The chief legal officers of 50 U.S. corporations, including the general counsel at Dallas-based AT&T and Plano-based Toyota, are asking federal judges to revisit the evidence rules regarding the admission of expert testimony.
AT&T General Counsel David McAtee and Toyota USA General Counsel Sandra Phillips Rogers signed a letter to the Administrative Office of the U.S. Courts seeking to have the organization’s advisory committee on evidence rules revisit the role of courts as gatekeepers regarding expert witnesses on scientific matters.
The letter, dated March 2, urges the federal judicial committee – the body tasked with ensuring the Federal Rules of Evidence are fair, plainly understood, and uniformly applied – to re-examine Rule 702, which provides district judges with guidance on determining the admissibility of expert testimony.
The bottom line: The corporate general counsel – most of them from technology, telecom and pharmaceutical businesses – want judges to employ stricter standards on the expert witnesses that testify in cases.
The corporate lawyers are concerned that judges in some high stakes litigation matters do not provide enough scrutiny of expert testimony provided by plaintiffs.
“Our experience indicates that adherence to Rule 702’s standards for the admission of opinion testimony is far from acceptable,” the GCs wrote. “We are concerned that, left on its current trajectory without committee action, judicial practices under Rule 702 will continue to diverge materially from the committee’s purpose when it drafted the rule to give effect to the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.
“Too often, courts do not fully execute or enforce the ‘gatekeeping’ obligation,” the letter states. “Instead, we see courts allowing juries a role in deciding whether an expert’s opinions have the requisite scientific support without first ensuring that the testimony is the product of reliable principles and methods and is reliably applied”
The corporate general counsel argue that the judges have “gatekeeping” responsibilities, while juries “determine whether there are sufficient facts and data to render evidence relevant.”
“The distinction between these tests is often unclear to both the bench and the bar,” the GCs wrote. “Confusion about the court’s role in assessing these foundational requirements results in the admission of unreliable opinion testimony that misleads juries, undermines civil justice, and erodes our stakeholders’ confidence in the courts.”
The advisory committee has been studying revisions to Rule 702 for nearly two years and is considering amendments to the guidelines.