Trial Magazine

Proponents of tort “reform” are busy working on their next proposals—one trend is to make it more difficult to admit expert witness scientific testimony at trial. This push to amend the Daubert standard, used in federal court and many state courts, comes on the heels of plaintiffs’ successful use of experts in the Roundup and the talcum powder litigation. Coincidence? We think not.

Evidence committee discusses draft rule. The Advisory Committee on Evidence Rules, the policymaking arm of the federal courts, met in October 2019 for its fall committee meeting and a miniconference on best practices for managing Daubert questions. The committee, whose members are selected by the chief justice of the United States, is largely composed of federal judges, as well as criminal defense attorneys and representatives from the U.S. Justice Department—but the plaintiff civil bar has no representation. The panel of experts at the miniconference included federal judges with significant experience managing trials that involve scientific evidence.

The purpose of the miniconference was to help the committee determine whether a draft amendment on overstatement by expert witnesses should be added to Federal Rule of Evidence 702 on expert witness testimony. The amendment is intended to avoid “overconfidence” by experts—prohibiting them from claiming “a degree of confidence that is unsupported by a reliable application of the principles and methods.”

The judges had a difficult time distinguishing between the terms “overstatement” and “overconfidence,” and during the committee meeting, members agreed that several instances of overstatement already were covered by a rule or by Daubert. They noted the rules already address experts testifying beyond their area of expertise or jumping to a conclusion without laying a foundation. They settled on revising the rule to address overconfidence—when experts state or imply that a methodology or conclusion is error-free or 100% reliable.

Depending on how the revised proposed rule is drafted, the committee could end up with a rule narrowly focused on very specific evidentiary situations or a rule that allows experts to be “confident” but not “very confident” about their testimony. AAJ is following this discussion closely—the amendment could not only make it more challenging to prepare experts but also increasingly difficult for jurors to understand expert testimony.

The congressional front. Also in October, George Mason University’s Law & Economics Center held its monthly civil justice debate for congressional staff. The topic, “Science in the Courts: Expert Testimony in the Roundup Litigation,” was pitched to educate staff serving members of the Senate and House Judiciary Committees about the varying standards for evaluating expert testimony. The discussion focused on whether judges should act as gatekeepers to screen out “suspect” science or trust jurors to determine who is telling the truth.

Programs sponsored by the center often are a precursor to the introduction or movement of legislation, but the center has lost some of its cachet in the current Congress, and House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) is disinterested in the center’s anti-civil-justice agenda.

Defense bar pushing its agenda. The defense bar is looking to keep Daubert reform relevant for both courts and Congress. The misleadingly named Lawyers for Civil Justice has filed two sets of rule suggestions with the evidence committee and has requested the adoption of a rule to address issues of insufficient basis and overstatement.

The evidence committee is expected to release a revised draft rule this spring. In the meantime, Public Affairs is working to ensure that no bad legislation on expert witnesses moves forward in this Congress. For more information, contact me at susan.steinman@justice.org.

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.