Federal Rule of Evidence 702 - The Proposed Revision

The Daubert decision by its language was limited to scientific expert opinion. That limitation gave rise to the question of the applicability of Daubert to other technical expert opinion. In the interest of addressing the issue of a broader application of Daubert and of codifying Daubert law, the Advisory Committee on Evidence Rules undertook consideration of amendatory language to FRE 702. In June 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and comment additional language to follow the current text of FRE 702.

Proposed Rule 702. Testimony of Experts

If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, 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 (1) the testimony is based upon sufficient facts of data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Shortly after the close of comment on the proposed Amendment to FRE 702, the U.S. Supreme Court issued an opinion in Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Kumho specifically addressed the Daubert ruling on scientific expert opinion, urging flexibility by federal judges in such application. The Kumho decision reviewed the five factors for evaluation of reliability of expert opinion first identified in Daubert and indicated quite clearly that such factors were never intended as absolutes. Kumho urged a totally-of-circumstances approach such that no single factor would control the ultimate admissibility of expert opinion evidence. [Posegate, CH. LRP Publications, Vol. 7, Iss. 8, 1999:3]