TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

In the Matter of: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL )

RULES OF EVIDENCE 106, 615, )

AND 702 BEFORE THE JUDICIAL )

CONFERENCE ADVISORY COMMITTEE )

ON EVIDENCE RULES )

 )

Pages: 1 through 116

Place: Washington, D.C.

Date: January 21, 2022 
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BEFORE THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS

In the Matter of: )

 )

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL )

RULES OF EVIDENCE 106, 615, )

AND 702 BEFORE THE JUDICIAL )

CONFERENCE ADVISORY COMMITTEE )

ON EVIDENCE RULES )

 )

Remote Hearing

Suite 206

Heritage Reporting Corporation

1220 L Street, N.W.

Washington, D.C.

Friday,

January 21, 2021

The parties met remotely, pursuant to notice, at

9:30 a.m.

BEFORE: HONORABLE PATRICK J. SCHILTZ

 Chair to the Advisory Committee

ATTENDEES: (Via Videoconference)

HON. JAMES P. BASSETT

HON. SHELLY DICK

HON. THOMAS D. SCHROEDER

HON. RICHARD J. SULLIVAN

HON. ROBERT J. CONRAD, JR.

HON. CAROLYN B. KUHL

HON. SARA LIOI

HON. JOHN D. BATES

TRACI L. LOVITT, ESQ.

ARUN SUBRAMANIAN, ESQ.

PROF. DANIEL J. CAPRA

PROF. LIESA RICHTER

BRIDGET HEALY

SHELLY COX

BURTON DEWITT

BRITTANY BUNTING
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WITNESSES:

REBECCA E. BAZAN, Duane Morris LLP

DOUGLAS K. BURRELL, DRI Center for Law & Public 

 Policy

LARRY E. COBEN, Anapol Weiss

ALEX R. DAHL, Lawyers for Civil Justice

GARDNER M. DUVALL, Whiteford Taylor Preston LLP

RONNI E. FUCHS, Troutman Pepper

JAMES GOTZ, Hausfeld LLP

WAYNE HOGAN, Terrell Hogan

KATIE R. JACKSON, Shook, Hardy & Bacon L.L.P.

ANDREW E. KANTRA, Troutman Pepper

TOYJA E. KELLEY, DRI Center for Law & Public

 Policy

ERIC G. LASKER, Hollingsworth LLP

MARY MASSARON, Plunkett Clooney Attorneys &

 Counselors at Law

JOHN M. MASSLON II, Washington Legal Foundation

LEE MICKUS, Evans Fears & Schuttert LLP

AMIR NASSIHI, Shook, Hardy & Bacon L.L.P.

LESLIE W. O'LEARY, Ciresi Conlin LLP

JARED M. PLACITELLA, Cohen, Placitella & Roth,

 P.C.

BILL ROSSBACH, Rossbach Law, P.C.

THOMAS J. SHEEHAN, Shook, Hardy & Bacon L.L.P.

GERSON SMOGER, Smoger & Associates, P.C.

NAVAN WARD, American Association for Justice

MICHAEL J. WARSHAUER, Warshauer Law Group
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1 P R O C E E D I N G S

2 (9:30 a.m.)

3 CHAIR SCHILTZ: Good morning, everyone. 

4 We'll get the hearing started. I want to introduce 

5 myself. My name is Patrick Schiltz. I'm a federal 

6 judge in Minneapolis, where it was 35 below zero wind 

7 chill this morning when I left my home, which reminds 

8 me that this meeting was supposed to be in Miami, but, 

9 instead, we're doing it this way. I'm sorry we 

10 couldn't meet in person, but, obviously, with the 

11 Omicron variant, we wanted to keep everybody safe. 

12 We are here today to have a hearing on 

13 several amendments that we have proposed to the 

14 Federal Rules of Evidence, an amendment to Rule 106 

15 regarding the Rule of Completion, an amendment to Rule 

16 615 regarding the exclusion of witnesses from the 

17 courtroom, and an amendment to Rule 702 regarding 

18 expert testimony. 

19 The way I'd like to do this today is I'd 

20 like to ask everybody to keep their videos and their 

21 microphones off. We have, like, 60 or 70 people 

22 participating today, so if you could all keep your 

23 videos and your microphones off, except for Professor 

24 Capra and me and whoever's doing the speaking at the 

25 time.
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1 For you speakers, when I call your name, if 

2 you could turn on your video and your microphone, 

3 obviously, we'd like to see and hear from you at that 

4 point. And then, as to the Committee members, if you 

5 have any questions or you want to make a comment about 

6 something that a speaker has said, turn your video on, 

7 and when I see your face pop up on my screen, I'll 

8 know that you're waiting to ask a question or to make 

9 a comment, and I'll call on you at the appropriate 

10 time. So, unless you're actually speaking, please 

11 keep your microphones and your videos off.

12 Just a couple more ground rules. The 

13 hearing will be recorded by the Administrative Office. 

14 If any of you are disconnected, please use the 

15 original meeting link to rejoin the hearing. If that 

16 doesn't work, you can use the conference bridge number 

17 to join by audio, or you can email Brittany Bunting at 

18 the Administrative Office and she can help you rejoin 

19 the meeting. 

20 As I mentioned, we have a lot of people 

21 participating today. We have about two dozen people 

22 who want to speak today, so we ask that you all limit 

23 yourself to no more than five minutes each. I think 

24 most or all of you have submitted written comments, 

25 and we will read those comments very carefully. 
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1 Please don't try to summarize all of your comments in 

2 your five minutes. Just, if you could, just emphasize 

3 a couple of the highlights, and please respect the 

4 time limits so that we can hear from everybody today.

5 So, with that, I'm going to call on the 

6 first speaker, and let's see, Mr. Burrell, you may 

7 have missed it, but if you could keep your video off, 

8 please, until it's your time to speak. I'll call on 

9 you at that time. Thank you. 

10 The first speaker is Rebecca Bazan. Ms. 

11 Bazan or Bazan, I don't know how to pronounce it. 

12 There you are. How do you pronounce your last name?

13 MS. BAZAN: Bazan. You got it right the 

14 first time.

15 CHAIR SCHILTZ: Got it right the first time. 

16 So I'm batting 100 so far. If you could just 

17 introduce yourself and then we'd be happy to hear 

18 whatever you'd like to say.

19 MS. BAZAN: Good morning, and thank you to 

20 the Committee for allowing me to testify today. My 

21 name is Rebecca Bazan, and I'm a litigation partner in 

22 the Washington, D.C., office of Duane Morris LLP. 

23 Duane Morris submitted a written comment in support of 

24 the proposed changes to Federal Rule of Evidence 702, 

25 and our comment and my testimony today will focus on 
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1 the practical implications of the proposed rule 

2 changes, particularly how they could affect product 

3 liability cases. 

4 Duane Morris frequently litigates product 

5 liability cases, especially in the life sciences and 

6 toxic tort areas, for which expert testimony is often 

7 crucial. First, I want to mention some problematic 

8 trends that we've observed in product liability cases 

9 when Rule 702 has been misapplied and then discuss how 

10 adoption of the proposed changes could help remedy 

11 those problems. 

12 What we often see when Rule 702 is 

13 misapplied is that speculative and unreliable expert 

14 testimony is deemed admissible and what should be 

15 fatal flaws are left to cross-examination at trial and 

16 passed on to the finder of fact to make a credibility 

17 determination. So, in other words, a judge may say, 

18 sure, there's problems with this expert, but they go 

19 to the weight, not the admissibility. And what that 

20 means is that a lot of what should be inadmissible 

21 expert testimony gets presented to juries. 

22 One place where we see this happen a lot in 

23 the product liability context is on the issue of 

24 causation. Oftentimes, evidence of general causation 

25 is scant, but an expert is permitted to leap to 
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1 specific causation or the expert is permitted to 

2 conflate risk and causation. So, for example, 

3 exposure to a chemical may present a risk of cancer 

4 and, therefore, a proffered expert might opine that a 

5 particular person's cancer was caused by exposure to 

6 that chemical without looking at dose, epidemiology, 

7 what specific type of cancer is involved, or other 

8 important specific causation determinants. 

9 We've also encountered engineering experts 

10 in medical device cases attempting to support design 

11 defect claims with general design criticisms of an 

12 entire category of products without any consideration 

13 of the specific product or design at issue.

14 We've also seen pathologists attempting to 

15 offer specific causation opinions based on general 

16 examples of adverse tissue reactions to certain 

17 materials without actually reviewing a particular 

18 plaintiff's pathology slides. 

19 Another problematic trend we've observed is 

20 experts being allowed to testify outside of their 

21 fields. Sometimes, in an effort to save costs, 

22 litigants will present expert testimony from a single 

23 witness in several different fields, including fields 

24 outside of a witness's true expertise, and juries can 

25 be ill-equipped sometimes to determine an expert's 
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1 credentials in a single field, let alone multiple 

2 fields, and the mere appearance of expertise in one 

3 field can lead credibility to testimony in others, 

4 exposing juries to prejudicial testimony by a witness 

5 with little or no expertise at all.

6 And allowing expert testimony like this to 

7 get to the jury distracts and can confuse the jury and 

8 de-emphasize the substantive issues in the case, and 

9 that has ripple effects backwards through the life 

10 cycle of a case. If litigants know that there's a 

11 strong likelihood that they can get to the jury with 

12 very weak experts, they're more inclined to file 

13 weaker and more speculative cases than if they were 

14 put to the task of demonstrating all aspects of expert 

15 admissibility by a preponderance of the evidence. And 

16 it also incentivizes some litigants to merely attempt 

17 to survive summary judgment by presenting passable 

18 expert testimony for the lowest possible cost in the 

19 hopes of drastically increasing the settlement value 

20 of a case before trial. So this type of gamesmanship 

21 prolongs a case and improperly inflates settlements. 

22 So how the proposed changes will help, they 

23 reaffirm the trial court's gate-keeping function by 

24 clarifying that proponents of experts bear the burden 

25 of establishing the four prongs of expert 
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1 admissibility by a preponderance of the evidence.

2 What this means in practice is that more 

3 inadmissible expert testimony will be excluded before 

4 trial and it will increase the quality of expert 

5 testimony that's ultimately presented to the jury. 

6 This would benefit courts, juries, and litigants by, 

7 number one, cutting down on the number of very weak or 

8 speculative cases that are filed to begin with. This 

9 would help federal courts manage their dockets, 

10 especially as to multi-district litigations, which 

11 make up more than 50 percent of the federal docket and 

12 many, if most, require expert testimony.

13 Number two, it will result in more accurate 

14 settlement assessments pretrial because they'll no 

15 longer be inflated and propped up by very weak 

16 experts.

17 And, number three, it will streamline the 

18 issues that actually make it to trial and cut down on 

19 jury confusion by minimizing exposure to speculative 

20 or unreliable expert testimony. So we therefore 

21 support the proposed changes, and I thank the 

22 Committee for its time and consideration of this 

23 testimony and our written comment.

24 CHAIR SCHILTZ: All right. Thank you, Ms. 

25 Bazan.
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1 MS. BAZAN: Thank you.

2 CHAIR SCHILTZ: Do any Committee members 

3 have any questions or any comments?

4 (No response.)

5 CHAIR SCHILTZ: All right. Seeing none, 

6 thank you again, Ms. Bazan. 

7 MS. BAZAN: Thank you very much.

8 CHAIR SCHILTZ: Next, we'd like to hear from 

9 Douglas Burrell or Burrell. Mr. Burrell, I hope I 

10 didn't mispronounce your name. 

11 MR. BURRELL: Well, you did it right, it's 

12 Burrell. Thank you.

13 CHAIR SCHILTZ: All right.

14 MR. BURRELL: First of all, I thank you, 

15 Committee, for agreeing to listen to my comments here 

16 today. I am an attorney in Atlanta, Georgia, with 

17 Drew Eckl & Farnham, and I am the current president of 

18 DRI, Lawyers Representing Business.

19 Myself and two of my DRI colleagues will be 

20 testifying today. As background information, DRI is 

21 and has been the leading U.S. organization of civil 

22 defense attorneys and in-house counsel for more than 

23 60 years. DRI hosts 29 substantive practice group 

24 committees and is home to the Center for Law and 

25 Public Policy. 
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1 The Center is the national policy arm of 

2 DRI. It acts as a think tank and serves as the public 

3 face of DRI, undertaking in-depth studies and 

4 publishing scholarly works on a variety of issues, 

5 including changes to the Federal Rules of Civil 

6 Procedure and the Federal Rules of Evidence. The 

7 Center strongly supports the amendment of Federal Rule 

8 of Evidence 702 as currently proposed, and it 

9 appreciates the Advisory Committee taking on this 

10 task. And DRI has submitted its comments as well. 

11 I am here to speak in support of expressly 

12 stating in Rule 702 (d) that admissibility requires 

13 that the expert's opinion reflects a reliable 

14 application of the principles and methods of the facts 

15 of the case. This is necessary because many decisions 

16 entirely turn over the determination of reliability to 

17 the jury even though Federal Rule of Evidence 702 

18 intends that the court will be the gatekeeper of 

19 reliability.

20 The current committee note from the 2000 

21 amendment of Rule 702 states, "The amendment 

22 specifically provides that the trial court must 

23 scrutinize not only the principles and methods used by 

24 the expert but also whether those principles and 

25 methods have been properly applied to the facts of the 
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1 case." 

2 As the Court noted in In re Paoli RR Yard 

3 PCB, 35 F.3d 717, 745 (3rd Cir. 1994), "Any step that 

4 renders the analysis unreliable renders the expert's 

5 testimony inadmissible." This is true whether the 

6 step completely changes a reliable methodology or 

7 merely misapplies that methodology. Unfortunately the 

8 two did not prove sufficient.

9 For instance, the 2018 MDL ruling in In re 

10 C.R. Bard, Inc. expressly disregarded reliability of 

11 the expert's conclusion as not a subject for gate12 keeping. Rather than pay attention to the committee 

13 note from 2000, that MDL court cited a 20-year-old 

14 1998 decision that is contrary to the intent of the 

15 2000 amendment. Our objective at this time is to 

16 amend Rule 702 in ways that cannot be ignored so that 

17 its intent is routinely applied instead of being 

18 regularly disregarded.

19 As part of the diminishing gate-keeping 

20 employed by the courts, the statement is made that 

21 there is a presumption in favor of admitting expert 

22 testimony, which is not correct because there is no 

23 presumption. The draft committee note now says, 

24 "Unfortunately, some courts have required the expert's 

25 testimony to appreciably help the trier of fact." 
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1 Applying a higher standard than helpfulness to 

2 otherwise reliable expert testimony is unnecessarily 

3 strict.

4 We are asking that the proposed note go on 

5 to say Rule 702 favors neither admission nor exclusion 

6 of evidence but rather states the process for 

7 determining admissibility. Prior decisions that 

8 stated either a heightened burden of admissibility or 

9 a presumption in favor of admissibility are not 

10 consistent with Rule 702. This addition neutrally 

11 balances out erroneous rulings that either favor or 

12 disfavor the admission of expert evidence.

13 I would like to thank you for your time and, 

14 as I stated before, two other of my DRI colleagues 

15 will be testifying to this Committee later. 

16 CHAIR SCHILTZ: All right. Thank you, Mr. 

17 Burrell.

18 Any Committee members have any questions or 

19 comments?

20 (No response.)

21 CHAIR SCHILTZ: All right. Thank you again, 

22 Mr. Burrell. 

23 Next, Mr. Coben?

24 MR. COBEN: Yes.

25 CHAIR SCHILTZ: Good morning, sir. If you 
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1 could introduce yourself, please. 

2 MR. COBEN: Sure. Good morning. My name is 

3 Larry Coben, and I'm providing this testimony 

4 regarding some comments and changes that were proposed 

5 to Rule 702 in my capacity both as a trial lawyer and 

6 as chief counsel for the Attorneys' Information 

7 Exchange Group. AIEG is a nonprofit organization of 

8 over 800 civil litigators who work throughout the 

9 United States representing thousands of consumers who 

10 unfortunately suffer serious injury as a result of the 

11 design or manufacturing flaws in products.

12 These lawsuits almost always require direct

13 analysis by competent experts in a host of scientific 

14 fields. We do this with an understanding and an 

15 appreciation of the requirements of Rule 702 and have 

16 uniformly found that as it currently exists and as it 

17 is applied across the United States, Rule 702 provides 

18 appropriate criteria and boundaries, affording jurors 

19 an opportunity to decide civil disputes with reasoned 

20 opinion evidence.

21 Support for this suggested rule change 

22 language, as I understand it, has been based on 

23 criticism of how some trial courts have applied Rule 

24 702. In our view, this criticism is substantively and 

25 procedurally misplaced. The comment that the 
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1 preponderance of the evidence should be added because 

2 some decisions have failed to mention this criteria of 

3 proof, frankly, is itself an opinion that does not 

4 meet 702.

5 Trial judges routinely apply this well6 recognized requirement every day they are confronted 

7 with expert testimony, and its application does not 

8 demand a restatement of that preponderance rule in 

9 each published opinion. In our view, adding 

10 preponderance of the evidence language to Rule 702, 

11 which is equivalent to showing something is more 

12 likely than not, is neither necessary and, in fact,

13 it's a misnomer.

14 If any new phraseology must be added, and we 

15 think not, it should be the preponderance of the 

16 information because experts can rely upon and refer to 

17 all sorts of information to formulate opinions. They 

18 are not limited to admissible evidence. We think, 

19 therefore, that this phrase is in conflict with Rule 

20 703, allowing the use of non-admissible evidence. We 

21 are more concerned that some may think that this rule 

22 change compels an analysis of whether an expert's 

23 proffered opinion satisfies a party's burden of proof. 

24 That would be a mistake. You see, our courts have not 

25 had any problem distinguishing between a party's 
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1 substantive burden of proof and what is required of an 

2 expert before allowing her testimony.

3 But we fear this distinction will be lost 

4 now. It is critical that the Committee recognize that 

5 expert testimony is an essential element in civil 

6 litigation which needs to be protected against 

7 unwarranted challenges, which, for the most part, 

8 frankly, are contrived rather than real. 

9 As counsel to plaintiffs in trials involving 

10 product liability design and manufacturing defects, 

11 substantive state law requires that consumer victims 

12 proffer expert testimony related to issues of 

13 alternative design, design defect, and proximate 

14 causation. Invariably, the burden of proof dictates 

15 the use of experts, and, routinely, our colleagues on 

16 the defense bar challenge expertise or methodology, 

17 our witnesses, despite the fact that the defense has 

18 disclosed experts with similar qualifications and 

19 using similar methodology.

20 Given these competing arguments, it's not 

21 surprising that the filed commentary has aligned the 

22 proponents and opponents to these perverse changes 

23 along litigation lines. Why do we have lineup of 

24 support and opposition to these changes if they are 

25 only meant to remind courts of the existing standard? 
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1 In truth, whenever changes in procedural or 

2 evidentiary rules are obtained, the wordsmithing 

3 ensures an avalanche of new legal arguments which will 

4 undoubtedly precipitate more litigation.

5 Adding this phraseology, in our view, will 

6 have the opinion of causing some judges to think a 

7 change of substance has happened, now requiring, for 

8 instance, the trial court to find that the opinion is 

9 more likely correct than not or that the trial court 

10 must find that the methodology used is more likely the 

11 correct methodology than the methodology chosen by a 

12 party's opponent, or that the trial court must find 

13 that the facts or data considered in reaching an 

14 opinion are more likely than not.

15 Each of these potential constructions of 

16 this semantical change would have the effect of hugely 

17 altering a proponent's burden of proof and would 

18 convert the trial judge into a thirteenth juror. We 

19 do not believe that this change is necessary, and we 

20 believe it will simply promote additional litigation 

21 and argument and burden our courts. Thank you very 

22 much for allowing me to make these comments. And, of 

23 course, we've submitted written comments as well.

24 CHAIR SCHILTZ: Thank you. Thank you for 

25 appearing.
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1 Do any Committee members have any comments 

2 or questions?

3 (No response.)

4 CHAIR SCHILTZ: All right. Hearing none, 

5 thank you again, Mr. Coben.

6 MR. COBEN: You're welcome.

7 CHAIR SCHILTZ: Next is Alex Dahl. 

8 MR. DAHL: Thank you, Your Honor, and good 

9 morning. 

10 CHAIR SCHILTZ: Good morning.

11 MR. DAHL: Thank you for allowing me to 

12 testify before the Committee on behalf of Lawyers for 

13 Civil Justice, which supports the Committee's Rule 702 

14 amendment. LCJ's comments and research demonstrate 

15 that there is a widespread misunderstanding of the 

16 rule's requirements. We have two recommendations for 

17 improving the proposal, reflecting both what the 

18 proposal is meant to do—clarify date-keeping 

19 requirements—and what it is meant to undo, which is 

20 reliance on the misunderstanding that there's a 

21 presumption in favor of admissibility and that 

22 questions about sufficiency go to weight rather than 

23 admissibility. 

24 The undoing part is hard because these 

25 misunderstandings are deeply ingrained in case law and 
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1 legal culture. You may be familiar with Michael 

2 Lewis's book, The Undoing Project, which describes the 

3 famous collaboration between Amos Tversky and Daniel 

4 Kahneman. What they were undoing is ingrained ways or 

5 habits of thinking. Their fundamental insight is that 

6 people who have a set idea or a viewpoint tend to 

7 downplay or ignore information that's inconsistent 

8 with it and instead look for information that supports 

9 it. 

10 The book recounts Tversky's advice to Delta 

11 Airlines: you're not going to educate experienced 

12 pilots out of making mistakes, but you can greatly 

13 reduce accidents by training people to communicate in 

14 a way that gets the captain's attention when they're 

15 trying to help avoid the problem. Many judges and 

16 lawyers will look at an amendment that purports to 

17 clarify rather than change Rule 702 and see it as not 

18 changing anything. Opponents of Rule 702 standards 

19 will make this argument in court, and, in fact, you 

20 might hear some of that today.

21 It's important that the amendment get the 

22 reader's attention about two fundamental problems. 

23 First, the rule should state expressly that the court, 

24 not the jury, decides admissibility. Adding the 

25 phrase "preponderance of evidence" is a good and 
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1 helpful and necessary addition and it does mean that 

2 the court decides, but it relies on the reader to draw 

3 the inference that the court decides. There's a gap 

4 between what the amendment means and what it says, and 

5 that difference will invite continued misunderstanding 

6 and litigation.

7 Our second recommendation is to make clearer 

8 that the amendment rejects the case law that's 

9 inconsistent with the rule. This is important because 

10 the very reason people will read the note will be to 

11 figure out what to do when the rule and the prevailing 

12 case law disagree. At the recent standing committee 

13 meeting, it was perceived that the suggestion to give 

14 guidance about the case law was based on a desire for 

15 scolding judges who have gotten it wrong. LCJ 

16 strongly agrees with those who said the note should 

17 not be used for that purpose. In fact, we see it the 

18 very opposite.

19 As scolding means rebuking people for past 

20 error, the opposite is helping people to avoid 

21 mistakes in the future. The note should assume that 

22 its readers want to get it right, and the best way to 

23 help those people is clarity. The proposed note says 

24 these rulings are an incorrect application. That's 

25 somewhat helpful, but it's not enough. It fails to 
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1 communicate that you'll get it wrong if you follow 

2 those cases. Restoring the draft language “this 

3 amendment rejects those holdings” is more likely to 

4 get the readers' attention. And even more effective 

5 would be expressly identifying the lines of cases that 

6 will lead readers to make yet another misstatement of 

7 the standards, and the three most commonly cited of 

8 those are Loudermill, Viterbo, and Smith.

9 In closing, the proposed amendment is 

10 important for both what it needs to do—clarify the 

11 gate-keeping standards—and for what it needs to undo:

12 the misunderstandings about those standards. The 

13 undoing part of that is much harder because those 

14 misunderstandings are deeply ingrained and people will 

15 automatically look to the amendment for confirmation 

16 of their current thinking rather than for a challenge 

17 to it. Future judges and lawyers are going to turn to 

18 the rule and note when they need guidance on what to 

19 do when the rule is inconsistent with the case law, so 

20 the text of the rule and the note should make it as 

21 easy as possible for them to get it right. Thank you. 

22 CHAIR SCHILTZ: Thank you.

23 Do any Committee members have any questions 

24 or comments?

25 (No response.)
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1 CHAIR SCHILTZ: All right. Seeing none, 

2 thank you again, Mr. Dahl. 

3 Next, we'll turn to Gardner Duvall. 

4 MR. DUVALL: Thank you very much for this 

5 opportunity to speak. I have been trying civil cases 

6 for 35 years in state and federal courts, and I am the 

7 chair of the Legislation and Rules Committee of the 

8 DRI Center for Public Policy. What I want to do today 

9 is speak in some brief rebuttal to some oppositions to 

10 amending Rule 702, and those oppositions say that the 

11 rule is being applied as intended when, very often, it 

12 is not.

13 The comment that we submitted focuses on 

14 cases that in approach or in outcome vary from the 

15 current Rule 702 and the committee note to it. These 

16 are cases that exemplify and refute the claim that 702 

17 is being applied as intended. So, for instance, in 

18 2014, the Ninth Circuit in the City of Pomona case 

19 rejected the statement that, "[A]ny step that renders 

20 the analysis unreliable renders the expert's testimony 

21 inadmissible. This is true whether the step 

22 completely changes a reliable methodology or merely 

23 misapplies that methodology."

24 That statement, however, is quoted in the 

25 committee note for the 2000 amendment from In re 
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1 Paoli. The Ninth Circuit expressly says that it has a 

2 standard that's different from what other circuits 

3 have and it's different from what was expressly 

4 intended when Rule 702 was amended in 2000.

5 Another case that I think is important as an 

6 example here is the case of Johnson v. Mead Johnson in 

7 the Eighth Circuit in 2014. When you look at the 

8 district court decision in the case, the trial court 

9 expressly walked through the steps that are laid out 

10 in Rule 702 to determine whether or not the evidence 

11 was admissible and reliable, and he found that that 

12 particular evidence was not. And in the appeal, the 

13 Eighth Circuit looked at that and they did not go 

14 through step by step the elements of Rule 702 the way 

15 that the trial court had done, and, instead, what the 

16 court said was, well, it's a differential diagnosis 

17 and we accept differential diagnosis and so it's 

18 admissible testimony. 

19 And I don't ask anyone to relitigate which 

20 of those courts got the admissibility correct. I 

21 don't think that's a useful process at all, but what 

22 is important is that there's a judicial process that 

23 702 sets out, and that is to say there are four 

24 elements that the proponent has to prove and it really 

25 should be a checklist. It's a process. It's a 
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1 method. And that's what the district court did. And, 

2 on appeal, it was reversed by an appellate court that 

3 didn't go through any of those things, did not apply 

4 what the rule intends to be a method, and it 

5 exemplifies where things are going wrong.

6 In fact, the Eighth Circuit's decision there 

7 was very much like a Frye ruling that said this is an 

8 acceptable technique and, therefore, this is 

9 admissible evidence and that's the beginning and the 

10 end of the analysis. We, in our comment, and many 

11 others have noted that a large number of decisions 

12 after the year 2000 and up to the present really cite 

13 back to cases that predate the Rule’s 2000 amendment, 

14 and, thereby, they undermine what was intended when 

15 the amendment was last made. 

16 These decisions often brush off the 

17 reliability standard that was added in Rule 702(d) and 

18 say that reliability is for juries and not for the 

19 court. So the record in this proceeding is replete 

20 with citations that Rule 702 is not being applied 

21 consistently among the circuits and it is not being 

22 applied as intended. This Committee has identified a 

23 failure in judicial process that passes to juries the 

24 role of the judge in considering what is often 

25 critical and challenging evidence. And, therefore, we 
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1 encourage you to move forward with your amendments to 

2 Rule 702 and also with the proposed changes to those 

3 that were submitted in the comment by DRI and its 

4 Center for Public Policy. I want to thank you very 

5 much for your time and for listening to me today.

6 CHAIR SCHILTZ: Thank you. Thank you, Mr. 

7 Duvall.

8 Any Committee members have any comments or 

9 questions?

10 (No response.)

11 CHAIR SCHILTZ: All right. Thank you again.

12 Next, we'll go to Ronni Fuchs.

13 MS. FUCHS: Yes. Thank you. Thank you for 

14 allowing me to address the Committee today. My name 

15 is Ronni Fuchs. I'm a partner at Troutman Pepper, 

16 which is a national law firm. For about 30 years, 

17 I've been representing clients in product liability 

18 and mass tort cases and largely focusing on expert 

19 testimony and Rule 702, so I've observed firsthand the 

20 misunderstanding, as many others have explained, of 

21 the rule that leads to disparate decision-making and 

22 the effect on litigation.

23 But what I'd really like to talk to you 

24 about today is the effect on client decision-making. 

25 Other people have spoken to many of the other issues, 
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1 and although I've spent most of my career at large 

2 firms, I counsel both large and small clients, and 

3 they ask for what's going to happen in a case. 

4 So, in our cases, in almost all of my cases, 

5 they turn on the admissibility of scientific evidence. 

6 My clients are usually facing novel claims based on 

7 complex scientific analysis, and whether there's a 

8 common understanding of what the burden of proof is 

9 for a party putting forward an expert is absolutely 

10 critical. The process of analyzing the scientific 

11 support proffered by somebody making a novel claim is 

12 lengthy and costly. I suspect that many of you have 

13 seen the fruit of this work, the briefing that can go 

14 on and be very lengthy, but also hearings and witness 

15 testimony. What you may not see is all the work that 

16 goes on behind the scenes. Sometimes years of very 

17 expensive and extensive work goes into preparing for 

18 what is ultimately presented to the courts.

19 And a litigant faced with new claims based 

20 on novel evidence has to decide whether they're going 

21 to invest in experts of their own who will challenge

22 unreliable methodology or application of methods and 

23 whether to do the work that is required to present 

24 that to the courts, and as clients consider this, they 

25 want predictability. They want to understand what is 
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1 the standard that will apply to the expert testimony.

2 As it stands today, federal judges don't 

3 apply the rule using the same standard. As you've 

4 heard and as the submissions state, as a result, we 

5 have to counsel clients that the standard is not 

6 predictable and that there's a risk that no matter 

7 that the experts who are proffered against them should 

8 not be admissible under what we believe the standard 

9 is under Rule 702, that an expert's opinion has to be 

10 the product of reliable principles and methods and 

11 that the expert must reliably apply those principles 

12 and methods to the facts of the case, some federal 

13 courts nonetheless will say that the standard for 

14 admitting expert testimony is a liberal one, that 

15 there is a presumption against excluding expert 

16 witnesses, which blunts the consideration of the 

17 unreliable evidence as we believe it should be.

18 Or they do so by finding that failures of 

19 reliability simply go to the credibility rather than 

20 the admissibility of the expert's testimony. And for 

21 clients, the absence of predictability, the failure of 

22 a uniform understanding really frustrates the goal of 

23 their rational decision-making. For litigants facing 

24 these decisions, having clarification of the rule that 

25 corrects the misunderstanding is really essential. It 
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1 will allow them to make rational decisions going 

2 forward and allow us to counsel them more clearly.

3 At the end of the day, predictability is a 

4 friend of the process, and a rule that disfavors 

5 predictability or prevents predictability is a rule 

6 that needs to be amended. Thank you.

7 CHAIR SCHILTZ: Thank you, Ms. Fuchs.

8 Any comments or questions by any of our 

9 Committee members?

10 (No response.)

11 CHAIR SCHILTZ: Seeing none, we'll move on 

12 then to Mr. Gotz, James Gotz. 

13 MR. GOTZ: Good morning, Judge. Good 

14 morning, Professor and members of the Committee. 

15 CHAIR SCHILTZ: Good morning.

16 MR. GOTZ: My name is James Gotz. I'm a 

17 partner at Hausfeld. I'm calling in from Portland, 

18 Maine, where it's also in the negatives, Judge. I'm a 

19 plaintiffs lawyer. I represent folks in 

20 pharmaceutical mass torts and in environmental cases. 

21 My written submission is at Tab 6 of today's 

22 materials. They focus on Rule 702 and more 

23 specifically the note and the proposed changes and 

24 additions to the note. The intention here is to offer 

25 what I'll call pragmatic and humanistic observations 
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1 and suggestions. And specifically today, I've 

2 suggested two sentences to be added to the note, one 

3 offering more guidance on assessing weight versus 

4 admissibility and another adding express reference to 

5 the continued relevance and guidance of the 2000 note.

6 So maybe this is simplistic, but this is how 

7 I think about this rule and this complicated area of 

8 practice. There's a rule. It needs to be followed. 

9 I understand the Committee's perception that there's a 

10 need to clarify it, and there needs to be as much 

11 clarity in the rule itself as possible, consistent 

12 with its intention and its purpose. But there needs 

13 to be enough guidance in the note to help the bench 

14 and the bar understand how best to follow the rule. 

15 We need to make sure the judges know where the gate16 keeping begins and where it ends so as not to invade 

17 the province of the jury.

18 And so long as the judge is following the 

19 rule, I think we should also keep the following in 

20 mind: Judges are human. They're typically not 

21 steeped in scientific training. They're necessarily 

22 using their judgment and their discretion. And the 

23 note needs to be as useful and helpful as possible in 

24 supplying practical guidance for all members of the 

25 bench and the bar, not just the most seasoned and the 
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1 most sophisticated but everyone.

2 So, on the topic of weight versus 

3 admissibility, again, being simplistic, what we're 

4 talking about here is there's a flaw or at least a 

5 perceived flaw in the expert's methods, and the 

6 question for the judge, does it go to weight? Does it 

7 go to admissibility? And how do I, the judge, figure 

8 this out?

9 Scientists are also human, and perfection in 

10 their methods and conclusions is not the standard that 

11 we use to assess admissibility. So how does a judge 

12 figure this out? Because there's no if/then formula 

13 to figure out weight versus admissibility. The note 

14 currently explains, and properly so, not everything 

15 goes to admissibility. Some things go to weight. I 

16 think examples are useful, but my concern about the 

17 current proposed example and, frankly, any example is 

18 this, is that it can be misread or misunderstood or 

19 intentionally used to argue that per that example it 

20 is always so. 

21 And that doesn't mean that examples are 

22 necessarily a bad idea, but whether or not there are 

23 examples in the note, there should be some further 

24 guidance related to the example. I've suggested a 

25 sentence as follows: Whether an opponent's challenge 
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1 is a matter that goes to weight or to admissibility is 

2 necessarily a case-specific inquiry for the court to 

3 assess, to be guided by the nature and the context of 

4 the particular challenge.

5 In other words, context matters when you're 

6 trying to figure out weight versus admissibility. 

7 This one additional sentence or something akin to it 

8 should help the judge better appreciate the need for 

9 what I'll call a holistic approach to the how-to part 

10 of the process while also helping to avoid unintended 

11 consequences from turning the example into a perceived 

12 if/then solution. 

13 Concerning the 2000 note, in my written 

14 submission, also in red, I offer the following 

15 suggested additional sentence for the note: "Because 

16 Rule 702 is being clarified and not changed, the 2000 

17 committee note remains relevant and should continue to 

18 be used as guidance by the court and practitioners."

19 You heard a little while ago from Mr. Dahl 

20 for Lawyers for Civil Justice. He states in his 

21 written comment that Rule 702 and not case law sets 

22 the standards for admissibility of expert evidence. 

23 This rule amendment, as proposed, will not and, by its 

24 language, it's not intended to extinguish or replace 

25 the decades of case law that have developed since the 
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1 Supreme Court's ruling in Daubert, and that includes 

2 the cases cited as important guidance in the 2000 

3 note. Whether from the Supreme Court, the courts of 

4 appeal, or the district courts, that jurisprudence 

5 remains just as centrally important as the rule. They 

6 coexist. Here's just a few examples from the 2000 

7 note that continue to be relevant in motion practice 

8 about expert admissibility.

9 The trial court's role as gatekeeper is not 

10 intended to serve as a replacement for the adversary 

11 system. Proponents do not have to demonstrate that 

12 the assessments of their experts are correct, only 

13 that their opinions are reliable. Experts can reach 

14 different conclusions based on competing versions of 

15 the facts and it's not for the judge to decide which 

16 version of the facts to believe.

17 These and other guidance from the 2000 note 

18 are just as legally accurate and helpful to the bench 

19 and to litigants today as they were 22 years ago, and 

20 the bench and the bar should be expressly directed in 

21 this new note back to the 2000 note for continued 

22 guidance. Doing so should prevent both 

23 misunderstandings and mischief as well. Thank you for 

24 the time today.

25 CHAIR SCHILTZ: Thank you, Mr. Gotz.
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1 Any questions or comments by the Committee?

2 (No response.)

3 CHAIR SCHILTZ: All right. We will move on 

4 then to Mr. Wayne Hogan. Good morning, sir.

5 MR. HOGAN: Good morning, Your Honor, and 

6 good morning to the Committee. I appreciate having 

7 the opportunity to participate today. My own practice 

8 has been in the State of Florida, and I represented 

9 the Code and Rules of Evidence Committee before the 

10 Florida Supreme Court recently, relatively recently, 

11 as to whether they should adopt the Daubert standard, 

12 702, and served on the Judicial Nominating Commission, 

13 the Federal Judicial Nominating Commission that is 

14 bipartisan in the history of Florida and chaired that 

15 for a number of years.

16 But, because my own practice has been in 

17 state courts for the most part, in preparation for 

18 this meeting with you, I looked at some of the rules 

19 that govern the process that you're involved in. 

20 You're a key part of the Supreme Court's work with 

21 Congress on the rules, and you help, as the Court 

22 does, prescribe the rules for 330 million Americans. 

23 And you are mindful that U.S. Code Section 2072 is 

24 explicit in saying that such rules shall not abridge 

25 any substantive right. 
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1 In this particular proceeding, the right 

2 most at risk is the right to trial by jury. And given 

3 your advisory role, Subsection D requires independent 

4 review by the standing committee. There, there is an 

5 added protection: a subcommittee that is to ensure 

6 that the rules are "written in clear and consistent 

7 language." I'll focus on just that, clear and 

8 consistent language, because the language of the first 

9 change in the draft rule is not clear and it is not 

10 consistent with Rules 104 and 1101.

11 In the mid-sixties, there was a movie called 

12 "Cool Hand Luke" and it coined a famous phrase, "What 

13 we've got here is failure to communicate." And, 

14 frankly, that's what we've got here on Line 5 of the 

15 draft that's before you, the draft text, a failure to 

16 communicate. If you were to start reading now down 

17 into the draft committee note, it would take 10 

18 paragraphs down to the very last one before it reveals

19 that the text of the draft rule is incorrect, 10 

20 paragraphs to learn that if this draft goes forward as 

21 is, this Committee did not mean what it said in the 

22 text of the rule.

23 There's a compounding error. The text of 

24 the committee note itself repeats the error three 

25 times, even in its first substantive sentence. Simply 
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1 put, that's not how this should work, not in a careful 

2 committee like this.

3 In fact, if you go to uscourts.gov and the 

4 communication to the bench, the bar, and the public, 

5 we're told, "The pervasive and substantial impact of 

6 the rules demands exacting and meticulous care in the 

7 drafting of rule changes." To be specific, if the 

8 Committee were to decide to change the text of Rule 

9 702, the resulting text should be correct. Justice 

10 Kagan famously said not that long ago of the career of 

11 Justice Scalia, "We're all textualists now." 

12 Therefore, the text of an amended rule should, quite 

13 simply, not have to be corrected by the note.

14 To be specific about what's wrong with the 

15 draft text on this point, no one should have to read 

16 the committee note to learn that the Committee did not 

17 mean evidence when it said preponderance of the 

18 evidence, but it in actuality meant preponderance of 

19 the information presented. Why the attempted fix in 

20 the note? To belatedly correct the text of the draft 

21 because it is inconsistent with Rule 104 and 1101. 

22 That's why it's done, both making it clear that for 

23 preliminary questions, and these questions that we're 

24 talking about in 702 are preliminary questions to be 

25 decided by the judge, witness qualification and 
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1 admissibility, under those circumstances, the court is 

2 not bound by evidence rules.

3 So the text of the draft is neither clear 

4 nor consistent with the Federal Rules of Evidence. 

5 Why create this confusion in the first place? But 

6 there's something else, the states. The states are 

7 impacted by the work that is done by this Committee 

8 and the federal courts and the federal rules. Many 

9 states model their evidence rules on the federal 

10 rules, and many do that by statute. Evidence statutes 

11 enact rules. They do not enact committee notes. And, 

12 therefore, judges in those states that adopt a change 

13 that you might make are going to apply the literal 

14 text of the rule and not going to be looking 10 

15 paragraphs down to something that their legislature 

16 did not adopt. 

17 This committee should have its eyes on the 

18 future. Every time this committee proposes a rule, 

19 that rule must say what it means. It must not be a 

20 rule that begs for correction in a committee note, 

21 where the committee is then saying, oh, by the way, we 

22 didn't mean what we said in the text of the rule. It 

23 bears repeating from above by the U.S. courts to the 

24 public, the bench, and the bar, the pervasive and 

25 substantial impact of the rules demands exacting and 
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1 meticulous care in the drafting of rule changes. 

2 If I have a second, here's an analogy: the 

3 result of the current drafting before the Committee is 

4 the case of the tail, the committee note, wagging the 

5 dog, attempting to correct the rule. As between the 

6 rule and the note, the text of the rule is far more 

7 important. This is beyond what Mark Twain said about 

8 the almost right word versus the right word. This is 

9 about the wrong word, evidence, versus the right word, 

10 information, right there in the text of the rule. I 

11 appreciate very much having the opportunity to speak 

12 with the Committee.

13 CHAIR SCHILTZ: All right. Thank you, Mr. 

14 Hogan.

15 Does the Committee members have any 

16 questions or comments? 

17 MR. CAPRA: Yeah, I do, if I might, Judge.

18 CHAIR SCHILTZ: Yes, go ahead. 

19 MR. CAPRA: Thanks for your guidance. The 

20 term “evidence” was used because that's actually the

21 term that's used by the Supreme Court in the Bourjaily

22 case, preponderance of the evidence standard, and 

23 they're the court that construed 104(a). So we're 

24 relying on the Supreme Court for that term evidence. 

25 And evidence means information brought before the 
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1 court. Evidence might be inadmissible. There's 

2 admissible evidence and there's inadmissible evidence. 

3 What 104(a) says is that the court's not bound by 

4 admissibility, but it's all evidence that's in front 

5 of the court. And that's what the Supreme Court 

6 understood in Bourjaily.

7 So that was the -- just to tell you in terms 

8 of the carefulness of the drafting, which I think 

9 you're questioning, that was the providence. 

10 MR. HOGAN: Do you mind if I speak to that?

11 MR. CAPRA: Sure.

12 MR. HOGAN: If you look at Bourjaily, you'll 

13 see that the question there was not evidence or 

14 information. The question was whether there should be 

15 a higher standard than preponderance that was being 

16 raised by the defendants. The use of the word 

17 evidence there was shorthand for what Professor Capra 

18 has just said is correct, information presented.

19 MR. CAPRA: But, in Bourjaily, actually, the 

20 trial court considers inadmissible evidence. The 

21 statement itself that's inadmissible evidence, I 

22 think, actually was the context. 

23 MR. HOGAN: And that's why it's not 

24 necessary and misleading to say in the text of the 

25 rule evidence when we mean information presented. 
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1 CHAIR SCHILTZ: All right. Thank you.

2 Any Committee members have any other 

3 comments or questions?

4 (No response.)

5 CHAIR SCHILTZ: All right. Seeing none, 

6 thank you, Mr. Hogan, for your presentation. 

7 MR. HOGAN: Thank you.

8 CHAIR SCHILTZ: Next, we'll turn to Katie 

9 Jackson.

10 MS. JACKSON: Good morning, Your Honor, and 

11 thank you for allowing me to testify this morning 

12 about the proposed amendments to Rule 702. My name is 

13 Katie Jackson, and I'm an attorney with the law firm 

14 Shook, Hardy & Bacon. I'm appearing today in my 

15 capacity as a fellow for the Lawyers for Civil 

16 Justice. You've already heard Alex Dahl on this. As 

17 an LCJ fellow this past year, I was able to conduct a 

18 year-long research project assessing how courts admit 

19 expert evidence under Federal Rule 702. My colleagues 

20 and I reviewed over a thousand federal cases decided 

21 in 2020 in which the judge either admitted, excluded, 

22 or partially admitted expert testimony.

23 We reviewed each case individually, looking 

24 for specific factors. One of those factors was 

25 whether the court articulated a standard requiring the 
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1 proponent of proffered expert testimony to show proof 

2 of its admissibility by a preponderance of the 

3 evidence. This, of course, is the preponderance 

4 standard that we've been discussing this morning, 

5 which is reflected in the Federal Rules explicitly in 

6 Rule 104(a) and then incorporated by comment in Rule 

7 702.

8 We compiled all of our findings into a 

9 report. This report was filed with the Committee in 

10 September as an official comment. So, overall, we 

11 found that the federal courts across the country are 

12 split over whether to apply the preponderance standard 

13 when admitting expert evidence. This split occurs 

14 within 57 of the 93 federal judicial districts, which, 

15 of course, covers every federal circuit court's 

16 jurisdiction in the country.

17 The research contains several specific 

18 findings. I'll discuss some of those specific 

19 findings with you today, and then I would direct the 

20 Committee's attention to the LCJ research comment that 

21 we filed for the full results. 

22 First, the research shows that nearly two23 thirds of the time, so in about 65 percent of the 

24 cases reviewed, courts do not mention the proponent's 

25 burden of proof or that a preponderance standard 
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1 applies to a Rule 702 analysis. 

2 Inversely, this means that only about a 

3 third of the time, so in about 35 percent of the cases 

4 that we reviewed, courts mentioned that the proponent 

5 bears the burden of proving admissibility by a 

6 preponderance of the evidence. Of course, a court's 

7 silence regarding the standard does not prove the 

8 court allowed inadmissible evidence at trial, but it 

9 does indicate that the Rule 702 admission process may 

10 need clarification. And, after all, clarification 

11 would aid the parties' advocacy efforts before the 

12 court, as well as an appellate court's ability to 

13 review the trial judge's analysis.

14 To understand why clarification is needed on 

15 this point, the Committee may wish to consider this 

16 scenario playing out in other contexts. For example, 

17 imagine if two-thirds of opinions on prior restraint 

18 failed to mention the strict scrutiny standard or if 

19 two-thirds of opinions evaluating the scope of 

20 discovery failed to mention Rule 26(b)(1). 

21 So the takeaway from this major first 

22 finding is that the majority of courts do not "show 

23 their work" when coming to an admissibility 

24 determination, making it more likely that issues, if 

25 they do exist, will only be compounded in the future.
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1 Turning to the second major research 

2 finding, that one reveals that in about 13 percent of 

3 cases, courts included language reflecting a 

4 presumption of admissibility. This has already been 

5 discussed this morning, but it includes comments such 

6 as the federal rules having a "liberal thrust favoring 

7 admission." So, at least in this percentage of cases, 

8 we know that there was a clear presumption in favor of 

9 admissibility, which does directly conflict with the 

10 intent of Rule 702.

11 And the final finding that I'll discuss 

12 today is perhaps the most interesting finding for the 

13 Committee's purposes. In a number of cases, courts 

14 inconsistently required both a showing of 

15 admissibility by a preponderance of the evidence, as 

16 well as a presumption favoring admissibility. This 

17 data point is particularly interesting because these 

18 two standards directly conflict with each other, and 

19 so it indicates that there is general confusion among 

20 the courts over whether the preponderance standard 

21 applies under Rule 702. It might also reveal deeper 

22 confusion about what those separate standards mean.

23 In conclusion, Your Honor, these results 

24 indicate that Rule 702 is not applied consistently 

25 across the country or even within the same federal 
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1 circuit or judicial district. The proposed amendment 

2 to Rule 702 would clarify that 702 requires courts to 

3 apply a preponderance standard prior to admitting 

4 expert evidence. I'm available to answer any of the 

5 Committee members' questions, but I would otherwise 

6 direct the Committee to the LCJ comment, which we 

7 filed and which includes more additional research for 

8 you. Thank you.

9 CHAIR SCHILTZ: Thank you.

10 Do any of the Committee members have any 

11 comments or questions?

12 (No response.)

13 CHAIR SCHILTZ: All right. Thank you again, 

14 Ms. Jackson.

15 Next, we will move to Andrew Kantra.

16 MR. KANTRA: Good morning. 

17 CHAIR SCHILTZ: Good morning.

18 MR. KANTRA: My name is Andy Kantra. I'm a 

19 partner at Troutman Pepper, and for the last 25-plus 

20 years, I've been spending my time counseling clients 

21 and leading challenges on expert witness issues in 

22 MDLs and mass torts, primarily in the pharmaceutical 

23 context, and it is with that experience that I've 

24 observed firsthand the types of misunderstandings of 

25 Rule 702 that have led to decisions to admit 
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1 unreliable opinions. 

2 Today, what I want to do is focus on one MDL 

3 in which I was involved, which is the Zyprexa MDL, 

4 that helps to explain why I support the amendments to 

5 Rule 702. With respect to Zyprexa, a little bit of 

6 background. It was formed in 2004. It was before 

7 Judge Weinstein in the Eastern District of New York. 

8 And Zyprexa was an antipsychotic medication that was 

9 used to treat schizophrenia and bipolar disorder, and 

10 the allegations were that it caused diabetes and 

11 excessive weight gain. The plaintiffs included 

12 thousands of individual patients, as well as the state 

13 attorneys general and a third-party payer litigation 

14 as well.

15 And so, with that context in mind about the 

16 MDL, I want to turn to Judge Weinstein's decisions. 

17 Between June of 2007 and May of 2009, Judge Weinstein 

18 made rulings on the admissibility of the opinions of 

19 30 different experts and he admitted all of them. In 

20 particular, in the third-party payer litigation, there 

21 were 21 experts across multiple disciplines, including 

22 many complicated damages calculations.

23 But, in evaluating those, Judge Weinstein 

24 disposed of the plaintiffs' challenges with one 

25 paragraph that described each of defendant's experts 
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1 as "a distinguished scientist whose expertise probably 

2 will be helpful." And with respect to the plaintiffs' 

3 experts, Judge Weinstein conducted a sua sponte review 

4 under Rule 702 without the benefit of briefing from 

5 the parties and concluded in two sentences that they 

6 should be admitted. 

7 To explain these rulings, he invoked the 

8 "liberal standard of admissibility for expert 

9 opinions," citing to a Second Circuit opinion, Nimely. 

10 He then went on to cite pre-Daubert Second Circuit 

11 case law to support a presumption in favor of 

12 admissibility. But, in May 2009, Judge Weinstein held 

13 for the first time that an expert witness needed to be 

14 excluded in Zyprexa under Rule 702. This particular 

15 matter involved an endocrinologist whose name was Dr. 

16 Stephen Hamburger. He was proposed as a specific 

17 causation expert on behalf of 20 different plaintiffs.

18 So two years after the initial rulings that 

19 Judge Weinstein issued under Rule 702 that I just 

20 described and with the benefit of greater knowledge 

21 about the benefits and risks of anti-psychotic 

22 medications like Zyprexa, Judge Weinstein correctly 

23 noted that "precision with respect to relevant 

24 scientific knowledge and its application to the facts 

25 and individual cases is expected." 
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1 And when he looked at Dr. Hamburger's 

2 testimony, his conclusion was as follows: he was 

3 shockingly careless about the facts and the cases that 

4 he proposes to opine about. Faced under oath with 

5 consistent extensive factual discrepancies in his 

6 analyses, he merely shrugged them off or flippantly 

7 shifted to a new theory and explanation to establish 

8 causal relationships. He repeatedly and impermissibly 

9 stretched the truth to support findings of causality.

10 Judge Weinstein, looking at that, said that 

11 he could not allow the Zyprexa MDL to become the 

12 subject of the kind of "rubber-stamp expert opinions" 

13 that have so marred mass litigations, and he said that 

14 doing so, admitting Dr. Hamburger's testimony, would 

15 "negate the struggle of the Supreme Court in cases 

16 like Daubert and Kumho and of many individuals to 

17 improve the utilization of science by law." 

18 So what are the lessons that I take away and 

19 offer to you as you consider these amendments? Judge 

20 Weinstein was smart. He was independent-minded. He 

21 was a respected jurist and he wrote the book on the 

22 Federal Rules of Evidence, but the current version of 

23 Rule 702 and the related advisory committee notes led 

24 him to conclude that there is a presumption of 

25 admissibility of expert testimony that only allows 
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1 exclusion in the most extreme instances, such as Dr. 

2 Hamburger's. That's a far cry from the intent behind 

3 Rule 702, as the testimony of others makes clear. 

4 The proposed amendments do what needs to be 

5 done. They are essential to clear up the 

6 misunderstandings and help direct that judges must 

7 scrutinize the scientific methodology and reliability 

8 of expert opinion rather than presuming its 

9 admissibility. Doing so in Judge Weinstein's words 

10 will improve the utilization of science by the law, 

11 and that is why I support these amendments. Thank you 

12 for your time and your consideration. 

13 CHAIR SCHILTZ: Thank you, Mr. Kantra.

14 Are there any questions or comments from the 

15 Committee? 

16 (No response.)

17 CHAIR SCHILTZ: Seeing none, we'll turn then 

18 to Mr. Kelley. Mr. Kelley, good morning. Thank you 

19 for joining us.

20 MR. KELLEY: Good morning. My name is Toyja 

21 Kelley, and I'm here in my capacity as president of 

22 DRI's Center for Law and Public Policy. I practice 

23 complex commercial litigation in the Washington, D.C., 

24 office of Locke Lord LLP. I'm here to speak in 

25 support of expressly stating the proponent's burden in 
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1 admitting expert evidence and of bolstering that 

2 change by stating clearly the trial court's role in 

3 making that determination. It is the Center's view 

4 that the best amendment to Rule 702 would state, "If 

5 the proponent has demonstrated to the court by a 

6 preponderance of the evidence." 

7 Rule 104 does not have an express 

8 preponderance of evidence standard, but the Supreme 

9 Court in Bourjaily interpreted Rule 104 to use that 

10 standard. This articulation was reiterated in 

11 Daubert, and yet, in practice, courts are often 

12 overlooking this standard, and, on occasion, trial 

13 courts have been reversed for actually applying it, as 

14 detailed in the comment provided by DRI and the 

15 Center. 

16 As our written comments note, there are

17 decisions stating that the proponent of expert 

18 evidence does not have to prove anything and others 

19 stating that there is a presumption in favor of 

20 admitting any evidence proposed under Rule 702. Thus, 

21 in order to achieve what Rule 702 has intended for 

22 more than 20 years, the preponderance of evidence 

23 standard must be stated in the text of Rule 702. As 

24 drafted, however, the preponderance standard can be 

25 misconstrued in accordance with the many decisions 
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1 that confuse the jury's fact-finding role with the 

2 court's gate-keeping role. 

3 The proposed amendment is not meant to 

4 reiterate the civil burden of proof and it should not 

5 be misconstrued that way. Because of the abundance of 

6 decisions that seemingly punt the court's Rule 702 

7 role to the jury, the text should be admitted to 

8 negate that construction by saying that the court must 

9 find that there is a preponderance of evidence 

10 establishing each Subpart A through D of Rule 702.

11 In closing, I think it's important to note 

12 that my perspective on this issue is guided by the 

13 fact that I'm often on both sides of the VMI cases. 

14 As a result of that perspective, I see the proposed 

15 changes to Rule 702 as critical to the fair 

16 administration of justice, whether I'm representing a 

17 plaintiff or defending a defendant. Thank you for 

18 your time. And DRI's Center for Law and Public Policy 

19 appreciates the opportunity to address the Committee. 

20 CHAIR SCHILTZ: All right. Thank you, Mr. 

21 Kelley.

22 Are there any questions or comments from the 

23 Committee?

24 (No response.)

25 CHAIR SCHILTZ: All right. We will move 
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1 then to Mr. Lasker, Eric Lasker. 

2 MR. LASKER: Good morning, Your Honor, 

3 members of the Committee. My name is Eric Lasker. 

4 I'm a partner at the Washington, D.C., law firm 

5 Hollingsworth LLP. I am a co-author of the 2015 Law 

6 Review article that first called upon the Committee to 

7 amend Rule 702. At the invitation of the Committee, I 

8 also spoke at a roundtable discussion at the 

9 University of Denver in October 2018, and I have 

10 submitted additional thoughts to the Committee in 

11 written comments submitted in August of 2021.

12 Having thus followed the Committee's 

13 deliberations from the beginning, I seek first to 

14 commend the Committee on its good work and support the 

15 proposed amendment to Rule 702. While the Committee 

16 did not adopt all the language that I had suggested in 

17 my Law Review article, I believe that the proposed 

18 amendment goes a long way to improving the 

19 administration of justice in the federal courts.

20 I also urge the Committee to consider the 

21 proposal by the Lawyers for Civil Justice to add the 

22 language "if the court determines" to the text of Rule 

23 702. While I can understand the objection that might 

24 be made that this requirement is already implicit in 

25 the rule, misunderstanding of this Committee's prior 
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1 work in amending Rule 702 in 2000 demonstrates that 

2 what should be implicitly understood is too often 

3 overlooked when it comes to the issue of admitting 

4 expert testimony.

5 My main purpose today, though, is to impress 

6 upon this Committee the broader importance of its work 

7 in amending Rule 702 and to call upon the Committee to 

8 take further steps to ensure that its work is not 

9 undone in the same fashion as the work this Committee 

10 did back in 2000.

11 Members of the Committee, the need for 

12 institutions like the judiciary to stand firm in 

13 support of sound and reliable science could not be 

14 more pressing. We are today in the seemingly unending 

15 grasp of a COVID pandemic that has caused nearly 

16 900,000 deaths in this country. Most tragically, we 

17 know that a substantial number of those individuals 

18 were lost as much due to a disbelief in the science 

19 behind COVID vaccines as to the virus itself.

20 Scientific skepticism has become ingrained 

21 in our society, in our politics, and in our 

22 understanding and misunderstanding of the world. The 

23 distrust in science is not limited to one political 

24 party or one segment of society. It is widespread, 

25 bipartisan, and endemic. Much of us can do little to 
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1 remedy this problem, but this Committee can do a lot. 

2 The admission of shoddy scientific evidence in courts 

3 undermines the public faith in science at every level 

4 of society. In the realm of criminal law, 

5 organizations like the Innocence Project have 

6 highlighted how scientifically unreliable and 

7 speculative testimony has improperly condemned 

8 innocent people.

9 In the realm of civil tort law, where I have 

10 spent most of my practice, the failure of some courts 

11 to fulfill their gate-keeping responsibility has, to 

12 paraphrase Justice Breyer, led to the misuse of 

13 science, not to reduce or eliminate the right 

14 substances, but to destroy the wrong ones. Obviously, 

15 the proposed amendments to Rule 702 are not going to 

16 solve all the problems of scientific skepticism, but 

17 it is an important step, and it is an important step 

18 this Committee can take and must take. 

19 Which leads me to my second point, which is 

20 that this Committee must view amending Rule 702 as 

21 only the first step in ensuring that judges live up to 

22 their gate-keeping responsibility. When I began my 

23 research for my 2015 Law Review article, I was frankly 

24 stunned when I read the Committee's deliberations and 

25 fully understood what the Committee was seeking to do 
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1 back in the late 1990s when it last amended Rule 702.

2 I have been practicing in the field of 

3 product liability and tort law for roughly 25 years. 

4 My practice has heavily focused on cases involving 

5 scientific evidence, and my firm has been involved in 

6 many of the leading decisions addressing the 

7 admissibility of unreliable scientific evidence.

8 Throughout this entire period, though, I had 

9 the misunderstanding that this Committee in 2000 

10 intended solely to codify Daubert in its amendments to 

11 Rule 702. This misunderstanding, which I believe is 

12 widespread throughout the legal and judicial 

13 committee, had the practical effect of robbing Rule 

14 702 of independent meaning.

15 As a result of this Committee's work, in 

16 2000, Rule 702 was significantly revised to provide a 

17 rigorous and structured approach, and it is far 

18 different than the language of the old Rule 702 that 

19 the Supreme Court interpreted in the Daubert trilogy, 

20 but only some courts took notice. Many other courts 

21 ignored the rule amendments altogether. This history 

22 must not be allowed to repeat itself. The Committee 

23 must be mindful not only of the importance of amending 

24 the language of the rule but on educating courts about 

25 the rule change to make sure that the amendment 
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1 actually achieves its purpose in ways that the 2000 

2 amendment regrettably did not.

3 Again, the Lawyers for Civil Justice have 

4 proposed new language in the advisory committee note 

5 to more clearly guide courts away from following cases 

6 that are not compatible with the language of Rule 702. 

7 I urge the Committee to adopt these regulations, but, 

8 beyond that, I call upon the Committee to consider 

9 what other steps might be necessary to make certain 

10 that this time Rule 702 is properly and uniformly 

11 applied in every federal court and circuit around the 

12 country. Thank you.

13 CHAIR SCHILTZ: Thank you, Mr. Lasker.

14 Are there any comments or questions for Mr. 

15 Lasker?

16 (No response.)

17 CHAIR SCHILTZ: Seeing none, we will move on 

18 to the next speaker then, who is Mary Massaron. Good 

19 morning, ma'am.

20 MS. MASSARON: Good morning. Good morning. 

21 I speak to you today and thank you for allowing me to 

22 address the Committee as an appellate lawyer with 

23 approximately 30 years practicing in state and federal 

24 courts, principally in Michigan and around the 

25 country. And in my experience, when I am working on a 
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1 case where a jury trial has resulted in an aberrant 

2 result, it's often due to expert testimony that was 

3 unreliable but was allowed into evidence and persuaded 

4 the jury.

5 District courts around the country, as well 

6 as appellate courts, are applying different standards 

7 and different understandings of Rule 702, which is a 

8 huge problem. And what I see happening all too often 

9 is that district courts look at the expert's 

10 credentials, but they leave the rigorous examination 

11 of whether the methods and principles that the expert 

12 is relying on are reliable and, even more, leave the 

13 reliable application of those principles to the facts 

14 to the jury. This is the most problematic approach in 

15 my view.

16 Research shows that when jurors lack the 

17 ability to understand scientific methodology and 

18 principles, and, after all, that's why the expert 

19 testimony is supposed to be allowed in, they fall back 

20 on external cues to determine whether to accept what 

21 the expert says as valid. So a highly credentialed 

22 expert who is not using reliable principles and 

23 methods that would be used outside the courtroom or is 

24 misapplying those principles to the facts or is 

25 purporting to apply those methods and principles where 
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1 there are not facts that would support their 

2 application, it's exactly in that circumstance that 

3 the jury is highly likely to fall back on the expert's 

4 credentials and accept those opinions.

5 It would be nice to think that all of the 

6 experts who come into court are bound by their oath 

7 and give unbiased and accurate testimony to the best 

8 of their ability, but I'm sure it's no surprise to 

9 anyone who's been involved in the litigation system in 

10 our country that there are, often enough to be a 

11 significant problem, experts who make a career out of 

12 testifying and who are merely paid advocates or 

13 partisans for the position of whoever is paying the 

14 fee for their testimony.

15 And it's at that problematic moment that the 

16 district court's rigorous consideration of whether 

17 that testimony is reliable becomes most important. 

18 Once those experts are allowed to present testimony, 

19 they throw up clouds of confusion, and yet their 

20 testimony may be given credence by the jury, not 

21 because it's well-founded but because they've been 

22 presented something as scientific and the jury is 

23 relying on the fact that they have some degrees or 

24 experience or credentials. So the jury simply accepts 

25 their analysis and reaches a wrong conclusion.
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1 Psychologists have studied this, and in the 

2 written letter that I sent to the Committee, I cited 

3 one article at least that talks about this problem 

4 with juries relying on the external cues and why 

5 that's a significant problem.

6 When we see these problems, as an appellate 

7 lawyer, I would like to think I can correct them, help 

8 the clients reach the result that they should on 

9 appeal, but that is very often difficult. The federal 

10 appellate circuit courts of appeal have varied 

11 standards. It's not consistent around the country or 

12 even in some cases within circuits. 

13 In addition, it's very difficult to overturn 

14 a wrong admission of expert testimony on appeal 

15 because the standard of review is often articulated as 

16 one that affords discretion to the trial court's 

17 ruling, and, of course, the harmless error standard is 

18 an easy fallback for an appellate court that doesn't 

19 want to upset a lengthy, complicated trial.

20 Because of that, it's absolutely essential, 

21 in my view, for the Committee to adopt these proposed 

22 changes. And I think even more essential than the 

23 changes to the rule, it's vital to include in the 

24 comment the list of cases that are out there creating 

25 huge confusion amongst well-meaning jurists who are 
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1 trying to do the right thing because those cases rely 

2 on the law before the amendment of Rule 702 and are 

3 not consistent with what the language of the rule is 

4 trying to do, what the Committee intended for the rule 

5 to do, and what's a proper understanding.

6 So I don't want to take any more of this 

7 Committee's time than is necessary. Those were the 

8 key points, and I did send a letter that elaborates a 

9 bit on them. I'd be very happy to answer any 

10 questions. 

11 CHAIR SCHILTZ: Thank you.

12 Are there any questions or comments?

13 (No response.)

14 CHAIR SCHILTZ: All right. Seeing none, 

15 we'll move on to the next speaker, which is Mr. 

16 Masslon, John Masslon. Good morning, sir.

17 MR. MASSLON: Thank you, Your Honor, for 

18 giving me the chance to testify on behalf of 

19 Washington Legal Foundation. As explained more fully

20 in our formal written comments, we support the 

21 proposed amendments to Rule 702. The amendments fix 

22 the problem of courts requiring the party objecting to 

23 expert testimony to show that the testimony was 

24 inadmissible. They also fix the problem of expert 

25 opinions unmoored from the application of reliable 
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1 methods and principles to the facts of the case. 

2 But today I'll discuss minor tweaks to the 

3 proposed amendments that would further ensure that 

4 district courts properly act as gatekeepers to prevent 

5 juries from hearing unreliable expert testimony.

6 First, the Committee should take all steps 

7 possible to ensure that lower courts follow Rule 702's 

8 plain text and the Supreme Court's decisions 

9 interpreting the rule. There are outdated cases that 

10 courts disproportionately rely on when admitting 

11 expert testimony that violates Rule 702. There is an 

12 easy way for the Committee to stop courts from citing 

13 these cases: the Committee should add a comment that 

14 explicitly clarifies that those cases are not good 

15 law.

16 The Committee took this approach in 2015. 

17 Then the Committee added a note stating that the rule 

18 expressly rejects the holding of a Second Circuit case 

19 that other courts had relied on when perpetuating the 

20 error. The Committee should add a comment that Rule 

21 702 rejects the Eighth Circuit's decision in 

22 Loudermill v. Dow Chemical Company. There, the court 

23 said that, "As a general rule, the factual basis of an 

24 expert opinion goes to the credibility of the 

25 testimony, not the admissibility." That, of course, 
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1 is incorrect. Under Rule 702, courts must decide this 

2 question. Yet many courts quote that decision's 

3 language that disregards Rule 702's gate-keeping 

4 requirement.

5 Similarly, the Committee should explicitly 

6 reject the Fifth Circuit's decision in Viterbo v. Dow 

7 Chemical Company. There, the court said that, "As a 

8 general rule, questions related to the bases and 

9 sources of an expert's opinion affect the weight to be 

10 assigned that opinion rather than its admissibility." 

11 Again, that is wrong. A court should not be able to 

12 cite that decision to bypass Rule 702's gate-keeping 

13 requirement.

14 And in Smith v. Ford Motor Company, the 

15 Seventh Circuit incorrectly said that, "Soundness of 

16 the factual underpinnings of the expert's analysis" 

17 are "factual matters to be determined by the trier of 

18 fact." By adding a comment abrogating those cases, 

19 the Committee would ensure that they receive a red 

20 flag on Westlaw and Lexis, which in turn would help 

21 courts to avoid erroneously citing the cases. And for 

22 those plaintiffs' attorneys who continue to cite these 

23 cases, explicitly rejecting them in the committee's 

24 note would allow courts to impose sanctions under 

25 Federal Rule of Civil Procedure 11 for relying on the 
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1 cases. 

2 Second, the Committee should ensure that 

3 courts apply Rule 702 fairly. The clarification the 

4 proponent of expert evidence must prove by a 

5 preponderance of the evidence that it's admissible 

6 under Rule 702 is a positive development. But further 

7 clarification would ensure that courts understand how 

8 the burden of proof operates. The Committee should 

9 add a note that states there is no presumption that 

10 district courts should admit expert evidence.

11 There's nothing explicit in the rule that 

12 explains why the court should apply a presumption when 

13 deciding a Rule 702 issue. The Committee should fix 

14 this by adding a note that explicitly states that 

15 there is no presumption. Rather, district courts must 

16 decide whether the party proffering the expert 

17 testimony has satisfied the preponderance of the 

18 evidence standard. If so, then the evidence is 

19 admissible. If not, it's admissible [sic].

20 Finally, the Committee should ensure courts, 

21 not juries, decide the admissibility of expert 

22 evidence. Adding the burden of proof to Rule 702 

23 presents an opportunity for enterprising plaintiffs' 

24 attorneys and district courts to skirt the rule's 

25 requirements by having the jury decide whether the 
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1 expert's evidence is admissible. They could argue 

2 that since a preponderance of the evidence standard 

3 should apply it’s a factual question for the jury, not 

4 the judge. 

5 There's an easy solution to this potential 

6 problem. The Committee should propose amending Rule 

7 702 as follows: "A witness who is qualified as an 

8 expert by knowledge, skill, experience, training, or 

9 education may testify in the form of an opinion or 

10 otherwise if the court finds that the proponent has 

11 demonstrated by a preponderance of the evidence that." 

12 These four words would ensure that judges, not juries, 

13 decide the admissibility of expert evidence. Thank 

14 you.

15 CHAIR SCHILTZ: Thank you.

16 Are there any questions or comments from the 

17 Committee? 

18 MR. CAPRA: Judge, I do have a question if 

19 you don't mind.

20 So I'm a bit concerned about the coexistence 

21 of two statements. One, it's determined by a 

22 preponderance of the evidence, and two, there's no 

23 presumption at all with respect to expert testimony. 

24 I find those as inconsistent. If there's a 

25 preponderance of the evidence standard, then all 
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1 things being equal, there is a presumption against the 

2 admissibility of expert testimony, a mild one, but it 

3 is. So to add presumptions in there just seems to me 

4 to be very confusing. I guess that's my first point.

5 My second point, I guess, is -- I'll leave 

6 the second point. That's the only one I want to talk 

7 about. 

8 CHAIR SCHILTZ: Okay. Mr. Masslon, go ahead 

9 if you wanted to respond.

10 MR. MASSLON: I disagree. I think that by 

11 saying “a preponderance of the evidence,” you only 

12 need a feather on the scale of justice that shows that 

13 the evidence is admissible. I think the key is to say 

14 that there is no presumption that the evidence is 

15 admissible because that's what district courts are 

16 doing. They're saying that there's a presumption that 

17 expert evidence is admissible. And by saying that 

18 there is no such presumption that it's admissible, 

19 rather that the proponent must show by a preponderance 

20 of the evidence that it's admissible, you're making 

21 clear what that burden is and who it falls on.

22 MR. CAPRA: I understand that part, but the 

23 suggestion that's in the submission is that there's no 

24 presumption one way or the other. I don't understand 

25 that.
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1 MR. MASSLON: I think that you have to 

2 evaluate the evidence and see whether there is a 

3 preponderance of the evidence. And to say that there 

4 is a presumption against it would indicate something 

5 more than a preponderance of the evidence standard in 

6 my mind. 

7 MR. CAPRA: Okay. Thank you. 

8 CHAIR SCHILTZ: Any other questions or 

9 comments?

10 (No response.)

11 CHAIR SCHILTZ: All right. Thank you, Mr. 

12 Masslon.

13 MR. MASSLON: Thank you.

14 CHAIR SCHILTZ: Next, we'll go to Lee Mickus 

15 or Mickus.

16 MR. MICKUS: Lee Mickus, Your Honor. And 

17 thank you very much for the opportunity to present my 

18 views to the Committee. I'm a civil litigator who 

19 defends manufacturers in product liability cases 

20 around the country, and in that capacity, I encounter 

21 Rule 702 disputes on a very regular basis. I support 

22 the proposed amendment but encourage the Committee to 

23 add a direct reference to the court as decision-maker 

24 to the text of the rule. 

25 First, I'd like to spend a moment, just a 
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1 moment, on the need for the amendment. I think there 

2 is a need because courts are presently not clear on 

3 their gate-keeping role and, frankly, they're 

4 presently caught between the text of Rule 702 and some 

5 problematic case law that gives contrary direction 

6 about what they should do. You've seen in the 

7 comments from Bayer, from Lawyers for Civil Justice, 

8 from the Colorado Civil Justice League and others that 

9 some hundreds of Rule 702 decisions in the last 

10 several years contain statements showing that courts 

11 do not understand that they must determine that the 

12 sufficiency of an expert's factual basis or the 

13 reliability of the methodological application are 

14 matters for the court. 

15 Instead, these judges frequently pass that 

16 responsibility to the jury, despite Rule 702(b). Many 

17 of these decisions follow pre-Daubert case law 

18 statements, such as those just mentioned by the last 

19 speaker, Loudermill, Viterbo, and Smith in particular. 

20 Those cases do not interpret Rule 702. They 

21 were decided before it came into being as it currently 

22 exists. The reliance on these cases indicates that 

23 current courts are frequently distracted by these 

24 problematic prior rulings and are deeply confused as a 

25 result on the standard that they should apply. The 
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1 large body of decisions that overlook essential 

2 aspects of Rule 702 demonstrate that the current rule 

3 simply does not provide adequate guidance to the 

4 courts about their gate-keeping responsibility, and 

5 amending Rule 702 to add the preponderance of evidence 

6 standard into the rule will better convey the elements 

7 of Rule 702 are all admissibility considerations. 

8 But the amendment can be made even better. 

9 Rule 702's text needs to give unambiguous guidance 

10 that the court is the decision-maker on the enumerated 

11 admissibility considerations. Adding the phrase "if 

12 the court determines" or similar language to the text 

13 of the rule would provide that clarity about the 

14 court's role, and doing so will help those courts that 

15 are caught in that bind between the text of the rule 

16 and these problematic case law get out of that bind.

17 Judges are likely to look first to the text 

18 of the rule itself for direction. If they have a mis19 impression of the court's role due to that mistaken 

20 case law, the most effective way to communicate their 

21 responsibility is to tell them in the text of the rule 

22 that the judge must consider and decide the listed 

23 elements. Doing so will convey that these are not 

24 matters that can be conveyed to the jury. And I noted 

25 in my written testimony that members of the Committee 
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1 themselves have used phrasing similar to "if the court 

2 determines" when describing how Rule 702 in either its 

3 present or in its proposed amended form should 

4 operate. That certainly suggests to me that these 

5 words provide a clear explanation that other courts 

6 could draw guidance from.

7 Far from being confusing, as my friends at 

8 the AAJ have suggested, placing "if the court 

9 determines" into the rules language would unmistakably 

10 signal that the judge's gate-keeping responsibility 

11 includes evaluating the sufficiency of factual basis 

12 or the application of methodology, as Rule 702 

13 intends. Further, this phrase would provide an answer 

14 to any possible uncertainty about the status of 

15 incorrect case law declaring general rules about 

16 factual basis or methodological application being 

17 matters of weight and not admissibility. By adding 

18 that phrase to the text, the rule would necessarily 

19 render those opinions incompatible with the text of 

20 the rule.

21 Also, I don't expect that courts would 

22 interpret the phrase "if the court determines" to 

23 establish a new universal requirement to perform a 

24 Rule 702 review even without an objection. I know 

25 that concern has been raised with the Committee. The 
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1 adversary system operates on an understanding that an 

2 opponent must object to evidence in order to initiate 

3 the court's scrutiny, and that expectation applies 

4 across all rules of evidence. 

5 In order to shift this thinking to conclude 

6 that Rule 702 alone, among all the evidence rules, 

7 would obligate judges to sua sponte conduct a review, 

8 the rule and the note would need to contain direct and 

9 explicit language indicating that major change in 

10 practice, but the words "if the court determines" just 

11 don't support that conclusion that a fundamental 

12 change in approach is intended. 

13 If amended to add this phrase, the rule and 

14 the note would contain no direct statement that a 

15 party need not object, and nothing in the note, as 

16 presently drafted, suggests that a purpose is to 

17 create a new requirement that judges must conduct a 

18 detailed review for every expert who must testify 

19 objection or no.

20 If the Committee truly fears that some 

21 judges may over-read that phrase, "if the court 

22 determines," to create this new obligation for sua 

23 sponte review, that possible interpretation could be 

24 controlled by a statement within the committee note 

25 indicating that that is not the intent of these few 
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1 words that are being added to the rule. That's an 

2 appropriate and frequently taken approach in committee 

3 notes. 

4 Alternatively, if the Committee is truly 

5 concerned that this is a possibility, adding to the 

6 text of the rule a phrase such as "on timely request," 

7 such as Rules 105 and 201(e) contain, or "at a party's 

8 request," as Rule 615 contains, would provide 

9 direction that courts should act in response to an 

10 objection and not act sua sponte.

11 With this amendment to add "if the court 

12 determines," the proposed amendment would put all the 

13 necessary information in the text of the rule, so 

14 there will be no ambiguity when a judge opens up the 

15 rule book and decides what he or she is supposed to 

16 do. The preponderance standard, the burden of 

17 production is there in the rule.

18 The direction that this is a court decision, 

19 not something to be deferred to the jury, is in the 

20 text of the rule. Everything that's necessary in 

21 terms of the elements of admissibility are listed out 

22 in the text of the rule. That will present in one 

23 tight package what the court needs, and putting that 

24 in an amendment will provide courts that are currently 

25 confused about their responsibility with the guidance 
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1 that they need and it'll go far to unify the courts in 

2 a single approach to Rule 702 objections. Thank you, 

3 Your Honor, and I'd be happy to answer any questions.

4 CHAIR SCHILTZ: Thank you, Mr. Mickus.

5 Are there any questions or comments by the 

6 Committee members?

7 (No response.)

8 CHAIR SCHILTZ: Okay. Thank you again.

9 At this point, we've gone over an hour and a 

10 half. I want to just take a short break. We'll take 

11 a 10-minute break. We'll come back, and then we have 

12 about eight or nine speakers to hear from. I will be 

13 back in 10 minutes. 

14 (Whereupon, a brief recess was taken.) 

15 CHAIR SCHILTZ: All right. We will resume 

16 our hearing at this point. The next speaker is Amir 

17 Nassihi. I don't know if I'm pronouncing that 

18 correct.

19 MR. NASSIHI: That is absolutely correct. 

20 Thank you. Good morning.

21 CHAIR SCHILTZ: Good morning.

22 MR. NASSIHI: Thank you all for letting me 

23 come and speak today. My name is Amir Nassihi. I'm a 

24 partner at Shook, Hardy & Bacon and co-chair its class 

25 action group. I really do appreciate the chance to 
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1 talk today about how Rule 702 interacts with Rule 23, 

2 which governs class actions. Much of my practice 

3 involves defending class actions, and much of the 

4 debate over certifying class actions really boils down 

5 to whether you can trust the experts offered on either 

6 side. 

7 Rule 23 requires a rigorous analysis before 

8 certifying a class, and both sides often provide 

9 expert evidence at that certification stage. But 

10 courts do not always treat that expert evidence 

11 according to the guidelines of Rule 702, and, in fact, 

12 there is a split among appellate circuits in how 

13 courts treat expert evidence in class certification. 

14 Some circuits, namely the Third, Fifth, and Seventh, 

15 mandate a correct application of whether expert 

16 evidence meets Rule 702 standards and recognizes the 

17 gatekeeper responsibility of the courts.

18 By contrast, the Eighth follows a focus 

19 standard, which lets in more questionable expert 

20 evidence, and the Sixth has no discernible standard. 

21 Finally, the Ninth has issued a series of cases that 

22 create confusion about what is and is not appropriate 

23 in a 702 analysis at certification. One opinion, Sali 

24 v. Corona Regional Medical Center, had a panel affirm 

25 certification based on pseudo-expert evidence 
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1 submitted by a paralegal. In another, the Grodzitsky 

2 v. Honda decision, another panel affirmed a denial of 

3 certification that was based on excluding questionable 

4 testimony of an expert. And another more recent 

5 opinion in Olean v. Bumble Bee Foods, the Ninth 

6 Circuit attempted to set out the correct standard for 

7 addressing 702 issues and making clear the gate8 keeping requirement of the judge. It also sought to 

9 resolve ambiguities in certification standards in 

10 making clear that the preponderance of the evidence 

11 standard applied to demonstrating all aspects 

12 supporting certification.

13 Now the dissent in that case disagreed with 

14 different parts of the decision but agreed with those 

15 core components related to Rule 702 and related to 

16 preponderance of the evidence in relation to 

17 demonstrating the all facts supporting classification, 

18 but the dissent related to standing issues, and the 

19 opinion was thus vacated on those grounds and an en 

20 banc panel is rehearing it, focusing on the standing 

21 issue, and it's unclear if it'll even address Rule 702 

22 aspects of the original decision.

23 So it's my view that the proposed amendment 

24 will help courts understand that the expert evidence 

25 must be handled according to Rule 702's requirements 
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1 with care at high-stake hearings. I understand the 

2 Committee is also considering revising the comments to 

3 the rule, and my view is that the clear and uniform 

4 judicial gate-keeping standard is critical in class 

5 actions since the admission or exclusion of expert 

6 testimony really makes a difference between facing an 

7 individual lawsuit or facing the company litigation 

8 with the associated pressures to resolve. 

9 As a couple of examples, in one case, I'm 

10 defending a product manufacturer. The court allowed 

11 in questionable expert testimony to support 

12 certification, and the proper gate-keeping standard 

13 under 702 was very much a focus of the debate. The 

14 court ultimately did so not because the evidence was 

15 particularly reliable but because it believed a lesser 

16 Rule 702 standard applied at certification. But Rule 

17 702 does not have gradations of rigor. Either expert 

18 opinions are well-founded or they're not.

19 So I also support further elaboration and 

20 comments on how to apply the preponderance standard. 

21 A recent case I defended involved a pet food company 

22 and submission of expert testimony that heavy metals 

23 bioaccumulate in pet food. Now the phenomena of 

24 bioaccumulation as described in the case matched the 

25 description of what many courts have derived as the 
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1 any exposure theory of toxic substances, and under 

2 this theory, which lacks scientific rigor, any 

3 exposure can cause ill effects because exposures 

4 accumulate. 

5 The theory as articulated required constant 

6 speculative leaps to maintain, but the trial court, 

7 even though it referenced a preponderance standard, in 

8 the same paragraph, it also talked about 702 being a 

9 flexible standard, and following that, the court then 

10 rejected all critiques of the foundation of the 

11 expert's theory as a matter of weight and not 

12 reliability, even though they specifically addressed 

13 the scientific soundness of the opinion.

14 Now these examples are all too common. I 

15 just the other day read a relatively new Ninth Circuit 

16 decision from last month in a case called MacDougall 

17 v. Honda, and there, the Ninth Circuit reversed the 

18 trial court's exclusion of a damages expert in a class 

19 action. The expert testimony had been the sole 

20 support to show that injury could be proven on a 

21 class-wide basis. The defendant had challenged the 

22 report's methodology because it had not addressed any 

23 market considerations at all that were relevant. It 

24 had selected the wrong attributes. It had improperly 

25 used averages. But, in an all too familiar refrain, 
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1 the Ninth Circuit in an unpublished decision held that 

2 all these challenges go to the weight and not 

3 admissibility.

4 So, for these reasons, I support what the 

5 Committee is doing, and I very much thank you for the 

6 opportunity to testify.

7 CHAIR SCHILTZ: Thank you, Mr. Nassihi.

8 Are there any questions or comments?

9 (No response.)

10 CHAIR SCHILTZ: Hearing none, we'll move on 

11 then to Leslie O'Leary.

12 MS. O'LEARY: Thank you, Your Honors and 

13 members of the Advisory Committee. I'm Leslie 

14 O'Leary. I'm an attorney at the law firm Ciresi 

15 Conlin LLP in Minneapolis. For the last 23 years, 

16 I've represented plaintiffs in --

17 CHAIR SCHILTZ: Oh, Ms. O'Leary, I'm sorry, 

18 I can hear you but not see you. Do you have a camera 

19 you can turn on?

20 MS. O'LEARY: Now I do. Thank you.

21 CHAIR SCHILTZ: There you go. All right. 

22 Thank you.

23 MS. O'LEARY: Okay. So, to start over, my 

24 name is Leslie O'Leary. I'm an attorney at the law 

25 firm Ciresi Conlin in Minneapolis. I've represented 
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1 plaintiffs in product liability actions both in 

2 federal and state court, and, in fact, a great deal of 

3 my life's work has been focused on the admissibility 

4 of expert testimony under Rule 702. I'm here today to

5 express concern over the proposal by various interest 

6 groups to insert a comment in the Rule 702 --

7 (Technical interference.)

8 MS. O'LEARY: -- certain opinions, appellate 

9 court decisions, as wrongly decided.

10 While it's understandable that any losing 

11 party on a contested issue such as this will disagree 

12 with the court's holding and analysis, it shouldn't be 

13 the function of this Committee to declare that a rule 

14 of decision is invalid and must no longer be followed. 

15 The Advisory Committee isn't a court of law. It's not 

16 empowered to decide legal matters, and whether a 

17 federal court of appeal has wrongly interpreted or 

18 misapplied Rule 702 or any rule of evidence for that 

19 matter is an issue that's properly resolved by the 

20 Supreme Court through the judicial appellate process.

21 So taking sides on judicial opinions not 

22 only creates an appearance of bias and detracts from 

23 the Committee's important work, it creates a more 

24 fundamental risk. It forces the Committee to make 

25 assumptions about the volumes of data the trial judge 
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1 and the appellate court thoroughly considered in 

2 deciding these admissibility questions. And without 

3 comprehensively reviewing the entire record in each 

4 case and assessing all the information and witness 

5 testimony, as both the trial court and the reviewing 

6 court did, how can the Committee conclude with 

7 certainty that a case was, in fact, wrongly decided. 

8 And, relatedly, the court shouldn't accept 

9 at face value the argument that appellate decisions 

10 should be officially renounced for creating bad 

11 precedent. The Loudermill opinion in the Eighth 

12 Circuit is a really good case in point. Defense 

13 organizations dislike Loudermill's rule that the court 

14 may exclude an expert opinion if it is so 

15 "fundamentally unsupported that it can offer no 

16 assistance to the jury." They contend this standard 

17 sets such a low bar to admissibility that it 

18 essentially mandates admission of expert testimony.

19 But Loudermill doesn't stand for the 

20 proposition that defense groups claim. In fact, the 

21 Eighth Circuit recently clarified in the In re Bair 

22 Hugger opinion that Loudermill's so fundamentally 

23 unsupported standard is simply another way of stating 

24 the rationale announced by the Supreme Court in Joiner

25 that testimony may be excluded if it is too great an 
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1 analytical gap between the actual bases for the 

2 expert's opinions and the conclusions they generate.

3 The detractors of the current Rule 702 have 

4 cherry-picked cases like Loudermill to create a false 

5 narrative that junk science has run rampant in the 

6 federal courts, but this dire depiction simply isn't 

7 true. In fact, as I was preparing for this hearing, I 

8 ran a quick check of Eighth Circuit decisions on 

9 admissibility of testimony under 702, and from this 

10 very cursory review, I found no fewer than a dozen 

11 Eighth Circuit decisions that excluded the plaintiff's 

12 expert opinions, nearly all of them citing Joiner or 

13 Loudermill or both for the rationale that there was 

14 too great an analytical gap or unsupported speculation 

15 for their opinions.

16 So this further confirms that in practice 

17 trial courts and appellate courts are not confused or 

18 blindly admitting testimony or misconstruing the 

19 standards of admissibility. To the contrary, over the 

20 last 22 years since the amendments to 702 were adopted 

21 in 2000, courts have remained consistent and 

22 consistently cautious and vigilant in screening expert 

23 testimony.

24 So, in closing, I would urge the Committee 

25 to avoid wading into the partisan fray and not call 
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1 out established appellate decisions and decree them 

2 invalid. It would dishonor the judiciary and do 

3 unnecessary harm to the Committee's esteemed 

4 reputation as a neutral advisory body. Thank you so 

5 much for this opportunity to be before you today.

6 CHAIR SCHILTZ: Thank you, Ms. O'Leary.

7 Any questions or comments from the 

8 Committee?

9 (No response.)

10 CHAIR SCHILTZ: All right. Next, we'll move 

11 to Jared Placitella. Mr. Placitella? Hope I have 

12 that right.

13 MR. PLACITELLA: Yes, you do, Your Honor. 

14 Good afternoon, Your Honor and Committee members. My 

15 name is Jared Placitella, and I'm an attorney with 

16 Cohen, Placitella & Roth. We are located in New 

17 Jersey and Philadelphia and represent plaintiffs in 

18 toxic tort cases. I rise to tell this Committee that 

19 it should refrain from enacting the proposed 

20 amendments for the text of Rule 702 and the committee 

21 note. The revisions will not fix the alleged 

22 problems, such as managing congested court dockets or 

23 experts offering opinions outside their expertise that 

24 have been previously raised. 

25 The stated intention of the amendment is to 
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1 clarify that the requirements of Rule 702 must be 

2 established by a preponderance of the evidence for the 

3 expert's testimony to be admissible. But a test that 

4 analyzes evidence is not supported by judicial 

5 precedent. And a preponderance standard has been 

6 incorporated into Rule 702 for the last 20 years and 

7 it has been applied by trial courts, whether expressly 

8 stated in their opinions or impliedly so since that 

9 time. 

10 In Daubert, the court instructed that in 

11 using Rule 104(a) to determine whether an expert seeks 

12 to testify to scientific knowledge helpful to the 

13 trier of fact, trial judges "are not bound by the 

14 rules of evidence" and that "these matters should be 

15 established by a preponderance of the proof." 

16 Yet, by requiring that Rule 702 be 

17 established by a preponderance of the evidence rather 

18 than a preponderance of the proof or, better yet, a 

19 preponderance of the information, as suggested in the 

20 draft committee note, trial courts and the advocates 

21 before them may mistakenly find that they are bound by 

22 the rules of evidence, which is not what Daubert

23 envisioned. 

24 In comparing weight versus admissibility, 

25 the note further reinforces that trial courts should 
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1 conduct an analysis of only admissible evidence. That 

2 is especially true if this Committee were to reinsert 

3 "if the court determines" back into the preamble, as

4 others have advocated. But the note later states that 

5 the amendment means that the judge must find on the 

6 basis of the information presented that the proponent 

7 has shown the requirements of the rule to be met. 

8 But the explicit contradiction between 

9 preponderance of the evidence in the rule and basis of 

10 the information in the note will sow unnecessary 

11 confusion among trial courts of what burden should be 

12 applied and what proof should be considered in 

13 deciding whether to admit expert testimony. For 

14 instance, Rule 702 as written would contradict Rule 

15 703, which permits experts to base their opinions on 

16 inadmissible facts or data. 

17 Yet, under the proposed rule, only 

18 admissible evidence can be used to show that the 

19 expert's methodology and opinion are reliable. If 

20 this Committee decides to move forward with an 

21 amendment, the Committee can simply substitute 

22 information for evidence in the text of the rule's 

23 preamble to eliminate any possible confusion and to 

24 inform state court judges around the country whose 

25 states will not incorporate or codify the committee 
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1 note.

2 The proposal to amend Rule 702 is also 

3 unnecessary. The Committee explained that this 

4 amendment is essential because jurors may be unable to 

5 evaluate the reliability of an expert's methodology 

6 and assess whether the conclusions generated are 

7 supported by it. Besides underestimating jurors, this 

8 revision has the practical and unintended potential to 

9 cause the court to mistakenly believe that it, not the 

10 jury, must decide the correctness of scientific 

11 evidence.

12 That invasion of the province of the jury 

13 undermines a hallmark of our civil justice system that 

14 recognizes the collective wisdom of the jury is 

15 superior to the perspective of any single individual. 

16 Indeed, the current rule and 2000 committee note 

17 already address the stated problem that the proposed 

18 amendment seeks to fix by reminding trial courts to 

19 follow Joiner's teaching that they should consider 

20 whether the expert has unjustifiably extrapolated from 

21 an accepted premise to an unfounded conclusion. The 

22 current framework emphasizes that your trial judge 

23 must exercise its gate-keeping function to the 

24 expert's ultimate opinion as well as his or her 

25 methodology.
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1 Practically, the amendment to Rule 702(d) 

2 risks transforming Daubert hearings into mini-trials 

3 whereby trial judges, who are not qualified to 

4 evaluate the correctness of an expert's conclusion, 

5 review each scientific study individually for whether 

6 it reliably supports the ultimate conclusion being 

7 advocated or opposed. That would be contrary to the 

8 scientific method itself.

9 Finally, the note explains that the 

10 amendment to Rule 702(d) is especially pertinent to 

11 the testimony of forensic experts in both criminal and 

12 civil cases. Instead of amending Rule 702(d), which 

13 applies to the opinions of all experts in all 

14 disciplines in all cases, further education may be 

15 provided to trial judges or the forensics chapter of 

16 the reference manual on scientific evidence may be 

17 supplemented in order to provide trial judges with any 

18 further necessary guidance. Your Honor, thank you for 

19 the opportunity to address this Committee. 

20 CHAIR SCHILTZ: Thank you, Mr. Placitella. 

21 Any comments or questions from the 

22 Committee? Professor Capra, I can't tell if you're 

23 about to comment or not. Okay. You had the look.

24 All right. We will turn next to then Mr. 

25 Bill Rossbach. Mr. Rossbach?
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1 MR. ROSSBACH: Yes. Am I on screen? I 

2 can't -- I'm not sure I am.

3 CHAIR SCHILTZ: Yeah, you are. You're a 

4 little not centered, but we can both see and hear you.

5 MR. ROSSBACH: Okay. Thank you very much. 

6 As stated, my name is Bill Rossbach. I'm a 

7 plaintiffs' trial attorney in Missoula, Montana. And 

8 I want to thank you for giving me the opportunity this 

9 morning to provide comments regarding the proposed 

10 amendments. 

11 I have practiced 40 years litigating 

12 exclusively cases involving medicine, engineering, and 

13 science. Every case that I have litigated and tried 

14 in Montana and many other states has required at least 

15 one and often as many as 20 or more expert witnesses. 

16 As I described in my letter to the Committee that is 

17 included at Tab 19, I would like to focus here on 

18 three points. First is a simple, straightforward one, 

19 following on what Ms. O'Leary said, if the primary 

20 goal of the amendments is clarification and education, 

21 then the criticisms of the courts in the comment will 

22 be counterproductive and jeopardize the credibility of 

23 the committee note. As Mr. Dahl from the Defense Bar 

24 labeled it, scolding is rarely a sound pedagogical 

25 strategy. I strongly urge removal of all references 
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1 critical of court and jury decisions.

2 Second, and this is where I'm somewhat 

3 handicapped a little bit by following Mr. Placitella, 

4 if clarification and education is the goal here, then 

5 the use of the term “preponderance of evidence” is a 

6 significant backward step and will likely create 

7 confusion, not clarity. 

8 “Evidence” is a legal term of art. It 

9 describes information that meets the requirements of 

10 admissibility and can be introduced and considered by 

11 the finder of fact. “Information” is not evidence 

12 until it is deemed admissible. The addition of the 

13 preponderance standard is a principal amendment to the 

14 rule. Whether it's needed or not, I'm not going to 

15 comment, but to use the term evidence in that standard 

16 directly contradicts Rule 104, which expressly states 

17 that in making a preliminary determination, the court 

18 is not bound by the rules of evidence. If it's not 

19 bound by the rule of evidence, then it is inconsistent 

20 and conflicts with Rule 104 to use the term evidence 

21 in the preponderance standard. 

22 I would like to take a couple of minutes to 

23 follow up a little bit on the two cases, one of which 

24 is cited in the comment and the case which is, I 

25 think, the case from which Rule 702 arises. The first 
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1 is Bourjaily, which is the bridge that connects Rule 

2 104 and Rule 107(o)(2). While not a paragon of 

3 clarity, as Professor Capra noted, the court, in 

4 several instances, used the term “preponderance of 

5 evidence,” but it does not take a close reading to 

6 realize that the court is referring to what is 

7 described in Rule 104 as information, not evidence. 

8 If you look at page 175 of 48 U.S., the 

9 court says, "We have traditionally required that these 

10 matters," referring to 104, "be established by a 

11 preponderance of proof." Evidence is placed before 

12 the jury when it satisfies the technical requirements 

13 of the evidentiary rules. In other words, it's not 

14 evidence until it fits the evidentiary rules. And the 

15 court made the further statement, which clearly 

16 indicates the role that needs to be emphasized here 

17 between the jury and the court, it says, "The inquiry 

18 made by the court concerned with these matters is not 

19 whether the proponent of the evidence wins or loses 

20 the case but whether the evidentiary rules have been 

21 satisfied."

22 It goes on in the next paragraph to say --

23 and, again, this talks about preponderance of the 

24 evidence. I know some courts have said they have not 

25 used that term, but as the court in Bourjaily
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1 announced, the preponderance standard ensures that 

2 before admitting evidence, the court will have found 

3 it more likely than not that the technical issues and 

4 policy concerns addressed by the Federal Rules of 

5 Evidence have been afforded due consideration.

6 And in Daubert then, which follows and cites 

7 to Bourjaily, Daubert noted that judges are not bound 

8 by the Rules of Evidence at 509 U.S. at 601 and, 

9 again, cited the specific language from Bourjaily, 

10 “preponderance of proof.” So, if we're talking about 

11 a Rule 702 to follow the guidance of the Supreme Court 

12 on Daubert, it is preponderance of proof that the 

13 court was looking at. 

14 This is also consistent with Rule 703, which 

15 clearly states that experts need not rely on facts or 

16 data that is admissible. So let me just then follow 

17 up with my concern about the practical problem here. 

18 It's a practical problem when you use terms 

19 inconsistently. Throughout, in both 703 and 104, it 

20 is not admissible evidence that is required. And in 

21 my view, let's do a balancing here. What is the 

22 upside of using evidence versus the downside of 

23 potential confusion of evidence versus information? 

24 There is no upside to using evidence. There is plenty 

25 of downside to using evidence. There is plenty of 
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1 upside to using information and no downside to using 

2 information. If we want to be practical and make it 

3 easier for judges to understand what they can or 

4 cannot use, then I strongly urge that we use the word 

5 information, not evidence.

6 I would also like to follow up a little bit 

7 on Mr. Hogan's practical concerns. In Montana and a 

8 number of the other places where I practice in state 

9 law by pro hac or otherwise, they do not include 

10 comments. So the clarification in the comment about 

11 information and not evidence, as Mr. Mickus said, we 

12 need to put these things in the rule, not necessarily 

13 in the comments. These comments are not necessarily 

14 going to be in state court if the state court adopts 

15 Rule 702. I think it's more important to put the word 

16 information in the rule rather than evidence. 

17 Lastly, I wanted to make a brief comment 

18 about the LCJ's study of 1,059 cases, which numerous 

19 witnesses have used to support various unstated 

20 conclusions. The bottom line, as I say, there is 

21 widespread confusion, but if this were a report that 

22 was going to be relied on or used as an expert for 

23 expert opinion, it would not be admissible. It 

24 provides very little information about the methodology 

25 that was used, what databases were searched, what 
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1 search engines were used, how did they determine that 

2 these 1,059 cases were cases that were the only cases? 

3 What analytical or statistical methods were used and 

4 why? How did they use these methods to reach a 

5 conclusion? 

6 The conclusion that I heard from I think it 

7 was Ms. Jackson was two-thirds of the courts failed to 

8 mention the preponderance standard. Does that mean 

9 that they didn't consider the preponderance standard? 

10 What does it mean at all? It means nothing except 

11 that two-thirds -- that one-third didn't use the 

12 preponderance standard doesn't prove anything. It's 

13 just, again, the concern I have that this is nothing 

14 more than anecdotal -- I guess I would use the word 

15 anecdotal information that has really no scientific or 

16 other basis.

17 And the final thought I have is this is a 

18 constitutional right to a right to a jury trial. The 

19 right to a jury trial is, at bottom, a part of this 

20 rule. The Seventh Amendment, with the addition of the 

21 preponderance of evidence standard, it will lead to 

22 decisions that usurp the ultimate fact-finding role of 

23 the jury. And, with that, I would like to thank you 

24 again for giving me the opportunity to speak.

25 CHAIR SCHILTZ: All right. Thank you, Mr. 
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1 Rossbach.

2 Are there any comments or questions by 

3 members of the Committee?

4 (No response.)

5 CHAIR SCHILTZ: Seeing none, we will move 

6 then to Mr. Thomas Sheehan. Mr. Sheehan?

7 MR. SHEEHAN: Can you see me and hear me?

8 CHAIR SCHILTZ: Yes, both.

9 MR. SHEEHAN: Excellent, excellent. As you 

10 stated, my name is Tom Sheehan. I am a lawyer and 

11 actually an epidemiologist as well that for decades 

12 has worked at what I like to call the intersection of 

13 law and science, often in connection with threshold 

14 questions of the admissibility of expert opinions.

15 I'd just like to thank the Committee for the 

16 opportunity to speak with you in support of the 

17 proposed amendments to Rule 702, and I'd also like to 

18 thank the Committee really for all the work that it's 

19 done to address what I consider to be a very important 

20 topic. The work has been noticed, obviously, by 

21 members of the bar, as is evidenced by all the notes 

22 that you've received and all the folks that are 

23 speaking here today, so appreciate all the work that 

24 you've done.

25 Now, as it has been mentioned several times 
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1 today, Rule 702 was last amended 22 years ago, in 

2 2000, and since that time, there have been numerous 

3 Law Review articles, numerous commentaries published, 

4 and they've recognized that many courts have struggled 

5 to understand and apply the tenets that are embodied 

6 in Rule 702. And, in fact, as the current draft 

7 committee note recognizes, "Many courts have held that 

8 the critical questions of the sufficiency of an 

9 expert's basis and the application of the expert's 

10 methodology are questions of weight and not 

11 admissibility, and these rulings are an incorrect 

12 application of Rule 702 and Rule 104."

13 So the natural question then is, what leads 

14 judges to incorrectly apply Rule 702 on critical 

15 questions regarding the application of the rule and 

16 how it applies to the admissibility of expert 

17 testimony? And if we can answer that question, then, 

18 of course, we've got to consider, what can we do to 

19 help judges properly apply Rule 702?

20 Now regarding the first question, I know 

21 there's been some criticisms of submissions to the 

22 Committee, but I would submit that there is now a 

23 wealth of data and analysis that's been performed by 

24 Professor Capra, by Committee members, by academics, 

25 by front-line members of the bar, and I'm not going to 
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1 attempt to summarize all those data today or 

2 regurgitate it to you, but I've reviewed it, as I'm 

3 sure the Committee has, and what I take away from it 

4 is an illustration of a number of important issues and 

5 concepts.

6 I think it's recognized that there is a 

7 widespread problem with the application of Rule 702. 

8 Whether you want to say that's a significant minority

9 of courts or how you want to actually quantify that is 

10 not as important to me. I think there is truly no 

11 dispute that there is widespread misunderstanding 

12 about what the rule requires, and I think that problem 

13 is driven by repeated misstatements in case law of 

14 what Rule 702 is about and what it mandates a judge to 

15 do, and I think that those misstatements evidence a 

16 fundamental misunderstanding of the role of judicial 

17 gate-keeping.

18 So somebody I think earlier said, hey, this 

19 is just basically sour grapes. One side doesn't like 

20 a decision, another side does, and it sort of goes 

21 both ways, so, therefore, don't amend the rule. I 

22 just want to be very clear that the research that has 

23 been done is not sour grapes. It's not cherry-picked 

24 examples where one side substantively disagrees with a 

25 well-reasoned Rule 702 decision.
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1 In fact, I was a co-author of a note 

2 submitted to the Committee that analyzed all recent 

3 MDL decisions over a period of years. I submitted 

4 that to the Committee, and what we found really was 

5 what I would describe as a problem that goes from the 

6 root to the branches, and what I mean by that is MDL 

7 Rule 702 decisions have a ripple effect throughout the 

8 judiciary. They're decided by highly qualified 

9 jurists. And so, when an MDL judge articulates in a 

10 widely read decision, for example, that the factual 

11 basis for an expert's opinion is not a proper gate12 keeping inquiry under Rule 702, that has a tendency to 

13 get some traction. It gets repeated again and again, 

14 and it gets ingrained in the case law.

15 And I think that highlights the 

16 misunderstanding about the reliability inquiry, that 

17 methodology is just an abstract concept that's only 

18 loosely connected to the underlying facts. And on the 

19 contrary, it is the gate-keeping role to ensure that 

20 all the steps of a purportedly reliable methodology 

21 have been reliably applied to the existing facts and 

22 data. 

23 And this apparent misunderstanding about and 

24 subsequent misapplication of Rule 702 can have wide25 ranging and potentially profound impacts on companies, 
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1 on doctors, on the practice of medicine, on the 

2 availability of therapeutic options for patients. So 

3 I just want to stress that this is not merely an 

4 academic discussion that we are having today. Rule

5 702 decisions truly have effects well beyond the 

6 courtroom. 

7 So just getting back to my two questions, if 

8 there's a problem that involves a misunderstanding of 

9 Rule 702, which I would submit there clearly appears 

10 to be, what can the Committee do about it? And I 

11 would suggest that amendments can work. Amendments 

12 prompt judges and lawyers to refocus, re-energize, 

13 revisit what they thought they knew, as Mr. Lasker 

14 commented on earlier, and carefully consider what's 

15 the rationale for the underlying changes.

16 Now the proposed amendments, I think, can 

17 fairly be characterized as modest, but I also think 

18 it's fair to say that they will help judges. And, in 

19 fact, as some have suggested, I think it was Lee 

20 Mickus earlier, adding the language "if the court 

21 determines" back into the rule would provide 

22 unambiguous clarity to the steps required to be 

23 undertaken by judges and the judicial gate-keeping 

24 role.

25 And that's really the whole point, right, of 
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1 any rule change, is to provide clarity for judges, to 

2 underscore that the burden of proof lies with the 

3 proffering party and there is no liberal admission 

4 policy. I think it was Professor Capra that 

5 highlighted that tension before. I won't get into the 

6 distinction between evidence and information. I think 

7 the proposed changes make sense and I think, for the 

8 reasons that Professor Capra indicated, there is 

9 precedent for using the phraseology that has been 

10 submitted.

11 But I think that more importantly, adopting 

12 these changes and adopting an accompanying note that 

13 highlights the rationale for the proposed changes and, 

14 in fact, does highlight where courts have got it wrong 

15 in the past, where there has been that incorrect 

16 application on these critical questions will only 

17 serve to help the judiciary discharge their gate18 keeping role and will help to ensure consistent and 

19 uniform application of Rule 702 across jurisdictions.

20 Thank you very much for your time today, and 

21 I'm happy to address any questions.

22 CHAIR SCHILTZ: All right. Thank you.

23 Are there any questions or comments?

24 (No response.)

25 CHAIR SCHILTZ: All right. We'll turn next 
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1 then to Mr. Smoger or Smoger.

2 MR. SMOGER: Smoger.

3 CHAIR SCHILTZ: Smoger. Mr. Smoger, 

4 welcome.

5 MR. SMOGER: I assume I can be seen and 

6 heard.

7 CHAIR SCHILTZ: Yes.

8 MR. SMOGER: Thank you. I practice at the 

9 law firm of Smoger & Associates, and I remember -- I 

10 go back too long, I remember Professor Gottesman 

11 arguing Daubert, which actually the plaintiffs won, 

12 which most people forget. I prepared amicus briefs in 

13 both the Kumho Tire and the Joiner cases. I've argued 

14 in different supreme courts the issues of 702, in 

15 state supreme courts, which is one of the things that 

16 I think we have to really consider, the fact that a 

17 large number of states take the 702 rule and adopt it 

18 without the notes or comment. They just take the 

19 rule. So the rule on its face has to say what we mean 

20 it to say in terms of state practice.

21 I myself have tried cases throughout the 

22 nation, probably in more than half the states, where I 

23 actually handled it in more than half the states. And 

24 this court has a difficult job of one size fits all 

25 and extraordinarily different cases to handle this. 
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1 And I would like to discuss the practice. The real 

2 practice is we start the case with these Daubert

3 motions, which are a form of in limine motion. I 

4 think it was said by Mr. Mickus that, well, it's not 

5 going to happen unless they're broad. 

6 I can tell you in the smallest case almost 

7 every expert has a motion to exclude. This, you know, 

8 goes down to small accident cases, all the way up to 

9 the MDL. It's uniform. There's always that motion. 

10 The motion doesn't end it if it happens. Now we're 

11 led to believe that every time the expert has been 

12 allowed it's been too broad. Every time that the 

13 expert has been struck it's been meticulously stated. 

14 But it's going to happen all the time and it's 

15 consistent. So what do we have? I will tell you we 

16 don't end at the Daubert motion proceeding and this is 

17 all about processing, where I'm going to finish.

18 We start with those motions. Every time we 

19 go to trial, there will be an in-trial motion to 

20 strike the expert again. As soon as we end the 

21 presentation of expert of the case, there will be a 

22 motion for a directed verdict, and that will include 

23 all the Daubert questions a third time. So it's an 

24 ongoing process and an expensive process. I don't 

25 bring -- almost never bring Daubert motions. And 
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1 you're seeing that this is often the defense side. 

2 Well, the reason for that is what I do, if I bring 

3 them and win, is I create an appellate issue and 

4 almost a guaranteed appellate issue.

5 So I'd be very, very careful if I'm ever 

6 going to do that. And I don't. So that's why we are 

7 seeing so many from one side, because the defense has 

8 the advantage. If they can win their motion, then the 

9 result is the case is over. There's a huge victory in 

10 winning the motions and the experts because then we 

11 can't meet our burden of proof. So they're broad. 

12 There's questions about why this is help for 

13 settlement. This should never be an issue for 

14 settlement. There's a need that cases that certain 

15 experts don't do things right, like they don't look at 

16 an entire MDL file. Well, they can't. It costs a 

17 fortune to give it. You try to do your best to give 

18 them what they will need.

19 I wanted to get to the three cases that have 

20 been talked about. One case is the Loudermill, Smith, 

21 and Viterbo cases. I don't want to really deal with 

22 them, except for the fact that they demonstrate how 

23 out of context and how unique. Let's look at -- if 

24 you look at the really facts of Smith, Smith was about 

25 the fact that -- and it's the only one of the three 
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1 that was reversed. Smith was about the fact that the 

2 expert should've been an automobile design expert and 

3 the plaintiffs used an electrical engineer and a 

4 mechanical engineer with 40 years' experience and they 

5 both worked for GM, one for 17 years and done accident

6 reconstruction. And the court said, well, you're not 

7 a process design expert, you're a mechanical design 

8 expert.

9 The Loudermill case was DBCP and was a 

10 toxicologist, and the issue was whether the 

11 toxicologist could testify. Well, the toxicologist 

12 was chief for the regulated substance and sections of 

13 the Southwest Medical Center. He was on the staff in 

14 toxicology. And the only thing he hadn't done was 

15 just DBCP. It was a single injury, liver damage, and 

16 he had 20 years' experience, including consulting with 

17 the EPA on looking at the relationship.

18 So the third one, Viterbo, is just shocking 

19 to me. If you want to put a red flag on something, 

20 that's pesticide tort, okay? Well, the expert was 

21 struck in Viterbo. How do you put a red flag on that? 

22 So let me get to, you know, what I see the real issue 

23 and why we have an issue, and I understand where 

24 Professor Capra chose “evidence” from, but it's not to 

25 look at what happened, it's to question procedurally 
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1 what we think might happen. And what we think might 

2 happen is that we're going to get hearings that are 

3 asking courts, especially in state court without the 

4 comments, that they have to determine that it's 

5 evidence, that it's admissible evidence before that 

6 can go on to review, that they have to look at it in a 

7 sense.

8 So even though Professor Capra says 

9 admissible or nonadmissible evidence, we are fearful 

10 that courts looking at that will have evidentiary 

11 findings and there will be a separate evidentiary 

12 hearing, which is why we say information, because that 

13 says to the court you can look more broadly. So I 

14 understand why the words were chosen. My fear is the 

15 implication of how those words will be used.

16 That's the same thing with findings, which 

17 is my last point. You've been asked to do findings. 

18 Well, the findings were going to require courts to 

19 have their own sessions and analysis in terms of doing 

20 that, and they're going to be asked to hold hearings 

21 and have findings of fact to get that. So our 

22 question here is really how we envision this process, 

23 and that is the greatest issue of our concern about 

24 putting the word “findings” in and our concern about 

25 using the “evidence.” It's not where it came from. 
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1 It's the implications of how courts, particularly 

2 state courts, will use it. I thank you for your time.

3 CHAIR SCHILTZ: Thank you, Mr. Smoger.

4 Any questions or comments? 

5 JUDGE SCHROEDER: I have one.

6 CHAIR SCHILTZ: Yes, Judge Schroeder? 

7 JUDGE SCHROEDER: For Mr. Smoger, Rule 703 

8 refers to facts or data that an expert can rely on 

9 that may not be admissible. Is there any information 

10 in your view that would not be facts or data that 

11 you're worried about with the use of the word 

12 evidence? 

13 MR. SMOGER: I'm worried about -- that 

14 depends on putting them together, but evidence is 

15 inconsistent with facts and data, if you look at just 

16 the word evidence.

17 JUDGE SCHROEDER: But my question is a 

18 little more specific and that is Rule 703, the 

19 argument is made -- well, let me back up. The 

20 argument is made that if we use “evidence,” we're 

21 inconsistent with 703. So, if I look to 703, it uses 

22 the phrase “facts or data” for what can be relied upon 

23 and it need not be admissible. Given your concern 

24 that you've expressed that there might be some 

25 exclusion of something under the use of the phrase 
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1 evidence if “preponderance of evidence” is put into 

2 Rule 702, my question is, is there anything in the use 

3 of the phrase “information” that extends beyond facts 

4 or data, as contemplated by 703? 

5 MR. SMOGER: We don't believe so. The 

6 question is if you're getting it down to one word and 

7 not repeating 703 within 702, then the search was to 

8 look for a word that would incorporate that. So that 

9 seemed to be the best single choice of the word. But 

10 we don't need to extend it beyond what 703 allows.

11 MR. CAPRA: May I interject that 702 and 703 

12 are doing two different things? 703 is what an expert 

13 can rely upon; 702 is what the judge must find. And 

14 so you wouldn't refer to evidence in 703 at all. 

15 There's no reason. It's not an evidentiary 

16 determination they're making. They're coming up with 

17 an opinion, whereas a judge is looking at all the 

18 evidence, admissible and inadmissible evidence.

19 I guess I'd also say it's weird to say that 

20 the rule that's incorporating 104(a), which itself 

21 says the judge can consider inadmissible evidence, 

22 becomes somehow confusing. But I guess there's been a 

23 lot of that talk today, so it's something that we'll 

24 have to think about. 

25 CHAIR SCHILTZ: Judge Schroeder, did you 
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1 have anything more?

2 MR. SMOGER: No, I thank you and I agree 

3 that if 703 is longer, that's what we're trying to 

4 say. And we're trying to get rid of not having 

5 inconsistency and we just -- I've been before too many 

6 courts that will say that if it's evidence, that I 

7 have to decide admissibility before I make the review. 

8 So I'm trying to avoid that in the rule.

9 CHAIR SCHILTZ: Thank you, Mr. Smoger. 

10 Next is Navan Ward. Good morning, sir.

11 MR. WARD: Good morning. My name is Navan 

12 Ward --

13 CHAIR SCHILTZ: You can begin whenever

14 you're ready.

15 MR. WARD: Okay. Thank you. Again, my name 

16 is Navan Ward, and I am a partner with the law firm of 

17 Beasley Allen, located in our Atlanta, Georgia, 

18 office. For over 20 years, I've had the honor of 

19 representing victims of product liability, trucking 

20 and nursing home claims, as well as defective 

21 pharmaceutical and medical device claims. I'm also 

22 the president of the American Association for Justice, 

23 otherwise known as AAJ, and I am here to speak today 

24 on behalf of AAJ and our members. 

25 I do want to thank this Advisory Committee 
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1 for your time and attention to the matters that have 

2 been discussed today. Having the distinguished 

3 position of being second to last in the order today, 

4 I've had an opportunity to listen to all of the very 

5 insightful presentations throughout this day, and it's 

6 clear that all sides agree that the main issue that 

7 this Advisory Committee must resolve is how to 

8 eliminate or substantially reduce existing and future 

9 confusion or the need to make assumptions by courts, 

10 as well as providing predictability to parties as it 

11 relates to 702. 

12 AAJ's recommendations are the most effective 

13 and efficient way to achieve that goal with our 

14 proposed clarifications that will give courts clear 

15 direction on what standards courts should apply. 

16 AAJ's first recommendation is in complete and 

17 consistent agreement with this Advisory Committee's 

18 decision from the spring 2021 meeting where the 

19 conclusion was to remove the language of the courts 

20 demonstrate or the courts find from sentences 

21 regarding preponderance. This Advisory Committee 

22 simply got it right the first time, and, therefore, we 

23 strongly oppose any suggestions to reinsert that 

24 language or similar language, such as "the court 

25 determines," back into the text of this rule for all 
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1 of the reasons discussed during the last meeting as it 

2 has the unintended potential for causing the court to 

3 view that the court and not the jury must weigh and 

4 decide the correctness of the scientific evidence,

5 which is -- and will intrude and diminish the role of 

6 the jury.

7 AAJ's next recommendation relates to the 

8 language and text in Rule 702 which says or should say 

9 “preponderance of information” because that's exactly 

10 what the committee note indicates it should say. It 

11 was referenced earlier, but when we go to the very 

12 last paragraph of the committee note, it so clearly 

13 spells out the preponderance of information standard 

14 when it states in sum, "evidence does not mean 

15 evidence, but rather, in 702, evidence means 

16 information." It is extremely important that this 

17 clarification is stated in the actual text of the rule 

18 instead of using a contrary or incorrect phrase of 

19 “preponderance of evidence,” not to mention such 

20 explanation should potentially be moved to a more 

21 prominent place in the notes.

22 Now I'd like to highlight that this portion 

23 of the committee notes occurs after and takes into 

24 consideration Rule 104, the rulings in Bourjaily, 

25 other Supreme Court rulings, and still lands on making 
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1 the point that, again, evidence, as referenced in 702, 

2 is meant to use a preponderance of information 

3 standard.

4 Now this is an opportunity for this Advisory 

5 Committee to make the necessary clarifications on this 

6 issue, which has always been a core function and role 

7 of the Advisory Committee because a reader should 

8 simply not have to take multiple steps to explain this 

9 text by going to notes, other rules, common law, and 

10 other resources when, at the end of the day, the 

11 explanation can simply be written in the actual rule.

12 As a practical matter, this contradiction 

13 will certainly lead to and/or contribute to confusion 

14 by well-meaning courts, as well as parties. And we 

15 already know that there is pre-existing confusion and 

16 mistakes by courts regarding this rule as it's already 

17 a concern that's freely acknowledged within the 

18 committee notes. And by using the preponderance of 

19 evidence text, there will undoubtedly be additional 

20 confusion by courts because, when courts use 

21 incorrectly and interpret that they are required to 

22 decide the merits of expert testimony by a 

23 preponderance of evidence and are bound by the 

24 evidence standard, inconsistent rulings on this issue, 

25 split decisions between circuits, and increased 
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1 appellate review on the meaning of this rule is sure 

2 to follow.

3 Confusion will also occur when parties 

4 knowingly or unknowingly argue legally incorrect 

5 positions, particularly in states that adopt the 

6 Federal Rules of Evidence but not the notes or 

7 commentary which explain or clarify this particular 

8 rule, which by my calculation would apply to at least 

9 15 states. Misinterpretation on this issue on the 

10 state level will be multiplied several times over if 

11 “preponderance of evidence” is allowed to be in the 

12 text.

13 In a nutshell, AAJ's recommendations provide 

14 this Committee a direct way to allow 702 to simply 

15 mean what it says by saying what it means in the 

16 actual text of the rule. Thousands of my plaintiff 

17 trial lawyer colleagues around the country also 

18 represent victims in a variety of other claims, and a 

19 common thread to each of our victims' cases is that we 

20 need experts to prove their claims, and uncertainty in 

21 Rule 702 could be devastating to a plaintiff when 

22 misapplied, resulting in the exclusion of our experts 

23 and, thus, exclusion of our claims, while the converse 

24 for the defense does not bring such an equivalent 

25 result. Therefore, it is extremely imperative that 
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1 any and all ambiguity is removed from the court's 

2 analysis in such an important rule by using the 

3 preponderance of information standard. Thank you. 

4 And I'd be happy to answer any questions.

5 CHAIR SCHILTZ: Thank you, Mr. Ward.

6 Are there any questions or comments from the 

7 Committee?

8 (No response.)

9 CHAIR SCHILTZ: All right. Thank you again.

10 And our last speaker today is Mr. Warshauer. 

11 Mr. Warshauer, welcome.

12 MR. WARSHAUER: Thank you. Good afternoon. 

13 My name is indeed Michael Warshauer. For 38 years, as 

14 a small firm lawyer, I've represented plaintiffs in 

15 individual product liability, motor vehicle and truck, 

16 and malpractice actions. My experience with 702 

17 motions is extensive as I was lead counsel for the 

18 plaintiff in General Electric Company v. Joiner. I've 

19 briefed and argued motions relating to the admission 

20 of expert testimony hundreds of times in multiple 

21 states, in multiple federal courts and multiple 

22 circuits at both the trial and appellate levels. 

23 Some of these cases have involved huge 

24 amounts of compensation at risk and damages to be paid 

25 by the defendant, whereas others were quite modest. 
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1 Dealing with Rule 702 standards is often the most 

2 expensive and time-consuming aspect of the entire 

3 litigation process. Indeed, virtually every expert is 

4 challenged, increasing the cost to the plaintiff and 

5 the burden on the trial court.

6 I will remind the committee that the goal of 

7 the Federal Rules of Evidence is not to reduce trial 

8 dockets or protect defendants from having to answer 

9 for their wrongful conduct, not at all. The goal 

10 should be to ensure that the promise of the Seventh 

11 Amendment is kept for all Americans and administered 

12 fairly to litigants in MDLs, as well as those involved 

13 in run-of-the-mill truck wrecks.

14 Not one of the proponents for amending Rule 

15 702 in a manner that will encourage judges to encroach 

16 on the duty of juries has mentioned this sacred aspect 

17 of our Constitution, the Seventh Amendment, not one. 

18 Instead, they've talked about eliminating trials 

19 through motion practice and amending Rule 702 to have 

20 the trial judge become the finder of fact with respect 

21 to expert testimony. They want a fence instead of a 

22 gate.

23 So let me remind this Committee what our 

24 Seventh Amendment demands: in suits at common law, 

25 where the value in controversy shall exceed $20, the 
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1 right to trial by jury shall be preserved. Simply 

2 put, our Constitution requires that facts be decided 

3 by juries and not judges. Our Constitution presumes 

4 that a jury of citizens is better than a single judge 

5 at deciding facts.

6 Inclusion of the phrase "by a preponderance 

7 of the evidence" or anything that encourages judges to 

8 make findings of fact will likely remove the jury from 

9 the job of being the fact-finder by encouraging trial 

10 courts to do that job for them. While I don't think 

11 any change is needed, I think we're finally getting a 

12 body of jurisprudence and appellate decisions that are 

13 giving everybody guidance after 25 years. If there 

14 must be change, the preponderance of language should 

15 read “preponderance of the available information.”

16 It's an important distinction because the 

17 preponderance of the evidence is connected with fact18 finding and a weighing of evidence, historically, a 

19 job for the jury. Its common connection in the 

20 vernacular to fact-finding cannot be overlooked or 

21 ignored. It also implies that Rule 703, as we've 

22 talked about in the last few speakers, that allows 

23 expert testimony to be based on information that is 

24 not admissible evidence shouldn't be considered. It's 

25 no longer valid, in fact. “Preponderance of the 
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1 available information” is a phrase that encourages the 

2 trial judge to be a gatekeeper, not a fact-finder. 

3 Professor Capra, your distinction between 

4 702 and 703 is fine from your role as an evidence 

5 professor, and I'm sure your students will get it 

6 right in their exams, but I recommend to you as 

7 members of this Committee that our run-of-the-mill 

8 trial judges and our run-of-the-mill practitioners 

9 will not see it that way. They will read 702, if it 

10 includes the phrase “preponderance of the evidence,”

11 exactly what that requires, the trial judge to do what 

12 that phrase means and make findings of fact and become 

13 the fact-finder, in violation of the Constitution and 

14 really in violation of the intent of what I believe 

15 the Committee is.

16 I also wanted to comment that the data upon 

17 which the proponents for change rely is hand-selected 

18 and misleading. First, it assumes that the admission 

19 of any evidence they disagree with is wrong. Every 

20 opinion they point to -- court of appeals' opinions, 

21 they were wrong. Well, that's not surprising. Every 

22 litigant is disappointed when a position they champion

23 is not accepted, but that does not mean the opinion is 

24 wrong.

25 These proponents go so far as to claim that 
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1 when a trial court fails to mention the word 

2 “preponderance," they're presumably wrong. That makes 

3 no sense at all and, if true, many of the Rule 702 

4 opinions altered by members of this Committee, because 

5 I checked last night, are automatically wrong because 

6 they didn't include the word “preponderance.” That's 

7 certainly not the case. 

8 Other data they rely on shows a failure to 

9 note the failure rate of well under a half of a 

10 percentage. Well, that's pretty good. We're not 

11 going to change that failure rate by changing the 

12 words. The proponents have testified over and over 

13 today that they get to decide the standards upon which 

14 testimony offered against them should be measured. 

15 Members of this Committee, foxes should not 

16 be allowed to set the standard for the counting of 

17 chickens, and corporate wrongdoers should not be 

18 allowed to set the standards by which they are held 

19 accountable either. Keep in mind that the admission 

20 of evidence -- and this is what we learned in

21 Joiner -- it's a discretion. It's always going to be 

22 things that people don't agree with. The courts are 

23 always going to be exercising their discretion, and 

24 there will always be differences. And changings of 

25 the rules' language that might have unintended 
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1 consequences isn't going to change that. The 

2 defendants and plaintiffs are always going to be 

3 unhappy occasionally. 

4 Second and most importantly, the data fails 

5 completely to consider all the judge cases that were 

6 ended by judges who misapplied or overly aggressively 

7 applied Rule 702 by improperly excluding expert 

8 testimony. That data is very hard to find. These 

9 cases are underrepresented and hard to count because, 

10 given the standard of review, abuse of discretion, we 

11 realize it's often a waste of time to appeal the 

12 decision, and appeals are, therefore, often not 

13 pursued. 

14 Simply put, an exclusion ends a case with no 

15 realistic remedy for the plaintiff. The case is 

16 simply over. In contrast, when a court allows an 

17 expert to testify after performing its gate-keeping 

18 function, there are multiple opportunities for that 

19 decision to be revisited, multiple opportunities at 

20 the end of the expert's testimony, the end of 

21 plaintiff's case, at the end of the trial, at a motion 

22 for a new trial, and at multiple levels of appeal. 

23 So, to the extent the proposal I suggest, the 

24 preponderance of all of the available evidence, might 

25 occasionally allow for a jury trial that perhaps 
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1 should not have occurred, isn't it better to err on 

2 the side of the Constitution by allowing the jury to 

3 decide which expert is right, an action that has 

4 multiple opportunities to be corrected. 

5 This idea that the judge is to consider all 

6 available information and not weigh evidence as a 

7 fact-finder cannot be hidden in the comments. As 

8 pointed out by multiple speakers, too many states, 

9 including my own, Georgia, do not adopt the notes when 

10 they adopt the Federal Rules of Evidence. So, if the 

11 phrase "preponderance of the evidence" is included, as 

12 opposed to the phrase "preponderance of the 

13 information," the result will be that these state 

14 court judges will read this rule as requiring them to 

15 do that which they should not, weigh competing expert 

16 testimony, choose a winner, and then grant summary 

17 judgment if the winner turns out to be the defendant.

18 This potential permission cannot be 

19 overlooked as an unintended consequence of the 

20 proposed change but can be minimized by using the 

21 phrase "preponderance of the available information." 

22 I thank you for the opportunity to present my thoughts 

23 to you today.

24 CHAIR SCHILTZ: Thank you, Mr. Warshauer.

25 Are there any comments or questions from the 
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1 Committee?

2 (No response.)

3 CHAIR SCHILTZ: All right. Thank you.

4 At this point, I think we have heard from 

5 all the scheduled speakers. I want to thank all of 

6 those who did testify today. We're a small committee. 

7 We're just a committee of nine people when we're at 

8 full strength, and, thus, we particularly value 

9 getting the insights of a broad range of 

10 practitioners. The Committee members will give 

11 careful consideration to all of the comments, written 

12 and oral, and, again, we thank you very much for 

13 taking the time to help us with our work today.

14 This hearing is adjourned. 

15 (Whereupon, at 12:20 p.m., the public 

16 hearing in the above-entitled matter adjourned.)

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Public Hearing on Proposed Amendments

 to the Federal Rules of Evidence 106,

 615, and 702

HEARING DATE: January 21, 2022

LOCATION: Washington, D.C.

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts.

Date: January 21, 2022

 David Jones

Official Reporter

Heritage Reporting Corporation

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005-4018