Insights & Events

Jurors’ skepticism about the truth and accuracy of scientific evidence offered by the parties in litigation is a disturbing trend from 2025 that likely will continue to grow in 2026. See here (“Public trust in science has declined in the US since early 2025. In June 2025, only 8% of U.S. adults reported a great trust in science, a significant drop of nearly 24 percentage points from the previous record of 32% in June 2023.”) Defense counsel have a variety of options to counteract the trend, including offering jurors the testimony of impactful expert witnesses to allay the jurors’ concerns. However, the most important tool is preventing unreliable science offered by opposing counsel from reaching the jury in the first place.

Federal Rule of Evidence 702, as amended in December 2023, and the accompanying Advisory Committee notes were intended to clarify and provide a uniform framework for the standards for the admissibility of expert testimony across the federal judicial system. And, for those states that have an evidentiary rule mirroring FRE 702, the amended federal standards provided hope for consistency in rulings as well. We have written extensively about the need for courts to apply Rule 702 in a manner that comports with legal standards and the Advisory Committee notes (see here, here, and here).

In 2025, we saw some encouraging signs. For example, in a pharmaceutical products liability case, the Delaware Supreme Court clarified that Delaware’s Rule 702 would follow FRE 702, including its recent amendments. The court held that a 2024 trial court decision rested on outdated and incorrect standards in assessing the admissibility of plaintiffs’ experts’ testimony. In reversing the trial court decision, the Delaware Supreme Court found that under the correct standards, the testimony of ten expert witnesses for the plaintiffs must be excluded. See here for our additional analysis of this important decision. We also saw encouraging federal decisions that correctly applied FRE 702 to exclude opinions based on unreliable science or dubious scientific analysis. See Sprafka v. Medical Device Business Services, Inc., et al., 139 F.4th 656 (8th Cir. 2025) and In Re: Valsartan, Losartan, and Irbesartan Prod. Liab. Litig., MDL No. 19-2875, Opinion (D.N.J. Apr. 7, 2025).

Not all courts, however, have received the message. As we describe here, the Advisory Committee Notes state that, prior to the amendment, many courts held that key flaws in an expert’s methodology or the application of that methodology go to the weight a jury gives the testimony, not the admissibility of the testimony. The Notes clarified that Rule 702 does not authorize courts to punt these assessments to a lay jury. Yet, the Fourth Circuit Court of Appeals did just that.

In 2026, as more trial court decisions move through the appellate process, defendants should be better able to determine which courts are applying FRE 702 as intended and which courts are incorrectly clinging to old and outdated case law. In all jurisdictions, defendants should continue to push for the correct application of the rules to ensure only opinions using a reliable methodology and a sound basis in science are permitted to reach a jury.

— By Heather A. Pigman