Ep. 9: Rule 702 Updates: Insights with John Wilkerson

Host Jamie Jones Walsworth sits down with John Wilkerson, General Counsel and Legislative Director for the Arkansas Municipal League, to unpack the recent amendments to Rule 702. Together, they explore the rule’s implications for Arkansas municipalities, how the changes may affect expert testimony in litigation, and what attorneys need to know to navigate the updated standards. 

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SPEAKER_01 0:34

Hello and welcome to ArcR on Air President Mike, the podcast connecting Arkansas's legal minds with the issues shaping our profession. I'm your host, Jamie Jones Waldsworth, and today we're diving into a development in the federal evidence practice, the amendment to federal rule of evidence 702. My guest today is the Arkansas Municipal League General Counsel and Legislative Director John Wilkerson. John, thanks for joining us today. We're happy to have you on the podcast. So let's start the stage. Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal court. And at its core, it's about ensuring that experts are qualified and that their opinions are based on reliable methods and principles. Of course, most practitioners listening are also familiar with the case of Dobert or Daubert, if you want to get really fancy about it. So tell us and our listeners, what is going on with Federal Rule 702 and what the amendment has done.

SPEAKER_00 1:39

It's funny you say Dobert. I was listening to a CLE here last year, I think, about this, and somebody said it's Daubert, except if you're in in the South where it's Dober. And I thought, that's not my experience. We call it Daubert down here. But nevertheless, yeah, so the Federal Rule 702 changed December 1st of 2023. And I'll be honest with you, when I first saw it, I thought this looks to be largely a semantic change because the law really or the rule only really changed, again, it kind of looks semantic until you dive deeper into it. And so the rule added in its sort of not preamble, but that beginning paragraph, it says that an expert may testify in the form of an opinion or otherwise, if, and this is the new language, if the proponent demonstrates to the court that it is more likely than not that, and then it goes to the next four elements. So that if the proponent demonstrates to the court that is more likely than not that, that was an addition. And what that was is an acknowledgement by the rule drafters that rule 104, the admissibility doctrine or admissibility rule applies to 702 very, very clearly. We all kind of knew that. The courts have already known that. So that didn't seem to be a very big change, except maybe a highlighting that admissibility is fundamental and it's fundamental for the proponent. When you go down to the elements themselves or the factors themselves, A, B, C say the same. D changes. And what D used to say was the expert has reliably applied the principles and methods to the facts of the case. So that change was it struck out the words expert has reliably applied and in and inserted expert's opinion reflects a reliable application of. So now the rule reads the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. Now I know I'm saying that out loud, but if you look at it, again, it looks very semantic. And honestly, I didn't know what changed about it. Except the big change was the highlighting that 702 wasn't applied appropriately by the courts. That's what the rule drafters had found. That change, by the way, came as a result of a William and Mary law review article in 2001 that or 2021 that highlighted that after the last change of Rule 702, nobody, or not nobody, but not many courts or not enough courts have been applying Rule 702 appropriately, which is to apply very strictly that admissibility standard to the proponents and establishing, like you mentioned, Jamie, that qualification of the expert. And the article that I read about this, another article I read about this, highlighted that there judges are supposed to be gatekeepers, yet they end up being Walmart greeters. And I thought it was a very great way to put it, especially for us Arkansans. But it was, it was, I get the point that a lot of judges were just letting expert opinions in and saying, yeah, it's probably okay. Let's let it all get sorted out by the jury, which fundamentally became the issue. Is expert testimony, does that expert testimony need to be analyzed by the judge, or is it really a jury function? And really it's both. Credibility goes to the jury, of course, but admissibility goes to the judge. And a lot of judges seem to be just pushing it all onto the jury if the expert looked like they knew what they're talking about. I'm oversimplifying that, of course, but that was basically the premise. So the change again resulted from a William and Mary article, Larview article that discussed the enhancement of the role of gatekeeper for the judges. And going back to Daubert or Daubert, as apparently we call it down here, Daubert itself had some contradictory language in it. It it mentions gatekeeper role, but then it also talks about how the rules of evidence need to be a little bit more open to allow things and allow things to go to trial and let the jury decide. And so the context and the verbiage of Daubert was was sort of conflicty. So people understood that was a that was a problem. So as I went down researching this, uh, and I could go on talking about this for hours, of course, and I won't, but when you talk about applying this new change to the cases or courts and judges in Arkansas, I think it's important to highlight some phrases because Daubert does have some conflicting sort of verbiage, like we like I mentioned. And then the cases themselves that apply 702 create this same conflicting verbiage. They the go the courts acknowledge, even in Arkansas, the gatekeeping role of the judge, but then also say that the rules of evidence are meant to be or were loosened up years ago as a means, again, to allow the process to make its way to the jury and the jury to decide, you know, credibility issues, et cetera, et cetera. And so there's five phrases I would high, I would highlight for all of us to look at as we're looking at applying Rule 702 differently. Because again, from a defense perspective, I think that this is more a change that benefits the defense, or at least defense in the sense of the side that doesn't have an expert that is challenging an expert, that's going to be the big change. That if you're trying to challenge the admissibility of an expert or having a Daubert motion, or really what should be called the Rule 702 motion, I'll highlight that real quick. The the rule drafters and the people, the law review articles that I've read talk about how it's not really a Daubert motion. It is a rule 702 motion. And when we tie our thinking of Rule 702 to Daubert, we are we are tying it to something that's old and a little that it is a bit antiquated. When we're applying 702, sorry, I'm gonna scrap all that. Not all of it, but that part right there. Sorry, Jasmine. I hate to make your job harder. I respect editors immensely, so thank you so much for editing. That's not an easy job, and it's often thankless. So thank you very much. When we're talking about applying this new rule 702 to cases in Arkansas, really around the country, there's five phrases I would highlight. One is fundamentally unsupported. And when you're gonna see this phrase, it's going to be in a sentence as something, something akin to if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then it shouldn't be allowed to be admissible. So it's this fundamentally unsupported standard. You're gonna see that a lot. It's not really the appropriate standard based if you dive deeper into the case law from years past. It just sort of has developed. It's not necessarily a bad standard, it's just an incomplete standard. Then you're gonna see a phrase liberal thrust. And back to that contradictory rhetoric in Daubert, where it's a gatekeeping role, but there's a liberal thrust when we're approaching issues of admissibility and rules and federal rules. You're gonna see liberal thrust. And that liberal thrust approach is gonna be associated or accompanied by this heavy preference towards admissibility. Another phrase to look out for is weight rather than admissibility. You're gonna see this as well, this phrase of weight rather than admissibility. And in the the context you're gonna you're gonna see that is allowing questions of sufficiency, of basis, and reliable application go to issues of weight rather than admissibility. That's saying that issues of weight are a jury issue. How much weight should the jury put into this expert opinion? And a lot of courts are going to say the question of sufficiency and reliability of the application of the testimony or application of the opinion to the facts is a question of weight rather than admissibility. That's changed. It isn't it is not a question of weight, it is a question of admissibility. The application of the expert opinion to the facts is a question of admissibility, and that's a big thing. This the drafters of the amendments to 702 really wanted to highlight. Fourth, you're going to see gatekeeper role. You're going to see that in so many different cases where the the courts are going to say, we acknowledge our role as gatekeeper. The problem is they've been saying that since before 702, and they're now saying, or the amendments to 702, and now they're saying it after the amendments to 702. So look out for that phraseology. Just because they say, they being the judges, say they're accepting this gatekeeper role does not necessarily mean they're accepting their real true role as gatekeeper. And finally, there's a lot of lip service to preponderance of the evidence. Judges acknowledge that their role in determining admissibility, or at least the proponent of the expert opinion's role, is to establish the admissibility by preponderance of the evidence. But a lot of times that seems to be lip service. We're giving lip service to the, or judges are giving lip service to the concept of that proponents of the evidence is the standard. So when you find, when you look through those five phrases, those are sort of keys, keys that you need to look at. And if you're trying to say to a judge that, you know, the Rule 702 motion should be granted and this expert shouldn't be allowed to testify, or the expert opinion is inadmissible, you're going to hear we acknowledge the gatekeeper role. We acknowledge it's a uh acknowledge it's a proponent of the evidence, but dissect that deeper. Make sure the judges understand what that rule is because I'm not saying this as a practitioner. I'm saying this as Rule 702 amendments are saying that this has got to be the change. You've got to, you as the judges, have got to understand that you you really need to be a firm gatekeeper and abide by that strict standard or stricter standard of proponents of the evidence. Now, last but not least, I do want to highlight what I've seen so far in at least the Eighth Circuit. The Eighth Circuit has has had one case following the amendments to Rule 702 that I want to highlight very quickly, and I would encourage you to read it. It's Sprafka versus Medical Device Business Services. And the the site is 139 F4th 656. By the way, when I first started, F3rd was just getting started. So now I'm deep into F fourth. So I feel my age right now.

SPEAKER_01 11:41

Yes.

SPEAKER_00 11:42

In Sprafka, it was a it was a district court holding that excluded an expert. And the the lower court used the phrase that it's it was not based on independent research. It was not based on reliable data. It did not identify what depth that the expert had gone to to come up with his or her conclusions. And the court fundamentally said, the lower court at least said that while the expert was qualified, which is important to highlight, the court said, while you are qualified expert, you did not render a reliable or anything more than speculative opinions. So it seemed to me the district court maybe not applying the new rule 702. Maybe it was so bad it was it was bad before the new 702, but the district court did exclude the expert testimony. With it by excluding the expert testimony, the defense then filed the motion for summary judgment, and the plaintiff could not use the expert testimony to defend or reply, respond to the MSJ, and the court granted the MSJ. Thus it gets to the Eighth Circuit. The Eighth Circuit acknowledges that 702 changed, and they acknowledge that there is a stricter admissibility standard after the 2023 amendments. They recognize the court, the Eighth Circuit recognized the gatekeeper role of the trial court judge. And there was an expectation that the judge is going to weigh the reliability, or not weigh the reliability, but establish the admissibility and whether or not it's credible and whether or not it should be believed necessarily is a judge is a jury issue, but the court is required to deal with the admissibility. Did you apply the right standards? Did you to go back to the rule itself? The question is sorry, I get to it real quick. Did the proponent demonstrate to the court that is more likely than not that the expert's opinion reflects a reliable application of the principles and methods to the facts of the case? And the Eighth Circuit and the lower court both said the expert did not do that. So when you look at Sprafka, I I it's a beginning, I believe, of an application of Rule 702 or the new the new amendments. I don't know that it necessarily embraces every new nook and cranny of what the amendment was supposed to do, but it is a clear acknowledgement by the Eighth Circuit that the rule has changed. It is a clear acknowledgement that the rule has substantive changes that are not just semantic. And it was really, I thought it was a really good case to find that just happened, I think, back in August, if or July, if I remember correctly. One final thing to dive into district court, just Arkansas Federal Federal District Court. Judge Baker in the Eastern District and Judge Brooks in the Western District both have very good analyses of Rule 702. And their analyses have changed post the amendment to 702. Christy Judge Baker, who I think the world of, I think she's a phenomenal judge, has done a good job of acknowledging the changes. Although I don't know that that her rulings yet reflect fully the intent and the intent of the changes to 702. But again, it's very early in this application of this. And I'm not sure that plaintiffs or defendants are articulating their articulating the depths of the change yet either. Judge Brooks, however, Judge Brooks's rulings recently have been interesting. He has a line in one of one of his cases, it's Loftus versus Walmart. It's 2025 Westlaw 156-1261. Sorry, I just feel the need to always do that for lawyers.

SPEAKER_01 15:24

No, we appreciate that.

SPEAKER_00 15:26

And in his order, he says that once obvious alternatives are discounted, the expert's ability to rule out other causes goes to weight, not admissibility. And he cites an eighth circuit case called Lausan, L-A-U-Z-O-N, I don't know how to pronounce it. But when I read that line, it's Judge Brooks saying, look, if you come in with an expert opinion and you have not waited, you have not looked at other obvious alternatives to your expert opinion and just and said those aren't working, those don't work here, then I'm not going to accept this as admissible. That's a really interesting way to look at this. And I'm not saying he's wrong, and I'm not saying he's right either, but it it feels, it feels like it's he's hitting a nice sweet spot. So again, once obvious alternatives are discounted, the expert's ability to rule out other causes goes to weight, not admissibility. So if you're an expert and you say, this is my opinion, these are other two other obvious, reasonable opinions, but they're wrong because of this and this. Judge Brooks is going to say, okay, you're in, you the jury gets to weigh the rest of it. And I think that that makes sense because now you've got three obvious alternatives, and one expert is saying mine's right, the other two are wrong for specific reasons, and then it goes to the weight of the testimony to the jury. One quick plug for AI on this question in particular. I I use AI. Obviously, I don't draft motions with AI, I don't answer legal questions with AI, but I did use AI quite a bit and constantly asking it questions to analyze this rule 702. So it was about three weeks of me working on this and also asking co-pilot and Westlaw co-counsel about this. I only say that to say this. When I dropped that particular quote into our very lengthy chat at that point, because it had learned what I needed, I ask it, is this a correct application of Rule 702? Was Judge Brooks's quote that I quote I said earlier, was it correct? Co-pilot says, no, it's not quite there. It's close, but it's not quite there. Westlaw Counsel says, yes, that is a correct application of the change to Rule 702. That's why I love that quote so much, because these two programs who I have been working with for weeks about this and we're fully educated, as you can AI, disagree on whether or not that quote is accurate, which tells me that Judge Brooks is very, very close to getting it right if he's not right entirely. So my final advice is if you're looking for how to approach this issue, I really like Judge Brooks' opinion in Loftus versus Walmart and that quote in particular. Whether or not it's the best way to apply this, I'm not sure yet. We're still early on, but I really think that's a great way to look at it. Again, I've been going forever, Jamie, but I will stop there. So thank you.

SPEAKER_01 18:18

No, thank thank you for sharing your insights on these vital changes to Federal Rule of Evidence 702. I think for Arkansas lawyers and even beyond our borders, understanding these changes is the key to effective advocacy in federal court. Thank you for tuning in to Arc Bar on Air President's Mike. Be sure to subscribe and join us next time as we tackle more topics shaping the legal profession. Until then, please stay curious and keep making a difference.