Eric Lasker participates in roundtable discussion sponsored by the Judicial Conference Advisory Committee on Rules of Evidence
October 19, 2018
In keeping with Hollingsworth LLP’s long-proven commitment to advancing the letter and spirit of Daubert and FRE 702, Firm partner Eric Lasker participated on October 19th in a roundtable discussion on a potential amendment to FRE 702 sponsored by the Judicial Conference Advisory Committee on Rules of Evidence and held at the University of Denver, Strum College of Law. The proposed amendment could herald the most significant advancement in the rules governing the admissibility of expert testimony since 2000, when FRE 702 was amended in the wake of the Daubert trilogy.
In its report, the subcommittee looking into proposed amendments to Rule 702 noted:
“The Subcommittee has some concern that an amendment might not fix the problems that are seen in the cases regarding admissibility and weight. The Subcommittee remains concerned about the broad misstatements of the law in some of the cases and encourages further discussion on whether an amendment might be a useful way to alert the courts to focus on applying the preponderance standard. An amendment might also be useful in getting courts to articulate the standard of proof on which they are relying. Another possibility is to target educational efforts at the courts that are making the broad and incorrect statements of law.”
The Advisory Committee’s review of FRE 702 dates back to a law review article authored by Mr. Lasker and George Mason University School of Law professor David Bernstein, “Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702,” William & Mary Law Review Vol. 57, No. 1 (October 2015). In their article, Mr. Lasker and Professor Bernstein reviewed the drafting history of the 2000 Amendments to FRE 702 and identified numerous federal circuit court and district court Daubert rulings that departed from the drafters' intent.
During the October 19 roundtable, the Advisory Committee considered an amendment to FRE 702 that would emphasize that the gatekeeping determination as to the sufficiency of the basis for an expert’s opinion and the reliability of the application of an expert witness’s methodology (as well as the reliability of the methodology itself) must be decided by the judge by a preponderance of the evidence.