Helmsing Leach partner Joe Babington participated and led the discussion on a panel entitled “Don’t Say Daubert, Say Rule 702” on February 21, 2023, at the FDCC’s winter meeting in Nashville, Tenn. The Bar’s reference to the “Daubert standard” may have caused federal trial and appellate courts to misapply Federal Rule of Evidence 702, as amended in 2000, following the Supreme Court’s opinions in Daubert, Joiner and Kumho Tire. Data indicates courts have often applied outdated case law, “cherry-picked” Supreme Court dicta, and generally failed to follow the requirements of Rule 702 when assessing the admissibility of expert testimony. The courts have often undermined the true purpose of Daubert (and Rule 702)—the trial court’s proper exercise of its gatekeeping role to ensure the reliability of admitted expert testimony. In response to these trends, the FRE Advisory Committee has approved amendments to Rule 702 to emphasize that the trial court must find the expert evidence “more likely than not” satisfies Rule 702’s requirements, including that the expert’s opinion “reflects a reliable application of the principles and methods to the facts of the case.”
The FDCC panel in which Mr. Babington participated discussed the history of Rule 702, the purpose of the proposed amendments—on course to become effective in December 2023—and why the defense bar should say “Rule 702” is the standard for admissibility of expert evidence and should lead efforts to amend state evidence rules by adopting the new federal language.
Mr. Babington has been a member of the FDCC, a leading national defense lawyer organization, since 2011 and regularly participates in its meetings and presentations. His practice focuses on products liability defense, mass torts, general commercial litigation, and insurance coverage. In 1998, Mr. Babington successfully argued before the United States Supreme Court in the Kumho Tire case, one of the three Supreme Court decisions that led to the 2000 amendments to Rule 702.