The amended Federal Rule of Evidence 702, effective Dec. 1, puts particular emphasis on the duty courts have to admit only reliable expert testimony. In light of this focus, it’s important to consider motion strategy as well. The best time to ask a court to bar the gate against an unreliable expert opinion is at the summary judgment stage of the case.
The amendments explicitly add language reinforcing the fact that the proponent’s burden to show the expert’s reliability is by a preponderance of the evidence. “Judicial gatekeeping is essential” for expert evidence, says the Advisory Committee on Evidence Rules in its notes to the amended rule.
FRE 702 motions are also called Daubert motions, after the 1993 US Supreme Court case that set out factors for courts to consider when determining reliability.
While some judges set a particular deadline for these motions in the scheduling order, others leave timing to the parties. In the latter scenario, the best option for litigators is during the summary judgment phase.
This is because discovery is closed by the summary judgment deadline. The chances that an opponent can swap in a new expert in the face of a successful motion to exclude, or amend an existing expert’s report, are slim to none.
Expert opinions can be key pieces on the chessboard as parties try to win on summary judgment. Removing them could have great impact on the issues and therefore the outcome of the case.
And the results from a survey taken during a recent Bloomberg Law webinar on FRE 702 timing agree. Most of the more than 250 respondents said that summary judgment is the best time for a Daubert motion.
While there are other times that might be preferable based on specific circumstances (a blatantly deficient report, a devastating admission at a deposition, a judge who wants to wait until pretrial), litigators should usually look to make FRE 702 motions at summary judgment.
Access the on-demand version of the Bloomberg Law webinar, Expert Motions Under FRE 702 and Daubert, via free registration. Bloomberg Law subscribers can find even more related content on our Expert Discovery Practical Guidance page.
If you’re reading this on the Bloomberg Terminal, please run BLAW OUT in order to access the hyperlinked content or click here to view the web version of this article.
To contact the reporter on this story: Erin Webb in Washington, DC at ewebb@bloombergindustry.com
To contact the editor responsible for this story: Melissa Heelan at mstanzione@bloomberglaw.com
AI-powered legal analytics, workflow tools and premium legal & business news.
Log in to keep reading or access research tools.
