information obtained from deposing [plaintiffs’ non-testifying consulting experts] would be unreasonably cumulative or duplicative of the information Defendants should have already received via fact discovery.” Id. at *37.

Litigants and their lawyers should always consider both non-testifying and testifying experts’ source of information – especially if these experts move from one role to the other.