Federal Rule of Evidence 702, which governs the admissibility of expert testimony, was most recently amended in 2000 in response to Daubert and its progeny. In response to concerns about misapplication, the Advisory Committee on the Federal Rules of Evidence has been considering whether Rule 702 is due for an update.

Under the current version of Rule 702, an expert’s opinion is admissible if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

One of the changes the Committee considered was an amendment to the text of the rule or a new committee note to clarify that “the admissibility requirements set forth in the rule—most especially sufficiency of basis and reliability of application—are matters that must be decided by the court a preponderance of the evidence under Rule 104(a).” Advisory Comm. on Rules of Evidence October 2019 Agenda at 3. All admissibility requirements, including those of Rule 702, must be satisfied by a preponderance of the evidence. Treating these requirements as “questions of weight” is a misapplication of Rule 702. The distinction is important because while questions of admissibility are decided by the court, questions of weight must be left to the finder of fact.

Last fall, the Committee invited a panel of federal judges and professors to speak about Daubert “best practices” with the goal of educating judges and practitioners “as an addition to (or alternative to) an amendment to Rule 702.” Id. The full transcript of the proceedings was published in the Fordham Law Review in March 2020.

One of the issues the panel addressed was how to handle expert admissibility in complex scientific cases. In these cases, Rule 702/Daubert decisions take on added importance. As Judge Chhabria, one of the panelists at the October conference, explained:

Before the expert takes the stand, the judge reads the briefs, reads the expert reports, maybe looks at some of the expert deposition testimony, and reads the actual studies that the experts are talking about and has a lot of time. The jury is sitting there in the trial, has not read the studies before the expert comes up and testifies, has not read any of the briefs, and doesn’t even get to bring the studies back into the jury room . . . . They are just shown quotes on the board that the expert wants them to see in support of this opinion that they are hearing for the first time.

Id. at 1226. In short, “it is much easier for a judge in the Daubert process to root out overstatement” and other reliability-related deficiencies “after climbing the learning curve than it is for a juror who is in the heat of trial.” Id. This also means that when courts misapply Rule 702, including by confusing questions of weight and admissibility, and admit expert testimony that should be excluded, the error is hard to correct at trial. Where the expert testimony at issue involves complex scientific matters, correction at trial is especially difficult.

During its June 2020 meeting, the Committee decided against addressing this misapplication issue through an amendment of the text of Rule 702. The Committee explained that it was “wary about changing a rule in a way that essentially says, ‘apply the rule the way it was written.’” Advisory Comm. On Rules of Evidence June 2020 Agenda at 644. Although a textual change to the rule now seems unlikely, the possibility of a new committee note that emphasizes the preponderance of the evidence standard is still on the table. The Advisory Committee will consider issues related to Rule 702 again at its next meeting in the fall.

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Photo of Lee Popkin Lee Popkin

Lee Popkin is a trial lawyer in Proskauer’s Litigation Department and co-head of the firm’s Mass Torts & Product Liability Group. Lee represents clients in a wide range of industries through every stage of litigation and has served as lead and/or trial counsel…

Lee Popkin is a trial lawyer in Proskauer’s Litigation Department and co-head of the firm’s Mass Torts & Product Liability Group. Lee represents clients in a wide range of industries through every stage of litigation and has served as lead and/or trial counsel in state and federal courts throughout the country.

Lee was named Young Lawyer of the Year (Litigation) by The American Lawyer for 2022 and shortlisted for Product Liability Lawyer of the Year in Euromoney’s Women in Business Law awards in 2023 and 2024. Lee is ranked by Chambers for Commercial Litigation and recognized by The Legal 500 for her work in Product Liability and Mass Torts. Benchmark Litigation named Lee among its “Future Stars” and included her in its 40 and Under list.

Lee’s notable representations and victories include:

Stephens v. Monsanto. Trial counsel to Monsanto in a product liability action relating to the company’s weedkiller, Roundup, and its alleged link to non-Hodgkin’s lymphoma. After a five-month trial, the California jury returned a complete defense verdict on all claims.
Tiffany & Co. v. Costco. Counsel to Tiffany & Co. in successful pursuit of Lanham Act trademark infringement and counterfeit action related to Costco’s use of the TIFFANY mark to sell diamond engagement rings.
Universal Standard Inc. v. Target. Counsel to Target in successful pursuit of Lanham Act trademark infringement action related to its Universal Thread clothing line.
Echeverria v. Johnson & Johnson. Trial counsel to Johnson & Johnson in a widely publicized product liability case relating to the company’s talc-based products and their alleged link to ovarian cancer. After trial, the court entered judgment notwithstanding the jury verdict for the J&J defendants, and, in the alternative, granted J&J’s motion for a new trial.
Bed Bath & Beyond Inc. v. 1-800-Flowers.com, Inc. Successfully represented Bed, Bath & Beyond in action to enforce agreement by 1‑800-Flowers to purchase PersonalizationMall.com.
Global Holdings v. Church & Dwight, Co., Inc. Secured dismissal of state and federal dilution claims in Lanham Act action regarding a consumer product. The court’s decision made new law in the Second Circuit on the issue of whether a valid registration preempts state law claims of dilution.
Daniels v. Johnson & Johnson. Trial counsel to J&J in product liability trial related to the company’s talc-based products in St. Louis. The jury returned a complete defense verdict on all claims and awarded zero damages.
Allied Lomar, Inc. v. Diageo North America, Inc. Counsel to Diageo in successful defense of Lanham Act trademark infringement action concerning Blade & Bow Whiskies and the Stitzel-Weller Distillery.
Diageo North America, Inc. v. Mexcor. Trial counsel to plaintiff Diageo in a Lanham Act trade dress infringement and dilution action against competitor involving Crown Royal whisky. Obtained a jury verdict and permanent injunction in favor of our client following a two‑week trial.
In addition to her active practice, Lee regularly contributes to the Firm’s false advertising blog, Watch This Space: Proskauer on Advertising Law. Lee also devotes significant time to pro bono matters, and was recognized by KIND for her work representing two sisters from El Salvador fleeing gang violence.

Before joining Proskauer, Lee served as law clerk to the Honorable Sarah S. Vance of the United States District Court for the Eastern District of Louisiana. She received her J.D. cum laude from Harvard Law School.